Guardaley | X-Art

Blaming X-Art’s owners, Lipscomb wants to withdraw from Malibu Media representation in three cases

To say it was unusual and unexpected would be an understatement. The Guardaley | Lipscomb, Eisenberg & Baker | X-Art shakedown machine seemed to be extremely well oiled, operated smoothly for years, plundering US citizens over alleged copyright infringement of illegally producedbarely legal” pornography. With more than 5000 cases in the US since 2012, the parasitic cartel relieved productive citizens from millions and millions of dollars.

Yet recently something apparently went wrong. Today Keith Lipscomb and those attorneys from his firm who were doing the Malibu work (Emilie Kennedy, Daniel Shatz, Jessica Fernandez) moved to withdraw as Malibu Media’s attorneys in at least three cases:

  • Malibu Media v. Gregory Weaver (FLMD 14-cv-01580, defense attorney: Cynthia Conlin): this case was heading for a jury trial after the judge denied both plaintiff’s and defendant’s cross-motions for summary judgement. I bet that the trolls think that they already won this case: the defendant admitted to watching X-Art’s smut, and some X-Art torrent files (but not the movies listed in the complaint) were found on his hard drive. Notwithstanding, the defendant maintains innocence and has been actively preparing for the trial, which he hopes to win.
  • Malibu Media v. Jesse Raleigh (MIWD 13-cv-00360, defense attorneys: Derek Wilczynski and Lincoln Herweyer). This case is an embarrassment to the judicial system and should have been ended long time ago with a payment to the defendant for his troubles. After the expertise, the defendant came out clean: neither X-Art’s porn nor evidence of spoliation was found on defendant’s hard drives. Nonetheless, the trolls doubled down. Just read Malibu’s ridiculous speculative motion for summary judgment and compare it with an argumentative and solid defendant’s cross-motion¹. It is clear as day that the crooks are grasping at straws and there is simply no way they can win at the trial. A recent Techdirt’s story about this case is also indicative of the trolls’ frivolity and unprofessionalism.
  • Malibu Media v. Curt Vandenheuvel (FLMD 13-cv-01579, defense attorney Joshua Cossey): Just like in Raleigh, neither porn nor evidence of spoliation was found by the plaintiff’s expert. Yet the trolls continued the pressure, stooping as low as insisting on deposing defendant’s daughter — a seriously ill teenager (in a porn case!).


Every motion specifies the withdrawal reason as following:

“[A] lawyer may withdraw from representing a client if: … (3) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled [or] (4) the representation … has been rendered unreasonably difficult by the client….” Fla. R. Prof. Conduct 4-1.16(b). These foregoing circumstances are present, warranting undersigned’s withdrawal from representation.

Should the Court have questions about the details necessitating the withdrawal, undersigned requests an in camera hearing so that undersigned may explain without disclosing privileged information

In subsequent motions to enlarge the pretrial deadlines (Weaver) and to continue and postpone mediation (Vandenheuvel), Lipscomb was more explicit:

Unfortunately, Plaintiff has failed substantially to fulfill its obligations to undersigned regarding undersigned’s services and Plaintiff has recently rendered undersigned’s representation unreasonably difficult.

I don’t know what’s going on, and I’m reluctant to speculate before I get enough information to make educated assumptions. For now, feel free to discuss this event in the comment section.

Embedded below is the motion to withdraw in Malibu Media v. Weaver. The other ones — in Raleigh (separate motions by Lipscomb and Fernandez²) and Vandenhuevel — are nearly identical. I will update this post if more similar motions are filed.

Updates

04/27/2016

On 4/20/2016 Magistrate Kent set 4/29 as a hearing date on Lipscomb’s and Fernandez’s motions to withdraw in Malibu Media v. Raleigh. Six days later, on 4/26, Lipscomb asked the court if he could appear telephonically, partially because

Friday, April 29, is [Keith Lipscomb’s] birthday. An early evening birthday dinner has long since been scheduled and a number of out of town guests have made arrangements to attend same. Traveling to Grand Rapids will not only require a significant change of plans, but will also result in added expenses.

Today the defendant opposed:

However, there are a number of problems with Plaintiff’s counsel’s Motion which mandate his, and his co-counsel Jessica Fernandez’, attendance. First, any issue related to cost or inconvenience is caused solely by Plaintiff and its current counsel, Keith Lipscomb and Jessica Fernandez. Malibu Media is a California company which has hired Florida counsel to litigate a case in Michigan. If there is any economic hardship, it is willfully caused by Plaintiff’s own litigation model.

The defendant also indicated that he will oppose the motion to withdraw.

