Three months ago I wrote about a class action lawsuit against a copyright shakedown company Rightscorp: this case was filed by attorney Morgan Pietz in California. This week Rightscorp, which has been hopelessly struggling to save its floor-hitting stock from being delisted from NASDAQ, was hit with yet another lawsuit, this time in Georgia (Melissa Brown and Ben Jenkins v. Righscorp, Inc. et al, GAMD 15-cv-00012).

Rightscorp

The complaint is short and concentrates on a single deliberate violation of the Telephone Consumer Protection Act — harassing robocalling and messaging without the recipients’ consent. This is not a class action, and the plaintiffs seek an award of trebled statutory damages ($1,500 per each call). Depending on how many violations the court will find actionable, it may result in a hefty sum. In any case, if the plaintiffs prevail (which is most likely going to happen), this precedent has a potential of opening a floodgate of similar actions: in its latest press release (1/22/2015) the troll claimed that it “closed over 170,000” cases of copyright infringement.” How many of these “closures” are the result of unlawful telephone harassment? Just imagine if every robocall recipient decides that he/she wants a small piece of the Rightscorp’s flesh!

The plaintiffs are represented by Sergei Lemberg.

Update

There is one thing that evaded my attention. I tweeted, making fun of the email quoted in the complaint:

 

Teresa Murphy made an important observation, the point I missed: she noticed that Rightscorp essentially admitted that it records harassing phone calls, which potentially can spell a lot of trouble for the troll (especially in the class action lawsuit mentioned above):

 

Also, I’m not sure if the quoted email is enough to establish that the recipient agreed that the solicited phone conversation would be recorded (if no consent was later given during the call itself). California is a so-called two-party state, and the recording of a phone conversation without consent may result in penalties:

632. (a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.

Media coverage

…a proud look, a lying tongue, and hands that shed innocent blood…

(Proverbs, 6:16-19)
Déjà vu all over again

Remember how copyright troll M. Keith Lipscomb, after finding out beyond any reasonable and unreasonable doubt that a defendant in a Malibu Media Bittorent infringement case is absolutely innocent, threatened to ruin his life nonetheless? Today we witness a painfully similar scenario: after the defendant in Malibu Media v. Roberto Roldan (FLMD 13-cv-03007) filed an alibi-grade proof that he couldn’t have been an infringer, Lipscomb & Co doubled down in a futile attempt to save face and avoid paying attorney fees.

This case was conceived on 11/27/2013. In the complaint, Malibu claimed the infringement of 40 XArt’s hardcore porn flicks¹. After Brighthouse sold its subscriber’ identity to the troll, Lipscomb decided to name not the subscriber, but his son. Why? Because he is a young male and because he liked some popular music and movies on Facebook — the titles that were allegedly shared using the IP address in question. In addition, the LexisNexis’s Accurint database [incorrectly] listed the defendant as a tenant in his parents’ house at the dates the alleged infringement was recorded².

In numerous Bittorent cases defense attorneys and judges questioned the trolls’ practice to cavalierly name subscribers or their family members as defendants without the diligence required by the Rule 11 of the F.R.C.P. I do not debate that in many instances trolls’ assumptions are correct; yet the lack of candor inevitably results in mistakes (just like in this case), and given the sheer amount of the shakedown cases being filed today, this is not an isolated incident.

On 8/15/2014 defendant’s attorney, Cynthia Conlin, filed the answer to the complaint. The answer contained 19 affirmative defenses, all of them strong; the majority of these arguments have been discussed on this site in one form or another. Yet for the purpose of this story I’ll concentrate on the following one:

Defendant has not infringed Plaintiff’s work as alleged in Plaintiff’s complaint, nor has Defendant even attempted to download Plaintiff’s work. Defendant is not the account holder associated with the I.P. address, nor does he live at the address associated with the I.P. address.

We’ll get back to this statement shortly.

The alibi

This case was nearly dormant till January, when the defendant filed a bombshell motion for summary judgment on 1/19/2015, presenting tons of evidence that he couldn’t use his parents’ network at the times the alleged file-sharing was initiated:

 

(Also see the affidavit of Roberto Roldan)

As you can see, the proof of the defendant not being involved in sharing XArt’s smut is overwhelming and conforms not only to the relaxed “preponderance of evidence” civil standard, but to a much more stringent “beyond the reasonable doubt.”

The troll doubles down

So what did Lipscomb do? You’d expect a voluntary dismissal of this unwinnable case with prejudice — in order to acknowledge the mistake and move to shaking down the next victim. Wishful thinking! Just like in Pelizzo, Lipscomb (or, more precisely, his hubris) doubles down and files an opposition where he… accuses the defendant and his counsel of “ambushing” the troll with the proof of innocence:

Plaintiff Did Not Know Defendant Resided in Tampa Until Defendant Produced Discovery Documents — Months After the Lawsuit Commenced

[…]

Plaintiff cannot understand why Defendant would wait so long, and allow a lawsuit to proceed for months, if he was innocent and could have ended it against him nearly a year ago. Defendant must have been aware of Plaintiff’s intention to name him in the lawsuit when Plaintiff tried to serve him at his parents’ house in April.

As I stated above, in his answer the defendant explicitly stated that he did not live at the address, and it was not the only time this information was communicated to the plaintiff. So the statement that “Plaintiff did not know…” is dishonest, to put it mildly.

Also, accusing the defense of a delay is beyond disingenuous: almost every Malibu case is being delayed for months without a valid reasonby the plaintiff.

Seemingly, Lipscomb can’t believe that the “impeccable methodology” employed by the Germans could possibly be prone to false positives:

Indeed, Plaintiff did not pick Defendant out of thin air — there is a link between him and the infringement.

I somewhat agree: these cases are pulled not out of thin air. There is a plenty of more appropriate places — abundantly depicted in the plaintiff’s “works of art” — to pull these cases from.

