Roca Labs, Lacking A Hornet Nest Into Which It Could Stick Its Dick, Has Sued Marc Randazza

This crazy litigant goes to 11.

Roca Labs, you may recall, is the weight-loss-goo purveyor that is belligerent, litigious, and sensitive to criticism to a pathological degree. Last month I wrote about how they require their customers to sign no-criticism contracts, and had sued for carrying negative reviews. Yesterday I lit the Popehat Signal to seek help for customers Roca Labs has targeted with vexatious litigation — including, in what no doubt is just a big coincidence, one of the witnesses against them in their first litigation.

Can Roca Labs push the envelope more? Yes they can.

Today Marc Randazza — counsel for in Roca Labs' frivolous suit — filed an updated notice of related cases in the PissedConsumer case. That updated notice revealed that Roca Labs has now sued Randazza himself for his activities defending

The complaint itself — which I have uploaded here — brings the crazy and brings it good and hard. It was penned by Roca Labs' latest attorney, one Johnny G. DeGirolamo, a 2009 law school graduate and 2011 bar admittee, whose website is No, really. His site offers a flattering headshot of a smiling advocate, and it was a very good choice to use that picture rather than, say, his booking photo.

Roca Labs, through Johnny G., accuses Marc of interference with economic advantage and defamation per se1, demands a declaration that Randazza is wrong and he is libel, and moves for an injuction telling Marc to shut up. Yeah, good luck with that.

But that ain't all. The complaint is a model of prissy pearl-clutching. Johnny G. is aghast that Randazza has provided legal services to adult entertainment companies. Goodness gracious! Johnny G. is horrified that Randazza has been "an outspoken advocate for Phillip Greaves, the author of 'The Pedophiles Guide to Love and Pleasure.'" To be more accurate, Randazza has been an outspoken advocate for the First Amendment issues presented by Greaves' case, but it's not surprising that a First Amendment distinction is lost on the sort of attorney who wold represent Roca Labs. Johnny G. is cheesed off at Randazza's catchphrase murum aries attigit, which apparently suggests a level of aggression that is upsetting to a company that flails around suing its customers for criticizing it. In short, Johnny G. — bless his heart — does his best to make Marc Randazza sound terrible, and only wind up making him sound knowledgeable about free speech.

On to the substance of the claim, if I may use the term very generously. Roca — through Johnny G. — asserts that Marc has been defaming Roca Labs during this litigation by making statements to the press (or, as Johnny G. puts it, to "webzines") and then putting those same statements in court pleadings. They imply he's trying to cloak his statements to the media with litigation privilege by repeating them in court filings. This theory is . . . odd.

Moreover, Johnny G. and Roca Labs are conspicuously vague about exactly what statements are defamatory, and exactly how. Other than complaining that Randazza defamed Roca Labs through a very clearly satirical tweet on Halloween, there are few specifics. Roca Labs complains that Randazza's purpose is to "mock, ridicule, humiliate, harm, and continue his war against ROCA," but that's not very specific. Roca Labs complains about statements in articles by TechDirt and tries to attribute them to Randazza, but doesn't explain exactly what Randazza said and exactly how it was wrong. That lack of specificity is probably deliberate — if Roca Labs admitted they were mad over the term "snake oil," they'd have to confront the fact that the phrase is obviously protected opinion. See, e.g., Phantom Touring v. Affiliated Publ'ns, 953 F.2d 724, 728, 730–31 (1st Cir.1992) (holding that description of theatre production as “a rip-off, a fraud, a scandal, a snake-oil job” was no more than “rhetorical hyperbole”). Moreover, in some parts of the complaint Roca Labs is attacking statements that are clearly, objectively true based on Roca Labs' own court documents. For instance, Roca Labs angrily quotes a paragraph in which TechDirt accused them of trying to silence customers. Which is what they are doing.

Finally, the complaint attaches a motion for a temporary injunction, in which Johnny G. demands that Randazza cease and desist saying mean things about Roca Labs, retract prior mean things, and remove any online content about Roca Labs. At this point I have to admit that I don't know whether Roca Labs and Johnny G. are powerfully stupid, breathtakingly cynical, unapologetically unethical, or all three. Despite the fact that they are suing a renowned First Amendment lawyer, despite the fact that they are demanding an injunction silencing him, despite the fact that they have lost a similar injunction request in which Randazza schooled them on the First Amendment and prior restraint issues, and despite the fact that it is clear those issues will arise again, their motion makes no mention whatsoever of the overwhelming First Amendment and prior restraint issues presented by their demand.

