Ken White blogs at Popehat. He's a litigator and criminal defense attorney at Brown White & Newhouse LLP in Los Angeles. His views are his alone, not those of his firm.
All of Ken's coverage of the Prenda Law saga is collected here.
When it comes to getting angry in federal court, perhaps I should not throw the first stone. After all, just a few days ago a federal judge was moved to tell me "Mr. White, calm down, you aren't arguing to a jury." [The result was nonetheless quite satisfactory, thank you.] And I rely upon partners and associates to tone my written work down. (A memorable example: "The SEC's proposed jury instructions find no support in the law or the facts of the case" is acceptable, "The jury instructions are not a vehicle for the SEC's attorneys to work out their self-esteem issues" is not.)
Nevertheless, I will offer this advice: don't file angry.
Attorney Jacques Nazaire, local counsel for Prenda Law putative client AF Holdings, has done just that down in Georgia. The result is not pretty.
I previously wrote about how Mr. Patel, a defendant in an AF Holdings case in federal court in Georgia, sought sanctions in response to AF Holdings' dismissal of the case. Jacques Nazaire has filed a very angry response and cross-motion for sanctions, together with Exhibit A, Exhibit B, and Exhibit C. As we shall see, one of those is an extremely ill-considered declaration from mysterious Prenda Law figure Mark Lutz.
Many of Mr. Nazaire's arguments are now familiar: he says that there's nothing wrong with undisclosed attorney interests in plaintiff entities so long as the judge is not presented with a conflict of interest, and he repeats the now-familiar argument that it doesn't really matter if Alan Cooper's signature was forged on a copyright assignment.
But he also makes some interesting new arguments.
Underpants Gnome Logic
If I may briefly summarize a key component of Mr. Nazaire's argument:
1. We had a highly meritorious case against Mr. Patel.
2. Moreover, he defaulted, and that default should have stuck.
3. Plus he's made admissions that show he's liable.
5. So we've dismissed the case with prejudice, and there's nothing to see here, other than to note how strong our case was.
Well okay then.
How Dare You Say I'm Brett Gibbs' Lackey!
Amongst other things, Mr. Nazaire is very irritated at the suggestion that he was taking orders from Prenda Law figure Brett Gibbs, and wants you to know that he is his own man, exercising his own judgment:
From what has been put forth, Brett Gibbs is a fairly new attorney much like Defendant’s counsel. The undersigned, on the other hand, has over 16 years experience practicing law, has settled over millions of dollars worth of cases, including state and federal cases and has also served in Afghanistan as a Foreign Claims Commissioner, settling foreign claims in a war zone.
The undersigned would not assign Brett Gibbs to negotiate a left turn with his vehicle, let alone a settlement on behalf of a client, regardless of whether the case was venued in Georgia, California or Afghanistan. While Gibbs may be a pleasant young man, to assert that Plaintiff’s attorney takes orders from Brett Gibbs is absurd and laughable.
I'm sure Mr. Nazaire is very highly qualified. After all, as Fight Copyright Trolls points out, only a highly-qualified lawyer would advertise on Craigslist to make court appearances at $125 a pop. Craigslist is widely respected as the best place to find an experienced litigator, a gently-used futon, or someone to dress up like Herman Goering and poop on you.
That aside, Mr. Nazaire's argument that he's not taking orders from anybody is an odd strategic choice under these circumstances. I appreciate his choice not to blame problems on Brett Gibbs. I appreciate the creativity of pulling Brett Gibbs out from under the bus in order to tell him that he sucks. But I'm not sure about the full-throated "I'm in charge but there's nothing to see here" approach by a local counsel at this point, once Prenda Law's principals have taken the Fifth. Has Mr. Nazaire truly slaked his thirst with the Prenda Kool-Aid? Or is he very politely sparing Mssrs. Steele, Hansmeier, and Duffy the bother of throwing him under a bus, as they have rather unconvincingly done to Brett Gibbs? How very collegial.
EFFFFFFFF! From Hell's Heart I Stab At Thee!
Mr. Nazaire, like many Prendateers, is very upset with the Electronic Frontier Foundation. He accuses Mr. Patel's lawyer of being associated with EFF, which he describes like it's some kind of terrorist group:
One other important fact for the Court to consider is Chintella’s role as a panel attorney for the Electronic Frontier Foundation (“EFF”). (See https://www.eff.org/issues/file-sharing/subpoena-defense). The overriding mission of the EFF has been to shield the Internet from effective regulation—“defending it from the intrusion of territorial government.” Jack L. Goldsmith & Tim Wu, Who Controls the Internet?: Illusions of a Borderless World 18 (2006). This mission relies on undermining effective enforcement of intellectual property rights. Purporting to speak on behalf of “cyberspace,” a co-founder of EFF (who presently serves on its board of directors) has warned the “Governments of the Industrial World” that “[y]our legal concepts of property, expression, identity, movement, and context do not apply to us.” John Perry Barlow, A Declaration of the Independence of Cyberspace (Feb. 8, 1996), available at https://projects.eff.org/~barlow/Declaration-Final.html (as of April 17, 2013).
