Appeals Court Not At All Impressed By Prenda's Appeal

from the wanna-try-that-again dept

Team Prenda finally got to an appeals court on Monday and it didn’t go particularly well. The appeal in the Lightspeed case, in which Judge Patrick Murphy called them out for “flat-out lying” to the court and hit them with $261,000 in attorneys’ fees (a number that has been bumped up as Team Prenda was found in contempt for not actually paying) was heard on Monday, and the three judge panel in the 7th Circuit did not appear at all impressed by the arguments made by Daniel Voelker who was representing John Steele, Paul Hansmeier and Paul Duffy. You can listen to the 32 minute hearing yourself for all the fun.

It starts off almost immediately, as Voelker argues there’s no basis for the district court ruling — and is interrupted by one of the judges, noting that the court found that the case was pursued in bad faith “which stands on its own as a basis for sanctions.” Voelker insists that the court “didn’t rely on any record nor cite any facts” and, again, he’s cut off: “well, it talks about an extensive pattern of lying and misrepresentations, and vindictive pursuit of claims that were, in the court’s view, frivolous or marginal at best. And, trying to extract settlement payments before an inevitable voluntary dismissal.”

In other words, within 3 minutes of the appeal hearing, the judges had made it clear that they were well-informed about the scheme Team Prenda had cooked up and why the district court had ruled the way it had. Voelker tries to slam the judge for taking “extrajudicial notice” of basically every other case where Prenda had been thumped. Of course, I don’t see how that helps Team Prenda at all: to argue “please ignore my clients’ record of being slammed by judges all across the country” doesn’t seem very convincing. And, immediately another judge jumped in to point out that there were, in fact, statements made on the record in those other cases that contradicted what was being said in this case. The same judge immediately highlights the questionable nature of the different organizations, such as the affiliation between Prenda Law and AF Holdings, and says that of course it’s reasonable for the judge to take notice of those contradictory claims.

Eventually, the judges ask about the relationship between the various organizations, including Prenda Law, Alpha Law and Steele Hansmeier (“in 25 words or less”) and Voelker doesn’t inspire any confidence by saying he has no ideas: “I can’t your honor. I don’t know, I don’t know what it is today; I don’t know what it was a year ago. So I wouldn’t want to even begin to tell you because I just don’t know.” One of the judge hits back immediately:

That’s shocking!

After a bit more of a back and forth she understates the situation:

There’s a lot of shell game going on here.

Voelker claims this has no relevance to the issue at hand. The judges don’t appear to buy it, at all, noting “this is all pretty serious conduct.”

It’s often a mistake to read too much into what appeals court panels (and Supreme Court Justices) say during oral hearings. Sometimes they’re just testing out theories or pushing various attorneys to see how thoroughly their arguments make sense. But in this case, it seems abundantly clear that the judges are incredibly skeptical about Team Prenda’s appeal.

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Companies: af holdings, alpha law, at&t, comcast, prenda, prenda law, steele hansmeier

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Comments on “Appeals Court Not At All Impressed By Prenda's Appeal”

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39 Comments
mcinsand (profile) says:

Re: Re: The *LAST* thing Prenda wants is copyright enforced!

Respecting and upholding copyright is a stone that I hope we get to see flipped over. Prenda violated their own copyrights when they seeded the torrents; to appropriately, legitimately seed a copyrighted work, notices and copyrights need to be adjusted accordingly. They did none of this so, they constructively voided the copyrights that they were suing over. In the case of Prenda, I do hope that we see them taken to the woodshed for the way they abused the copyrights that they broke. Whether Prenda owned the copyrights is somewhat irrelevant. If they did not own the copyrights, then the legitimate owners need to go after Prenda for committing piracy by inappropriately seeding the torrents. And, for that act of inappropriately seeding, their victims have a far stronger ground for countersuit, since Prenda undermined the validity of any grounds to sue for copyright infringement.

Karl (profile) says:

Re: Re:

Mike Masnick just hates it when copyright law is enforced.

Mike Masnick is not facing hundreds of thousands of dollars in fines, and referrals by judges to law enforcement agencies, when copyright law is enforced.

Unlike Team Prenda.