Roca Labs is mistaking aggression for strategy. Randazza, by filing his notice of related case, has alerted the federal court hearing the case that Roca Labs is flailing around suing opposing lawyers, which will not go over well. Roca Labs has hired what appears to be an improbably matriculated Muppet to champion their case, despite a patent lack of qualifications. Roca Labs thinks that suing Marc Randazza to shut him up is going to end well. They should have asked Raanan Katz or Crystal Cox how that would turn out.

I'm calling it: Roca Labs has achieved Prenda status.

Edited to add: Adam Steinbaugh explains why Roca Labs' attempt to evade the litigation privilege is so frivolous.

Attorney Mike Meier Meets The Streisand Effect, Does Not Enjoy Experience

Attorney Mike Meier used to be only a little bit infamous. A few sites like Fight Copyright Trolls criticized him, painting him as someone who used to decry copyright trolling but then switched sides and became a copyright troll.

But those posts were relatively obscure.

Then Meier, whom one senses did not come to the law via rocketry, came up with a cunning plan: he sent DMCA notices complaining about blog posts criticizing him. There were several problems with these notices: (1) he sent them to the sites' registrars rather than their hosts, (2) he used them to complain about defamation, which is not covered by the DMCA, and (3) he complained about uses of his images that were clearly, on their face, fair use.

The natural and probable result of Meier's flailing attack was widespread infamy. His targets Fight Copyright Trolls and Extortion Letters ridiculed his hamfisted efforts. Those posts were picked up, and gleefully discussed, by far bigger sites including The Consumerist, BoingBoing, TorrentFreak, Techdirt, and others. The number of people who have read negative things about him has gone up by a couple of orders of magnitude. Some of the past unpleasantness he has experienced — like the time a federal court excoriated him in a sanctions order, or the time he stipulated to a reprimand by a state bar — have reached a far wider audience.

But Mike Meier's legal threat was not foolish just because it exposed his behavior to more readers. It was foolish because it exposed him widely as a fool. People hire lawyers they trust. They want to be able to rely upon their lawyer's advice, and to make difficult decisions based upon that advice. But who would trust the advice of a lawyer who would engage in a legal tactic that is so foreseeably self-destructive? If Meier had sent the DMCA notices on behalf of a client, I would call it rank malpractice and tell his client to consider suing him. In 2014, minimal legal competence requires an attorney to anticipate and understand the Streisand Effect.

Texas Attorney Carl David Ceder Makes Bogus Libel Threat Against Scott Greenfield of Simple Justice

"Never miss a good chance to shut up." "If you find yourself in a hole, stop digging." "It's not the crime, it's the cover-up." "First, do no harm." These familiar sayings all carry the germ of the same simple but true idea: when you're in a jam, it's easy to make it worse, so try not to.

Plano, Texas attorney Carl David Ceder ought to familiarize himself with that rule.

[Read more…]

A Brief Prenda Interlude: In Which I Am Accused Of Causing Embarrassment

All of Popehat's Prenda coverage is collected here.

It's been three months since I wrote a substantive Prenda Law post. Frankly, covering the well-deserved downfall and destruction of Prenda and its various agents can get tedious. I'll be posting a cross-country update sometime in the next few weeks.

For now, consider one small incident.

I previously described an AF Holdings case in Georgia, where Attorney Jacques Nazaire, representing AF Holdings, indulged in some ridiculous rhetoric in opposing sanctions. For example:

10. The defendant should realize that California has different laws than Georgia, a different Governor than Georgia; a different legislative body than Georgia, different business needs than Georgia and different views than Georgia and as such all of its decisions cannot serve as a mandate for Georgia.

11. For example the California Courts have legalized gay marriage. Perry v. Schwarzenegger 704 F.Supp.2d 921 (N.D. Cal., 2010);Certified question, 628 F.3d 1191 (9th. Cir.); Answered 52 Cal.4th 1116 (2011) Affirmed, 671 F.3d 1052 (9th Cir.) Such a decision cannot serve as a mandate on Georgia Courts to legalize gay marriage as well.


