As Prenda Hearing Nears, We Discover Allan Mooney Has No Clue That He's Listed As Representing Prenda Shell Companies

from the look-at-that dept

As we near the Prenda hearing that's scheduled for 1:30 pm this afternoon, in which everyone is supposed to be showing up for Judge Otis Wright, the Star Tribune in Minnesota has a decent summary article about the entire mess, with particular focus on the case's ties to Minnesota, where Alan Cooper lives, and where John Steele and Paul Hansmeier (oh yeah, and Brett Gibbs, though he's not listed in the article) all attended law school. It's also where Paul's brother Peter, who supposedly handles the "forensics" for tracking down file sharers lives. But, most importantly for this article, it's where Allan Mooney lives. As we explained last week, there were some hints at another possible Alan Cooper situation, in which Prenda filed documents showing someone in charge of a shell company who apparently was unaware they were drafted to that position. In this case, Prenda spelled his name differently on different filings. There's Allan Mooney, Alan Mooney and Alan Mony.

The key bit in this article is that the reporter tracked down Allan Mooney, who Paul Hansmeier admitted is a former client, and he apparently has no clue that his name is appearing on these documents suggesting he runs Guava LLC and MCGIP LLC.

Allan Mooney, a Minnesotan who has brokered the sale of Internet-based businesses, said he introduced his friend Paul Hansmeier to some contacts in the porn industry. But he denied knowing that he was listed as the “sole organizer” of MCGIP LLC, a plaintiff in at least 20 lawsuits filed by Steele Hansmeier or contract attorneys.

Mooney also has been listed in court filings — with his name misspelled — as an agent for an entity called Guava LLC, which is registered in the Federation of St. Kitts and Nevis in the West Indies. Guava has been the plaintiff in 21 federal lawsuits since October, including six in Minnesota.

“That would be news to me,” Mooney said. “I’m not involved in any of that type of stuff. I’m more or less a personal trainer.”

Morgan Pietz has already filed the article with the court, even though Mooney is not among the list of folks asked to show up in court (though Alan Cooper is).

Filed Under: alan mony, alan mooney, allan mooney, paul hansmeier, prenda
Companies: prenda, prenda law

As Expected, Team Prenda Trying Desperately To Get Out Of Appearing On Monday

from the well-of-course dept

All week I've been checking the docket on the Prenda case where the showdown is supposed to be happening on Monday, fulling expecting to see John Steele, Paul Duffy, Paul Hansmeier and others desperately trying to get out of appearing, and it's finally showed up -- but not via their own filing, but rather opposing attorney Morgan Pietz who received the documents before the court did, and is opposing them, in part by arguing that Team Prenda stalled in filing these documents. Team Prenda try a variety of arguments, first noting that they have nothing (nothing, I tell you!) to do with the case, and they point out that Brett Gibbs and the lawyers he hired are the lawyers on the case. They're even so bold to claim that they have "no dog in this fight."

Even where the court seeks to adjudicate issues between parties, it must have personal jurisdiction over them. Here, Steele, Hansmeier, Duffy, and Van Den Hemel are not parties and have not otherwise participated in this litigation. As such, the public policy behind the need to determine personal jurisdiction is arguably at an elevated level because, as individuals, they effectively have "no dog in this fight."

As if anyone believes that.

Then they claim lack of jurisdiction by the court:

On March 5, 2013, this court issued an order that eight individuals would have to appear before this court on March 11, 2013. But this court lacks jurisdiction to order those individuals to appear in that they reside outside California, are not parties to this litigation, have not appeared in this action, and do not represent parties to this action.

Moreover, although some of these individuals may have received notice as the court ordered, others did not because those charged with providing notice simply lacked the information necessary to do so. And, even those that were served have not received reasonable notice of the nature of the proceedings they are being ordered to appear in or what is expected of them besides their physical presence.

Further, they have not received a reasonable amount of notice to accommodate cross-country travel or information regarding who will pay for such travel. Based on these factors, the court should withdraw its order for John Steele, Paul Hansmeier, Paul Duffy, and Angela Van Den Hemel to appear on Monday, March 11, 2013 at 1:30 P.M.

On top of that, they argue that they "can be nothing more than witnesses."

Here, because they are not parties in this action, Steele, Hansmeier, Duffy, and Van Den Hemel can be nothing more than witnesses. California Code of Civil Procedure section 1989 provides that "a witness . . . is not obliged to attend as a witness before any court, judge, justice or any other officer, unless the witness Is a resident within the state at the time of service." None of these individuals named in the court's March 5, 2013 reside in California... Thus, the court lacks jurisdiction to order them to appear.

Furthermore, they claim that even thought it seems quite likely that they heard about this order immediately after it came out on March 5th, that they didn't actually find out about it until yesterday, March 7th, which (they claim) is not enough notice.

Although counsel submitting this application has been unable to identify any authority addressing the notice requirements to witnesses ordered to appear at such hearings, logic dictates that such individuals should at least be similarly accommodated with reasonable notice. Here, the court's March 5, 2013 order that notice be provided by March 7, 2013 to attend a March 11, 2013 hearing with no further information is fundamentally unreasonable.

Oh yes, and they also say that they need to be paid to show up:

Finally, witnesses are entitled not only to receive payment for their attendance, but also for travel expenses.... But, the court's order not only fails to provide who will compensate Steele, Hansmeier, Duffy, and Van Den Hemel for their time and these expenses, but that they will be compensated at all. Given the considerable expense of traveling such distances (including consideration of the fact that one of the witnesses likely has limited means given her employment as a paralegal), especially on such short notice when many common carriers may not have seats available, this is a significant issue.

As is typical for Prenda, throwing any excuse at the wall to see what sticks.

Morgan Pietz has already filed a response noting the claims of the court not having jurisdiction are basically bullshit, since all of these guys have been involved in this and other Prenda cases in California. He lists out each and every person and notes their connection to California or this case in particular. I won't post them all, but here's the entry on Steele:

John Steele has frequently sent demand letters into the State of California, seeking to pressure Internet users into settling copyright infringement claims. An example of only one such letter (undersigned counsel knows there are many more) accompanies this opposition as Exhibit 1 to the Declaration of Nicholas Ranallo. Further, Mr. Steele has not been shy about conducting media interviews, with California publications, about his California cases. See http://www.sfgate.com/business/article/Lawsuit-says-grandma-illegallydownloaded-porn-2354720.php. Accordingly, both general and specific jurisdiction exists over John Steele.

For Paul Hansmeier, they note he already traveled to California for that deposition. Paul Duffy is a member of the California Barr, and has taken over some Prenda cases in California for Brett Gibbs. Oh yeah, and the paralegal Angela Van Den Hemel is accused of violating the court's discovery order in this very case, so the jurisdiction over her is even clearer.

Pietz also claims that the short timeframe argument is bogus too, and suggests that Prenda chose to file this attempt to get out manually in an attempt to delay the whole thing, and even notes the oddity that he got the documents before the court did:

It appears that the Application may have been manually filed in order to create a purposeful lag time (of the motion getting from the filing window to chambers) on what is supposed to otherwise be an emergency motion. It is unclear why undersigned counsel found himself in possession of a copy of the moving papers prior to the Court. Further, the original amount of time was reasonable.

