Monday, March 02, 2009

Judge Davis really does get it! Record companies must bring "officers or ... managing agents" to settlement conference in Thomas (#RIAA)

If there were any doubt left in anybody's mind as to whether District Judge Michael J. Davis, the extraordinary judge who presided over the ill fated October, 2007, first trial in Capitol Records v. Thomas, "gets it" about whom he is dealing with, and the toxic effect the RIAA, Matthew Oppenheim, and their legal team have had on the judicial process, and that doubt has not yet been removed by:

-his sua sponte calling a penalty on himself, upon realizing that the RIAA lawyers had failed to call to his attention controlling contrary 8th Circuit authority;

-his setting aside of the verdict due to that RIAA-created error;

-his noting in his decision setting aside the verdict that the outlandish size of the verdict was absurd, and calling upon Congress to prevent any similar recurrences; and

-his scheduling a two-day settlement conference for March 30th and 31st.......

all doubt should now be removed, by an order which he signed on February 25th, and which was filed by the Clerk today, laying out the parameters of the March 30th-March 31st settlement conference:

In the order he specifies that each of the plaintiff record companies must appear at the conference by "a duly authorized officer or managing agent". [I.e. NO MATTHEW OPPENHEIM standing in for the record companies, as he was permitted to do in Brooklyn]. And lest there be any doubt about his meaning, Judge Davis spells it out further: "each party must attend through a person who has the power to change that party’s settlement posture during the course of the conference. If the party representative has a limit, or 'cap' on his or her authority, this requirement is not satisfied." (underscoring in original)

[Ed. note. I know that this entire post is outside of my normal, dry, reporting-the-news editorial style. I apologize. But I am beyond thrilled. All I can say is Hip-Hip-Hurray for District Judge Michael J. Davis, a quality jurist if ever there was one. -R.B.]

February 25, 2009, Notice of Settlement Conference

Commentary & discussion:
Ars Technica

Keywords: lawyer digital copyright law online internet 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 intellectual property portable music player


Michael said...

Not to contradict your comments about Judge Davis, but this looks like a form notice to me. I do find the sentence barring limits on authority to be interesting. I'm not familiar enough with court-ordered negotiations, especially those in the District of Minnesota to say if that's unusual, but it certainly looks like Judge Davis doesn't want to try this case again.

Anonymous said...

I can't wait to see who shows up with that kind of authority. Oughta be good times.

Unknown said...

I think it's also important to point out number 4 in Judge Davis's requirments... "a reasoned, itemized computation of
each element of the alleged damages, with a concise summary of the testimony of each
witness who will testify in support of the damage computations"

Does that mean we should expect specific actual damages to be listed rather than simply claiming statutory damages? If so, is it likely that these values will, at some point, become part of the public record, or will they remain private after this meeting in chambers?

Jadeic said...

Any chance we can have a broadcast of the settlement conference - a ringside seat at the circus...

Sorry, no I'm kidding. I too am cock-a-hoop at this Order which should really put the cat among the pigeons. I can't wait to see what arcane appeals procedure the plaintiffs will invoke in an attempt to wriggle out of this one: underscoring or not!


Nohwhere Man said...

With apologies to the the Beatles, this order is the sound of Michael's Silver Hammer hitting the desks of a few lawyers. Or possibly the sound of a 40mm warning shot across the bow of the RIAA's ship. It's refreshing (and depressing at the same time) to see a judge tell councel not to waste the court's time if they're not in a position to actually settle. After all, it is a settlement conference.

Anonymous said...


raybeckerman said...

If you're not familiar, Michael, then why are you contradicting a professional litigation lawyer with 35 years of daily experience in our nation's courts?

It is anything but a form notice.

raybeckerman said...

notmercury, I have a hunch no one's going to show up. I expect the record companies to sharpen their pencils now and get rid of this. It has been a disaster for them and it's getting worse.

Michael said...