Read the rest of this entry »

A copyright shakedown outfit lead by M. Keith Lipscomb and his German counterparts recently filed 99 Bittorent cases “on behalf” of Good Man Productions, Inc. Those lawsuits were filed in eight districts in November-December 2014, and the plaintiff alleged infringement of a direct-to-DVD movie Good Man featuring Steven Seagal:

 

On 1/14/2015 it came to our attention that querying Good Man Productions, Inc. information on the web portal of California Secretary of State revealed that this entity was dissolved. As soon as I reported it, the company suddenly re-appeared, albeit with a different entity number:

 

Naturally, we were skeptical about the fact that registering a new corporation with the same name would solve a potentially fatal problem. So I postponed further investigations pending the Certificate of Dissolution request. Now I have it (thanks to a community member who purchased a copy):

 

Phillip B. Goldfine
Phillip B. Goldfine,
a man who can shed some
light on the GMP dissolution

So, Good Man Productions, Inc., despite being a plaintiff in 99 cases, was voluntarily dissolved on 12/22/2014. Note that Jordan Rushie filed corporate disclosure statements in all “his” cases around that time, in one instancetwo days after the dissolution.

If not for us publicizing this finding, the lawsuits would likely continue with a ghost plaintiff and its ghostly standing. Re-registration on 1/15/2015 was meant to mend the situation. But did it? In a doubt, I posted a question on Avvo:

Can a dissolved copyright holder corporation continue litigating as a plaintiff in infringement cases?

A CA corporation filed dozens of copyright infringement lawsuits in Nov-Dec 2014. On 12/22/2014 it was voluntarily dissolved. Nonetheless, the cases continue, and the courts were not notified.
Are any laws or regulations broken here?

After those who actually steer the litigation made aware of publicity in this matter, they re-registered this corporation on 1/16/2015. The name and the agent remained the same, yet the entity number is different.

So the second question: did this move “cure” the issue? Is it a matter of interest for the tax authorities?

One of the answers from an experienced business attorney from California, Frank Chen, confirmed what we suspected (emphasis is mine):

Nope. I assume the corporation was voluntarily dissolved (as opposed to being suspended or involuntarily dissolved through a court decree). A suspended corporation can be revived by paying back taxes, penalties and interest, and filing back tax returns. However, a dissolved corporation cannot be revived. A dissolved corporation would no longer have standing to pursue a lawsuit. Re-registration creates a new corporation, but even if the name and agent for service of process are the same, the entity is not the same entity which was the plaintiff in the lawsuit. The move does not “cure” the issue.

How should we call a corporation that can’t be revived but nonetheless walks around? A zombie troll I guess…

Some of the Good Man cases were already settled. Is it a rhetorical question to ask where the money went?

While I think that defense attorneys should try to leverage this information, it is far from certain that the lawsuits will be killed. Witnessing how much leeway US judges provide to attorneys (including copyright blackmailers), I’m pessimistic about any impact this apparent fraud will have on these and similar cases. The plaintiff was voluntarily dissolved a month after filing a blizzard of lawsuits? Oops, your Honor, here is a brand new corporation; I hope you won’t look into the details…

The travesty is that defendants don’t enjoy this kind of lenience from trolls. If Mr. Lipscomb was sincere in his laments that his goal is to stop piracy, he would kindly ask first instead of demanding arm and leg from hapless file-sharers and innocents alike. A warning can go a long way: for example, according to the Canadian ISPs’ statistics, 89% stop infringing activity after the first warning. But such warnings would actually help reducing piracy — an outcome hardy desired by the drivers and passengers of the Bittorent shakedown gravy train.

Update

2/10/2015

Unbelievable arrogance! Instead of dismissing the fraudulent Good Man lawsuits, Lipscomb filed 11 more in the FLSD!

2/11/2015

Another attorney, Matthew Howard Schwartz from Georgia answered my question on AVVO:

If the dissolution of the corporation was completed, it cannot be revived and it cannot continue as a plaintiff in a lawsuit. If the dissolution was merely “in process,” but was later withdrawn before completion, it can still prosecute its claims in the existing lawsuit assuming it remains in good standing with the Secretary of State’s office and the CA Franchise Tax Board. Merely being in default with the Secretary of State or the Franchise Tax Board are curable conditions — but a full-fledged corporate dissolution is irrevocable.

Assuming the corporate dissolution was perfected, the current lawsuit should be subject to dismissal. However, the next issue to be considered would be “what was the disposition of both the copyright and the copyright infringement claims in the corporation’s dissolution?” Both the copyright and the attendant infringement claims are ASSETS that could have been transferred to another party by way of an assignment. So, even though the current lawsuit would be subject to dismissal, you may still have to be concerned about a new lawsuit that could be filed by an assignee of the dissolved corporation (this would be a person or an entity to whom the plaintiff corporation transferred its copyright and attendant infringement claims). However, in that event, you may have a statute of limitations defense available to a new lawsuit filed by the assignee. Furthermore, depending upon the circumstances of the dissolution, you may be able to show that the copyright and attendant infringement claims were not properly transferred to the putative assignee. For example, if the corporation did not properly satisfy all the claims of its creditors during the dissolution process, there may be a question about whether the assignee actually owns all rights, title and interest in the copyright. There are several possibilities for defeating the assignee’s claims under these circumstances.

2/13/2015

I just learned that yesterday Mr. Rushie filed five (e.g, this) Good Man Productions, Inc. lawsuits after I brought to Flynn|Wirkus|Young partners’ attention that this “client” is a faux, voluntarily dismissed entity that has no standing to sue. One thing is to learn about the fatal problem after the fact, another one is to show the middle finger to the court and knowingly continue filing fraudulent cases. I call it Chutzpah.

Jordan Rushie

 

So, all this begs the question whether Mr. Rushie’s employer cares about its reputation or not. I’m leaning towards the latter.

2/14/2014

I procured one of the new Rushie’s complaints. It is word-to-word as the ones filed in December.

