Foster Demands RIAA Post $210K Security For Fees

NewYorkCountryLawyer writes "A few days ago it was reported that, in view of the RIAA's one-month delay in paying the $68,685.00 attorneys fee award in Capitol v. Foster, and its lawyers' failure to respond to Ms. Foster's lawyer's email, Ms. Foster filed a motion for entry of judgment so that she could go ahead with judgment enforcement proceedings. In response to that motion the RIAA submitted a statement that it had no objection to entry of judgment, and intimated that it thought there would be an automatic stay on enforcement of the judgment, and that it would ultimately file an appeal. After seeing that, Ms. Foster's lawyer has filed a motion for the Court to require the RIAA to post $210,000 in security to cover the past and future attorneys' fees and costs that are expected to be incurred."

New train of thought

So you can not pay the judgment as long as you might possibly decide to appeal the case?

God, I'd love to see somebody use that tactic against the RIAA. Something tells me it wouldn't work so well the other way around.

Within a reasonable amount of time probably

I mean it isn't like you are going to draft an appeal the very next day, so it shouldn't surprise you that courts will let you hold off paying for a bit if you are going to file. However if she gets the judge to force them to put up a security, that means they can only use it as a delay tactic for so long, because the court will be able to decide it has gone on too long and award her money without them having any say in the matter.

Given that they are fairly stupid in these matters it wouldn't surprise me if they really do try and appeal it, mostly as a delay tactic. It also wouldn't surprise me if the net result is the judgement is upheld, and she gets more money (for the fees incurred during the appeal).

Re:Within a reasonable amount of time probably

Given that they are fairly stupid in these matters it wouldn't surprise me if they really do try and appeal it, mostly as a delay tactic. It also wouldn't surprise me if the net result is the judgement is upheld, and she gets more money (for the fees incurred during the appeal).

Not only wouldn't it surprise me, it seems that that outcome is inevitable. The judge was brutal in cutting down Ms. Foster's fee award. I wouldn't be surprised if the cross-appeal Ms. Foster files wound up increasing the amount of the old award, and no doubt there will be another $100k or so in attorneys fees and disbursements on the appeal.

Re:Within a reasonable amount of time probably

The judge was brutal in cutting down Ms. Foster's fee award.

Forgive me, but I found the Judge's analysis of the appropriate attorney's fees to be awarded to be extremely well-reasoned and thorough. Obviously, Ms. Foster's attorneys are likely to disagree, but the Judge's opinion speaks for itself: http://www.ilrweb.com/viewILRPDFfull.asp?filename= capitol_foster_070716OrderAwardAttysFees [ilrweb.com].

I suggest most people taking the time to read the 16 page order will be convinced that, regardless of whether the Judge reached the precisely "correct" dollar amount, he certainly gave it due consideration.

One thing I found particularly interesting was that the fee agreement between Ms. Foster and her attorneys called for a rate of $175 per hour. The requested reimbursement was for $225 per hour. While a fee arrangement is not binding, it is certainly instructive to the court as to the actual cost to Ms. Foster. Much of the reduction from $100k to $68k was from this one change.

Similarly, the Judge refused to allow Ms. Foster's attorneys to bill $80 per hour for work by a paralegal. It seems perfectly reasonable to me not to include these costs. Basically, the Judge went through each bill and evaluated its reasonableness. Exactly my managing partner does to me each month and more importantly, exactly what the law requires in copyright cases.

Re:I understand your 1st point, but not your 2nd

Why shouldn't the paralegal's fees be included? Who should pay for that work to be done? If you're saying it's too expensive, I have no knowledge with which to disagree. But if you're saying it shouldn't be included at all, I'd have to disagree. Someone has to pay for the paralegal's work - why should it be Ms. Foster or the firm?

Happy to clarify. First, $80 per hour is a high billing rate for most paralegals. But it depends on the type of work involved. Highly technical and skilled paralegals, working in a complicated area of law they are skilled in, can easily command this type of rate. But as the Judge's opinion clarifies, this was not a person with any particular specialized knowledge of copyright. Thus he found the hourly rate was too high. Second, the Judge goes through and discusses the specific tasks performed by the paralegal. He finds that many of the tasks were no not "legal" in nature and thus could not be reasonably billed at legal rates. For example, on more than one evening I have stood at the copier preparing documents for a meeting. I can't (ethically) bill the client for my non-legal time (especially when it was just because my lazy ass didn't feel like getting get the docs prepared in time for the secretarial pool to take care of it). Essentially, I am for that period of time a secretary and should bill like one.

