Guardaley | Voltage

Elf-Man v. Lamberson: Judge Rice awards attorney’s fees to the defendant, but doesn’t sanction the trolls

US Federal Judge
Thomas Rice

A very eventful case Elf-Man v. Lamberson (WAED 13-cv-00395) is coming to its conclusion (See the extensive coverage of this case by DieTrollDie). Because of the defense counsel’s titanic investigative effort (which resulted in overwhelming evidence of ongoing brazen fraud upon the US courts by a German extortion concern Guardaley), plaintiff’s counsel Maureen VanderMay resigned citing “ethical concerns,” and finally the trolls attempted to cut and run — dismissed the entire case with prejudice — to avoid potentially devastating scrutiny.

When Judge Thomas Rice approved the dismissal, he hinted that the defense might request attorney fees.

In July Lamberson filed three post-dismissal motions: for attorney fees and costs (asking around $200,000) and two motions for sanctions: pursuant to 28 U.S.C. § 1927 and Fed. R. Civ. P. 11.

Those motions prompted a flurry of opposition, including the declarations by Lipscomb’s discredited expert Patrick Paige and two German nationals (purportedly real people): unlicensed, uneducated “investigators” Michael Patzer and Daniel Macek. The only person whose declaration was missing was Guardley’s own “Alan Cooper” — an invented “expert” Darren Griffin of a non-existing Crystal Bay Corporation: this time the Germans seemingly didn’t dare to forge a signature as they did on numerous occasions in 2013.

We expected a lot from the judge’s ruling on these motions: as time passed, we hoped that he had been preparing an Otis Wright-like smackdown, but alas, I had rather mixed feelings reading the October 31 order.

Sanctions

I start with bad news: both motions for sanctions were denied, mostly on procedural grounds: applicability of certain sanctions to certain documents (“section 1927 sanctions are unavailable for complaints”), timing and clarity of defendant’s accusations in frivolousness, etc. The judge’s analysis of requested sanctions starts on p. 11 and, while it clearly communicates his hesitancy to sanction the plaintiff’s attorneys, it nonetheless reads like an instruction to future defendants, namely what they should do in order to keep ethically handicapped attorneys accountable.

Darren Griffin

The judge absolutely ignores the accusations of champerty, forgery, fraud… He apparently doesn’t want to deal with this dirt. Maybe he is right in his own way: it is up to DOJ to investigate the racketeering enterprise, yet we know that a concerned judge has a tremendous power of nudging such investigation, which otherwise is prone to death by prioritization. Alas, not this judge, not this time.

Attorney’s Fees

This part is good news. While the amount of fees is yet to be determined (the judge found that “other than to recite the total hours expended, counsel has not provided a sufficiently detailed justification for the hours claimed,” giving defense counsel Chris Lynch a chance to submit an itemized claim), we know that the copyright law is seriously skewed towards the rights holder, and to win a fee award is anything but easy even if a defendant prevails and even in the post-Fogerty world. This unfairness is one of the pillars of the widespread abuse of judicial system by copyright trolls.

Here, Judge Rice analyses the following factors:

In determining whether fees should be awarded, courts may consider a nonexclusive list of factors, including degree of success obtained, frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case), the need in particular circumstances to advance considerations of compensation and deterrence, and whether the chilling effect of attorney fees may be too great or impose an inequitable burden on an impecunious party. […]

…and he finds that the fees must be awarded to the defendant:

First, Plaintiff dismissed all its claims against Mr. Lamberson; thus, Defendant is the prevailing party. Moreover, Defendant’s success was unqualified, as the dismissal against him was with prejudice.

Second, from this record, the Court has no basis from which to determine that Plaintiff’s claims were frivolous. The case was dismissed short of trial, so all the evidence is not before the Court.

(Well, this is the reason why trolls flourish: they fight with tooth and nail to avoid trials, so their “evidence” won’t be cross-examined in front of a jury.)

Third, Defendant contends the case against him was baseless, but the Court notes that Plaintiff has obtained stipulated relief against others on virtually the same allegations as Plaintiff asserted against Defendant.

(No, judge. “Stipulated relief” by no means proves defendant’s guilt or that the case is not baseless: the predatory lawsuits like this are calculated to extract settlement amounts slightly less than the cost of mounting a viable defense, hence even innocents settle.)

