Papers Sealed In Class Action Against RIAA

NewYorkCountryLawyer writes "In Andersen v. Atlantic Recording, the Oregon class action brought by Tanya Anderson against the RIAA, MediaSentry, and others, the plaintiff's motion for class action certification has been sealed by the Court. Also, the Court conducted an 'in camera' conference with the defendants' attorneys — meaning the Judge met with the defendants' attorneys alone — in connection with a discovery motion, and the record of that conference has been sealed as well. The RIAA has made a motion to dismiss the class action; that has not been sealed. In case you're wondering what's going on here, so am I."

Comments

IANAL, etc.

[fuzzyfuzzyfungus]

But are there any plausible and non-nefarious explanations for this turn of events? I mean, is meeting with the defendant's attorneys privately, sealing the record of what went on there, and then sealing the plaintiff's motion a relatively normal thing? Or is it as weird and skeezy as it sounds?

Re:IANAL, etc.

[Zocalo]

What seems to be lacking here is more information on the circumstances that led to the in camera meeting, which is probably the crux of the matter. "Eldavojohn" presents a plausible sounding circumstance above where this might happen, so the questions I have are:

1. Are there any other instances of one side (either one) being in camera with the judge alone?
2. If so, how often does it happen? (Not very, if at all, judging by NYCL's reaction)
3. Were the lawyers for Tanya Anderson present when this meeting was initiated?
4. If so, presumably they either agreed to the meeting or objected and were overruled - which was it?

If Tanya Anderson's lawyers agreed to the meeting, then one can only hope they know what they are doing, but if it's the latter then I can't imagine how that might play out bearing in mind the the RIAA et al are the *defendants* here. If it were the other way around, I'd go for "instant mis-trial", but does that still hold in any way should the RIAA escape censure in the case?

Re:IANAL, etc.

[RangerMatt]

I don't think it's to the extent you bring up (molestation/sexual contact), but there is mention in the filing of their repeated attempts to contact/harass a minor child in their conduct of their "litigation" which may be subject to various changes to the rules of disclosure. I'd agree that having only one side present for the in-camera discussion would seem to be unusual, the fact that the transcripts were ordered sealed may have something to do with if those discussions were focused around the minor child and thus are subject to stronger protections from public disclosure. Juvenile records are, after all, held in more strict confidence than those of an adult or emancipated minor.

When will it appear on Wikileaks?

[erroneus]

Okay, the judge and the defense have met in private...? I get the impression that this is highly irregular. Is it improper enough to have this judge thrown off the case and reprimanded?

Re:When will it appear on Wikileaks?

[taniwha]

but that term comes from a past time when secret trials were not unusual (Stella Camera)

Sealed?

[Reason58]

I'm not a legal expert. Does sealed mean that during the course of the proceedings they won't be disclosed? Or does sealed mean that they will never be revealed, even after this is out of the courts?

Re:Sealed?

[rahvin112]

Having one party to a litigation in a meeting without the other to discuss any aspect of the case is a BIG BIG no no. This meeting having happened is grounds for a mistrial later and I doubt there is an appeals court that wouldn't immediately grant the mistrial simply because the meeting was held, even if they were discussing their favorite baseball teams. You can't have fair litigation if the judge is only listening to one side.

As far as your analogy about explaining technical items to the judge, that occurs in COURT, if it's a secrete it happens in a closed court with a sealed transcript but again, BOTH sides are present and both have the opportunity to argue the details and value of the information presented along with the legal right to rebut any information given. What's happened here is the defense is whispering in the ear of the judge and the plaintiff has no idea what was said, how it till affect the case or even if they need to rebut any of it.

The Judge should be removed from the bench or at the very least publicly reprimanded and removed from the case.

Re:Sealed?

[taustin]

Actually, ex parte (or 'in camera') stuff happens all the time, and is routine. Not necessarily common, but not at all unusual, and not necessarily a no no of any kind.

Re:Explanation needed ...

[Frosty Piss]

one probably has to assume that the proceedings touch 'national security'.

But this is exactly the point the RIAA has been driving at all the time. You've just now grasped their entire motivation!

Now, can a judge seal anything he/she wants? Or does something have to meet certain conditions? What sort of allegations in the plaintiff's motion might possibly result in this? Did the RIAA ask for it to be sealed?

I Figured It Out...

[BJ_Covert_Action]

The **AA stumbled upon some sort of blackmail content (pictures or whatever) involving the judge and wanted to meet with him privately to give him the chance to toss the case before revealing said material. Hence the judge's willingness to seal everything going on. I would laugh at myself for the idea but am not sure its much of a joke these days....

Re:IANAL, Can this be appealed?

[rezalas]

That assumes the RIAA would allow such a thing. Considering they own the President and his cabinet I highly doubt you can expect for this to happen.

My guess is the Noerr-Pennington doctrine

[tlambert]

IANAL, but I do read a heck of a lot.

