birdofsong wrote:
Okay -- I just want to understand this. Are you saying that the investigator did, in fact, witness Rodney displaying counterfeit trademarks? Or are you saying that the investigator lied to the attorney? I don't think either of those things is true. What I believe is, that this is a boilerplate Complaint that was filed against Rodney and 30+ other defendants -- the tuna net to catch as many potential pirates/new customers that you can without performing a uniform in-depth investigation to really figure out whether someone deserves to be named, or not.
What I really think is that the attorney didn't care if the allegations were true or not -- Rodney was just one more person on their list. What I would hope, which doesn't appear to be true, is that an attorney wouldn't make such allegations so carelessly. I believe a Complaint should be truthful, or shouldn't be filed. And if it says that someone was witnessed "displaying counterfeit trademarks," then they d*mn well should have been observed displaying counterfeit trademarks. Whether the Complaint is "sworn" or not. A falsehood is a falsehood. Working in the field, I hold attorneys to a higher standard than that.
Why on earth are there not careful steps in place to make sure that the individuals you name in your lawsuits are, in fact, infringing on your trademarks BEFORE you drag them through the mud, instead of making what very well could be a false allegation to get your foot into the door in order to do further discovery, simply to see if there's anything there? I think this is an abuse of process, sworn or not.
The only thing I can think of is that perhaps doing an in-depth investigation costs more than simply filing a lawsuit. I know for some of our suits, it can cost more than $2,000 to do surveillance on one individual. An attorney running on a contingent fee agreement doesn't charge an hourly rate to conduct discovery. However, cost effectiveness is no excuse for being so careless with someone's livelihood and reputation.
Sigh.
I think all of these are good points, and they more or less mirror my view of the way things ought to be done.
As I have said several times, I don't know the attorney. I do know the case manager, but I don't know the actual investigator. I have not seen the investigative report. I do not know whether one exists or not.
What I can tell you is what my process is. I was the first attorney to represent SC in these kinds of suits, and I developed the investigative protocols that my team uses and that are used by most of the other teams who handle different areas of the country. Those protocols do require an in-depth investigation of each targeted defendant, including a site visit during a show. They also include a lot of additional background research. I would estimate that we spend at least 10-15 hours per defendant, and often more than that, before we even start writing the complaint. I know that these protocols are followed in all of my cases, because I have personally attended numerous investigations--more than 35 since I started going on them in 2011--for quality control, management, and general familiarity with the people I'm suing and the conditions under which they operate.
Most importantly, I do these things for precisely the reason that you suggest that I should: To avoid filing lawsuits where we aren't reasonably certain of liability, so that people aren't sued who shouldn't be.
The areas handled by APS, however, are not necessarily handled according to my protocols. The manager is a PI, not an attorney. He has his own protocols. Even more removed from my view are what the attorneys who handle APS cases do prior to suit. I don't know most of those attorneys, so I won't speculate as to what they do or don't do. I would hope that they would insist on the same level of confidence that I insist on in my cases, but I don't know that they do. I think it is irresponsible for Chip to state as fact things that are really the subject of a wild and cynical imagination. If I don't know, and I'm reasonably plugged in to the process, how on earth would he know? He doesn't, and he's just speculating without labeling it as speculation. You are, too.
Where I have a problem with Chip's comments--and there have been others with this attitude, but he is by far the most vocal--is that when there is the
possibility of mistake, he immediately goes hysterical, treating it as conclusive evidence of malicious intent, applicable to every single instance in which SC has ever sued a KJ. That's not fair because it's simply false and unwarranted by the evidence. Over the course of two-plus years, with more than 1,000 defendants sued, there have been
maybe 10 defendants who were sued where the evidence arguably didn't warrant it. When that has been brought to our attention, we have moved quickly to reassess and take appropriate action. I don't think we should forget about those 10 or so, but it's hardly fair to say that they define the whole process.
Not even criminal prosecutors get the right guy every time. That doesn't mean that the police aren't working hard, or that they're dirty, or that the D.A. is filing charges recklessly. Sometimes people look guilty but end up getting acquitted because they are actually innocent for reasons that aren't apparent at the time the charge is filed. Does that mean we should close up the criminal courts, fire the D.A.s, and fling open the jails? Of course not. And let's face it: a criminal charge is a heck of a lot more damaging than being named a defendant in an intellectual property infringement suit.
What we are trying to do is to clean up an industry that has been devastated by piracy. We're using the tools that are available to us. We're not going to get it right every time. What matters, when we get it wrong, is that we fix it as quickly as we reasonably can. I am happy to take fair criticism and learn from it. When we screw up, I expect to hear about it. But when we get it right--and we get it right FAR more than we get it wrong--it's only fair that you take note of that as well. When fair criticism yields to hysterical speculation, and where the only comments consist of unfocused griping, with nothing more constructive than "you're evil and trying to destroy people's lives to make money," there comes a point where a person can't really say that he's anti-piracy any more. He may not be pro-pirate, but he's not helping the anti-piracy cause, and however unintentionally he's feeding the pirate mentality.
For me, that's drawn into sharp relief when I am in the field on a case and I hear arguments that mirror in detail some of the things that supposedly "anti-pirate" people on this form and elsewhere have said. I'm talking about uninformed and frankly wrong legal interpretations, incorrect statements of historical fact, and so forth. (My favorite one of these is that Don Henley sued SC over 8125. Never happened.) It happens all the time. Pirates read these boards. When they read about how evil SC is for trying to make money through lawsuits (in order to survive a recession while 90 to 95 percent of the demand for its product is satisfied by people who steal it), they feel better about being pirates. Now, don't get me wrong, I'm a big boy and can take it, and when defendants bring it up, I roll my eyes, say "don't believe everything you read on the Internet," and write up yet another brief knocking down the theory they cribbed thirdhand from some web forum. I'm just suggesting that people who launch all of this unfocused, unsupported, and uneducated criticism at my client, just for the sake of some vendetta, should really stop pretending that they are against piracy.
I suppose the bottom line here is that I am concerned by the mere possibility that your description of the specific case at hand is accurate. I have spent a fair number of hours the last two weeks trying to ascertain just exactly what happened. I'm going to be in LA on Monday and will be collecting information on this matter as part of that trip. If it turns out that how you have described it is accurate, steps will be taken to rectify the situation as quickly as possible.
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