Anyway, since then, things have continued to go badly for Prenda, AF Holdings, and Mr. Nazaire. The Georgia court gave the defendant leave to take discovery into Prenda Law's operations in aid of the defendant's motion for sanctions. The court also denied Mr. Nazaire's motion seeking to limit that discovery. Now, undaunted, Mr. Nazaire has asked again for a protective order on behalf of AF Holdings, complaining that the defendants' inquiries into Prenda Law are simply too voluminous and intrusive. As part of that motion, Mr. Nazaire attaches comments to various blog posts discussing his client, including the comments to my post, and complains as follows:

9. Additionally, the Plaintiff is respectfully requesting that any future filings in this case may be filed under seal. This case has generated much unneeded attention on the internet. Please see Exhibits N-S. While the writers listed in exhibits N-S have the right to post these articles, unfortunately, these articles and blogs have created an embarrassment, misleading characterizations and perhaps an unsafe environment for plaintiff’s counsel and third parties. As such, plaintiff is respectfully requesting that all future filings be permitted to be made under seal.

10. Plaintiff 1) understands that the articles attached hereto have not been authenticated and apologizes to this Court for the same. In such a short notice of time, it is difficult to authenticate these press releases and postings; however, a search on any search engine will prove these articles and postings to be real; and 2) Plaintiff is not criticizing the authors of the press releases and postings and realizes that the attached postings were meant to be humorous and not spiteful; nevertheless, those not familiar with this case may misinterpret said postings. This may lead to anger by those not quite familiar with the case but yet familiar with the captions. As such, it may be best for the court to allow sealing further filings (which may include addresses and personal information of the parties and counsels herein).

So: Mr. Nazaire seeks to hide not only exhibits and documents (which might be a reasonable request if they contained private information), but court pleadings discussing the merits and progress of the case — to spare "embarrassment."

O Mr. Nazaire. To the extent these paragraphs refer to my post, you are correct that I did not mean to be spiteful, and correct that I try to employ humor, but you leave out that I intended to convey disgust for your client's nationwide campaign, which at least one judge has already concluded constitutes a criminal enterprise. Of course, I represent people accused of crimes all the time; everyone is entitled to a vigorous defense. However, your arguments on behalf of your client were ridiculous, and so I ridiculed them, and will continue to do so. Some of your arguments are contemptible, and I hold them in contempt, and invite others to do so.

Mr. Nazaire, you will not find many people sympathetic to your belief that vigorous coverage of this case — of all of Prenda Law's cases — is "unneeded." In fact that coverage is quite needed — it is essential to assuring that justice is done and to exposing structural flaws in our judicial system.

Truly, Mr. Nazaire, I have feelings about you or anyone associated with AF Holdings — including but not limited to Mark Lutz' hypothetical unborn children — experiencing "embarrassment." To explain those feelings, I invite you to consider Prenda Law's recent extortionate threats to contact the neighbors of the targets. Are you experiencing more or less embarrassment than your client contemplates inflicting there, Mr. Nazaire?

Oho! You may protest. That letter was sent by Paul Duffy! I work for AF Holdings, controlled by Mark Lutz, laboring for the benefit of a trust that benefits children yet ungotten and unborn!

Why yes, Mr. Nazaire, that was Mr. Duffy. May I assume that's the same Paul Duffy who — according to metadata — drafted your most recent motion for a protective order complaining about embarrassment?

I can understand how you might prefer not to answer that question, Mr. Nazaire, being sensitive to posts that "lead to anger."

My dear Mr. Nazaire. Are you quite sure you have considered all of your options?

More Great Moments In Legal Marketing: MyMotionCalendar.Com

I have a partner here in my office in Los Angeles. Today he got an email from, an outfit that offers independent contractor attorneys to cover court hearings.

From: []
Sent: Thursday, July 11, 2013 1:05 PM
Subject: Hearing Wednesday July 17, 2013 @ 10:45- Marianna, Jackson County.


I was inquiring on if you were available to cover a hearing for us on Wednesday July 17, 2013 at 10:45 pm In Marianna, Jackson County. [Note: that part is highlighted in yellow in the original email.] This hearing simply involves a motion to dismiss. Please let me know if you will accept covering this hearing for us for the flat rate of $75.00. [Ditto] I will attach all relevant documents and information to assist you if you can confirm that you can attend. Please confirm that you accept covering this hearing for us with a response to this email. Thank you.