The EFF is a left wing organization which has some of the same goals as the anti-government group “Anonymous” as well as the terrorist group “Wikileaks”.
It is amusing, in a dark way, that Prenda Law and its local counsel continue to portray themselves as the righteous defenders of intellectual property rights. Were that so, you might find support for them amongst attorneys and organizations in the business of bittorrent litigation and other pursuits of online pirates. You won't. At most, you'll find consternation that the Prenda Law enterprise has inflicted a grave wound upon the credibility of online piracy litigation across the United States.
Mr. Nazaire further accuses the EFF of witness tampering — excuse me, witness "tempering" — because he hears they paid for Alan Cooper's travel to and from Los Angeles. He demands:
4) An order requiring Defendant’s counsel, who is a member of the Electronic Frontier Foundation (EFF) to disclose the total amount of monetary benefits received by Alan Cooper from the EFF and its members, agents, colleagues and followers. Should the case not be dismissed, an order scheduling a hearing into possible witness tempering [sic] by the EFF.
Mr. Nazaire explains:
Additionally, it is reported on the internet that Mitch Stoltz, a staff attorney with the EFF has stated that EFF took care of Cooper’s travel arrangements to testify in a California case. As such, any statements made by Mr. Cooper should be suspect. There is no evidence to suggest that Mr. Cooper has worked an honest day in his life. Rather, it appears that Mr. Cooper has spent his lifetime depending on the kindness of others. Logic dictates that the more Mr. Cooper testifies against those opposed to the EFF, the longer he is allowed to travel from state to state.
There are several things you should note about this argument.
First, notice the alacrity with which Mr. Nazaire traipses from "Mr. Patel's claims are speculation not supported by evidence" to "it is reported on the internet."
Second, remember the context. Alan Cooper didn't travel to Los Angeles for kicks. He didn't travel as a voluntary witness to support allies. He went because United States District Judge Otis D. Wright II ordered him to appear. There seems to be no dispute that he's a man of modest means. His testimony made it clear that he finds the whole experience confounding and terrifying. The evidence suggests he was repeatedly threatened with legal ruin by the slick, entirely vile John Steele. Plus, despite Mr. Nazaire's insinuation, there is no indication he's gone anywhere else to testify, let alone been paid by the EFF to do so. Under the circumstances, the EFF funding an involuntary witnesses' travel — an involuntary witness who may be the victim of identity fraud — is a mitzvah. I leave it to reader to assess the relative character of the EFF for doing it and Mr. Nazaire for attacking it.
Third, consider where Mr. Nazaire's comments leave us with respect to Prenda Law's position on Alan Cooper: even if you take everything they say at face value (a prospect that exhausts the world's bounteous supply of drooling credulity), it means that AF Holdings chose, as an officer or representative to sign its crucial legal documents, a man who has not "worked an honest day in his life" and is mentally ill and dangerous. Nevertheless, they would have you believe, you should accept AF Holdings as a legitimate enterprise and the lawyers conducting litigation on its behalf as trustworthy. How appealing does that sound to you?
I Did It For The Lutz
Responding to accusations that AF Holdings is a front for Prenda Lawyers, Mr. Nazaire supplies an undated affidavit from Prenda Law paralegal Mark Lutz. Mr. Lutz swears that a trust called "Salt Marsh" owns AF Holdings, and that the beneficiaries of "Salt Marsh" are Mr. Lutz's hypothetical and yet-unborn future children. (Damn you, Prenda, for making me refresh my memory of the horror that is the Rule Against Perpetuities!)
You may recall that Paul Hansmeier — offered by Prenda Law as AF Holdings' witness most knowledgeable about its origins and ownership — was unable to explain the nature or beneficiaries of the trust.
Let's sum up, then, what we know about Mark Lutz, and by extension AF Holdings. Mr. Lutz has been identified as a former paralegal for Steele & Hansmeier, a predecessor to Prenda Law. He showed up in court as a "corporate representative" of another Prenda Law entity, Sunlust, resulting in this thoroughly embarrassing exchange:
THE COURT: Mr. Lutz, you're under oath, you have to give truthful answers or you face penalties of perjury. Do you understand that?
MR. LUTZ: Yes.
THE COURT: What is your position with Sunlust?
MR. LUTZ: I'm a representative of them.
THE COURT: What does that mean?
MR. LUTZ: Corporate representative.
THE COURT: What does that mean?