It all boils down to evidence. If there is no evidence whatsoever, an attentive and diligent judge won’t allow a case assigned to him to linger – he will rule summarily in defendant’s favor. That’s exactly what happened today. An experienced cardsharper Malibu Media (M. Keith Lipscomb) didn’t convince the judge that the proof of infringement (or, more precisely, the lack thereof) elevates to a necessary level of controversy that requires a jury trial.

The most hilarious part is that the defendant wasn’t even represented — he fought pro se instead. This tells volumes about the quality of Malibu’s “investigation” and “proof.” What we witness is a bluff on a massive scale, nothing more.

This is a relatively new case, filed by a copyright troll Christopher Fiore (or to be precise, by the Miami’s troll center using Fiore’s ECF login) on 2/28/2014 — Malibu Media v. John Doe (PAED 14-cv-01280). The defendant decided to fight rather than to pay up: on 4/3 he filed a motion to dismiss the action and quash the subpoena, which was denied on 5/19. As it happens in these shakedown cases, trolls obtained the Doe’s identity and started pressuring him to settle outside of the court: well-oiled extortion machinery in action, nothing new.

The Rule 4(m)’s 120-day time window to serve the defendant was about to expire three weeks after Comcast sold out its customer’s identity to the troll, so on the last day (6/30/2014) the troll moved for an extension in order to have more time to apply pressure. That extension was granted on 7/9, setting 7/30 as a new service deadline. Business as usual: the majority of judges rubber-stamp those extension motions without reading, and they do it again and again.

Judge Stewart Dalzell
US Federal Judge
Stewart Dalzell

Not this time. Judge Stewart Dalzell, presented with the extension request for the second time (which Judge Restrepo from the same district would consider as a mere beginning of the long and happy journey), actually questioned the validity of the delay. And he wasn’t happy:

(m) We find that Malibu’s failure to serve within the time we specified was not reasonable because it knew the defendant’s identity for three weeks before the expiration of the Rule 4(m) period and offers no reason for its failure to serve him, and accordingly we find that Malibu has not shown good cause;

(n) However, we will exercise our discretion under McCurdy and grant Malibu a last extension to August 11, 2014 to serve the defendant, after which this matter will be dismissed without prejudice;

So the defendant was served, and he answered the complaint on 9/2/2014, denying any wrongdoing.

Because of this judge’s intolerance to frivolous delays, this case progressed rather quickly: the defendant submitted his hard drives to Malibu’s “expert” Patrick Paige, who searched and… found nothing. Well, he found some evidence of Bittorent activity from 2010 and a file with the name “Angelica – Good Night Kiss,” which is the name of one of XArt’s hardcore porn flicks. Paige didn’t specify that this file contained the entire movie or even a part. Do you believe that if it was the case, the trolls wouldn’t shout about it? Me neither. This file certainly wasn’t a media file (or a piece) — as the defendant explained later, it might have been a Google cache of a search resulted from a research after the defendant was hit with the lawsuit.

Also, there was an evidence of USB drives connected to defendant’s computers, and those drives were not offered for inspection. Of course the trolls cried “spoliation!” This hysterical accusation didn’t have any effect on the judge, as we will soon see. The defendant himself didn’t oppose to supplying the portable drives — he didn’t think that he did something wrong at all: initially he was only asked for hard drives. He even offered the USB drives for inspection later.

So, having nothing in their hands, the trolls proceeded to pound the proverbial table — they subpoenaed Comcast for the defendant’s data usage and possible DMCA notices. Such request is essentially an admission of the king’s nakedness: the only reason for requests like this is to continue the pressure in a hope that a troll’s victim will break down and pay the ransom. This is not a new strategy.

Scroll down, and you will see that the judge was not impressed either by the spoliation claims, or by the “circumstantial evidence” (an unethical tactic, for which Malibu was sanctioned in the past):

That Malibu Media chose not to ask for the missing storage devices after their existence became evident to its expert in no way bolsters its hollow claim. Nor are we impressed by the histrionics over alleged spoliation. Malibu Media, as the party seeking a spoliation sanction, bears the burden of proving there has been spoliation. […] Malibu Media makes much of what it called “additional evidence,” that is, indications that Doe used his computer to infringe others’ works between 2005 and 2010 — well before the period at issue in this case — and then sought to scrub the traces. Such efforts do nothing to establish Malibu Media’s claim as to its copyrighted works. It is well-established that the statute of limitations to bring claims under the Copyright Act is three years. 18 U.S.C. § 507(b). Therefore, the use and ownership of Doe’s computers before 2011 are irrelevant here as a matter of law. […]

On 12/16/2014 the defendant was deposed; he stayed strong and maintained his innocence.

So, finally, both Malibu and the defendant filed the motions for summary judgment (both under seal), and today Judge Dalzell granted the defendant’s one, denied the plaintiff’s. The Memorandum and Opinion is beautiful in its detailed debunking of plaintiff’s grossly unsubstantiated claims:

[…] Malibu Media cannot prevail here because it does not identify any evidence upon which a jury could reasonably find for it. Malibu Media has failed to raise a genuine issue of material fact as to its copyright claims. As is well-established, a fact is “material” if it “might affect the outcome of the suit under the governing law.” […] None of plaintiff’s responses in opposition is material in the absence of evidence that Doe downloaded or distributed any copyrighted Malibu Media works-a complete failure of proof concerning the essential element of its claim. Malibu Media has failed to show that there is a genuine issue for trial.

Plaintiff’s efforts to shift its burden of proof onto the defendant are unavailing. However troubling Doe’s evasive and shifting answers may be, none animate “disputes over facts that might affect the outcome of the suit” that would preclude summary judgment. […] We will therefore grant Doe’s pro se motion for summary judgment.

 

Judge shopping?

