Foster Demands RIAA Post $210K Security For Fees 198
NewYorkCountryLawyer writes "A few days ago it was reported that, in view of the RIAA's one-month delay in paying the $68,685.00 attorneys fee award in Capitol v. Foster, and its lawyers' failure to respond to Ms. Foster's lawyer's email, Ms. Foster filed a motion for entry of judgment so that she could go ahead with judgment enforcement proceedings. In response to that motion the RIAA submitted a statement that it had no objection to entry of judgment, and intimated that it thought there would be an automatic stay on enforcement of the judgment, and that it would ultimately file an appeal. After seeing that, Ms. Foster's lawyer has filed a motion for the Court to require the RIAA to post $210,000 in security to cover the past and future attorneys' fees and costs that are expected to be incurred."
New train of thought (Score:5, Insightful)
God, I'd love to see somebody use that tactic against the RIAA. Something tells me it wouldn't work so well the other way around.
Within a reasonable amount of time probably (Score:5, Interesting)
Given that they are fairly stupid in these matters it wouldn't surprise me if they really do try and appeal it, mostly as a delay tactic. It also wouldn't surprise me if the net result is the judgement is upheld, and she gets more money (for the fees incurred during the appeal).
Re:Within a reasonable amount of time probably (Score:5, Informative)
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Re:Within a reasonable amount of time probably (Score:4, Interesting)
mmmm... now multiply it by the number of court cases they have outstanding. And the number they intend to bring in the future.
A precedent like could get expensive very quickly, even by recording industry standards.
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OT: Why the quotation marks? (Score:2)
Why the quotes? Do you think I've used the word "precedent" inappropriately?
(not disagreeing with you - just confused)
Re:Within a reasonable amount of time probably (Score:4, Informative)
I suggest most people taking the time to read the 16 page order will be convinced that, regardless of whether the Judge reached the precisely "correct" dollar amount, he certainly gave it due consideration.
One thing I found particularly interesting was that the fee agreement between Ms. Foster and her attorneys called for a rate of $175 per hour. The requested reimbursement was for $225 per hour. While a fee arrangement is not binding, it is certainly instructive to the court as to the actual cost to Ms. Foster. Much of the reduction from $100k to $68k was from this one change.
Similarly, the Judge refused to allow Ms. Foster's attorneys to bill $80 per hour for work by a paralegal. It seems perfectly reasonable to me not to include these costs. Basically, the Judge went through each bill and evaluated its reasonableness. Exactly my managing partner does to me each month and more importantly, exactly what the law requires in copyright cases.
I understand your 1st point, but not your 2nd (Score:2)
Absolutely.
Re:I understand your 1st point, but not your 2nd (Score:5, Informative)
In short: It is perfectly normal and accepted to bill for paralegal time. But in this particular case, the Judge made a rather detailed finding that these specific bills were excessive.
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What you can see me telling a judge that I didnt pay it because I was thinking about appealing it?
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Re:New train of thought (Score:5, Informative)
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I don't know about that, surely if they get away with this they have set a legal precedent that could be used from the other side too? In weaseling out of paying here they might find cases where they win result in no payment of fines either.
All depends on the judge in the end.
Re:New train of thought (Score:4, Informative)
No appeal has been filed yet because no judgment has been entered. In response to the motion for entry of judgment, the RIAA stated it did not object but that it would be filing an appeal upon entry of judgment which prompted the other party's motion for the large appeal bond.
This is S.O.P. (Score:4, Informative)
IANAL, but I hire them a lot to defend schools. Yes, this is pretty much SOP. Leaving aside that the RIAA are bottom feeding slime suckers, what they are doing is pretty standard. Winning side is awarded costs. Loser does not pay while deciding whether or not to appeal. One standard gambit is to trade a waiver of costs for no appeal. It is also standard for the winner, Foster, to demand and get an escrow of costs during appeal, as he is doing here. Appeals can be tricky, because you can generally only appeal on the law, not on the facts that have been decided at trial. This kind of thing tends to drag out a long time.
So Mr. Beckerman and Mr. Rogers... (Score:5, Funny)
Re:So Mr. Beckerman and Mr. Rogers... (Score:5, Interesting)
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I don't know about the Nobel something, but at the very least you're making it apparent that not all lawyers are scum (and that's quite an accomplishment)... May seem strange to you, but I've yet to meet one likable lawyer. I'm curious about something though. Did Mrs Foster have to pay the money already (what she owes you) or are you waiting for the collection of the R
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Did Mrs Foster have to pay the money already (what she owes you) or are you waiting for the collection of the RIAA money?
