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Defense attorneys say venue tactics mark another chapter in Prenda saga

By Bethany Krajelis | Jan 15, 2014

CHICAGO (Legal Newsline) - Putting aside the intricate web of characters, evolving plot line and allegations of "brazen misconduct," the story of Prenda Law includes even more twists and turns when it comes to how and where its computer fraud and copyright infringement suits were brought.

Since about 2010, attorneys with ties to the n0w-dissolved Chicago firms of Prenda Law and Steele Hansmeier have filed hundreds of complaints in courtrooms across the nation, where they accused thousands of people of hacking into their clients' computer systems to illegally download pornography.

While the basis for the suits was relatively simple, though the merits were often questioned, Prenda-associated lawyers brought them in various courts under different legal theories in a way that some defense attorneys said allowed the firm, its attorneys and practices to stay under the radar for so long.

Many of the complaints didn't include named defendants and instead listed potential "John Doe" defendants, sometimes in swarms by the hundreds, in actions seeking to serve Internet Service Providers (ISPs) subpoenas for information to identify the users of certain Internet Protocol (IP) addresses.

Prenda brought some of its clients' suits in state courts, alleging computer fraud and abuse, conversion, breach of contract and other civil conspiracy claims, while others made accusations of copyright infringement in federal courts.

And in some instances, including related defamation cases, circuit court suits were removed to federal courts on the basis of diversity or after defense counsel successfully argued that the state counts boiled down to copyright infringement, claims that federal courts have exclusive jurisdiction over.

Several defense attorneys involved in the litigation assert the way Prenda explored different venues and legal tactics allowed its key players - Paul Duffy, Paul Hansmeier and John Steele -to continue bringing suits on behalf of clients that some judges have called out as being shams, created to pad the pockets of the plaintiffs' attorneys.

Massachusetts attorney Jason Sweet, who represents John Does and named defendants in suits across the nation, said Prenda's venue and tactical changes, combined with the fact that state court records aren't as accessible as federal documents, made it difficult for defense counsel to share information and unravel the web.

"One of the ways they have gotten away with this for so long is because once they wore out their welcome in a certain federal district, they moved to another one," Sweet said. "Or they would file in a state court that had pre-suit discovery laws still on the books."

Sweet said at the beginning of Prenda's story, sometime in 2010, defense lawyers in Arizona, for instance, didn't know they were dealing with the same issues other attorneys were coming across in states spanning from California to Florida.

While it may have taken longer than he had hoped, Sweet said defense attorneys in the past year or so have been able to put the Prenda puzzle together.

Prenda in federal court

While it is not clear exactly how many suits Prenda has filed on behalf of its clients in state courts, electronic court records show several of the dissolved firm's clients have brought hundreds of federal copyright infringement complaints.

Records show that two of Prenda's clients-- AF Holdings LLC and Ingenuity 13 LLC, the ones a few judges have dubbed shell corporations- have brought at least 200 cases in federal courts across the nation.

The majority of these suits were brought in California and several were filed in Illinois, Florida, Arizona, Georgia, Minnesota and Michigan, among others. Most date back to 2011 and 2012 and the majority of these cases were closed within the past two years.

And while many of the cases were voluntarily dismissed by Prenda's clients, some were dismissed by judges for want of prosecution, failure to serve summons and file amended complaints or closed through default judgments and settlements.

One of the most well-known federal cases involving Prenda is Ingenuity 13 LLC v. John Doe in the Central District of California, where U.S. District Judge Otis Wright II applied a "Star Trek" theme in a May 2013 sanctions order.

In issuing sanctions against Duffy, Hansmeier and Steele, as well as former of counsel Brett Gibbs, Prenda Law, AF Holdings and Ingenuity 13, Wright said the attorneys engaged in "brazen misconduct and relentless fraud" and "outmaneuvered the legal system."

Morgan Pietz, a California attorney who represented defendants in the Ingenuity case, told the Madison-St. Clair Record in May that Wright's order was a "major victory" and "in some ways... vindication for all of Prenda's victims."

Pietz also represented some John Does in the downstate Illinois case of LW Systems v. Christopher Hubbard, along with several other lawyers.

Like a few other circuit court suits brought by Prenda clients, this case included an agreed order that let the plaintiff subpoena ISPs to get the personal information associated with certain IP addresses.

St. Clair County Circuit Judge Andrew Gleeson dismissed the LW Systems suit with prejudice this past summer, after the parties stipulated "to pay their own court costs and legal fees, pursuant to the parties' amicable resolution of the case."

Shortly after that case was dismissed, Pietz told the Madison-St. Clair Record that the litigation tactics of Prenda attorneys had earned them a bad reputation in the legal community, something that may have spurred them to start filing suits in state court as opposed to federal court.

"What plaintiffs have done in a very cunning fashion is to try to dress up copyright infringement claims in clothes to try to make use of the state courts," he said, explaining that they were just attempting to "engineer a way to stay out of federal court."

Pietz said Prenda managed to get some of its many federal suits dismissed, but was forced to move forward with others because either their dismissal requests were denied or the defendants had already filed answers or motions.

"They tried to dismiss all the federal cases they could and then switched to filing state court cases," he said this past summer.