In re: US Bank National Assoc vs. [Unfortunate Person] Case No. 209CA1262 Internal Case ID 12-003054

Type of hearing Hearing Court's Motion Type: Motion for Summary Judgment
Representing Plaintiff City Defuniak Springs, FL Walton County
Date: Wednesday, July 17, 2013 at 2:00pm (orderID:76446)

Best Regards,

Lisa Marie Rodriguez,
1001 W. Cypress Creek Road, Suite 407
Ft. Lauderdale, FL 33309
[phone numbers]

Note that Ms. Rodriguez seems confused: the text refers to a motion to dismiss hearing in Jackson County, but the case information block refers to a summary judgment hearing in Walton County.

So: would like my partner to fly to somewhere in Floria to represent U.S. Bank at hearing — maybe a motion to dismiss, maybe a motion for summary judgment — for $75. Or would it?

I have a few questions for

1. Is this a real solicitation for an attorney to join you as one of your contract attorneys for a real hearing? Or is this an advertisement, using a fake hearing, to solicit either our business (to pay you for hearing coverage) or participation (as contract attorneys)? If it is an advertisement, does U.S. Bank know that you are using a (real or fake) case bearing its name to solicit business?

2. If it's an advertisement, disguised as a shout for help on a real hearing, then why would anyone — contract attorney or customer — want to do business with a company that advertises by fraud? Also, if it's an advertisement, why haven't you — a company nominally providing legal services — complied with the CAN-SPAM Act?

3. If, on the other hand, this is a real solicitation, genuinely seeking help from some attorney on a hearing:

a. Why would any contract attorney, or any customer, want to trust a company that is so freakishly incompetent that it is soliciting Los Angeles attorneys to got to Florida to handle hearings for $75?

b. Why would any contract attorney, or any customer, want to trust a company that is so freakishly incompetent that it can't keep straight what county the hearing is in, or what type of hearing it is?

c. Do you honestly think that any competent attorney can prepare for, and attend, a hearing on a motion to dismiss or a motion for summary judgement for $75? Either of those motions can result in the permanent end of the case, or the wrongful continuation of the case, to the substantial detriment of one side or the other. For $75? Really? How much time do you think that attorney is going to spend, for $75, preparing to argue what may be the incredibly complex matters presented in the motion? What kind of lawyer, or client, would trust a business that says "simply involves a motion to dismiss?"


4. Who the holy hell hires you people? If lawyers or law firms use you, do they disclose to their clients that they are subcontracting out their legal and ethical obligations at $75 per hearing to a company that doesn't know how far Los Angeles is from Florida, or, alternatively, to a company that gets business by lying? Do they know that they are trusting their cases to a company that sends $75 lawyers to handle "simply" a motion to dismiss?

This is what the marketeers are doing to the legal profession.

Edited to add: If you share my questions, perhaps you could ask company founder Jonathan Broder at

Former Bush Administration Attorney Threatens Bloggers As He Faces Federal Sentencing

Scott Bloch used to be a deputy director to the Department of Justice's Task Force for Faith-based and Community Initiatives under President George W. Bush and a Special Counsel at the United States Office of Special Counsel. Now he's a defendant in a federal criminal case, and has pleaded guilty to a misdemeanor for approving a "seven level wipe" on certain Office of Special Counsel computers, and now faces sentencing. This represented a milder charge than ones the government previously pursued: the feds charged him initially with contempt of Congress but abandoned that charge after Bloch was allowed to withdraw a guilty plea to it.

In addition to all that, it appears that Scott Bloch is a censorious thug.

Empty Wheel — which has been following Bloch's prosecution closely — has a post describing how Bloch has threatened bloggers writing about his case. Empty Wheel attaches and quotes a letter on Scott Bloch's own law firm letterhead. It includes the following language:

I write to demand that you remove these articles and blogs about me and my time as Special Counsel immediately. This is harmful to my professional reputation as a lawyer and you are not commenting on any public matters that are current. The prior legal defense fund is defunct and has not been active for over two years. Your demeaning and personal attacks impute to me qualities that tend to injure me in my business of representing contractors. Your website is dedicate [sic] to them and therefore you are targeting my business in Washington, D.C. intentionally, and my residence in Virginia, from where I draw some of my clients.

