EFF Slams Righthaven CEO For Pretending He Can Ignore Court Orders

from the contempt-of-court dept

We recently wrote about Righthaven CEO Steve Gibson’s bizarre claim that a court order directed at him is inapplicable because he’s just the CEO, and the company’s own lawyers (who he blames everything on) won’t return his calls. Now the EFF (who is representing Thomas DiBiase in the case) has filed a response (pdf) in which they highlight how positively insane it is for Gibson to pretend that, as a CEO, he can avoid responding to court orders directed as a company. The whole thing is worth reading — these are just a few good snippets (it was tough to narrow it down to figure out which ones to quote):

Mr. Gibson’s claim that he has “not heard from Righthaven’s legal counsel [Mr. Mangano] since February, 2012,” and that Mr. Mangano has simply disappeared is similar to Mr. DiBiase’s experience.2 Resp. at 3. However, it is quite perplexing in light of Righthaven’s consent to the withdrawal of attorney Dale Cendali just last week in Righthaven v. Democratic Underground, Case No. 10-cv-01356-RLH-GWF (Dkt. 186) (March 21, 2012), knowingly leaving that case solely in the hands of Mr. Mangano. Presumably Mr. Gibson, as a responsible CEO, would not give that consent knowing it left Righthaven without representation.

[….]

Mr. Gibson asserts Righthaven lacks the funds to order the transcript. Resp. at 6, n.5. Mr. Gibson does not provide any evidence to support his claim of no funds (the very evidence sought by the underlying February 7 Order). To the extent that Mr. Gibson is attempting to belatedly assert an impossibility defense, he has utter failed to show “categorically and in detail” why he is unable to comply…. Even accepting that “Righthaven currently has no revenues.” … this does not mean it has no assets or access to funds. Indeed, Mr. Gibson specifically states there is “no reason to believe that one or more of Righthaven’s parents would not continue to make capital contributions….” Mr. Gibson is obliquely referencing himself. As noted previously, Righthaven’s Bank of Nevada statements show that Mr. Gibson has been personally funding Righthaven to keep its balance just above zero.

Moreover, Mr. Gibson admits that Righthaven had access to sufficient funds to pay Mr. Mangano for months after its revenue dried up, asserting “[u]p until Mangano became totally incommunicado [mid-February 2012], Righthaven fulfilled all payment obligations to Mangano.”… Righthaven’s bank records show that Mr. Mangano was being paid regularly in installments of around $2,475.00…. The money Righthaven will now save by not paying Mr. Mangano is more than enough to pay for the transcript of a half-day debtor’s examination. Mr. Gibson’s deliberate decision not to use funds available to Righthaven does not constitute “impossibility.”

[….]

Perhaps anticipating this obvious course of action, Mr. Gibson asserts, without citation, that he “cannot represent Righthaven before the Court” and that he does not have the “capability to personally appear before the Court without legal counsel.”…. This assertion is belied by the fact that Mr. Gibson actually has represented Righthaven before this Court in this case. See Order Granting Substitution…. Indeed, three other Righthaven in-house counsel have represented Righthaven over the course of this litigation: Charles Coons, Joseph Chu and Anne Peroni. When Mr. Gibson was representing Righthaven in litigation, he often negotiated directly with opposing counsel, and has appeared in court. There is no impediment to Mr. Gibson entering an appearance, especially if that is what is required for him to comply with court orders.

The filing also attacks the ridiculous notion that Gibson did not “have notice” of the order against Righthaven, even though its lawyer, Shawn Mangano, had received notice. As the EFF notes, if the court accepts Gibson’s bizarre claim, anyone in a lawsuit can “avoid” notice by simply having a lawyer who refuses to pass along the notices. That’s clearly not how the law works. Furthermore, the EFF quotes another case about how a party in a lawsuit can’t just turn against their own lawyers and blame them:

Mr. Gibson has no one to blame but himself for Mangano’s inaction. Mr. Gibson “voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent.”…

There’s a lot more in there that raises serious questions about Gibson’s claims (yet again). I don’t think I’ve ever seen a legal strategy executed quite as stupendously poorly as Righthaven’s continued bungling of almost everything. What’s especially stunning is going back to the very beginning and remembering just how cocky Gibson was about Righthaven as a brilliant business and legal idea.