My guess is the Noerr-Pennington doctrine. I expect that Anderson tried to define "all recipients of demand letters" as a class, and RIAA argued that that can not constitute a class because it has immunity under Noerr-Pennington, per Sosa v. DIRECTV, Inc. 1684 (2006):

http://www.ca9.uscourts.gov/datastore/opinions/2006/02/14/0455036.pdf

Probably, the specific interpretation of BE&K Construction Co. v. NLRB, 536 U.S. 516, 525 (2002). The argument would be that if the lawsuit was able to impose RICO liability on RIAA for sending the demand letter, then it would burden RIAA's ability to settle legal claims short of filing a lawsuit. RICO specifically provides for private enforcement and treble damages.

This is all predicated on the demand letters being specifically for no more than treble actual damages, so it may not apply if RIAA was asking for statutory damages (which they were). There is also some question as to whether the demand letters were objectively baseless and thus fall within the doctrine's sham exception. So I see at least two ways to fight a dismissal on direct.

-- Terry

Re:My guess is the Noerr-Pennington doctrine

[Dhalka226]

All of that is fine, and you're probably at least partially right, but none of it explains why the records need to be sealed. "This is not a proper class" isn't something that needs to be held secret, nor is it something that should be discussed with only one party of the lawsuit involved.

You may be right that that's one of their defenses; it certainly sounds as though it should be. But it is, at best, a small part of what's going on. They're saying SOMETHING that a judge has apparently decided is so important to keep secret that not even opposing counsel can know about it. Whatever that is, it's not Noerr-Pennington. Not even a lawyer who has worked on these cases can hazard a guess as to what it might be. That's awfully irregular.

Re:Noerr Pennington doctrine ?

[idontgno]

IANAL. In fact, this is the first I've heard of Noerr-Pennington, and what little I've learned in the last 15 minutes is from reading a pretty nifty Federal Trade Commission staff report (PDF warning).

Anyways, one of the branches of descent of this doctrine (California Motor Transport Co. v. Trucking Unlimited) protects court action (lawsuits) from antitrust enforcement (on the basis that petitioning the government is a 1st Amendment protected activity, even if anticompetitive, and a lawsuit is a petition to the judicial branch.)

So... the angle seems to be that somehow, the RIAA's original lawsuit was protected speech, and immune to countersuit from an antitrust angle. Is antitrust or pro-competition an element of Anderson's countersuit? That might be the in.

(Also, the doctrine has a "sham exception", where petition which is intended primarily to delay, vex, or interfere with a competitor, rather than as sincere petition to government, is not protected. Very interesting....)

But again, I AM NOT A LAWYER. Not much of this makes sense to me.

Similar(?) History

[DynaSoar]

I similar set of events occurred during the big tobacco lawsuits. Some testimony was sealed and later opened, some remains sealed. Some of the former was from the tobacco comany researcher Dr. Jeffery Wigand. His story is the basis for the movie "The Insider". NYT has an archive of articles from throughout the course of the suits at: http://topics.nytimes.com/top/reference/timestopics/people/w/jeffrey_wigand/index.html

Some of the latter was from another tobacco company researcher named Pele, who worked out the biochemical mechanism of nicotine addiction. After his employer quashed news of the results, he leaked the details to a news magazine (either Time or Newsweek, I forget which), Subsequently all his testimony and work was sealed, he was fired and prevented from working in that field any more.

After these and similar testimonies that were greatly damaging to the companies' claims, the lawsuits suddenly sped up and concluded with the companies paying out US$280Bn. It was speculated that had the testimony been public and the suits based on the claims therein (ie. they themselves had the proof of nicotine addiction, something they'd denied existed), the companies would have been fined a great deal more, or possibly forced to sell out.

We can only hope that what's been sealed and discussed is so damaging to the RIAA that the judge is telling them to defend against it would require perjury, and he's giving them a chance to back off, settle before it gets a lot worse for them, and go lick their wounds.

One thing you can be sure of, and happened in the tobacco suits, if the companies lose and are fined, the amount they pay out will be made up by price increases. All buyers will end up paying the fine. And once they've covered the cost of the fines, they'll leave the price where it was moved up to, and rake in even more.

Checks?!?

[Locke2005]

I was once given $1000 is cash in an unmarked white envelope by a head-hunter to entice me to quit the job I had just started and go to work for another firm so that he could make his commission. Not a check. I suspect the methods used by the RIAA to influence judges also don't show up so obviously on bank statements. In fact, since the RIAA members routinely hire independent song promoters who give away hookers and blow DJs to get songs placed in rotation on top-40 stations, I'm pretty sure they consider "hookers and blow" as a legitimate business expense, and probably get a tax deduction by claiming it as "entertainment".

IANAL, but ...

