Defense attorneys hit Righthaven lawyer with sanctions motion

Las Vegas copyright infringement lawsuit filer Righthaven LLC was hit with another legal problem Tuesday in the form of a sanctions motion against its main outside attorney.

Attorneys for news aggregation website operator NewsBlaze LLC asked Chief U.S. District Court for Nevada Judge Robert C. Jones to impose sanctions on Las Vegas attorney Shawn Mangano over Mangano’s litigation tactics on behalf of Righthaven.

Mangano on Wednesday called the sanctions motion “overzealous and unprofessional” and said it’s not justified by the facts or the law.

NewsBlaze, which was hit with one of Righthaven’s 275 no-warning copyright infringement lawsuits filed since March 2010, is fighting the suit alleging material from the Las Vegas Review-Journal was infringed on.

Righthaven says its suits over R-J and Denver Post material were needed to crack down on rampant online copyright infringement of material from those newspapers, but critics said its suits were frivolous and part of a money-making scheme involving dubious legal claims and efforts to obtain settlements through shake-down legal tactics.

Last week, Jones said he planned to dismiss the NewsBlaze case based on Righthaven’s lack of standing.

This wouldn’t be surprising as five other judges in Nevada and Colorado have previously ruled Righthaven lacked standing to sue over R-J and Denver Post material because of flawed copyright assignments that are the basis of the infringement lawsuits.

Tuesday’s sanctions motion was filed by Randazza Legal Group, which regularly litigates against Righthaven.

Randazza attorneys participated in the Colorado case in which Righthaven was found to lack standing and the firm’s attorneys represent several defendants in Nevada including Kentucky message board poster Wayne Hoehn.

Since Righthaven’s lawsuit against Hoehn over his unauthorized online posting of an R-J column was dismissed on standing and fair use grounds, Randazza Legal Group has been trying to collect $34,045 in legal fees from Righthaven.

Righthaven has until Friday to pay the fees or post a bond guaranteeing their payment after the 9th U.S. Circuit Court of Appeals refused to block the Randazza collection efforts.

As Randazza Legal Group awaits word on the Hoehn fees or bond and prepares for another likely showdown over fees in its Righthaven cases in Colorado, the firm asked Jones on Tuesday to sanction Mangano by requiring him to pay $11,925 in NewsBlaze’s attorney’s fees that have accumulated since July 14.

July 14 was the day U.S. District Judge Roger Hunt in Las Vegas fined Righthaven $5,000 as a sanction for failing to disclose that Stephens Media LLC, owner of the R-J, shares in Righthaven lawsuit revenue.

Hunt earlier dismissed Righthaven from its suit against the political site the Democratic Underground and said Righthaven had misled the court about its standing to file suits over R-J material.

The Randazza attorneys noted that after Hunt ruled Righthaven lacked standing to sue, three more federal judges in Nevada followed suit with similar dismissals.

Yet, they complained, Righthaven continues to litigate its remaining Nevada cases — causing defendants to have to pay attorneys to fight the suits.

Righthaven, despite the dismissals of its suits by four Nevada judges and the likely dismissal by a fifth judge, Jones, has been hoping its right to sue under an amended lawsuit contract with the R-J will be revived by either U.S. District Judge Gloria Navarro or Judge Larry Hicks.

Neither judge has ruled on Righthaven’s standing to sue under the amended R-J lawsuit contract, called the Strategic Alliance Agreement (SAA). Righthaven says the amended SAA beefs up its ownership claims to copyrights provided by the R-J.

Nevertheless, Randazza attorneys wrote in their sanctions motion Tuesday that, “Righthaven’s scheme has been rejected nationwide.”

“Yet, only days away from Halloween, the defendants in this action continue to bear the costs of litigation establishing Righthaven’s lack of standing,” their filing said.

“Righthaven and its counsel have a duty to dismiss this case, and not to waste the court’s time or the defendant’s time and resources in making the exact same arguments, which have been rejected again, and again, and again and again,” the Randazza filing said.

Randazza attorney J. Malcolm DeVoy IV complained that in the Hoehn case and in another suit against Michael Leon, in which Righthaven was ordered to pay $3,815 in fees, Righthaven “has evinced a reticence to pay.”

He charged that while Righthaven has appealed several adverse rulings, it has yet to file an opening brief in its first appeal that was due Sept. 19.

“This appeal appears to be another stall tactic for Righthaven to deny the defendant in that case, and the First Amendment principles its fair use victory embraces, any finality,” DeVoy’s brief said.

Mangano, however, has said the briefing scheduled in that case — involving defendant Michael Nelson, a Las Vegas real estate agent — was being negotiated by the parties since it started out as a fair use appeal and may be expanded to include the standing issue.

“Months after Righthaven’s lack of standing was determined by the Democratic Underground court and confirmed by at least six other decisions in this district, Righthaven’s counsel still requires defendants to litigate the same precluded issues, either seeking to create inconsistent precedent or punish assertive defendants who do not wish to settle,’’ DeVoy’s filing against Mangano continued. “Whether this strategy was Mangano’s or Righthaven’s (to which Mangano acceded), it is ultimately Righthaven’s counsel who decides what arguments are presented to the court — and must bear the consequences of those actions.”

Mangano, however, today denied any wrongdoing in his representation of Righthaven.

“The motion for sanctions filed by opposing counsel is nothing short of an overzealous and unprofessional attempt by the Randazza law firm to impose financial responsibility for the payment of attorneys’ fees and costs upon Righthaven’s counsel that is neither factually or legally justified,” Mangano said in a statement. “It is quite surprising that a firm that allegedly dedicates a considerable portion of its practice to the advancement of First Amendment rights would resort to the filing of a baseless motion for sanctions in an effort to silence an adversary’s zealous prosecution of claims in litigation.”

“No court in either this judicial district (Nevada) or in the district of Colorado has imposed sanctions upon Righthaven’s counsel for the very simple reason that there has been no bad faith conduct engaged in through the prosecution of numerous copyright infringement cases, which unquestionably involve novel issues of first impression with regard to federal question subject matter jurisdiction,” Mangano said. “Concluding otherwise would serve to undermine the very foundation upon which our adversary system of jurisprudence is based.”

Sanctions motions are nothing new in the Righthaven lawsuits.

Defense attorneys critical of Righthaven regularly point out that Righthaven CEO and Las Vegas attorney Steven Gibson — along with then-Righthaven attorneys J. Charles Coons and Joseph Chu — in August 2010 asked for sanctions against a Righthaven defendant from Texas, Dr. Shezad Malik Law Firm P.C.

Their sanctions motion said the Malik firm should be sanctioned for its “grossly premature and unfounded assertion that Righthaven lacks standing to sue for copyright infringement.”

The Righthaven attorneys at the time charged this claim was “fundamentally frivolous and entirely unsupported by law or fact.”

At the time, several judges had upheld Righthaven’s standing to sue — though they later reversed themselves after reading Righthaven’s lawsuit contract with the R-J leaving the R-J in control of material Righthaven claimed to own.

No sanctions were ordered against Malik and that case settled well before the rulings undermining Righthaven’s right to sue.

Legal

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