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: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?

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.

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.

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.

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".