If you choose to ignore this and not remove the materials from your internet site and blogs and all caches, I will be forced to sue for an injunction and to seek damages. As long as the article remains on your website, you are publishing it. In addition, you are publishing it in various fora, including in Virginia and Washington D.C. where I represent employees and federal employees [sic] Continuing publication also subjects you to Virginia jurisdiction as long as the article remains on the web. I will institute an action in Virginia and in Washington D.C. against you for defamation and actual malice, together with damages and punitive damages.1 I will also seek damages for civil conspiracy to harm my business, and Virginia courts and juries have proved to be very protective of one’s business reputation when gratuitously harmed by publications. If I determine through discovery that you have worked with others to do this, I will join them as well. (emphasis added)

Were it not a vexatious attempt to chill free speech, Bloch's letter would be comical because it is so surpassingly ridiculous. First, Bloch does not specify which specific statements in the blog posts are false and defamatory. As I often say, vagueness in a defamation threat is the hallmark of meritless thuggery. Second, the assertion that Bloch's federal case — the prosecution of a former Department of Justice and Office of Special Counsel lawyer — is not a "public mater" that is "current" is freakishly frivolous. Third, the demand that bloggers remove all materials — not just specified allegedly false statements — is legally unsupportable and a reliable tell of censorious bullying, not merit. Fourth, the statement "As long as the article remains on your website, you are publishing it" is at best a highly questionable assertion of law. Virginia will probably follow the Single Publication Rule, and the District of Columbia definitely follows it; that rule provides that the statute of limitations for a defamation suit begins to run when a statement is first published, even if it remains on the internet thereafter.

Bloch's letter has all of the signs of bullying and none of the signs of truth. Empty Wheel notes that he has not threatened a larger blogger with a wider audience, but smaller blogs — perhaps ones more easily cowed.

I hope that someone finds a way to put this threat before the judge in Bloch's case to consider when he is sentenced.

Does Prenda Believe In No-Win Scenarios? Because Judge Wright Just Gave Them One.

All of Popehat's Prenda coverage is collected here.

Watchers of the Prenda Law saga have been waiting for United States District Judge Otis D. Wright II to issue an order in the wake of his apocalyptic hearing on proposed sanctions against Prenda Law, its putative client entities, and its lawyers. During that wait, doubt has set in. Could Judge Wright's order, after all this drama, possibly live up to expectations? Could any dry memorandum capture the jaw-dropping antics that have come before?


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Prenda Law, A San Francisco Treat

We invited Cathy Gellis to guest-post her observations of a Prenda hearing today. Hot on the heels from helping to secure an a hefty attorney fee award against the infamous Charles Carreon, Cathy Gellis went to court to check out the latest news from the Internet's other favorite lawyers. Cathy practices cyberlaw in the San Francisco Bay Area and maintains a blog at, exploring how criminal consequences have been attaching to technology use and development.

All of Popehat's Prenda coverage is collected here.

While most of the recent news involving Prenda Law has come from the case in front of Judge Wright in Los Angeles, it’s far from their only case. Apart from the Godfread/Cooper defamation cases and the Computer Fraud and Abuse Act cases the LA matter is just one of the hundreds of copyright cases the Prenda operation had deluged the courts with. But the LA case appears to be the case that has caused the entire Prenda Law house of cards to finally come crashing down. Like a high rise that has just been dynamited for demolition, the concussive force of its spectacular collapse is undermining the foundations of all its other cases as well.

Including this particular one in federal court in San Francisco.

The case so far

It began as a Prenda Law case usually begins: using questionable "forensics" to identify someone to target, first with threatening letters and then a lawsuit if they didn’t pay up. In this case, when Joe Navasca’s father didn’t capitulate, Prenda Law targeted the son instead. (Note: I’m including his name because it is now in the public record. And also to commend Mr. Navasca for standing up to these bullies.) Unfortunately for Prenda Law, the wheels of justice grind slowly, and some of its previous cases were starting to catch up with it just as this one began to lurch forward.

The default rule in American litigation is that everyone pays for their own lawyers. But some laws, the Copyright Act being one of them, have provisions so that the loser pays for both sides' lawyers. Fully denying all of Prenda Law’s allegations of infringement, and now aware of the allegations of malfeasance directed at the Prenda Law enterprise, Mr. Navasca reasonably expected Prenda Law to eventually lose the case it had brought against him and need to reimburse him for his attorney fees. But just because a judge may grant an award of attorney fees doesn't mean the money will ever be recovered; enforcing a judgment often presents its own expensive challenges, meaning a wronged defendant can still be saddled with the costs of his own defense. However the California Code of Civil Procedure has a provision, § 1030, to help mitigate that financial risk by allowing defendants in similar positions as Mr. Navasca to require plaintiffs to make an "undertaking;" that is, to post a bond that would guarantee, when the defendant inevitably wins his fees, that he would actually get the money. Citing that provision Mr. Navasca moved the court to require Prenda Law to make this undertaking. Naturally Prenda Law opposed this requirement in a filing I will leave to others to snark about that in order to continue the story.