That's why I said it looks like a form notice, not it is a form notice.

The reason I say that is that it says, "If individuals are parties to this case, they shall be present." Why not just say, "Defendant Jammie Thomas shall be present"? All the plaintiffs are corporations, not individuals.(And that's a serious question - I really don't know the answer and I'd like to know.)

I defer to your experience, Mr. Beckerman.

And again, it looks like Judge Davis doesn't want to try this case again. Although, on some level, I'd like to see the case tried again to have Ms. Thomas's name cleared and a nice precedent set.

raybeckerman said...

I don't know, Jonathan, I don't see how they could show any damages.

Michael said...

Mr. Beckerman,
If nobody shows up at this settlement conference for the plaintiffs, wouldn't Judge Davis be well within his rights to cite the plaintiffs for contempt?

raybeckerman said...


As to 'arcane' procedure, I think the one they'll employ is not to do it. All they have to do is tell Matthew Oppenheim: this case is over, settle it for whatever you can get and keep the terms confidential.

Right now it's looking like they're looking at disaster.

Anonymous said...

I especially love item #4. I want to see how these RIAA losers try to "creatively explain" this one. It looks like this judge is going to hold their feet to the fire. My hat is off to this guy for doing a great job.

I can only hope that they try to cut and run like they do in every case that goes badly for them so that this judge can slap them so hard it will make Krakatoa seem like a firecraker!

Hearing this made my week!

raybeckerman said...

Nowhere Man, I've always found depressing the amount of latitude the courts have shown these characters. Maybe patience is running thin.

Judge Gertner, who was their best friend in the United States, may have gotten at least partly wise to them.

Judge Davis, who handed them their largest undeserved victory, has certainly gotten wise to them.

raybeckerman said...

Michael, there's no way they would just not show up. (To answer your question, were that to happen, the case would be dismissed.)

If they don't want to go through this settlement conference, they will instruct Oppenheim to get rid of the case on whatever confidential terms he can get.

Anonymous said...

Let us not forget Thomas Penfield Jackson. While it's good to see the judge demand that someone of real power show up, I find it hard to believe that anyone at a corporation would have the power to negotiate without any caps.

Might an appellate court not look at this as evidence of a bias against the RIAA at al?

raybeckerman said...

The appeals court would approve of Judge Davis taking strong measures to bring this to an end and avoid another circus/travesty/waste of taxpayer money. For chrissake, the case is about $23.76 worth of song files.

Another Kevin said...

So, all that has to happen is that Oppenheim show his face, claim to have full settlement authority, and then refuse to settle, simply claiming that whatever offer the Defendant presents, short of the full judgment that the jury found against her (plus additional interest, attorneys' fees, and court costs incurred since the verdict), is inadequate. Just because he has 'authority' to settle doesn't mean he has to accept any lowball offer the Defendant presents.

How can the Defendant prove that he's negotiating in bad faith?

Anonymous said...

I hate to point this out, Ray, but this is a form notice. Here is the relevant language from a recent settlement conference notice I got from a Minnesota USDC magistrate judge:

"Counsel who will actually try the case and each party, armed with full settlement discretion, shall be present. If individuals are parties to this case, they shall be present. If a corporation or other collective entity is a party, a duly authorized officer or managing agent of that party shall be present. This means that each party must attend through a person who has the power to change that party=s settlement posture during the course of the conference. If the party representative has a limit, or “cap” on his or her authority, this requirement is not satisfied."

The only thing unusual about this notice is that it will be Judge Davis conducting the settlement conference instead of the magistrate judge.

raybeckerman said...

Sam, could you either email me a copy, or give me the docket number? Thanks.

Alter_Fritz said...

