Guardaley | X-Art

More woes for Malibu Media: Nicoletti in the judicial crosshairs

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.


NicolettiCopyright troll Paul Nicoletti

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)

06/16/2013

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.

wordpress counter

Discussion

14 responses to ‘More woes for Malibu Media: Nicoletti in the judicial crosshairs

  1. Wow, really? So let’s say we give Nicoletti benefit of the doubt and say that his “filters” were to blame. So if someone’s IP address is tied to a download the registered subscriber is guilty of negligence for not securing his connection, but violating court orders to demand more money from people on the pretext that some technological screw-ups occurred is hunky-dory?

    I think I speak for most, if not all who peruse this site: whatever our position is on copyright law, the way plaintiffs in these cases continue to make a mockery of other facets of law – such as, I don’t know, everything else besides copyright – it’s hard to take their claims or positions seriously.

    Here’s some advice, Colette. Start taking notes from Jacques Nazaire, and file angry. Intimidation didn’t work and it’s becoming clear that lying isn’t either. At least if you file a compendium of insults you could give all of us a few more laughs.

    Incidentally, how are those lawsuits in Germany going? All well?

  2. Violating the copyright law results in a civil case, and the full power of the courts comes down on the Does.
    Violating the laws of the courts, state bars, and basic ethics seems to result in nothing of substance.

    These lawyers destroy peoples lives, and when caught with their dirty hand in the cookie jar they get a slap on the wrist. Shouldn’t they be held to the same (or higher) level of justice as the Does?

    Colette talks a tearful game, but it is clear she remains willfully blind to the actions taken in her name. Your cashflow isn’t down from piracy, its because you think its 1980 and there aren’t other options out there. That the fact someone with a cell phone can create their own HD porns and sell directly to their fans at lower prices. The fact that when people here about your porn house now the first thought is lawsuits not porn of quality. Everything your lawyers file is destroying your brand but filling their pockets with cash.

    I hope you invested your money well, because the lawyer is getting rich at the expense of your company’s future.

    • I’d like a statement from the other lawyer and the Doe to clarify the timing.
      Did the Doe seek out representation from the first notice, or after a contact was made?

  3. Hey Judge:
    I don’t believe this man Nicoletti is telling the truth, and certainly not the whole truth. Why don’t you contact the Mudd law firm and cross check, or better, contact the defendant directly using information obtained DIRECTLY from the ISP.???

  4. The only notice the Defendant should have recieved was from the ISP. I don’t know how much information the ISP would provide, although the defendant might have obtained a copy of the subpeona from the ISP.

    Let’s hope the judge strengthens the protective order and requires notice to the court when a Doe contacts Plaintiff and information on any communications or settlements.

  5. SJD, I think you’re being too generous. Nicoletti said repeatedly on August 29 that NO defendant subject to the protective order had contacted him and that he was negotiating with NO DSTTPO.

    Meanwhile, as he now admits, he’d been negotiating (indirectly) with a DSTTPPO, via Mudd, since May 31st.

    I agree that Nicoletti did not violate the protective order, but he certainly did “misrepresent facts” at that first show-cause hearing. That’s sanctionable, though I doubt the judge will do much about it – it’s not worth a fight when Nicoletti can pretend he genuinely misunderstood. But the judge is now thoroughly unamused.

  6. GMail filter explanation is a total and utter hogwash. No sane person would rely on GMail filters in these matters to make decisions. Case numbers can be written differently: with dashes, underscores, no separators at all, many drop the first number before “:”

    So, OK, you accidentally started a communication, but when you settle, it’s your responsibility to check the docket. If you are a decent lawyer and not a despicable dirtbag.

    This explanation not only a total hogwash, it is an insult to judges’ intelligence, exploitation of his busy schedule. Sounds like many other Lipscomb’s manure explanations. Like this or this.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s