Fourth, whether Plaintiff’s claims were therefore unreasonable is likewise not determinable from this record. Plaintiff requested damages of $30,000—the full amount of statutory damages available under the Copyright Act for Lamberson’s alleged infringement. In the end, Plaintiff received nothing from Mr. Lamberson, and now nothing more can be said.

As a final point, I can’t agree more with the following:

Finally, awarding fees to Defendant will not have a chilling effect on Plaintiff’s other copyright claims. Plaintiff can pursue its valid and well-founded copyright claims with vigor, seeking both damages and fees where warranted. But Plaintiff cannot exact a pound of flesh simply by making defendants caught in its wide net expend attorney fees to defend themselves, perhaps unjustifiably. This factor weighs in favor of an award of attorney fees.

I feel that the previous paragraph will be widely quoted and I hope this somewhat toothless order will however make troll’s racket harder and costlier. And of course I hope that Lynch and Lamberson will win substantially more than a symbolic sum.

 

Updates

11/24/2014

On 11/21/2014 Chris Lynch filed his Supplemental declaration in Support of defendant’s motion for Attorneys’ fees (doc. 100) asking for $215K.

If you haven’t been following this case (and the German-driven copyright trolling judicial plague in general), you may want to read the entire declaration as it contains a condensed yet illustrative and comprehensive history of the ordeal.

 

12/13/2014

On 12/5/2014 Plaintiff (David Lowe) filed his opposition to the defendant’s fee request. Interestingly, he, redefining the meaning of the “out of touch” phrase, made a counter-offer of… 5K (see his email in the Exhibit A):

Defendant (Chris Lynch) responded on 12/12/2014:

Note that the Exhibit D is a printout of the article about very interesting developments in Australia, where our German trolls currently test the water. Of interest is that yet another Guardaley shell — Maverick UG — is listed as an “investigator” (while the “expert” is a painfully familiar Daniel Macek). The judge, despite the troll’s vocal objections, ordered the plaintiff (Dallas Buyers Club LLC, which is a member of the same shakedown gang as Elf-Man LLC) to fly the witness (Macek) to Australia for cross-examination. It will be interesting to watch Guardaley trying to weasel out of this situation.

12/17/2014 – 2/20/2014

Lowe filed a motion to strike the Supplemental Declaration of J. Christopher Lynch in Support of Defendant’s Motion for Attorneys’ Fees (104 – linked above) on 12/17/2014. Reminds me how Prenda hysterically denied the Alan Cooper fraud two years ago:

Inter alia, Lynch has no evidence or basis for fraud allegations whatsoever. There is no evidence that Griffin is a “fake person” or Crystal Bay Corporation is a “fake company.” There is only Lynch’s wild speculation, and Plaintiff has no obligation to respond to such wild and purely inflammatory allegations, let alone prove a negative. Lynch has no basis, let alone an ability, to make criminal allegations in this civil proceeding. The entirety of Lynch’s baseless arguments should be stricken.

Seriously, Lowe? Just point us to Mr. Griffin, a “real person,” and let him speak for himself. That simple — everyone will be happy. But you obviously can’t.

Lamberson/Lynch opposed on 12/19/2014. Pay attention to the Exhibit C — the order from an Australian Judge mentioned above.

12/29/2014

Lowe has his final word. The matter is now fully before the Court to decide without oral argument.

Followups

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Discussion

14 responses to ‘Elf-Man v. Lamberson: Judge Rice awards attorney’s fees to the defendant, but doesn’t sanction the trolls

  1. Lamberson’s attorney obtained significant evidence that the Plaintiff acted in bad faith from day one. The Judge apparently doesn’t care if fraud is attempted in his court. He, as Judge Wright did, could have called a hearing to get to the bottom of what took place. It is unlikely even an honest five year old would still think the Plaintiff might be legit.

    Judge Rice claims no evidence exists because this case didn’t go to trial. Yet he still believes the complaint might be valid and he can’t sight a single case where the plaintiff went to trial.

    Innocent Doe’s settle out of court because they can not afford to defend themselves and they are afraid of being assigned judges that are copyright holder friendly and entertainment industry friendly.

  2. While I don’t like that the trolls didn’t get their case really scrutinized to the effect that Judge Wright took with the Prenda gang, I do believe that Judge Rice knew their was a stench coming from this case.

    The Trolls barely managed to escaped unscathed in this case, and while they may have escaped the legal ramifications from Judge Rice, they are not going to escape the financial implications of it and rightly so.