And now... we see what Judge Otis Wright thinks about all of this...

Filed Under: angela van den hemel, brett gibbs, fees, john steele, jurisdiction, morgan pietz, paul duffy, paul hansmeier, prenda, prenda law
Companies: prenda, prenda law

Prenda's Brett Gibbs Objects To Pretty Much Everything, Including Use Of Hansmeier Deposition

from the but-of-course dept

This probably will come as little surprise given his earlier objections, but Prenda Law's Brett Gibbs has filed yet another series of "objections," filed by his recently obtained legal representation from the law firm of Waxler, Carner, Brodsky. Like the last time around, the objections follow the same pattern, basically arguing that pretty much everything Morgan Pietz has said or filed is "irrelevant" along with a rotating cast of other objections: hearsay, lacks foundation, argumentative, assumes facts not in evidence, speculation, etc. Some of these objections seem obviously ridiculous. For example, he objects as "hearsay" (among other things) a statement from Pietz about Gibbs filing different versions of the same motion. This is, to put it mildly, overkill.

Not surprisingly, the objections include the use of the Paul Hansmeier deposition which got so much attention yesterday. The specific objections here: irrelevant, lacks foundation and/or personal knowledge, hearsay, speculation, argumentative, assumes facts not in evidence, improper characterization of evidence, improper authentication of document. The idea that the document is irrelevant is simply laughable.

It's somewhat surprising that Gibbs and his lawyers felt this was a productive use of their time. As was covered pretty clearly in Ken "Popehat" White's big analysis of the case, it's quite clear that Judge Otis Wright is not buying Brett Gibbs' story, at all. In fact, he's taking an incredible level of interest in the details of the case, in a manner that suggests he does not trust Gibbs at all. Given that, you would think that filing a list of objections like this not only will not have the hoped for effect, but might actually do the exact opposite. It serves to highlight just how worried Gibbs is that this evidence will be used by Judge Wright in exploring the depths of Prenda's actions. Yes, some lawyers think that you should object to everything imaginable just in case it works. But, in this case, with the Judge making it pretty damn clear that he doesn't believe Gibbs and wants to get to the bottom of what's going on with Prenda, taking such an aggressive stance to all of this evidence seems like it could be a pretty big miscalculation. It does fit with Gibbs' and Prenda's standard operating procedures, but considering how badly that's failed in this case so far, you'd think that someone would have the sense to suggest he let up on the throttle a bit.

Filed Under: brett gibbs, morgan pietz, objections, paul hansmeier, prenda
Companies: prenda, prenda law

Latest Prenda Filing: John Steele Knows Who Alan Cooper Is, But Won't Say, Plus Almost 300 Pages Of Tap Dancing Around Important Questions

from the who-is-alan-cooper dept

The hits just keep on coming in the Prenda situation today. The latest is a filing from Morgan Pietz, the lawyer fighting against Prenda, which includes an incredible 300 page deposition of John Steele's law partner, Paul Hansmeier, acting as a representative for AF Holdings, one of the shell companies that people have been arguing is really owned by those associated with Prenda. The deposition actually happened back in February on a different case and it's quite a read. Acting as the lawyer for Hansmeier, by the way, is Brett Gibbs, and his role appears to be the resident pain in the ass, objecting to nearly every question. Hansmeier continues the standard operating procedure of Prenda Law in trying to tap dance his way around pretty much anything that looks really bad. If you want to skim the "good parts," Pietz helpfully highlighted the parts that directly pertain to the hearing on Monday in yellow, but there's much, much more. I've spotlighted some key parts here.

A quick summary: John Steele knows who Alan Cooper is, but won't tell anyone. No one seems to know who owns AF Holdings, but it's a trust, and that trust has no human beings as beneficiaries (zombies? aliens? we don't know). No one ever seems to get paid. AF Holdings makes no revenue, but holds money in a trust. Hansmeier represents AF Holdings but doesn't get paid. Mark Lutz is the sole employee and CEO for AF Holdings, but doesn't get paid. There is no clear financial relationship (i.e., no money being paid) between AF Holdings and the companies it supposedly gets its copyrights from. Since Lutz is the only employee, he handles the "not very complicated" books, but when asked to discuss how much cash AF Holdings has, well, that's too complicated.

These guys really think they've set up a system where they can basically hide everything. Eventually, a court is going to call bullshit on all of this. Perhaps on Monday...

I'd jump straight to the "Alan Cooper" question, since that's a big one, but Hansmeier's tap dancing there requires some other details first. So, let's go back to the question of who actually controls AF Holdings. The answer, apparently, is "a trust." Who's in the trust? We don't find out. But who works for AF Holdings? Apparently the sole employee has been Mark Lutz all along. Except that he's not paid anything and it's unclear if there are any actual records that he works for AF Holdings. Yeah. A snippet from the deposition:

Q. And who is AF Holdings -- who are AF Holdings' employees?
A. AF Holdings' sole employee is Mark Lutz.
Q. When was Mark Lutz hired?
A. He was hired very shortly after the incorporation, within a day or two, so May 2011.
Q. And does AF Holdings maintain employment records that would reflect Mr. Lutz' employment?
A. Could you specifically describe some of these employment records.
Q. A W2 for example.
A. It does not maintain a W2 for Mr. Lutz.
MR. PIETZ: How about a 1099?
THE WITNESS: It does not maintain a 1099 for Mr. Lutz.
MR. PIETZ: What can kind of records does it maintain for Mr. Lutz?
THE WITNESS: I guess -- which topic is this again so I can refresh my recollection?
MR. PIETZ: I'm not going to answer that, but it's on the list.
MR. GIBBS: Objection. It's not on the list.
MR. PIETZ: I disagree. You can go ahead and answer.
MR. GIBBS: Which one is it? I disagree.
MR. PIETZ: It's not our job to tell you.

This goes on for a bit with them arguing over whether or not they're allowed to ask about this, and Hansmeier eventually saying that he's sure that they "could get... some form of document" to prove that Lutz is employed by AF Holdings, though he also says:

I guess what I can say on behalf of AF Holdings is that I do not review any documents that would fall within the category of documentary support. Does that mean they have them, perhaps. Perhaps they don't have them. It wasn't one of the noticed topics. I inquired of Mr. Lutz as to who the employees of AF Holdings were and Mr. Lutz said that he was the sole employee.

Incredibly, they're arguing that the documentation of Lutz's employment was not previously "noticed" as a topic that would be covered, even though the list of topics included "identity and terms of employment for any and all AF Holdings' employees and independent contractors utilized by AF Holdings." So, as the sole employee, and "essentially" the CEO, he must make some money, right? No.

Q. To be more specific. Could you elaborate on the terms of Mr. Lutz's employment with AF Holdings?
A. He is the -- well, he's essentially the CEO of AF Holdings.
Q. How much is he paid?
A. He does not receive a salary for duties as CEO.
Q. Does he receive a salary for any other role that he fills at AF Holdings?
A. He does not receive a salary from AF Holdings.

Okay, so Lutz is the guy for AF Holdings, even though there are no records of him actually working there and he doesn't receive a salary or any other compensation (they later asked about other non-monetary compensation as well). Hansmeier chooses his words carefully so they keep repeating the question, and even directly pointing out to Hansmeier that his choice of words is clearly "leaving open an exception" in terms of how Lutz is compensated.