In short: It is perfectly normal and accepted to bill for paralegal time. But in this particular case, the Judge made a rather detailed finding that these specific bills were excessive.

Re:Within a reasonable amount of time probably

The thing is, that's chump change to the RIAA. It's probably easily worth it to them to risk the $$ for the slightest chance they will prevail in appeals court.

mmmm... now multiply it by the number of court cases they have outstanding. And the number they intend to bring in the future.

A precedent like could get expensive very quickly, even by recording industry standards.

Re:

Sweet! New way to get out of speeding tickets... or not.

What you can see me telling a judge that I didnt pay it because I was thinking about appealing it?

Re:

I'm not familiar with the dates/timeline here, but in most if not all jurisdictions -- and definitely in federal court -- you have only 30 days from the entry of an order or judgment to file a notice of appeal (Fed. R. App. P. 4(a)). The order [ilrweb.com] was apparen

Re:New train of thought

I'm not familiar with the dates/timeline here, but in most if not all jurisdictions -- and definitely in federal court -- you have only 30 days from the entry of an order or judgment to file a notice of appeal (Fed. R. App. P. 4(a)). The order [ilrweb.com] was apparently filed on July 16. Today is August 16, which is the 31st day. BUT Foster is just now asking the court to enter judgment for this amount, which means that Capitol will probably have 30 days from the day that judgment is entered.

Issue isn't time to appeal. It's time to avoid paying the judgment. Appeal doesn't stay obligation to pay the judgment. For that you have to post security.

Re:

"God, I'd love to see somebody use that tactic against the RIAA. Something tells me it wouldn't work so well the other way around."

I don't know about that, surely if they get away with this they have set a legal precedent that could be used from the other

Re:New train of thought

This is all standard stuff. Enforcement of judgments are not automatically stayed during the pendency of an appeal. If you want enforcement stayed, you have to post a bond called either an "appeal bond" or a "supersedas bond". The amount of the bond varies from one jurisdiction to another but it's usually set by court rule as the amount of the judgment plus interest and costs. The trial judge entering the judgment has discretion to vary this amount in some jurisdictions. Here, the judgment holder apparently wants the trial court to require more than usual amount.

No appeal has been filed yet because no judgment has been entered. In response to the motion for entry of judgment, the RIAA stated it did not object but that it would be filing an appeal upon entry of judgment which prompted the other party's motion for the large appeal bond.

This is S.O.P.

So you can not pay the judgment as long as you might possibly decide to appeal the case?

IANAL, but I hire them a lot to defend schools. Yes, this is pretty much SOP. Leaving aside that the RIAA are bottom feeding slime suckers, what they are doing is pretty standard. Winning side is awarded costs. Loser does not pay while deciding whether or not to appeal. One standard gambit is to trade a waiver of costs for no appeal. It is also standard for the winner, Foster, to demand and get an escrow of costs during appeal, as he is doing here. Appeals can be tricky, because you can generally only appeal on the law, not on the facts that have been decided at trial. This kind of thing tends to drag out a long time.

So Mr. Beckerman and Mr. Rogers...

...how does it feel to be the most-liked lawyers in the world? Now all you have to do is kick Jack Thompson's ass and you're surely starting the lawyer hall of fame or get the Nobel Sticking-It-To-The-Man prize.

Re:So Mr. Beckerman and Mr. Rogers...

So Mr. Beckerman and Mr. Rogers......how does it feel to be the most-liked lawyers in the world? Now all you have to do is kick Jack Thompson's ass and you're surely starting the lawyer hall of fame or get the Nobel Sticking-It-To-The-Man prize.

Well I don't know about the rest of it, and I can't speak for Mr. Rogers, but that "Nobel Sticking-It-To-The-Man prize" would be nice.

Re:So Mr. Beckerman and Mr. Rogers...

Let me clarify.
1. I don't represent Ms. Foster; her lawyer is Marilyn Barringer-Thomson of Oklahoma City.
2. If I were her lawyer I probably could not answer the question anyway, since it is confidential information the RIAA would just love to have.
3. As a general proposition, it would be legally irrelevant how much of the bill was paid and how much unpaid.
4. If I had to guess, my guess would be that Ms. Foster is a poor hardworking person without much dough and she has probably paid only a very small portion of the bill.

Re:So Mr. Beckerman and Mr. Rogers...

My apologies to all, but when I think of "Lawyer", even "good" ones, I keep remembering this quote from Rustler's Rhapsody:

Rex O'Herlihan: "You're not a good guy at all!"
Bob Barber: "I'm a lawyer, you idiot!"

Not the least bit surprising ...

