A must-follow strategy
Every time I see Nick Ranallo’s work, I want to take off my hat. John Steele, annoyed by too much truth being publicized about his shady practices, labeled Nick as “underemployed lawyer trolling for business.” We know that Steele usually tries to brush off someone’s actions publicly only when these actions seriously hurt Prenda’s shakedown “business.” Therefore, it is not an understatement to call Nick one of the most capable Prenda’s foes: indeed, Nick continues delivering very serious blows to copyright trolls with every new case he defends. Embedded below is a new must-read Motion to Post Undertaking in one of the numerous Prenda’s individual cases, AF Holdings v. David Trinh (CAND 12-cv-02393-CRB) filed by Prenda’s California agent, Brett “Pinocchio” Gibbs.
Basically, defendant asks court to tell Prenda to put its money where its mouth is and deposit an $85K bond. The likelihood of defendant’s prevalence is great, but the likelihood that a secretive offshore “rights holder” will pay quickly and seamlessly in case if it loses is minuscule. That’s one of the reasons why offshore companies have been created in the first place: to make things opaque and difficult for creditors when those companies are eventually ordered to return what they stole from their victims.
This motion is so well written and so compelling that I can’t imagine how judge’s decision can be potentially swayed by Gibbs’s apoplectic opposition that he filed on 10/19. In that opposition Pinocchio has proudly showcased his long nose while calling this blog a “piracy forum.” A troll from Colorado Jason Kotzker labels our forums “anti-copyright”: laughable, but at least Kotzker has guts to post links in footnotes. Gibbs, on the other hand, cowardly cut the URL from his exhibit and did not provide a link anywhere in the motion. This childish fear of truth being learned by judges gives me some comfort, and I don’t want to spend more time discussing the obvious: if someone calls you a camel on the street, you don’t argue — you just raise your eyebrows for a second and move forward¹.
Defendant invokes California’s CCP 1030: I don’t know if similar rules exist in other states, let lawyers stop by and discuss, but if this is the case and most states allow such things, I see Nick’s primer as a serious game changer.
Prenda’s new game
I don’t know if this way to secure fair outcome can be invoked if individual defendants are not served, which is seemingly a new Steele’s strategy. The brief history of Prenda Law, which is presented in the Chapter II of Ranallo’s motion, is nearly impeccable and can be included in virtually any motion where Prenda’s “client” is an opposing party. In short, it explains how Steele moved from mass suing but not naming to blindly serving individuals (Gibbs’s own words). What is missing in Nick’s vision of Prenda’s history is the interim strategy. While indeed some individuals have been served, they comprise only a tiny fraction of those who have been named over the last months. So, naming but not serving is the stage of Prenda’s “genesis” that Nick has missed in his otherwise excellent educational field trip.
Look, Prenda recently filed a shitload of cases and promised to file more. It is physically impossible (at least in this universe) to litigate all these cases with a handful of cheap crooks Steele and Co. were able to find across the US. The talk about “representatives” in all states is just a hollow talk a-la Steele: currently two hands are more than enough to count all the local scumbags. Each of them files far more cases than he can even watch, less handle diligently (which leads us to a blatant violation of the rules of professional conduct, but that’s a different story).
Sure Steele and his goons still can make an effort and heave a couple of summons, but what about all of the currently named cases that rot in dockets all over the country? What will they do with this load? What is going to happen when it comes to depositions?
Prenda can’t even organize the complaints on its site, listing unrelated Duffy’s cases together with extortion lawsuits. In another occasion, an individually named defendant has not been dismissed from the underlying mass lawsuit. And this is just the tip of the iceberg: these guys absolutely, positively cannot manage the load they announced.
If you decided to settle (and you know, it upsets me), at least wait to be served. And if you are resolved to fight, just imagine what will happen if everyone files a simple Answer to Complaint denying wrongdoing, but each with an individual twist: the crooks will pop as soap bubbles when they attempt to file oppositions to 100+ Answers.
And, getting back to the topic, what is going to happen if every one of these 100+ defendants requests an $85K bond to be posted?
If you ask Steele, he will tell you a different story: you know him. Don’t be gullible. Don’t listen to him. Don’t listen to me. Simply turn on the common sense and do the 4th grade level math.
I was pointed to the fact that Morgan Pietz filed a similar motion to furnish security in an individual Prenda/Lihghspeed case back in September, so it maybe unfair that I dedicated lots of praise to Nick and did not mention Morgan. On the other hand, I know that many attorneys, including those two, exchange ideas all the time, and it really does not matter who came up first with a particular approach. What matters is that both Nick and Morgan (and many others) do a terrific job of healing our system from the trolling disease.
