The Ninth Circuit Offers Prenda Law A Brusque Bench-Slap

The notorious gang of crooked fraudsters and copyright trolls Prenda law — documented extensively here — continues to face bad fortune. Last month we learned that the FBI is investigating them. Now, the United States Court of Appeals for the Ninth Circuit has affirmed the apocalyptic sanctions order that marked their turning point — Judge Wright's geek-reference-laden death blow sanctions order.

We shouldn't be surprised, as the Ninth Circuit oral argument more than a year ago went very badly for Prenda. The Ninth Circuit's languidly decided opinion is worse. You can read it here. It's unpublished, suggesting that the judges didn't view it as presenting sufficiently novel issues to merit publication. It's also relatively brief and informal, suggesting the panel didn't think that any of it presented a close call. It accepts Judge Wright's conclusions as well-supported by the record and repeats them to brutal effect:

Based on the myriad of information before it—including depositions and court documents from other cases around the country where the Prenda Principals were found contradicting themselves, evading questioning, and possibly committing identity theft and fraud on the courts—it was not an abuse of discretion for Judge Wright to find that Steele, Hansmeier, and Duffy were principals and the parties actually responsible for the abusive litigation. Similarly, it was not an abuse of discretion for Judge Wright to find that the Prenda Principals were indeed the leaders and decision-makers behind Prenda Law’s national trolling scheme.

. . .

The Prenda Principals have engaged in abusive litigation, fraud on courts across the country, and willful violation of court orders. They have lied to other courts about their ability to pay sanctions.

Prenda's dead. The courts are bouncing the rubble and the FBI is ambling out to slit the throats of the wounded.

Good riddance.

Last 5 posts by Ken White

Comments

  1. mcinsand says

    But, but, but… if the FBI finishes off what's left of Prenda, what's left for the IRS?

  2. Matt says

    Non-lawyer question: What does it mean for an opinion to be published vs unpublished?

  3. Jim Tyre says

    @Matt

    An unpublished opinion is as binding on the parties as a published one. But it has no precedenial value, it can't be cited in the proverbial Smith v. Jones case.

  4. Matt says

    @Jim Tyre: Thanks.

    Looking back, Ken thought that the appeals court might uphold the civil and send back for a proper criminal contempt hearing, any thoughts on why they didn't? A bit of charity in not bouncing the rubble too far, perhaps?

  5. Jim Tyre says

    @Matt
    Just speculation on my part, I have no inside knowledge. But I suspect the court just wanted to put an end to the affair, as simply and easily as it could. Indeed, that's one reason (not the only) why I think the opinion was unpublished – other things being equal, an unpublished opinion is less likely to be reviewed than a published one.

    The opinion certainly does not preclude criminal proceedings, as per Ken's recent post about the FBI investigation.

  6. Fasolt says

    @mcinsand:

    But, but, but… if the FBI finishes off what's left of Prenda, what's left for the IRS?

    The IRS will be there with buckets to catch the blood.

  7. JTM says

    I think Jim Tyre is right about the court just wanting to end it. By keeping the sanctions civil rather than criminal, the 9th avoided the issue of whether the Prenda gang got sufficient due process, and still locked in Judge Wright's brutal factual findings.

    That it was unpublished is somewhat disturbing to me. The 9th sometimes uses unpublished cases to circumvent precedent in the case before them (don't want to follow the rules, but don't want to change them, so ignore them and make the decision unpublished).

    I have concerns about the due process Prenda received and whether there was sufficient evidence for Judge Wright's sweeping findings. I also think the 9th's efforts to turn the punitive sanctions into compensatory damages had a bad smell to them. I understand the 9th not wanting to reduce the sanctions award because Judge Wright was a little sloppy. But the judge invoked the Wrath of Khan. The sanctions were eye-for-an-eye Old-Testament-style retribution. The 9th should have owned that.

    Prenda is toast now that the courts have caught on, but they still should get due process and have the law applied fairly. It seemed like the 9th was reaching a little (and I wonder how much Judge Wright's Star Trek references may have tipped the balance in his favor).

  8. Charles M says

    The opinion says that "[Prenda] also failed to pay their own attorney's fees in this case". Does that mean they didn't pay Voelker for representing them on appeal, or is that only referring to the fees that were imposed by Judge Wright?

    It's tempting to send Mr. Pietz a congratulatory letter. Probably totally improper, but tempting.

  9. jb says

    As a non-lawyer, I have to say that this is ultimately completely unsatisfying. This has been dragging on with them free at least to walk around for years now. They're judgment-proof or will be. Any jail time they see will be less, and their lives will be ruined less, and slower, than many people who committed less harm.

    I'm not calling for extrajudicial punishment of any variety, but the extent to which Prenda is facing a just fate is mainly apparent to legal procedure junkies. I'd feel better if they all had spent the last 3 years in jail on contempt charges.

  10. andrews says

    it was not an abuse of discretion for Judge Wright to find that Steele, Hansmeier, and Duffy were principals and the parties actually responsible for the abusive litigation. Similarly, it was not an abuse of discretion for Judge Wright to find that the Prenda Principals were indeed the leaders and decision-makers behind Prenda Law’s national trolling scheme.

    Is this the correct standard? Findings of fact are often reviewed for competent substantial evidence. What to do about the facts may be reviewed for abuse, so the sanctions flowing from the facts are thus protected against strenuous review, but the facts themselves need only be supported by competent substantial evidence.

    On the whole I think the transcripts and papers provide ample support for the findings of fact. So the wrong standard of review does not matter much. It could provide an opportunity for Prenda to try to take it to the Supremes. I suppose they could also seek en banc correction, which would be cheaper and ultimlately leads to the same result.

    Since this one is unpublished, I doubt there will be much citation to it for correct standard of review by someone benefitted by bad fact-finding.

  11. Bascombe says

    Courts of appeal show great deference to the district court on findings of fact in bench trials, remanding the case to a different judge only if the findings were "clearly erroneous". In a jury trial, a case is remanded only if the facts are not supported by "substantial evidence".

    Fact finding is not absolute; if a defendant was found standing over a dead body with a smoking revolver in his hand but the eyewitness didn't actually see the defendant pull the trigger, two equally impartial judges could make contrary findings of fact as to whether the defendant is undoubtedly the murderer. Judge A could conclude that the defendant fired the fatal shot, while Judge B could decide the evidences is not sufficient to reach that conclusion because somebody "mystery party" could have fired the shot, handed the gun to the defendant, and fled the scene. Neither finding is "clearly erroneous" because both are plausible and logical interpretations of the testimony. The appellate court would not second guess the findings of fact unless they conclude that no rational jurist could arrive at such a conclusion.

    Appellate courts are far more involved in reviewing errors of law; did the facts as applied to the written law and precedent justify the verdict. Once the 9th Circuit bought off on the findings of fact, it was not difficult to uphold the civil sanctions. If they had been stylized as a combination of criminal and civil sanctions, it might have been a different story.