To say it was unusual and unexpected would be an understatement. The Guardaley Lipscomb, Eisenberg & Baker | X-Art shakedown machine seemed to be extremely well oiled, operated smoothly for years, plundering US citizens over alleged copyright infringement of illegally produced barely legal ” pornography. With more than 5000 cases in the US since 2012, the parasitic cartel relieved productive citizens from millions and millions of dollars.

Yet recently something apparently went wrong. Today Keith Lipscomb and those attorneys from his firm who were doing the Malibu work (Emilie Kennedy, Daniel Shatz, Jessica Fernandez) moved to withdraw as Malibu Media’s attorneys in at least three cases:

Malibu Media v. Gregory Weaver (FLMD 14-cv-01580, defense attorney: Cynthia Conlin): this case was heading for a jury trial after the judge denied both plaintiff’s and defendant’s cross-motions for summary judgement. I bet that the trolls think that they already won this case: the defendant admitted to watching X-Art’s smut, and some X-Art torrent files (but not the movies listed in the complaint) were found on his hard drive. Notwithstanding, the defendant maintains innocence and has been actively preparing for the trial, which he hopes to win.

Malibu Media v. Jesse Raleigh (MIWD 13-cv-00360, defense attorneys: Derek Wilczynski and Lincoln Herweyer). This case is an embarrassment to the judicial system and should have been ended long time ago with a payment to the defendant for his troubles. After the expertise, the defendant came out clean: neither X-Art’s porn nor evidence of spoliation was found on defendant’s hard drives. Nonetheless, the trolls doubled down. Just read Malibu’s ridiculous speculative motion for summary judgment and compare it with an argumentative and solid defendant’s cross-motion¹. It is clear as day that the crooks are grasping at straws and there is simply no way they can win at the trial. A recent Techdirt’s story about this case is also indicative of the trolls’ frivolity and unprofessionalism.

Malibu Media v. Curt Vandenheuvel (FLMD 13-cv-01579, defense attorney Joshua Cossey): Just like in Raleigh, neither porn nor evidence of spoliation was found by the plaintiff’s expert. Yet the trolls continued the pressure, stooping as low as insisting on deposing defendant’s daughter — a seriously ill teenager (in a porn case!).



Every motion specifies the withdrawal reason as following:

“[A] lawyer may withdraw from representing a client if: … (3) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled [or] (4) the representation … has been rendered unreasonably difficult by the client….” Fla. R. Prof. Conduct 4-1.16(b). These foregoing circumstances are present, warranting undersigned’s withdrawal from representation. Should the Court have questions about the details necessitating the withdrawal, undersigned requests an in camera hearing so that undersigned may explain without disclosing privileged information

In subsequent motions to enlarge the pretrial deadlines (Weaver) and to continue and postpone mediation (Vandenheuvel), Lipscomb was more explicit:

Unfortunately, Plaintiff has failed substantially to fulfill its obligations to undersigned regarding undersigned’s services and Plaintiff has recently rendered undersigned’s representation unreasonably difficult.

I don’t know what’s going on, and I’m reluctant to speculate before I get enough information to make educated assumptions. For now, feel free to discuss this event in the comment section.

Embedded below is the motion to withdraw in Malibu Media v. Weaver. The other ones — in Raleigh (separate motions by Lipscomb and Fernandez²) and Vandenhuevel — are nearly identical. I will update this post if more similar motions are filed.

Updates

04/27/2016

On 4/20/2016 Magistrate Kent set 4/29 as a hearing date on Lipscomb’s and Fernandez’s motions to withdraw in Malibu Media v. Raleigh. Six days later, on 4/26, Lipscomb asked the court if he could appear telephonically, partially because

Friday, April 29, is [Keith Lipscomb’s] birthday. An early evening birthday dinner has long since been scheduled and a number of out of town guests have made arrangements to attend same. Traveling to Grand Rapids will not only require a significant change of plans, but will also result in added expenses.

Today the defendant opposed:

However, there are a number of problems with Plaintiff’s counsel’s Motion which mandate his, and his co-counsel Jessica Fernandez’, attendance. First, any issue related to cost or inconvenience is caused solely by Plaintiff and its current counsel, Keith Lipscomb and Jessica Fernandez. Malibu Media is a California company which has hired Florida counsel to litigate a case in Michigan. If there is any economic hardship, it is willfully caused by Plaintiff’s own litigation model.

The defendant also indicated that he will oppose the motion to withdraw.

From here the plot thickens even more: Nicoletti suddenly popped up to test court’s gullibility. In his today’s notice he claimed that he ceased representing Malibu Media in June 2015, at the moment Lipscomb and Fernandez appeared pro hac vice (emphasis is original):

It is important for this court to note that when Mr. Lipscomb and Ms. Fernandez filed their appearances in this matter, that the undersigned ceased representation of the Plaintiff in this lawsuit. The formal filing of a Motion to Withdraw was an oversight. The undersigned attorney has no agreement to represent the Plaintiff, verbal, written, or otherwise.

Given that Nicoletti has a much bigger problem to worry about, I’d give him a benefit of doubt, albeit reluctantly. However, Lipscomb should have noticed and acted. This purported “oversight” greatly improves Lipscomb’s famous record of diligence and candor.

04/28/2016

Yesterday Raleigh’s attorneys Derek Wiczynski and Lincoln Herweyer field an opposition to Lipscomb’s and Fernandez’s motions to withdraw. The defendant asks an obvious question:

Obviously, if Lipscomb and Fernandez have a conflict that prevents them from continuing to represent Plaintiff in this suit, then that same conflict should prevent them from continuing to represent Plaintiff in any suit. Undersigned counsel are aware of only three cases (including this one) where Lipscomb and Fernandez have moved to withdraw. Perhaps those are the only cases where these lawyers have appearances, but in any event, it would seem to be an appropriate condition for granting their motions that they certify to this Court that they have moved to withdraw from every case in which they represent Malibu Media, and not just in those cases where dispositive motions are about to be heard or in which trials are looming.

Also, the defendant and his counsel were totally flabbergasted by Nicoletti’s apparently false claim that he ceased representing Malibu last year:

[…] Plaintiff’s Michigan-based attorney, Paul Nicoletti, never withdrew from this case, and has been served through the ECF system with all filings. After the filing of the motions now under consideration, Mr. Nicoletti contacted the undersigned, affirmatively stating that he would be the individual arguing on behalf of Plaintiff the three motions that are currently slated to be heard on May 2, 2016. More importantly, commencing on Thursday, April 21, 2016, Mr. Nicoletti engaged in negotiations (on behalf of Plaintiff Malibu Media) with Defendant (through counsel) regarding the settlement of the instant matter.

The defendant asks for an order requiring Malibu to post a $200K bond if the court extends deadlines due to Lipscomb’s motion to withdraw.

Today Magistrate Kent saved Lipscomb’s birthday festivities by allowing him to appear at tomorrow’s hearing telephonically. The judge added the following requirement in bold font:

Attorney Paul J. Nicoletti is required to participate in the telephone conference.

…and now Nicoletti moved to withdraw saying that

On April 26, 2016, at 12:58 p.m., the undersigned was discharged by the new Corporate Counsel for the Plaintiff.

I’m curious who this “new corporate counsel” is.

Followup

¹ Exhibits: A, B, C, D, E, F, G. Also notable is the defendant’s response to Malibu’s MSJ.

² …but not Nicoletti, who is, surprisingly, still a counsel on the record — despite the fact he will be tried for mortgage fraud in less than 2 months.