MR. LUTZ: They asked me to appear on various matters throughout the country.
THE COURT: Are you an officer of the company?
MR. LUTZ: I'm not, no.
THE COURT: Are you authorized to bind the company to any legal contracts?
MR. LUTZ: I am not.
THE COURT: Are you salaried?
MR. LUTZ: No, 1099.
THE COURT: So you are a 1099 contracted entity and you just go around and sit in a Court and represent yourself to be the corporate representative of the company?
MR. LUTZ: Yes.
THE COURT: Mr. Torres, did you know this was Mr. Lutz's position, a paid corporate representative?
MR. TORRES: No, Your Honor, I did not.
THE COURT: Who is the president of Sunlust?
MR. LUTZ: I'm unaware.
THE COURT: Who is the vice president?
MR. LUTZ: I'm unaware
THE COURT: Who is the secretary?
MR. LUTZ: I have no idea.
THE COURT: Who owns Sunlust?
MR. LUTZ: I do not know.
THE COURT: Who signs your checks?
MR. LUTZ: I believe somebody in the accounting department.
THE COURT: What is their name?
MR. LUTZ: To be honest with you, I can't read the signature.
THE COURT: Where is the accounting department located?
MR. LUTZ: I'm sorry?
THE COURT: Where is the accounting department located?
MR. LUTZ: I've received checks from California.
THE COURT: How much are you paid monthly to be the corporate representative?
MR. LUTZ: Again, it depends on my appearances, the number of appearances that I do.
THE COURT: How much were you paid last month?
MR. LUTZ: Approximately $1,000.
Moreover, Paul Hansmeier — acting as AF Holdings' most knowledgeable person (not, it would seem, a particularly high bar) testified that Lutz is the CEO or "manager" of AF Holdings, but is not paid anything for that position, and despite being AF Holdings' sole employee, has arranged for Alan Cooper (whom Prenda Law now says is a crazy violent ne'er do well) to sign copyright assignments on behalf of AF Holdings, because Mark Lutz is a busy man:
Well, it would be speculation as
to why AF Holdings took one action or another. I would
say that, for example, you know, Mr. Lutz is an
individual. There are a certain number hours in a day
and for him to accomplish everything he's going to
accomplish in any given day, or for anyone in any
capacity in any business, you rely on third parties to
aid you to accomplish various tasks.
Meanwhile, Mark Lutz — who showed up at a hearing before Judge Wright without counsel, and apparently showed up as a corporate representative in a court in Florida dressed like he was going shrimping afterwards — may or may not have children in the future, and if he does, those children will be the beneficiaries of the trust that owns AF Holdings, which, we are assured, is a perfectly legitimate business conducting good-faith copyright litigation to protect its interests in movies. Those movies, by the way, have never yielded any money except through litigation, and that litigation has only yielded money to the Prenda Law lawyers and their related "experts."
Nonetheless, Mr. Nazaire will have you believe, it is outrageous and sanctionable for Mr. Patel to seek sanctions and ask the Georgia federal court to conclude an inquiry into whether Prenda Law and AF Holdings have concealed the true ownership of AF Holdings.
Gentle readers: draw your own conclusions.
Sure, What The Hell, Let's Bring In Booking Photo Extortion Too
Showing the sharp wit and unerring eye for palatable arguments that characterizes his entire brief, Mr. Nazaire also launches a personal attack on Mr. Patel's lawyer Blair Chintella. In a salvo that I'm sure the judge will find pertinent and not at all gratuitous, Mr. Nazaire asserts that Mr. Chintella is pursuing his own interests rather than the interests of his client, and asserts that Mr. Chintella has an unreasoning grudge against John Steele (the same John Steele Mr. Nazaire suggests is entirely irrelevant to this case):
Mr. Chintella perhaps believes that Mr. Steele has spread Chintella’s mug shot, from a 2011 DUI arrest, across the Internet. However, Mr. Chintella’s mug shot was circulated by infamous websites that post mug shots from public arrest records and demand monetary payment for their removal (www.bustedmugshots.com and www.justmugshots.com). Nevertheless, Plaintiff believes that Chintella’s acrimony towards Steele is important context for the Court to consider when reviewing Defendant’s motion, which seeks, inter alia, substantial relief against Steele, even though Steele is not a party or attorney involved in this case. Plaintiff’s attorney has a copy of the mugshot and can provide the same to the Court if so requested.
Truly Mr. Nazaire's distaste for "extortion" is touching.
Mr. Chintella may be mildly and temporarily embarrassed that a 2011 DUI arrest has been emphasized in a pleading in federal court. I suspect, however, that transitory and mild embarrassment will pale compared to the impact Mr. Nazaire's connection to this matter will have on his reputation. Potential local counsel for Prenda Law or the Prendateers, take note.