Richard Nixon is a no good, lying bastard. He can lie out of both sides of his mouth at the same time, and if he ever caught himself telling the truth, he’d lie just to keep his hand in.

Harry Truman

It is fairly common knowledge to those who defend against Malibu Media copyright trolling lawsuits that there is a large percentage of lawsuit targets that cannot afford legal representation. Accordingly, a large portion of these lawsuits result in default judgements, where the defendant gets served, neglects to respond to the lawsuit, and Malibu Media is pro forma granted a judgement that includes money “damages,” injunctive relief to delete the porn from the defendant’s computer, and attorney’s fees. These default judgements are made on motion and are supported by an attorney’s unsworn declaration UNDER PENALTY OF PERJURY that the hourly records supporting the request for fees are true (see 28 U.S.Code § 1746).

Except they are not.

That is at least what Magistrate Judge Charles B. Day found in his Report and Recommendation dated January 5, 2018 in Malibu Media v John Doe (MDD 15-cv-03185).

HUH?

What piqued the judge’s interest is that Malibu Media’s local counsel Jon A. Hoppe’s Declaration, dated April 21, 2017 (sealed), requesting attorney’s fees in the sum of $1,182.00 is identical to one that was submitted in another Malibu Media lawsuit in another state by another Malibu Media local attorney:

Plaintiff seeks attorney’s fees of $1,182.00 and costs in the amount of $450.00, for a total request of $1,632.00. In Malibu Media, LLC v. Cowham, Plaintiff also requested attorney’s fees in the amount of $1,182.00. Equally, in Malibu Media, LLC v. Doe, Civ. No. CCB-15-1700, 2016 WL 245235, at *3 (D. Md. Jan. 21, 2016), Chief Judge Blake granted Plaintiff’s request for attorney’s fees plus costs of $1,632.00. Although these cases were brought in different states and had different attorneys of record, the charts included in the supporting declarations for fees were identical.

Consequently, the judge ordered a hearing so that Hoppe could explain this remarkable coincidence and produce documentation to support the request for fees.



THE DOG ATE MY TIME RECORDS

Regrettably, Hoppe was unable to produce the documentation at the hearing because it was his business practice to throw away those records:

At the Hearing, Counsel made clear that the majority of his practice consists of the litigation services he provides to Malibu Media. R. at 10:11:55. Counsel informed the Court that his method for tracking his billable hours consists of recording his time and tasks in a physical notebook/calendar. When preparing a declaration for attorney’s fees, he refers to this calendar and the docket entries of the case. R. at 10:19:51, 10:46:28. Counsel asserted that for his work on all Malibu Media cases, he maintains his calendar until he submits a declaration in support of fees. He then disposes of his calendar on a quarterly basis. It is this practice which prevents the production of Counsel’s time records for the Court’s review. R. at 10:26:04. Counsel advises that he does not send invoices to Malibu Media for services rendered.

Undeterred, the judge asked Hoppe to produce his “calendar” for another, currently pending, Malibu Media lawsuit. Upon inspection of those records, the judge called bullshit:

Counsel’s purported practice of aligning his time records to the docket entries seems haphazard at best. Said practice does not align with the filings in the present case, nor does it align with the docket entries for the case in which time records have been preserved. At the end of the day, I have no confidence in believing that Counsel has followed this practice when preparing fee petitions for Plaintiff.

TURNS OUT HOPPE DID NOT PERFORM THE MAJORITY OF THE WORK

During the hearing Hoppe finally admitted that it is an unsupervised paralegal hired by Malibu Media’s general counsel that performed approximately 80% of the legal work at issue in this case:

The final component of Plaintiff’s request for fees relates to services provided by a paralegal. Counsel produced an Amended Declaration with the resume of Alejandra Albuerne attached. ECF No. 35-1. This resume indicates that Ms. Albuerne is a resident and paralegal in the state of Florida. Id. Counsel indicated that Ms. Albuerne is one of a network of paralegals across the country which Plaintiff’s general counsel supplies to litigation counsel for the prosecution of Malibu Media cases. R. at 10:09:19. Additionally, Counsel indicated that while he met Ms. Albuerne once, she has never performed services for him in the state of Maryland. R. at 10:12:32. Finally, Ms. Albuerne’s resume indicates that she has worked as a paralegal since 2009, being employed by Lipscomb, Eisenberg & Baker, PL and later by Pillar Law Group, APLC/Malibu Media, LLC.2 ECF No. 35-1. Counsel indicated that both of these legal teams have previously served as general counsel for Plaintiff ¹.