With the RIAA, even if you win, you lose. Not only do they fail to pay their content creators reasonable amounts of money for their intellectual property, but they laugh in the face of the American judicial system by throwing a fit when they have to pay out a relatively small amount of money to someone for a frivolous law suit.

Re:Not the least bit surprising ...

Of course, by going the appeal route, they stand to have to pay out more money. And if their appeal is denied, there will then be a storm on the horizon for them, for this case has become very high profile now and if word gets out to the general populace that they are vulnerable, the wolves will surely show up at the door. So what seems like a pittance now will grow with each new case they lose and try to appeal. It will only take two or three more cases like this I think before the tide begins to turn against them. I made a joke yesterday about them having to borrow money from SCO, but given the scope of what they are trying to do and the number of people they are trying to do it to, they could find themselves in deeper than they wished.

Re:Not the least bit surprising ...

Of course, by going the appeal route, they stand to have to pay out more money. And if their appeal is denied, there will then be a storm on the horizon for them, for this case has become very high profile now and if word gets out to the general populace that they are vulnerable, the wolves will surely show up at the door. So what seems like a pittance now will grow with each new case they lose and try to appeal. It will only take two or three more cases like this I think before the tide begins to turn against them. I made a joke yesterday about them having to borrow money from SCO, but given the scope of what they are trying to do and the number of people they are trying to do it to, they could find themselves in deeper than they wished

Well spoken.

*waits for his Interesting* :^)

live by the sword, die by the sword

or rather, live by the conbination financial/legal power play, die by the combination financial/legal power play

bleed the RIAA dry folks. given the opportunity, they'd do the same to you

When in a hole

keep digging?

Surely it would be better for the RIAA to just pay up and stop all the publicity about the case. Of course, that probably wouldn't be the best for its lawyers, which suggests where the real balance of power lies.

Re:When in a hole

When in a hole...keep digging?
Surely it would be better for the RIAA to just pay up and stop all the publicity about the case. Of course, that probably wouldn't be the best for its lawyers, which suggests where the real balance of power lies.

I wonder when the record companies' shareholders are going to come to that realization. They seem a little slow.

Re:When in a hole

Capitol records is owned by EMI. EMI is - or was - publicly traded. The last news is this: Terra Firma seals takeover of EMI [independent.co.uk] (for 2.4 billion pounds).

Terra Firma is a private equity firm; they specialize in buying out companies, restructuring them and fixing management issues, and taking profit from the restructuring.

So, the NEW owners haven't yet had time to do much. Whether they will change or not remains to be seen - they've only had a couple of weeks on their hands...

Eivind.

Re:When in a hole

Surely it would be better for the RIAA to just pay up and stop all the publicity about the case.

While it's certainly an issue on slashdot, I would say the average person on the street doesn't know (or likely care) because there's not a huge amount of mainstream publicity. From talking to the people at the RIAA, they don't seem to care about the perception. My perception of their perception is that they believe the people who are against them don't understand the problem.

And, as a side note, the "RIAA" is essentially a group of lawyers. There's no issue about where the power lies because they were created to lobby and to sue.

Re:When in a hole

Surely it would be better for the RIAA to just pay up and stop all the publicity about the case.

While it's certainly an issue on slashdot, I would say the average person on the street doesn't know (or likely care) because there's not a huge amount of mainstream publicity.

That hasn't been my impression; it seems to me that almost everybody I've met knows about Big Music's lawsuits against single moms, kids, grandparents, and dead people.

So how is it..

How come they don't enforce judgments against large corporations in the US?

Surely the fact that the RIAA has to pay is not at question as a court of law has already determined they should, so forcing them to pay is not a matter for needing another judgement, just enforcement.

why should the defendant have to appeal for another judgement after the RIAA didn't pay, and why do the RIAA now have an opportunity to back out of an already decided case?

Re:So how is it..

RIAA will eventually pay if the judgment holds up on appeal. This enforcement of judgment business is typical and doesn't mean a huge corporation is being favored. The RIAA is claiming that it is planning to appeal and will not pay until after it has exhausted its appeals. In response, the defendant (or the Good Guy) wants RIAA to post a bond not only for the amount of the judgment but also for the expected costs of a failed appeal. They'll probably get interest and stuff, too, if the judgment is affirmed on appeal. This is both pretty standard procedure, except RIAA forgot to inform the Court of its intentions.

I think I've changed my mind

As a matter of principle I pay for music. I've spent thousands of dollars over the years and that was OK with me. This was mostly to support the artists, but also because I make my money in a similar fashion.