Then we get back into a long bout of tap dancing around the structure of AF Holdings itself, which is owned by a trust, but Hansmeier refuses to provide any more information, insisting that the details of the owner of AF Holdings were not on the list of topics to be covered. He says that the trust itself has no beneficial owner, and when questioned about how a trust can have no beneficial owner, Hansmeier gets snarky: "I would suggest that your experience is not complete when it comes to trusts." Then they go around and around and around again in circles with Hansmeier coming up with new and unique ways to refuse to answer the basic question. He even claims he doesn't know the name of the trust that owns AF Holdings.

At one point, they bring up "Salt Marsh," which in one document is listed as the "owner" of AF Holdings. Hansmeier again is tap dancing, saying:

My testimony was that I don't know what the exact name of the trust is. If the name of the trust is Salt Marsh, then Salt Marsh is the owner. If the name of the trust is not Salt Marsh, then --

Very useful. They then ask if a trust can read, followed by pointing out that in another filing AF Holdings claimed that "Salt Marsh" had read an ADR certification handbook. Then, they note that if the owner is a trust, and the owner is Salt Marsh, then to claim that the trust read a handbook doesn't make much sense. They even present him with the ADR certification that has a signature for "Salt Marsh" and he still refuses to answer the question. Even when asked directly, he states flat out that despite being the representative for the company he doesn't know who owns it.

Q. But your testimony as AF Holdings corporate representative who has been subpoenaed to appear and testify on the noticed topics, which include as No. 6, AF Holdings' corporate structure, your testimony is that as the corporate representative for AF Holdings, you do not know the name of the trust that owns AF Holdings?

THE WITNESS: Yes. My testimony is that in preparing for this deposition, I did not expect the name of the trust to fall within the scope of this. I did not review the history of the name of the trust.

That does not seem particularly believable, but we'll see what some judges have to say about that eventually, I imagine. He keeps insisting that the owner of AF Holdings is and has always been a trust, and not an individual, and implies that Salt Marsh may be the name of the trust though he does not know. That becomes important later... because the name Salt Marsh (or, rather, Saltmarsh) returns, but we'll get there.

From there they go on to an equally long and equally unenlightening conversation about what happens to money that is paid into AF Holdings in the form of settlements. Again, it's all about the tap dancing. AF Holdings apparently never recognizes revenue because they use "mark to market" revenue recognition based on the "value of their assets" and how much they appreciate, rather than actual cash flow in. And even if they did use cash flow in, Hansmeier can't say where the cash goes, other than that individual attorneys have it put in trust and it's used to pay for legal costs because piracy is such a big problem and they have to keep fighting it. Or something along those lines.

Eventually, however, they get Hansmeier to admit that he has an interest in the Alpha Law Firm, who has represented AF Holdings in some cases, and Hansmeier is asked how they got paid... to which he notes that the money actually went to Prenda's trust account. He's asked if, as a representative of AF Holdings, he's concerned that his own client (based on his earlier statements) does not appear to be getting paid, and he responds:

Well, I can say as an attorney I have no concern over how the proceeds are handled.

They keep pressing him on where the money goes, and he keeps saying to fund further litigation, and then finally he says this:

THE WITNESS: Yes, that's correct. The purpose of the litigation isn't to generate money for AF Holdings. The purpose of the litigation is to generate a deterrent effect in stealing its copyrighted works.

Yeah, sure. Very believable. Of course, he then admits that part of the "litigation fees" being paid goes to the lawyers. And after some more tap dancing, he admits that they are paid on a contingency basis (i.e., whenever money is collected) though he claims his own firm, Alpha Law Firm, has no contingency fees and is not paid by AF Holdings, despite representing them. He keeps dancing around what others might be paid.

So then they start asking about how much Gibbs makes from these cases, since he's in the room too. Not surprisingly, Gibbs does not like where this is headed and ramps up even more objections than before. They finally give up.

Then... finally, we get to the big question: Who is Alan Cooper? As we've been noting for months, it seems like a fairly straightforward question. Except if you're associated with Prenda Law and don't want to answer it. And... once again, the tap dancing begins pretty quickly.

Q. Who is Alan Cooper?

A. Alan Cooper is an individual who was designated as a corporate representative of AF Holdings, LLC. The circumstances that led to Mr. Cooper's designation as a corporate representative to acknowledge the copyright assignment agreement on behalf of AF Holdings, LLC, is that Mark Lutz -- we're backing up a little bit. AF Holdings makes use of corporate representatives, the reason for that is that obviously you guys know that there's a lot of people out there who don't like what we're doing, specifically to people who have infringed on works and want to retaliate against people who are enforcing copyrights.

Notice he hasn't answered the question. Just claiming that they have to use "representatives" because their critics are so, so mean. And so Alan Cooper's role was to protect Mark Lutz from the mean people out there.

AF Holdings makes use of corporate representatives to help prevent the -- I guess the officer, Mark Lutz, himself, from being targeted by these individuals. The manner in which Mr. Cooper was designated as a corporate representative was Marks Lutz asked attorney John Steele to arrange for a corporate representative to acknowledge the assignment agreement on behalf of AF Holdings. Mr. Steele did so and returned the assignment agreement to AF Holdings bearing the signature of Mr. Alan Cooper.

Other important point in there: John Steele is the one who "found" Alan Cooper. Not a surprise, but just confirming officially what most people expected. So then, Hansmeier discusses a conversation between Lutz and Steele in which Steele insists the Alan Cooper signature is real, but which provides no more insight into whether or not Alan Cooper actually exists.

When this whole -- I guess the first time we heard about any form of controversy with respect to -- the first time AF Holdings heard about any form controversy with respect to the assignment agreement was when an attorney named Paul Godfread, G-O-D-F-R-E-A-D, contacted AF Holdings and said that -- I can't remember the exact text of the e-mail, but something to the effect of he's representing someone named Alan Cooper and they're concerned that Alan Cooper is being held out as AF Holdings CEO.

And so when that occurred, we -- or AF Holdings and Mark Lutz specifically, he asked, you know, what is the exposure of AF Holdings here and there were two specific concerns. One specific concern was the issue of fraud. Namely, that if AF Holdings is distributing agreements that have someone's signature on it, but he didn't sign it or somehow his identity was coopted, then obviously that's something that AF Holdings would have to -- once it became aware of that issue -- stop doing -- shut it down and make sure it didn't happen anymore, because obviously there's no reason to distribute an assignment or any agreement bearing someone's signature if there was a forgery or some sort of fraudulent action involved in that sense.

And so to address that issue AF Holdings -- well, spoke to Mr. Steele -- Mark Lutz spoke to Mr. Steele and said, Well, I understand that there's an issue with this Alan Cooper and asked Mr. Steele point-blank, Is the signature a forgery. Mr. Steele said the signature is not forgery. And he asked him, Is the -- is this signature authentic. Mr. Steele says, yes, the signature is authentic. Based on Mr. Steele's representation, we have no reason to believe from what Mr. Steele said, at least, that the signature is a forgery or there's some sort fraud going on with respect to the signature.

