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Judge Wright issues Prenda Law order

popehat.com

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Re: Judge Wright issues Prenda Law order

#71

Post by silentmars »

SEMW wrote: post #61
cstross wrote: post #58

Earlier quoted context omitted.

I suspect the turning point was the Prenda Law people turning up in court and taking the fifth. By refusing to testify on the basis of the right to avoid self-incrimination, they effectively admitted on the court record that they'd committed a crime. At which point, the judge can see the smoke, and though he may not be allowed to investigate the ignition source he can certainly point the DOJ in the general direction…

> By refusing to testify on the basis of the right to avoid self-incrimination, they effectively admitted on the court record that they'd committed a crime I'm not a US lawyer, or even from the US. But surely, if courts can draw adverse inferences from someone 'taking the fifth', that makes it a pretty pointless right, no? It's not much of a right to avoid self-incrimination if exercising it incriminates yourself. Ca…

The fifth amendment only covers criminal caes - in fact, technically only covers felonies. The implication for this case is that the lawyers can refuse to answer questions with an assertion of their fifth amendment rights, and if and when they should ever be tried for those crimes then in that case it would be forbidden for the prosecution to mention that they did that or draw any inferences from it. There is no such protection in a civil case, however. You have no right to "not answer questions because it might help the other guys who are suing me win."

I am not a lawyer this is not legal advice, etc etc, but there are other examples in civil cases of where this kind of thing can be used against you. I have a lawyer friend who does personal injury cases, and one of the first things lawyers do in those cases is send spoilation letters to the insurance companies demanding that they preserve any evidence. Absent this, it's common practice for insurance companies to have totaled vehicles destroyed, for example. If they destroy any evidence after receiving a spoilation letter, then in the lawsuit the jury will be instructed to assume that the destroyed evidence showed things in as favorable a light as possible to the other party.

Re: Judge Wright issues Prenda Law order

#72

Post by Natsu »

ultimoo wrote: post #31

popehat is great, and in spite this being one of their smaller articles, I fail to follow what it boils down to. Can someone please summarize what Prenda has to now do -- Do they serve time? Do they pay millions? Are they not allowed to practice again?

Well, first they have to pay the defense lawyers for their time. It's not a lot, really, but enough to compensate them. Then he stripped them of various legal defenses by finding them to be party to fraud upon the court. And he accused them of "moral turpitude" which could get them disbarred. And he sent a copy of this order to every judge they have a case before. And to every bar association. So ALL of them can go after them independently. Then he referred them for a criminal investigation, mentioning RICO. Oh, and he pointed out how they said they paid no taxes and have all these shells and mystery trusts in a tax haven, so he called in the IRS to investigate, too.

So they have to face this all over again in front of every single judge where they have a case, with every bar association they're a part of. All while facing the feds AND the IRS.

This is akin to being stripped naked and thrown to the wolves, except that Judge Wright didn't stop with wolves, he looked up every carnivore in the country and gave it a dinner invitation.

Re: Judge Wright issues Prenda Law order

#73

Post by narcissus »

SEMW wrote: post #61
cstross wrote: post #58

Earlier quoted context omitted.

I suspect the turning point was the Prenda Law people turning up in court and taking the fifth. By refusing to testify on the basis of the right to avoid self-incrimination, they effectively admitted on the court record that they'd committed a crime. At which point, the judge can see the smoke, and though he may not be allowed to investigate the ignition source he can certainly point the DOJ in the general direction…

> By refusing to testify on the basis of the right to avoid self-incrimination, they effectively admitted on the court record that they'd committed a crime I'm not a US lawyer, or even from the US. But surely, if courts can draw adverse inferences from someone 'taking the fifth', that makes it a pretty pointless right, no? It's not much of a right to avoid self-incrimination if exercising it incriminates yourself. Ca…

To add to the other replies: from what I read at http://www.popehat.com/2013/04/02/prenda-laws-attorneys-take... :

"In effect, the responsible lawyers for a law firm conducting litigation before a court have refused to explain that litigation to the court on the grounds that doing so could expose them to criminal prosecution."

I'm not a lawyer, but what I took from that was that in this instance the Prenda Law guys were not being asked questions with relation to their role in the actual scheme. They were actually being asked questions in relation to their role as 'officers of the court' ie. as the lawyers for themselves that were involved in the scheme.

Oh what a tangled web they weaved...

Re: Judge Wright issues Prenda Law order

#74

Post by TylerE »

Sanddancer wrote: post #34
ultimoo wrote: post #31

popehat is great, and in spite this being one of their smaller articles, I fail to follow what it boils down to. Can someone please summarize what Prenda has to now do -- Do they serve time? Do they pay millions? Are they not allowed to practice again?

They have to pay attorney fees of about 40 grand, and another 40 grand of punitive damages. At this point, that's about it, but with a ruling like this, there's no doubt that there are going to be many more problems for the Prenda gang in the future. Don't worry though, given the gravity of the recommendations Wright's sending to the DA and to the IRS, you can be certain there will be much more popcorn to be had from…

Actually, the biggest bit in the judgement might be the "referral" (and not the _good_ kind of referral) to their state bar(s).

Re: Judge Wright issues Prenda Law order

#75

Post by silentmars »

kolodny wrote: post #66
SEMW wrote: post #61

Earlier quoted context omitted.

> By refusing to testify on the basis of the right to avoid self-incrimination, they effectively admitted on the court record that they'd committed a crime I'm not a US lawyer, or even from the US. But surely, if courts can draw adverse inferences from someone 'taking the fifth', that makes it a pretty pointless right, no? It's not much of a right to avoid self-incrimination if exercising it incriminates yourself. Ca…

I think this video explains the how and why of the fifth amendment (it's also something every American should watch): http://www.youtube.com/watch?v=6wXkI4t7nuc Video description: [A] law school professor and former criminal defense attorney tells you why you should never agree to be interviewed by the police. Although lawers mid-trial taking the fifth may be different.

