Saturday, October 11, 2008

Cincinnati defendant files reply papers in support of his application for attorneys fees in Elektra v. Licata

In Elektra v. Licata, the Cincinnati "throwing in the towel" case, David Licata has filed reply papers in support of his objection to the Magistrate's recommendation that he not be awarded attorneys fees, following the RIAA's withdrawal of its case, responding to the RIAA's opposition papers.


RIAA Response to Objections
Defendant's Reply Memorandum in Support of Objections to Magistrate Judge's Ruling


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4 comments:

Anonymous said...

This case sounds so much like a Hobson's Choice of either incriminate somebody directly (thereby helping the RIAA who has no evidence against any specific individual) from the moment we (RIAA) file suit against you, or be punished for winning by not being compensated because you didn't incriminate somebody in the process. It is assumed that you either did the dirty deed, or knew who did, from the very beginning. You're screwed either way and that's an outrage! You have meritoriously just won your case, but you might have well as lost under these circumstances. You're still guilty of something merely and completely because the RIAA has said so. Where is the justice?

It seems like all the Plaintiffs have ever had in this case is that somebody as yet unknown is possibly guilty of the non-crime of attempted infringement. They should have never been allowed to file such an obviously extortionate case on such a lack of any evidence, and when they're admitted that they're wrong by throwing in the towel, they must pay for this mistakes. There is no justice otherwise.

The moment a Defendant responds under oath that they didn't do it and that they don't know who did either the case against that Defendant should immediately be dropped and fees paid for the case to have gone that far with no evidence against that particular Defendant, or some additional compelling evidence be produced. The RIAA seemed to feel here that the Defendant's memory would somehow improve over time, or that the Defendant would admit that he'd perjured himself with his declaration earlier. If there was additional evidence it was never shown, and trying to pressure a Defendant should not be legal justification to continue the case unnecessarily.

The RIAA deserves far worse out of this than just having to pay the Defendant's entire legal bill.

And this Magistrate Judge is a disgrace for calling the Defendant a liar with no evidence at all to substantiate such a charge. He (or she) should find another line of work.

And if one can successfully Take the Fifth in a case like this successfully, how can the RIAA dispose anybody about anything? Or does that only apply to minors?

On page 8 the following appears to be a typo. Likely they meant counsel for the plaintiffs.

Each and all of the authorities cited by counsel for the defendant in opposition to the claim for attorney fees was discussed, and rejected, in Capital Records, Inc. v Debbie Foster

Best quote of the last several months:

When the shoe was presented to the other foot it was found to be too restrictive.

XxX

Brent said...

IN RE DIGITAL MUSIC ANTITRUST LITIGATION (2008 U.S. Dist. LEXIS 79764) was decided October 9th and on Lexis. The RIAA motion to dismiss was granted. Twombly strikes again.

Anonymous said...

Brent,

How is it a Twombly (isn't great to have a unique name here instead of something common like Smith) victory if the RIAA was permitted to voluntarily dismiss their meritless suit? I would expect it to be a victory if the Defendant got an early dismissal on the lack of any actual evidence and the failure to state a claim upon which relief can be granted, along with full attorney's fees and a written apology.

Perhaps someone can explain this better.

XxX

Brent said...

maybe i prematurely chalked up the victory. i have an alert for twombly cases for an article in progress. i skimmed the opinion and noticed they applied the heightened requirement. however i read the conclusion wrong. i still prefer the way stevens suggested dealing with conspiracy cases such as this.