Comparing the “no settlement” defense over the “ignore” strategy.

Our Cashman Law Firm, PLLC used to offer an “IGNORE” route to clients (and in certain circumstances, we still do).

Our Cashman Law Firm, PLLC used to offer clients an “ignore” route, where we would represent a client and handle all functions an attorney would take care of in a lawsuit, but we would not settle claims against a client.  For a while, this was a low cost successful strategy, and it was a good alternative to not being represented at all.  However, today, the strategy is not applicable to certain copyright holders who regularly name and serve clients.  For this reason, based on the suggestions of Matt Sag in his “Defense Against The Dark Arts of Copyright Trolling” paper, we are offering an even lower cost representation catered to those innocent clients who are left out of current attorney representation, namely, fighting the claims against a client, or negotiating a settlement.  This “no settlement” option is a strategy that I look forward to providing our clients.

WHY WE OFFERED THE “IGNORE” ROUTE TO CLIENTS

Our Cashman Law Firm, PLLC understands that in a number of ‘copyright troll’ situations, that the plaintiff attorneys were averse to naming and serving a “John Doe” Defendant.  Rather, they would prefer to keep the litigation in a “pre-trial” “pre-name-and-serve” state where they can continue to solicit settlements until the judge eventually forces them under the Federal Rules of Civil Procedure (FRCP) Rule 4(m) to name and serve defendants or dismiss the case in its entirety.

With this understanding, our firm offered a service which we called the “ignore route.”  (We also referred to it as “playing chicken” with the plaintiff attorney, drawing analogy to the 1960’s car game where two people each get into the driver’s seat of a car and drive straight towards each other at top speed, the first to swerve out of the impending head-on collision is the “chicken”.)

HOW THE “IGNORE” ROUTE WORKED

In this “ignore route,” we would take the “John Doe” defendant as a client, and we would send a letter of representation over to the plaintiff attorney.  This would invoke the ethical rule that prevents them from communicating with our client, the John Doe Defendant.  Thus, we would effectively stop the plaintiff attorney from being able to ask questions of our clients, some of whom did the downloading, some of whom did not.  As part of this “ignore route,” we would not offer a settlement, but we would also not engage the copyright troll in evidence-based discussions to establish whether our client was indeed the downloader or not.

Eventually, once the plaintiff attorney ‘copyright troll’ collected a sufficient number of settlements from the other defendants, he would dismiss the case in its entirety, and our client’s ‘John Doe’ entity would be dismissed in the mix.  We would then notify the client of the dismissal, close his file, and move on.  As to the plaintiff attorney, we would continue to represent that client, and if any communications or attempts to settle were presented, we would communicate that with our client.

MOST CLIENTS NEVER PAID SETTLEMENTS WITH THE “IGNORE” ROUTE

Most clients who retained our Cashman Law Firm, PLLC for the “ignore” route never paid a settlement, and were never named and served as a defendant.  As part of our agreement, I continued to monitor the case and report back to the client as soon as anything relevant happened which affected the client’s involvement in the case.  If we suspected that the plaintiff attorney developed a proclivity to name and serve defendants, or if we received word that the plaintiff attorney would be naming and serving our client (filtering through the threats and bluffs to an actual threat), we would then give the client the choice as to whether to have us open up settlement negotiations on their behalf or not.

Again, I am happy to share that most did not settle.

THE “IGNORE” ROUTE WAS A GOOD STRATEGY, UNTIL IT WASN’T

The “ignore” route was for a time a successful strategy, until certain plaintiff attorneys realized what we were doing.  As a result of this, a number of copyright trolls who sued John Doe Defendants from out of state hired local counsel and started naming and serving defendants.  Thus, the “ignore” route was effective only until the plaintiff attorney was willing to act on his threat and name and serve defendants.

COMPARING 1) THE “IGNORE” ROUTE TO 2) THE “NO SETTLEMENT” REPRESENTATION ROUTE

WHAT ARE THE DIFFERENCES BETWEEN THE “IGNORE” ROUTE AND THE “NO SETTLEMENT” REPRESENTATION ROUTE?

The difference between the “ignore” route and the “NO SETTLEMENT” representation route is 1) one of time, 2) one of price, 3) one of strategy, and 4) one of innocence or “non-guilt.”

TIME

The “ignore” route took significantly longer to accomplish.  We monitored the cases daily on PACER to determine what the plaintiff attorney was doing with other “John Doe” defendants.  We also took the time to research and monitor the other lawsuits that same attorney (or those from his firm) filed in other states to understand what he would do in this case.  As such, a representation such as this one was more time intensive than the “no settlement” representation route because we were always in communication with the client, the opposing counsel, and other attorneys to determine when the “chicken game” strategy would lose its effectiveness.