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Companies: eff, righthaven

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Comments on “EFF Slams Righthaven CEO For Pretending He Can Ignore Court Orders”

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21 Comments
NullOp says:

Time...

This case is one of the many reasons I am in favor of CEO’s doing hard time! If the company is large enough, and the personnel stupid enough, the management departs reality. They start believing laws don’t apply to them and they can interpret the law any way they want. The only real cure for these people is prison. Not nearly enough of them do time!

Violated (profile) says:

Sins & Virtues

Pride and arrogance are often their downfall. Andrew Crossley of ACS:Law was the same.

Their righteous pursuit of wrongdoers failed their beliefs, opponents ranked up only to be “termed them piracy supporters”, and even the Judge turned into an enemy.

Only once broken with all their goals failed do they find some humility.

TtfnJohn (profile) says:

Ambusher complaining of being ambushed?

The recent couple of Righthaven posts sent me in search of Righthaven’s history and business model. Copyright trolls are, it turns out, interesting creatures. At least this one has been. Even if, dead as it is, it just won’t lay down.

As “infringers” fought back Righthaven seems to have discovered a previously unknown way to assure that litigators can piss off each and every judge the litigators can find.

Now comes Steve Gibson complaining that he’s being “ambushed” by the EFF.
http://www.vegasinc.com/news/2012/mar/27/fighting-sanction-righthaven-ceo-complains-foes-am/
An interesting complaint given that a large part of Righthaven’s business model was ambushing so called infringers without even the DCMA niceties like a take down notice before demanding settlement. This on copyrights they didn’t own and despite not being a law firm.

It’s hard to keep the veil of LLCs intact when Gibson seems intent on shredding it long before a court decides that it needs to be pierced.

It’s deliciously ironic that Gibson would now complain, wrongly, that someone is doing to him what he did to so many others.

(And what is it with him and the pictures of him wearing a cheap call centre microphone?)

That Anonymous Coward (profile) says:

Re: Ambusher complaining of being ambushed?

Its a running gag now… everyone say it with me…

Cocaine… its a hell of a drug.

I’m working on making Gibson the poster child for this… he makes it so easy.

I think the picture with the headset is meant to make him look “busy”, “connected”, and “techie”. He looks like “Judy” the Time-Life operator after a 7 day binge.

Anonymous Coward says:

High Court Low Court

It is quite amazing how tolerant the US legal system is to wilful bad behaviour by CEOs. If some ordinary person were to fail to show up for his cases, or ignore court orders, they would smartly be hit with a harsh default judgement, followed soon after by an arrest warrant. Once the ordinary person was in jail, things would get a great deal nastier for them.

CEOs are the new nobility, to be dealt with kindly by the high court, whereas ordinary people get the full fury of the low court. The only thing which has changed since the middle ages, is that the high court and the low court are now the same court, with the judge going into high court or low court mode, depending on the social rank of the defendant. Justice for all? Not so much.

Austin (profile) says:

Dollars

Just want to add one footnote to the EFF’s argument here. I am a certified paralegal and I work in a law firm. We handle civil corporate litigation mostly, a few big cases for small companies, and we typically pay for deposition transcripts “out of pocket” and often hold the bag on them for 2-3 months waiting on our clients to pay us.

That said, the EFF is quite correct – even full-day 8+ hour depositions rarely run over $1,000. Granted, the deposition itself is an extra expense, and clients must pay for attorney’s travel time (though we usually have them at our office to save our clients money, actually.) But the transcript itself is seldom over $1,000. If Righthaven has been paying Mr. Mangano over $2,000 a month, then yes, $1,000 for a transcript is a perfectly reasonable expense to expect them to pay.

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