Monday, October 01, 2007

In Response to Dismissal Motion in Elektra v. Schwartz, RIAA Asks Defendant's Lawyer to Help Them Re-draft Complaint

In Elektra v. Schwartz,where Ms. Schwartz indicated that she is moving to dismiss the complaint, the RIAA took the most unusual step of reaching out to Ms. Schwartz's lawyer and asking him to help them re-draft their complaint.

Plaintiff's counsel sent the following in an email to Ms. Schwartz's lawyer:

Obviously, Plaintiffs maintain that their complaint is sufficient under Fed. R. Civ. P. 8, even in light of the Supreme Court's holding in Twombly. Nevertheless, in the interest of efficiency, we inquire as to what precisely Defendant contends is lacking from Plaintiffs' Complaint for Defendant to consider it sufficient. Perhaps Plaintiffs may be able to satisfy these alleged deficiencies and spare both parties additional and unnecessary motions practice.
His response was:
Plaintiffs have no case whatsoever against Ms. Schwartz, and their case against her was frivolous in its inception. Accordingly, there are no facts they can allege that will satisfy the plausibility standard.
Pressed further, he further responded:
You have shown yourself to be an extremely clever lawyer, and would no doubt have no problem whatsoever drafting an appropriate pleading had you any facts or law upon which to base such a pleading.

The problem is that you do not have a case against Ms. Schwartz. There is, therefore, nothing you can truthfully allege that will satisfy the 'plausibility' pleading standard.

You would therefore to do well to dismiss the case with prejudice in order to avoid expanding even further yours and your clients' exposure to attorneys fees, damages, and sanctions.

For your reference, attached is a copy of the decision in Morton v. Seltzer, 336 Mont. 225, 154 P.3d 561 (2007), where a plaintiffs' law firm was held liable to the defendant for damages for conduct quite similar to your conduct in the instant case.

Also, attached are copies of Capitol v. Foster, 2007 WL 1028532 and 2007 WL 1223826, resulting in a $68,685.23 attorneys fee award against your clients based upon your firm's pursuit of a case very similar to the instant case.
Pressed yet again he responded finally:

You asked me to supply you with the facts you would need to prepare an amended pleading that would survive a dismissal motion. Not only do I not know of any such facts, I am certain that no such facts exist.


A copy of the entire email exchange is as follows:

September 20th-21st email exchange*

The exchange came to light when the RIAA filed an abbreviated version of the email exchange in connection with correspondence concerning Ms. Schwartz's motion for judgment on the pleadings to dismiss the complaint.

October 1, 2007, Letter of Richard L. Gabriel to Hon. David G. Trager (Re Defendant's Motion for Judgment on Pleadings)*
Exhibit A, abbreviated version of September 20th-21st email exchange*
October 1, 2007, Letter of Richard L. Gabriel to Hon. Robert M. Levy (Re Motion for Stay During Pendency of Defendant's Motion for Judgment on the Pleadings)*
Exhibit A (Letter and enclosures to Judge Trager)*
October 1, 2007, Letter of Ray Beckerman to Hon. David G. Trager (Re Defendant's Motion for Judgment on Pleadings)*
Exhibit A, Omitted September 21, 2007, 2:56 P.M., email of Ray Beckerman*
October 1, 2007, Letter of Ray Beckerman to Hon. Robert M. Levy (Re Motion for Stay During Pendency of Defendant's Motion for Judgment on the Pleadings)*

* Document published online at Internet Law & Regulation

Commentary & discussion:

p2pnet.net
Slyck
The Daily Swarm




Keywords: digital copyright online law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs




13 comments:

AMD FanBoi said...

The RIAA has GOT to be kidding!

AMD FanBoi said...

One additional point: The shorter letter should always win. The reasoning behind this should be axiomatic.

Megan said...

Oh good grief.

"Excuse me, sir, would you be so good as to tell me what I need to write down in order to sue your client more effectively? I found this bar membership in a box of Cracker Jack and am trying to sort out how it all works."

I'm sure Ray's responses are far more tactful than mine would be in a similar situation.

Ray Beckerman said...

They are a piece of work, are they not?

I must confess that I did have much longer responses drafted, and it took all of my restraint and professionalism to cut them back down to what was necessary.

stevger said...

I'm surprised they made those emails available in the public record. It makes them look like fools and idiots (well more than before, anyway).

Ray Beckerman said...

Yes, stevger, I was astounded that they made the mistake of bringing them to the Court's attention, and placing them in the public record.

Ray Beckerman said...

I posted a story on "Slashdot". My submission is presently in the "Firehose".

Alter_Fritz said...

"For your reference, attached is a copy of the decision in Morton v. Seltzer, 336 Mont. 225, 154 P.3d 561 (2007), where a plaintiffs' law firm was held liable to the defendant for damages for conduct quite similar to your conduct in the instant case."

The decision:

http://fnweb1.isd.doa.state.mt.us/idmws/docContent.dll?Library=CISDOCSVR01^doaisd510&ID=003768619

and thanks to an oviously innovative judicial branch in montana we can also listen to the oral argument**
(Alter_Fritz's personal opinion: Wow, that is a cool and inovative use of internet age technologies. If only everybody would adopt so well to the digital age (specially some notorious undisclosed plaintiffs *cough* *cough*)

** http://audiovideo1.law.umt.edu:8080/W.%20Steve%20Seltzer%20v.%20Steve%20Morton%206-28-06 (292765.4KB Online Media Distribution System Streaming found via http://montanacourts.org/argument_archive.asp )

now if only we could get streaming out of Duluth too!


P.S.
@Ray
Is there any hope that you already secretly know more about the upcomming fate of the label plaintiffs in Elektra v. Schwartz or was it (unfortunately) just a "misspoke error" (sp?) "We write in response to the October 1, 2007, letter of defendants, to point out that [...]"

;-)

Ray Beckerman said...

Well, Alter_Fritz, you caught me in an error. I guess it was a Freudian slip. I think of the record companies as the ones who are violating the law and ignoring copyright law, so think of them as 'pirates'.

I think Morton v. Seltzer shows that Mr. Gabriel and his firm might themselves be 'defendants' based on their "legal thuggery".

Alter_Fritz said...

sorry, oviously I messed up the (search results scripted) link to the written order.
If either of you other readers are interested in an (IMO fascinating) reading about paintings, forgeries of them, and very very bad behaviour of a lawfirm you can get to the free document in Montanas database following these steps
Click here and choose "Supreme Court Case Number" enter 05-378 so the search finds 7 documents in the database which are javascriptclickable links to the actual document locations.

Btw. it's quite some fun to actually watch(!) the hearing and when it gets interesting at around 62 minutes into the arguments and then imagine for the fun of it and/or rightfull administering of justice that it would/could/should be HRO and RIAA-Richard they are refering about in the last 15 minutes or so of counterargument and rebuttal (sp?) "bring em on" :-)

Ray Beckerman said...

Well I've been feeling pretty guilty about my less-than-helpful response to Mr. Gabriel's friendly request for assistance.

So I'll give him some free advice.

Richard, don't sue anyone in Montana.

AMD FanBoi said...

Wouldn't it be a complete breach of ethics to assist the other side to the determent of your client?

And if so, shouldn't it also be a similar breach for the other side to have even asked for this?

Ray Beckerman said...

amd.... in this case the cooperation they were asking for would have been impossible.... they were asking me to help them make up facts.... these guys have zero legal ethics and zero appreciation of the fact that this is not a game.... they are destroying people's lives with this....