A whole series of events have happened in various Prenda cases around the country, and Ken at Popehat, once again, has the best summary around. I'll do this bullet-style, and suggest you go read his full post for the details.
Paul Duffy is trying to dismiss the counterclaims filed against him in his defamation lawsuit against Alan Cooper, arguing that the counterclaims make no reference to him personally, but rather John Steele and Paul Hansmeier. Of course, if they were all working together, as an awful lot of evidence seems to suggest, that may be a problem for Duffy. The more hilarious issue is that Duffy claims that Cooper's lawsuit against Prenda (for allegedly falsifying his name on documents) is an "unrelated matter," rather than the whole freaking reason that Duffy is suing. Ken breaks down how incredibly stupid this statement is:
Yeah, sure, Cooper's suit is "completely unrelated" — except that (1) it involves the same parties, (2) it concerns Prenda's operations, (3) it accuses Prenda of stealing Cooper's identity, which Prenda's and Duffy's complaints suggest is a defamatory statement, (4) John Steele used all three suits to threaten and intimidate Cooper as soon as Cooper filed his complaint, and (5) Prenda's and Duffy's complaints specifically identify the Cooper complaint as one of the forms of defamation they are suing over. This is not just a lie to a federal court. It's not even a plausible lie. It's a stupid, ineffectual, desperate lie.
Ken explains the reasons why Cooper and Godfread decided to file using Minnesota's anti-SLAPP law, rather than Illinois's. As we had mentioned earlier, the case is in Illinois, so it took many of us by surprise that they were relying on Minnesota's anti-SLAPP law. However, Ken notes that since the key issue in an anti-SLAPP situation is that it forces the plaintiff to present their evidence early, this means that Duffy will be caught in a tough spot: responding with evidence would eviscerate the 5th Amendment protection he took in California.
But here's the beauty of this situation for Cooper and Godfread — the anti-SLAPP statute forces Duffy and Prenda to come forward with actual evidence establishing that they might win. To do that, they have to come forward with evidence that the statements that they are complaining about are false. But those statements are about exactly the things that Steele and Hansmeier and Duffy took the Fifth rather than address. Duffy and Prenda can't carry their burden unless they reverse the decision to take the Fifth. Ultimately, Cooper's and Godfread's narrower argument is elegant and well-suited to the circumstances. It's not always the right strategy to make every possible argument.
That "narrower" argument he's talking about is the (slightly surprising) decision by Cooper and Godfread not to point out that many of the statements that Duffy and Prenda are claiming defamatory are either insults or statements of opinion, rather than fact, and thus not subject to defamation. Instead of going down that road, they're focused on forcing Duffy's hand. We noted earlier that Cooper and Godfread had called Prenda's bluff. That may have been premature. Now they're really calling the bluff, and Duffy's going to have to show his cards.
Back in the main showdown case in California, we had already pointed out that (over the objections of Team Prenda), Judge Otis Wright had allowed lawyer Morgan Pietz (representing some of those sued by Prenda) to file more evidence. And he's done so. White summarizes the situation nicely.
Pietz can be excused for sounding a bit triumphant after the attorneys opposing him took the Fifth rather than address the questions he raised. He leads by pointing out that although John Steele claims there is no evidence that he has any ownership interest in Prenda Law's clients, Steele's own attorneys previously told the Florida State Bar the opposite — and a Prenda law local counsel also said that Steele had an interest in AF Holdings. Pietz attacks the credibility of Brent Berry, the real estate agent who claimed that Alan Cooper was in on the scheme and is violent and mentally ill. Pietz points out that Berry is Steele's agent and just sold a house for him in February. Pietz also points out that Berry signed the declaration in February, but Prenda law oddly withheld it until after the hearings before Judge Wright. Finally, Pietz echoes what everyone has been saying — Berry's testimony might suggest that Cooper knew his name was being used, but if accepted it proves that Cooper was a mere shill for the Prenda Law attorneys who actually controlled the plaintiff entities. Pietz also offers rebuttals to the Prenda lawyers' other arguments — he argues that Judge Wright's powers allow him to award attorney fees as sanctions based on the record before him, and he offers the declaration of a technical expert to rebut Prenda's arguments that its investigation of downloaders was reasonable and sufficient.
Given Judge Wright's clear questions about Prenda's actions, I would imagine that this extra fodder isn't going to be particularly helpful to John Steele, Paul Duffy and Paul Hansmeier.
And that's not all. Ken also has updates on a few other Prenda cases around the nation where people are hitting back at all things Prenda. Go check out his post for all the details.
Ken also points out that Judge Wright's response to all of this could come "any day," so stay tuned.