I decided to look at the other Malibu cases assigned to Judge Dalzell that were dismissed on July 2014 and later. It turned out that all the cases assigned to this judge are currently closed, and only two from the list were settled, the other defendants are apparently dismissed solely because the cases were assigned to an “inconvenient” judge: I have an impression that the coward trolls ran from this judge at the first opportunity. In my opinion, this is a blatant judge shopping. Correct me if I’m wrong:

  • 14-cv-02478 (4/29/2014)
    • 7/15/2014: The judge grants the second motion for extension of time, setting 8/29/14 as a deadline.
    • 7/17/2014: Ten days later Malibu dismisses the defendant without prejudice.
  • 14-cv-01659 (3/20/2014)
    • 7/11/2014: The judge grants the second motion for extension of time, setting 8/15/14 as a deadline.
    • 7/17/2014: Six days later Malibu dismisses the defendant without prejudice.
  • 14-cv-01978 (4/3/2014)
    • 8/01/2014: The judge grants the second motion for extension of time, setting 8/27/2014 as a deadline.
    • 8/27/2014: On the deadline Malibu files the third motion for extension of time, but without waiting for the order, two days later (on 8/29/2014) dismisses the defendant without prejudice.
  • 14-cv-02762 (5/14/14)
    • 7/15/2014: The judge grants the second motion for extension of time, setting 8/29/14 as a deadline.
    • 8/28/2014: One day before the deadline Malibu dismisses the defendant without prejudice.
  • 14-cv-02471 (4/29/2014)
    • 7/10/2014: Malibu moves for ex-parte discovery, which is apparently granted (the order granding discovery, Doc. 5 is missing from Pacer).
    • 9/19/2014: The defendant settles with Malibu, dismissed with prejudice.
  • 14-cv-02537 (4/30/2014)
    • 8/01/2014: The judge allows ex-parte discovery, ordering the service to be effectuated by 9/13/2014.
    • 9/15/2014: Two days after the deadline Malibu dismisses the defendant without prejudice.
  • 14-cv-03803 (6/19/2014)
    • 7/17/2014: The judge allows ex-parte discovery, ordering the service to be done by 10/17/2014.
    • 9/19/2014: The defendant settles with Malibu, dismissed with prejudice.
  • 14-cv-05122 (9/05/2014)
    • 1/7/2015: The judge denies the motion for extension of time, closing the case.
    • 1/9/2015: Two days later Malibu (unneccesarily) dismisses the defendant (probably because of the mess in the trolls’ backoffice).
Media coverage
Nicoletti
Copyright troll Paul Nicoletti

Is it a fraud if an attorney files a motion for extension of time to serve a defendant two full days after the said defendant was already served? If it was done intentionally — definitely yes. I don’t believe it was the case, though, when a copyright troll Paul Nicoletti asked the court to extend the time to serve at 3:45 pm on Monday, 11/10/2014, while the defendant was already served at 11:45 am on 11/8/2014 (Malibu Media v. David Grant, INSD 14-cv-00740). He simply didn’t know, and didn’t bother to pick up the phone and check. No, it was not a fraud this time, but a total lack of diligence, an essential quality of an attorney. Well, this is hardly surprising: once a crook, always a crook. In addition, Nicoletti didn’t notify the court once the blooper was discovered, and after over a month passed since the service, a motion for default judgment was hastily filed; this motion mentions the actual service date.

Note that Nicoletti filed three motions for extension of time in this case. Trolls’ MO is to delay proceeds as much as possible (sometimes to the extent that would surprise Kafka), and if/when finally served, defendant doesn’t answer in 21 days, the troll immediately fileds for a default.

There is actually an explanation to what has happened in this particular case. When I started investigating, I found out that the process server didn’t communicate with Nicoletti at all: she took an order and reported the execution of the service (on November 10 at 2:35 pm) to an individual named Mike Thornton — Keith Lipscomb’s former non-attorney extortion officer who currently coordinates shakedown activities behind the scenes out of a Chicago Western suburb. Today Lipscomb is shy to mention the wild times of mass extortion lawsuits, including his abuse of Florida’s Pure Bill of Discovery (thanks to this loophole, he and John Steele made an obscene amount of money robbing US citizens). At that time Mike Thornton, falsely claiming that he was an attorney, intimidated and harassed people over the phone, wrestling them into paying ransoms (just like Prenda’s Mark Lutz).

Here is what people said about Mike Thornton in 2011:

Nasty little man… made me believe he was an attorney although he didn’t say that. Trying to strong arm me into paying over $2300 for downloading a movie… College Cock Hounds… I am 56 yrs old married for 20+ years. I don’t think so. Threatens me with litigation… $30,000.00.. My answer was to go ahead and sue me. I will see them in court. Would not give me his company name. He is or was a debt collector. He does not have attorneys in any other state than Florida. His name is Mike Thornton. He will intimate you if he can.

This guy subpoenaed my ISP for records from an attorney named Ryan Stevens in Arizona. He then called me and claimed he had proof that I had illegally downloaded porn and his clients were willing to settle out of court for $25.000. I told him I had done no such thing and wasn’t paying anything. He then got loud and abusive and said that he would take it to court and make this accusation public record if I didn’t settle. I told him #1 I did no such thing, #2 I am an disabled vet and he could not sue me and get anything. He then said he would turn the evidence over to the authorities and I would be prosecuted for a felony. He called me from 818-292-8194 in California. There were 250 IP addresses on the subpoena. Can anyone tell me what the real deal is with this guy, how this played out for you, and how I can shut this guy down?

Demanding money in exchange for not reporting a crime is the textbook definition of criminal blackmail, and still, Lipscomb & his gang has been clandestinely employing this sleazeball all the time. Another “negotiator” from the past, Elizabeth Jones, is also still employed, despite the trolls’ attempts to make an impression that she retired.

As for Nicoletti, this episode suggests that local trolls can’t even fart without the Troll Center permission: I heard stories about local attorneys not answering defense’s simplest questions for weeks. While it is obvious that local representatives are not really involved, if they sign their names on pleadings and motions (even without reading), it’s a fair game to call them unprofessional.