Sweet, the Massachusetts attorney, said he thinks Prenda attorneys "probably would have gotten away with [their practices] for a lot longer if they had not sought to remove Judge Wright" in the Ingenuity case.

"If they had just walked away, they probably would still be at," Sweet said, adding that Prenda attorneys instead chose to "make it personal" by seeking Wright's removal in the California case, which likely made the judge pay even more attention to them.

In addition to his copyright infringement cases, Sweet represents two men being sued by Prenda and Duffy for defamation in Illinois, along with Chicago attorney Erin Kathryn Russell.

These two suits, which have since been consolidated in Chicago's federal court, provide even more insight into Prenda's tactics when it comes to venue.

In early 2013, Prenda and Duffy brought defamation suits against Minnesota attorney Paul Godfread and his client, Alan Cooper, in the circuit courts of St. Clair and Cook counties.

Godfread and Cooper claim the suits were brought in retaliation for Cooper's identity theft action that accused Steele and Prenda of stealing his identity to use as an officer of AF Holdings without his approval.

They removed the defamation suits to federal court based on diversity of citizenship of the parties as they are from Minnesota and the plaintiffs are from Illinois.

Shortly after the complaints were removed, Duffy sought remand back to the circuit courts, saying that the defendants' removal notices omitted the fact that the complaints were amended to include Alpha Law Group in Minnesota as a plaintiff, an addition that destroyed their diversity argument.

The remand requests were denied and those suits, as well as a motion seeking sanctions, remain pending.

Prenda in state court

Russell, the Chicago attorney working with Sweet on the defamation case, said she got involved with Prenda litigation about two years ago through a referral and has been representing defendants ever since.

She said her first client was the target of a subpoena in a suit that Guava LLC brought in 2012 in the Cook County Circuit Court against Skyler Case and more than a dozen John Does accused of illegally downloading porn.

"I almost didn't take it," Russell said, explaining that she usually only handles federal matters.

Obviously, she did, and like many defense attorneys who handled early Prenda cases, Russell said it didn't long after dealing with Duffy, Hansemeier and Steele to start seeing how complicated the web was.

Like the majority of suits Prenda has filed in state courts, Russell said Guava named one defendant and listed several potential John Doe defendants in its Cook County suit, which accused alleged violations of the Computer Fraud and Abuse Act (CAFA), as well as breach of contract, computer hacking and civil conspiracy.

Shortly after it was filed, Case's attorney, Adam Urbanczyk in Chicago, and Duffy signed an agreed order to let a list of ISPs be served with subpoenas seeking information of the John Does.

While there have been a few instances of agreed orders, it hasn't been the norm. In most cases, if subpoenas requests were granted, the ISPs and defendants, both named and unnamed, would file motions to quash and if they were denied, the plaintiffs would voluntarily dismiss the case.

The cases in which agreed orders were entered have spurred some defense attorneys to question whether the named defendant's attorney colluded with Prenda attorneys to exploit the court's subpoena power.

In response to the agreed order in Guava v. Case, Russell filed a motion to quash, claiming that contrary to Duffy's argument, the John Does had a standing to challenge the subpoenas even though they weren't identified in the suit.

Her motion went on to mention Prenda's practice of offering defendants the chance to settle for a few thousand dollars rather than face the embarrassment of being identified in a lawsuit over porn, something several defense attorneys say amounts to extortion.

Russell said she assumes Cook County Circuit Judge Sanjay Tailor knew something was off in the case, noting that he asked the attorneys representing Case and Guava if they were "in bed with each other" at the very beginning of one hearing.

Guava voluntarily dismissed the Case suit last year and like many of the dismissal notices filed by Prenda, it did not include an explanation.

Belleville attorney Laura Beasley, who has represented dozens of unnamed defendants in suits brought by Guava, LW Systems and Lightspeed Media Corp., said Prenda has "tried to get information on John Does through so many different means."

Beasley said after being presented with an emergency motion, the Illinois Supreme Court even got involved in Lightspeed Media Corp. v. Anthony Smith.

The high court in that case, which was voluntarily dismissed last year after being removed from St. Clair County Circuit Court to federal court, issued a supervisory order telling the lower court to grant the ISPs request to quash the previously-approved subpoenas.

Although it was dismissed, Duffy, Hansmeier and Steele last month appealed a November order from now-retired U.S. District Judge G. Patrick Murphy requiring them to pay the named defendant, as well as AT&T and Comcast, more than a quarter of a million dollars in attorneys' fees and costs.

Beasley said she is involved in another St. Clair County case that is on appeal to the Fifth District Appellate Court. This case - Guava v. Comcast -is on the court's Feb. 4 schedule, which notes it will not include oral arguments.

This action falls under another one of Prenda's strategies, Beasley said, which originated from a November 2012 petition for pre-suit discovery that sought a court order requiring Comcast to identify the owners of certain IP addresses.

That petition was granted, spurring more than a dozen John Does to file a motion to quash the subpoenas. The appeals panel in March issued a stay pending the appeal.

"How they use the judicial system is just ridiculous," Beasley said. "It's frustrating and hard for my clients to understand. They are getting the worst taste of the legal system with all of this."

This is the second part of a three-part series. The first story can be read here.

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