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Foster Demands RIAA Post $210K Security For Fees
NewYorkCountryLawyer writes "A few days ago it was reported that, in view of the RIAA's one-month delay in paying the $68,685.00 attorneys fee award in Capitol v. Foster, and its lawyers' failure to respond to Ms. Foster's lawyer's email, Ms. Foster filed a motion for entry of judgment so that she could go ahead with judgment enforcement proceedings. In response to that motion the RIAA submitted a statement that it had no objection to entry of judgment, and intimated that it thought there would be an automatic stay on enforcement of the judgment, and that it would ultimately file an appeal. After seeing that, Ms. Foster's lawyer has filed a motion for the Court to require the RIAA to post $210,000 in security to cover the past and future attorneys' fees and costs that are expected to be incurred."
I'm not familiar with the dates/timeline here, but in most if not all jurisdictions -- and definitely in federal court -- you have only 30 days from the entry of an order or judgment to file a notice of appeal (Fed. R. App. P. 4(a)). The order was apparently filed on July 16. Today is August 16, which is the 31st day. BUT Foster is just now asking the court to enter judgment for this amount, which means that Capitol will probably have 30 days from the day that judgment is entered.
The bigotry of the nonbeliever is for me nearly as funny as the bigotry of the believer. - Albert Einstein
Ray Beckerman +5 Insightful
Ray Beckerman +5 Insightful
RIAA will eventually pay if the judgment holds up on appeal. This enforcement of judgment business is typical and doesn't mean a huge corporation is being favored. The RIAA is claiming that it is planning to appeal and will not pay until after it has exhausted its appeals. In response, the defendant (or the Good Guy) wants RIAA to post a bond not only for the amount of the judgment but also for the expected costs of a failed appeal. They'll probably get interest and stuff, too, if the judgment is affirmed on appeal. This is both pretty standard procedure, except RIAA forgot to inform the Court of its intentions.
A NYC lawyer blogs. http://www.chuangblog.com/
Let me clarify.
1. I don't represent Ms. Foster; her lawyer is Marilyn Barringer-Thomson of Oklahoma City.
2. If I were her lawyer I probably could not answer the question anyway, since it is confidential information the RIAA would just love to have.
3. As a general proposition, it would be legally irrelevant how much of the bill was paid and how much unpaid.
4. If I had to guess, my guess would be that Ms. Foster is a poor hardworking person without much dough and she has probably paid only a very small portion of the bill.
Ray Beckerman +5 Insightful
There is a law against frivolous appeals, and an appeal from this judgment would be frivolous. If anyone has grounds to appeal it would be Ms. Foster, who was awarded only $68,685 even though the attorneys fees and sdisbursements were around $114,000.
Ray Beckerman +5 Insightful
Terra Firma is a private equity firm; they specialize in buying out companies, restructuring them and fixing management issues, and taking profit from the restructuring.
So, the NEW owners haven't yet had time to do much. Whether they will change or not remains to be seen - they've only had a couple of weeks on their hands...
Eivind.
Doubting the existence of evolution is like doubting the existence of China: It just shows that you're uninformed.
Yes, the higher up they lose, the better the precedent will be for us. For all the other RIAA victims, the best possible scenario would be for this to go up to the Supreme Court.
Ray Beckerman +5 Insightful
IANAL, but I read the previous topic (posted...yesterday?), and it appears, according to NYCL, that email is the primary tool of communication between plaintiff and defendant lawyers in these cases.
Is it just my observation, or are there way too many stupid people in the world?
IAAL, and email is a commonly used method of communication, both here in my office and in the legal community at large. In fact, in the jurisdiction (Federal and State) where I live and work all pleadings filed with the court are filed in electronic format, and service of those pleadings is largely accomplished via email.
It makes life a lot easier. For example, if you've got a deadline and you're not going to be able to make it to the court by 4:45 to file a motion, you can e-file at any time up until midnight (this is especially nice when the case is filed in a court that's 150 miles away). Also, our postage costs (which are paid by the client) have been reduced significantly. We also get immediate notice of filings in our cases, without having to wait for the USPS to deliver the goods.
That said, there have been days where I'd like to be able to run stuff to the courthouse myself. Like the day our ISP collapsed and no one could connect to the e-filing service from the office.
But overall, I'd say it's a great improvement over "the old days."
--AC
If you like music, hate the RIAA, and want to support the artists, instead of going "pirate", go here.
A house divided against itself cannot stand.
There is a law against frivolous appeals, and an appeal from this judgment would be frivolous.