[PPH]

... my understanding of such maneuvers is that the defense may want to see how the judge will rule on some discovery motion in open court prior to that motion being made. The defense may deem that such discovery would be more damaging than just settling the suit. In that event, they don't want the subject of potential discovery to be made a part of any public record.

We here on Slashdot may have no love for the RIAA. But in general, defendants shouldn't be forced into exposing sensitive information, like trade secrets or business strategies, as a means to blackmail them into settling.

The end result may be that the judge looks at the information in question, determines that it is in fact materiel to the case and will be delivered should the trial continue. At this point, the RIAA may decide to settle to keep their info. out of the public record.

Re:Terrorists, Star Chambers, and immunity

[ScrewMaster]

To paraphrase John W. Campbell, power does not corrupt, if it did, God would be the ultimate in corruption; immunity corrupts, and absolute immunity corrupts absolutely.

To what, exactly, is God not immune?

Re:Is it just me?

[DrJimbo]

I don't know. How many lawyers does Scientology have in the Department of Justice? The RIAA five.

Come to think of it, this might explain why they think the can get away with the shenanigans that Ray just uncovered.

Re:Uh-oh!

[mjwx]

1. Google is your friend. It probably won't help you move, definitely won't help you move bodies, but if you use an anonymizing proxy, it may be a good place to research how to get rid of bodies.

You're always going have problems lifting a body in one piece. Apparently the best thing to do is cut up a corpse into six pieces and pile it all together. And when you got your six pieces, you got to get rid of them, because it's no good leaving it in the deep freeze for your mum to discover, now is it? Then I hear the best thing to do is feed them to pigs. You got to starve the pigs for a few days, then the sight of a chopped-up body will look like curry to a pisshead. You got to shave the heads of your victims, and pull the teeth out for the sake of the piggies' digestion. You could do this afterwards, of course, but you don't want to go sievin' through pig shit, now do you? They will go through bone like butter. You need at least sixteen pigs to finish the job in one sitting, so be wary of any man who keeps a pig farm. They will go through a body that weighs 200 pounds in about eight minutes. That means that a single pig can consume two pounds of uncooked flesh every minute. Hence the expression, "as greedy as a pig".

Re:I don't like the way this is going

[causality]

This has the pungent aroma of legal douchebaggery all over it. A cynic might suspect that all the business-friendly appointments to the bench Bush made are starting to pay off.

In truth, the two major parties are quite comfortable with their duopoly. There is but one and only one significant difference between the two major politcal parties of the USA: the justifications given for things that they're going to do anyway. All of the rest is designed to make you believe that all problems and all instances of corruption are due to the other party or the other candidate(s). It's always some kind of "other". Some people think the entire problem is the Republicans. Some people think the entire problem is the Democrats. Who is correct? Both. Do you know why Congress has such a high incumbency rate? Because my Congressman is great; it's all the rest who need to go!

I'll phrase the same idea in a different way. These are in no particular order.

• I want a federal government that is far less powerful, including the recognition that it has no jurisdiction over any domestic event that does not cross state lines.
• I want the legal definition of "treason" expanded to include any politician who ever infringes on any civil right (as defined in the Bill of Rights) for any reason and I want this to be legally and vigorously enforced.
• I want all income taxes outlawed and replaced by sales taxes in a revenue-neutral way, at all levels of government, no matter what disadvantages (real or perceived) there may be to the practice of sales taxation.
• I want to end the War on (some) Drugs and replace it with the legal recognition that it is the government's responsibility to prevent you from harming other people or depriving other people of their civil rights but it is not the government's role to prevent you from harming yourself.
• I want all laws concerning victimless crimes to be abolished, for that matter.
• I want the law to require that all states must raise their own revenue via their own taxes and the federal government may not give money to any of them.
• I want all forms of fiat currency outlawed, particularly those which are combined with fractional reserve banking, and replaced with a representative currency.
• I want the Constitution amended to state that no government or government-funded entity may run any sort of educational institution, no matter what the disadvantages of this (real or perceived) may be, with one exception: critical thinking, argumentation, and propaganda techniques should comprise the only compulsory education and, due to their compulsory nature, should be state-funded.

If you read that and are inclined to tell me that some of those ideas have disadvantages, particularly those that would abolish government's involvement in drugs and in public education, I may already agree with you. My argument is not based on the idea that this is some flawless solution. My argument is simply that the advantages of removing government's entanglement with these things far outweigh any disadvantages of doing so. Research it earnestly and you will come to the same conclusion, without fail, so long as you can go wherever the facts may lead you. Beware, because the number of people who think they can do that is far higher than the number of people who can actually do that. A good topic for researching drugs is the asset forfeiture laws and the fact that they are carried out without any sort of due process. An excellent reference for researching education is John Taylor Gatto.

If you read that and believe that I must mean "the private sector" when I call for the abolition of public schooling, you need to know the danger of allowing the media to frame debates for you. I imagine that for-profit private schools, parochial schools and homeschooli