With the “ignore” route, John Doe Defendants were our active client for sometimes six months or longer.  In the early days, there were cases that went for over two years (the “Hard Drive Productions, Inc. v. Does” and “West Coast Productions, Inc. v. Does” cases come to mind), and we represented clients actively throughout that entire two year period for that one time fee they paid when they retained our firm.

PRICE

For the “ignore” route, we had clients pay a modest one-time fee.  Our firm guaranteed that the fee would cover all the months of research, monitoring, and interactions we had with the plaintiff attorneys on their behalf.  Because we often had multiple clients in one case, we were able to keep our costs low for the client.

Obviously from a business sense, we tried to best estimate how long such a representation would take based on our experience with previous clients and previous cases with that same ‘copyright troll’ plaintiff attorney, but as a general rule, we were able to offload most of the expense a defendant would need to incur and thus the “ignore” route was at the time the cheapest route (aside from representing one’s self in the case).

STRATEGY

The “ignore” route is based on the theory that it is more costly for a plaintiff attorney ‘copyright troll’ to name and serve a defendant and proceed through the stages of litigation than it is to simply collect settlements from “settlement factory attorneys” who would scare their clients into paying thousands of dollars per case.  After collecting his extortion pay from the “settlement factory attorneys,” the plaintiff would then focus his efforts on other non-represented “John Doe” defendants.  In practice, our clients were never contacted and thus they paid no settlement.

The “no settlement” representation is different from the “ignore route” representation in that the “no settlement” representation has us sending a notice of representation, followed by a declaration stating that the client did not do the download, and that he is unwilling to settle.  There is no calculating the proclivities of the plaintiff attorney, and there is no timing or strategizing if or when a settlement would be needed.  The strategy behind the “no settlement” representation is that the client did not do the download, and should not need to pay an attorney to prove his innocence.

The “no settlement” representation relies on the fact that the plaintiff attorney can suffer consequences and sanctions if he names and serves the innocent defendant, as he would be fighting an innocent client.  And, as the attorney for this client, we are willing, able, and ready to defend the client should he be named and served.

Knowledge of the copyright troll’s scheme where he does not actually have evidence of infringement is not relevant here, as the client has no need to fight the case because he did not do the download.  Thus, whether the attorney has faulty evidence or not is not relevant in this representation.

INNOCENCE / NON-GUILT OF THE CLIENT

The “no settlement” representation is built on the premise that we will be sending a declaration to the plaintiff attorney putting him on notice that our client is not the infringer.  By doing this, there is no further discussion or back-and-forth between myself and the plaintiff attorney.  I certainly would accept and forward evidence the plaintiff attorney would like to share, but engaging in investigations is not part of this representation.  The plaintiff attorney can name and serve the client, wait, or dismiss.

This is different from the “ignore” route, where it is unclear whether the client did the download or not.  In the ignore route, we still avoid discussions with the plaintiff attorney as we would with the “no settlement” representation.  However, because guilt or non-guilt of my client is still in play, the plaintiff attorney has a number of ways of how to proceed.  He can offer a settlement, he can name and serve the client, or he can focus his efforts on the “settlement factory” attorneys who are willing to offer him huge sums of cash to dismiss his John Doe defendant.  The stated goal of the “ignore” route is to ignore, and not to settle.

If our client gets named and served in the “ignore” route, the faulty evidence of the plaintiff attorney becomes very relevant, as this would be part of our defense strategy in representing the client in the later phases of the lawsuit.  Also relevant would be questions of joiner, guilt or innocence, questioning the validity of the experts according to the Daubert principles, and investigating the software used to track the client as he allegedly downloaded the film.

IN CONCLUSION

In sum, the “no settlement” representation and the “ignore” route differ in a number of ways.  The “ignore” route representation 1) sometimes took many months or years to complete, 2) it was more expensive than the current “no settlement” representation innocence letter strategy, 3) it saves time because the plaintiff is aware that the attorney sending the “no settlement” letter has a client who is unwilling to settle, and 4) the innocent client accused of copyright infringement has a low cost strategy on how to approach the copyright troll problem.

Obviously the ‘copyright troll’ attorneys will try to defeat this strategy by naming and serving a certain number of these defendants.  However, our Cashman Law Firm, PLLC is very well aware of the weaknesses of the plaintiff’s case, and we are ready to expose those weaknesses for our clients.  We credit Matthew Sag and the “Defense Against the Dark Arts of Copyright Trolling” for exposing to the world the problems with the copyright troll lawsuits, and we look forward to seeing an end to copyright trolling once and for all.

“No Settlement” Representation Option Offered to John Doe Defendants

Cashman Law Firm offering a "NO SETTLEMENT" option

“I did not do it, I am not willing to settle.”

