More Sanctions Issued Against Team Prenda

from the get-those-appeals-warmed-up dept

Late last week we noted that Judge Edward Chen was becoming as suspicious of Team Prenda as Judge Wright, and so it didn't take long for Judge Chen to add to the pile of sanctions against the key players, this time ordering another $22,531.93 in legal fees to Joe Navasca. Judge Chen's order is short and to the point, making the case that the lawsuit itself was "frivolous and objectively unreasonable" on a variety of fronts:
  • The forged signature of Alan Cooper: "the signature by Alan Cooper appears to have been a forgery, as Judge Wright concluded in his recent sanctions order." Chen notes that Prenda/AF Holdings denies this, but points out that their only argument against all of this is "sheer speculation.'
  • The claim against Navasca "was not based on an adequate factual investigation." Chen points out how ridiculous it is that Prenda claimed Navasca was the likely culprit because he worked in tech support, noting "one does not need to be tech savvy in order to download information from a computer."
  • "AF filed an emergency motion to compel... even though, at the time it filed the motion, Mr. Navasca's discovery responses were not even due yet."
  • Judge Chen notes that Prenda/AF Holdings argued that the reason it tried to dismiss the case and get out of it was because of the Court's "undertaking ruling" against it, but if that were true, you'd think they would have asked the court to reconsider. Yet, as Chen notes: "AF filed an emergency motion to compel, see Docket No. 38 (motion), even though, at the time it filed the motion, Mr. Navasca's discovery responses were not even due yet."
  • The whole argument about how Navasca spoliated evidence using CCleaner was a complete joke. Noting that Prenda "has offered no real support for this claim." And, worse, even though Prenda lawyers had been told by a judge to investigate "the purpose and effective of CCleaner" they, of course, did "not appear to have done anything" along those lines.
  • The real kicker. Judge Chen notes the real reason that Prenda sought to dismiss the case: the absolutely devastating deposition of Paul Hansmeier in this Navasca case is what pushed Judge Wright over the edge in the central district of California, after Hansmeier put on a ridiculous performance and more or less cemented the clear point that Prenda was up to no good.
Given all that, it's not difficult for Judge Chen to add to the growing line of monetary sanctions against Team Prenda:
AF's motivation to bring suit is problematic given its apparent lack of standing. Furthermore, even if AF did have standing, the fact that someone may have illegally downloaded the copyrighted work does not justify AF's decision to sue Mr. Navasca specifically. As discussed above, the factual investigation done by AF prior to identifying Mr. Navasca as the alleged infringer was inadequate. Furthermore, as indicated by the findings made by Judge Wright in his case, AF does not appear to have been motivated to file suit in order to protect the copyrighted work at issue. Rather, AF's business model was to sue people for downloading pornography in order to coerce settlements.

For the above reasons alone, the "motivation" factor weighs strongly in favor of Mr. Navasca, and against AF. However, one final consideration has been offered by Mr. Navasca, which raises even more concern on the part of the Court with respect to AF's motivation. More specifically, Mr. Navasca has offered evidence – the Neville declarations – which indicate that persons affiliated with AF used the alias "sharkmp4" to post links on the Pirate Bay website to many of the copyrighted works in order to induce users to download the works so that they could then be sued for copyright infringement. This evidence corroborates Judge Wright's finding that the motivation for this and similar suits is to sue and coerce settlement.
As for Prenda swearing up and down that the Neville declaration is wrong, Judge Chen isn't buying it. If Neville is wrong, he points out, you'd think that Prenda would present some counter-evidence. But they don't, other than to try to attack Neville's reputation.
The Court acknowledges that AF has in its brief attacked the Neville declarations as unreliable on various grounds – for example, because the opinions contained therein are offered by an individual who has not been qualified as an expert; because the original declaration was secured by an attorney of purportedly questionable ethics; because the methodology employed is problematic; and because the opinions are qualified (e.g., finding it probable or likely that persons affiliated with AF were responsible). But notably, what AF has not done is offer any counterevidence such as a declaration from Mr. Steele in which he denies that he is "sharkmp4" or other evidence that AF did not take steps to induce users to download the subject works. This evidence could easily have been offered by AF as a part of its opposition brief. AF's failure to submit any factual denial under oath is telling.
The end result:
the Court grants Mr. Navasca's motion for fees and costs and awards fees in the amount of $19,420.38 and costs in the amount of $3,111.55. The total award is $22,531.93.
This is slightly lower than Navasca asked for. The court cut 5% off the amount requested, because of the possibility of some slight overlap with the work done by Navasca's lawyers, Nick Ranallo and Morgan Pietz, on other similar Prenda cases. Still, the bill for Team Prenda keeps rising.