So, right now, I’m betting it is the supporters of Team Prenda who really hate it when copyright law is enforced.

sophisticatedjanedoe (profile) says:

One important facepalm moment that a laypeople definitely missed (I missed it too, but attorneys explained) occurred at the very last minute. When a judge says that something in the argument or brief was offensive, she expects a professional reaction: an apology and an explanation. It was a yellow light, invitation to fix a mistake. Instead, Voelker, this ?big league litigator,? who never misses a chance to brag about his 28 year experience, replies ?Anything else, your Honor??

Anon E. Mous (profile) says:

Re: Re: Re:

I wouldn’t doubt at all that the Judge has made a mental note of that comment for the next time that Mr.Voelker has an appeal in front of her.

Much like the clients he was defending, I would be of the opinion that Voelker when questioned by the court on the issues at hand and Team Prenda finding’s in other courts didn’t have much of a defense that resonated well with the Judges, nor do I think he liked the limb Team Prenda had him perched on.

DB (profile) says:

A summary of the Voelker strategy:

1. The judge shouldn’t have taken judicial notice of other cases. (Those facts should be ignored.)
2. The ruling relies on facts that are not on the record. (See point 1.)

There was an alternative argument:

1. No specific attorney acted improperly on their own.
2. Responsibility for the judgement should have been apportioned according to blame. (Which would have allowed pressing point 1.)

For this latter argument to work, it was vitally important that Voelker ‘know’ as little as possible about the relationship between Prenda/Alpha/Duffy/Steele/Hansmeier. Even if that led to awkward moments.

I would say that Voelker played his part well. No new information was revealed. The claim of no facts / no supporting record was pressed. The question of adverse inference from the many non-substantive and evasive responses, and conflicting responses only came up briefly.

That One Guy (profile) says:

At least they did one thing right

Seems Prenda and co. have learned, at least for the moment, that they’re much better off if they have some know-nothing patsy representing them rather than doing it themselves.

Hiring an outside lawyer and telling him nothing more than the barest of information allows them to have plausible deniability when it comes to the details of Prenda’s various scams, whereas if someone from Prenda tried the same(which they have) they’d have a wicked time getting a judge to buy it(which they generally haven’t).

Anon E. Mous (profile) says:

Re: At least they did one thing right

I agree with what you said. I doubt that Hansmeier, Steele or Duffy would wan’t to try an argue for an appeal themselves for fear that they would get questioned on the facts surrounding their case.

Duffy would have them in jail if past performances are any indication IMHO, and Steele and Hansmeier would just wow the appeals court with their awesome “Lawyer Speak”.

Anon E. Mous (profile) says:

So basically after listening to the hearing what I have gleaned is we are hearing is Voelker more or less reciting what we have heard Team Prenda plead in other courts when they have been on the end of an OSC or when a sanctions judgement has been entered against them.

So they basically just have re-hashed pretty much every argument we have read in past decisions that have come against Team Prenda.

The transcript from the last hearing were Team Prenda basically said “we didn’t do this” “we shouldn’t be held accountable” “we didnt do anything wrong” So what is really new here..nothing….zip…nada

This is basically another hail mary to get out from under the weight of the courts sanction finding and the monetary penalties from the Judge in the Smith/Lightspeed case.

WDS (profile) says:

Concern

I was concerned by the courts concern of the reliance on Rule 60(b) by the lower court on the various reconsider motions. I would hate for this to be remanded on a technicality, although if it goes back to Judge Herndon, I would imagine he can find the right section of law to apply pretty quickly.

It seemed to me that the only points in Prenda’s favor that got any traction was the 60 (b) issue which was brought up by the Judge and not Prenda’s attorney, and the fact that Prenda had not had 14 days to reply to the itemized bills from AT&T and Comcast.

sophisticatedjanedoe (profile) says:

Re: Re:

I do have some docs from the Freeborn & Peters v Duffy et al case, but there are more questions than answers at this moment. A person with first-hand knowledge had hinted that he will explain the Duffy/Voelker/Fletcher game to me. I definitely won’t sit on this info once enough clarity is reached! Just don’t want to spill interim, inconclusive stuff: this may do more harm to the cause that good.

Stay intrigued!

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