17 Oct Update – Troll Michael Hierl (Dallas Buyers Club LLC) Refiles Cases On Two Does Who Filed Motions – 1:14-cv-04940 (IL)

17 Oct 14 Update

It has been over a month since Troll Michael Hierl dismissed Does # 15 & 22, and then immediately filed single-Doe cases against them (details below).  I surmised that this was done to remove the possibility that the court would sever all Does except for #1.  The Troll dismissal mooted the motions and allowed the Troll to continue threatening to name people in the case unless they pay a settlement.

As of today (17 Oct 14), there has been no real movement in any of the cases (1:14-cv-04940, 1:14-cv-071281:14-cv-07129).  For the main case, I expect troll Hierl is still trying to get people to pay-up.  For the two single-Doe cases, I believe the Troll will keep them open until the court closes them for lack of action.  Troll Hierl could have easily resubmitted his template-based Early Discovery request for Does #15 & 22 (and possibly gotten it).  BUT as these Troll/Plaintiffs/APMC do not want to waste time and money fighting, it is cheaper to just pay $400 per case and essentially keep a trouble-making Doe/Attorneys out of their business for the time being.  They might even get lucky enough that a court will not award attorney fees/costs to the Defendant after the second dismissal.

The second dismissal for Doe #15 (1:14-cv-07128) could actually come about next month.  On 25 Sep 14, the Judge Gary Feinerman, set a status hearing at 0900 on 10 Nov 14.   Stat_Hearing_07128(IL)

More to come.  AND Go Giants!

DTD 🙂

 

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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.

CTBC_parody1As 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 $80,000 (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).

PUSU_Cat2I 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!

About DieTrollDie

I'm one of the many 'John Does' (200,000+ & growing in the US) who Copyright Trolls have threatened with a civil law suit unless they are paid off. What is a Copyright Troll? Check out the Electronic Frontier Foundation link - http://www.eff.org/issues/copyright-trolls
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6 Responses to 17 Oct Update – Troll Michael Hierl (Dallas Buyers Club LLC) Refiles Cases On Two Does Who Filed Motions – 1:14-cv-04940 (IL)

  1. illcoolz says:

    Hi there! I’m sorry if this is off topic, but I couldn’t find a contact form. I received an email from a VPN provider I am signed up with, regarding a DMCA request from a file I downloaded. Anyways, I went to the CEG site and I payed the $250 -.-. I was kind of worried you know? Anyways, I don’t live in the USA, so do you think because they know who I am or that I live in another country, I would face any more trouble from them in the future? Or I shouldnt worry about it. Because I am worried. Thanks.

  2. WDS says:

    I hope the attorneys of Doe’s 15 & 22 notified the ISP that they have been dismissed. I would trust the troll not notify the ISP that is wasn’t supposed to respond with respect to those IP addresses.

  3. Anon E. Mous says:

    After reading this it sure does paint a picture of the trolls and how these lawsuits proceed and how the courts are being gamed by the trolls. Here there were two Does who obviously knew better than to just up and pay the trolls their extortion -er- settlement money

    These two Does went and sought legal advice and went forward in having a lawyer defend their alleged allegation of infringement. The troll when faced with someone who was not going to buckle under with the threat of massive lawsuits damage awards or send us a settlement check. in their pursuit of justice, removed theses two who decided not to buckle from the originally filed case and then proceeded to file single cases against them.

    This constitutes exactly how the troll are gaming the system. I would seriously hope the Judge who is assigned this case throws some serious side eye at the trolls over the removal of these two Does from the original filing and then the subsequent single filing on both does in the same jurisdiction.

    In my opinion the Judge should not let the trolls get away with removing these two Does from this case and filing single cases against them because the decided to challenge the allegations against them alleged by the trolls. I am going to hope the Doe defendants counsel will point out to the Judge that this was done to avoid the trolls having to litigate this case and filings in it before the court on the issues at hand,

    So basically the Trolls wanted as little resistance as possible to the allegations in hopes they can get the settlement machine underway and squeeze as many victims of their cash before they tuck tail and run.

    The case against the two trolls is more or less a shot across the bow at any defendant who decides to fight and the message is: fight us and we will tie you up in court for as long as possible while ringing up costs for your legal bills while ours costs are insignificant ( my opinion of course )

    I would hope that the Judge will not allow the Trolls to weasel the two Does out of the original filing simply because the trolls wanted as little opposition to their settlement scheme as possible along with having as little scrutiny from the court as possible, lets hope the Judge cast a serious look the trolls way if Does counsel enlightens the court of this fact.

    I expect the trolls will try and drag this out in hopes of pressuring the two single filed against does that their legal costs will rise unless they would like to get out from under for a price cheaper than if they fight them ( you can fell the ooze from the sleaze in that mentality ) my opinion of course but we have seen these types of reaction from the trolls in other bit torrent copyright cases ( aka revenue generation thru the pretense of protection and enforcement.

    We will have to wait and see how the court looks at it. Hopefully the case wont be assigned to a Judge who does little reading and wields the rubber stamp with little restraint. If this is assigned to a Judge with some common sense, we may see some intelligent decisions come forth..

  4. Pingback: Happy Holidays From DieTrollDie – Multi-Topic Post (Copyright Trolls Suck!) | DieTrollDie

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