I'm guessing that Ray can't really answer this question. So, here's my experience with my likable lawyer. When I was getting divorced I had filled and drained my retainer three times, when it came to my court date I had about $50 left on account. My lawyer assured me, though that he would not leave me high and dry, the case was essentially won and I had a good track record for paying him. I assume that Ray doesn't intend to leave this lady high and dry simply because that check hasn't come in yet. It seem
Re:So Mr. Beckerman and Mr. Rogers... (Score:5, Informative)
1. I don't represent Ms. Foster; her lawyer is Marilyn Barringer-Thomson of Oklahoma City.
2. If I were her lawyer I probably could not answer the question anyway, since it is confidential information the RIAA would just love to have.
3. As a general proposition, it would be legally irrelevant how much of the bill was paid and how much unpaid.
4. If I had to guess, my guess would be that Ms. Foster is a poor hardworking person without much dough and she has probably paid only a very small portion of the bill.
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When I was facing litigation from Farmers and/or Zürich Financial for my gripe site, the two lawyers who were going to handle the case for me gave me a no win/no pay provision. That was awfully generous of them, but they could have also fronted me the retainer and forgiven any unpaid money had we lost*. As it turned out Farmers blew (an estimated) $750K litigating a case in Washington with another gripe site owner and all but lost the case (it was settled out of court, but the website is still up
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...but they could have also fronted me the retainer and forgiven any unpaid money had we lost
I don't understand why you feel this way. It seems you're asking for a discount and credit for a case that your lawyers were working on. Why do you think your lawyers should have worked for free with or without a loss? I'm sure they had bills to pay among other things while they were working on your case. Of course if they were spending a lot of time on your case I could see how it would get expensive quickly, but, if you can find a way to keep pace, you really aren't out of anything in the long run. It'
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It may look like charity to some people but it is simply lawyers gambling to maximize their gains while also
Re:So Mr. Beckerman and Mr. Rogers... (Score:4, Insightful)
Rex O'Herlihan: "You're not a good guy at all!"
Bob Barber: "I'm a lawyer, you idiot!"
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Lawyer: "Barely, I'm a lawyer,"
Not the least bit surprising ... (Score:5, Interesting)
Re:Not the least bit surprising ... (Score:4, Insightful)
Of course, by going the appeal route, they stand to have to pay out more money. And if their appeal is denied, there will then be a storm on the horizon for them, for this case has become very high profile now and if word gets out to the general populace that they are vulnerable, the wolves will surely show up at the door. So what seems like a pittance now will grow with each new case they lose and try to appeal. It will only take two or three more cases like this I think before the tide begins to turn against them. I made a joke yesterday about them having to borrow money from SCO, but given the scope of what they are trying to do and the number of people they are trying to do it to, they could find themselves in deeper than they wished.
Re:Not the least bit surprising ... (Score:4, Funny)
*waits for his Interesting*
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Not only do they fail to pay their content creators reasonable amounts of money for their intellectual property...
What you're missing is that it is those content creators who agreed to be paid the amounts they are. If enough of them don't like their current arrangement and up-and-comers want nothing to do with the RIAA, then why don't you start up ARIA (Alternate Recording Industry Association) and offer them a better deal? As a bonus, you can be a nice guy in court too!
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live by the sword, die by the sword (Score:5, Interesting)
bleed the RIAA dry folks. given the opportunity, they'd do the same to you
When in a hole (Score:4, Interesting)
Surely it would be better for the RIAA to just pay up and stop all the publicity about the case. Of course, that probably wouldn't be the best for its lawyers, which suggests where the real balance of power lies.
Re:When in a hole (Score:5, Insightful)
Surely it would be better for the RIAA to just pay up and stop all the publicity about the case. Of course, that probably wouldn't be the best for its lawyers, which suggests where the real balance of power lies.
Re:When in a hole (Score:5, Informative)
Terra Firma is a private equity firm; they specialize in buying out companies, restructuring them and fixing management issues, and taking profit from the restructuring.
So, the NEW owners haven't yet had time to do much. Whether they will change or not remains to be seen - they've only had a couple of weeks on their hands...
Eivind.
