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.