In Complaint filed Monday, South Carolina-based attorneys
representing Dana Eiser and the Lowcountry 9/12 Project allege that Righthaven & Company is engaging in Unfair Trade Practices in South Carolina, as well as: Defamation, Breach of the Duty of Good Faith and Fair Dealing, Breach of the Duty of Good Faith and Fair Dealing Accompanied by a Fraudulent Act, Tortious Interference, and Civil Conspiracy. Defendants named in the complaint:
Righthaven LLC; SI Content Monitor LLC; Net Sortie Systems, LLC; Steve Gibson; Shawn Mangano; Steven Ganim; Anne Pieroni; John Charles Coons; Joseph Chu; Ikenna-Phillip Odunze; Edward Fenno; Fenno Law Firm, LLC; The Denver Post, LLC; MediaNews Group Inc.; Stephens Media LLC; Mark Hinueber; Sherman Frederick; and one or more John Does.
See:
Eiser v. Righthaven LLC Civil - Unfair Trade Practices Complaint
According to the Complaint, the case seeks to establish that, "Righthaven is a business now operating in South Carolina whose business model— barratry—is barred by state law and constitutes an unfair trade practice. Barratry is a crime in South Carolina and therefore violates the public policy of this state. Because Righthaven’s sole enterprise violates public policy, it is an unfair trade practice."
The Complaint names and describes each of the defendants (see bottom of this post) then launches into Veil Piercing (Page 6). "Plaintiffs seek to pierce the veil against Righthaven LLC and, by extension, SI Content Monitor LLC and Net Sortie Systems, LLC, and impose
personal liability on the owners of those entities. Upon information and belief, these entities are grossly undercapitalized..."
In the Second Cause of Action, Unfair Trade Practices (Page 11), they point out when and likley why Righthaven began focusing on outside council to prosecute cases instead of using in-house council:
81. Plaintiffs submit that it is no coincidence that just as Righthaven realized it would almost certainly be barred from attorney’s fee awards due to all of its lawyers being in-house counsel, Righthaven began focusing on outside counsel to prosecute matters.
82. Upon information and belief, the Fenno Defendants were hired to prosecute the Righthaven v. Eiser mere days or weeks after the filing of the EFF brief.
83. Upon information and belief, Righthaven has not hired a single in-house attorney since the EFF brief was filed in Righthaven v. DiBiase.
In the Third Cause of Action, Defamation (Page 16), they cite Steve Gibson's interview with CNN and Fortune Magazine published in January where Gibson refers to Righthaven defendants as "the infringement community" that "was caught ... not obeying the law" and is "a community of thieves":
102. No privilege attached to the making of the statements. While the statements referenced defendants to a lawsuit (persons Righthaven had “caught”), they were not made in connection with any sort of judicial or legal process, i.e. in open court or in a pleading or settlement demand, etc.
103. Gibson is at fault for the publication.
104. The statements involve claims of copyright infringement, breaking the law, and thievery and are therefore actionable irrespective of special harm.
In the Fifth Cause of Action, Breach of the Duty of Good Faith and Fair Dealing Accompanied by a Fraudulent Act (Page 20), they call out an interesting Trojan horse allegedly planted by the Denver Post Defendants for the purposes of identifying and tracking persons for prosecution:
127. The Denver Post Defendants used software to surreptitiously insert a code on material copied and pasted from The Denver Post website.
128. For example, when an agent of the Lowcountry 9/12 Group copied the Rosen Letter from The Denver Post and pasted it, the following text was inserted automatically
by The Denver Post’s software: “Read more: Rosen: A letter to the Tea Partyers – The Denver Post http://www.denverpost.com/opinion/ci_16147229#ixzz10NYc7ACn”.
129. The first portion, i.e. “Read more: Rosen: A letter to the Tea Partyers – The Denver Post,” indicates to a reasonable person that The Denver Post is aware the text has been copied and pasted and simply wishes to insert a link back to the article on The Denver Post’s website.
130. Not so. In fact, upon information and belief, that text is inserted merely as a Trojan horse. The real reason for the text is so that it can insert the characters appearing after the pound sign, ixzz10NYc7ACn. This is a unique per-customer code generated to allow The Denver Post to associate a particular pasted copy with a specific customer’s IP address for the purpose of identifying defendants for prosecution—and persecution—by Righthaven.