On 10/26 Nick Ranallo replied to an angry Prenda’s opposition with Memo in support of defendant’s motion to post undertaking. Mr. Ranallo, not resorting to emotions, absolutely ignoring ad hominem attacks (kudos for that: for the majority of people — even good people — it’s admittedly not an easy task), calmly and professionally killed each troll’s “argument.” The following quote from the Nick’s response deserves applause. Seriously (emphasis is mine):
Plaintiff argues that Defendant has articulated no need for security in the instant case. However, as recognized by this court, the need for security arises precisely because of the Plaintiff’s status as a non-resident and the difficulty that can be expected in enforcing a judgment against Plaintiff. This need is even more pressing in the instant case, as Plaintiff herein appears to engage in no business beyond the filing of lawsuits.
Plaintiff’s opposition opines that no security is necessary, since Defendant can easily attach any of Plaintiff’s judgments. See ECF No. 21 at 11. There are two fundamental problems with this. First, Plaintiff does not appear to have ever actually obtained judgment against a California defendant. Second, as laid out in Defendant’s original brief and this reply, Plaintiff’s copyright claims are extremely specious and are based on admittedly insufficient evidence. Thus, defendant doubts Plaintiff’s ability to actually obtain judgment on future claims in this state. Defendant likewise expects a long line of prevailing defendants with whom he must compete to attach any judgment that is ultimately obtained by AF Holdings during the course of this campaign. Simply put, Plaintiff is engaged in a highly questionable litigation campaign and would like Mr. Trinh, a victim of that campaign, to place his hopes for recompense on the success of the campaign. Mr. Trinh is acutely aware of the weakness of Plaintiff’s claims, and has no confidence that AF Holdings’ other suits will result in an attachable judgment of sufficient size to satisfy an award of costs and fees in the instant action.
Good news update
Nick’s motion has been GRANTED! Motion underwent a “haircut,” but still the judge ordered Prenda to deposit $48,000 within 30 days or face dismissal!
¹After reading Prenda’s opposition one more time, I’m not so sure about the authorship: despite the fact that Gibbs signed this document, it very well may be John Steele himself — I hear some familiar hysterical notes: “There is no finer opposing counsel than one who declines to research the law,” “Mr. Ranallo would have done well to remember his role,” “His client’s future hangs in the balance. Instead of engaging in cathartic name-calling, Mr. Ranallo should have focused on the legal issues that control his client’s destiny.” “If Mr. Ranallo had spent his time conducting legal research…” etc.
- On 11/14 Gibbs filed a motion for reconsideration. Seems that he does not want to deposit a bond, even such a negligible amount as $48,000, especially if he has no doubt that he wins in the end of the day.
- On 12/7 Judge Breyer denied Gibbs’s motion:
Plaintiff’s final argument, that the Court’s Order is “inapposite to [the] principle” that the “United States is supposed to demonstrate leadership in promoting the rule of law” is simply hyperbolic. Although the Court recognizes, and recognized in its Order, that posting an undertaking of any real amount is inconvenient to Plaintiff, see Order at 3 (reiterating Plaintiff’s concern that undertaking would bar it from proceeding in any copyright case and concluding that undertaking should be “no greater than necessary”), Plaintiff’s doomsday predictions about the fate of commerce in California, see Mot. at 9 (“many organizations might simply choose to exclude California residents from accessing their businesses”) strain its credibility. Only this case is before the Court, and Defendant has met his burden in this case.
[...] based on the evidence of record, there are serious questions as to whether AF has standing to sue for infringement because of the “Alan Cooper” issue. Notably, in spite of a declaration from an Alan Cooper suggesting that AF or persons or entities affiliated with AF have fraudulently used his identity, AF has made no effort to provide any evidence to counter the declaration. AF could have, but did not, present a declaration from its own Alan Cooper or a declaration from its manager and/or CEO. As the Court stated at the hearing, even if there was a sufficient transfer for purposes of the Copyright Act, which focuses on proper authorization by the copyright transfer or, not the transferee, that is a separate issue from (1) whether AF has Article III standing in this Court to assert infringement based on claimed ownership of the copyright at issue and (2) whether AF is a real party in interest with capacity and authority to sue. See Fed. R. Civ. P. 17. The “Alan Cooper” issue raises serious questions that remain unanswered.
- DieTrollDie: “Show Me The Money!” – AF Holdings LLC v. David Trinh, 3:12-cv-02393 (CA)
- Booth Sweet LLP tells court a story of Prenda’s deception and abuse, asks for a bond to be posted by AF Holdings.