ICANN's Threat To Privacy Is Not Theoretical

from the a-very-real-threat dept

A few weeks ago we wrote about ICANN's new attack on whois privacy, laying out a proposal to deny private/proxy registrations to anyone involved in "commercial" activity on their websites. While it may be difficult for some to comprehend why this is a big deal, it is not a theoretical concern at all. Cathy Gellis has a great story over at Popehat reminding everyone of the time litigious lawyer Charles Carreon was able to uncover the identity of a critic, who he then threatened repeatedly.

As we wrote at the time, even though the critic had used Register.com's privacy guard tool, when Carreon showed up, the company coughed up his identity, and Carreon used that to threaten the critic, making it quite clear that he was doing so just to piss off the critic. In a letter to the critic's lawyer, Paul Levy at Public Citizen, Carreon noted "there is essentially no statute of limitations on this claim" and "I have the known capacity to litigate appeals for years." Eventually, Carreon was forced to cough up money for the bogus legal threats.

Gellis was co-counsel with Levy in defending Carreon's critic and her Popehat post details how that experience makes it even clearer as to just how bad ICANN's proposal is:

It is a proposal that is extraordinarily glib about its consequences for any Internet speaker preferring not to be dependent on another domain host for their online speech. First, it naively pre-supposes that the identifying information of a domain name holder would only ever be used for litigation purposes, when we sadly already know that this presumption is misplaced. As this letter to ICANN points out (linked to from the independently expressive domain name “icann.wtf”), people objecting to others’ speech often use identifying information about Internet speakers to enable campaigns of harassment against them, sometimes even with the threat of life and limb (for example, by “swatting”).

Secondly, it pre-supposes that even if this identifying information were to be used solely for litigation purposes that a lawsuit is a negligible thing for a speaker to find itself on the receiving end of, when of course it is not. In the case of Carreon’s critic he was fortunate to be able to secure pro bono counsel, but not everyone can, and having to pay for representation can often be ruinously expensive.

Thirdly it pre-supposes that there is somehow an IP-related exemption to the First Amendment, when there most certainly is not. Speech is speech and it is all protected by the First Amendment. Attempts to carve out exemptions from its protections for speech that somehow implicates IP should not be tolerated, particularly when the consequences to discourse are just as damaging to speech chilled by IP owners as they are by anyone else seeking to suppress what people may say.

If you haven't yet seen it, that icann.wtf letter to ICANN is worth reading. It's not only a rare case where anti-harassment advocates and free speech advocates can actually come together and agree on a really, really bad idea, but it lays out the arguments for why this Hollywood-backed proposal is just incredibly stupid and dangerous.

If you want to contact ICANN to explain why this policy is a problem please do so today -- as it's the last day they're accepting comments on the proposal.

Filed Under: bullying, charles carreon, privacy, whois
Companies: icann

Charles Carreon Finally Drops Appeal, Admits Whole Thing Was Dumb... But Still Blaming Pretty Much Everyone Else

from the just-a-week-after-he-suggested-I-be-brutally-beaten dept

Charles Carreon seems like a fun guy. Just a week ago, in a bizarre and nearly incoherent ramble on his website (which I won't link to here) he said that I deserve to be savagely physically tortured (while at the same time comparing himself to Rodney King). Specifically, he stated that it would be "appropriate" if someone (from which it is implied himself) were to do "what that gangster at the end of Pulp Fiction has in mind -- gettin' Medieval on his ass." Why do I deserve this fate? Because I happened to coin the term "The Streisand Effect" and, in doing so, I "stole" her name, and he doesn't like that, because (it turns out) Carreon is a fan of Streisand's "stirring love songs" which he sang along to "with great enjoyment" as "an adolescent." And yet, he still insists that somehow it's unfair that everyone else is "attacking" him and trying to destroy his reputation. There's a level of self-awareness that appears to be nearly entirely missing from Carreon (and his wife, who has referred to Techdirt as "Nazi scumbags" in one of her more lucid attacks).

So I find it amusing that about a week later, Carreon is now talking up how he is a Buddhist who agrees that he made some poor decisions in his legal strategy. It would appear, however, that he does not seem to believe that his calls to have me tortured "medievally" are a part of those regrets.

Of course, Carreon has been involved in a lawsuit involving his astounding threats against a satirical blogger, Christopher Recouvreur, who was mocking Carreon for his somewhat incredible overreaction to Matthew Inman's response to a different questionable legal threat from Carreon. If you haven't been following the story, feel free to go back through the archives. While Carreon eventually dropped his lawsuit against Inman (which had no chance in the first place), the nature of his threat against Recouvreur really called for a declaratory judgment (in part because Carreon specifically threatened to wait until pro bono legal help wasn't interested in the case any more before he'd sue). Carreon eventually settled, but made a strategic error in believing the settlement precluded him having to pay legal fees. It did not. Eventually (through a long and convoluted process made much worse by Carreon's own actions), Recouvreur's lawyers Paul Alan Levy and Cathy Gellis were awarded $46k in legal fees that Carreon needed to pay. The court noted that Carreon's own activities in making the process more difficult played a role in deciding to award the legal fees.

Carreon had appealed, but this week dropped the appeal -- meaning that he has to pay the $46,000. Paul Levy has made it clear that he intends to collect, telling Ars Technica:

“Given the amount, it’s hard to walk away from it,” he said. “We’re not willing to let the money just sit there. I really don’t know at this point what assets [Carreon] has. He has a law practice. Presumably he’s getting paid at his law practice—but you hate to think about that.”

However, what is even more interesting is Carreon trying to rationalize what happened. While he admits he was "dumb" and waded into something he didn't understand, everything he does still frames it as if he was the victim, rather than the aggressor. This fits with his usual style -- setting up an entire site with vicious non-sensical attacks on his critics (see above) while complaining when journalists basically point out that what he's doing on the legal front doesn't make much sense. There's a combination of ignorance, lack of self-awareness, and a bizarre belief that because lots of people loudly criticized him (with strong reasons) that makes it fair game to lash out at everyone such as wishing them to be tortured.

In his interview with Ars, he again suggests the whole thing is the fault of online "mobs" and suggests that the real problem is that the law is not set up to handle such "mobs."

“So when you take a situation in which the legal rules don’t impose any effective sanctions on people for that kind of behavior, mob behavior on the Internet, then a legal analyst like myself should look at that situation and say: ‘You can’t fix everything that’s broken,’” he said. “There is not a proper legal remedy for it. I attempted to do something and I made it worse.”

“It’s an insoluble problem,” he continued. “It’s is not remediable. As long as you keep punching ‘Charles Carreon’ into Google, there’s just more stories about this nonsense. How can anyone get their message through? I’ve written hundreds of works. You can’t find them. Is that helpful? No. Now it’s difficult for prospective clients to see that I’m a relatively erudite person. Since then, some Amazon reviews of my books have, in bad faith, been given one star—I don’t sell many books anymore. Now it’s highly unlikely that anyone would say that Charles Carreon is a pretty bright guy.”

The more you read Carreon, the more you realize he puts himself at the center of every story. In the torture story above, he compares himself to Rodney King. In his blog post-"conceding" this situation, he again makes the story about him first, comparing the experience to a Ramones concert (he is frequently pictured wearing Ramones t-shirts). He claims that the lesson he learned is "never get involved in a game in which you do not know the rules" and then goes on to complain about those awful "online mobs." While I imagine that's a fairly valuable lesson, I'm not sure that's the actual lesson here, nor do I think he's actually learned very much.