Meanwhile, as the question of the undertaking was pending, the discovery stage of the case had begun. At first Prenda Law tried to hurry up and expedite the discovery over a very specious evidence spoliation concern, an attempt which got nowhere. (But note this topic for later.)

The day after rejecting the attempt to expedite discovery the court granted Mr. Navasca’s motion requiring Prenda Law to provide the undertaking, but agreed to stay the ruling (meaning, postpone whether it should be put into effect) in order to give Prenda Law a chance to move for the court to reconsider it, which it does not appear to have ever done. At this point Prenda Law decided that discovery was actually all happening way too fast and so moved to stay it (basically, to put it on pause) while the undertaking issue continued to pend. Mr. Navasca’s response to this motion basically boiled down to, "While we don’t necessarily have a problem with staying discovery generally, we do find it suspicious that you want to stay it right before we get to do our 30(b)(6) deposition of AF Holdings." The court denied Prenda Law’s motion to stay the discovery and the 30(b)(6) deposition of Paul Hansemeier went forward.

And what a deposition that turned out to be. (At today's hearing Judge Chen asked, "There was a 30(b)(6) depo. What happened?" but it seems clear he already knows.)

The deposition took place on February 19. On February 20, Paul Duffy moved to substitute for Brett Gibbs in the Navasca case, which the court granted on the 26th. Also on the 26th Prenda Law moved to "voluntarily dismiss" the case, whining about the judge's ruling on the undertaking, clearly hoping that would be the end of it and it could scurry off into the shadows.

Not so fast, responded Navasca’s attorneys, Nick Ranallo and Morgan Pietz, in a brief whose table of contents alone is eviscerating. You can’t just dump an expensive, unmeritorious lawsuit on an innocent defendant, certainly not by committing fraud on the court, and then simply walk away from it. You are at least going to need to pay us the fees we had to expend defending against it.

Paul Duffy's rocks and hard places

Paul Duffy has a problem. He's counsel of record for AF Holdings, to the extent that AF Holdings even is a client separate and distinct from Prenda Law. But in between the time he filed the motion for voluntary dismissal and now, the April 2 hearing in Los Angeles happened where he (among other Prenda Law people) plead the Fifth Amendment in refusing to answer questions about AF Holdings. This act put him in a bind: if he opened up his mouth in San Francisco to talk about AF Holdings it could inculpate him in its affairs. You can't assert the Fifth Amendment in some contexts and waive it in others, that's not the way it works. Anything he says about AF Holdings in some proceedings can and will be used against him in others.

On the other hand, as counsel to a purportedly separate and distinct client, he can't just blow off the hearing, even if that might be the best option for saving his own skin. AF Holdings, whoever it is, is staring down the barrel of a judgment on the order of tens of thousands of dollars against it. If it were truly a separate client it should be able to count on him to try to prevent such a judgment. Note: this doesn't mean the client could expect him to prevail, but it could expect him to at least give it the ol' college try. That meant that he couldn't just not show up (which apparently was what he did — or, er, didn't do — at a hearing yesterday in Illinois). He couldn't just withdraw as counsel, either, because that generally requires the court's permission once a lawsuit is underway in order to make sure a client isn't being left high and dry (see, for example, the earlier motion to substitute Duffy for Gibbs, which they needed the court to approve). Nor could he choose to just not argue, or purposefully argue badly, without abrogating his ethical duties to the client. But it was unclear what he could argue that wouldn't further implicate him in the misdealings of the Prenda Law enterprise.

The ol' college try

The above sets the stage for today's hearing, which was the third matter on Judge Chen's afternoon calendar. I've never appeared before Judge Chen, but I've now observed quite a few of his hearings (not just today, but also when I waited to serve Charles Carreon…). His demeanor is not terrifying; for the well-behaved attorneys appearing before him he seems to play a role almost like a mediator, efficiently absorbing facts, managing case logistics, and isolating areas of contention. For the less well-behaved his countenance appears to remain much the same, as he allows both sides ample time and opportunity to present all facts and arguments for his consideration. But should his calm patience ever delude counsel into taking him for a fool, a stinging pointed question, albeit very calmly made, will serve as notification of their error.