@another Kevin

but you overlook the beauty of that plan ;-)

If Mr. Mad J. Oppenheim does show up now (i doubt he will given that Ray gave him the tip to not show " [I.e. NO MATTHEW OPPENHEIM standing in for the record companies, as he was permitted to do in Brooklyn]. ") then are they in serious trouble in anohter case.
you know, TEAM Evil4 is arguing at the moment against TEAM Tenenbaum having Oppenhiem deposed with the argument that he is "just a lawyer" not some of the plaintiff parties heads.
Judge Davis said "i want to see a plaintiff head (one from/for all of the plaintiffs in this case).
Openheim shows up; bam -> Team Tenenbaum scores a homerun showing that Mad J. Oppenheim is indeed the guy they want to depose.

So as Ray already pointed out, if they have any smartness left inside their evil soul, they will now cut and run!
Letf hope that Thomas' lawyer works for her and puonds out a settlement that have thomas with a + on her bank account in the end!

Anonymous said...

i appreciate the summary of the notice of settlement described by your post. However it appears to no longer be available at If you have a mirror of the document, could you post it in the article?

Anonymous said...

Spot on Alter_Fritz! Looks like their circle of lies is coming back around to bite them in their rear end!!!

Anonymous said...


I posted about an arms race between SafeNet and the file-sharer software developers.

Now comes the University of Washington with a public BitTorrent client that anonymises the friend-to-friend transfers.

Another thing - EMI was caught by MP£Tunes making their stuff available. This makes finding if the others do the same more and more important.


raybeckerman said...

Many many thanks to Michael for first pointing this out to me, and to Sam who not only pointed it out to me but offline emailed me several copies of orders from other cases.

Thanks guys.

At least when I make a mistake I have my friends to help me get it right!

Alter_Fritz said...

"At least when I make a mistake I have my friends to help me get it right!"

and even more nicely YOU ray point it out and admit when you make an error.

I have so many times now seen that this is rare too when we talk about the RIAA and the mayor labels Sony, Universal, EMI and Warner.

raybeckerman said...

3/3/10 12:50 PM UPDATE
The question of whether it's a 'standard form' is not necessarily so clear. I have just heard from a few veteran Minnesota federal litigators who say they have never seen such an order in their experience.

D. C. said...

As noted above, the plaintiffs will want very much to keep any settlement confidential. Going with that, the defense has no direct incentive to do the rest of us any favors by insisting on sunshine.

And yet, we can hope. Mr. Beckerman, would you (or any of the other professionals) care to take a totally off-the-wall guess as to whether the defense might actually stand up for the public getting a chance to read the final chapter?

raybeckerman said...

No, D.C., I'm sorry to say, the courts just don't work that way.

It's not a question of the defense lawyer 'standing up' for the public. We're lawyers, we have to play by the court's rules.


raybeckerman said...

Yes if it settles we would all love to know what the terms were. But the RIAA might not want us to know, and might not be willing to settle if we were able to find out.... Also there are off the record things the judge might say which he can't say on the record, but which would be helpful to the parties in reaching a negotiated resolution....

So there are reasons for the principle of confidentiality in settlement conferences.

raybeckerman said...

I think that if it does settle we can all safely assume that it wasn't because she wrote them a $220,000 check.

D. C. said...

I understood that the conference proper is fer-sher confidential. The terms of the settlement itself, however, are likely to be of more than idle public interest.

If the RIAA weren't running a terror campaign it wouldn't matter so much, but it's not hard to see sock puppets spreading FUD over the outcome.

Ah, well -- it's not like we get any vote here. It'll be what it is.

Alter_Fritz said...

Ray wrote:
"[...]it wasn't because she wrote them a $220,000 check."

Of course not! ...

... Or do you seriously expect "THEM" to generously waive their claim for the missing 2000 bucks on such a check? ;-)

Those steelworker jurors reportedly needed hours to come up with the figure after needing only a short time for the verdict itself, so don't spoil the fun they allegedly had in coming up with this ridiculous (but nice looking) figure of "222"


(since she claims not having done what she is accused by Evil4, maybe she should non the less just to make them go away offer 92.5 cents per song as basis for settlement talks) ;-)