He doesn't seem to recognize that his initial legal threat letter was way over the top -- accusing Matthew Inman of "defamation" for pointing out that Carreon's client Funnyjunk (who quickly faded into the background in all of this) had been reposting Inman's comics. He doesn't seem to recognize that he falsely thrust himself into the middle of this by incorrectly interpreting Inman's silly cartoon to be about Carreon's mother (it wasn't, at all). He doesn't seem to recognize that suing charities like the American Cancer Society and the National Wildlife Foundation based on a ridiculous legal theory because Inman was helping raise money for them might be viewed as a massive legal overreach. He doesn't seem to recognize that threatening not a mob, but an individual who was having some fun by satirically mocking Carreon (and then trying to get that blogger fired from his job) might be seen as an overreach. He doesn't seem to recognize that setting up an entire site in which he attacks reporters, lawyers and basically anyone who has tried to publicly discuss his various overreaches as "rapeutationists" might also be seen as incredibly over the top.

No, instead, he sees this as a story where he's the victim of a legal system that apparently doesn't provide him the tools to stop people from publicly discussing why they think his repeated overreactions are overreactions. The posts that we and others have done about Carreon are not attacks of a mob, contrary to his beliefs, but rather discussions about someone who has consistently sought to use the legal system to stifle the speech of others. He is, of course, free to disagree and discuss his position, but the near total lack of self-awareness about his own actions in all of this is really rather impressive. I may not know much about Buddhism, but I'm pretty sure it doesn't mean putting yourself at the center of every story and blaming everyone else for nearly all of your actions. I'm also curious about the Buddhist position on torturing people with ancient torture tools, because they coined a phrase that you feel unfairly maligns a singer you like, because she (like you) overreacted via the legal system.

Filed Under: charles carreon, lawsuit, self-reflection

Charles Carreon Having Some Difficulties Trying To Represent His Wife In Court Over Copyright Infringement Claims

from the someone-pass-the-popcorn dept

Okay, let's start this one with a full and fair disclosure: We've written about Charles Carreon plenty of times. However, in the past few months, his wife, Tara Carreon, has posted numerous graphical and textual attacks about this site on her own sites (multiple sites, multiple attacks!). We will not link to her various attacks, though we will note Ars Technica's report from last year, concerning her calling us "nazi scumbags" and just note that only provides a slight inkling of the nature of some of the attacks on us to date. Furthermore, it appears that Charles and/or Tara have also set up an entire site -- again, we will not link to it -- in which they are profanely and viciously attacking myself personally, along with nearly every lawyer or reporter who has ever mentioned their ridiculous crusade against Matthew Inman. So, feel free to take whatever I say about the following with however many grains of salt you prefer, knowing that Charles and Tara have decided (ridiculously) that I am among a group of folks out to get them.

Okay, with that settled... a couple of years ago, before any of the Carreon/Oatmeal/Inman mess happened, we wrote about an internet jurisdiction case, called Penguin Group v. American Buddha, in which we were dismayed by a ruling in New York State, which said that the company American Buddha, from Oregon, but run out of Arizona, could be dragged to a New York court under its "long arm" statute, for a claim of copyright infringement by Penguin Group. We, along with many others, feared that this ruling might allow lots of copyright holders to drag individuals from around the country to New York to deal with copyright infringement claims. In a later ruling in that same case, the case went around again on the question of whether or not there was "substantial" revenue earned -- which also was required to bring the case to New York. Thankfully, on that round, the court recognized that someone earning basically nothing was not substantial, and thus, the jurisdiction in NY was inappropriate.

What we did not realize back then, was that "American Buddha" is an operation set up by Tara Carreon and defended by Charles Carreon. I believe (irony alert) Charles is now seeking attorneys fees in NY over that case. However, Penguin Group did what you might expect, and filed the lawsuit again, but this time in Oregon, where American Buddha is registered. You can see the docket here. Tara Carreon argues that "American Buddha" is a library, which grants library cards (to a few dozen patrons) and this gives her an exception to copyright law to post full digital copies of books to her website. Now, there are some important legal questions concerning copyright, fair use and libraries that come out of this case. But would you trust Charles and Tara Carreon to make the best, most reasonable arguments on those issues? Personally, seeing how Carreon acted throughout the Inman/Oatmeal situation, followed by his actions against Public Citizen's Paul Levy after Carreon's incredible threat to sue Levy's client resulted in Levy filing for declaratory judgment and eventually successfully getting sanctions awarded against Carreon, it leads me to feel less than comfortable that Team Carreon would be making these arguments.

You can laugh off whatever strategies they might take, but as with the NY case we wrote about, what I really fear is the possibility (perhaps likelihood) of a really bad precedent being set here, that might impact other cases where there are legitimate fair use issues or issues involving libraries, at play.

Not surprisingly, but unfortunately for any ultimate result, the case is not off to a good start. Penguin's lawyer raised certain issues about Charles' effort to represent American Buddha in Oregon, since his license to practice law in Oregon had lapsed years ago. Even worse, it noted that Carreon had told the NY court (where he's still trying to get legal fees) that he was licensed in Oregon. As they point out, misrepresenting his status to the court in NY might cause trouble in renewing his status in Oregon. They also mention the attorneys fees he has to pay to Paul Levy over the disastrous case in California, noting that he was sanctioned for "malicious conduct during the course of this case." There are also a number of procedural issues concerning liability insurance (in which it's suggested that Carreon totally misread the rules), and with regards to his attempt to claim that he is "registered in-house counsel" to American Buddha, despite not qualifying as such under the rules of Arizona's state bar.

Since then, it's just been a continued struggle, with the Carreons seeking to move the case to Arizona, claiming that they can't afford to go to Oregon, and that they want to call pretty much everyone Tara Carreon has given a library card to as a witness -- but those people are all in Arizona. The lawyers for Penguin, not surprisingly, appear to be running rings around Carreon, and you can almost feel their exasperated sighs in their filings.

While Carreon had found some local counsel in Oregon, that lawyer withdrew over unidentified "conflicts." Also, Carreon has tried to explain away his discipline record and expired license. This includes his attempt to explain why the court in California ordered him to pay attorneys fees and sanctioned his conduct. I'd suggest reading the whole thing, but I'll just highlight the following sentence:

The District Court in Recouvreur awarded fees to a declaratory relief plaintiff, Christopher Recouvreur, who registered "Charles-Carreon.com" using domain-privacy, published my face on the front, displayed the phrase "Censorious Douchebag" above my head, and starting [sic] posting nonsense under my name, misrepresenting me as a trigger-happy nutcase type of lawyer, which I most certainly am not.

Well, we'll let the record speak for itself on that one. I will also note the following.

I have filed an appeal of the Court's decision, and when questioned by the press, responded in a respectful manner that expressed no criticism of the ruling.

Finally, with respect to any concerns this Court may have concerning my legal acumen and ethical disposition, I stand ready to respond to any inquiries the Court may have, and commit to uphold the best traditions of the Bar as an officer of the Court.