Insofar as Hoppe did not really know the paralegal (let alone supervise her), he could not produce her contemporaneous time records, so the judge rejected her portion of the fees request:

The fees for services provided by Ms. Albuerne accounts for almost 80 percent of the total hours billed. ECF No. 29-5, at 2. Counsel stated that in preparing Counsel’s Declaration, he had no direct supervision over Ms. Albuerne’s work performed, and no way of knowing the record-keeping methodology that Ms. Albuerne employed. R. at 10:56:03. Counsel has not provided the Court with any contemporaneous time records to support the vast majority of the hours claimed by her. Accordingly, I find the request for fees generated by Ms. Albuerne to be unsupported.

WHAT THE HELL?

Next the judge pointed out that at least 14 different Malibu Media lawsuits in different states (and involving different local counsel) contain the same Declaration, UNDER PENALTY OF PERJURY, requesting the same $1,182.00 in attorney’s fees. In something of an understatement, the judge found this discovery “troubling” (emphasis supplied):

The Court is aware of at least 14 cases over the course of four years, ranging across seven states where Plaintiff is represented by eight different attorneys. In each instance, counsel presented identical charts in support of a request for attorney’s fees following the entry of default. Only the dates of each task have been changed. See Attachment A. The Court finds troubling that each and every case in Attachment A reflects identical requests, identical hours billed, identical tasks of each attorney, identical tasks of the paralegal, and identical number of emails reviewed. There are even identical “catch-all” provisions requesting fees for blocks of unspecified activities labeled as “case management” and “case tracking.” These categories typically represent the singular bulk of each fee request. There is only one plausible explanation for this multi-state event. General counsel is dictating the fees to be charged and the tasks to be recorded in each declaration seeking an award of fees. While billing judgment and/or flat fee billing may be acceptable, it should not be presented by way of a declaration under oath as if the time records are the result of a more typical and contemporaneous time keeping method.

HOPPE IS A MERE PUPPET FOR MALIBU MEDIA’S RACKET

Near the end of the hearing Hoppe confessed that he signs off on whatever Malibu Media’s general counsel tells him to submit to the court (emphasis supplied):

Near the end of the Hearing, Counsel stated that it is actually Malibu Media’s general counsel that prepares and sends the declarations in support of attorney’s fees to local counsel for approval. R. at 11:06–11:09. It appears local counsel is merely “signing off” on fee petitions at the direction of general counsel and not based upon reliable business practices. While Counsel claims that all of his declarations are based on, and supported by, his “calendar” entries, nothing in his statements elucidates the discrepancies in the time-keeping records submitted in this and the other cases found.

Not only has Malibu Media’s general counsel failed to appear as an attorney of record in any of the 615 lawsuits filed by Malibu Media in Maryland but (emphasis supplied):

General counsel is actively preparing court filings, such as the declarations of local counsel in Maryland and beyond. R. at 11:08-11:16. The Court is concerned that Counsel is simply a conduit for legal work prepared by others who are not members of the bar of this Court or licensed to practice in Maryland.

CONCLUSION: YES, MALIBU MEDIA IS A COPYRIGHT TROLL

In conclusion the judge noted that while Malibu Media has yet to get caught filing fraudulent lawsuits, the business practices uncovered in this lawsuit unquestionably make the label “copyright troll” an apt one for Malibu Media (emphasis supplied):

Plaintiff Malibu Media, LLC, for the last four years has initiated thousands of lawsuits against alleged copyright infringers nationwide. While no court has found that Plaintiff has filed a fraudulent suit, many courts have questioned whether Plaintiff is a “copyright troll,” initiating suits against infringers as a profit-making scheme rather than as a deterrent, as legislators intended. See Malibu Media, LLC v. Doe, No. 15 Civ. 4369 (AKH), 2015 WL 4092417, at *2 (S.D.N.Y. July 6, 2015) (“copyright trolls,” roughly defined as plaintiffs who are ‘more focused on the business of litigation than on selling a product or service or licensing their [copyrights] to third parties to sell a product or service.’). In the present case before this Court, that question is exacerbated by the presence of questionable business practices.

Accordingly, the judge recommended that the requested attorney’s fees in this case should be denied. Magistrate Judge Day’s Report and Recommendation still has to be approved by presiding Judge Theodore D. Chuang. Who knows? Perhaps Judge Chuang will find these “questionable business practices” warrant referral to the appropriate authorities. What is particularly galling about this practice of serving up fraudulent attorney Declarations is that Malibu Media got caught doing the exact thing in New Jersey in 2016, and yet they continue the shenanigans. Arrogant, stupid, greedy or all three? You be the judge.

¹ Currently the Malibu Media shakedown is handled by The Lomnitzer Law Firm from Boca Raton, FL.