Malibu Media v. Andrew Leightner et al (INSD 12-cv-00845) is a long and eventful lawsuit, one of 866 extortion cases filed by copyright troll Lipscomb’s outfit on behalf of Malibu Media¹. “Malibu Media” is an alternative name of a hardcore pornography producer X-Art owned by Brigham Field and Colette Pelissier. This “company,” Malibu Media, was created by Keith Lipscomb and jaded, soulless pornographers with a sole goal of robbing US citizens of their savings. This plaintiff is involved in a closely watched Bellwether trial in Pennsylvania.
In Indiana (as well as in Illinois and Michigan) Lipscomb’s local lackey is a Michigan attorney Paul Nicoletti, a sleazy opportunist with a very questionable past (explained below). Well, while I doubt that any attorney in the trolling business has a slightest idea what dignity is, Nicoletti is apparently on the very bottom of the list sorted by scumbaggery: only Prenda’s attorneys would proudly occupy the space below him.
It would be a Herculean task to overview the history of this case, which already amassed 194 documents. I want to concentrate only on this week’s events.
Judge: You cannot silence the opposing counsel, especially without presenting any evidence
Attorney Paul Overhouser represents two defendants in this case (out of eight defendants in Indiana Lipscomb’s cases). Apparently, earlier this week Paul communicated to Nicoletti that there would be a motion containing something incriminating him. Trying to prevent it, panicking Nicoletti requested an emergency phone conference in every case where Overhouser has been representing defendants:
Plaintiff has recently been informed by counsel for Defendants Chris Minor and Teresa Stephenson that he intends to file certain documents with the Court. The proposed documents are not relevant to this case. The documents are solely intended to embarrass undersigned. Defendant is threatening to file the offensive documents so that he may gain an unfair advantage in this litigation in violation of Fed. R. Civ. P. 11, 28 U.S.C. § 1927, and possibly one or more bar rules.
Well, Nicoletti forgot that this country is governed by the US Constitution, particularly the First Amendment, which preempts his silly “arguments.” Fortunately, Judge Mark Dinsmore² did not forget about it and denied this disingenuous request outright:
Plaintiff’s motion seeks a telephone conference to discuss certain material that may be filed by counsel for Defendant and to “enjoin Defendant from filing any papers that could be construed as embarrassing to undersigned counsel until after such hearing.” First, any sort of injunction on the filing of motions or other documents, particularly in the entirely abstract scenario presented by the Plaintiff by this motion, could well constitute an impermissible prior restraint upon Defendant’s free speech rights. However, more fundamentally, until demonstrated otherwise, the Court assumes that all counsel that appear before it are aware of and endeavor to comply with the relevant rules, decisions and statutes that govern their conduct before the Court. To grant Plaintiff’s motion would be to presume, in the absence of any evidence, Defendant’s counsel’s intent to not comply with such rules, decisions and statutes. The Court does and must expect such compliance and, if any counsel fails in that duty, can then exercise the full extent of its authority to punish such failure. But an invitation to presume and/or enjoin such non-compliance in the absence of any evidence thereof is an invitation the Court cannot accept. Accordingly, Plaintiff’s motion must be DENIED.
A powerful motion
The requested bond size may sound shocking: half a million dollars ($250,000 per defendant), but if you read along, you will understand why: Lipscomb’s main enemy is his narcissism (not much different from John Steele’s):
Malibu’s attorneys acknowledge that “the average cost of copyright litigation is 600K through trial,” and this should be a factor in resolving cases:
[...]Toward that end, you should also apprise your clients that the average cost of a copyright litigation is 600K through trial, according to AIPLA survey of fees in IP cases. This is a relatively simple case, but the fees will the nevertheless be substantial and indubitably in the 6 figures.
Arguing why such bond is necessary, Overhauser brings the most damning topics:
- Judge Wright’s order (of course!);
- Granted motion to post a bond in AF Holdings v. Trinh, and today’s judgment to award fees against AF Holdings;
- Similarity between Prenda Law and Lipscomb’s outfit (remember how Steele extended his helping hand to one of Lipscomb’s locals?);
- Fantalis’s fight against Malibu Media and its trolls Lipscomb and Kotzker;
- New tendency in judges’ rulings — to question the methods and candor of forensic “experts” who supply the list of IP addresses of alleged infringers;
- Nicoletti’s rotten character (see the next chapter).
In addition to arguing that the bond is necessary in this particular lawsuit’s needs, Overhouser urges the court to grant the bond for an additional reason — to deter future extortionate activities by Lipscomb and other trolls:
In exercising its “wide” discretion, the Court should also consider that frivolous litigation brought by intellectual property “trolls” is a growing societal problem that burdens the judiciary.
Requiring a Plaintiff like Malibu to post a bond for possible defense costs early in the case will deter it and other Plaintiffs who attempt to “outmaneuver the legal system” and “plunder the citizenry.”
Concluding, Overhouser asks the court for something that would stop this type of lawsuit abuse in Indiana for good:
If this motion is granted, Defendants also invite the Court to consider entering Orders to Show Cause why Defendants [sic: should be Plaintiffs] should not be required to post bond in the other cases filed by Mr. Nicoletti in Indiana (Exhibit 11).
This motion is not long, well written and powerful. Enjoy:
One simply cannot cease being a crook
There are 14 exhibits, the majority of which are rulings and pleading from other cases. The new one is #13 — a list of cases involving Paul Nicoletti, which also includes multiple sanctions levied against him plus other documents supporting the simple truth that Nicoletti desperately tried to hide from the world: this “attorney” is one of the sleaziest and most despicable human beings.
(Because Scribd incorrectly renders PDF highlights, I removed all the highlights in the embedded document: the original is here.)
Thanks to Raul for contributing to this article.
¹1,129 together with the second Lipscomb’s favorite pornographer Patrick Collins.