I am curious how setting up an entire site dedicated to attacking those who commented on the case, including Paul Levy, the opposing lawyer in the case, fits with his claims of handling this "in a respectful manner" -- or in upholding the "best traditions of the Bar as an officer of the Court." Is it really in the "best traditions" to post a picture on his website representing the lawyers who won the case against him, Paul Levy and Cathy Gellis, along with their client, Chris Recouvreur and Ken "Popehat" White as KKK members burning a cross? Because that's what Carreon has done. On that same website are ridiculous allegations of conspiracy theories by various folks who have written about Carreon and (believe it or not) an entire spreadsheet in which Carreon lists everyone who he claims has lied about him, checking off what "lies" they've told. For example, I am listed on there for telling the "lie" that "it's outrageous and immoral to sue charities." Of course, I don't believe I've ever said that. I do think I've argued that it was ridiculous for Carreon to sue two particular charities because Matthew Inman was planning to donate some money to them. But that's fairly different.

It should come as no surprise, then, that the court is still somewhat concerned about Carreon:

Mr. Carreon shall file a renewed declaration in support of his Resubmitted Application for Special Admission Pro Hac Vice [49] which addresses the specific issues and concerns identified by the court regarding the scope of practice permitted to him in both California and Arizona, and which identifies new local counsel in light of Mr. Johnson’s intent to move to withdraw from the case.

I fear that this is only going to get worse and worse -- and by the end, Penguin is going to have an easy win... and a dreadful precedent.

Filed Under: charles carreon, copyright, fair use, legal process, libraries, tara carreon
Companies: american buddha, penguin

Charles Carreon Has To Pay $46K In Legal Fees

from the boom dept

Charles Carreon may not be having a very good day. As you may recall, Carreon "represented" an internet site, Funnyjunk, that threatened Matthew Inman over an Oatmeal cartoon that made fun of that client. When Inman hit back with a (very successful) IndieGoGo campaign to raise money for charity, Carreon, ridiculously, sued Inman, IndieGoGo and the charities. After realizing the case had almost no chance of succeeding, Carreon dropped the lawsuit. However he (along with his wife) have since had an ongoing campaign attacking anyone (including us) who has mocked or criticized the Carreons over the whole Inman/Oatmeal fiasco. In one case, Carreon threatened a satirical, mocking blogger, even promising to wait until the public interest was gone to sue at a later date.

In response, the blogger filed for declaratory judgment that his actions were legit. Carreon responded by literally hiding from being served while also trying to intimidate the blogger, even contacting and threatening to sue his employer. After finally getting served, Carreon basically caved on every point, effectively settling the case. Except, Charles Carreon, brilliant legal mind, apparently didn't realize that he was still subject to having to pay legal fees. Over the past few months Carreon has done everything possible to avoid having to pay those legal fees, lashing out at the lawyers involved, demanding they submit to discovery and depositions, and even claiming that Paul Levy and Cathy Gellis, the lawyers representing the blogger, were involved in some sort of conspiracy against him, while simultaneously arguing (no joke) that he has a First Amendment right to make vexatious legal threats.

Despite all that impressive tap-dancing, it appears the court was not moved. Carreon has been told to pay $46,100.25. The court is not at all impressed by Carreon's legal "theories." Here's a sample snippet, trashing Carreon's reasoning:

Defendant first opposes plaintiff’s motion, arguing the traditional American Rule applies, in which litigants “pay their own attorneys’ fees, regardless of the outcome of the proceedings.” ... He contends this case not be found to be an exception to that traditional rule, as the action was filed under the Declaratory Judgment Act, 28 U.S.C. § 2201, which does not have a fee-shifting provision. While declaratory relief was the remedy sought, the claim for relief arose under the Lanham Act. Indeed, this Court would not have jurisdiction over this matter without the presence of a federal question, in the form of the Lanham Act. Defendant offers no support for the proposition that the statute supporting the underlying claim should be ignored in favor of the statute providing for the legal remedy. He has pointed to no authority to suggest that when only declaratory relief is sought, as opposed to damages or injunctive relief, the Declaratory Judgment Act supersedes the act providing for the underlying claim for relief. Without such authority, it defies logic to ignore the fee-shifting provision provided by the Lanham Act in favor of the Declaratory Judgment Act.

As for his first amendment claim, and the suggestion that this lawsuit was a SLAPP suit designed to silence him... the court is again, not impressed, noting that this is a standard declaratory judgment case filed over Carreon's own threatening email, and pointing out that under Carreon's reading, any declaratory judgment against a threat could be seen as an anti-SLAPP case, which makes no sense. Finally, Carreon tried to argue that no fees should be awarded because the case is not "exceptional", while also arguing that the blogger had intent to profit because "it contained two links to websites that are operated for-profit." The court, again, doesn't see how this makes the case Carreon thinks it makes, noting that two links to commercial websites does not make the original site a for-profit entity. As for the claim that this case is not "exceptional," well, there's where the judicial smackdown comes in. No, the court says, the case wasn't exceptional, until Carreon went nutty:

While defendant’s threatened claims were not “exceptional” at the outset of this case, defendant’s actions throughout the litigation certainly transformed this case into an “exceptional” matter, deserving of an award of attorney fees. The Ninth Circuit has stated that “bad faith or other malicious conduct satisfies the exceptional circumstances requirement.” Boney, 127 F.3d at 827. Evidence supports a finding of malicious conduct during the course of this case. Defendant first went to great lengths, imposing unnecessary costs on plaintiff, to avoid service. Then, in response to this motion for attorney fees under the Lanham Act, defendant engaged in unnecessary, vexatious, and costly tactics in preparation of his opposition to the motion. The Ninth Circuit discourages major litigation with respect to attorney fees. See, e.g., Camacho, 523 F.3d at 981; Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (“A request for attorney’s fees should not result in a second major litigation.”). Defendant’s serving of interrogatories and taking of plaintiff’s deposition amounted to a mini-trial on plaintiff’s motion for fees. Indeed, plaintiff incurred an additional $37,650.25 in fees and costs after his motion was filed. Despite this additional discovery, defendant has presented no evidence to support his initial contention that plaintiff’s attorney is on a mission to “turn Internet gripe sites into profit centers for him and Public Citizen Law Group.” Doc. #45, at 4. Defendant has failed to show that his additional discovery efforts led to anything other than additional frustration for plaintiff and his attorneys. Accordingly, plaintiff’s efforts to respond to defendant’s litigation tactics merit the imposition of a fees award.

The court then laughs off Carreon's suggestion that legal fees should be merely $200, by noting that Carreon provides no explanation for why, and that this ignores all the time and effort Levy and Gellis had to put in. As for the breakdown of the fees, it's $8,450 for the initial case... and the other $37,650.25 all stems from Carreon's crazy fight against attorney fees. All of this from a case that came about because of his own ridiculous legal threats.

So... the question remains: will Charles Carreon stop digging?

Update: Paul Levy has posted his own analysis, noting that while it's good, it is not a complete victory for consumers:

The opinion is not a perfect one, from a consumer perspective. The Ninth Circuit does not limit fee awards to those who successfully defend against frivolous trademark claims; under Ninth Circuit law, it is enough that the suit be “groundless or unreasonable.” On the other hand, the fact that Judge Seeborg drew a different distinction in the context of trademark claims that were only threatened, and never actually made the basis for a complaint, allows future successful defendants to argue that the “groundless or unreasonable” standard still applies in that sort of case.