Reader Comments (rss)

(Flattened / Threaded)

  •  
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    madasahatter (profile), Jul 22nd, 2013 @ 3:35pm

    Ouch

    Prenda better have all their assets in the correct foreign countries if they want to ever see them.

     

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    out_of_the_blue, Jul 22nd, 2013 @ 3:40pm

    I'd like to know whether they aren't still WAY ahead, though!

    Bet if Mike would give us the overall score, you could all be REAL upset that crime DOES pay.

    By the way, for those who think I'm defending these lawyers merely because the details are boring: I find these mere civil money penalties MUCH too lenient; they should already be in jail.

    Interesting question: does Mike believe they should be jailed? Hasn't called for it that I've seen, just reports. Discuss.

     

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      S. T. Stone, Jul 22nd, 2013 @ 3:51pm

      Re: I'd like to know whether they aren't still WAY ahead, though!

      I think everyone involved with Prenda should at least lose their license to practice law in any state.

      As for jail time…well, Prenda’s key players did forge signatures and perform other potentially felonious acts in an attempt to use the legal system as a shakedown tool and make an easy buck or two (million), so you tell me.

       

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      Benjo (profile), Jul 22nd, 2013 @ 3:52pm

      Re: I'd like to know whether they aren't still WAY ahead, though!

      The shakedown is a pretty tried and tested form of extortion, and I'm sure it would pay if they got away with it (I'm also sure there are many that ARE getting away with it).

       

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      John Fenderson (profile), Jul 22nd, 2013 @ 4:02pm

      Re: I'd like to know whether they aren't still WAY ahead, though!

      Interesting question: does Mike believe they should be jailed?


      More interesting question: Why would you think that's an interesting question?

       

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        Pragmatic, Jul 23rd, 2013 @ 5:58am

        Re: Re: I'd like to know whether they aren't still WAY ahead, though!

        Tax evasion is more likely to get them jailed than extortion charges, but I won't object if you say I'm wrong about it, John.

        Whether or not Mike believes they should be jailed is irrelevant to this discussion. I think the idea is for Cathy to find a reason to argue with him, even if it's indirectly. Is she really that desperate for his attention?

         

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      Anonymous Coward, Jul 22nd, 2013 @ 4:52pm

      Re: I'd like to know whether they aren't still WAY ahead, though!

      "[We've made] more than a few million dollars."

      -- John Steele, during Forbes magazine interview with Kashmir Hill, October 15, 2012

      Maybe still ahead, maybe not. Assuming the Forbes magazine article is truthful, still ahead.

       

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        Anon E. Mous (profile), Jul 22nd, 2013 @ 5:16pm

        Re: Re: I'd like to know whether they aren't still WAY ahead, though!

        They were ahead for a time. Lets see what happens when the IRS starts asking were all the undeclared cash went since Prenda says they don't have any money but Hansmeier in his deposition said it was in Prenda accounts to pay for future litigation.

        Should be most interesting if their is a RICO investigation taking place.

         

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      Wally (profile), Jul 22nd, 2013 @ 5:46pm

      Re: I'd like to know whether they aren't still WAY ahead, though!

      Outside the jabs at Mike...they will be punished. It just takes a long time OOTB. The more crap Prenda tries to pull, the longer the investigation will take that would lead to total disbarment.

       

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        Anonymous Coward, Jul 23rd, 2013 @ 3:33am

        Re: Re: I'd like to know whether they aren't still WAY ahead, though!

        The mill of justice grinds slowly, but it does grind...

         

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        Edward Teach, Jul 23rd, 2013 @ 7:23am

        Re: Re: I'd like to know whether they aren't still WAY ahead, though!

        I'm wondering if Prendapeople really will see punishment. Personally, things like the OJ Simpson trial, the Rodney King beating trial, the JonBenet Ramsey investigation farce, and others have all eroded my faith in the US Justice system, especially at the Federal level.

        It seems like if you can put together a big enough circus, you can get away with just about anything. The only reason folks get punished by the Feds is if they don't have the resources to bring in enough clowns, dancing bears, talking heads and Right Wing Pundits to clound the air.

        Also, there's that traditional Judge/Attorney protectional relationship here. Unless Prendapeople actually damage the legal profession itself, they're unlikely to be charged. Sort of like how unless some cop publicly embarasses a PD, they don't get charged, either. Wink wink, nudge nudge.

         

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    Ben (profile), Jul 22nd, 2013 @ 3:53pm

    What is the likelihood?

