Guardaley | Lipscomb | X-Art

New York judge stayed subpoenas in all the Malibu Media NYED cases

This good news was broken by Ray Beckerman:

A motion to quash was made by one of the many John Doe defendants in the Eastern District of New York Malibu Media cases. The defendant was represented by Chejin Park, Esq., of Flushing. Due to the “serious questions as to whether good cause exists in these actions to permit … expedited pre-answer discovery”, the Court, by Magistrate Judge Steven I. Locke, before whom all of the Eastern District cases are consolidated, decided to stay all pre-answer discovery until his determination of the motion to quash.

Malibu Media, via a local Jacqueline M. James, filed 88 cases in NYED (all of them in 2015). All of them are stayed (while the order below lists only 20 cases, this order is accompanied by similar orders).

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Guardaley | Lipscomb | X-Art

Malibu Media attorney Jason Kotzker moves to stay FTC civil case pending the resolution of criminal proceedings against him

Jason Aaron Kotzker

A bit more than a month ago I wrote about a civil case against a Malibu Media attorney Jason Aaron Kotzker (NVD 15-cv-01512). Plaintiff, the Federal Trade Commission, alleged that two entities, which were largely controlled by Kotzker (Sequoia One LLC and Gen X Marketing Group LLC), had been collecting consumer data from payday loan applicants and subsequently selling this data to con artists. The FTC alleged that Kotzker and his co-conspirators (all of whom were conditionally settled since) scammed about seven million dollars from already broke citizens.

At that time I questioned why it was a civil case given the gravity of the allegations. I also speculated that a criminal prosecution would follow.

It turned out that my questions were not unreasonable. Today I learned from Mr. Kotzker himself that a criminal investigation against him is underway: Mr. Kotzker first learned about it in early December, 2014, when he received a Grand Jury subpoena addressed to Sequoia One, LLC.

Kotzker tells this story in a motion to stay civil action pending resolution of criminal proceedings filed on 10/2/2015:

In light of this ongoing federal criminal investigation, Kotzker should not be forced to choose between defending himself in this civil action brought by one federal government agency (the FTC) and preserving his Fifth Amendment rights in the ongoing federal criminal investigation being conducted by other federal government agencies (U.S. Postal Inspection Service, the U.S. Department of Justice, and the U.S. Attorney’s Office for the District of Nevada). To protect his Fifth Amendment rights, a stay of this civil proceeding is required during the pendency of ongoing parallel federal criminal investigation.

From this motion we learn that after the subpoena mentioned above, the following events took place:

  • On January 7, 2015, a Postal Inspector interviewed Kotzker at his residence in Highlands Ranch, Colorado for two hours, asking questions related to the civil action allegations.
  • On January 22, Kotzker was questioned for 5 ½ hours by an Assistant US Attorney, DOJ attorneys and a Postal Inspector.
  • On January 30, DOJ extended a plea offer to Kotzker, which would require Kotzker to plead guilty to a federal felony. I assume that the offer was not accepted.

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Guardaley | Lipscomb | X-Art

Verizon is fed up with Lipscomb’s increasing arrogance

On Thursday I wrote a post titled “Is Verizon fed up with Lipscomb’s increasing arrogance?” Today’s caption may look like a copy-and-paste error, but it is not: as you can see, the question mark is not there any longer.

Less than a week after intervening in a SDNY case to oppose an overreach, burdensome subpoena, Verizon attorneys chimed in a Florida case (Malibu Media v William Sharp, FLMD 14-cv-02138) with a harsh Motion for Protective Order and Motion to Quash subpoena.

