|You know it’s a sham, and a sham is very often but another name for a lie. Don’t let it go on record. The cursed thing may come staring us in the face long after this suit has been forgotten.|
|Abraham Lincoln chastising his law partner.|
Since April of 2012 over 1,000 lawsuits accusing thousands of individuals of infringing on the copyrights of its pornographic material and engaging in what has been judicially decried as “essentially an extortion scheme”. This massive copyright troll scheme is overseen by M. Keith Lipscomb of Miami who, like the notorious (now defunct) Prenda Law Firm, uses local attorneys to file lawsuits across the country. During this month two of these local attorneys have found themselves in judicial hot water. As SJD reported earlier, Mary Schultz was sanctioned jointly with Lipscomb for using “Exhibit C” to intimidate and harass John Doe defendants into early settlements in lawsuits that “give off an air of extortion.” This post will take a look at the judicial scrutiny currently being applied to local attorney Paul Nicoletti by Magistrate Judge John E. Martin of the United District Court for the Northern District of Indiana.
The lawsuit (Malibu Media LLC v. Doe, INND 4:13-cv-00027) was filed on April 23, 2013 and as is always the case in these type of lawsuits, Nicoletti made a motion to obtain the personal identifying information of the John Doe defendant. On May 9, 2013 Judge Martin granted the motion. Perhaps mindful of the possibility of intimidation and harassment of the Doe defendant, the judge included an important Protective Order as he does in all Malibu Media lawsuits that are assigned to him:
Plaintiff, its counsel, and any other person or entity acting for or on its behalf shall hereafter refrain from any direct communication with Defendant without express leave of Court.
Nicoletti who is no stranger to ethical lapses and judicial sanctions broke this Protective Order and got caught, twice.
The first time occurred on July 29, 2013 when the judge noticed that a settlement had been extracted from the defendant, and that would be impossible to do without Nicoletti violating the Protective Order and communicating with him or her. Accordingly, the judge issued an Order to Show Cause for Nicoletti to explain himself.
Nicoletti explained that the verboten communication was “unintentional,” and it was the fault of the filters he had placed on his Gmail account. Additionally, he assured the judge that this “mistake” would not occur again with the judge’s other Protective Orders:
To prevent future mistakes, undersigned has created an excel spreadsheet which lists all active cases in both the Northern and Southern Districts of Indiana. The spreadsheet tracks those cases where, as here, judges have entered orders placing restrictions on Plaintiff’s and undersigned’s ability to communicate with defendants. Prior to communicating with pro se defendants in the future, undersigned will consult the spreadsheet to ensure that communication is not prohibited or otherwise restricted and undersigned will update the spreadsheet regularly. In this way, undersigned will make sure that a similar mistake is not repeated.
Furthermore, during the telephonic hearing on this matter, Nicoletti further assured the judge that this would never happen again in the future:
Q: Now that you’ve become aware of your error in this case and corrected your email screening mechanism, have you discovered any other communications with Doe defendants subject to the Protective Order?
A: I have not, your Honor.
Q: Has any other Doe defendant contacted you that was subject to my Protective Order?
A: No, absolutely not. This is the first and this is the only time where a settlement has been negotiated and the contact was actually made by the defendant. I’m not aware of any other instance where I’ve talked to or negotiated with or communicated with a defendant subject to your Protective Order.
Q: If any Doe defendant contacts you in the future, how will you handle it to ensure you remain in compliance with the Protective Order?
A: . . . I’ve got the physical printout, which is posted throughout the office, so before any contact is made in any case the chart is to be referenced and to be cross-checked to make sure that there is no protective order.
With those assurances and “safeguards” in place, the judge let Nicoletti off the hook and issued no sanctions.
In what can only either be jaw dropping incompetence of willful disregard of the Protective Orders, Nicoletti extracts another settlement from another defendant on September 4, 2013, the judge notices and he is not pleased. In a second Order to Show Cause the judge furiously observes (emphasis supplied):
On September 4, 2013, counsel filed Plaintiff’s Notice of Settlement and Voluntary Dismissal in cause number 3:13-CV-328-RLM-JEM, another case before this Court subject to an identical Protective Order. This cause number was listed on Plaintiff’s spreadsheet as being subject to a Protective Order. Plaintiff had not requested leave of Court to communicate with the defendant in that case, and no counsel had appeared on behalf of that defendant. Therefore, it appears to the Court that counsel’s representations at the show cause hearing that he had not “talked to or negotiated with or communicated with a defendant subject to [this Court’s] Protective Order” and that he would utilize his spreadsheet to prevent further prohibited communications after the hearing were false.
Next comes the scary stuff with the judge quoting both the Seventh Circuit Standards of Professional Conduct AND the Indiana Rules of Professional Conduct, which prohibit misrepresentations and false statements to a court, which I take to mean the judge may refer Nicoletti to the Indiana Bar Disciplinary Committee. Never mind the possible monetary sanctions; with Nicoletti’s history, the Indiana Bar could theoretically punch his meal ticket over this.
Perhaps Nicoletti has a perfectly reasonable explanation for all this douchebaggery and, then again, maybe not [09/16/2013 Update: the reason appears to be legitimate, see the update below]. We will find out on September 29, 2013 — when he has been ordered to come up with his excuse or explanation. Hope it passes both the smell test and the laugh test. With this development IMO Lipscomb’s copyright trolling enterprise has boldly entered the Prenda Law universe.
Update (and retraction)
Well it turns out Nicoletti DOES have a legitimate reason as he did not violate the Protective Order. In his Response to the Order to Show Cause Nicoletti states:
Undersigned did not misrepresent facts regarding his compliance with this Court’s Protective Orders at the August 29, 2013, show cause hearing. Plaintiff’s Notice of Settlement and Voluntary Dismissal filed in case number 3:13-cv-328-RLM-JEM was the result of negotiations which occurred entirely through the Mudd Law Offices and attorney Charles Mudd of 3114 W. Irving Park Rd., Suite 1W, Chicago, IL 60618 (Phone: 773-588-5410) — although counsel for defendant did not make a formal appearance in that case. At no point did undersigned have any contact with the defendant whatsoever.
Still, the “GMail” excuse in the first case does not pass a stink test. Not at all. And that instance of scumbaggery alone warrants publicity.