    A question for the law-literate: what is the likelihood that Prenda/AF Holdings will actually be forced to pay? With Judge Wright they're forced to submit a bond in order to continue their case, but if this is the end of the road for this case, then if they don't pay it just leaves Navasca in the position of spending time/money to collect the debt.

    Presumably failure to pay could be used to prevent them from being able to practice law in California, but I'm wondering what the likely sanctions will be.

     

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      That Anonymous Coward (profile), Jul 22nd, 2013 @ 3:57pm

      Re: What is the likelihood?

      Well it has already been stated that the copyrights they hold are all but worthless, so I doubt anyone will be looking at those.

       

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    Raul, Jul 22nd, 2013 @ 4:12pm

    Pierce the Corporate Veil

    In earlier filings Ranallo has indicated that he will pursue this mercilessly until he extracts from these scumbags the only thing that matters to them: money. Undoubtably that will include an effort to pierce the corporate veil of AF Holdings so as to go after the individuals. Whether he will be successful with a Nevis based shell corporation remains to be seen.

     

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    identicon
    Anonymous Coward, Jul 22nd, 2013 @ 4:33pm

    "omg prendaaaaa, derrrr!!!!!!"

    My impression of Mike.

     

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    Anonymous Coward, Jul 22nd, 2013 @ 4:41pm

    Derp!!

     

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Jul 22nd, 2013 @ 5:03pm

    Oh lookie, Mike "The Censor" Masnick is pretending like he has no idea how my posts are being routed to his spam filter based on MACs, IPs, keywords, and links that I use: http://www.techdirt.com/articles/20130716/16411823827/judge-aereo-case-was-decided-incorrectly-becau se-i-dont-like-previous-ruling.shtml#c2296

    And Mikey is pretending like he has no idea who this is criticizing him--despite the incredible lengths he's gone to to silence this critic and despite the fact that pretty everyone else here knows who this is.

    My response to Mikey's denial: http://www.techdirt.com/articles/20130716/16411823827/judge-aereo-case-was-decided-incorrectly-becau se-i-dont-like-previous-ruling.shtml#c2298

    Will Mike ever address directly why all my posts were being routed to the spam filter? Or will he go on lying and pretending like he has no idea how it's happening?

    Stay tuned, folks. Your Dishonest Leader is really showing us just how dishonest he is. It's quite remarkable to me that he can walk around like that. I'd feel too guilty being so dishonest all the time. I wouldn't be able to respect myself.

     

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    •  
      identicon
      Anonymous Coward, Jul 22nd, 2013 @ 5:14pm

      Re:

      ANd yet here you are still post here despite being "censored".
      Yuu'd think mike would delete your post by now if you were being censored

      If censorship really is your problem then complain to the tightly controlled copyright maximist blogs where opposing views NEVER show up.

       

      reply to this | link to this | view in chronology ]

      •  
        identicon
        Anonymous Coward, Jul 22nd, 2013 @ 5:27pm

        Re: Re:

        Well since my first comment passed and I was pretty goddamn direct I think you're lying to us. You're just pissed because Mike owned your bitch ass.

         

        reply to this | link to this | view in chronology ]

    •  
      identicon
      Anonymous Coward, Jul 22nd, 2013 @ 5:25pm

      Re:

      Mike Masnick fucking sucks!


      Hmmmm the spam filter must be broken.

       

      reply to this | link to this | view in chronology ]

    •  
      icon
      Anon E. Mous (profile), Jul 22nd, 2013 @ 5:25pm

      Re:

      Obviously your either a Prenda hack or your poor old John Steele feeling a little butt hurt that people don't like you much.

      Your pal out of the blue and you still don't get it, your posts have the same vitrol in them without an substance of why the courts and opposing defense counsels are wrong in finding against Prenda and issuing sanctions and monetary penalties.

      You haven't put forth a concise argument about the facts, just how you fell Steele is a victim here. No one really believes John is a victim of anything here except his own greed and his abuse of the law and his oath as an officer of the court.

      John Steele is not victim but he has made sure to leave a lot of them out there who were scared into paying a settlement even if they didn't do it, to avoid having their name dragged into a lawsuit that most probably couldn't afford to fight.

      So if you wants absolution for John Steele, you ought to go find a priest because you are not going to get it from many folks here

       

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    •  
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      Benjo (profile), Jul 22nd, 2013 @ 5:25pm

      Re:

      You seem to be getting worse and worse and derailing conversations.

      Great job making it through the Great Firewall of Mike though.

       

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    •  
      identicon
      Anonymous Coward, Jul 22nd, 2013 @ 6:52pm

      Re:

      You have zero credibility.