First, of course the other side's appeal is frivolous! Have you ever heard opposing counsel say anything other than that? They teach that in remedial lawyering! I would expect to hear nothing else from an attorney vigorously pursuing her case.
Second, if Ms. Foster and her attorneys believe that an appeal is her best interest, she has every right to pursue such an appeal.
Third, you are correct that there is a law against frivolous appeals. If an unbiased court finds that an appeal is truly frivolous (and that's a pretty high burden) the court may again order attorney's fees, sanction the attorneys involved, or even report them to the state bar for disciplinary action.
Remember, frivolous =/= stupid or dumb or unlikely to succeed. Appealing a judgment in favor of the other side is rarely going to be considered frivolous under the legal standard.
For the record: Rule 11 of the Federal Rules of Civil Procedure:
(b) Representations to Court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
(c) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.
(1) How Initiated.
(A) By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as provided in Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.
(B) On Court's Initiative. On its own initiative, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) with respect thereto.
(2) Nature of Sanction; Limitations. A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a pena
No appeal has been filed yet because no judgment has been entered. In response to the motion for entry of judgment, the RIAA stated it did not object but that it would be filing an appeal upon entry of judgment which prompted the other party's motion for the large appeal bond.
I suggest most people taking the time to read the 16 page order will be convinced that, regardless of whether the Judge reached the precisely "correct" dollar amount, he certainly gave it due consideration.
One thing I found particularly interesting was that the fee agreement between Ms. Foster and her attorneys called for a rate of $175 per hour. The requested reimbursement was for $225 per hour. While a fee arrangement is not binding, it is certainly instructive to the court as to the actual cost to Ms. Foster. Much of the reduction from $100k to $68k was from this one change.
Similarly, the Judge refused to allow Ms. Foster's attorneys to bill $80 per hour for work by a paralegal. It seems perfectly reasonable to me not to include these costs. Basically, the Judge went through each bill and evaluated its reasonableness. Exactly my managing partner does to me each month and more importantly, exactly what the law requires in copyright cases.
Post Office Box 54444
Oklahoma City, Oklahoma 73154
Ray Beckerman +5 Insightful
IANAL, but I hire them a lot to defend schools. Yes, this is pretty much SOP. Leaving aside that the RIAA are bottom feeding slime suckers, what they are doing is pretty standard. Winning side is awarded costs. Loser does not pay while deciding whether or not to appeal. One standard gambit is to trade a waiver of costs for no appeal. It is also standard for the winner, Foster, to demand and get an escrow of costs during appeal, as he is doing here. Appeals can be tricky, because you can generally only appeal on the law, not on the facts that have been decided at trial. This kind of thing tends to drag out a long time.
Some mornings it's hardly worth chewing through the restraints to get out of bed.
The problem with the "I don't like the RIAA therefore I'll stop buying music entirely" argument is that it assumes that all music is "RIAA music." Check out eMusic or Amie Street for a lot of great music from artists not affiliated with the RIAA. Since March, I've bought all of my music from Amie Street and I'm loving the artists that I've found. A lot of them deserve their own multi-platinum record deals... except that would lock them into the RIAA's anti-artist contracts. So I hope that they do what is unlikely right now (but becoming more likely each day) and get a huge hit without being signed to a large record label.
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I'm not sure about eMusic, but as far as the artist's cut on Amie Street goes, Amie Street gets the first $5 in sales of a song. After that, the artist gets 70% of the take. Using tools that Amie Street provides for their artists, I figured out that songs reach the $5 mark after only 41 sales. (This translates to a price of about 37 cents. So if a song is 38 cents or more, the song has broken even and the artist is now earning money from it.)
And just to help those artists out a bit, here are samples of their music: http://www.jasons-toolbox.com/what-im-listening-t
My sci-fi novel, Ghost Thief, is now available from Amazon.com.
In short: It is perfectly normal and accepted to bill for paralegal time. But in this particular case, the Judge made a rather detailed finding that these specific bills were excessive.
Pay attention to whom you're making out to be the offending party. The RIAA -IS NOT LIABLE FOR ANYTHING HERE-, Capitol Records is. They're even listed in the summary as the party involved, plain as day. The RIAA just connects the dots. Company A owns the rights to bone the artists out of money they deserve for music they created. User B downloads said music, bypassing Company A's 'right' to collect money (and forget to pay the artist) on that music. The RIAA simply digs through traffic records (and throws darts at a board) to find out that User B has done this. The RIAA then gets Company A in contact with User B to extort money by attempting to scare the piss out of them. The RIAA is not in litigation - Capitol is. The RIAA won't be magically destroyed by this. (which sucks...)
Burn the Land and Boil the Seas, you can't take the sky from me...