Got that? Steele says Cooper is real, so he must be real. So they turned it around and demanded evidence from Cooper that there was fraud. And then he suggests that even if Cooper did turn out to be a forgery, it wouldn't really matter because the original copyright holder has confirmed that he wanted to assign his copyrights to AF Holdings.

But he never says who Alan Cooper is. So he's asked again, and the response is basically that only Steele knows and he's not saying:

If you're talking about the guy who's in Minnesota and was John Steele's former caretaker, all I can say is that AF Holdings -- the only person who knows who this Alan Cooper is is John Steele and we asked Mr. Steele, is this the same guy, is this not the same guy, is there another Alan Cooper and Mr. Steele declined to respond on the basis that Mr. Cooper has sued Mr. Steele and they're actively involved in litigation.

That may be the most ridiculous answer yet. The whole reason they're "engaged in litigation" is because Steele hasn't produced the Alan Cooper who signed the documents representing AF Holdings. The best way to end the litigation is pretty simple: have that Alan Cooper show up. Which should be easy enough... if he existed (ah, there's the rub...).

Later on, Hansmeier denies that Cooper works for AF Holdings, insisting that Lutz is the only employee who ever has worked for AF Holdings, which creates some trouble for Gibbs, but we're getting there.

Of course, now that Steele has been brought up, Hansmeier is asked why Steele found Cooper since Steele is supposedly not an employee of AF Holdings. The answer, apparently, is that Lutz is too busy ("there are a certain number of hours in a day") and so he needs to "rely on third parties" to help him "accomplish various tasks." There's a discussion on whether or not Hansmeier and Steele "take orders" from Lutz (Hansmeier implies yes) and the fact that Lutz used to work for Steele, though Hansmeier refuses to say in what role.

Then... another document comes out and the spotlight is back on Gibbs, because it shows a signature from Gibbs, saying that he is "in-house counsel" for AF Holdings. Gibbs quickly realizes where this is going and is not happy about it.

Q. I believe you testified a moment ago that throughout the entire duration of AF Holdings, the only employee or officer -- the person wearing all of the hats was Mark Lutz.
A. Uh-huh.
Q. Based on this document that appears to be incorrect because isn't Mr. Gibbs now in-house counsel for AF Holdings?
A. No. I think it's -- I don't know why it's here. I don't think it's --
Q. So Mr. Gibbs is not in-house counsel for AF Holdings?
A. That's correct.
MR. PIETZ: Well, shoot. I'm just going to ask you, Mr. Gibbs. Did you prepare and sign this document?
MR. GIBBS: It's not my deposition. I'm not quite sure why I would be answering questions.
MR. PIETZ: Well, there's an E-file document here with your signature on it that says you're in-house for AF Holdings. I thought I'd give you the opportunity as a courtesy to clarify for the record.
MR. GIBBS: Okay.
MR. PIETZ: You're not going to address it?
MR. GIBBS: I don't think I need to address it.

I get the feeling he may need to address it on Monday.

As they delve into who else might be involved in AF Holdings, the question comes up as to why Mark Lutz, a paralegal for John Steele, suddenly is running a company that has 20 lawyers working on cases, and is supposedly now employing his former boss, John Steele, as well as Hansmeier. And then... the return to the Salt Marsh, as it were:

Q. So returning to these corporate representatives. Have there been any other corporate representatives other than Alan Cooper, Mark Lutz for AF Holdings?
A. I can think one of other corporate representative.
Q. And who is that?
A. And that would Anthony Saltmarsh.
Q. Where does Mr. Saltmarsh reside?
A. I don't know where Mr. Saltmarsh resides.
Q. Was Mr. Saltmarsh ever compensated for acting as a corporate representative for AF Holdings?
A. Not that I'm aware of.
Q. Exhibit 101 and 102. Those are both the ADRs that are signed by Salt Marsh. I believe you testified you thought that that might be of the name the trust that owns AF Holdings. Could that be a misspelling of Anthony Saltmarsh?
A. The only thing I can say about these documents is that if you wanted me to come prepared to testify about them, you may have included them as exhibits to the notice or supplement the notice with the documents. You're asking me is it possible that Salt Marsh as spelled on here is a misspelling of the name Anthony Saltmarsh?
Q. Perhaps an alias would be a better word for it.
A. Or an alias for Salt Marsh. I'm a bit skeptical of that theory because it says AF Holdings owner and Anthony Saltmarsh is not an owner of AF Holdings.

He's skeptical? Fascinating. The lawyer explains to Hansmeier that Steele's sister lived with Anthony Saltmarsh and Hansmeier insists he knows nothing about all of this.

They then move on to questions about AF Holdings' relationships to the copyrights in question, focusing on Heartbreaker Productions and the copyright over the porn film, Popular Demand. Hansmeier claims that Hartbreaker assigned the entire copyright to AF Holdings and that AF Holdings is not doing anything with the film -- not distributing it or performing it or anything. Hansmeier says that the only distribution is infringing distribution. The lawyers then present him with an article claiming that a new distribution agreement has been reached over Popular Demand, and Hansmeier -- who basically has just been proven to either be ignorant or a liar -- goes with the snark:

Well, I know from reading the blog sites that you two participate in that I shouldn't believe everything I read on the Internet.

Much later in the deposition, there's a bit of an argument over the "financial relationship" between AF Holdings and Heartbreaker. Hansmeier complains about it being unclear what "Heartbreaker" company they're referring to, but eventually notes that the agreement they have shows no actual financial relationship. They then ask Hansmeier over and over and over again if any money changed hands, and Hansmeier refuses to answer other than to say he's already answered, saying that the document is the entire agreement. When asked if that means there was no financial relationship, he just repeats what he said before. It's quite an incredible exchange.

Next up: a long discussion that goes absolutely nowhere concerning Paul's brother, Peter Hansmeier, and the various firms he's worked for who provide "technical services," in which they claim to be able to identify infringers. Paul repeatedly claims ignorance of some key things about his own brother, including what kind of degree he received from college. They then discuss the process by which "infringers" are uncovered, using Peter's company 6681 Forensics.

Further discussion leads to questions about who handles AF Holdings "books" and again it's Mark Lutz. Hansmeier claims that the books are "not complicated" so they don't need a bookkeeper or an accountant (they also don't pay taxes, apparently). Yet a few minutes later, when asked about how much cash AF Holdings has received, it's a very different story with Hansmeier saying it "would be a very difficult topic" because "it's very complicated." Oops. The response from both Gibbs and Hansmeier is to complain that Pietz is not being professional. You can't make this stuff up.

A further discussion is had on how AF Holdings chose to sue the account holder in the particular case at hand, which is handy because part of Judge Otis Wright's concerns is the weak evidence that Prenda has been using in its cases.

Eventually, we get to the other mysterious character we had mentioned this morning: Allan/Alan Monay/Moay/Mooney/etc.

Q. Do you know anybody by the name of Alan Moay, M-O-A-Y?
A. Do I personally know anybody by the name of Alan Moay? I'd have to check my contact list and anyone I've ever talked to in my entire life, but sitting here right now, do I know anybody named Alan Moay, no, I do not.
Q. Do you know anyone who is a principal or an officer or a corporate representative of Guava, LLC, with a first name of Alan?
A. Do I know anyone, principal or an officer --
Q. Or a corporate representative.
A. I'd to have check my records as to who does what at Guava, LLC. I couldn't tell you that answer for most of my clients.
Q. Do you know anybody by the name of Alan Mony, M-O-N-Y?
A. Again, I'd have to check my records to see who I've corresponded with in the past.
Q. Do you know anybody by the name of Alan Mooney, M-O-O-N-E-Y?
A. I have represented an Alan Mooney before, yes.

