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An example of barratry on the large scale
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jducoeur
On the topic of people abusing the legal process: one friend of mine wrote to me, even more mystified than I about the JonMon lawsuit, pointing out that it seemed hopeless from a legal viewpoint, so clearly it couldn't accomplish anything. I had to point out the key thing about such suits -- they're often not *trying* to win, they're trying to get you to settle for somewhat less money than the cost of mounting an adequate defense.

This was driven home by this fine article in Ars Technica yesterday, about the Prenda Porn Trolls. Basically, Prenda is a law firm that set about conducting exactly this sort of behaviour on an industrial scale. They've been much in the tech news for the past year or two, and now that I think about it, JonMon's tactics sound a bit reminiscent.

Prenda would find some porn film that was getting Bittorrented online. They would sue *everybody* who might possibly have downloaded it (supposedly on behalf of the copyright holder, although I always got the sense that Prenda was really in charge), based simply on IP addresses. They would get the court to issue broad-based orders so that they could get contact info for all those IP addresses, and then they would serve scary court documents to everybody who turned up. (Never mind that going from a cable IP address to an individual is a pretty shaky chain of reasoning.) They would offer to settle for a few thousand dollars, while meanwhile scaring the snot out of people by pointing out how insanely high the fines for copyright violation can get nowadays. I don't think any of those cases ever got to court -- indeed, I gather that if someone *did* mount a defense, Prenda would quietly dismiss the case and fade into the night.

They made *millions* doing this.

They finally got slapped down, hard, by a judge this week, and are now at the sharp end of some criminal complaints themselves. But it's an interesting reminder of how the law can be used as a weapon of extortion, and how, sometimes, winning the case is in no way the point of the exercise...

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There is no such thing as barratry in Massachusetts because it is no longer recognized by the courts here.

Saladini v Righellis (426 Mass 231).

Part of what is interesting about Prenda is this: they may not, in fact, have an agreement to represent the copyright holder of those pornographic films. And that's pretty critical. First of all (the minor situation) is that they claimed to be representing clients and not themselves. Second of all, at least one copyright claim is one the court found (as a fact) to be based upon a fraudulent assignment of copyright.

And this mattered: "Part of that ploy requires cooperation from the courts, which could only be achieved through deception. In other words, if the Principals assigned the copyright to themselves, brought suit in their own names, and disclosed that they had the sole financial interest in the suit, a court would scrutinize their conduct from the outset. But by being less than forthcoming, they defrauded the Court. They anticipated that the Court would blindly approve their early-discovery requests, hereby opening the door to more settlement proceeds."

(It is also interesting that part of those "assignments of rights" was to a trust, and that trust is not only controlled by the attorneys, but is to benefit children of those attorneys that aren't even born yet... which is not quite legal either.)

What it seems Judge Wright did was an opening salvo: he identified a widespread pattern of suspect behavior, with a few (very few) specific instances that he could identify with clarity. He punished those, and referred the vague mess to both the IRS and the Federal District Attorney.

These are people who have far more investigative power than Judge Wright, who can only consider what has already been brought before him. (Plus referring people to various Bar Associations, and insisting that every other Judge before whom these parties appear or have appeared be made aware of Judge Wright's findings and orders).

Those other Judges, the IRS and the Federal DA are likely to take serious notice.

The irony, of course, that Prenda's modus operandi was to litigate people to death may be rewarded by having to litigate themselves to death, is easy to appreciate.

There is, however, still a statute covering claims which are "wholly insubstantial, frivolous and not advanced in good faith" and providing for the reward of costs to the counterparty.

Oh true: and that is one of the local mechanisms used to prevent bad claims being made. The decision on barratry was based upon the idea that there were already other protections against bad claims being made.

This law is the basis by which parties ask for court costs and fees. But those are collected from the moving party. Not the lawyer. It's not applied all that often in civil courts, as far as I can tell.

What lawyers fear (or should fear) is Mass Rules of Civil Procedure 11 (which is basically the same as Federal Rules of Civil Procedure). That's the means by which Judges can spank an attorney for their own conduct or misconduct. This isn't applied all that often, either.

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