Mike Thornton deletes his email account

I’m actually not convinced that “Mike Thornton” is a real name, neither am I sure about “Anthony Palmer” (another “collector” from 2012) and “Elizabeth Jones.” All the three names are too common.

The email thorntonmike4@gmail.com was apparently deleted after the crooks discovered that I’m aware of its existence. That raises brows. I urge government investigators to subpoena this account while the information is retained by Google. Thornton’s IP address was 71.194.100.159 at 14:50 on 1/15/2015.

Thanks to Raul for discovering the discrepancy in the docket.

On Friday 1/23/2015, FLMD Judge Merryday did not buy Keith Lipscomb’s excuses, denied Malibu Media’s motions for extension of time to serve defendant in four Malibu Media cases (14-cv-02341, 14-cv-02347, 14-cv-02359, 14-cv-02338), and dismissed those cases for good.

“Damages above that which would Make it Whole”

These dismissals were preceded by a motion to quash/dismiss/protective order filed by a defense attorney Bill Wohlsifer in Malibu Media v Doe (FLMD 14-cv-02341) on 1/14/2015. This motion (specifically the dismiss part) raises an interesting argument: the plaintiff cannot recover the statutory damages from individual members of the same Bittorent swarm in separate actions. As an example, the defendant notes a virtually identical Ohio case (same swarm, almost the same time).

The defendant argues that Malibu implicitly assumed swarm-wide joint and several liability, thus the plaintiff is estopped from demanding statutory damages individually:

MALIBU cannot have it both ways. Thus, if the Court were to find that Plaintiff sufficiently implied commonality in the same transaction or occurrence or joint and several liability (despite the omission of any such language), by pleading same swarm/hash, the remedy is inconsistent with the cause of action, fails to state a cause of action, and must be dismissed because the complaint seeks non-cumulative statutory damages per defendant.

In addition, Wohlsifer calls out Lipscomb’s predatory practice of collecting (via settlements) way more monies from named and unnamed defendants than the plaintiff is entitled to:

MALIBU seeks damages above that which would make it whole. Accordingly, Plaintiff may only seek damages per swarm, not per defendant. Moreover, it is not out of the realm of possibilities that Plaintiff may have already been made whole by alleged members of this swarm prior to bringing this action.

 

This above that which would make it whole concept resonates with Booth Sweet’s one satisfaction rule argument. Last week Dan Booth published a must-read article “The ‘One Satisfaction’ Rule: A New Approach to Curbing Copyright Trolls” in the Landslide (an ABA Journal). This theory is currently being tested in Malibu Media v David Ricupero (OHSD 14-cv-00821).

I like this trend and have big hopes that these ideas gain traction: if Malibu’s and other trolls’ multiple-ransom-for-one-work gravy train derails, it will severely neuter their extortion racket.

Alas, 14-cv-02341 and the other cases assigned to Judge Merryday were not dismissed based on the merits of the defendant’s motion, but because of the failure to timely serve defendants, as we will see below. As Bill Wohlsifer noted,

This is a bitter-sweet result as I am glad the case was dismissed so that the plaintiff takes nothing by way of its lawsuit and my client can return to life without the threat of a civil suit, but I was looking forward to a court ruling on the defensive motion I filed.

Order to show cause, followed by lame excuse, followed by dismissal

US Federal Judge
Steven Merryday

On the very same day (1/14/2015) Lipscomb filed a bunch of motions in this and other FLMD cases to extend time to serve defendants — motions very consistent with his tactics of frivolously delaying the proceeds. He argues that because his ex parte motion for discovery was granted only on 12/2/2014, ISP didn’t have time to cough up the subscriber’s information.

Judge Steven Merryday was not impressed: he noticed that the Rule 4m’s 120-day complaint-to-service period was about to expire and wanted to know why it took so long to move for discovery (around two months from the lawsuit inception). Thus, he orders to show cause in this and three other cases assigned to him:

Seventy-six days passed between the start of this action and the issuance of the plaintiff’s subpoena, and the plaintiff offers no reason for the delay. Accordingly, the plaintiff fails to offer sufficient information to determine whether the plaintiff pursued this action with due diligence.

Lipscomb responded on 1/22/2015 with a facepalm-inducing reasoning:

1. On September 12, 2014, the paralegal at undersigned’s office in charge of calendaring deadlines and filing motions went on maternity leave.

[…]

5. Because of the transition between office staff, Plaintiff’s Motion was unintentionally not filed with the complaint.

You get the idea. It is not easy to take this excuse seriously, isn’t it? The judge was not impressed either (even less impressed than at the time of OSC), so he denied the motions for extension and dismissed this and three other cases:

 

While reading Lipscomb’s lame excuse, I noticed the following (emphasis is mine):

Although Plaintiff’s Motion had been drafted and was ready for filing, the paralegal hired to replace the paralegal who left was still getting acquainted with this office’s practices and procedures and trying to familiarize herself with the firm’s expansive caseload and status of each case.

I think that this “explanation” runs afoul of the clear requirement of the Florida Rules of Professional Conduct:

A lawyer’s workload should be controlled so that each matter can be handled adequately.

Even if the paralegal story was indeed the reason for the delay, having the single point of failure like this was very unprofessional.

So, essentially Keith Lipscomb presents a violation of the Rules of Professional conduct as an excuse. Nice. Even the classic “dog ate my ex parte motion” explanation would be more appropriate.

There is more. Lipscomb claims that (emphasis is mine)

This deviation occurred in a very small number of cases and was caused by the staffing transition. Until the firm engaged in a periodic internal audit of the lawsuits which it filed and oversees, this mistake was not caught. As soon as it was noticed however remedial action was taken.

My bullshit-meter was triggered, so I checked the other dockets and discovered that in these four cases the discovery motion dates span 10/30/2014 to 11/14/2014 — more than two weeks. Assuming that the mistake “was caught” at the end of October, why did it take two weeks to take the “remedial action”?

