RIAA's Throwing In the Towel Covered a Sucker Punch

NewYorkCountryLawyer writes "The RIAA threw in the towel, all right, but was only doing it in preparation for throwing a sucker punch. After dropping its 'making available' case, Warner v. Cassin, before Judge Robinson could decide whether to dismiss or not, it was only trying to do an 'end run' (if I may mix my sports metaphors) around the judge's deciding the motion and freezing discovery. The RIAA immediately, and secretly, filed a new case against the family, calling this one 'Warner v. Does 1-4.' In their papers the lawyers 'forgot' to mention that the new case was related. As a result, Does 1-4 was assigned to another judge, who knew nothing about the old case. The RIAA lawyers also may have forgotten that they couldn't bring any more cases over this same claim, since they'd already dismissed it twice before. Not to worry, NYCL wrote letters to both judges, reminding them of what the RIAA lawyers had forgotten."

At this point...

[Psmylie]

It seems like the RIAA is throwing all the shit they can think of at the wall to see what will stick. Seems a little desperate to me.

Double jeopardy seems unlikely...

[aredubya74]

...since there was no actual trial for the defendants in the initial case, but how is this remotely legal? IANAL, but if someone here actually is, how is it legal, procedurally, that a plaintiff is permitted to drop a claim and then immediately file an identical new one? This seems like blatant judge shopping, as it seemed possible that Judge Robinson would dismiss the charges with prejudice (so they could not be refiled), leaving precedent for dismissal of "making available" cases.

Re:Sure, "Forgotten", right

[Chas]

"How are these underhanded lying scumbag tactics even legal?"

Because forum shopping isn't illegal.

And there is no double jeopardy rules in civil cases. They're allowed to bring the case to court as many times as they can find venues.

HOWEVER, because of the preceeding cases, every venue they pop up in should get their case shot down again, and again, and again.

Think "whack-a-mole".

But things like neglecting to attach case history is stuff that can get these fuckers censured and possibly disbarred.

Here's hoping!

Re:How can they get away with this

[Rurik]

Not a real secret lawsuit. They refused to disclosed its relevance to the current case, which kept it secret from the ruling judge. They were hoping to slip it through the cracks and basically start from scratch with another judge that they thought would be sympathetic to their needs.

Re:Pathetic

[Holi]

You should really look up Amicus curiae.

An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.

--Rule 37(1), Rules of the Supreme Court of the U.S.

Re:Pathetic

[m.ducharme]

I can't tell for sure, but there is some indication, if you follow the links back, that NYCL, you know, Ray Beckerman, is Counsel for the Defendants, and as such would of course have standing to address both judges. And if I'm wrong, well see my sibling post re: Amicus Curiae briefs.

Re:Pathetic

[UncleTogie]

Sending a letter to judges to tell them what is going on in their own courtroom? When you are a party to neither case? Clearly because you have a bone to pick with one of the parties?

So you like your lawyers to do a half-ass job? His interest here is that the parties being sued were his clients, not strangers. He's doing his job. DO read TFA next time...

Re:Dirty Pool

[ZOMFF]

IANAL (but I am dating one) and this is the response I got from her on the matter:

"Every state has a grievance board that deals with things like unethical conduct. There is one case here involving a grievance against our client (another lawyer) for overly aggressive litigation techniques specifically the service of a subpoena on children, which is not illegal, but their parents felt it was improper and intimidating. Attorneys have to have professional liability insurance as well to protect against claims of malpractice, which could be attributed to "incompetence" or willful misconduct. I know that when I worked in NYC, there was an attorney we knew who was sanctioned (and possibly disbarred) for improperly managing his escrow account. I obviously know no case law on this, but my impression is that once the judge on the new case becomes aware of the Plaintiff's lack of following proper procedure, the case will be thrown out. As far as punishing the attorneys, I am not sure if the court system would take any action other than the dismissal of the case, but certainly if the RIAA feels that its attorneys were behaving incompetently, they could sue for malpractice. My guess is that this was intentional and that the RIAA is on board, though. And a grievance can come from anyone, not just the court or another attorney. And if a grievance was filed the board would have to determine that the RIAA's counsel knowingly ignored procedure."

Re:i want to kill myself

[hummassa]

IIRC alt.suicide most quick, effective and painless method of choice was 'hanging by car' (tying a 100m long rope to a tree or telephone poll and around your neck with good knots, entering your car, hit the accelerator hard and put it into gear). If you use a gun, put it inside your mouth, in the direction of the brain. Booze + pills are also an option.

Re:i want to kill myself

[Jaysyn]

Hey look, RIAA astroturfers have invaded /.