Now I think I should stop. I like the convenience of iTunes, so this might be difficult. But an organization like the RIAA is wholly without merit and needs to opposed; even though for me it means changing my principles.

What about the artist's cut? I could take the easy way out and figure that it was small anyway and they were mostly getting screwed, but I think that's a facile argument. I'll simply adopt the viewpoint that you get involved with cretins like the RIAA at your own risk and by so doing I'll have no qualms stealing from you.

Re:I think I've changed my mind

My advice: download the music from p2p, and if you like it, just send the musicians fifteen bucks worth of drugs. Cut out the middlemen, so to speak.

Re:I think I've changed my mind

Yea, but that can get so complicated...you never know what type of drugs people want. The only surefire solution is to only listen to electronica and send the artists ecstasy. Of course most of those guys aren't on a label anyway. You could always listen to country and send them gallons of cheap whiskey and beer, but the shipping will eat you alive.

Re:

What about the artist's cut?

This has been my qualm for years. The RIAA is so entangled in the artist they "support" that listening to music in any legal way means that some money has been funneled to them. The only ways that I can think of that let you

How about

If you like music, hate the RIAA, and want to support the artists, instead of going "pirate", go here [emusic.com].

Re:

Nice rationalization, but it doesn't speak well for strength of character.

Being principled when it's easy means little. Being princpled when it takes sacrifice is the only measure of ethics. If you've come to the point that you can't support the RIAA in

boycott time......

...don't think about it, just do it.

Way ahead of you

I haven't bought (any) music in years! Yarrrr.

Law School 101

Enough with the outrage people. Welcome to Law School 101. For your first class in civil procedure, we will discuss entry of judgment. Here are the basic steps common to almost all legal proceedings (simplified):

1. Sue someone.

2. Have a trial / reach settlement.

3. Reach a verdict.

4. Judge enters judgment. Note: This is not a "final" judgment. Judgment only becomes final after the period for appeal has ended.

5. Losing party has right to appeal or it may simply pay.

6. Appeal is processed and after all appellate rights have been "exhausted", FINAL judgment is entered.

7. Winning party seeks formal entry of judgment in a separate proceeding (usually called "enrolling" the judgment, although that term varies by jurisdiction).

7. ???

8. Collect judgment.

9. Profit.

In short, I know RIAA are a bunch of scum-sucking *ahem* lawyers, but this whole case is premised on a serious misunderstanding of how the legal system works. Any one of us could go through the same process and draw out any case to the same degree. Most reasonable parties settleup after the initial entry of judgment, but there is certainly no requirement that a party forego its legal rights just to be "nice."

In fact, it somewhat makes sense that things work this way. Put aside your dislike for RIAA for a second. Assume that a losing party justifiably feels that it was wronged by the Judge's decision and wishes to appeal. Does it make sense that they should be required to pay the judgment before the decision has been reviewed by a higher court? In order to protect against the danger of default, it is common to request that the losing party be required to post security in an escrow account during the pendancy of the appeal.

In short: I admire the marketing arm of this particular law firm, but really, nothing to see here.

Re:Law School 101

There is a law against frivolous appeals, and an appeal from this judgment would be frivolous. If anyone has grounds to appeal it would be Ms. Foster, who was awarded only $68,685 even though the attorneys fees and sdisbursements were around $114,000.

Re:Law School 101

There is a law against frivolous appeals, and an appeal from this judgment would be frivolous.

First, of course the other side's appeal is frivolous! Have you ever heard opposing counsel say anything other than that? They teach that in remedial lawyering! I would expect to hear nothing else from an attorney vigorously pursuing her case.

Second, if Ms. Foster and her attorneys believe that an appeal is her best interest, she has every right to pursue such an appeal.

Third, you are correct that there is a law against frivolous appeals. If an unbiased court finds that an appeal is truly frivolous (and that's a pretty high burden) the court may again order attorney's fees, sanction the attorneys involved, or even report them to the state bar for disciplinary action.

Remember, frivolous =/= stupid or dumb or unlikely to succeed. Appealing a judgment in favor of the other side is rarely going to be considered frivolous under the legal standard.

For the record: Rule 11 of the Federal Rules of Civil Procedure:

(b) Representations to Court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,

(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

(c) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.

(1) How Initiated.

(A) By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as provided in Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.

(B) On Court's Initiative. On its own initiative, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) with respect thereto.

(2) Nature of Sanction; Limitations. A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a pena

Re:Law School 101

Yes, the higher up they lose, the better the precedent will be for us. For all the other RIAA victims, the best possible scenario would be for this to go up to the Supreme Court.

