Guava and others ordered to show they should not be liable for attorneys’ fees and costs in Comcast suit

Following an order from the Fifth District, St. Clair County Circuit Judge Andrew Gleeson has issued an order requiring parties in a lawsuit involving the alleged hacking of a porn site to explain later this month why they should not be liable to pay compensatory awards.

At issue in the 2012 lawsuit is defendant Comcast’s motion to compel payment of $26,280 for producing the identities of nearly 300 of its subscribers to Guava LLC, an alleged distributor of pornographic films represented by the now-dissolved Prenda Law firm.

 

Comcast also asked Gleeson to order Guava to pay reasonable attorneys’ fees for the company having to bring the motion to compel payment of expenses.

In December 2012, Gleeson ordered Comcast to provide the names, addresses, phone numbers, email addresses and media access control addresses of certain customers who were alleged to have accessed porn sites unlawfully.

“John Doe” subscribers who objected to having their identities turned over had appealed, and last May the Fifth District Appellate Court ordered Gleeson to dismiss Guava’s pre-suit discovery petition.

In its ruling, the Fifth District ordered Gleeson to compel the attendance of those named in the petition to show cause.

The petition named Guava LLC and Lightspeed Media Corp., as well as their officers and directors; Paul Duffy, one of three attorneys believed to be behind Prenda Law; Kevin Hoerner, Prenda Law's legal counsel; Steve Jones, a supposed agent of Lightspeed; and Allan Mooney, an alleged principal of Guava whose signature is listed on the pre-suit discovery petition, even there are claims it was falsified and forged.

The former Chicago firm Prenda Law sued on behalf of Guava.

Attorneys Duffy, John Steele and Paul Hansmeier are believed to be behind Prenda Law. They have been accused by a few judges of "brazen misconduct" and creating shell companies in order to file copyright infringement and computer hacking suits to exploit the court's subpoena powers and extort settlements.

The Fifth District remanded the matter for an evidentiary hearing on a petition for rule to show cause as to why Guava, its attorneys and others should not be held in contempt and sanctioned.

According to the Nov. 18 order, Gleeson required the parties to show cause explaining why they should not be liable to pay attorneys’ fees and costs to Comcast and the John Doe parties. They have 90 days after the order to file their briefs, or until Feb. 17.

He instructed Guava, its attorneys and others to file briefs addressing 10 topics:

-          Whether Guava or its representatives knew or should have known that their allegation that at least one of the IP addresses listed in the petition for discovery before suit was associated with a Comcast subscriber who resided in St. Clair County was fake;

-          Whether the verification of the petition for discovery before suit was forged;

-          Whether the verification was made by “an actual corporate representative” of Guava;

-          Whether Guava is a true limited liability company with standing to institute this action, and, if not, whether its representatives or attorneys had knowledge of this fact;

-          Whether Guava ever intended to make efforts to uncover sufficient facts to form a basis to state a cause of action against the Does or whether its purpose in instituting this action was to “harass or extort the Does without forming a reasonable basis” to believe they were the culpable parties;

-          Whether Guava knew or should have known that its allegation that the ISP subscribers associated with the IP addresses were the persons against whom there was a cause of action was not well-grounded in fact;

-          Whether the attorneys who represented Guava in this action had personal interests in Guava, and whether they intentionally hid such interests from the court;

-          Whether Guava “engaged in sanctionable conduct directed toward those Does” in this case;

-          The “relative culpability of lead and local counsel in relation to any findings of misconduct;” and

-          Whether Guava was the real party in interest in this action.

However, Gleeson reminded the parties that they may seek Fifth Amendment protection, but not without risk.

“Each of the show cause parties is of course free to invoke his Fifth Amendment right to refrain from incriminating himself rather than respond to the required topics denoted in this order, but if he does so, the court may draw negative inferences or find him jointly and severally liable for the payment of the attorneys’ fees and costs at issue,” he wrote.

Gleeson also directed the Doe appellants to “amend their pleadings to conform to the requirements that are commensurate with the type of relief they are requesting for Guava and/or its representatives’ alleged misconduct, and the circuit court shall take care to ensure that the procedure requirements necessary to the proceedings are in place.”

Andrew Toennies of St. Louis represents Comcast.

The John Doe real parties are represented by attorneys Laura Beasley, Erin Russelll, Morgan Pietz and Thomas Leverso.

St. Clair County Circuit Court case number 12-MR-417