Then we're back to tap dancing. A lot of "I'll have to check my records..." Later on, they ask him to identify a recording and whether or not it's Lutz, and he claims he can't tell, even though he talks to Lutz all the time:

Q. Is that Mark Lutz?
A. Well, if I don't recognize the voice that's on the voice mail, I can't make an identification of who it is.
Q. How many times would you say you have spoken to Mr. Mark Lutz in the course of your life?
A. Too many to count.
Q. How many times would you say you've had phone calls with Mark Lutz?
A. I can't answer the question, but several times.
Q. Several or lots?
A. I would say several to mean many times.
Q. And you're telling me that you can't definitively say that the voice we just heard is Mark Lutz?
Q. Who might it be if it's not Mr. Lutz?
A. I guess anyone in the world.

And... that's basically it. 291 pages of Hansmeier doing his damnedest not to actually answer rather important questions. And all of that is now on the record for Judge Wright to use on Monday.

Filed Under: alan cooper, brett gibbs, morgan pietz, paul hansmeier, prenda
Companies: af holdings, prenda, prenda law

John Steele Dismisses His Defamation Lawsuit Against Alan Cooper And Anonymous Internet Critics

from the perhaps-he's-got-other-things-to-worry-about dept

Today's quite a Prenda Law day around here. While the focus has reasonably been on the upcoming showdown on Monday, where Judge Otis Wright has ordered all of the Prenda players to be in his courtroom on Monday, John Steele has apparently dismissed his defamation case against Alan Cooper, Cooper's lawyer Paul Godfread and a bunch of anonymous commenters who have been mocking Steele mercilessly for months. Perhaps Steele realized that the case would open him up to discovery, which could reveal some things he'd prefer not to reveal to a court. Or, perhaps, he's suddenly realized that he's going to be busy dealing with the fallout from the Wright hearings. Or, perhaps there's another strategy as yet unrevealed. Given Steele's history of searching for and testing out all kinds of loopholes in the hopes that something works, it wouldn't surprise me to find out that this isn't the last we hear concerning this attempt to "out" his critics.

Filed Under: defamation, dismissal, john steele, prenda, prenda law, slapp
Companies: prenda, prenda law

What To Expect When You're Expecting Prenda Law To Get A Judicial Beat Down

from the a-scorecard-for-those-playing-along dept

Earlier today we had a post about Judge Otis Wright ordering nearly everyone associated with copyright trolling operation Prenda Law to be in his courtroom on Monday. We made the rather obvious understatement that it appeared Wright was not happy with Prenda or what he had seen happening in the various Prenda cases he is presiding over. If you're just picking up the story now, you may have missed some of the backstory behind all of this, but, no worries, Ken White at Popehat (a former federal prosecutor and long term litigator) has put together a post that lays out, in great detail (and in an easy to understand format for non-lawyers) both exactly how we got here and "what to expect." It's worth a read.

It actually leaves out some of the history and details that suggest Prenda/John Steele/others have been acting with something less than good faith. As we've discussed in the past, it often feels like Prenda Law is using an any means necessary approach to getting access to people's identities, often piling questionable legal trick upon questionable legal trick to create a multi-layer operation of questionable activity, all designed to get identities to then start hounding those people for "settlements." Even leaving aside many of those tricks, many of which don't touch on this particular case, Prenda's actions in this case alone are quite incredible. And as White makes clear, each move by Prenda lawyer Brett Gibbs seemed to only draw more attention from Judge Wright. This started early on, when Gibbs sought sanctions against the opposing lawyer, Morgan Pietz, which the judge quickly denied. As White points out: "It's a bad sign when the judge denies your motion summarily before the other side can even oppose it."

Throughout our coverage of this case, we've repeatedly pointed out that Gibbs could have just put most of the questions to rest by identifying Alan Cooper. But his continual tap dancing around the simple question "who is Alan Cooper?" has been pretty damning. Responding: "I am sure there are hundreds of Alan Coopers in this world," really seemed to make clear that something fishy was going on here. Personally, I was wondering if there was some reasonable legal strategy that I was completely unaware of, that would explain the failure to answer the Alan Cooper question, and White points out that everyone's general suspicions are correct: it makes no sense unless there is no such Alan Cooper:

I've been a lawyer for almost 19 years now. I've practiced in federal court that entire time. Here's what's very strange to me about Gibbs' opposition to the ex parte application, and about Gibbs' sanctions motion: they conspicuously avoid direct engagement with the most incendiary accusations Pietz makes. It's one thing to argue that Pietz' evidence is insufficient, or that other courts have failed to act based on them. It's quite another to evade the question of who "Alan Cooper" really is. I find it very difficult to imagine a scenario in which an experienced litigator would have a good reason to avoid confronting such a serious charge of fraud head on by saying, for instance, "the Alan Cooper who is a principal in Ingenuity 13 LLC is a real person who is resident of the State of X, living at Y, and has no relation to the Alan Cooper who has made scurrilous allegations against Prenda Law. Here is a declaration from the Alan Cooper who is a principal of Ingenuity 13 LLC, and here are reasons why the other Alan Cooper has a grudge against Prenda Law and is lying." It is very difficult to imagine an innocent scenario explaining why Prenda Law would not offer such a response if it could.

So, what to expect? White lists out four possibilities, with a focus on the last two as being the most likely:

3. Some of the individuals named could assert that exigent circumstances or medical conditions prevent them from attending, or could ask for an extension to allow them to retain counsel and get their new counsel of up to speed.

4. Some of the individuals named could show up and answer Judge Wright's questions.

I've been wondering if Judge Wright would grant an extension, given the extremely short notice on all of this. Normally such an extension would be pretty normal, and lawyers and judges often bend over backwards to try to accommodate things like that. But given that it appears Wright is clearly deeply concerned about the possibility that Prenda is committing fraud on the court, I wonder if he'll be a little less lenient than might otherwise be normal.

Oh, and for those wondering if this could end in jail time for everyone showing up in court, White is a little more skeptical there, but suggests it is entirely possible that it leads to a criminal case, which could result in jail time:

Judge Wright could certainly issue monetary sanctions against, at a minimum, Mr. Gibbs. The question of what other attorneys he could sanction under Rule 11 and his own inherent authority depends on a tedious discussion too long for this post; suffice it to say that he might conclude that he can sanction supervisory attorneys with Prenda Law.

Judge Wright's terrifying comment aside, his ability to jail people before him for contempt is quite limited when they have not been charged with a crime by the executive. That, too, is a discussion too complex for this post. But Judge Wright might well refer the case to the U.S. Attorney's Office for criminal prosecution if he concludes that criminal contempt or fraud has occurred. Such referrals tend to get immediate and intense attention. Moreover, if Judge Wright finds misconduct, he could refer the matter to various state bars.