       

      reply to this | link to this | view in chronology ]

    •  
      icon
      WDS (profile), Jul 22nd, 2013 @ 7:30pm

      Re:

      Could you answer one simple question. If you are being censored, why am I still able to read your stupid post?

       

      reply to this | link to this | view in chronology ]

    •  
      identicon
      Edward Teach, Jul 23rd, 2013 @ 7:28am

      Who are you?

      AC writes: " the fact that pretty everyone else here knows who this is."

      I'm not sure who you are. Average Joe? The Anti-Mike? OOTB-1?

      Please, register as a user under some pseudonym, and consistently use it. I bet that if you make an argument that doesn't boil down to "I'm right, and you're wrong", you won't get downvoted.

      The above comment, the one I'm responding to, is little more than ad hominem attacks. I think folks are justified in reporting it. It's pure insults, nothing substantive.

       

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    •  
      identicon
      Ruben, Jul 23rd, 2013 @ 8:43am

      Re:

      Seems to me that it's working exactly as intended.

       

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    steell (profile), Jul 22nd, 2013 @ 5:04pm

    Why not RICO?

    Not a lawyer, but it seems to me that Prenda and those associated should be facing RICO charges. US Attorney's Office is looking into it I'm sure.

     

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      Lurker Keith, Jul 22nd, 2013 @ 8:37pm

      Re: Why not RICO?

      But Judge Wright has accused them of RICO. He sent orders to the Feds & specifically mentions RICO charges appear to be appropriate. The wheels of Justice grind slowly, but they grind all the same. We just have to wait for the investigation to become public.

      He also sent stuff to the Criminal Division of the IRS, for good measure.

       

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    Anon E. Mous (profile), Jul 22nd, 2013 @ 5:12pm

    Judge Chen I believe has always had the notion that AF holdings and Prenda were operated by the same people ever since the Salt Marsh ADR signature fiasco.

    Judge Chen despite letting Prenda go about that Salt Marsh ADR signature knew Prenda was playing games with him in regards to that issue.

    When the case came back before him with some of the updated information from Judge Wright's order and the information from Ranallo, Judge Chen knew he had more than sufficient grounds to take Prenda to task.

    With Judge Wright's order and Judge Chen's sanctions, there are going to be a lot of other defence filings in other Prenda cases around the U.S. as more fact of what Prenda is really doing in regards to their so called litigation of copyright enforcement.

    This should be interesting for the Georgia case and the Arizona case, as those Judges have put forth questions to Prenda's craigslist hired attorneys about who is behind some of those entities and the litigation.

    It seems Mark Lutz who made the rise from John Steele's paralegal to AF Holdings CEO and Owner for no financial compensation at all seems to be a fugitive from the law in a couple of states.

    You should definitely read the article about it at FCT

    http://fightcopyrighttrolls.com/2013/07/18/wanted-a-fugitive-named-mark-lutz/

    Judge Chen's ruling will know doubt be interesting to a Grand Jury in a RICO investigation and will be another tool for the IRS Criminal Division investigation.

    Then you have Gibbs who has nothing to lose by being a witness in a federal RICO investigation after Steele's fragile ego got butt hurt when Gibbs wouldn't take the fall for Team Prenda, Gibbs may be looking to help investigators from the IRS and Federal Prosecutors to save himself and his law license.

     

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  •  
    identicon
    Anonymous Coward, Jul 22nd, 2013 @ 5:45pm

    "Sanctions" -- what a weird word

    It means both "approval" and "coercive penalty".

    But is the awarding of "costs" and 95% of lawyers fees "sanctions" (in the latter sense)? Yes, according to some sources, but so is the dismissal with prejudice.

    http://en.wikipedia.org/wiki/Sanctions+%28law%29

    Alternately, some people may want to refer to only FRCP 11(c) awards as "sanctions" in which case this cost-shifting exception to the American default in 17 USC §505 does not exactly apply.

     

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    identicon
    Anonymous Coward, Jul 22nd, 2013 @ 6:15pm

    What's Prenda? OH WAIT, NOBODY CARES

     

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      Anonymous Coward, Jul 22nd, 2013 @ 9:30pm

      Re:

      Everyone cares. They're copyright's best and brightest defenders and enforcers. They're going to show that filthy Otis Wright what for!

       

      reply to this | link to this | view in chronology ]

    •  
      identicon
      Anonymous Coward, Jul 22nd, 2013 @ 11:51pm

      Re:

      Horse-with-an-Average_OOTB only want selective IP Laws to be enforced.

