9 Nov 2012 Update
On 9 Nov 12, Judge Charles Breyer, granted Nicholas Ranallo’s motion to post undertaking in AF Holding LLC., v. David Trinh, 3:12-cv-02393. TRINH UNDERTAKING GRANTED This was the motion to require AF Holding LLC to post a security bond in accordance with California Code of Civil Procedure, Section 1030. Ranallo requested a bond of $88,000 but judge Breyer decided that $48,000 was appropriate. Of course not as high as we would have liked it, but it is still a success.
Judge Breyer decision was based on 1) AF Holdings LLC is a foreign company & 2) The Defendant has a reasonable probability of getting a judgment in his favor.
Defendant has demonstrated that Plaintiff is a foreign corporation. See Comp. (dkt. 13) ¶ 2 (“Plaintiff AF Holdings LLC is a limited liability company organized and existing under the laws of the Federation of Saint Kitts and Nevis.”). Defendant has also shown a reasonable probability that he will obtain a judgment in his favor. He has done so by noting that Plaintiff’s current evidence of infringement is weak. See Mot. at 7 (citing SBO Pictures, Inc. v. Does 1-3036, No. 11-4220 SC, 2011 WL 6002620, at *3 (N.D. Cal. Nov. 30, 2011) (“As many courts have noted, however, the ISP subscriber to whom a certain IP address was assigned may not be the same person who used the Internet connection for illicit purposes.”). He has also done so by noting that Plaintiff’s negligence claim is deeply flawed. See Mot. at 11 (citing Trinh Ex. B, an order of Judge Hamilton in AF Holdings v. John Doe & Josh Hatfield, No. 12-2049 PJH (dkt. 26) at 4 (dismissing similar negligence claim and explaining that defendant had no duty to prevent infringement of plaintiff’s copyrighted works)).
The judge ordered Plaintiff to post the $48,000 bond no later than 30 days from this order or the case will be dismissed.
The first shot of the double tap has been a success and I’m sure there will be more to follow. What a nice start to the weekend.
Well I’m back home and things are crazy as usual. Sorry if my response to some of you has been a bit slow. Recently we have had a variety of interesting developments in Copyright Troll cases across the US. So much so that I wish I had a clone to assist me in analyzing and reporting it all. The war against Copyright Trolls is being fought on many levels and by some extremely bright individuals and firms. We are a couple of years into this fight and I don’t expect it to end very soon. What I do see is the effect all of you are having on how the Trolls operate. Please don’t give into FUD. You assistance, no matter how small is welcome and needed.
For those of you who have the willingness to fight or if you are being forced to, I have a double tap tactic you should consider using. These tactics came from attorneys Nicholas Ranallo and Robert Cashman. Thank you gentlemen.
Show Me The Money
On 5 Oct 12, Ranallo submitted a motion to require Plaintiff (AF Holding LLC) to post a financial bond in the sum of $85,000. 1030Bond_Motion_02393(CA) This was on case 3:12-cv-02393, AF Holding LLC., v. David Trinh, Northern District of CA. Docket Ranallo used the California Code of Civil Procedure, Section 1030 to justify the motion for a financial bond from Plaintiff. CA CCP 1030 is very straight forward.
(a)When the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney’s fees which may be awarded in the action or special proceeding. For the purposes of this section, “attorney’s fees” means reasonable attorney’s fees a party may be authorized to recover by a statute apart from this section or by contract.
(b)The motion shall be made on the grounds that the plaintiff resides out of the state or is a foreign corporation and that there is a reasonable possibility that the moving defendant will obtain judgment in the action or special proceeding. The motion shall be accompanied by an affidavit in support of the grounds for the motion and by a memorandum of points and authorities. The affidavit shall set forth the nature and amount of the costs and attorney’s fees the defendant has incurred and expects to incur by the conclusion of the action or special proceeding.
On 16 Nov 12, Judge Charles R. Breyer will determine if a bond is needed and the amount required to be posted by Plaintiff. As you can imagine Prenda Law LLC was not amused. On 19 Oct 12, Brett Gibbs (at least his signature is on the response) filed a response to the motion. Gibbs_Reply_1030_02393(CA) Gibbs_Reply_EXA_02393(CA) Reading this response was amusing and I saw who was the “True” author of it – John Steele. On 26 Oct 12, Ranallo made his response to Gibbs/Steele and had the tact not to engage in personal attacks that Steele needs to bolster his ego and the pending downfall of one of his cases. You have to ask, “What has gotten you so riled up John?” ;) Take the time to read Ranallo’s response and you will see professionalism. Ranallo_Reply_1030_02393(CA)
I don’t know Judge Breyer, but the way CA CP 1030 is written, I think it will be hard to dismiss it and not require a bond to be issued. 1) AF Holdings LLC is a foreign Company & 2) There is a reasonable possibility that Trinh will be successful. What this motion does is make the Plaintiff put up the funds to cover a defeat. This goes against one of the founding principles of these unholy alliances – The Troll foots most (if not all) of the cost up front and is paid out when the settlements come in. With this motion, Plaintiff now has to take on the risk. This is not a risk the Troll or Plaintiff wants, as unless they can get somebody to make an admission, all they have is the public IP address of a defendant (Weak Evidence). This alone is justification that a Plaintiff can lose. We saw this in the Wong, Abrahams, and Hatfield cases. More to come on this interesting tactic.