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It's probably a pipe dream, but it would be amazing if they could actually restructure a record label to make it more fit for the digital age. People like music, and I'm sure you could make a hefty money machine from a record label. And yes, I me
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Are many of them divesting yet? A more secure investment might be something like...household products. However if the share prices and dividends(do they still do that?) are holding up, I would think that they have nothing to react to. May I assume that the record companies have a fairly diverse portfolio also? Don't some of them have big investments in heavy industry, such as ship building? Or shi
Re:When in a hole (Score:5, Insightful)
While it's certainly an issue on slashdot, I would say the average person on the street doesn't know (or likely care) because there's not a huge amount of mainstream publicity. From talking to the people at the RIAA, they don't seem to care about the perception. My perception of their perception is that they believe the people who are against them don't understand the problem.
And, as a side note, the "RIAA" is essentially a group of lawyers. There's no issue about where the power lies because they were created to lobby and to sue.
Re:When in a hole (Score:5, Insightful)
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That hasn't been my experience, but even so, settling this particular case isn't going to stop that general awareness. My assertion was primarily that most people are unaware of this particular case.
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The only difference is that RIAA has some legal standing here, while SCO didn't even have that.
The fact that the RIAA is suing their customers strongly suggests that not only is their business model de
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IMHO, each case that goes our direction draws more attention than any of the many cases that break for the RIAA.
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I think, as a whole, the RIAA doesn't care what people think of them. Their customers are the major record labels, and if the RIAA can act as the "muscle", then we won't associate these antics with the labels them. Face it; if the headline read "Warner Brothers Sues 80-year-old Grandma Without a Computer for Piracy", people would think negatively of the label and be less likely to buy their product.
What plublicity? (Score:2)
Shows like the Daily Show should be making a field day of this. But they are in the entertainment business so they have no motivation to go up against their own.
The RIAA really have NOTHING to loose and everything to gain. If they loose the 70,000 big deal. But if they win they show that even if you win your case you loose so it is better to pay up.
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So how is it.. (Score:4, Interesting)
Surely the fact that the RIAA has to pay is not at question as a court of law has already determined they should, so forcing them to pay is not a matter for needing another judgement, just enforcement.
why should the defendant have to appeal for another judgement after the RIAA didn't pay, and why do the RIAA now have an opportunity to back out of an already decided case?
Re:So how is it.. (Score:4, Informative)
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Well, no, not exactly. If my years of lurking at Groklaw have taught me anything, it's that for an appeal to be granted, there has to be a matter of law in dispute. I don't know if there is such a matter or not, but no, you can't appeal just because you didn't like the verdict...
SCO? (Score:2)
More like SCO writ small... (Score:2)
Of course the RIAA's tactics are just as slimy as those of SCO, but so far the RIAA stuff has a lot less publicity. This may change if they do something really stupid and get thrown in jail for contempt of court (which would be news by itself), but I guess a lot more has to happen before that. US courts seem rather tolerant to abuse of the court system.
I think I've changed my mind (Score:5, Interesting)
Now I think I should stop. I like the convenience of iTunes, so this might be difficult. But an organization like the RIAA is wholly without merit and needs to opposed; even though for me it means changing my principles.
What about the artist's cut? I could take the easy way out and figure that it was small anyway and they were mostly getting screwed, but I think that's a facile argument. I'll simply adopt the viewpoint that you get involved with cretins like the RIAA at your own risk and by so doing I'll have no qualms stealing from you.
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Re:I think I've changed my mind (Score:5, Funny)
Re:I think I've changed my mind (Score:5, Funny)
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Two, actually!
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This has been my qualm for years. The RIAA is so entangled in the artist they "support" that listening to music in any legal way means that some money has been funneled to them. The only ways that I can think of that let you listen to the artist's music without giving money to the RIAA is through concerts and pirating. And I may be wrong with the concerts.
With pirating however, you don't get to support the artists financially. If that aspect could be incorporated someh
How about (Score:3, Informative)
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Being principled when it's easy means little. Being princpled when it takes sacrifice is the only measure of ethics. If you've come to the point that you can't support the RIAA in good conscience, good for you; now accept that there's a cost to your princples and walk away from RIAA-owned music.
Reshaping your principles to make it painless to avoid supporting the RIAA would leave you ethically no better than they are.
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boycott time...... (Score:4, Insightful)
Way ahead of you (Score:4, Funny)
I'd love to see .... (Score:2)
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Law School 101 (Score:5, Interesting)
1. Sue someone.
2. Have a trial / reach settlement.
3. Reach a verdict.
4. Judge enters judgment. Note: This is not a "final" judgment. Judgment only becomes final after the period for appeal has ended.