Lipscomb and his gang continue to molest the courts and plunder the citizenry. And he does it pretty sloppily: any time I have a cursory look, I immediately uncover inconsistences and contradictions. It is heartwarming to see that at least some judges are allergic to Lipscomb’s BS while other courts blindly trust even the crookest “officers of the court.”

In every culture assaulting elderly and weak is the hallmark of evil. Michael Keith Lipscomb’s parents apparently failed him so miserably that he cannot tell right from wrong even in cases obvious to a kindergartener. Just like Prenda or Ira Siegel, Lipscomb, himself or through his goons, shook down elderly in the past, and he will continue doing so if not stopped.

In Good Man Productions v. John Doe (FLMD 14-cv-81507) the defendant, through his/her attorney (Matthew Sean Tucker) filed an omnibus motion to leave his family alone. The following quote is simply unreal:

In the instant case, JOHN DOE is seventy-four and a half (74-1/2) years old. […]

JOHN DOE lives with a spouse (hereafter “SPOUSE”) and two children (hereafter “CHILD 1” and “CHILD 2”). SPOUSE has late stages of Alzheimers and requires regular care of others. SPOUSE regularly has visitors to care for him/her. CHILD 1 is severally mentally retarded and therefore requires the care from others. CHILD 2 is severally disabled with mental disability. To make matters worse, JOHN DOE is in bad health due to a recent bout with cancer and the combination of his/her health and age makes him/her unable to care for the family. Because of JOHN DOE cannot provide adequate care for SPOUSE, CHILD 1, and CHILD 2, many other persons including medical professions, neighbors, cleaning professionals and their teenage children, and others regularly enter the home for lengthy periods of time and have access to the internet.

(Exhibit C: Declaration of John Doe)

To add insult to injury, the “plaintiff,” one of the numerous Voltage Pictures’ shells, is a dissolved entity that most likely has no standing to sue (at very least, Lipscomb continues to defraud the courts by not notifying judges about this fatal problem). Any competent defense attorney will have no issue crushing such a joke of a lawsuit.

As a rule, the defense attorney should have conferred about the motion prior to filing it. Although there is a slight possibility that it didn’t happen and Lipscomb had no idea about this Doe’s circumstances and will dismiss the case on Monday, something tells me that it won’t happen. In the past this moral castrate continued pursuing even clearly innocent people, threatening to ruin their lives.

Thanks to Raul for the find.

Update

2/12/2015

Wow. On 2/5/2015 Lipscomb replied to the defendant’s motion. He insists on dragging this family though a frivolous and fraudulent lawsuit. There must be a special place in hell for soulless scum like M. Keith Lipscomb:

A refurbished copyright troll Jordan Rushie likes to pathetically repeat that

.@fightcopytrolls you fail to understand that i represent clients - not causes

 

The problem is not in the principle per se (although it is prone to abuse and it easily becomes a “Nuremberg defense” of the ongoing harm that copyright trolls continue to inflict upon the society). The problem is not even a casually pejorative use of the word “causes” — there is a much bigger elephant in the room if one questions the validity of the “client” part of the phrase.

First of all, in representing of one particular “client” (e.g., Good Man Productions, Inc. v. JOHN DOE subscriber assigned IP address 173.63.99.202, NJD 14-cv-07877), Jordan, accusing people of copyright infringement, sees nothing wrong in signing pleadings written by someone else, without even mentioning the actual author (oh, irony). To be fair, Jordan is good at changing the font: I always give credit where credit is due:

 

The sad thing is that Jordan doesn’t even read what he signs:

 

What cases are undersigned “you” talking about, Jordan? To the best of my knowledge this is your first job as a goon for the Miami shakedown artists. Anyway, I’ll give you a benefit of doubt and assume that it was your peculiar way of saying “zero.” Indeed, 0 · 99% = 0.

I’m not even mentioning the fact that the pleadings themselves were hastily molded from a typical Malibu complaint (“copyright-in-suit” for a single claim, seriously?)

Back to the I represent clients not causes claim. The above facts are enough to make the most gullible person skeptical that Mr. Rushie ever directly contacted the “client” — an empty shell, one of dozens, created solely to register a single copyright and subsequently “plunder the citizenry,” as Judge Otis Wright aptly described the sick copyright extortion “business.” Knowing a little bit about Lipscomb’s kitchen, I believe that local representatives are not even allowed to fart without the Troll Center’s permission, less contact the rights holder (more about that in an oncoming post).

But that’s not all. The “client” in question is “Good Man Productions., Inc.,” which… is a dissolved business entity according to the California Secretary of State page:

 

So, even if you wanted to represent a client, you are out of luck, Jordan. Sorry, but you are doomed to represent a cause instead. What cause you may ask? I don’t know, something related to following certain emergency vehicles maybe?

Now go ahead and notify the courts that your “client” doesn’t exist and all the 11 lawsuits you filed in the NJD are essentially fraudulent. I won’t bet a dime on that though: such an act would require possessing a virtue called “candor”; or at least a basic honesty.

Everything I said equally applies to Jordan’s brothers-in-scams, who clogged the US courts with 99 frivolous (and, apparently, fraudulent) lawsuits:

  • Jason Kotzker
  • Jonathan Hoppe
  • Keith Lipscomb
  • Paul Nicoletti
  • Christopher Fiore

 

 

Dear Karma! I sinned. If you want to punish me, please make me a toad in the next life, but not a walking embarrassment for the lawyer profession that shakes down people over a Steven Seagal movie.

Thanks to Raul for a nice catch.

Update

1/18/2014

This is funny and sad at the same time: I anticipated that panicking crooks would scramble to mitigate the damage, but didn’t think it would happen so fast. So, on the very next day after Raul spotted and tweeted about the dissolution, a new entry appeared in the search results for “Good Man Productions” on the California Secretary of State page:

 

Too little, too late: as a commenter below noted, this is a brand new company with the same name and the same agent, not a “revived” original rights holder — unlikely a legally sound cure for the sloppiness.

