Last we heard about Righthaven, district court judge Philip Pro had given it a tiny bit of breathing room
, giving the company 30 days extra to come up with the bond to prove that it could pay the attorneys fees ordered (a little over $34,000) in the Hoehn case. While Hoehn's lawyers (Randazza Group) had sought immediate payment earlier, Judge Pro said that Righthaven could wait out the appeal... if it could post bond. Folks in our comments pointed out that it was unlikely that Righthaven would post the necessary bond... and, indeed, it has filed an "emergency" request with the court, trying to avoid posting the bond. In the filing, Righthaven lawyer Shawn Mangano explains that no one seems willing to post a bond unless Righthaven forks over the entire amount due
. In other words, no one believes that Righthaven has any shot
of winning this case or
of remaining solvent for very long.
Righthaven has attempted to secure a bond as required by the district court
to stay the Judgment pending appeal. To date, Righthaven has been unable to
secure a bond. The terms required by the bonding companies that Righthavens
counsel has investigated and/or contacted are an impediment to meeting the district
courts stay requirement. The bonding companies are requiring what amounts to a
full cash bond. In sum, the bonding companies ask for full cash payment, certain
forms of collateral held by the company or irrevocable letters of credit be posted to
obtain a bond in the amount requested. To date, Righthaven has been unable to
satisfactorily meet these requirements in a manner acceptable to a bonding
company. Due to the pending appeals and the stay of certain active litigation
matters, Righthavens operating capital is being utilized to service its monthly
operating expenses. As such, it is presently unable to allocate more than $34,000
toward the bond required by the district court to stay the Judgment pending appeal.
The Randazza Legal Group wasted little time in responding and pointing out the interesting choice of language by Righthaven. It's not that Righthaven says it can't
pay, but it seems to suggest it would prefer
to use that money towards appeals. Randazza compares Righthaven to the title character in Herman Melville's Bartleby the Scrivener
In Herman Melvilles classic, Bartleby the Scrivener, an attorney finds
frustration with his scrivener, Bartleby. Any time Bartleby is directed to perform a
task, he replies with the classic refrain: I would prefer not to. Initially
infuriated, but beguiled by Bartlebys charmingly passive insolence, the narrator
tolerates Bartlebys masterfully eccentric defiance, but eventually fires him. Once
fired, Bartlebys behavior becomes stranger, and he refuses to leave the premises
of his employer, who finds Bartlebys stubbornness to be an immoveable object.
Bartlebys defiance, as effective as it is, eventually leads to his undoing.
Bartlebys preference leads to his imprisonment and starvation, as he finally
encounters both men and forces of nature who are unmoved by his antics.
They go on to point out that Righthaven brought this upon itself -- proactively suing hundreds. The filing notes that Righthaven has been losing consistently and has not won anything since the details of its arrangement with the two newspaper partners it had became public.
The time has come for Righthavens shenanigans to end. Righthaven picked
this fight. Righthaven, created and operated by an attorney, should have known
better. Righthaven could have changed course at any time. Righthaven preferred
not to. The consequence for Righthavens actions is now at its door, and whether it
would prefer to or not, the law requires it to comply. Preferring not to comply with
a lawfully issued court order is no emergency, and Righthaven should be
compelled to answer for its transgressions. Even Bartleby, charming as he was,
eventually suffered the inevitable consequences of his irrational intransigence.
Righthaven must as well.
The filing calls into question Righthaven's claim that it cannot put forth $34,000, noting that it's either lying, or isn't going to be able to pay for the appeals it has filed. The suggestion is that Righthaven is trying to use up its remaining funds to avoid paying anyone else:
Righthaven has provided no statement of its operating expenses, and it
appears that Righthavens sole expenses are paying its CEO, who hatched and
profited from this illegal scheme, and paying its attorneys in order to file frivolous
motions and avoid paying lawful judgments. It is clear that Righthavens plan is
to consume its remaining capital by transferring money to those who least deserve
it, exhausting its funds until it is in a state of bankruptcy. The courts, thus far,
have been unwittingly complicit in this scheme by their failure to take a definitive
and stand against the ongoing fraudulent transfers. It must stop here.
Righthavens mass litigation model now descends upon the Court of Appeals, and it has brought no fewer than five appeals before this Court all of which are currently pending. Beyond this case, Righthaven is also the appellant in
Realty One Group, Incorporated, Case No. 11-15714 (9th Cir., filed Mar. 24,
2011); Jama, Case No. 11-16358 (9th Cir., filed June 2, 2011); DiBiase, Case No.
11-16776 (9th Cir., filed July 22, 2011); and DU, Case No. 11-17210 (9th Cir.,
filed Sept. 19, 2011). Righthaven also appealed a loss to the Tenth Circuit. Wolf,
Case No. 11-1469 (10th Cir., filed Oct. 11, 2011). Six appeals pending, yet
Righthaven claims that being required to post a mere $34,045.50 bond is an
emergency. Righthaven mocks the definition of the word and mocks this court
by bringing this frivolous motion.
Furthermore, the filing notes that Righthaven (in typical fashion) has failed to file the opening brief of its first appeal, even thought it was due nearly a month ago:
The propriety of Righthavens appeals is in serious doubt. Righthavens
opening brief in its first appeal, Realty One Group, Inc., Case No. 11-15714, was
due to this Court on September 19, 2011 and has yet to be filed. This appeal
appears to be another stall tactic for Righthaven to deny the defendant in that case,
and the First Amendment principles its fair use victory embraces, any finality.
This leaves two possibilities explaining Righthavens financial condition: Either it
has $34,000 that it can use to post a bond and it prefers not to, or it is absolutely
broke and pursuing its appeals in bad faith, in order to deny prevailing defendants
finality and extract a settlement from them still.
This is like watching a train wreck in excruciatingly slow motion.