Righthaven misses more deadlines, faces new contempt motion
28 February 2012
In what has become its trademark style, Las Vegas company Righthaven LLC is tardy again filing key court documents, and now it may face more penalties.
For reasons that haven’t been disclosed, Righthaven missed a Feb. 22 deadline to file its opening brief with the 10th U.S. Circuit Court of Appeals in Denver in the case of Leland Wolf and his It Makes Sense Blog.
Righthaven, which filed 275 no-warning copyright infringement lawsuits on behalf of newspapers in 2010 and 2011, had sued Wolf over a Denver Post TSA pat-down photo that was allegedly posted on Wolf’s website without authorization.
A federal judge threw out the lawsuit, finding Righthaven had no standing to sue Wolf since the Post maintained control of the photo.
That was the fate of many other Righthaven lawsuits in Nevada and South Carolina, with another group of its lawsuits dismissed on fair-use grounds. These court setbacks have driven Righthaven to near extinction, though it occasionally files a court brief or sends outside attorneys to hearings.
After its setback in the Wolf case, Righthaven filed a high-stakes appeal that it hoped would result in the reinstatement of its right to again sue not just Wolf but 33 other bloggers and websites that had used the Denver Post photo.
Of the 33 websites at issue besides Wolf’s, the Las Vegas company dismissed its suits against 27 of them without prejudice after the Wolf ruling in October — meaning they could be refiled — and cases remain open against the other six defendants.
But now, inexplicably, Righthaven missed the first deadline in its own appeal. The 10th Circuit court clerk has now given Righthaven until March 5 to file the brief and is threatening to dismiss the appeal if the document isn’t filed by then.
That wouldn’t be shocking for Righthaven, which similarly saw another appeal thrown out by the 9th U.S. Circuit Court of Appeals in San Francisco on Dec. 28 when it missed a procedural deadline in a case involving British citizen Garry Newman and a lawsuit over a Las Vegas Review-Journal story involving the Vdara hotel “death ray.”
Besides these problems, attorneys for Righthaven defendant Thomas DiBiase on Monday brought something interesting to the attention of U.S. District Judge Roger Hunt in Las Vegas: That Righthaven apparently never paid the $5,000 fine imposed by Hunt in June after Hunt ruled Righthaven had been misleading the court about its lawsuits.
The charge that Righthaven had failed to pay the $5,000 was made by Kurt Opsahl, an attorney at the San Francisco-based digital freedom group the Electronic Frontier Foundation (EFF), who has been reviewing Righthaven bank records in the EFF’s effort to collect $119,488 in fees it was awarded in October for successfully defending the former federal prosecutor DiBiase against a Righthaven lawsuit.
Opsahl said in a court declaration Monday that in the DiBiase case, Righthaven has failed to produce certain information about its financial situation as ordered by the court and that this is part of a pattern suggesting Righthaven should be found in contempt of court.
Opsahl further charged Monday that Righthaven CEO and co-owner Steven Gibson, a Las Vegas attorney, should be held personally liable for any sanctions the court may impose for Righthaven’s foot-dragging.
“A sanction payable only by Righthaven would not be an effective form of coercion,” Opsahl wrote in his court filing. “Righthaven already owes Mr. DiBiase over $120,000, but has refused to pay a single penny. Righthaven has already been sanctioned $5,000 by Judge Roger Hunt. As with this court’s other judgments and orders, Righthaven ignored Judge Hunt’s sanctions order.”
Opsahl wrote in his declaration that his review of the Righthaven bank statement shows it had more than enough money on Aug. 11 to pay the $5,000 sanction — but instead made a $4,475 payment to an entity called Stephens Investments Holdings.
Stephens Investments is believed to be affiliated with Arkansas investment banking billionaire Warren Stephens, whose family owns the Las Vegas Review-Journal and half of Righthaven.
Hunt is the judge in both the DiBiase case and in a separate case in which he issued the fine against Righthaven.
A request for comment was placed with Righthaven on assertions it could have paid the $5,000 fine but failed to do so.
Separately, in another Righthaven case over a Review-Journal column, U.S. District Judge Philip Pro last week reduced from $63,720 to $34,045 the amount Righthaven must pay to cover the legal fees of defendant Wayne Hoehn, who also defeated Righthaven in court.
Granting a request by Righthaven to reduce its financial obligation in the case, Pro apparently felt a court clerk shouldn’t have tacked on extra accrued interest, costs and fees to the $34,045 Pro had awarded Hoehn.
That victory for Righthaven may be short-lived as Pro also ordered Righthaven to appear in court next week to answer a motion by Hoehn’s attorneys that he issue a “Writ of Body Attachment” requiring U.S. Marshals to haul Gibson to court so he can be forced to sign over Righthaven’s copyrights so they can be auctioned.
A receiver appointed by Pro to collect and auction Righthaven’s assets for the benefit of creditors reported to Pro last week that after she seized and auctioned the company’s website for $3,300, Righthaven has failed to transfer to her its 278 federal copyright registrations to newspaper material and other material and has not provided her with its trademarks.
Righthaven has complained the “Writ of Body Attachment” request by Hoehn’s attorneys at Randazza Legal Group in Las Vegas is part of Randazza’s “scorched-earth” efforts to collect on Hoehn’s judgment.
The current amount of judgments pending against Righthaven — $186,680 after the Hoehn adjustment — is likely to grow if other defendants that defeated Righthaven like the Democratic Underground and Dana Eiser win their fees.
With Righthaven claiming to have no cash and apparently operating only by using capital contributions from its investors to pay its outside attorneys, it appears Righthaven’s creditors stand little chance of collecting unless they can pierce the corporate veil and go after Gibson personally as well as his co-investor in Righthaven, the Stephens family of Arkansas.
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