He also points out that the old adage of lawyers representing themselves holds true:

First, it reminds us of the adage that a lawyer who represents himself has a fool for a client. Carreon did himself a disservice by representing himself after we sought a declaratory judgment. A good lawyer would have counseled him not to duck service, and he could have given Carreon good advice about his offer of judgment — we would have been happy to discuss a compromise on fees at that point of the litigation, and indeed it does not appear to me that Carreon understood, when he sent the offer of judgment, that it was going to subject him to an award of fees by making Recouvreur a prevailing party. And a lawyer would likely have advised him not to embark on the course of frivolous and abusive discovery. I urged Carreon on more than one occasion to get himself a lawyer, if not to negotiate with me then at least to give him an objective opinion about what he was facing. This was particularly important because Carreon is a sole practitioner who does not have colleagues off whom he can bounce ideas, and because he rejected private advice from at least one lawyer who has told me of his efforts to help Carreon to steer himself into safer waters. And a document that Carreon showed Recouvreur during his deposition makes clear that he actually was talking to another lawyer when he made his first threat to Register.com.

Carreon made clear at various points in the fee proceedings, that he had made his threats out of anger at the public obloquy he was facing, making independent judgment from a lawyer he could respect particularly important. He seemed to be asking me to put myself in his shoes and take pity. On a human level, I can understand how this could happen, and there is no way that Carreon would be facing this judgment if he had obtained independent counsel. But it is not an excuse for what he put Recouvreur through.

Separately, he points out that in the whole fight over whether or not Carreon could engage in discovery, demanding information from Levy, the judge warned Carreon not to go overboard, and then used Carreon's excessive discovery against him in the ruling. As Levy notes, "be careful what you ask for, because you might get it."

Filed Under: carreon effect, cathy gellis, charles carreon, legal fees, paul levy, vexatious litigation

'Internet Lawyer' Charles Carreon Has A New Best Friend And He's An SEO Expert Who Hates Anonymous Critics

from the the-streisand-school-of-reputation-management dept

The internet makes for some strange bedfellows. The fact that I can't think of any other examples right at the moment should not detract from this truism. Internet = strange bedfellows and we all know it. Here's some proof:

This article is about the importance of having a great Internet Attorney.

I have one, and he is my friend and an outstanding Internet Attorney that has done wonderful work that protects me and helps me grow our business. His name is Charles Carreon, and I highly recommend him based on the merit of his outstanding work.

Go ahead and re-read those sentences. Marvel at the fact that they were written post-Oatmeal-meltdown (March 22 of this very year). Gaze in bemusement at the proximity of the name "Charles Carreon" to the phrase "outstanding work." Gather your jaw from the floor when you realize an SEO expert with an interest in reputation management put that sentence together and displayed it publicly without a hint of irony.

This glowing testimonial was dropped in my lap via an Adam Steinbaugh tweet. (Steinbaugh has done some great work pursuing the Craig Brittain/IsAnybodyDown.com "revenge porn" story.)

Looks like Charles Carreon hired an SEO guy. Article about unmasking critics probably not the best way to start. gototom2.blogspot.com/2013/03/charle…

— Adam Steinbaugh (@goodreverend) March 24, 2013

As Steinbaugh points out, Tom Forrest, the author of this bizarre puff piece, is particularly irked by some anonymous commenters who have complained about his SEO business, HTP Company. We'll get to that in a moment, but let's take a break to hear more about this "Charles Carreon - Internet Lawyer."

I can tell you from personal legal experience and several law suits I have had to file, that this is a "Pay me a smaller amount now, or Pay a big old bag of money later" proposition.

We know you think you are saving money by not hiring a Lawyer to take care of this, then years later when you are in a law suit you wish you would have listened to previous good legal advice and properly protected your Internet assets...

You want and need an Attorney that has many years of strong experience doing this, and Charles Carreon is this type of Attorney.

There you have it. "Charles Carreon" and "years of strong experience" contained in the same sentence, possibly opening the door to an alternate universe where Internet Lawyer Charles Carreon's reputation hasn't been thoroughly dismantled by Internet Lawyer Charles Carreon.

After shoving a few words together in an approximation of a paragraph, Forrest moves on to his real area of concern.

Today a hot topic of Law and SEO is the strange and difficult issue of reputation management. How do we know what to believe on the Internet when we have sites like RipOffReport and Yelp, etc.

Oh! I know! Pick me!

We know what to believe by considering the experiences of others, something both these sites collect. True, one is more slanted than the other, and generously-sized grains of salt should be taken with every exceedingly negative/positive review, but both are handy additions to any consumer's "toolkit."

Forrest isn't done with RipOffReport, though.

I have talked and emailed with Ed the owner of RipOffReport, and even though his believes and morals on this topic are different then mine and frankly Ed's position (the owner of RipOffReport) upsets me. He is a very clever guy with a good team of Attorneys that fight everyone as long and as hard as they can so he does not give out any information about who files the reports.

Not only is he clever, but he has some protection via Section 230, something people who complain about people complaining should familiarize themselves with. No one should feel compelled to give up info about a critical commenter just because someone else is upset. RipOffReport gives every complained-about company ample room to respond. But, if you're one of those types who feels the best defense is a good lawsuit -- that's where Internet Lawyer Charles Carreon comes in.

This is where you need a good Attorney if a lot of money is on the line and you need to legaly force RipOffReport to disclose information about who really wrote the complaints. It will cost you at least $20,000 and most likely much more to prove who wrote something negative and false about your company, and then to take them to Court and collect will cost even more money, at least $50,000.

Or, you know, save all that money and respond with evidence that the claim is false, using links, citations and other information. It's a whole lot cheaper and it keeps you from being portrayed as a thin-skinned legal bully, something Internet Lawyer Charles Carreon has some first-hand experience with.

Now, Internet Lawyering is good and all, but sometimes you gotta be your own pimp.

So this is not an inexpensive endeavor, it is less expensive to hire a good SEO company to push down the negative and perhaps false articles and complaints. This can also work the other way, you can push up negative complaint articles about your competitors if you so desire.

Also an option. Or you could consider handling complaints in a courteous, professional manner. Your choice.

Now, while this is both extremely bizarre and rather entertaining, one wonders exactly how strong Tom's SEO-fu is if he's unaware of Internet Lawyer Charles Carreon's problematic relationship with the Internet. Or maybe this is a weird symbiotic relationship. After all, Carreon would need the services of a top "reputation manager" just to bring his credibility level up to "dubious" or "somewhat suspect." Bundling reputation management, SEO jargon and Charles "Streisand" Carreon in the same post leads one to believe that either Forrest is blissfully unaware of Carreon's actions or they're both teaming up to unmask some critics and drag their respective reputations out of the mud. Whatever the real answer is, it bears watching, with popcorn on standby.