In the meantime, I'm curious if anyone can pinpoint the moment at which John Steele/Prenda Law surpassed Righthaven in the Hall of Fame for the Spectacular Self-Destruction of Copyright Trolls.

Filed Under: brett gibbs, john steele, ken white, otis wright, prenda, prenda law, sanctions
Companies: prenda, prenda law

Prenda Law Showdown Happening Monday: Judge Orders Everyone To Show Up In Court

from the get-yourself-some-popcorn dept

Okay... so I was just putting the finishing touches on a blog post about the latest filings from Prenda's Brett Gibbs and his opponent in a series of cases, Morgan Pietz, ahead of the planned hearing on Monday concerning various Prenda Law cases. As in the past, it was full of more attempts by Gibbs/Prenda to tapdance, with more evidence presented by Pietz that Prenda is up to no good (understatement of the year).

And... just as I was getting set to post it, I discover that Judge Otis Wright has had enough of the tap dancing, and has ordered just about everyone to show up in court on Monday for the hearing. And I do mean just about everyone.

John Steele? Yes. Mark Lutz? You bet. Alan Cooper? Oh yeah -- in fact, the judge ordered both Alan Coopers (the one claiming his identity was used by Steele and the one who supposedly "ran" AF Holdings) to show up, to see if there really are two of them. Paul Duffy? Yes. Paul Hansmeier. Yup. Of all the "players" from the latest filings, the only one missing may be "Allan Mooney" or "Alan Mony" or "Alan Moony" depending on which filing you're looking at (more on that below).

Sometimes it's difficult to actually get a sense of "tone" when you see some text, and that's doubly true of a court filing from a judge. But... this time, you get the feeling that Judge Otis Wright is not happy about all of this.

I expect that there will now be a flurry of filings with excuses and attempts to get out of appearing. I don't think that's going to work.

And... because I hate to let a perfectly good post go to waste, below is what I had originally written, but which has now been pushed down by this bit of breaking news. Consider everything below some additional background info for the main event coming Monday.

---

Brett Gibbs, who both is and is not a lawyer working for Prenda Law (depending on which time you ask him), continues his tap dance routine as we get closer to the expected showdown in Judge Otis Wright's courtroom on March 11th, in which sanctions against Gibbs, including the possibility of jail time, will be considered. The latest filing from Gibbs (filed by some lawyers he has hired to help him out), basically attacks nearly every statement in the declaration filed by the opposing lawyer, Morgan Pietz. It's really quite a work of art. First, he tries to get various declarations concerning evidence that Prenda sought to have AT&T identify IP address holders after Judge Wright had already ordered that such discovery stop. Gibbs claims that these declarations are "untimely." Then, pretty much every single statement from Pietz is challenged with a rotating list of claims, including: irrelevant, lacks foundation and/or personal knowledge, hearsay, improper characterization of evidence, assumes facts not in evidence, speculation and argumentative. Basically, nearly every single point that Pietz raises to show improper or questionable conduct by Gibbs and or Prenda should be ignored based on this filing. Given that Judge Wright hasn't exactly been swayed by Gibbs' arguments over the last month or so, I find it unlikely that he's going to be swayed by all of this tap dancing.

Oh, and still no indication of who Alan Cooper is.

However, in the same case, Pietz has also filed another document presenting evidence that suggests that Alan Cooper may not be the only name that was "faked" as a part of all of these lawsuits:

First, there was Alan Cooper. Mr. Gibbs has no real explanation for the Alan Cooper situation, other than to disclaim responsibility and deflect blame for the apparent fraud, etc., to his supposed “supervising” attorneys at Prenda Law, Inc. Unfortunately for Mr. Gibbs, it is his name on the pleadings and "counsel can no longer avoid the sting of Rule 11 sanctions by operating under the guise of a pure heart and empty head." Smith v. Ricks, 31 F.3d 1478, 1488 (9th Cir. 1994). Hopefully, Mr. Cooper himself can address theses issues at the March 11 hearing.

Now, there is also "Allan Mooney" a/k/a "Alan Mooney" a/k/a "Alan Mony." Newly discovered facts suggest that Alan Cooper may not be the only person who has had his identity misappropriated by Prenda in connection with its shell companies. Although some details are still hazy, suffice it to say that undersigned counsel (and many others) would very much like to question the real "Allan Mooney" on the record, under oath. Similarly, there is widespread interest in a subpoena to obtain testimony and records from the Minnesota bank that employs the notary who supposedly notarized Mr. Mooney's signature on legal pleadings filed in other jurisdictions. Then, of course, there is also Anthony "Salt Marsh" Saltmarsh. In short, "Alan Cooper" was not a mistake; there appears to be a pattern.

Furthermore, Pietz points out, the "rotating case" of characters that Prenda uses, seems to involve constantly switching roles so they can't be pinned down.

Another pattern with Prenda is that all of the persons involved constantly change hats; who is acting in what capacity seems to fluctuate to suit whatever the instant legal predicament happens to be. Inconsistencies include:

Mr. Gibbs is counsel of record for AF Holdings, LLC (e.g., C.D. Cal. No. 2:12-cv-5709, ECF No. 1) (7/2/12); Mr. Gibbs is "in house counsel" for AF Holdings (N.D. Cal. No. 3:12-cv-4221, ECF No. 22, p. 2) (1/30/13)3; Mr. Gibbs is not in house counsel to AF Holdings, and has never been anything other than AF Holdings’ "independent contract attorney" (ECF No. 49, p. 3) (2/19/13).

John Steele is "of counsel" to Prenda (Exhibit D) (4/20/12); John Steele is "not an attorney with any law firm" when questioned by Judge Scriven (Exhibit N, p. 135)(11/27/12); John Steele is back to being "of counsel" to Prenda in the St. Clair County Guava case (Supp'l. Dec. 15 (ECF No. 53)) (2/13/13).

AF Holdings copyright assignment is executed by Alan Cooper (e.g., C.D. Cal. No. 2:12-cv-5709, ECF No. 1) (12/20/2011); "Salt Marsh" is the "AF Holdings Owner" (Exhibit R) (7/20/12); AF Holdings is owned by a mystery trust, and never had any other members or employees other than its manager Mark Lutz (ECF No. 52, p. 28) (2/19/13, 11:00 a.m.); AF Holdings is owned by Livewire Holdings, LLC (ECF No. 49, fn. 1) (2/19/13, 6:00 p.m.).

Guava, LLC files a petition supposedly verified by client "Alan Mony" (ECF No. 51-1) (11/20/12); Prenda confirms "Alan Mony" is the client's name (Exhibit FF, p. 5) (2/12/13); Prenda files new verification, now spelling the purported client's name as "Alan Mooney" (Exhibit GG) (2/21/13); however, the real name of the "client" (who may or may not have agreed to lend his name to Prenda's efforts) is probably "Allan Mooney" (ECF No. 52, pp. 15–16).

Pietz has even spent the time to put together a graphic in which he tries to map out the various characters at play here. Given all of this, it seems likely that Judge Wright isn't going to simply agree that everything Pietz has to say is "irrelevant" and "lacks foundation." At some point, Gibbs, or someone else from Prenda is actually going to have to produce Alan Cooper and/or possibly Allan/Alan Mooney/Mony/Moony/etc. Watching Prenda's lawyers continue to try to tap dance their way out of this is really quite an astounding thing.