“Joinder Is Proper” (Troll Quote)
This one comes from the Cashman Law Firm, PLLC’s site. On 26 Oct 12, Cashman suggested a new tactic where a defendant in a single defendant case (previously part of a mass one) motions the court to either dismiss the second case or join all the previous Does to the current one. Force a copyright troll to fight the WHOLE BITTORRENT SWARM every time he names someone.
The dismissal of the single case would be because: 1) The mass-Doe case (single Doe is part of) was filed first. & 2) Joinder of ALL relevant parties is required by federal rules. Now if the mass-Doe case has been fully dismissed, the motion would be to join all the previous defendants to the new case.
Please read Cashman’s article, but the basic premise on doing this is to make the Troll fight a case with as many defendants as possible. Even if the mass-Doe case only has 17 defendants, the Troll will be unable to cope. It isn’t a matter of the Troll being incompetent (well some are), just the logistics would require all the Troll’s efforts and finances. They would not have the time to file new cases or issuing settlement demands to Does. Now the Trolls are going to whine to the court that the Defendants are just gaming the system to their advantage and should be dismissed. What makes it hard for the court to dismiss such a motion is by using the Trolls’ own words (and case filings) against them. Here is one example from Prenda Law case # 5:11-cv-03336, AF Holdings LLC., V. Does 1-135 (NDCA), filed on 7 Jul 11. Note: This is the mass-Doe case Joshua Hatfield was initially part of.
5. Joinder of Defendants is proper for just adjudication because all Defendants participated in a civil conspiracy to commit copyright infringement, which comprised of a series of transactions that ultimately ended in the Doe Defendants’ illicit distribution of Plaintiff’s unique copyrighted work amongst one another. The series of transactions in this case involved exchanging pieces of the Work’s file over the Internet amongst Doe Defendants with each Doe Defendant sharing pieces of Plaintiff’s copyrighted file with each other (otherwise known as “torrent swarming”) to obtain a complete copy of Plaintiff’s Work. The nature of the BitTorrent distribution protocol necessitates a concerted action by many people in order to disseminate files, such as Plaintiff’s Work…
Here is what the Federal rules say about “Joinder. The motion to join all relevant parties would go something like this. Your Honor, Plaintiff has previously claimed in case # 5:11-cv-03336, that all Doe defendants were properly joined. Plaintiff now tries to claim joinder is not supported, but fails to provide any justification or evidence to support this view. The legal principle of Estoppel prevents Plaintiff from doing this.
The best the Troll can try to do is state that since the Doe was not “named” in the first case, that the cases are not related. Yes it is a sad little argument, but we have already seen Prenda try to claim this. The argument is extremely weak when you bring out the Troll settlement demand letter or emails stating in no uncertain terms that you are responsible for the copyright infringement because of the public IP address associated to your name.
This tactic could also be used to force the Troll to disclose the Doe identities it obtained from the mass case, as well as who settled. The fact some Does settled under a confidentiality agreement would not prevent a defendant from gaining access to their identities. The Does from the mass case may have information relevant to the single defendant’s defense and/or counterclaims against Plaintiff. Even on a worse-case scenario where a defendant loses, the amount of settlements collected by the Troll is still relevant because they previously claimed ALL the Does were jointly and severally liable for this action. There is case-law to support this (but I will not make it easy for the Troll at this time).
Example - case 5:11-cv-03336, AF Holdings LLC., V. Does 1-135. Prenda Law is actually successful is getting a judgment against a single defendant (don’t laugh!) for $100,000. The defendant motions the court to have Prenda disclose the total amount of settlements it obtained from Does associated to 5:11-cv-03336. The court would then have to determine how the settlements collected would adjust the amount owed by the defendant. This adjustment would no doubt lessen the amount owed to Plaintiff.
Sorry for running on so much, but both of these tactics are going to come back and bite the Trolls on their @#$!. I can’t wait to see how the Section 1030 Bond motion fares next month. As far as the motion to Join all relevant parties, I think the trolls are going to steer clear of Cashman in Texas. Boy do we live in interesting times.