They later note, "The Denver Post’s software could easily be configured to insert 'Notice: You are violating The Denver Post’s copyright.' Instead, the software tricks unknowing users into believing they have done nothing wrong while simultaneously helping Righthaven sue them later."
As was stated in a recent email to us, "This is an entirely new lawsuit suit brought against Righthaven in South Carolina state court. WOW!" This Complaint is excellent news for all existing and potential future Righthaven victims. It will take some time, however, to more deeply digest.
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Defendants Named in Complaint
- Defendant Righthaven LLC is a Nevada limited liability company.
- Defendant SI Content Monitor LLC is an Arkansas limited liability company. SIContent Monitor is a member of Righthaven and has a direct, pecuniary interest in theoutcome of Righthaven litigation. See Certificate of Interested Parties filed byRighthaven in Righthaven v. Brommell, No. 2:11-cv-724-RLH-RJJ (D.Nev.). SI ContentMonitor is owned by persons associated with the Stephens family, the namesake ofStephens Media LLC.
- Defendant Net Sortie Systems, LLC is a Nevada limited liability company. NetSortie Systems, LLC is a member of Righthaven and has a direct, pecuniary interest inthe outcome of Righthaven litigation. Id. Net Sortie Systems, LLC is owned and managedby Defendant Steven Gibson.
- Together, Defendants SI Content Monitor LLC and Net Sortie Systems, LLC own100% of Righthaven.
- Defendant Steve Gibson is a Nevada resident and attorney. Gibson is the CEO and manager of Righthaven. Gibson has worked on Righthaven v. Eiser.
- Defendant Shawn Mangano is a Nevada resident and attorney. Manganofrequently represents Righthaven and has provided notice of intent to seek pro hac vice admission to South Carolina District Court so as to prosecute Righthaven v. Eiser.
- Defendant Steven Ganim is a Nevada resident and a Florida attorney. Ganim is anemployee of Righthaven. Ganim has worked on Righthaven v. Eiser.
- Defendant Anne Pieroni is a Nevada resident and attorney. Pieroni is a formeremployee of Righthaven. Pieroni has worked on Righthaven v. Eiser.
- Defendant John Charles Coons is a Nevada resident and attorney. Coons is aformer employee of Righthaven.
- Defendant Joseph Chu is a Nevada resident and attorney. Chu is a formeremployee of Righthaven.
- Defendant Ikenna-Phillip Odonze is a Nevada resident and attorney. Odonze is aformer employee of Righthaven. Odonze has worked on Righthaven v. Eiser.
- Defendant Edward Fenno is a South Carolina attorney residing in CharlestonCounty. Defendant Fenno is the owner and manager of Defendant Fenno Law Firm, LLC.
- Defendant Fenno Law Firm, LLC is a South Carolina limited liability companywhose principle place of business is in Charleston County. Fenno and his firmrepresented Righthaven in Righthaven v. Eiser until withdrawing on May 18, 2011.
- Defendant The Denver Post, LLC is a Colorado limited liability company.
- Defendant MediaNews Group Inc. is a Colorado for-profit corporation.
- Defendants The Denver Post, LLC and MediaNews Group Inc. operate TheDenver Post newspaper in Denver, Colorado and will be referred to as “The Denver PostDefendants.”
- Defendant Stephens Media LLC operates the Las Vegas Review-Journalnewspaper in Las Vegas, Nevada.
- Defendant Mark Hinueber is a Nevada resident and attorney. Hinueber is VicePresident and General Counsel of Stephens Media LLC.
- Defendant Sherman Frederick was at times relevant to this action a CEO andcolumnist for Defendant Stephens Media LLC. Defendant Frederick is no longer CEObut remains employed as a consultant and columnist for Defendant Stephens Media LLC.
- One or more John Doe Defendants are included in this action whose identities arenot presently known to Plaintiffs. This category includes but is not necessarily limited topersons directly associated with the Righthaven scheme and persons with management responsibilities over Righthaven associates. Plaintiffs will seek leave to amend the Complaint in this action as the identities of such individuals come to light.
Attorneys for Plaintiff: Todd Kincannon of The Kincannon Firm, Thad Viers of Coastal Law LLC and Bill Conner of Horger and Connor LLC.