From here the plot thickens even more: Nicoletti suddenly popped up to test court’s gullibility. In his today’s notice he claimed that he ceased representing Malibu Media in June 2015, at the moment Lipscomb and Fernandez appeared pro hac vice (emphasis is original):

It is important for this court to note that when Mr. Lipscomb and Ms. Fernandez filed their appearances in this matter, that the undersigned ceased representation of the Plaintiff in this lawsuit. The formal filing of a Motion to Withdraw was an oversight. The undersigned attorney has no agreement to represent the Plaintiff, verbal, written, or otherwise.

Given that Nicoletti has a much bigger problem to worry about, I’d give him a benefit of doubt, albeit reluctantly. However, Lipscomb should have noticed and acted. This purported “oversight” greatly improves Lipscomb’s famous record of diligence and candor.

04/28/2016

Yesterday Raleigh’s attorneys Derek Wiczynski and Lincoln Herweyer field an opposition to Lipscomb’s and Fernandez’s motions to withdraw. The defendant asks an obvious question:

Obviously, if Lipscomb and Fernandez have a conflict that prevents them from continuing to represent Plaintiff in this suit, then that same conflict should prevent them from continuing to represent Plaintiff in any suit. Undersigned counsel are aware of only three cases (including this one) where Lipscomb and Fernandez have moved to withdraw. Perhaps those are the only cases where these lawyers have appearances, but in any event, it would seem to be an appropriate condition for granting their motions that they certify to this Court that they have moved to withdraw from every case in which they represent Malibu Media, and not just in those cases where dispositive motions are about to be heard or in which trials are looming.

Also, the defendant and his counsel were totally flabbergasted by Nicoletti’s apparently false claim that he ceased representing Malibu last year:

[…] Plaintiff’s Michigan-based attorney, Paul Nicoletti, never withdrew from this case, and has been served through the ECF system with all filings. After the filing of the motions now under consideration, Mr. Nicoletti contacted the undersigned, affirmatively stating that he would be the individual arguing on behalf of Plaintiff the three motions that are currently slated to be heard on May 2, 2016. More importantly, commencing on Thursday, April 21, 2016, Mr. Nicoletti engaged in negotiations (on behalf of Plaintiff Malibu Media) with Defendant (through counsel) regarding the settlement of the instant matter.

The defendant asks for an order requiring Malibu to post a $200K bond if the court extends deadlines due to Lipscomb’s motion to withdraw.

Today Magistrate Kent saved Lipscomb’s birthday festivities by allowing him to appear at tomorrow’s hearing telephonically. The judge added the following requirement in bold font:

Attorney Paul J. Nicoletti is required to participate in the telephone conference.

…and now Nicoletti moved to withdraw saying that

On April 26, 2016, at 12:58 p.m., the undersigned was discharged by the new Corporate Counsel for the Plaintiff.

I’m curious who this “new corporate counsel” is.

Followup

 


¹ Exhibits: A, B, C, D, E, F, G. Also notable is the defendant’s response to Malibu’s MSJ.

² …but not Nicoletti, who is, surprisingly, still a counsel on the record — despite the fact he will be tried for mortgage fraud in less than 2 months.

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Discussion

29 responses to ‘Blaming X-Art’s owners, Lipscomb wants to withdraw from Malibu Media representation in three cases

  1. Last minute filings again….day before deadlines. Wouldn’t be surprised to find that “Plainiffs misunderstood” and all is well with representation again. There is no way Lipscomb and company are going to give up the gravy train with X-Art/Malibu Media. If what they said were true – then wouldn’t they be withdrawing from ALL #MalibuMedia representation or Malibu Media getting a new law firm? Something does not fly right on this. Especially after the witness list missed and so many other deadlines being missed. Think they just needed a new excuse yet again, as the paralegal was to blame was getting old. If Malibu was the problem, they would have known they were the problem before the day before yet another deadline.
    Just my thoughts.

  2. In my opinion, I think these are cases where the trolls know there will be great scrutiny of their so called evidence, the german investigators and their methods and the magic box along with those signed declarations, and of course the findings of their expert and their experts credibility.

    If you recall in the INet case is AUS and Tobias Feiser’s testimony in the DBC cases their to start the litigation rolling, his testimony was a complete and utter failure as their were a lot of questions that a expert should have had answers to that he just didn’t have.

    I liken Lipscomb and fellow trolls envisioning a major problems ahead at trial, as much as they love to crow about how they are all geared up for trial , I believe this shows that is not the case. It’s a whole different beast when you have to put forth your evidence, methodology, experts and have them all testify how this works, how this conclusion was reached and have them testify to their knowledge and their credibility on the line. Obviously the trolls were afraid of it and want the fuck out not…no…not later …NOW!