5. Losing party has right to appeal or it may simply pay.
6. Appeal is processed and after all appellate rights have been "exhausted", FINAL judgment is entered.
7. Winning party seeks formal entry of judgment in a separate proceeding (usually called "enrolling" the judgment, although that term varies by jurisdiction).
7. ???
8. Collect judgment.
9. Profit.
In short, I know RIAA are a bunch of scum-sucking *ahem* lawyers, but this whole case is premised on a serious misunderstanding of how the legal system works. Any one of us could go through the same process and draw out any case to the same degree. Most reasonable parties settleup after the initial entry of judgment, but there is certainly no requirement that a party forego its legal rights just to be "nice."
In fact, it somewhat makes sense that things work this way. Put aside your dislike for RIAA for a second. Assume that a losing party justifiably feels that it was wronged by the Judge's decision and wishes to appeal. Does it make sense that they should be required to pay the judgment before the decision has been reviewed by a higher court? In order to protect against the danger of default, it is common to request that the losing party be required to post security in an escrow account during the pendancy of the appeal.
In short: I admire the marketing arm of this particular law firm, but really, nothing to see here.
Re:Law School 101 (Score:5, Informative)
Re:Law School 101 (Score:4, Informative)
There is a law against frivolous appeals, and an appeal from this judgment would be frivolous.
First, of course the other side's appeal is frivolous! Have you ever heard opposing counsel say anything other than that? They teach that in remedial lawyering! I would expect to hear nothing else from an attorney vigorously pursuing her case.
Second, if Ms. Foster and her attorneys believe that an appeal is her best interest, she has every right to pursue such an appeal.
Third, you are correct that there is a law against frivolous appeals. If an unbiased court finds that an appeal is truly frivolous (and that's a pretty high burden) the court may again order attorney's fees, sanction the attorneys involved, or even report them to the state bar for disciplinary action.
Remember, frivolous =/= stupid or dumb or unlikely to succeed. Appealing a judgment in favor of the other side is rarely going to be considered frivolous under the legal standard.
For the record: Rule 11 of the Federal Rules of Civil Procedure:
(b) Representations to Court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
(c) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.
(1) How Initiated.
(A) By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as provided in Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.
(B) On Court's Initiative. On its own initiative, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) with respect thereto.
(2) Nature of Sanction; Limitations. A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a pena
Re:Law School 101 (Score:5, Informative)
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Not after the current administration has padded the current SCOTUS with business friendly justices. Note that my keeping tabs on the SCOTUS is pretty much high-profile headlines on Slashdot and Plastic, but the trend over the years seems pretty clear to me. Excepting an abuse of the law so laughable and egregious on the part of the RIAA that it would be foolish to rule for them, I would almost certainly expect the current Supreme C
Security reasonable (Score:2)
The RIAA could easly go bankrupt over the judgement and the labels start another shell RIAA2.
Just Pay Them (Score:3, Interesting)
Gifts are easy to make. We all pay bills to all kinds of companies every month. Get out your stinkin' checkbook or whatnot and simply send the your favorite artists some money directly.
Please, skip buying their music from this insane system. Trade, beg, borrow or steal it, but donate to the artists you like. Send them the $10 for the album. Remove the guilt, feed your inner pirate, and get some new tunes. There are actually a lot of great bands out there, and plenty of ways to find them. And they would make much more from this than from wait for royalty checks from the AA
It Will Be A Huge News Day... (Score:3, Insightful)
Why would anyone who won ever agree to such an agreement? The RIAA says, we'll pay you now if you sign the agreement, or we'll wait and see if you die before this overcomes all the tricks our lawyers can play on you first. Would you sign to get the money you're entitled to under such circumstances?
Shareholders (Score:2)
Not uncommon (Score:3, Interesting)
Does anyone have a name/address/phone number of her attorneys? I'd love to send them a check for $100 to help fund her legal fees. Given the number of
Re:Not uncommon (Score:5, Informative)
Post Office Box 54444
Oklahoma City, Oklahoma 73154
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Re:In Other Words (Score:4, Insightful)
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and as such a protracted law suit in the long term does them little harm.
They only think that, but they can only abuse the legal system for so long before their luck runs out and they get a judge that is sick of their antics. It also does terrible damage to their public image (what little they actually have). If they tick off enough people, eventually there will be a boycott of RIAA labels, although I'm not sure they could actually tick off that many people before some other legal smack down gets put on them.