I’m waiting for the information about the exact time of the dissolution and write an update (or rather a new post) as soon as I have it.

Followup

2/8/2015: we learned about the time (obtained the certificate of dissolution), so here is the promised post:

We have been impatiently waiting for Judge Rice’s order on the defendant’s motion for attorney fees in a landmark Bittorent lawsuit Elf-Man v. Lamberson (WAED 13-cv-00395). It was a long and exhausting battle: please read my previous coverage. DieTrollDie also paid close attention to the developments in this case.

So, today we have this long anticipated decision, and it is good:

[…]IT IS HEREBY ORDERED:

1. Defendant’s Motion for Attorneys’ Fees (ECF No. 175) is GRANTED
in part and DENIED in part. Defendant is awarded attorney fees in the amount
of $100,961. […]

While the defendant asked for $200K, his demands were cut in half: a reduction of fees is traditional in this game, so I hope that the defense is satisfied with the outcome. There is a funny part: even after the judge awarded the fees in principle and his final decision addressing the exact amount was pending, the plaintiff offered to compensate the defendant in the amount of… $5,000.


US Federal Judge
Thomas Rice

Judge Thomas Rice recently made headlines with his statement that high statutory rates in this type of cases may run afoul of the Eight Amendment to the US Constitution. Alas, the judge stopped short of addressing the well-documented allegations of massive fraud upon the US courts by this and similar plaintiffs — Judge Rice simply ignored the evidence provided by the defense over the course of the litigation. This evidence resulted from the defendant’s attorney Chris Lynch enormous research of the “German trail.” This case has been closed, but Lynch’s findings don’t disappear with the case closure, and we will continue analyzing and investigating the international copyright shakedown Mafia and will report on new discoveries.

While this is a big victory over the law abusers, I regret to note that the predatory practice continues unabated: troll David Lowe (one of the plaintiff’s attorneys) still files fraudulent lawsuits in the State of Washington, and his brothers-in-scams in other states are busy extorting citizenry. I hope not for long. If the evidence substantiating one particular fraud — fake declarations and forged signatures filed in nearly 200 cases nationwide — reaches its critical mass and attracts interest of the FBI, we will see a downfall bigger than Prenda’s.

Congratulations to Ryan Lamberson, whose innocence was vindicated, and to his attorney Chris Lynch, whose titanic efforts and superb skills made it possible!

Media coverage
The long story short, A. Jordan Rushie (a Philadelphia attorney who used to represent copyright troll victims) started filing Guardaley-driven, Lipscomb-coordinated shakedown lawsuits in New Jersey. At the time of this post’s writing, he filed 11 complaints for a single-copyright plaintiff “Good Man Productions, Inc.” — the rights holder of a single B-rated direct-to-DVD movie “A Good Man.

Not surprisingly, this film was in part produced by Voltage Pictures.

So far this plaintiff filed 99 cases nationwide (DC, CO, PA, NJ, FL, MI) using the usual suspects as local filers.

A 2012 fishing expedition

A. Jordan Rushie,
a grumpy troll

We first encountered Jordan Rushie in 2012, when he and his misguided “guru” Marc Randazza attempted to abuse a loophole in a local Pennsylvania law in order to obtain personal information of 441 alleged infringers of a Liberty Media Holdings’ gay porn flick. It was a clever (in a bad sense of this word) way to learn identities of suspected file-sharers and subsequently pressure them to settle out of court by means of threatening to make their purported porn habits public (and outing closeted gays in the process, but who cares). This scheme was not much different from what Keith Lipscomb and John Steele exploited in Florida, perverting an antiquated Pure Bill of Discovery.

Interestingly, while on this fishing expedition, the trolls didn’t bother to mention how they obtained the IP addresses — no signed affidavits, no named “experts” — nada. Just a bold statement that the plaintiff somehow knew. Based on other federal Liberty lawsuits, it is clear though that a German IP harvesting company was behind this endeavor¹, and not only as a forensic provider but as an actual, undisclosed, party of interest.

At that time Randazza took umbrage at me comparing him to John Steele, but failed to coherently explain why I wasn’t right.

Half a year later, after this case was removed to the U.S. District Court, Eastern District of Pennsylvania, Rushie and Randazza hastily dismissed it — in part because this blitzkrieg was noticeably frivolous and very weak, comparable to the infamous Prenda’s Guava fraud², and in part because after long conversations certain attorneys convinced Rushie that what he was doing was unethical.

Bellwether [mis]trial

In the wake of what looked like mea culpa, Rushie started defending troll victims; particularly against the most prolific law abuser Keith Lipscomb. The culmination of Jordan’s defense work was his participation in the so called “Bellwether trial” — a good beginning turned rotten — a judge-mandated lawsuit (to test the merits of trolls’ evidence) turned into a farcical bench trial with defendants who are de facto settled and no cross examination of the plaintiff’s witnesses whatsoever.

Today I don’t want to dive into all the details of this giant clusterfuck, I just want to mention that after a quick second look there is a lot of fishy detail, and a bit of work is needed to put this puzzle together. For instance, the following Rushie’s tweet raised my brows and made me think about the fine line between settlement and collusion:

I agree. Lipscomb put on a good trial, evidence was reliable. I asked for non-jury - not him

 

Well, I know that Rushie will rush to explain that it was better for the Doe he represented, that a lawyer shouldn’t fight for the cause but for the client, and so on… Still, it’s a lot of suspicious events surrounding this “defense.” For example, in the aftermath of the Bellwether Rushie commented:

I approached Malibu about settling the case early in the litigation. We came to an agreement while the motion to dismiss was pending (November 2012), before discovery had started. We were able to work out something that was reasonable and fair, taking into account my client’s exposure and assets. Two days later the motion to dismiss was denied in its entirety. My client was never deposed (nor were his neighbors or family) because we were able to resolve all the issues without the need for discovery.