Duffy did, in fact, appear in person, despite his absence yesterday. Unfortunately he mumbled so much that even though I was in the front row of the gallery I didn't catch everything he said. The court reporter was much closer and presumably caught all of his equivocation, but there did seem to be an awful lot he didn't know. Which was particularly notable when confronted with questions about AF Holdings. "I have no personal knowledge," Duffy said in response to one such question, prompting Judge Chen to ask, "Well, what do you know?" and Mr. Ranallo to observe that, "There's been a pattern of no one knowing anything when the time comes" for them to give answers.

Duffy did, however, continue the pretense of being separate, disinterested counsel for this mysterious AF Holdings entity, despite all evidence of it, and him, being rolled up in the Prenda Law enterprise. And for what it's worth, his personal behavior was never really at issue today. The issue, as Judge Chen announced at the top of the proceeding, was whether the dismissal should be granted, and if so, whether it should be with prejudice (meaning AF Holdings would have essentially surrendered on the merits and could never refile this lawsuit ever again), and whether any attorney fees should be awarded to compensate the defendant for having been put through it.

(Actually, even before that Judge Chen began the proceeding with the more ominous, "I asked you to come here today in light of all the things that have happened.")

Why are you asking for this case to be dismissed, he first asked Duffy. There's two reasons, Duffy responded, one being that the $50,000 undertaking was too expensive. He argued the same in his reply to the opposition to dismiss the Navasca case, which basically whined that Prenda Law should not have to be burdened with needing to round up $50,000 in order to pursue a copyright case against a single infringer. Never mind that the court had previously been unimpressed by Prenda Law’s earlier pleas of poverty, the reality is that litigation is expensive. It’s expensive even for truly-wronged plaintiffs, who often can’t afford to sue to vindicate legitimate injuries, and it’s certainly expensive for innocent defendants. In the "Joys of Yiddish" Leo Rosten illustrated "chutzpah" as someone who has killed his parents asking the court for mercy because he’s an orphan. Were Mr. Rosten alive today I think he might update his book with Prenda Law's brief.

The other reason, he said, was that there was a problem of evidence spoliation, which I referred to briefly above. The defendant had been running a piece of software called CCleaner on his computer, and Duffy complained that it destroyed the evidence it needed to be able to prosecute the infringement claim.

At first blush, these complaints may sound quite reasonable (although, as Mr. Ranallo noted, neither had been raised in Prenda Law's initial motion to dismiss). But they are worth further scrutiny. For one thing, CCleaner had been running on the defendant's machine for more than a year before the lawsuit had been filed, a fact that alone deflects claims of spoliation. Secondly, its operation has no effect on the sorts of evidence Prenda Law might want to collect. Although the question of spoliation hadn't been fully adjudicated earlier because Prenda Law's complaints had been couched in a premature motion to compel, the magistrate ruling on the motion had looked into the issue and indicated the concerns appeared unfounded (note the exhibits to the filings linked above). In any case, as Judge Chen honed in on later in the hearing, usually a plaintiff is happy for there to be spoliation problems. "Normally if you argue spoliation, you win the case!" It seemed very strange, he observed, to give up because you are claiming spoliation (and, he asked later, if it really were such a problem, why did you wait to withdraw the case and not do so as soon as you learned of it?). In response Duffy fell back on the, "well, at $50,000 it was too expensive to continue the case" argument. But bear in mind, it's just a $50,000 undertaking, not a $50,000 forfeit. You get it back if you win.

But Prenda Law may have realized it wasn't going to win, and Judge Chen pointedly asked about that. "Why is this attempt to dismiss not simply an attempt to avoid adverse rulings?"

And that was the crux of the hearing as it in some ways went around and around in circles, with Duffy either arguing "it was too expensive to continue!" or "spoliation!" whenever he was losing ground on one or the other, trying to make it seem perfectly innocent to be dropping the case now and avoid all consequences for having pursued it. But Judge Chen did also seem curious about the ownership issues. Who is Salt Marsh, he asked at one point. Mr. Ranallo responded with a reference to the April 2 hearing when Mr. Duffy and others took the Fifth. "That tells us a lot about why this case is ending now." (To which Duffy protested, "This is a civil matter, that was a criminal one. You can't make inferences.") [Ken's note: Ars Technica heard some comments about Salt Marsh as well.]