That's a little different. The message of that video: never talk to the police. The two cases being, 1. you are not under arrest, or 2. you are under arrest. If you are not under arrest you should just walk away or refuse any kind of engagement (except in a traffic stop which is a special case), and if you are under arrest then you have two explicit rights which you should always use - refuse to talk, and demand a lawyer be present.

The situation is quite different in a trial. If you are summoned to appear in court, you must appear. If you are asked any questions, you must answer them (or assert fifth amendment rights explicitly in a refusal to answer, like the Prenda clowns did).

Re: Judge Wright issues Prenda Law order

#76

Post by VLM »

downandout wrote: post #45
bickfordb wrote: post #37

Earlier quoted context omitted.

What is the judge's bias?

A good appellate lawyer would likely argue that the judge's over-the-top reaction, along with his written commentary showing clear disdain for the business model of the plaintiffs and the attorneys, shows that the judge was unfairly biased against them from the outset of the case. I don't know if they would ultimately prevail on appeal, but the judge certainly opened the door for it.

"his written commentary showing clear disdain for the business model of the plaintiffs and the attorneys"

That sounds awful, if you don't know the specific business model being discussed is extortion of random citizens.

Re: Judge Wright issues Prenda Law order

#77

Post by protomyth »

andyjohnson0 wrote: post #60

The Star Trek references in the judgement are rather strange and (to me) diminish the judge's credibility. Is it normal practice for judges in the US to use popular culture references in their written judgements? Anyone care to explain the reasoning behind this?

Lawyer friend told me its not uncommon so the ruling is remembered and talked about. Here are some other examples of "creative writing" http://blog.simplejustice.us/2007/08/30/texas-where-decision...

Re: Judge Wright issues Prenda Law order

#78

Post by Natsu »

downandout wrote: post #53
pdovy wrote: post #50

Earlier quoted context omitted.

I'm curious, what can they really appeal here? It seems like the biggest impact of the ruling is the circulation of the ruling to other jurisdictions and the referral of the matter to local / federal authorities. Is that something that is immediate and an appeal can only reduce the monetary finding, or is the whole order in stasis if they appeal?

Anyone can refer any matter to local or federal authorities, so that cannot be appealed, but the monetary judgement may be subject to appeal. A large portion of the basis for the findings of fact and punishments seems to pertain to conduct that simply isn't illegal. Statements like the following undermine the judge's impartiality: "So now, copyright laws originally designed to compensate starving artists allow, starv…

It seems rather silly to enrage a judge via misconduct during the case and then claim the judge's indignation is a form of bias. Judge Wright wasn't mad at them at the start of the case. Rather, he became angry after seeing how they conducted themselves before him.

That reminds me of the story of the child who murders his parents only to beg the court for mercy because he is an orphan.

Re: Judge Wright issues Prenda Law order

#79

Post by shabble »

ghshephard wrote: post #19
Steko wrote: post #9

No sympathy for Prenda but damn if this line didn't remind me of Aaron Swartz: "Federal grand jury investigations are very slow, but represent experienced practitioners bringing almost unlimited resources to bear against their targets."

I wonder if there was ever a movie in which the Cavalry came calling to the rescue, but went after the wrong target? I seem to recall a Twilight Zone episode (or maybe it was a Stephen King Short Story) in which an infantry platoon razed a village, only to discover that it was actually their own hometown, somehow masqueraded as some foreign land. I willing to wager that if we looked at it with objective perspective,…

You might be thinking of 'The Outer Limits' episode 'The Light Brigade'[1] va juvpu jr yrnea nobhg gur vzcbegnapr bs vapyhqvat orggre snvyfnsrf va bhe cynarg-ohfgref. [rotted for spoilers]

[1] https://en.wikipedia.org/wiki/The_Light_Brigade_%28The_Outer...

Re: Judge Wright issues Prenda Law order

#80

Post by jerf »

netcan wrote: post #54
grellas wrote: post #36

Judge Wright took tremendous offense to the idea of lawyer-sharpie types trying to use his court (among others) as home base for a naked scheme of extortion. Think about how he characterizes the lawyers and their conduct: (1) they were lawyers with failed practices; (2) they figured a way to shake down victims out of an aggregate of millions of dollars; (3) they did this by threatening to expose them as downloaders o…

2 things jump out at me: 1 - From the perpetrators' POV, this kind of white collar crime is orders of magnitude safer and more lucrative than a blue collar equivalent. This may amount to evisceration, but it's nothing compared to a judge getting angry at drug dealers turning that kind of a profit. 2 - From the victims' POV (or at least many of them), the lawyer-extortionist, defense lawyers, laws & judges are all rea…

"This may amount to evisceration, but it's nothing compared to a judge getting angry at drug dealers turning that kind of a profit."

It may be if they end up on the wrong side of a RICO prosecution.

http://en.wikipedia.org/wiki/RICO : "Under RICO, a person who is a member of an enterprise that has committed any two of 35 crimes—27 federal crimes and 8 state crimes—within a 10-year period can be charged with racketeering. Those found guilty of racketeering can be fined up to $25,000 and sentenced to 20 years in prison per racketeering count. In addition, the racketeer must forfeit all ill-gotten gains and interest in any business gained through a pattern of 'racketeering activity.' RICO also permits a private individual harmed by the actions of such an enterprise to file a civil suit; if successful, the individual can collect treble damages (damages in triple the amount of actual/compensatory damages)."

And actually if you keep reading the summary, the bad news goes on.

Patience.

That said, in general I think you're right about the relative safety of white collar crime. But it is possible to overplay that hand, and that may have happened here.

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