Today one of the defendants in Clear Skies Nevada v Does 1-30 (ILND 15-cv-06708) filed a third-party class action complaint against the plaintiff (CSN), two copyright troll attorneys from a Chicago mid-sized lawfirm “Hughes Socol Piers Resnick & Dym, Ltd.” – Michael Hierl and Mark Cisek – and two Guardaley’s “experts”: a fictional character Darren Griffin and a German national Daniel Macek:
[…] Plaintiff uses German corporations and/or German nationals, claiming they possess “expert qualifications” they do not, so as to complicate and discourage depositions and discovery. […]
The complaint is kind of emotional: the defendant’s attorney Lisa Clay tells a gruesome story of her client – a 62-year-old African-American lady of very modest means (“She lacked the financial means to obtain proper medical treatment for her symptoms”) and two ethically challenged attorneys, who harassed her for months, trying to extort a couple of thousand dollars from her, threatening with a possibility of insane maximum statutory damages ($150,000) – all without sufficient evidence:
Hierl and Cisek, with the knowledge and consent of co-conspirators CSN and German John Doe [Griffin/Macek], and more importantly, with the knowledge that evidence provided by German John Doe is insufficient to meet evidentiary standards, filed suit against 360 anonymous Does in seven cases filed on June 29, 2015 and eight cases filed on July 31, 2015.
In the beginning, the defendant understandably thought that she was a target of a scam, failed to respond to the allegations¹, and default was entered against her. This default was later set aside, and the Answer was filed yesterday.
Accusations presented in this complaint are hardly new to the readers of this blog. The defendant alleges a conspiracy to improperly prosecute copyright infringement (including theft by deception, deceptive practices, barratry, and maintenance). The defendant claims that the Germans seeded the allegedly infringed film Good Kill – a kind of an allegation that resulted in a criminal indictment against copyright trolls John Steele and Paul Hansmeier.
Upon information and belief, CSN, German John Doe(s), or one of his/her/their agents seeded a copy of Good Kill after copyright protection was requested, but before the movie was released in American theaters. The date on CSN’s Certificate of Registration is February 27, 2015. The first date of alleged infringement on an exhibit is April 4, 2015, at least a month before the movie was released in theaters.
Upon information and belief, CSN and its co-conspirators intentionally released Good Kill into the bit torrent environment knowing, authorizing and inviting its copying and distribution.
Interestingly, the complaint hints that the trolls purported to drop the claims exactly because of the Prenda indictment:
On or about December 19, 2016, several days after indictments of Paul Hansmeier and John Steele had been announced, Hierl approached the undersigned about settlement. Attorney Clay reminded Attorney Hierl that her clients had no money. Hierl suggested, “[m]aybe we can work something out for those who don’t steal with impunity.” (Clay Declaration, ¶ 8)
Michael Hierl is one of the most odious figures in the Guardaley racket, believed to be a senior member of the gang. His name can be found on a couple of copyright registrations of the movies used in the shakedown. The firm Hughes Socol Piers Resnick & Dym has been in the business of extorting Illinois residents since 2012, and it is tainted by the Griffin fraud: dozens of forged declarations were filed with the ILND court by its attorneys Michel Hierl, Todd Pankhurst, and Karyn Bass Ehler (who left the firm two years ago). This firm filed 451 shakedown cases, all against multiple defendants, robbing Illinois residents of millions, a lion share of which was transferred to a foreign cartel.
The complaint features many exhibits (see the docket), including my 2014 story about Gurdaley’s “Devil’s cookbook” – a leaked presentation describing the mechanics of the international bittorent racket. Also, I’m happy to learn from the complaint that Ms. Clay has been in touch with one of the most knowledgeable bittorent defense attorneys, Chris Lynch of Spokane, Washington: just recently I wrote about his promise to expose fraud, which resulted in a hasty dismissal of his clients.
A class action lawsuit is a complex and uphill battle. In the history of copyright trolling we witnessed only a few: Dmitry Shirokov v DGW, which was somewhat successful, Jennifer Barker v Patrick Collins et. al. (which was not). Last year Rightscorp agreed to settle for $450,000 in another bittorent-related class action. That’s all I’m aware of.
Watching how the Northern Illinois District has been allowing the slow chronic trolling disease to linger, I grew skeptical about a possibility of any improvement anytime soon. However, I still hope that this action will be successful, because it’s about time: as I recently wrote, “[Steele & Hansmeier’s indictment] resurrects my hopes that this judicial plague is curable.” Needless to say, I will be closely watching this case and report on developments.
Yesterday the defendant decided to voluntarily dismiss her third-party class action complaint, as well as and counterclaims.
At a status [hearing] on January 4, 2017, Judge Kendall advised the parties that she does not believe the counterclaim or third-party complaint arise from the infringement case, and suggested to both parties that they “determine whether [there is] an appropriately filed third party complaint.”
The undersigned does not wish to waste the time and resources of the court and counsel with fruitless motion practice. Rather, the undersigned represents that she prefers to invest those resources into meeting the deadlines set by Judge Kendall at the January 4, 2017 status.
It was not a surprise, given the judge’s annoyance at being dragged into an “international conspiracy dispute,” and possibly procedurally deficient approach that the defendant chose to attack the crooks. Uphill battles are noble, but when the chances of winning are slim, it is wise to step back and regroup.
Although disappointing, this defendant’s decision doesn’t mean that the complaint claims are valid, and I hope that this (or a different) defendant initiate another, legally sound, class action against the shakedown artists in the foreseeable future.
In any case, the complaint attracted a lot of public attention to the ongoing abuse, which is always good. Especially in the post-Prenda-indictment era.
I’m not breaking any news by telling you that copyright trolls always try to cut and run when they encounter a fighting defendant. So, 100% predictably, the troll dismissed Ms. Hancock on 4/27/2017: of course without prejudice – to avoid compensating the victim. The defendant opposed on 5/11/2017, arguing that the dismissal must be with prejudice and that she is entitled to attorney’s fees. Three month later, she decisively won: on 8/23/2017 Judge Virginia Kendall sided with the defendant in a damning Memorandum and Order.
[…] the Court dismisses this case with prejudice and orders an award of attorneys’ fees to be determined upon receipt of further briefing.
Pity that the judge stopped short of referring the plaintiff and its attorneys to the DOJ for prosecution. However, it is a very significant order that deserves a separate blog post, but I’m currently don’t have enough bandwidth for a better analysis. I’m sure others will cover this news in greater detail.
Kudos to Lisa Clay for a great fight she gave for her client and for the cause of fairness and basic human decency.
(Hat tip to Raul)
- Copyright troll dismissed mass bittorent case after defendant moved to learn who his co-defendants are
¹ The complaint states that “[…] internet research suggested that Hierl was a troll attorney, and based on advice on various blogs and websites, the Hancocks decided to ignore the letters.” Frankly, I’m not aware of major “blogs and websites” that would give such an ill advice. Maybe there are some (Reddit?), however, both this blog and DieTrollDie’s never advised to ignore court papers.