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Prenda Law Comes to 9th Cir., Predictably Dodges Questions

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By Mark Wilson, Esq. on May 06, 2015 3:54 PM

Tired of Prenda Law news? Yeah, we didn't think so. We're not either.

The disgraced, oft-sanctioned "law firm" that appeared to exist for the sole purpose of suing people for illegally downloading pornographic films, then extracting settlements from them, had its day before the Ninth Circuit Court of Appeals earlier this week -- and things didn't go well.

Prenda Law is appealing a hilarious, Star Trek-themed order written by District Judge Otis Wright requiring Prenda Law's principals to pay sanctions and attorneys fees for their vexatious and evasive conduct.

It's a Bold Move, Cotton

Even though the contempt proceedings at the district court were civil contempt proceedings, Daniel Voelker, attorney for Prenda Law and the rest of the appellants, took the risky step of claiming the proceedings were actually criminal contempt proceedings. He gets there thanks to a single sentence in an order to show cause filed in February 2013 in which Wright considered "incarceration" among the things he would consider "sufficient to deter future misconduct."

That particular order, however, pertained only to Brett Gibbs, the attorney for the porn holding companies, who, it was revealed, may have engaged in identity theft and fraud.

Nevertheless, Voelker really wanted the Ninth Circuit to view the contempt proceeding as a criminal one so that he could argue the appellants' due process rights were violated. These due process rights included the right to cross examine witnesses, which Wright didn't allow, and drawing an adverse inference Mark Lutz, the CEO of one of the porn companies, invoking the Fifth Amendment.

That strategy seemed bizarre to Tallman, who pointed out that criminal contempt carries a potential maximum penalty of life in prison. "Is that what you want?" he said, "Even if they're looking a potential of life in prison? They're willing to run that gauntlet?"

Bobbing and Weaving

Voelker ultimately proved just as evasive as his clients have been. On the identity theft issue, Tallman asked if the person who was alleged to have been assigned the copyright to one of the porno films, Alan Cooper, was the gardener of one of the Prenda principals. Voelker claimed he didn't know -- even though that's exactly what happened. A frustrated Tallman responded, "Come on, Mr. Voelker, I'm not making this stuff up. I read it in the record. That's where my questions come from."

Voelker continued to insist that information wasn't in the record before the district court, adopting the very technical argument that, because Wright's order was issued sua sponte, there was no record from which the facts of the order could be drawn. This only irritated Tallman more: "Counsel, you're not helping me with this argument. Instead of answering my questions, you just want to bob and weave."

And weave he did, refusing to acknowledge that the appellants had any knowledge that Cooper's signature on the copyright assignment had been forged, or that they had forged it. "So the document just sort of found its way before the district court?" Tallman said. "It was delivered by the tooth fairy?"

We can't wait for this to get to the U.S. Supreme Court.

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