Filed Under: alan cooper, brett gibbs, john steele, mark lutz, morgan pietz, otis wright, paul duffy, paul hansmeier, prenda, prenda law
Companies: prenda, prenda law

Prenda's Brett Gibbs Finally Answers Some Questions; No Mention Of Alan Cooper

from the heading-for-a-showdown dept

With the news breaking of copyright troll firm Prenda Law, along with John Steele and Paul Duffy (who basically appear to be Prenda) suing a bunch of critics for defamation, it's worth remembering that the challenges to some of their existing lawsuits are still ongoing.

Brett Gibbs, who has been trying to weasel out of a variety of troubling situations concerning his acting as a lawyer for Prenda in California, was finally forced to answer some questions from Judge Otis Wright -- the same judge Gibbs tried to have kicked off the case once Wright started asking Gibbs to explain who the mysterious Alan Cooper really is. That effort failed (miserably) and last we'd seen, Judge Wright was threatening sanctions (including potential incarceration) against Gibbs for his, um, lack of candor.

Late last week, Judge Wright also consolidated a bunch of Gibbs' Prenda cases, so that they were all included for the sanction hearings on March 11, and also ordered Gibbs to answer some basic questions:

The names and contact information of the “senior members of the law firm that employed Mr. Gibbs in an ‘of counsel’ relationship.” (Gibbs Resp. 2.);

The names and contact information of the persons who make “strategic decisions . . . whether to file actions, who to sue, and whether to make a certain settlement demand or accept an offer of settlement.” (Gibbs Resp. 2.);

The names and contact information of the “owners of these copyrights.” (Gibbs Resp. 2.) If these owners are business entities, then provide in addition the names and contact information of the principals of these entities.

The names and contact information of the principals of AF Holdings LLC and Ingenuity 13 LLC.

Gibbs names John Steele and Paul Hansmeier as the "senior members" from whom he took orders, both when he was working with Steele Hansmeier and with Prenda Law. That's not surprising, but marginally interesting since Steele, at times, likes to pretend that he's not working for Prenda. The more interesting tidbit concerned the "CEO" of AF Holdings and Ingenuity 13, the two shell companies that Prenda has been using for a bunch of these lawsuits, which many believe are controlled by Steele and Hansmeier. Those are the companies who supposedly had "Alan Cooper" as their CEO, until Alan Cooper, who took care of one of Steele's homes, spoke up to the court, wondering if his identity was being used illegally. Apparently "Alan Cooper" is no longer CEO, but Mark Lutz is the CEO (of both companies).

You may remember Mark Lutz for his laugh-o-riffic appearance in that Florida Prenda case which consisted of a hearing worthy of Abbott and Costello. Lutz, who was identified as a "former" paralegal for Steele, was there to be the "representative" of the plaintiff, a company called SunLust. However, an absolutely hilarious exchange with the judge (which came about after she saw Lutz talking to Steele, who claimed he was just there to "observe" but had no actual involvement in the case) showed that Lutz was not a representative of the company, but a stand-in for Steele. Here's just a snippet.

THE COURT: Mr. Lutz, you're under oath, you have to give truthful answers or you face penalties of perjury. Do you understand that?
MR. LUTZ: Yes.
THE COURT: What is your position with Sunlust?
MR. LUTZ: I'm a representative of them.
THE COURT: What does that mean?
MR. LUTZ: Corporate representative.
THE COURT: What does that mean?
MR. LUTZ: They asked me to appear on various matters throughout the country.
THE COURT: Are you an officer of the company?
MR. LUTZ: I'm not, no.
THE COURT: Are you authorized to bind the company to any legal contracts?
MR. LUTZ: I am not.
THE COURT: Are you salaried?
MR. LUTZ: No, 1099.
THE COURT: So you are a 1099 contracted entity and you just go around and sit in a Court and represent yourself to be the corporate representative of the company?
MR. LUTZ: Yes.
THE COURT: Mr. Torres, did you know this was Mr. Lutz's position, a paid corporate representative?
MR. TORRES: No, Your Honor, I did not.
THE COURT: Who is the president of Sunlust?
MR. LUTZ: I'm unaware.
THE COURT: Who is the vice president?
MR. LUTZ: I'm unaware
THE COURT: Who is the secretary?
MR. LUTZ: I have no idea.
THE COURT: Who owns Sunlust?
MR. LUTZ: I do not know.
THE COURT: Who signs your checks?
MR. LUTZ: I believe somebody in the accounting department.
THE COURT: What is their name?
MR. LUTZ: To be honest with you, I can't read the signature.
THE COURT: Where is the accounting department located?
MR. LUTZ: I'm sorry?
THE COURT: Where is the accounting department located?
MR. LUTZ: I've received checks from California.

If you follow the FightCopyrightTrolls site, they've spent plenty of time tracking Lutz, who (that site claims) is Prenda's main "enforcer" in trying to get people to pay up. People receiving phone calls related to Prenda cases, asking the recipient to pay up to avoid getting sued, often report that it's Lutz who is calling (though it appears he may use another name on some phone calls). That "Alan Cooper" is gone from Ingenuity 13 and AF Holdings, and Lutz has been put in his place, adds even more weight to what most people suspected: that the companies are mere shells for Steele and Hansmeier, who seem to be trying to layer on more and more and more bullshit to avoid getting in serious trouble for their actions in these cases, seeking any way possible to try to demand money from people they accuse of infringing copyrights (or, in some crazy cases, accessing computers in an unauthorized manner).

In the answer, Gibbs also refuses to directly respond to Judge Wright's question to reveal the contact information for Steele and Hansmeier, but does offer to file them under seal. There is, of course, no mention of Alan Cooper.

I imagine the hearing on March 11th should be quite the spectacle.

Filed Under: alan cooper, brett gibbs, john steele, otis wright, prenda, prenda law, sanction
Companies: prenda, prenda law

Prenda Law Sues Critics For Defamation

from the grab-some-popcorn dept

Wow. Wow. Wow. Okay, so we have another story we've been working on concerning Brett Gibbs, a lawyer who was working for Prenda Law in California, finally answering some of the questions presented to him by a judge. We'll get that story up later, because there's a new Prenda story that has leapfrogged all the others. It appears that three separate lawsuits have now been filed -- one from Prenda itself, one from John Steele (the guy who is often considered the man behind Prenda) and Paul Duffy the actual official partner of Prenda Law (you may remember Paul from this story, in which he sent a letter insisting that Prenda Law had nothing to do with a case, despite the lawyer appearing believing they had been hired by Prenda). Jordan Rushie, a lawyer who has been following the Prenda cases pretty closely, has links to all of the filings, which we've embedded below. All three were originally filed in state courts (Prenda & Duffy in Illinois, Steele in Florida), but were quickly removed to federal courts.

These are basically defamation lawsuits with a few other claims thrown in as well. There are two named defendants in the lawsuit: Alan Cooper (a caretaker for a home of John Steele, who has accused Steele/Prenda of illegally using his name as "CEO" of companies Ingenuity 13 and AF Holdings) and Paul Godfread, Cooper's lawyer, who filed the letter alerting some judges to these concerns, and then followed it up by filing a lawsuit against Steele and Prenda on behalf of Cooper.