Filed Under: charles carreon, reputation management, seo, tom forrest
Companies: htp company

Charles Carreon Claims A First Amendment Right To Make Vexatious Legal Threats Without Consequence

from the that's-an-interesting-one dept

If you haven't had your dose of nutty legal claims of late, Adam Steinbaugh alerts us to the latest in the long and ongoing saga of our buddy Charles Carreon. When we last checked in on Carreon, he had more or less admitted that his legal threats against a satirical blogger making fun of him were baseless, and had voluntarily agreed to "settle" the case. In that effort, Carreon ignored the issue of legal fees, so the lawyers for the blogger -- Paul Levy and Cathy Gellis (disclosure: I know both of them and consider them friends, and Levy has acted as our legal representative on multiple occasions, so take any analysis with however many grains of salt you'd like) -- sought legal fees. Carreon went on a bizarre rant against Levy in his filing for an extension, trying to build up some conspiracy theory involving Levy somehow trolling the internet for people like himself to go after.

Of course, that ignores that Levy was going after Carreon because of Carreon's vexatious legal threats against the blogger -- to the point that Carreon directly stated that he would wait until interest in the case had gone cold before suing and causing trouble for the blogger. And, even after all of this began, after Register.com stupidly gave up the name of the blogger (on no legal basis), Carreon (while avoiding being served himself) contacted the blogger's employer, Walgreens, and threatened to drag it into the lawsuit as well. Frankly, we could use a few more good lawyers trolling the web to seek to stop people like Carreon from making baseless legal threats.

Carreon has now filed his response to the attempt to get legal fees out of him, and in true Carreon fashion, it's quite a filing. First of all, it highlights that in responding to a discussion over legal fees, Carreon hit back at both Paul Levy and Ken "Popehat" White with significant discovery efforts. White told Carreon to pound sand (more or less). Levy, it appears, delivered the requested documents. Of course, the documents don't show much of anything that impact the discussion at hand, but Carreon uses them to continue his attack on the satirical blogger. Among the "findings"

• The blogger (Carreon uses the ridiculous term "Gripesite Operator") is "not a journalist." So what? What does that have to do with anything, let alone legal fees?
• The blogger is "not a web developer." Same question as above. I can't even see how that's relevant to anything
• The blogger "had not received permission to use" Carreon's "name or photograph." Uh, again, so what? What does that have to do with legal fees, especially given that Carreon has already conceded the basic case. He seems to be introducing a (ridiculous) copyright claim here, one that would backfire on him if he could actually take it anywhere.
• The blogger created the blog to "show support for the Oatmeal." Again, so what? If you don't recall, this whole mess began with Carreon's baseless legal threat towards Matthew Inman and The Oatmeal webcomic over Inman calling out another site for posting his comics without credit. Why would it possibly matter that the blog was created to show support over that threat (and subsequent lawsuit on behalf of Carreon himself, and not the site Carreon was originally representing).
• The blog linked to TheOatmeal.com, which sells stuff. Um. Again. So? The site was created to support The Oatmeal in response to the bogus legal threat Carreon filed against Inman. Why wouldn't it link to the site? And, really, if he's trying to argue some sort of "commercial" claim here, Carreon's seriously reaching.
• The blog linked to Inman's famous IndieGoGo Bear Love campaign which was started initially to mock Carreon's bogus legal threat. Again, what does this have to do with legal fees?
• The blogger has made no money from this lawsuit. Again. Same question. The lawsuit itself was filed in response to a threat from Carreon, and was not filed for monetary gain, but to have a court declare that the blog was legal to avoid the clear threat that Carreon had made against the site.
• The blogger doesn't hold the trademark for Charles Carreon. Same question.
• In the agreement Levy signed with the blogger, it noted that if legal fees were due, Levy's organization, the public interest group Public Citizen, would get those legal fees. I would imagine that's fairly standard boilerplate language.
• The blogger flew to DC from California to be deposed for this fight over legal fees, and Public Citizen paid for his flight. Again, so what?

Following all of this, Carreon actually inserts a reasonably logical argument for why legal fees may not be appropriate in this particular case. And it's true that the awarding of legal fees is somewhat rare in these kinds of cases, but it's certainly not unheard of. The key issue, for Carreon, is that he has to prove that this case is an "ordinary" case, because it's only in extraordinary cases that attorney's fees are likely to be awarded. As such, he ends up effectively defending the blogger's actions, grudgingly conceding that the First Amendment protected the satirical posts mocking Carreon.

But, because this is Carreon, and he just can't resist, it immediately veers off into wacky territory. He argues that granting legal fees in this case would allow any gripesite to go after those they're griping over for legal fees, violating the First Amendment rights of those being mocked:

If motions for attorney’s fees like the pending one were authorized, then gripesite operators posting scandalous statements like “Thank God For Dead Soldiers” and “Thank God for IEDs” on websites like “AmericasLegion.com” and “ForeignWarVets.com,” would have standing to move for attorney’s fees in declaratory relief actions against the American Legion or the Veterans of Foreign Wars. In search of fee awards, plaintiff’s counsel and his public interest colleagues would be incentivized to sue those organizations on the slightest pretext. In this way, a “First Amendment Shield” would be improperly converted into a “Lanham Act Sword,” placing trademark holders in a worse position than their antagonists, thanks to the very law intended to provide them with protection. Adding to the injury, the threat of fee recoveries for gripe-site operators would chill the First Amendment rights of markholders who respond to scandalous attacks on their marks with litigation threats, since litigation threats, that are as much entitled to First Amendment protection as derisive epithets, would provoke unique, negative pecuniary consequences.

Emphasis is in the original. Yeah. You read that right. In the first half, Carreon is ignoring that the effort for attorneys fees would only come about after a vexatious threat, such as, for example, Carreon's emailed list of threats, which included claims that he would wait until pro bono public interest lawyers might no longer be actively interested in the case to sue, and that he might sue in inconvenient locations if the blogger didn't just give up. It is those actions that are why Carreon is facing legal fees. Not just because there was a gripesite. So, no, his argument in the first half makes no sense.

The argument in the second half just goes into crazy town. He is, effectively, arguing that lawyers have a First Amendment right to make vexatious legal threats with no consequences.

But, because this is Carreon (who has been given the motto "just keep digging" by parts of the internet), he digs in even further, arguing that vexatious legal threats aren't just protected by the First Amendment, but that they're also protected by "litigation privilege." In fact, he even argues (ridiculously) that the lawsuit against him could have been dismissed via an anti-SLAPP effort.

California law is clear on this point.... The Lawyer’s email to Levy was eminently defensible in this litigation as speech protected by the litigation privilege, and no liability could have arisen from it. Indeed, the entire action might19 have been subject to dismissal by way of an Anti-SLAPP motion.

That is an... interesting reading of the law. As Steinbaugh summarizes:

I interpret Carreon’s arguments to be that (1) the site is protected by the First Amendment, but the case is not exceptional because the speech isn’t all that valuable; (2) sending legal threats is protected speech which is worth protecting; and (3) even if it were not protected speech, threatening letters are part of litigation and therefore are protected by the litigation privilege. Taken to their logical conclusion, Carreon essentially asserts that he has a First Amendment right to threaten and bring vexatious litigation.

We await the results of this case.

Filed Under: attorney's fees, cathy gellis, charles carreon, first amendment, paul levy, vexatious litigation

Charles Carreon Keeps Digging; Now Targeting Lawyer Who Is Seeking Legal Fees [Updated]

from the digging-digging-digging dept

If you haven't had your Charles Carreon fill in a while, here you go. Last we'd heard, despite promising to go after a parody blogger who was mocking Carreon (and threatening the blogger's employer), when that blogger filed for declaratory judgment, Carreon first avoided being served, and upon finally being served almost immediately capitulated and promised not to sue. However, what Carreon did not apparently realize was that he left himself open to having to pay the legal fees from the other side, which has led to an ongoing fight in which the lawyers, Paul Levy and Cathy Gellis, are seeking upwards of $40,000 -- a number that seems to keep going up the more and more Carreon tries to fight their every move.

