This article concerns the rampant Dallas Buyers Club (DBC) cases, most notably in the IL Northern District. Since these cases started in February 2014, I count over 3100 Does in over 125 cases in various jurisdictions. One case of interest is 1:14-cv-04940, Dallas Buyers Club LLC v. Does 1-44, Northern District of IL, Troll Michael A. Hierl, Hughes Soco Piers Resnick & Dym, Ltd.
It appears to be the standard DBC Copyright Troll Case against 44 ISP subscribers/public IP addresses. Early discovery of ISP subscriber information was granted and the Does have started to get notices from the ISPs. What I wanted to draw attention to is that two Does (Does #15 & #22) hired attorneys and motions were filed (4 Sep 14) seeking to quash the subpoena, as well as vacate the early discovery, and proceed anonymously. MTSVQ_Doe22_09490(IL) MTQ_Doe15_09490(IL) Both motions are good, but I really like the one from attorney Ross Drath, Davis McGrath, LLC.
Subsections of interest in Doe #22’s Motion
- This Court Should Vacate its Order as to Defendant and Quash Plaintiff’s Subpoena as to Defendant, Because Plaintiff has not Shown Good Cause to Take Early Discovery and Issue Such a Subpoena under the Sony Music and Semitool Standards.
- Plaintiff’s Subpoena is not likely to advance the case because Defendant’s counsel is already willing to accept service of process on Defendant’s behalf, and because the subpoena targets subscribers rather than infringers.
- Plaintiff has not set out a prima facie case of copyright infringement, because it has only alleged that Defendant downloaded imperceptible data, which is not “original” and therefore not copyrightable material.
- In Addition, the Court Should Grant Movant Leave to Proceed Anonymously Through Discovery and Dispositive Motions.
Take a read and you will see attorney Drath wrote a very good motion. The main points in the motion were backed up by sound logic and case-law. Responding to this motion would not have been very much fun for Troll Hierl.
So on 12 Sep 14, Troll Hierl decided to simply dismiss (without prejudice) Does #15 & #22 from the case. Doe15_Dismiss_09490(IL) Doe22_Dismiss_09490(IL) Order_Motion_Moot_04940(IL) The dismissal removes the possibility of severance for the remaining Does, as well as mooting the claim that Plaintiff has not plead even a prima facie case of copyright infringement. Then in true Troll fashion he immediately filed single Defendant cases against both of the Does (links to archive docket below). The move to dismiss and file single Defendant cases was likely done to send a message to any Does who are considering filing a motion or fighting back.
This tactic can work well for a Troll/Plaintiff – that is until someone decides to fight back. Elf-Man LLC found this out the hard way when Mr. Lamberson and attorney Lynch put the hurt on them. Troll/Plaintiff has essentially said, “Put up or shut up.” I must say this is the reputation I have heard of concerning Troll Hierl.
- Doe 15 Case 1:14-cv-07128 (ILND)
- Doe 22 Case 1:14-cv-07129 (ILND) Complaint_Doe22_07129(IL) Complaint_Doe22_EXs_07129(IL) (Thanks for the RECAP!)
As it stands, the early discovery against Does #15 & #22 is no longer in effect, as they have been dismissed from the mass case. Troll Hierl may resubmit the early discovery request for these Does in the future. As he still has multiple Does remaining in the main case, I expect him to focus most of his efforts on settlement collection. I would not put it past Troll Hierl to string out the cases against Does #15 & #22 for as long as possible. Quite possibly not even making an early discovery motion until the very last moment; or not at all. By removing these two “trouble-makers,” he can focus his efforts on getting as many settlements as possible. This is exactly what the controlling interest (Anti-Piracy Management Company (APMC)) wants. The two Does might even get voluntarily dismissed by Troll/Plaintiff or the court for lack of action.
So Why Would There Be No Action Taken Against These Does?
By taking no action, Troll Hierl does not have to respond to any motions or risk an adverse ruling by the court. This of course saves him time and money. The remaining Does see that filing a motion will not resolve the issue and even may cost them more money than simply settling, regardless of culpability. We all know that Troll/Plaintiff/APMC (What is APMC? Presentation) does not want to disclose the inner working of their operation, as it would likely first kill the mass-Doe cases and eventually the single Doe cases would be harder to work. Even Troll Lipscomb/Malibu Media/X-Art understand what such a disclosure would do to their operations.
Now I could be wrong that Troll Hierl will not immediately seek early discovery against Does #15 & #22 (I haven’t seen it as of publishing this article). Maybe Troll Hierl and APMC actually believe they will obtain the identity of the Does and then force a settlement or “walk-away” deal (cost of doing business decision). I’m sure that is what Troll Maureen VanderMay thought when they named/served Mr. Lamberson in WA. It didn’t work out as planned. Troll/Plaintiff will try to avoid any/all case activity that will raise their costs and risk their operation.
What Would A Denied Early Discovery Mean To Doe #22?
Troll/Plaintiff will not have the advanced knowledge of who the ISP subscriber is and thus will be unable to conduct any background checks on him/her, their residence, other people in the residence, etc. They may eventually get this information, but it will likely require Troll/Plaintiff to first serve the Defendant and move forward with Discovery. Serving the Defendant based only on the IP address is risky (and rash) in my opinion, as they are claiming the Doe is the “infringer” ONLY because his/her name is on the ISP account.
Moving forward with normal two-sided discovery is what Troll/Plaintiff wants to avoid. Based on all the previous work that has been done by attorneys such as Morgan Pietz and Christopher Lynch, attorney Drath would have a great starting point upon which develop his own line of inquiry into this Plaintiff/APMC. Such as the BT monitoring shelf-company, Crystal Bay Corporation (CBC) and Daniel Macek.
Where Is This Likely To Go?
My opinion is the most cost-effective course of action for Troll/Plaintiff is to string the cases along with little to no action. Collect as many settlements as possible from the remaining Does and then dismiss the cases. As I have previously stated, the amount of profit made in these cases is large. If approximately half of the Does in this case settle for $4,000, that works out to be $80,0000 (20 Does X $4,000 = $80,000). Case filings ($1,200) and ISP charges probably cost them under $2,000. So then it is just a matter to pay out the interested parties (Troll Hierl, APMC, and Plaintiff) from $78,000. Even if they on get 10 Does to settle, that is $40,000! Note: These amounts will only be realized if they are able to eventually dismiss the case and avoid having to pay attorney fees/costs for Does #15 & #22.
Case Adjudicated On The Merits
This is the part that will make things interesting. As both of these Does were dismissed from the main case, Troll/Plaintiff has to know that a second dismissal essentially mean the Does have been cleared of the allegations and are the prevailing party. See FRCP 41(1)(B). Prevailing parties in Copyright Infringement law suit are (in most cases) allowed to motion the court for an award of reasonable attorney fees and costs. Now if the Troll can keep the case activity to a minimum, the fees/costs portion could be low enough not to eat away too much of their profit margin. If they decide to play hard (and stupid) they will simply run up the defense bill up just like Troll VanderMay/Elf-Man LLC did (approx. $200K and rising/Not to mention the two motions for sanctions).
I have said it before and will say it again; the BT Copyright Troll business model is much like playing poker. “You’ve got to know when to hold ‘em. Know when to fold ‘em. Know when to walk away. Know when to run.“
DieTrollDie :) Run Troll Run!