So, if everything was essentially amicably decided back in 2012, dragging the client all the way to the trial only to settle days before didn’t make sense. As a veteran IP attorney, who confronted Rushie in the blog’s comments, stated (emphasis is mine),

[…] the local bar in Phili was watching this closely and my colleagues and I were appalled at the lack of experience, knowledge, and decorum of ALL counsel in this case. The “scuttlebutt” around the local Federal Bar is that Judge Baylson was as angry at Mr. Smith for allowing his client to perjure himself as he was at the defendant, and was not at all pleased with the quality of lawyering in this case. Understandably. He ordered a bellwether and got a bunch of junior associates playing lawyer.

As importantly, the one and only issue that was decided by the court was completely absent from your post mortem analysis (you walked right over it in one of the paragraphs). I also read the nice “pat on the back” you gave yourself, on your website. The fact that your client admitted liability and settled-out on the eve of trial isn’t exactly the type of thing that pads one’s resume, young man.

I urge readers to look at the entire debate here.

OK, enough about this disaster: I hope more information and input will be available sooner or later to make less speculative conclusions. Fast forward to today.

For the 2014 Christmas Santa brings us a refurbished troll

Jordan Rushie dumped a steaming pile of Good Man Productions lawsuits on 12/19/2014, signing them as an “of Counsel Associate” of a lawfirm Flynn Wirkus Young. In this post I don’t want to go over the lawsuits’ specifics, will have plenty of opportunity later. I recapped some documents of the Good Man Productions, Inc. v. JOHN DOE subscriber assigned IP address 173.63.99.202, (NJD 14-cv-07877). The complaint, apparently cut from a typical Malibu Media one, is here. Note that Mr. Rushie only signed complaints, but didn’t not author them. Complaints filed by him and the other Lipscomb’s trolls are identical, word-to-word, only fonts, dates and signatures are different.

To Mr. Rushie’s honor, he was always upfront in his preferences: he openly admired Lipscomb and even Prenda:

The lawyers at Prenda are actually quite competent. They are a real law firm. You can say a lot of stuff about Steele and Hansmeier, but not that they are bad lawyers. Prenda, and Steele Hansmeier, litigated hundreds of cases in federal courts, many of which they won on. They blazed some new ground, and the law on joinder is split because of them. The ownership behind the corporations might be questionable, but at least they’re competent and have significant litigation experience.

So while I find it funny (I don’t know how one can seriously think that the buffoon Lipscomb is a capable attorney — lucky weasel, yes, but not much more), I wouldn’t say that Jordan betrayed either some ideals or certain people, no. I just admit that I let illusions reign, and my disappointment is of my own making.

As I see it, Rushie is just a small spineless man who waited for a while, and after he concluded that our busy-with-chasing-bigger-fraudsters legal system doesn’t really care about petty copyright extortionists and trolls’ “business as usual” won’t likely prompt prosecutions and bar investigations, he weighted his chances and couldn’t resist an offer of easy cash, even if that cash stank badly.

I already mentioned that Rushie repeats “I represent clients, not causes” as a mantra. Not a bad mantra, but the elephant in the room is that the “client” we are talking about here is a joke — a “company” hastily created for a sole purpose of using outdated, possibly unconstitutional laws to shake down US citizens. More troubling is the “expert” (“Excipio” in this case, but it can be any name: Guardaley changes them as gloves) — an undeclared party of interest that actually steers this travesty. The same people (APMC, Excipio, IPP, MaverickEye, you name it) who are “hoping the judge won’t question [expert’s] qualifications too much” are responsible for a Prenda-like massive fraud: submitting nearly 200 forged signatures in declarations by a non-existing “expert” Darren Griffin working for a non-existing “Crystal Bay Corporation.” No, everything I just said is not merely a fruit of my imagination; it is the result of thorough investigations conducted by attorneys Chris Lynch and Morgan Pietz, about whom Mr. Rushie once said:

Look, I like the EFF and what it does. I’m good friends with some of the guys on the PA subpoena defense list (Leonard French, Charlie Thomas, Aman Sharma and Steve O’Donnell). I would highly recommend all four of those guys. in California might be the best Doe defense lawyer in the country right now.

Won’t it be awkward, Jordan, to threaten hapless Does with insane statutory maximums and financial ruin after saying that

@ThePietzLawFirm @Raul15340965 @BoothSweet @LegallyErin I completely agree. $750 - $150K + fed court litigation is outrageously unfair.

 

…or requesting the exculpatory evidence after publicly stating that

@HoustonLawy3r @DieTrollDie The exculpatory evidence could work against them, if someone fills it out and then they proceed w/ litigation

 

…or explaining friends why you describe yourself as an “unapologetic libertarian” in your Twitter profile while being in cohorts with those who attempted to use the state power to invade people’s privacy — literally intrude a defendant’s home — in a civil lawsuit.

I don’t have to explain time and again why these lawsuits are the real legal Ebola: an intellectually curious independently thinking person will grasp this in a second. Nonetheless, I have a premonition of half-assed sophistry in defense of the parasites after this post is published. I wash my hands. I will be closely watching Mr. Rushie’s cases and report a slightest newsworthy development, but I’m out of a “debate” that was already reduced to attacking my anonymity.

Confronted by DieTrollDie who asked why the change, Rushie replied:

No. I genuinely enjoy torrent litigation. Defense side is boring lately. P side is way more interesting.

 

Well, there is a snark, and there is a snark. I like good, politically incorrect, lightly offending humor, but when an attempt to be funny is used as a substitute for arguments, I frown rather than smile. It just reminds me Steele’s “run, mice, run while I laugh all the way to the bank” comments. Not funny.

Followups

 


¹ Matthias Schröder-Padewet signed numerous declarations for the lawsuits filed by Randazza. This guy was involved in a brazen massive fraud upon the US court system.

² Ironically, these pleadings were “pilfered” by Rushie’s next door office neighbor and drinking buddy Isaac Slepner, who was hired by Steele/Hansmeier to file a copycat fishing trip for a bogus plaintiff Guava LLC.