Collateral attack

[debrain]

What the RIAA lawyers are doing is often referred to as a collateral attack - the attempt to undermine one Court's unfavourable ruling by seeking out a different ruling in another court. It is also related to the concept of litigation by installments. It is generally accepted that fundamental principles of justice (fairness, expediency, access to justice, finality, and certainty) are undermined by collateral attacks. The Court committing the collateral attack is often estopped (by collateral estoppel) from making a judgment which would undermine another Court's ruling. One example of this principle exists in mainstream media as "double jeopardy". In the practice of law, this is quite a common issue; for example, when a unionized individual brings a collective agreement grievance to labour arbitration they are often then precluded from seeking out a remedy at Court.

A collateral attack is not the same as an appeal. Appeals are to "higher" Courts that typically only have a limited scope to review the decision of a lower Court.

Of course, you ought to seek out proper legal advice in your jurisdiction to see how these rules would apply and in particular apply to the facts of your situation.

Re:i want to kill myself

[Anonymous Coward]

"This is just a puff piece. NYCL is trying to claim that, had it not been for his heroic move, the courts would have had nooooo idea of what was going on."

Surprisingly few judges read slashdot, so they lack the in-depth legal knowledge of experts such as yourself. It turns out that the court depends on the lawyers involved in the cases before them to provide them with the facts and to even look up and provide the relevant legal references for their arguments. Unbelievable as it may sound to you, few judges are omniscient.

Re:I'm not a lawyer, so someone please explain thi

[gnick]

Right, because no building contractor has ever deliberately used substandard materials to cut costs, even when they had to know it would end badly.

Right, because no building contractor has ever been held responsible for [wikipedia.org] that kind of behavior. [wikipedia.org]

Re:I'm not a lawyer, so someone please explain thi

[Anonymous Coward]

Horse hockey!

I deal with engineers and the crap they produce all the time. I can't even tell you how many times I've reviewed the as-builts for a facility (signed and sealed by a PE) only to visit the facility and find the as-builts do not truly reflect what is on-site. And I don't mean "oh, this is 3 feet further up the wall than the drawings reflect." More like, oh, despite what the engineer said they never bothered to build this legally required sampling port so now they cannot collect samples properly. I have never once seen or even heard of any repercussions back on the engineer who signed off on incorrect plans. Worse, it's usually engineers from the same one or two firms that pull this stuff.

Re:Subversion of Justice Workshop.

[jc42]

We are very proud to announce our new workshop called Subversion of Justice.
We think this is the new trend in law at this moment, ...

Heh. Very deserving of the "funny" mods. But it's actually not anything new at all. The US Constitution's 5th Amendment was written to include the phrasing "... nor shall any person be subject for the same offense to be twice put in jeopardy ..." in order to prevent exactly this sort of thing.

The folks who wrote the US Constitution were familiar with the history of monarchs and other tyrants handling their victims via "perpetual trial", in which a person would be arrested and tried, and if the court decided for the defense, it didn't matter. As you walked out of the courtroom, you would be immediately arrested again on the same charges. You could easily spent the rest of your life in jail awaiting a sequence of trials. The general legal term for this is res judicata (q.v.).

But that term only deals with cases that have been decided by an earlier court. The American revolutionaries were also familiar with the tactic for avoiding res judicata: Terminate a trial before the decision is handed down, and file the same or similar charges against the victim in a new case. The phrasing in the US Constitution was supposed to prevent this approach, which is what the RIAA is doing.

So it's nothing new; it's a centuries-old legal tactic used by people in power to deal with their opponents by draining their finances with unending legal battles.

It's not a recently rediscovered tactic in the US, either. Back in the 1960s and 1970s, a lot of "subversive" groups claimed (and investigative journalists verified) that they were treated the same way. Their people would be arrested and held in jail the maximum time allowed without filing charges. They would be released without charges, and as they walked out the door of the police station, they would be met by officers who would arrest them and haul them back inside. In these cases, there weren't even charges filed, much less any trials, so the lawyers could argue that the Fifth Amendment technically didn't apply.

It's an old story, and the legal system doesn't seem to be very good at preventing it or punishing people for doing it.

Re:Dirty Pool

[tinkerghost]

I regard lawyers (mine or not) as instruments of the client's will. It is the RIAA that is the scumbags, because they're the ones asking for, or at least not blocking, their tactics

First & foremost, lawyers are officers of the court. That means that part of their job is to ensure that the legal process is adhered to - failure to do so is grounds for disbarment. The problem is that the foxes have been watching the henhouse for a long time. I do however see some light in the several high profile sanction cases in the last couple of months. Perhaps the judges will start dishing out more in an effort to bring their courts back to a civil dispute rather than a back-alley brawl.

Re:Not innocent enough!

[digitrev]

Actually, they just sent a take down notice. No lawsuits...yet...

NO! You can't withraw & sue forever!

