Disclaimer: This post in a way constitutes legal advice but is being submitted for discussion purposes only.
Since my last post regarding this matter, Does have been receiving letters from their ISPs and have been raising questions and concerns, which this post will try to address. Please keep in mind: a lot of this is based upon pure speculation and certain assumptions, which may prove to be incorrect, so be forewarned.
Before I start, I want to remind the rule #1: never talk to the troll! You may want to consider the “Richard Pryor Response” advocated by DieTrollsDie, but do it only if you clearly understand the perils, and exercise the utmost caution.
Q. I just received a letter form my ISP. What should I do?
This is a difficult question to answer because it depends upon your particular circumstances. As it will be discussed below, the odds that you will be named and sued in a state court are slim. I do not think that Does’ pro se motions to quash the subpoenas are working at the state level in these lawsuits. Please let us know if I am wrong. So if you are strapped for cash, can withstand some harassing letters, emails and, possibly, some phone calls, just sit tight. On the other hand, if you can afford to retain counsel who can file a motion to prevent or delay the release of your personal identifying information, do so. An attorney by the name of Celestine Dotson, whose number is (315) 454-6544, has appeared on behalf of at least one Doe in St. Clair, I don’t know anything about her, but I hope she is competent enough to make a difference, we’ll see. Likewise, the Electronic Frontier Foundation maintains a list of attorneys offering assistance with these kinds of lawsuits.
Q. What are the chances that I will be named in a lawsuit and served with a summons and complaint?
Very slim indeed. LMC’s Steve Jones has indicated that they have identified 6,500 Does as targets. Obviously, they are not going to sue that many individuals. However, a commenter (presumably John Steele) over at dietrolldie.com has boasted that he recently spent $4,000 on process servers (the people that hand you the summons and complaint). I find it remarkable that none of these served individuals have shown up at this blog or at dietrolldie.com yet. Nonetheless, assuming that figure is true, it means that Prenda has (or plans) to name and serve approximately, at the most, 65 Does or 1%, merely to help spread FUD. Consequently, your chances of being named and served hover at or below 1%. Prenda has associations or affiliations with trolls in FL, IN, VA, DC, TX, and CA. So your risk is slightly increased if you reside in those locales.
Q. In the unlikely event that I do get named and served, how will it play out?
In answering this question I am relying on the assumption that Prenda knows its Lightspeed complaint is largely garbage that will not withstand a careful judicial review, so it will drop those lawsuits in which such a review will occur. As I commented earlier, I think the rough parameters of Prenda’s Master Plan are:
- Get Doe info out of both St. Clair and Miami-Dade cases.
- Send extortion letters to the 6500 Does.
- Name and serve a very small percentage (at the most 1%) of Does in those state courts where Prenda has attorneys to spread FUD.
- If a named and served Doe retains an attorney and will not settle, Prenda will drop the lawsuit either before or at the time the Doe’s attorney interposes an answer or motion to dismiss.
- If a Doe does not retain an attorney, does not settle and does not put in a pro se answer or motion to dismiss, Prenda will wait 30 days and move for default. Get the default and shout it from the rooftop to spread more FUD. Prenda will have a hard time getting a sizable default judgment because Lightspeed’s damages are small ($40 ballpark plus court costs which would be less than $400 IMHO for a total default judgment).
Q. What is the Statute of Limitations for these various claims?
- 2 years for the CFAA claim.
- 1-4 years for the conversion and unjust enrichment claims; depending on the state, with most being either 1 or 2 years.
- Civil conspiracy is a damages theory that needs to be tied to a wrongful act and the Statute of Limitations controls that wrongful act. In this case the theory dovetails with the conversion claim and the unjust enrichment claim, so the Statute of Limitations would be in the 1-4 year range.
- 2-6 years for the breach of contract; depending on the state where the suit is filed.
The Statute of Limitations is working against Lightspeed and Prenda. This is because in the same ynot.com post Steve Jones indicated that he started compiling the list of alleged hackers back in December of 2010, and for those Does the Statute of Limitations began ticking away as it would for subsequent Does, once their IP address was discovered. So, say, you live in a state where the Statue of Limitations is 2 years for all the claims being asserted in Lightspeed’s complaint, and he discovered your IP address on December 10, 2010, which means that Lightspeed’s complaint against you will be time barred by the Statute of Limitations on December 11, 2012. With 6,500 Does to harass and threaten you can easily see how this becomes problematic as the trolls race the calendar.
Q. Why do you think the breach of contract claim is especially moronic?
For several reasons, but the main one is that the complaint alleges that unlawful hackers violated the membership agreements of its websites. The complaint can’t have it both ways: either the Doe is a unlawful hacker or the Doe is a member who breached the membership agreement, but the Doe cannot be both.
Best of luck to all the Johns and Janes out there!
¹Pay attention to the address where deposition is set to take place: this is the official Prenda Law headquarters (a.k.a Troll Central).