      When someone makes a copy of a $0.99 song, they want the person to have their lives ruined and made to pay $150,000.

      When someone commits perjury on a copyright, they do NOT want their IP Maxamalist paymasters to be on the hook. It is just an anomaly.

      When an IP Maxamalist commits fraud & extortion, it is just a Business model.

       

      reply to this | link to this | view in chronology ]

  •  
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    Spaceman Spiff (profile), Jul 22nd, 2013 @ 6:27pm

    Gotta ask again...

    So, for the nth time, I have to ask - when are these asshats going to lose their licenses to practice law?! Sanctions? Costs? Heck, until they realize that they are going to be living under a bridge somewhere, they will not stop their egregious behavior!

     

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      Spaceman Spiff (profile), Jul 22nd, 2013 @ 6:28pm

      Re: Gotta ask again...

      Oh! Oops! As trolls, they must ALREADY live under a bridge! :rolleyes:

       

      reply to this | link to this | view in chronology ]

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      apauld (profile), Jul 22nd, 2013 @ 11:10pm

      Re: Gotta ask again...

      The wheels of justice sometimes move slowly. When moving slowly there is much less chance of the guilty getting away. These judges' know what they're doing, by taking it slow (crossing all the t's and ignoring John Steele's outbursts), they know these guys will eventually get what they've earned. And because they took their time, it will stick.

       

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    identicon
    Duffy sucks, Jul 22nd, 2013 @ 9:32pm

    Duffy is broke

    With all these investigations and sanctions, I Can't believe Shari Duffy could become that family's breadwinner. Her crappy "fashion events" suck.

     

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      apauld (profile), Jul 22nd, 2013 @ 11:27pm

      Re: Duffy is broke

      Shari had this to say recently on he fb page "Finally snapped and had the "teeth" talk last night with my girls. I asked the girls if they wanted everyone to think they were really poor or just extremely dumb when they were older? Because clearly we can afford a toothbrush and paste and mouthwash at the very least. If they end up with horrible yellowed teeth with cavities and plaque and bleeding gums it is because they were too dumb to know how to use these items. I then explained I will eventually be poor if we continue with our $1000 cavity bills vs. a $200 cleaning bill. I think there is NO EXCUSE for gross teeth...crooked maybe, but not gross."

      I'm thinking she should tell the kids that "yes, eventually you're teeth will be gross, because in two or three years, daddy will be some bulls' prison bitch."

       

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    identicon
    Anonymous Coward, Jul 23rd, 2013 @ 2:21am

    The joke is on all of you. Why? They can still practice and sue, and they're still costing tax payers thousands of dollars per "episode". Great legal system, really.

     

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    Duffy sucks, Jul 23rd, 2013 @ 9:16am

    From Facebook

    Here's another gem from Mrs. Duffy from this morning. Looks like she's charging Mr. Duffy for some action. So sick.

    "Is it wrong to try to charge your husband $200 for a co-ed shower? I'm thinking about it......"

     

    reply to this | link to this | view in chronology ]

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    Matthew Cline (profile), Jul 23rd, 2013 @ 4:21pm

    The whole argument about how Navasca spoliated evidence using CCleaner was a complete joke. Noting that Prenda "has offered no real support for this claim."
    They did a horrible-to-non-existent job of presenting their position, but I think that their position is that if the defendant has software which is capable of spoliation then spoliation is to be assumed, full stop, regardless of any other circumstances or context, and it's then up to the defendant to prove that spoliation didn't happen.

     

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      Anonymous Coward, Jul 26th, 2013 @ 7:53am

      Re: assumption of spoliation

      Having a tool installed does not demonstrate the tool was used in a bad way, nor does it shift the burden, in my opinion. In this case the very issue of whether the defendant is the person who initiated the use of bittorrent on this particular swarm is at issue with no demonstration that this machine was at issue.

      If the defendant has no expectation of being sued, for example by being completely innocent, then the defendant has no basis to alter his software suite. Likewise there is no need to remove a periodic cleaning job if by inadaquate investigation one cleaning pass has been made already between the time of the murder and associated fingerprints and the time the defendant was put on notice that the room wants to be checked for fingerprints -- the defendants love of cleanliness doesn't make his room the murder site on the plaintiff's say-so.

      While CCleaner can wipe a hard drive, so can a cleaning crew bleach a room and set it on fire if so ordered. The existence of the first doesn't demonstrate the second.

       

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    identicon
    Anonymous Coward, Dec 8th, 2013 @ 7:53pm

    darryl, average_joe and horse with no name all just hate it when due process is enforced.

     

    reply to this | link to this | view in chronology ]


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