[Anonymous Coward]

> And there is no double jeopardy rules in civil cases. They're allowed to bring the case to court as many times as they can find venues.

Umm, no they're not. The FRCP (Federal Rules of Civil Procedure) generally limits you to bringing the same case twice. After that, you're through. You're not allowed to sue someone and withdraw the minute you appear to be losing over and over, it simply isn't fair. You ARE correct in the fact that it's not "double jeopardy" because it's a civil case, though, but the FRCP does have rules covering this!

Now, there are probably crazy procedural gotchas here, like whether it's the "same" case or whether they can do something inventive, but that's the general rule. They'll probably say that they're retrying to Does case again instead of the case vs. a named party and that they're somehow legally "different" this time. I hope that the Court doesn't buy that, though, because it's total BS in my opinion. But IANAL, so they might be able to get away with it.

- I Don't Believe in Imaginary Property [eff.org]

Re:I'm not a lawyer, so someone please explain thi

[Alastor187]

uhm, if I recall it correctly, the failed design of tacoma bridge didn't had any legal consequences

No, if you remembered correctly you would know that the bridge failed because it was vibrating in a manner never before seen. The air moving around the deck was causing an unforeseen mode of vibration, a problem that falls it the classification of Fluid-Structure Interaction (FSI). FSI problems might have been better understood by aerospace engineers but had little relevance to civil engineering, at the time anyway. The civil engineers didn't "forget" anything, they just simply didn't understand the problem.

Res Judicata

[Anonymous Coward]

More than that. As many people mentioned, in Federal court, you can dismiss you claims and then refile them. You basically get a second shot if you screwed up and there was never a final judgment. However, if you dismiss a second time, your claims will be dismissed with prejudice. E.g., you can't file them again. In fact, it functions essentially as a final judgment on the merits of the case.

This means that they can't shop around now for a more sympathetic forum. The principal of res judicata (claim preclusion) means that the same parties can't raise the same claims after there has been a judgment. Ever. Automatic bar. All you can do is attack the judgment itself, say that it was flawed somehow. All you're going to do is piss off the judge, most of the time.

Re:I'm not a lawyer, so someone please explain thi

[Anonymous Coward]

No state Bar that I am aware of will admit an attorney currently disbarred in another state. In fact, if you're admitted in multiple jurisdictions already they'll all disbar you if one does, providing that disbarment is an possible punishment for that offense being committed in their jurisdiction.

Re:Dirty Pool

[NewYorkCountryLawyer]

A question for Ray (and any other lawyers on /.): I know lawyers are required to do what they can to the best of their ability for their clients but, to me, a non-lawyer, it really seems like the RIAA lawyers are playing dirty pool to the Nth degree. They aren't just doing everything they can - they are going beyond the call of duty to succeed even if it is beyond the scope of law and morals. Is this sort of conduct "normal" for lawyers (as in, common enough that this isn't terribly surprising) or are the RIAA lawyers truly standing out from the crowd with their actions?

No it is not normal. These lawyers are at the bottom of the profession. In my book, they're outside the profession.

Re:So what did the judges say?

[NewYorkCountryLawyer]

So what did the judges say? Any response at all?

I just wrote to them late yesterday. When they respond I'll of course post it on my blog, and put a story or comment here.

Re:Dirty Pool

[NewYorkCountryLawyer]

I'm not a lawyer, but I've hired a few over the years. Frankly, I want my lawyers ready and willing to sue their own mothers if that's what I want them to do. I regard lawyers (mine or not) as instruments of the client's will.

Only the dregs of the profession are like that. You want to be represented by the dregs, be my guest. But you'll find that the real victims of those types of lawyers are ..... their clients.

Re:we gotta assign people to protect NYCL

[Skadet]

Haha, nice work. My brother and I used to play Bad Dudes on the NES when I was, like, 10 years old.

(for those wondering: http://en.wikipedia.org/wiki/Bad_Dudes [wikipedia.org] )

Re:I'm not a lawyer, so someone please explain thi

[NewYorkCountryLawyer]

Seconded, enthusiastically. He's a lawyer but he's keeping the RIAA's lawyers in check purely by his own sheer awesomeness. We're really fortunate to have him on slashdot; he always keeps us informed and lifts the level of discourse on slashdot with his contributions. NYCL needs to reply to this, so we can know if he really is the son of justice. I must know.

No I'm not.

But I try to be.

Re:NYCL FTW!

[NewYorkCountryLawyer]

NYCL: at what point do the RIAA open themselves up to racketeering charges with behavior like this?

In my opinion, they already have, with a massive 5 year nationwide extortion campaign, use of unlicensed investigators, unlawful collection tactics, criminal violations of the federal computer fraud and abuse act, criminal price fixing in negotiating settlements, many instances of perjury.......