    I am of the opinion the trolls like to be like the Big Bad Wold, and threaten to Huff, and Puff and blow your house down..of course we also know that much like the big bad wolf, they are full of a lot of hot air. In my mind they want to avoid having their so called expert testimony on record and their methods and so called magic box and how the conclusions obtained with it comes out and on the record.

    The trolls know full well if they lose and get hit with costs that other Doe’s and their lawyers will be all over anything that was entered into a trial and can be used against them, and they desperately want to avoid this at all costs and a Lamberson like fee award.

    It will be interesting to see what the Judges in these cases take will be in allowing the trolls to withdraw or not. I find it funny they only want to do this in the three cases where a real trial will be held and not the farce that the Bellweather trial was ( if you can call it that even ) The trolls are once again gaming the system if you want my opinion.

    I highly doubt we will see a mass exdous of the trolls out of Malibu cases, the money is too hard to walk away from. I think what we are seeing is the trolls will walk from just these three if they can, if not they may try and walk away and leave just local counsel to do the hitting for them while running things from the shadows.

    The trolls may have to sacrifice other cases in the district if they dont think the judge is buying it, but I think they will test the waters and see what the Judges do first. No way is this the end of the Malibu trolling collective, the trolls love that easy easy settlement cash and its too addictive to walk away from.

    Only if we witness a mass exodus across the US would I buy they really want out or unless they are getting leaned on by the US DOJ or IRS and a investigation is underway and they are scared of what might come of it. Otherwise I think this is to dodge a trial on the facts of their so called investigation and experts and methodology. The trolls know damn well they are going to have to bring their investigation methods and software, experts and evidence all to court and they’re is no way they wants that to happen, so this is them trying to cut and run.

    What you smell in the air is fear and desperation to avoid having their case scrutinized, the trolls know they woulnd’t survive it, and they aren’t about to chance it. We will see what happens, but I predict they wont run from cases all over the country, just the few that they know they are in trouble in. Question is will the judge allow it when the defense pints out they are still counsel to thousands of cases all over the country

    • “Question is will the judge allow it when the defense pints out they are still counsel to thousands of cases all over the country”

      That’s a really good question! In a normal situation, can a law firm disengage from some cases but not others? Wouldn’t their avowed reasons, “The client isn’t doing what they agreed to” and “The client is making this unreasonably difficult” apply to all their interactions?

      The more I think about it, the more incredible it sounds. Are they sitting around a table working amiably on other cases, but not mentioning these three? How could that be?

  3. My guess is that Malibu Media’s principal, Colette, is pulling a Diva move and simply refusing to attend judicially ordered settlement conferences. In the past we have seen Lipscomb maneuver to avoid having Colette personally appear at other settlement conferences. Might be just as simple as that.

    • Could Colette not want to demean herself and have to mingle with the lower class while at a settlement conference and find that beneath someone of her stature…sure.

      I would find it hard to believe that She and Brigham would put the revenue from trolling at risk, I am sure it is a healthy chunk of change and contributes more to their bottom line than their shitty website and bland movies do income wise.

      I am still of the opinion this is a way to stall or dodge having to turn over items to the defense via discovery that the trolls know they can not hide forever, even though I believe we would see every trick to stall that they can find ( which is what this is ) I think what we are seeing is more a dispute over how to get out of the mess that they created without getting hit in the wallet hard.

      One would have to think that maybe the trolls thought the hardball tactics and weight of expenses to a Doe and his lawyer would break them so they would be desperate to take a walk away to stop the bleeding financially, but maybe the trolls over played their hand here.

      We all know what happened in Lamberson and the chance that a Lamberson like fee award in these three cases would add up to a pretty good hit for the trolls ( now we all now they have raked in way way more than this and could afford to incur a hit from this, but they sure dont want to )

      I just dont see Lipscomb or Colette / brigham putting the revenue at risk from the trolling game, now when they have made such a good chunk of change from it. time will tell of course

  4. No matter the reason, this isn’t good for them at all. What this appears to be is some “fine print” contractual disagreement between Troll Lipscomb & Colette/X-Art AND Lipscomb is trying to use it to avoid the pending ass kicking in these cases. An “In Camera” disclosure to the judge…. HAHA. Lipscomb doesn’t want his dirty little secrets to get out. Why??? It isn’t just “privileged,” it is damaging to all future operations. I wonder if Lipscomb has been trying to get Colette to settle (Pay the defendants), but the price is too high for her to swallow. If it is the contract that they settle per Troll Lipscomb’s direction, it could allow him to back out. BUT, I don’t know how legal such an agreement between an attorney/client is. Still it is funny as hell and I hope the judge has an in camera interview and then tells Lipscomb to piss off. More chinks in the armor.