Just Pay Them

  Gifts are easy to make. We all pay bills to all kinds of companies every month. Get out your stinkin' checkbook or whatnot and simply send the your favorite artists some money directly.

  Please, skip buying their music from this insane system. Trade, beg, borrow or steal it, but donate to the artists you like. Send them the $10 for the album. Remove the guilt, feed your inner pirate, and get some new tunes. There are actually a lot of great bands out there, and plenty of ways to find them. And they would make much more from this than from wait for royalty checks from the AA

It Will Be A Huge News Day...

It will be a huge news day when the RIAA actually coughs up a penny to any defendant. I expect years of delays, appeals, legal wranglings, and outright ignoring court orders before the RIAA cuts a check to anyone, no matter now deserving. And they'll probably try to conceal it with a confidentiality agreement when it happens!

Why would anyone who won ever agree to such an agreement? The RIAA says, we'll pay you now if you sign the agreement, or we'll wait and see if you die before this overcomes all the tricks our lawyers can play on you first. Would you sign to get the money you're entitled to under such circumstances?

Re:In Other Words

For the most part they have been party to the crafting of the law, so it is no wonder that they believe themselves to be above the law. That said, they do not care about paltry things like right or wrong, they wish only to protect their interests and as such a protracted law suit in the long term does them little harm.

Re:In Other Words

This sounds like the same thing I recently read about in the Spamhaus FAQ. They mention they always invoke "Security for Costs" [dca.gov.uk], which is apparently some U.K. privilege in civil trials, since you can never trust spammers to ever pay up after losing their frivolous lawsuits. It sounds like this type of thing is badly needed, if it isn't already available, to people defending themselves in U.S. courts against underhanded organizations like the RIAA.

Re:In Other Words

The essence of security for costs is loser-pays.

In the UK (and a large part of the world), the loser in a court case pays any reasonable costs of the winner. This discourages any frivolous suits (since instead of just standing to win 1/3rd of the award the plaintiff lawyers stand to lose the opponent's costs as well as their own). It also encourages lawyers to take strong cases on contingency, since their costs are likely to be covered (in addition to any cuts of the award itself) - even if the final award is small. And, it encourages wronged parties to not just settle against their consciences just to avoid running up a huge legal bill.

If you're a UK citizen you just need to go into court and the costs are settled after the fact. The logic is that if you don't pay up they know where you live.

However, if you're not located in the EU then you're required to post security before being able to sue - in the amount of any likely award for costs. The logic is that if you lost you could just refuse to pay, and the British courts don't have easy access to you. If you've paid security, on the other hand, they don't need access to you.

Many have aruged for a loser-pays system in the US. It arguably has its own downsides, but it would be likely to greatly reduce them number of cases in the courts as plaintiffs could no longer just file a suit and hope for a small settlement so that the defendant doesn't have to pay legal costs.

Re:

In other words, RIAA has declared that it has no intention whatsoever of paying the money. Instead, they intend to continue a farsical court battle with no prospects of winning, no end in sight... merely for the publicity of being seen as being above the l

Re:In Other Words

I don't know that they want this publicity for being "above the law". If enough people see them as "above the law", then people might actually get pissed off enough to do something to change the laws.

I doubt the issue is really about the money, either. They probably just don't want to admit defeat, since it would encourage others to fight them in court.

Re:In Other Words

In other words, RIAA has declared that it has no intention whatsoever of paying the money. Instead, they intend to continue a farsical court battle with no prospects of winning, no end in sight... merely for the publicity of being seen as being above the law.

And while I know it would never happen, cases like this, where the plaintiff lost and had counterclaims entered against and lost to the original defendant, yet refuses to pay up, should not be allowed to begin other cases of similar nature (same claims against other defendant(s)) until they either pay up or file appeal or make some motion on the case rather than just delay it. As it is, they seem to be merrily going about their business of launching hundreds/thousands of lawsuits, and still doing so in ways advised and ruled against by the courts (ie: multiple individual john doe cases instead of class-action or bulk filing, ex-parte against students, etc). If they cant be held to honor judgments held against them, or even honor the courts' previous rulings, why should anyone else honor judgments made in their favor? At the least, awards found in their favor should be suspended until they pay up or prove they shouldnt be paying rather than just sitting around wasting the time of the people and the courts as they seem to be doing now.

Asbestos suit is on, and expecting flames of why this is a bad idea...

Tm

Re:Email?

IANAL, but I read the previous topic (posted...yesterday?), and it appears, according to NYCL, that email is the primary tool of communication between plaintiff and defendant lawyers in these cases.