The language of this motion doesn’t leave any doubt that Keith Lipscomb’s untethered greed did indeed wake up the bear, and the bear is irritated. The document itself is largely the same as the one filed in New York, with the addition of more elaborate Section III — this section addresses Lipscomb’s previous opposition and discusses the Cable Act in more detail — particularly how Lipscomb’s shakedown factory misleads the court by misinterpreting the Act:

Plaintiff’s contrary interpretation of the Cable Act — as recited in its opposition filed October 1, 2015 (Dkt. 53) — is wrong. Plaintiff relies erroneously on subsection (c)(2)(B), which places restrictions on governmental entities that seek information from ISPs. (See 47 U.S.C. § 551(c)(2)(B), referring to subsection (h), which addresses law enforcement subpoenas.) The separate prohibition against disclosing the “viewing or other use by the subscriber of a cable service or other service” or the “the nature of any transaction made by the subscriber over the cable system” is contained in section 551, subsection (c)(2)(C), which applies to all subpoenas: This subsection says nothing about government-entity subpoenas and applies squarely here. […]

Footnote 3 is quite noteworthy:

It also defies common sense that civil litigants like Malibu Media would be permitted a broader range of discovery about Verizon’s subscribers than law enforcement. Nothing in the Cable Act suggests the Legislature intended that absurd result.

That’s not all. Verizon essentially accuses Lipscomb and the pornographers of wasting scarce Verizon’s resources, which are needed to investigate real crimes. This kind of entitlement is yet another instance of harm that parasitic copyright trolls inflict upon the society. Indeed, it’s like summoning a fire engine to water one’s lawn when real fires are destroying homes nearby:

Finally, there are practical implications of Plaintiff’s sought-after discovery. With more than one thousand cases filed by Malibu Media this year alone, permitting depositions of Verizon would create an entire industry devoted to discovery of ISPs — and take away from resources needed to respond to law enforcement personnel and others who require Verizon’s attention to emergency criminal investigations, and other pressing business. The discovery sought by Plaintiff is not appropriate under the circumstances.

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Guardaley | Lipscomb | X-Art

Is Verizon fed up with Lipscomb’s increasing arrogance?

Pissing off ISPs is not a wise thing to do for any copyright troll. Prenda Law’s principals learned it the hard way after their idiotic attempts to sue Comcast and AT&T in Ligstpeed v Smith. It didn’t finish well: the trolls ended up paying hundreds of thousands to the providers.

Prenda’s spiritual heir, Keith Lipscomb, seemingly didn’t learn the lesson. While he didn’t sue any provider (yet?), his more and more burdensome demands started to irritate the bear. In a closely watched case Malibu Media v. John Doe (NYSD 14-cv-10155), Lipscomb, after failing to find any traces of XArt’s smut on the defendant’s computer and after not succeeding in blackmailing the defendant during a deposition, invoked Plan B. Such a plan is usually two-fold. The main part is moving for sanctions claiming massive spoliation of evidence¹. The other part is trying to learn everything the defendant’s ISP knows about its subscriber in a hope to find anything incriminating.

The second part was materialized on 9/9/2015 as a motion for entry of an order authorizing plaintiff to serve a third party subpoena on Verizon and authorizing Verizon to release certain subscriber information about defendant. Judge Forrest granted this motion on 9/11 — with a caveat: while she signed Malibu’s proposed order, she added a handwritten note that Verizon might choose to object per 47 U.S.C.A §551 — Protection of subscriber privacy.

And Verizon, by its biglaw attorneys Morrison & Foerster, did object.
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Yet another New York judge is not happy about Malibu Media’s predatory conduct

Judge Katherine Forrest is the most recent addition to those of her colleagues who scolded copyright trolls one way or another. The list is impressive: judges McMahon, Hellerstein, Marrero, Baer, Brown, Fox… The only way for a troll lawyer to still hustle in this state is to secure his or her reputation six feet under.

I wrote about this case ten days ago (Malibu Media v. John Doe, NYSD 14-cv-10155). To recap, a defense attorney filed a motion for protective order telling a disturbing story, in which essentially an attempted blackmail was incorrectly referred to as “deposition”:

While Doe is cognizant of Malibu’s ostensible desire to conduct thorough discovery, it has become apparent that, in the absence of any evidence of infringement on Doe’s part, Malibu is conducting a fishing expedition and campaign of harassment by threatening to depose non- party witnesses on irrelevant topics and to continue to depose Doe on same. In so doing, Malibu is attempting to prevent ultimate resolution in this matter by creating the false sense that evidence of infringement or wrongdoing exists.