Judge Chen's questions then turned to fees. Citing a case whose name I didn't fully catch but I think is this, he asked Mr. Ranallo about what portion of his claimed fees applied solely to defending this case and what could be leveraged in other cases. "There will be no subsequent suits," he answered. "Standing is blown." ("That's pure speculation as to the intent of the plaintiff," countered Duffy.)

Mr. Ranallo continued. Nearly all AF Holdings case have been dismissed in the same two weeks, even cases that had no undertaking requirement, and even a case where it had already won a default judgment. (Totally innocent, Duffy explained. It's simply because Gibbs had decided to quit.) The few cases that remain active are the Magsumbol case, where a voluntary dismissal had been denied, and the Trinh case, also in San Francisco, where a $40,000 undertaking had been required, but because Prenda Law hadn't posted it, the case got dismissed with prejudice, thereby making it the losing party and vulnerable to a fee order under the Copyright Act. The nightmare, and potentially very expensive, situation for Prenda Law is that either outcome happens here.

Ultimately, Judge Chen took the matter under submission — meaning that he could rule at any time.

Final thoughts

In one sense it was somewhat disappointing that there was no Perry Mason moment, but as Ken has noted those moments rarely happen. The devil is in the little details and their implications as they are slowly revealed. The wheels of justice grind slowly, it's true, but as we continue to see, they do grind forward.

In Which a LawSpammer Calls Me "[FNAME]"

In the email exchange below, I have changed identifying information. Replacements are in boldface. The use of [FNAME] and [BPNAME] is in the original. The email came to me titled "Quick Message for *[FNAME]*."

Hey *[FNAME]* – The reason I'm reaching out to you is because I recently came across *[BPNAME]* and thought you might be able to give me some valuable feedback — I recently (re)launched a new community for lawyers and law students called LegalMarketeeringPit.

A bit of background…My name is Mork the Marketeer and I'm the founder of PonyHub, the largest online community of pony professionals with over 4 million hits per month. For LegalMarketingPit, we already have 1,000s of visitors per month with some awesome bloggers (law students and practicing lawyers), but we have a LONG way to go! I want to make sure to fulfill our primary mission: to build the most entertaining and useful legal community online.

It's not easy starting an online community from scratch, so I hope you will take a few seconds to check it out and let me know what you think! Any thoughts? If you can hit "reply" and tell me just one piece of advice, I will be forever grateful. :-) Or you can give me call and tell me in person (# below).

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Orange You Glad You Don't Work For The Assholes At Elizabeth R. Wellborn, P.A.?

In an at-will state, like California or Florida, you can fire your employees for any reason — however moronic — so long as it is not specifically prohibited by state law. So: you can't fire people based on race or gender, or for reporting unlawful activity. However, you can fire people for all sorts of utterly arbitrary and douchey reasons. Just ask 14 former employees of Elizabeth R. Wellborn, P.A., a law firm in Deerfield Beach, Florida.

Apparently Elizabeth R. Wellborn, P.A. fired 14 people for wearing orange on the same day. Most of the employees said they were wearing orange to celebrate it being payday and because they were going out carousing after work — except for one, who says she just likes orange and happened to be wearing it that day. It's not clear what about the orange caused the firm to go nuts — though firm supervisors did apparently invite people to come forward to offer any "innocent" reason for wearing it.

Though the firm has refused comment, some reports suggest the firm viewed the shirts as some sort of protest of some firm policy. If that's the case, it's possible the firm is in trouble under the National Labor Relations Act for punishing "concerted activity." If, on the other hand, the mass firing was simply arbitrary and capricious, it's probably perfectly legal. I think that it should be — the government should not police employment decisions that do not violate specific rights. Is such behavior repugnant? Certainly. But there's a remedy for that — publicize the behavior. Ask yourself — do you, as a potential client, feel comfortable taking your case to a firm Elizabeth R. Wellborn, P.A. that makes arbitrary and capricious decisions in such a matter? Does the termination of 14 employees for wearing orange inspire confidence in Elizabeth R. Wellborn, P.A.'s probity and discretion? Given that Elizabeth R. Wellborn, P.A. handled its pique over a shirt color in a manner almost certain provoke litigation (whether or not that litigation has ultimate legal merit), can you trust that firm to handle your matter in a way that will avoid unnecessary litigation and expense?

I sure as hell wouldn't hire Elizabeth R. Wellborn, P.A. for anything. And I hate orange. It makes me look like a giant pumpkin.