DOJ Argues That Even If Case Against Megaupload Is Dismissed, It Still Can Hold Its Assets

from the well-of-course dept

As the fight over whether or not the US can even charge Megaupload under criminal law continues, the US Justice Department continues to make quite extraordinary claims. If you don't recall, the US filed criminal charges against Megaupload and a bunch of its execs. However, as a US judge noted back in April, under US law it might actually be impossible for the case against Megaupload to proceed, because criminal law requires "serving" the defendant, and the law also says you can only serve companies at their US address. Megaupload is not based in the US and has no US address. The DOJ is trying to tapdance around what the law actually says, but (as Megaupload points out) they can't point to a single real legal citation that supports their position. The DOJ is basically arguing that the law should be what they want it to be... because otherwise the DOJ wouldn't like it very much.

Tim Lee continues his always excellent reporting, by providing some details of the latest court hearings on the matter where the judge definitely seems to recognize that Megaupload may be legally correct:
[Judge O'Grady] noted that the "plain language" of the law required sending notice to the company's address in the United States. "You don't have a location in the United States to mail it to," he said. "It's never had an address" in the United States.
Perhaps even more interesting is the claim by the DOJ that even if the Judge rules against them on this issue, they should still be able to freeze Megaupload's assets, because the cases against the individuals will continue.
Not only that, but the government believes it can continue to freeze Megaupload's assets and paralyze its operations even if the judge grants the motion to dismiss. That's because in the government's view, the assets are the proceeds of criminal activity and the prosecution against founder Kim Dotcom will still be pending. The fact that the assets are in the name of Megaupload rather than its founder is of no consequence, the government claimed.
That's a trickier argument to make, though, not a totally crazy one. It's more or less based on the same controversial theory under which the Justice Department seizes and forfeits things like hip hop blogs because someone might possibly get some infringing music from them. But here it's even more complex, because there is supposed to be a separation between the corporation as an entity and the execs who work there as entities. It's part of the reason why "limited liability" corporations exist. There are, of course, ways to get past that, but the government would need to make that case, and they may have a hard time doing so. Either way, it does appear that they're legitimately worried about this rather massive error on their part in bringing the case.

Perhaps, next time, the DOJ won't rush into highly questionable lawsuits just because the MPAA is upset about a website.

Filed Under: assets, copyright, doj, frozen, jurisdiction, service
Companies: megaupload

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  1. identicon
    Anonymous Coward, 28 Jul 2012 @ 12:34pm

    Re: Re: Re: Re:

    Your argument presumes a lot that you aren't bringing up brosensky.

    Your argument presumes that they are "conducting business" in VA so far as the statute is concerned. That is far from being shown.

    I've read the case law interpreting what it means to transact business in Virginia, and it turns out it means different things in different contexts. In the context of establishing an agent for service of process for a foreign corporation, the inquiry is coextensive with the due process analysis--if it violates due process to establish specific, personal jurisdiction, then the company has not transacted business there (and vice versa). It'd be a lot of work to go back and cite all that, but I invite you to do your own research. Regardless, I think the server leases easily give Virginia specific, personal jurisdiction over Megaupload Ltd. since that business contact is crucial to Megaupload Ltd.'s business.

    Your argument also presumes that congress did not intentionally not want the US government to have jurisdiction over foreign corporations, thus inviting the rest of the world to grant themselves jurisdiction over our US corps. There is no sign that this took place. Indeed, the legislative history shows the opposite.

    Megaupload Ltd.'s textual-structural argument on the differences between Rule 4 of the criminal and civil rules was a good argument. Nonetheless, there is a last known address within Virginia for Megaupload Ltd., and it is the address of the Clerk of the Commission. It's silly to argue that the statutory agent of Megaupload Ltd. for service of process is not in fact Megaupload Ltd.'s agent for service of process. Rule 4 is still satisfied. The rule doesn't say the address can't be statutorily created, and as I quoted above, Virginia has such a statute and such statutes are constitutional.

    It is not "loophole" it is simply the government noting the limits of its own court system's jurisdiction.

    Rule 4 was promulgated by people who knew full well that the states have laws creating statutory agents for substituted service of process for foreign corporations. If Congress wanted such state laws to have no effect, it would have said so.

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