Of course this provoked Keith Lipscomb into producing fountains of saliva. Ostensibly written by a local troll Jacqueline M. James, but obviously drafted by the Troll Master himself (the usage of certain typical words and phrases leaves little doubt), the reply in opposition was frantic.
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Malibu Media attorney Paul Nicoletti is criminally charged with bank fraud

Two weeks ago I wrote about a Malibu Media attorney from Colorado, Jason Aaron Kotzker, who was accused by the Federal Trade Commission of a payday loan fraud. While that lawsuit is a civil one (albeit filed by a federal agency), some attorneys privately told me that it is clear as day that a criminal indictment will follow, although it may take time.

NicolettiCopyright troll Paul Nicoletti

Apparently, the time is up for another member of Guardaley/Keith Lipscomb/Malibu Media Mafia — Paul Nicoletti, who is in charge of the porn copyright racket in Michigan, Indiana and Illinois (in Illinois he was lately formally replaced by Mary K. Schulz, but he still curates her most important cases). In addition, Nicoletti actively files Guardaley/Voltage non-porn lawsuits in Michigan.

Nicoletti was accused of participation in a mortgage fraud scheme as early as in 2006. In fact, a couple of lawsuits were filed in the Oakland County court by banks and mortgage companies (see the list below). A blog that tracks mortgage frauds described the allegations as follows:

The lawsuit describes a scheme in which one or more of the defendants (referred to as the facilitating parties) would identify a residential property or vacant lot in Birmingham or Bloomfield Hills, Michigan and would obtain an appraisal from one of the appraiser defendants that was far in excess of the actual fair market value of the property. The properties were purchased from the existing owner in a one or two step transaction in which the purchase or purchase and immediate resale resulted in a purchase price far in excess of the property’s value. The facilitators would utilize straw borrowers who were paid for their participation and the facilitators would submit false information to Fifth Third concerning the straw borrowers. The lawsuit further alleges that many closings on the fraudulent loans were arranged with the knowledge and participation of the title agency so the down payment was actually generated from the mortgage funds contributed by Fifth Third. Some of the transactions involved false HUD-1s that did not reflect the actual sources and recipients of funds from the closing proceeds.

It only took a decade to finally criminally charge the crook. Today I learned that on 6/28/2015 Paul Nicoletti was indicted by the Grand Jury on four counts: one count of “Bank fraud conspiracy” (18 U.S.C. § 1349), and three counts of “Bank fraud, aiding and abetting” (18 U.S.C. § 1344(2)).
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Copyright trolls re-infest California: meet new porn troll Brenna Erlbaum

That was rather unexpected. After the devastating blow that California courts delivered to Ira Siegel, Prenda and Malibu in 2012-2013, this state was porn copyright vermin-free for two years. Surprisingly, on 9/8/2015 a couple of new Malibu Media lawsuits appeared in the Northern District. At the time of writing they are:

  • 9/8/2015: Malibu Media, LLC v. John Doe subscriber assigned IP address (CAND 15-cv-04088)
  • 9/9/2015: Malibu Media, LLC v. John Doe subscriber assigned IP address (CAND 15-cv-04109)
  • 9/9/2015: Malibu Media, LLC v. John Doe subscriber assigned IP address (CAND 15-cv-04111)
  • 9/9/2015: Malibu Media, LLC v. John Doe subscriber assigned IP address (CAND 15-cv-04110)
  • 9/9/2015: Malibu Media, LLC v. John Doe subscriber assigned IP address (CAND 15-cv-04108)


Brenna ErlbaumPorn troll Brenna Erlbaum

All of these cases were filed by a 26-year-old, apparently starving attorney Brenna Erlbaum, who got her first Bar license in May 2014. Although she signs her filings as a “partner at Heit Erlbaum LLP,” this lawfirm doesn’t even have a website, lists a UPS mailbox as its address and consists only of her and Brian Heit — an even greener attorney who was admitted to the CA Bar only seven months ago.

While the attorney is located near Los Angeles (in Ventura county — not far from the illegal porn production studio), the Miami Troll Center decided to run their money press in the Northern District, seemingly fearing the wrath of Judge Wright, who works in the Central District.
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