The other targets of the lawsuit are a bunch of unnamed John Does (and if these guys have expertise in anything, it's filing lawsuits that involve John Does), who are... a bunch of anonymous commentators concerning the various Prenda Lawsuits. It looks like they're targeting people on the two main copyright troll tracking websites out there, FightCopyrightTrolls.com and DieTrollDie.com. It's worth noting that both sites were the subject of a nice profile article in Ars Technica last week.

The three filings are similar, but not identical. The Prenda one and the Duffy one are almost identical, but the Steele one is different in a few ways, including focusing on lots and lots and lots of statements specifically about Steele. Steele's suit also does not make the "false light" claim, which means he actually realized that Florida has rejected "false light" as a tort in that state.

Still, all three suits read like obvious SLAPP suits, targeting online critics. The fact that they target Cooper and Godfread, who have a lawsuit pending against them, is ridiculous. That they then go after anonymous bloggers and commenters who have been revealing and calling attention to some of Prenda's more questionable moves seems like an obvious SLAPP situation, in which they appear to be using the lawsuit to create chilling effects and to stifle speech. Looking over the long list of quotes they pull out in the various lawsuits, the vast majority seem to be clear statements of opinion, rather than fact. And even when you could argue some of them are statements of fact -- such as referring to anyone associated with Prenda as a "criminal" or a "scammer" or calling Prenda a "fraud" or similar such things -- courts have increasingly noted that name calling in online forums does not reach the level of defamation, since the context matters. That's no guarantee, as those rulings are still limited, but it's at least a sign that these lawsuits may be overreaching in their claims (which, of course, is a key component of a SLAPP).

It is not uncommon for people in comments on blogs to go a bit far in some of their claims (and even the main authors of the two blogs above sometimes seem to make pretty strong statements that may not be fully supported by the evidence presented). However, to take that to the level of defamation feels like a pretty big stretch. If anything, these lawsuits seem more likely to be attempts to first "out" the folks behind those blogs (and some of the nastier comments) and, barring that, to scare them with chilling effects.

Of course, one interesting thing: the best defense against defamation claims, obviously, is the truth. And, it would seem that, in filing these lawsuits, Steele, Duffy and Prenda may have opened themselves up to pretty wide discovery efforts which may turn up things they probably would rather not have in court. That point alone has me wondering why they'd take this step.

On top of that, the lawsuits note that the plaintiffs are not public figures, which sets the bar much lower for defamation. Paul Duffy might be able to get away with such a claim, but John Steele would seem to have a lot more difficulty. After all, he's been the subject of detailed profiles in Forbes Magazine (which he happily participated in). Forbes doesn't do profile stories on nobodies.

It would seem important to note that both Illinois and Florida have passed anti-SLAPP laws. Florida's are fairly narrowly defined, however, and may not be useful here. Illinois, however, has as broader anti-SLAPP law that has sometimes been interpreted narrowly. Both of these are reminders for why we desperately need a federal anti-SLAPP law.

It appears that, at least for now, Steele and Duffy are representing themselves, while Prenda has another law firm representing the firm. Cooper and Godfread have signed up lawyers to represent them in both Illinois and Florida (in Illinois the lawyers, Erin Russell and Jason Sweet, both have a decently established history of fighting Prenda cases, and while I wasn't familiar with the name, the same appears to be true of Brad Patrick, who is representing them in Florida).

As always with Prenda/Steele, every time you think a story can't possibly get crazier, it seems to take another massive curve in the road. At some point, when this is all over, there's going to be an amazing book to be written about the rise (and, most likely, fall) of John Steele and his adventures in copyright trolling. The story is gripping.

Filed Under: alan cooper, defamation, dietrolldie, fightcopyrighttrolls, florida, illinois, john steele, paul duffy, paul godfread, prenda, prenda law, slapp
Companies: prenda, prenda law

Yet Another Court Says IP Addresses Are Not Enough To Positively Identify Infringers

from the time-for-some-venue-shopping,-it-would-appear dept

The neverending misadventures of Prenda Law and its various attachments have led me to consider retiring this phrase when writing about them: "just when you thought it couldn't get any worse..." Prenda's situation obviously can (and will) likely get much worse, well past the point of any reasonable person's expectations.

Fresh off a judicial smackdown from Judge Otis Wright, in which he singled Brett Gibbs out for possible incarceration and laid waste to the Prenda "business model" by torching its argument that an IP address alone is enough to positively identify an infringer, Prenda Law finds itself on the receiving end of another smackdown, from another California judge, for the exact same issue.

Southern District of California Judge Barry Moskowitz has found that an IP address, alone, is insufficient to support a complaint for copyright infringement. The lawsuit is AF Holdings v. Rogers (CASD 12-cv-01519) brought by the infamous Prenda Law Firm http://fightcopyrighttrolls.com/category/clans/prenda/. The complaint alleges copyright infringement, contributory copyright infringement, and negligence...

Addressing the copyright infringement and contributory copyright infringement, the judge notes that:

[...] the Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the FAC does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address 68.8.137.53. (The Court notes that it is actually unclear whether the IP address is registered to Defendant). As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity.

More and more courts are coming to this same conclusion, which doesn't bode well for those in the copyright trolling business. While they still may see some limited success collecting on threatening letters, the chances of them winning anything via the proper legal route is beginning to approach zero.

As Judge Otis Wright pointed out, Prenda's use of IP addresses to "identify" infringers boils down to nothing more than finding someone in the household that best matches its idea of who the likely infringer is, which seemed to involve nothing more than "blindly picking a male resident from the subscriber's home."

Judge Moskowitz lays it all on the line, making it perfectly clear that he won't be accepting IP addresses (alone) as evidence.

Due to the risk of “false positives,” an allegation that an IP address is registered to an individual is not sufficient in and of itself to support a claim that the individual is guilty of infringement.

Once again, Prenda's business model is getting kicked while it's down. As Wright pointed out in his order, properly identifying infringers takes both time and money, two commodities Prenda seems unwilling to part with. Moskowitz apparently won't be entertaining these dubious claims any further. He also takes aim at the same issue that resulted in a setback/smackdown for AF Holdings (friends of Prenda): so-called "negligence" on the part of the subscribers.

Plaintiff’s claim fails because there is no underlying duty. One who fails to act to protect another is generally not liable for breaching a duty unless there is a special relationship giving rise to a duty to act. [...] There is no special relationship between Plaintiff and Defendant which gives rise to a duty on the part of Defendant to ensure, through heightened security measures and hawkish monitoring of internet usage, that nobody uses his internet connection to infringe Plaintiff’s copyright.

The end result? A dismissal of Prenda's claims of copyright infringement and contributory infringement without prejudice. This leaves the door open for refiling, but considering how many doors in California are being slammed shut elsewhere by various judges, it seems unlikely that Prenda will push its luck, at least for the time being. This dismissal adds another court to the growing list of judicial entities that are unlikely to push forward on copyright infringement cases where the evidence of wrongdoing is nothing more than an IP address. How much sway this dismissal holds elsewhere remains to be seen, but it's another blow struck against the settlement letter "business model."

Filed Under: california, identification, infringement, ip addresses, prenda
Companies: prenda, prenda law