The latest is that Carreon has asked the court for a 120-day extension in responding to Levy's motion for fees. Asking for an extension is not uncommon, and it's often granted -- but the reasoning here is a bit out of the ordinary (which, perhaps, should not be unexpected given who is involved). Rather than citing significant other cases or workload that might get in the way, or highlighting why the basic requirements in responding to the motion require more time, Carreon seems to be trying to smear Paul Levy and his employer, Public Citizen (full disclosure: Levy is a friend, and has, at times, represented this site against threats). Much of Carreon's argument is this bizarre conspiracy theory suggesting that Levy trolls the internet seeking cases where he can file for declaratory judgment, and then tries to cash in on legal fees. He cites two (two!) cases where Levy has, in the past, sought legal fees and lost. And then suggests he needs more time to research all of this more, including seeking discovery from Levy and finding groups to file amicus briefs ("friend of the court" briefs) on his behalf.

To put it mildly, this is crazy. Carreon seems to be trying to turn a case in which he was clearly the initial bully, and got called on it, into one where he tries to sift through documents concerning the lawyer who called his bluff. Basically, it's back to Carreon's game plan throughout this mess: when in trouble, keep digging -- and, as part of that digging, accuse everyone against you of somehow doing something nefarious. In the past, this has included accusations against bloggers and press who were covering his saga (including threats to sue some of them), and now it's extended to threats to drag Levy into a time consuming and meaningless discovery process. Levy filed a short response, noting that he has no problem giving Carreon a 30 day extension, but going on a fishing expedition via discovery makes no sense as they're just trying to settle whether or not Carreon needs to pay legal fees. Furthermore, the search for amici to support him is no excuse for asking for an extension.

Carreon then responded not by countering any of the legal points that Levy raised concerning the extension or discovery, but simply by playing a weird game of "gotcha" in which he wants to call the court's attention to the fact that, in his reply, Levy decided not to even bother responding to Carreon's silly assertions about Levy deliberately trolling the internet for cases where he could seek legal fees (based on the two cases Carreon found where Levy sought legal fees).

Plaintiff’s counsel’s silence regarding the judicial rebuffs his arguments suffered in the Eleventh and Fourth Circuits speaks volumes.

Mr. Levy is simply engaging in a form of forum shopping, eagerly seeking and recruiting clients who create gripe sites to file preemptive declaratory relief actions in various venues, hoping to coerce settlements from vulnerable defendants, or perhaps to lead some court into error by failing to disclose his prior defeats on the very same issue in other jurisdictions

Of course, this ignores a much more plausible scenario (one that happens to be true). As is Public Citizen's charter, Levy and others in the Public Citizen litigation group have a core focus, which is that the group "specializes in cases involving regulation, consumer rights, access to the courts, open government, and the First Amendment, including Internet free speech." Basically, they look for cases that help promote the public good on those particular issues. As such, they are certainly one of the leading groups that people reach out to when they are threatened unfairly. And, based on that, it's not surprising that, at times, this leads to cases in which it is appropriate to seek legal fees. Sometimes they will get those legal fees, and sometimes they will not.

What that has to do with whether or not Carreon should pay up legal fees for his actions is anybody's guess.

Oh, and I think that we (and a few other sites still talking about Carreon) get a bit of a backhanded mention in this one:

Defendant is not a public figure, no issue of public importance has been addressed, and the matter has not been found newsworthy except in online publications desperate for pseudo-legal content.

Are we an "online publication desperate for pseudo-legal content"? We have more than enough content, honestly, and I could do without any more Carreon filings, but he just keeps digging, so the topic just keeps flowing.

Oh, and despite Carreon's claims that Levy is all too eager to jump into these kinds of cases, filing declaratory judgments and then seeking legal fees, I will note that my own personal experience with Levy was that he has, multiple times, steered me away from going that route. If his ultimate goal was to file as many such cases as possible, I doubt that would be the case.

Update: And... between me writing this story and publishing it, the judge has quickly rejected most of Carreon's arguments, giving him 60 days as an extension but saying no to the discovery request, saying simply:

Defendant’s request for extensive discovery would amount to a mini-trial on plaintiff’s motion for attorneys’ fees. Such extensive discovery is unnecessary and a waste of resources.

"Unnecessary and a waste of resources" seems like a phrase that can be applied to an awful lot of Charles Carreon's recent activities.

Filed Under: carreon effect, charles carreon, legal fees, paul levy

Lawyers Going After Charles Carreon Increase Their Request To $40,000 In Attorneys' Fees Owed

from the get-some-popcorn dept

Last week, we noted that the case of a parodist blogger against Charles Carreon concerning Carreon's threats to wait the blogger out and sue at a later date was mostly over, after Carreon effectively threw in the towel, and admitted that his legal threats were completely empty and he wouldn't pursue the blogger. However, we noted there was still the issue of attorneys' fees. Carreon argued that his settlement offer included an offer of $750 to cover the filing of the lawsuit, and that by accepting it, any other fees were then out of discussion. The public interest lawyers representing the blogger, Paul Levy and Cathy Gellis, pointed out that's not how this works, and noted that they were owed closer to $5,000. And, now, they're ratcheting that up. In a new filing, highlighted by Adam Steinbaugh, they're explaining why Carreon should be on the hook for $40,115, mostly due to Carreon's own actions.

Moreover, although the "groundless or unreasonable" test is an objective one, defendant's conduct shows that he was fully aware that he had no basis for claiming trademark infringement. He refused to waive service of summons because, he said, he did not want to have to defend the litigation, and indeed he thumbed his nose at the efforts to serve him, saying that he was deliberately not going to "expose [him]self to service." Once service was effected, he refused to pay the expenses of service, supposedly because he was going to file a motion to dismiss the complaint, forcing plaintiff file a motion seeking an award of a few hundred dollars in expenses; plaintiff also sought an award of attorney fees for having had to file this motion. And then, when defendant saw that his escape routes had been cut off— that he had been served, and that plaintiff was not going to let him out of the case—he simply dropped his trademark claims unconditionally and offered judgment. Mr. Carreon's course of conduct speaks volumes about his evident recognition of the fact that his claims were meritless; he provides no reason for believing that his decision to drop them was occasioned by anything that he had learned about the merits during the course of the litigation.

Finally, although the groundlessness of the infringement and cybersquatting claims is alone sufficient to support an award of attorney fees under Ninth Circuit precedent, in circuits with a higher standard for finding cases exceptional, a litigant's oppressive conduct is one of the factors considered in support of fee awards. ... Although plaintiff's counsel tried to steer Mr. Carreon away from his threats of litigation, Mr. Carreon responded by ramping up his threats, trying to put the blogger in fear of significant financial liability by, for example, warning that he would seek statutory damages of $100,000... and would employ counsel instead of proceeding pro se for the precise purpose of running up the blogger's liability for attorney fees... he also boasted of his reputation for "litigating appeals for years." ... Once the litigation was filed, and while he was refusing to submit to service, he sent a letter to Mr. Recouvreur's employer,... which might have caused trouble at work for Mr. Recouvreur, by threatening to hold the employer liable for the conduct of its employee, and in any event to impose invasive document preservation requirements.