It might not be readily apparent why I am offering a “no settlement representation” option for defendants accused of copyright infringement.  Paying an attorney $750 so that attorney can review your case, speak to you, send a letter of representation, following that up with a letter indicating that you did not do the download and you are not interested in settling might make you question why this is of use to you.

Copyright infringement lawsuits (a.k.a. “copyright troll” cases) are extortion-based cases which are based upon scare tactics and threats of expensive litigation.  Plaintiff attorneys (“copyright trolls”) scare defendants into settling because doing so is cheaper than litigating a lawsuit.

Once an ISP hands over your contact information, plaintiff attorneys often contact defendants and convey that they have detailed evidence of infringement, which is often a bluff.  Rather than providing you with actual evidence of infringement, they offer “other evidence of infringement” to prove that you must be the downloader.

To avoid the plaintiff’s detailed explanations of guilt, the simplest way to proceed is to have your attorney 1) stop them from being allowed to communicate with you, and 2) offer a letter of non-infringement.

Why the Cashman Law Firm, PLLC can offer you a “No Settlement” discount option.

I have thought a lot about this, and obviously me offering something like this requires some credibility.

After seven years of service dedicated almost exclusively to serving John Doe Defendants in copyright infringement cases, and posting over 200+ information-packed articles teaching defendants about the copyright troll strategies on the TorrentLawyer™ blog, I believe I have developed enough credibility to make this offer real.

My Experience: Innocent “John Doe” Defendants Are Left Without Representation

Most of my TorrentLawyer™ blog is dedicated to exposing the schemes of the ‘copyright troll,’ who is tasked with extorting thousands of dollars in settlement monies from each “John Doe” defendant accused of copyright infringement. In recent months, I have been warning defendants of corrupted DEFENSE attorney tactics, where these defense attorneys are sometimes less ethical than the copyright trolls they seek clients against whom to defend.

These so-called defense attorneys cash in on the “broken copyright system,” and they scare prospective clients with threats that “if they do not settle, they will be named and served by the plaintiff attorney to defend against $150,000 statutory damages, and they will have to spend thousands of dollars more in attorney fees to defend themselves.” Many of these defense attorneys run “turn-key settlement factories,” and some of them agree to even more nefarious schemes.

An attorney who represents “John Doe” defendants generally represents PAYING CLIENTS. Even attorneys who are willing to genuinely 1) fight, 2) settle, or 3) negotiate a settlement (or even a nuisance settlement) cater their law firms towards a paying client.

These firms (mine included) represent clients who either have the funds available to fight a copyright infringement lawsuit, or who are willing to pay a few thousand dollars to negotiate a settlement to pay their way out of a lawsuit. Many firms (again, mine included) will happily discount their fees to accommodate lower income clients, and we will even take a limited number of clients on a free pro-bono basis.

Often left out is the innocent defendant who did not do the download, and who does not wish to pay an attorney (or anyone else) to resolve a claim they had nothing to do with. Their belief system is that they should not need to pay anything to resolve a copyright infringement claim they did not do.

Thus, they do not pay an attorney to represent them, and as a result, they are left vulnerable and exposed to the crafty copyright troll attorney who has his way with them. In the end, they often are seen signing consent judgments where they admit doing something they did not do, or they pay settlement fees which end up being more than if they simply hired the attorney to represent them.

Why a ‘turnkey’ operation for the innocent is needed.

Literally, a “turnkey” law firm operation is needed to service THESE defendants. Candidates for a NO SETTLEMENT representation will be accused “John Doe” defendants in copyright infringement lawsuits who did not do the download.  Candidates for NO SETTLEMENT REPRESENTATION are not limited by financial need (I have nothing wrong servicing a wealthy client who did not do the download), so this option is not a low-income need-based program. We at Cashman Law Firm, PLLC believe that those accused of an act they did not commit (especially where it comes to copyright infringement and copyright trolling) deserve to be represented at an at-cost basis.

What will be the cost of a NO SETTLEMENT representation?

The cost of no settlement representation will merely need to cover the time spent on the following steps: 1) process the client’s paperwork, 2) speak to the client, 3) check the status of the lawsuit on PACER, 3) prepare and send a letter of representation, and a “letter of non-infringement / no settlement” letter to the plaintiff attorney, and 4) handle any follow-up communications with the client relating to evidence of infringement provided by the plaintiff attorney.

I believe this can be covered with a $750 flat fee payment, but I might adjust this up or down as I learn how long it actually takes to handle each client.

How a NO SETTLEMENT representation would work.