    DTD 🙂

  5. Not a lawyer here, but here’s one possible interpretation.

    Act one: Lipscombe and company realize they and their client could get into serious trouble with the courts on these three cases if they pushed any further, and make that known to their client.

    Act two: the client in question insists on moving forward.

    Act three: Lipscombe and company, finally showing enough sense to qualify as a doorknob, decided to run for the nearest exit.

    • I think the scenario is more like this:

      Lipscomb opens his mouth when the defense was willing to settle for reasonable current expenses, and tells the defense their client is going to be destitute when the case is over.

      Lipscomb and MM realize that now they are going to wind up paying a lot more, that they were originally going to have to pay.

      Lipscomb wants MM to share in what will need to be paid, but Colette tells him it was his big mouth that got us here, you pay it.

      Either that, or it was the only way they could figure out to delay again. 🙂

      • I’m not sure I agree here.

        My whole reasoning stems from the (possibly incorrect, I admit) notion that even Lipscombe is able to realize that they have not just no evidence of wrong-doing, but actual evidence of the defendants innocence.

        And it’s very easy for anyone, even a non-lawyer like myself, to realize they could get into some serious trouble with the courts if they continue. I think the technical term is something like ‘vexatious multiplication of the proceedings’ or ‘litigation in bad faith’, or something on those lines. Isn’t there a rule, even, that says in effect, you have to have at least some kind of grounds to sue before you even file the case?

        • My post was based on the fact that Lipscomb has never let a little thing like evidence get in the way of his ego causing his mouth to say something that gets him in trouble. I thought it was in the Raleigh case here that he made a statement almost exactly as I stated, but it could have been a case with similar lack of evidence for the plaintiff that I am remembering.

  6. Today in Vandenheuvel the judge struck Lipscomb’s motion to withdraw for failure to comply with local rules: no allegation of giving 10 day notice to Malibu Media and no allegation of conferring with local counsel prior to filing the motion to withdraw. Amateur Hour stuff which suggests to me the motion was a rush job.

  7. Two of the three cases above have cross-motions. Trolls need to wiggle away from that as quickly as possible or they will be at peril. Might be getting too hot in the kitchen for Lipscum, so he’s trying to cut his losses and run, leaving X-Art on the hook.

    X-Art is expendable to the Germans, they can find another porn purveyor to perpetuate the scam. Lipscum is also expendable to the Germans, and he might be seeing the writing on the wall. The Germans will push and perpetuate the scam until it stops making money, letting their American representatives suffer the legal consequences while they laugh all the way to the bank.

    X-Art and Lipscum are disposable to the Germans.

  8. I see the motion to withdraw has also been denied in Weaver for failure to follow the local rules. Like in Vandenheuvel they are allowed to revise it to comply and refile.

  9. It seems that there is a genuine crack in the relationship between Colette and Lipscomb, so it is very unlikely that they colluded to play a comedy only to derail inevitable trials. The most plausible scenario is that Lipscomb’s promise to Colette that she would do nothing and only collect checks was not absolute. I.e. the contingency agreement was valid only up to a certain point (for example, summary judgment). So, with many cases now heading to trial, it is plausible that Lipscomb demanded that Colette should open her purse, and she angrily refused.

    This is just another theory, but it was independently suggested by a couple of attorneys, so I assign a higher weight to it. Still doesn’t explain why we don’t see the same attempt to withdraw in the Ricupero case.

    It can be more than one reason. The fact hat Lipscomb fears the prospect of a jury trial doesn’t contradict this theory.

    • But is Lipscomb an attorney of record in Ricupero? I thought Yousef, although a Lipscomb pawn was by himself on that one.

      • Emilie Kennedy is on the record there (pro hac vice).
        In Raleigh, both Keith Lipscomb and Jessica Fernandez are on the record — both moved to withdraw.

  10. I’m wondering if Lipscomb is paid on contingency, and doesn’t wish to risk the likely loosing costs of going to trial and the liability of the defendant being awarded court costs, but is on the hook as the attorney of record to see these cases through, an obligation which his masters don’t wish to let him of. I would think he would just want the easy money of extorting purported pirates rather than the harder, riskier path of actually getting rulings on the merits when faced with well prepared, competent opposing council.

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