And after Mr. Carreon was finally served, he tried to threaten his way out of being held responsible for his baseless threats by making an additional threat to sue the employer of plaintiff's lead counsel, unless counsel induced his client to settle on the terms that Mr. Carreon demanded.... Mr. Carreon's decision to offer judgment giving plaintiff his complete success on the merits is perhaps an item in Mr. Carreon's favor in judging his litigation conduct, but in its entirety Mr. Carreon's litigation conduct was sufficient oppressive to form yet another factor in support of a finding that his case was exceptional.

Steinbaugh also notes a few interesting points. There's an indication that the plaintiff may also go after Register.com for exposing the parodist's name. Furthermore, Steinbaugh points out how ridiculous it is that Carreon complains in his last filing about people online wishing him ill-fate, and saying that he will "never inveigh against anyone in the public forum by deriding their character as others have mine." That, of course, is funny, given that his wife, who once claimed that I was a "nazi scumbag" seeking to do "to Charles what they did to Jewish lawyers in Nazi Germany." Uh huh. And it's not like Tara and Charles have calmed down in this department lately. Steinbaugh points out that Tara Carreon is now arguing that Matt Inman is partly responsible for the Newtown massacre. And then there's Carreon's Rapeutation.com site. The idea that Carreon somehow doesn't deride others' character in public isn't supported by the facts.

Separately, Paul Levy has blogged about the latest, providing more context, in which he also notes that Carreon's claims to the court that he never intended to take the blogger to court may actually make things much worse for Carreon, in that it may have opened him up to legal consequences from other venues, including Walgreens, the blogger's former employer, which Carreon threatened to drag into the lawsuit (which he now claims he never intended to file):

In trying to persuade me not to pursue the claim for attorney fees on the merits, Carreon claimed that the suit for a declaratory judgment was altogether unnecessary because, he claimed, he never would have sued for a trademark violation; if we had only waited, he said, we would have seen that.

If, in fact, Carreon never intended to pursue his threats to sue the blogger, that is perhaps the worst of all, not only because it means that Carreon has probably cost himself a great deal of reputational and financial harm for having a big mouth, but also because it puts him at significant risk of other legal consequences. For example, in addition to threatening to sue Register.com, Carreon threatened to sue Walgreens, the blogger's employer when the case began, demanding an extensive preservation of electronic records. We could not help thinking at the time that his real purpose was to try to drive a wedge between the blogger and his source of employment. If Carreon never intended to file such a claim, the blogger may have a claim for intentional intereference with contract, and perhaps Walgreens has a claim of its own for the expenses incurred in complying with potential data preservation obligations relating to an intentionally empty threat.

Oh, also, there may be ethics issues given how Carreon obtained the blogger's name, claiming it was for legal purposes, even though he now claims he never intended to file a lawsuit:

Moreover, if Carreon's current statement about his intentions last summer is true, there may be ethics consequences. After all, without having to file suit, he managed to intimidate the blogger's domain name registrar into placing the blogger's name into the public WHOIS record where other members of the public were able to see it; Carreon himself took advantage of the disclosure to feature the blogger's name publicly on his "rapeutationist" blog. And yet, Carreon now claims, he never intended to file the lawsuit at all.

The Federal Rules of Civil Procedure, Rule 26(b)(5) and the California Code of Civil Procedure, section 2031.285, both require a party who receives information that has been the subject of a claim of privilege to sequester the information pending a final ruling on the privilege. This rule has been applied to information obtained about the identity of an anonymous Internet speaker, and both an ABA Formal Opinion, and ethics rulings in some states, have taken the position that a violation of the obligation to sequester can constitute an ethical issue. Consequently, Carreon's insistence that he was never actually going to institute legal proceedings to vindicate his claim of trademark infringement outs him at risk of renewed disciplinary proceedings by the California and Oregon bar authorities.

Finally, on the point of whether or not further action will be taken against Register.com, as mentioned above, Levy notes that he's been trying to talk to Register.com about their policies, and that's going to determine the next steps:

Carreon's contention that he would never have followed through on his threats if legal action also reflects poorly on Register.com's craven release of the blogger's identity, albeit temporarily. While the case against Carreon was pending, we put Register.com on notice of a possible claim, perhaps a class action claim, for advertising (and charging extra for) a private registration service without providing any real safeguards against spurious claims demanding disclosure of the registrant's identity. We have tried to discuss with that company's counsel how they will handle cases like this differently going forward, and have postponed legal action to see whether such talks could be fruitful. But, to date, it has never been convenient for Register.com's representative to actually discuss its policies and procedures.

Now that the merits of the Carreon case have been concluded, we will have to see whether it is possible to avoid litigation on that aspect of the problem.

The case may be ending, but there are still plenty of loose ends.

Filed Under: attorneys fees, cathy gellis, charles carreon, ethics, paul levy

Charles Carreon Promises Not To Go After Blogger; But Digs Own Hole Deeper Trying To Avoid Paying Legal Fees

from the not-over-yet dept

The Charles Carreon saga continues, though it seems to be drawing to a close, with just some monetary issues to clear up. When we last left Carreon, he'd just been served by lawyer Cathy Gellis, who tracked him down in court, after he went through all manners of evasion to avoid being served... while still trying to get the blogger who was mocking him fired. If you don't recall, this case began soon after the whole legal dispute with Matthew Inman of the online comic The Oatmeal -- when Carreon also threatened a parodist blogger who was mocking Carreon. Carreon's threats were pretty direct, and promised to wait until all the attention had died down and to then sue. In response, the blogger filed for declaratory judgment that said he had not broken the law. While Carreon had dropped his lawsuit against Inman, he couldn't get out of this one, even as he tried his damnest to avoid being served.

After finally getting served, Carreon offered to "settle" the case, admitting that the blogger hadn't done anything wrong -- basically giving the blogger everything he wanted:

The court shall enter a declaration declaring that:

1. Plaintiff’s domain name “charles-carreon.com,” plaintiff’s use of the domain name, and plaintiff’s current manner of using his web site, do not violate defendant’s rights;

2. Plaintiff’s use of the domain name “charles-carreon.com,” in its current manner of use, is fair use and protected under the First Amendment, and does not infringe on defendant’s mark;

3. Defendant is not entitled to an injunction against plaintiff using the domain name “charles-carreon.com” or operating the Web site located at the URL “www.charles-carreon.com;” and

4. Plaintiff shall take a total money judgment inclusive of costs in the amount of $725, being the sum of the filing fee and service costs claimed.

The blogger in question then accepted the offer -- but there remained one final point of dispute. That $725 fee. The lawyers representing the blogger, Gellis and Paul Levy, have pointed out that Carreon's own actions in avoiding service actually resulted in significantly more costs that they bore, and they'd now like Carreon to pay up to the tune of $4,664.45. Basically, Carreon's own mess resulted in higher costs, and he's now trying to dodge this, just like he dodged service of the lawsuit.

