US Copyright Group Lawyers Suggest They're Allowed To Lie To People They're Demanding Cash From
from the perhaps-a-court-could-disabuse-you-of-that-notion dept
Ars Technica notes that DGW has filed a scathing response (though, oddly, Ars Technica does not provide the actual filing). Apparently, there are two key arguments made by DGW: First, that the guy suing, Dmitriy Shirokov, has no right to sue DGW, because they're just the lawyers "simply doing their job," and you can't sue for that:
"Although an attorney may be accused of defrauding opposing parties, knowingly committing discovery abuses, lying to the court, or purposely and maliciously defaming another individual, if it takes place during the course of litigation, the conduct simply is not actionable,"That's quite a claim, in large part because it's misleading. DGW is playing a little game of misdirection, and assuming everyone else is stupid (a dangerous game for lawyers to play). The main problem is that the actions that DGW is being sued over here are not actually "during the course of litigation." The complaint is about the "pay up" threat letter, which is not directly a part of the litigation, but an attempt to avert litigation. To claim that demanding cash based on a factually incorrect legal claim is immune from a legal complaint seems like a stretch. If DGW's legal theories are correct here, it would mean that a lawfirm could resort to outright, blatant extortion, just so long as it somehow connected it to the threat of litigation. That's a plainly ridiculous outcome that I find hard to believe a court would buy.
Separately, DGW says that no "harm" has come to Shirokov since he hasn't actually settled. That, again, seems like a questionable tactic. If true, the only way that someone illegally or unfairly threatened could sue is if they first give in to the threat. It seems that just the threat itself, if it truly was made maliciously with false information for the purpose of getting people to pay up, should constitute clear harm in itself.
Of course, not all DGW's claims seem that crazy. On the question of racketeering and other criminal complaints, DGW points out that individuals can't bring criminal complaints, only the government can. This point goes in DGW's favor, and I'm a bit surprised that Shirokov's lawyers focused on criminal statutes in their complaint. However, the complaint covers plenty of areas that aren't criminal in nature, and there's no reason why the case shouldn't move forward on those issues.
Finally, DGW, in what appears to be becoming standard practice for the firm, is demanding sanctions against Shirokov and his lawyer for filing the lawsuit in the first place. Talk about obnoxious. DGW, in this filing, appear to be claiming both that they can effectively do whatever the hell they want to threaten someone if he doesn't pay up (so long as they can claim a loose association with ongoing litigation) -- and that anyone who then claims that this amounts to a form of fraud or extortion should be punished. In other words, it seems that DGW believes it can act beyond the law in the course of litigation, and anyone who sues them over it should be sanctioned.
Hopefully, a court sets DGW straight on all of that. I'm still not convinced this case will get very far. I'd be surprised if courts, while sympathetic to those charged in such "settle or we sue" lawsuits, went to the other extreme and claimed that the efforts behind them directly broke the law. I'd be thrilled if I'm proven wrong on this, but it just seems unlikely.