For those who wish to have our firm represent them in the NO SETTLEMENT representation, this is what would happen. After becoming a client, we would send a letter to the plaintiff attorney explaining that they did not do the download and are unwilling to settle. By having our Cashman Law Firm do this, we will create a SPECIAL CATEGORY for the innocent who are unwilling to settle. Because you will have a Cashman Law Firm, PLLC attorney doing this on your behalf, all communications would need to go through that attorney. Consequently, contact with the accused defendant will become forbidden.

If the attorney disputes the innocence of this defendant, he is free to share his information with our firm, and I would be happy to share that data with the client. Otherwise, there will be no communications with the plaintiff attorney, no settlement negotiations, and no back-and-forth communications. We would simply inform the attorney that he can either name and serve our client, or dismiss him or her without a settlement.

Cashman Law Firm offering a NO SETTLEMENT REPRESENTATION option

Why a NO SETTLEMENT representation can be effective.

I mentioned above that starting a “turnkey” defense of the innocent will create a SPECIAL CATEGORY of defendants. This category will be those who are willing to state on paper that they did not do the download. By putting this in writing, this gives credibility to the claim that the download did not happen.

Obviously it would be detrimental to the client’s case to have it come out that they have lied about their activities, and no doubt the plaintiff attorney would capitalize on that lie to extract the maximum amount that he can from the defendant. Thus, I expect that only innocent defendants will be willing to make this assertion.

How would a NO SETTLEMENT representation differ from the “playing chicken” or “ignore route”?  How did you get the price so low?

Our Cashman Law Firm, PLLC used to offer clients an “ignore” route, which could be compared to the 1960’s car game of “playing chicken.”  In this “ignore” route, we would represent a client in the “John Doe” stage of the lawsuit.  As such, we would and handle all functions an attorney would take care of in a lawsuit in its early stages, but we would not settle claims against a client as other settlement factories would.

For a while, the “ignore” route was a low cost successful strategy, and it was a good alternative to not being represented at all.

To compare the “no settlement” representation strategy to what we used to call the “ignore” route representation (or more commonly, ‘playing chicken’), click here.

What are the risks of pursuing a NO SETTLEMENT representation option.

The risk of pursuing a NO SETTLEMENT representation option is that the plaintiff attorney will name and serve you as a defendant.

[I must take a moment here and mention that an attorney who names and serves a defendant -without evidence- can get sanctioned by the court. If there truly is no evidence against you, the likely outcome is that the plaintiff attorney will name and serve other defendants, perhaps those who actually did the infringing of the copyright holder’s copyright.]

If you are named and served, the client would need to decide whether to continue defending your case having us remain as your attorney. If you wish to hire someone local, you can either keep us on as advisory counsel, or you can have that attorney take over the representation in its entirety. Remember, copyright infringement is exclusively a federal court matter, and our firm can represent you in any federal court.*

*NOTE: Some jurisdictions have a requirement that an out-of-state attorney hire local counsel, and we know in which states we would need to do this. Otherwise, an out-of-state attorney can defend you in your federal court through what is called “pro hac vice,” which is a motion with the court which is almost always approved by the federal judge.

How to get started with the NO SETTLEMENT representation option.

In order to make an option such as this one sustainable, I will need to forego the phone consultation that I offer clients.

I would have you:

1) Sign my fee agreement, where you explicitly agree that you have not done the download, and that you are unwilling to settle the claims against you.

– Ideally, I will offer this online, but for the moment, please fill out the form below, and I will e-mail you the fee agreement.

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2) I will provide you an e-mail containing a link to pay our fee.

3) I will have you send me copies of the letter you received from your internet provider (or from the plaintiff attorney).

– I would provide you instructions on how to send me information relating to your case in the same e-mail I would provide you in order to process your payment.

Once those three steps are complete, again 1) fill out the form, and sign my fee agreement, 2) process your online payment, and 3) forward me paperwork regarding your case, I will send you an e-mail letting you know that I received it.

Once you become a client, obviously I would need to speak to you.

– The goal of our call will be to confirm that you were not the one that did the download. I will ask questions about your router configuration, family members, and other activities which the plaintiff might have access to, but the conversation will be to the point.

At that point, I would remain your attorney until you are either dismissed from the case, or until your status as a “John Doe” Defendant ends.

In sum, you are welcome.

In closing, I am happy to proactively offer this service to you. It is my hope that since you should not have been involved in this lawsuit in the first place, I will minimize your involvement in it moving forward.

Obviously, this NO SETTLEMENT REPRESENTATION option is for those who do not wish to have us represent them in fighting the claims against them. Similarly, it is an option for those who do NOT wish to have us engage in settlement negotiations on their behalf.

If you would like to retain our firm to either fight, negotiate a settlement on your behalf, or some combination thereof, I invite you to set up a free phone consultation for us to speak about your case.

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