    The real tell of how Judge Rice see’s this case will be in the fee’s award. If Judge Rice reduces the fees toa trivial amount, then I doubt the trolls will stop their filings in Washington state as the message to the trolls will be continue on.

    On the other hand if Judge Rice deems the fees acceptable and they are deemed to be within reason for the work put into the case, then the trolls may realize that they aren’t going to get away unabated in suits like this and with the goings on in this case.

    The one thing I do not like about Judge Rice’s decision is the fact that the tolls will feel emboldened that even when there case is suspect and certain factors of it are called into question that they can count on the court to not really take them to task and that there is no consequences to them. That to me is a dangerous signal to send to them.

    We have already seen that in the other cases where a default judgement was entered and even while this decision was hanging in the balance the trolls were still empowered enough to file to try and get that default judgement amounts awarded so they could pursue those for cash and try and collect.

    I would hope that the trolls in the default cases are awarded barely anything as a lesson for the goings on in these cases filed in Washington state was basically the same evidence used in Lamberson, and as such was suspect ( my opinion ). If the trolls get the 20 k that they are seeking , then that will be a travesty.

    • OK…. Yes at first reading the order I was not too happy. I of course was hoping for a Judge Wright torpedo. I’m still not happy about it, but the award of fees and costs is still a good thing for Mr. Lamberson, Attorney Lynch, and our informal community. Again, congratulations to Lamberson and Lynch for taking the Trolls to task and making them run. It is so telling to read Troll VanderMay’s request to remove herself from the case because –

      “Issues have arisen with Plaintiff’s representatives that preclude me from both continuing with representation of Plaintiff and complying with the governing rules of professional conduct.”

      Who were Plaintiff’s “Representatives???” And what knowledge did she obtain that would challenge her ability to comply with professional conduct standards???

      The judge suggests that both parties come to an agreement on the amount of fees/cost to be paid by Troll/Plaintiff, but I don’t think APMC will simply roll over and pay all of the $200K+ Mr. Lynch is prepared to ask for. Plus, I assume any amount Troll/Plaintiff would agree to would ONLY be paid if Mr. Lamberson agreed not to disclose the amount. Please correct me if I’m wrong. I don’t know if Mr. Lamberson would even accept the full amount with a confidentially agreement.

      Attorney Lynch will submit the required itemized fees and costs to the court and I assume the Troll will try to nit-pick each and every item. I cannot imagine Attorney Lynch not having a very detailed itemization for the fees/costs. The worst I could see is the court reducing the requested amount by a small amount if they feel some of the work was not necessary or if it could be partially billed to other cases.

      Yes the Troll skirted sanctions, but the efforts of Attorney Lynch have left its marks. The mass-Doe cases are taking some hits and their threadbare claims and weak experts are being looked at more closely. Troll Vogt just (30 Oct 14) dismissed Doe#10 in a DBC based on attorney Gabe Quearry’s willingness to accept service AND the Declaration of Delvan Neville (concerning how mass joinder of Does is wrong in these cases). See – https://drive.google.com/folderview?id=0B5nZyNTueSnNWVdyLV9nVXJweHM&usp=sharing

      I foresee the next big case will likely come from ILND and Troll Hierl. This is their favorite stomping ground and essentially an anchor point for these cases. Something could arise in the CO courts, but the Trolls in that area are not aggressive.

  3. This cost the defendant $200K and didn’t even get to discovery as Plaintiff refused to show up or reveal the true address and phone numbers of its expert witnesses that claimed to observe one or more bits of internet activity.

    Judge Rice needs to get his head examined because it seems buried deep inside the entertainment industries butthole. The plaintiff’s attorneys behavior are so egregious that Rice can’t sweep it under his carpet. It would not surprise me if the judge ends up cutting the legitimate billing in half. Just so he remains in favor with politicians and Hollywood.

    Additional proof that the legal system is broken in the US.

      • Hi there. I redacted your name and case number. As I understand, the troll doesn’t know your identity yet, and it wouldn’t be wise to reveal yourself prematurely. Yes, these guys do read this blog.

        Bad news is that the lawsuit is already filed, so you cannot just ignore it. Relatively good – it is not an “individual” lawsuit (like Malibu’s), so the joinder can be challenged. Motions to quash rarely succeed, but a motion to sever may work.

        Call an attorney: there are plenty of good ones in your state: to the best of my knowledge none of them charges for an initial consultation. Of course you can fight back on your own, but it will require lot of nerves and effort.

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