He argues, basically, that since he made this settlement offer and the blogger has accepted the basic terms, everything is done, no more questions can be asked. In other words, in his mind "case closed, nothing to see, move on." Except that misrepresents the reality of the situation. As Levy and Gellis explain in their response, noting that the fees covered in the agreed settlement only covers Rule 4(d)(2)(A) fees (fees associated with service) and not Rule 4(d)(2)(B) fees (attorneys' fees). They point out that even the case that Carreon cites to make his case involved a settlement that explicitly called out attorneys' fees, wherease Carreon's own settlement offer only discussed costs, not attorneys fees, and the two are clearly treated separately and differently under Rule 4.

In Carreon's motion to avoid having to pay, he also pulls the "but I'm really, really sorry" card, combined with the "and people were so mean to me!" card. Levy and Gellis rip this to shreds:

Defendant’s opposition is accompanied by an affidavit in which he apologizes to the Court for imposing the need for proceedings connected with service by refusing to waive service. At the same time apologetic and defiant (such as where he declines to concede that plaintiff actually and properly sought waiver of service), Mr. Carreon suggests that he has suffered enough, that he has been vilified on the Internet and subjected to “a brutal onslaught,” and that the pursuit of this litigation reflect “exaggerated dedication.” This affidavit does not provide any valid basis for denying plaintiff’s claim for attorney fees.

It may well be that, in retrospect, defendant Carreon regrets his conduct; certainly the private email he cites in his affidavit was beyond the pale. Still, it is understandable that his own conduct provoked some public criticism. First, he sent a demand letter to Matthew Inman on behalf of a client claiming defamation, even though the client had no valid grounds to complain. Then, when Inman made fun of Mr. Carreon by starting a fund-raising campaign to raise the demanded amount as a donation to charity—and after that fundraising effort went viral—Mr. Carreon brought a frivolous lawsuit against Inman, against the ISP that hosted the fund-raising campaign, and against the American Cancer Society and National Wildlife Federation, the charities to whom Inman had promised to send the public’s donations. This is the conduct that prompted the outpouring of negative commentary to which defendant’s affidavit vaguely refer. And when plaintiff Recouvreur started an anonymous, satirical web site to comment about the controversy, Mr. Carreon threatened to sue both plaintiff and the company through which plaintiff had registered his domain name.

Although Public Citizen agreed to take this case because the litigation that Mr. Carreon was threatening related to several legal issues in which Public Citizen is interested, it hoped to avoid the need for litigation. Having supported Mr. Carreon’s position in a recent case with an amicus brief, it hoped to avoid the need to litigate by reasoning with Mr. Carreon privately. Before any papers were filed, Mr. Levy telephoned Mr. Carreon to discuss the legal issues, calling his attention to the legal reasons why Mr. Carreon’s claims could not possibly succeed, and then followed up the phone call with an enumeration of cases. It was in response to this effort to avoid litigation that Mr. Carreon responded with the strong threat to litigate, to string out litigation, to seek high levels of monetary relief, to delay filing suit for years, in the hope that Public Citizen would no longer be interested in representing Mr. Recouvreur by then, and to file in a jurisdiction that had not yet adopted the legal principles followed in the Ninth Circuit. In light of the fact that Mr. Carreon had already filed his frivolous suit against Inman, which was still pending (it was dismissed shortly after this action was filed, but not before forcing those defendants to incur substantial attorney fees), plaintiff and his counsel took Mr. Carreon’s threats seriously, and accordingly filed this action for a declaratory judgment of non-infringement. Mr. Carreon’s evasion of service, and his refusal to pay the expenses of service until this motion was filed, were simply a continuation of the pattern of abusing judicial process that created the need for this litigation in the first place.

As an officer of the Court, Mr. Carreon should have known better when he began his course of abusive conduct. Although Mr. Carreon now expresses regret that he chose not to execute a waiver of service, nor to “expose [him]self to service,” nor to pay the service expenses when requested, and that this pattern of conduct subjected the Court to motion proceedings in connection with plaintiff’s service efforts, such apologies do not excuse the extra work that his conduct needlessly imposed on plaintiff and his counsel. Plaintiff’s counsel tried to avoid the need to effect service, not only mailing waiver of service forms but also expressly informing Mr. Carreon, by email, that a waiver of service form was coming in the mail.... Counsel also tried to avoid the need to file this motion, by calling Mr. Carreon to meet and confer and discussing with Mr. Carreon the law that requires payment of service expenses. Mr. Carreon refused, first making spurious arguments,... and then resorting to bluster, this time threatening to sue plaintiff’s counsel for not acquiescing in his demands.

There's also an amusing bit in which Carreon argues that the method that Levy used to declare a reasonable hourly rate for his fees was rejected by a court. Levy, in response, points out that this is true... but that the ruling in question rejected the rates for being too low, and then points out that the rates requested are, bizarrely, "well-supported by Mr. Carreon’s own authority." Charles Carreon making the mistake of opening his own mouth too much strikes yet again, even at this stage of the game. Also, amusing, Levy points out that some of the reason why he's claiming 6.7 hours of his time is because (again) Carreon himself "made clear his intention to litigate each and every possible issue; hence the motion anticipated many possible arguments, including issues to which Mr. Carreon had alluded in explaining why he was not willing to stipulate to any award of expense for service."

In other words: the Carreon Effect is still going on. Even in almost completely capitulating to the key aspects of the case, Carreon can't help but dig his own hole deeper.

Filed Under: attorneys fees, carreon effect, charles carreon, service

Charles Carreon Finally Gets Served

from the about-freaking-time dept

When last we checked in on "just keep digging" lawyer Charles Carreon, he had been hiding out in his Arizona home, purposely avoiding getting served for the lawsuit filed against him by a parodist blogger who Carreon had been threatening to sue. Carreon had promised to wait until people weren't paying attention any more and then to sue, so the blogger sued first for declaratory judgment. Carreon has been consistently refusing to be served, while emailing Paul Levy, one of the two lawyers representing the blogger, to say that there's no reason to serve him since he has no interest in proceeding. Of course, he says that now, despite the very specific claims in his threats... and despite the fact that Carreon specifically sought to get the blogger fired by contacting the blogger's employer.

Thankfully, as Adam Steinbaugh alerts us, Charles Carreon finally got served by the other lawyer on the case, Cathy Gellis, who realized that Carreon was due to appear in court for a different case, and decided to stop by herself. You can read the full (brief) saga in Gellis' filing (pdf):

On November 15, 2012, I personally served defendant the Summons and Amended Complaint in this case on defendant Charles Carreon. After Mr. Carreon told my co-counsel, Mr. Levy, that he was unwilling to expose himself to service (a copy of his email is attached as Exhibit A), I verified that he was scheduled to present oral argument on November 15 in a case pending before Judge Chen. I went to Judge Chen's courtroom in the Federal Building, 450 Golden Gate Avenue, San Francisco, California. At 10:15 Mr. Carreon's matter was called, and he identified himself to the court. At 10:50 his hearing concluded. I waited in the hall for Mr. Carreon to leave the courtroom, which he did by 10:55. When he did, I addressed him by name and said I had a summons and complaint for him. He extended his arm and took them. Service thus complete, I left the courthouse.

Boom. And now, hopefully, that case can move forward and the court can make it clear to Carreon that he cannot sue the blogger. Nicely done, Cathy -- though, I'm partially (jokingly) steamed that I saw her the very next day at a conference and she didn't even mention her adventures from the previous day.

Filed Under: charles carreon, served