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I've been boycotting them for a couple years...basically, since I bought my house and then realized that I now have something to lose if they decide that I've got a purty mouth.
Here's my take on the whole thing, and strategies/tools for the boycott:
http://slashdot.org/~thc69/journal/ [slashdot.org]
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There already IS a boycott of RIAA labels. It's not organized, and not big; and I seriously doubt it can ever be big enough to make them change their ways.
Yes, I know some people already are boycotting RIAA labels, but I meant precisely what you say doesn't exist, a large well organized national boycott. Unless at least 50% of the public is boycotting the RIAA I doubt they'll even take notice, and I don't think we'll ever manage to get that many people interested. It's far more likely some sort of legal shenanigans on the part of the RIAA will backfire and they'll get a nasty judgement that shuts them down. Either that or all the old guard labels will conti
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http://analbumcover.com/images/riaa.jpg [analbumcover.com]
Re:In Other Words (Score:4, Interesting)
Re:In Other Words (Score:5, Interesting)
In the UK (and a large part of the world), the loser in a court case pays any reasonable costs of the winner. This discourages any frivolous suits (since instead of just standing to win 1/3rd of the award the plaintiff lawyers stand to lose the opponent's costs as well as their own). It also encourages lawyers to take strong cases on contingency, since their costs are likely to be covered (in addition to any cuts of the award itself) - even if the final award is small. And, it encourages wronged parties to not just settle against their consciences just to avoid running up a huge legal bill.
If you're a UK citizen you just need to go into court and the costs are settled after the fact. The logic is that if you don't pay up they know where you live.
However, if you're not located in the EU then you're required to post security before being able to sue - in the amount of any likely award for costs. The logic is that if you lost you could just refuse to pay, and the British courts don't have easy access to you. If you've paid security, on the other hand, they don't need access to you.
Many have aruged for a loser-pays system in the US. It arguably has its own downsides, but it would be likely to greatly reduce them number of cases in the courts as plaintiffs could no longer just file a suit and hope for a small settlement so that the defendant doesn't have to pay legal costs.
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Its called the SCO offense. Litigate until the other side gives up and signs something.
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Re:In Other Words (Score:5, Insightful)
I don't know that they want this publicity for being "above the law". If enough people see them as "above the law", then people might actually get pissed off enough to do something to change the laws.
I doubt the issue is really about the money, either. They probably just don't want to admit defeat, since it would encourage others to fight them in court.
Re:Interesting (Score:2)
The RIAA **still** wins. Months and months of lawyering costs for supposedly violating copyright. That's the story they want every consumer to know and fear.
It would be very misguided thinking to believe that the Rule of Law applies to the RIAA.
Re:In Other Words (Score:5, Insightful)
And while I know it would never happen, cases like this, where the plaintiff lost and had counterclaims entered against and lost to the original defendant, yet refuses to pay up, should not be allowed to begin other cases of similar nature (same claims against other defendant(s)) until they either pay up or file appeal or make some motion on the case rather than just delay it. As it is, they seem to be merrily going about their business of launching hundreds/thousands of lawsuits, and still doing so in ways advised and ruled against by the courts (ie: multiple individual john doe cases instead of class-action or bulk filing, ex-parte against students, etc). If they cant be held to honor judgments held against them, or even honor the courts' previous rulings, why should anyone else honor judgments made in their favor? At the least, awards found in their favor should be suspended until they pay up or prove they shouldnt be paying rather than just sitting around wasting the time of the people and the courts as they seem to be doing now.
Asbestos suit is on, and expecting flames of why this is a bad idea...
Tm
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And it matters because.... (Score:2, Insightful)
Re:Email? (Score:4, Informative)
Re:Email? (Score:4, Informative)
It makes life a lot easier. For example, if you've got a deadline and you're not going to be able to make it to the court by 4:45 to file a motion, you can e-file at any time up until midnight (this is especially nice when the case is filed in a court that's 150 miles away). Also, our postage costs (which are paid by the client) have been reduced significantly. We also get immediate notice of filings in our cases, without having to wait for the USPS to deliver the goods.
That said, there have been days where I'd like to be able to run stuff to the courthouse myself. Like the day our ISP collapsed and no one could connect to the e-filing service from the office.
But overall, I'd say it's a great improvement over "the old days."
--AC
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Technically legal but IMHO unethical. I hope it comes round to bite them in the ass.
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If you find something "annoying" why don't you just try not reading it?
Like I'm going to do with any future comments from you.