“A very unusual case, this.” – Judge Posner

Ct: Mr. Hart, you are representing yourself and claiming Amazon sold counterfeit copies of your 2 self-published books written about your experiences as a homeless man? And they damaged you to the tune of millions of dollars, and you would have been able to “end homelessness” if they had been legitimate copies?
Mr. Hart: Yes.
Ct: How do you know?
Mr. Hart: My cousin ordered a copy, and I saw it did not have my fingernail indentations on the cover. That’s how mark my copies, so I know his copy was counterfeit. Look, here’s two indistinguishable pictures to help you distinguish the counterfeit.
Ct: Amazon has offered evidence that shows they had no books. According to them, they helped third party vendors sell a total of 6 copies, none of which Amazon ever directly touched. It seems likely to the court that the third party venders had copies you sent them, rather than that Amazon itself undertook the significant expense to duplicate and print hard copy counterfeits of your books. Based on that, your implausible valuation of damages, and your unfortunately indistinguishable method of identifying the “counterfeits”, your case is below the threshold of plausibility. Dismissed.

The post heading is the opening line by Judge Posner. I like Judge Posner.

Bankruptcy Court Boots Man who Formed His Own Jury to Overturn a Judgment

Sovereign Citizens are kind of like watching a clip from America’s Funniest Home Videos: entertaining as long as it doesn’t involve you directly.
After losing two civil and one criminal lawsuit in state court, one such Citizen decided to avail himself of the protection of the Federal Bankruptcy court in South Dakota. If you have any familiarity with the typical court behavior of sovereign citizens, you can predict the results. He picked and chose the rules he liked, ignoring the ones that did not serve his purpose. His chapter 13 bankruptcy was kicked out: he filed a new one, and that case was kicked out as well. Here are some excerpts.

After the Debtor’s attempts to challenge the judgments in the state courts proved unsuccessful, he convened a group of individuals which he refers to as “the Peoples Seventh Amendment Jury.” The “jury” purported to void the judgments against the Debtor as being fraudulently obtained and also assessed punitive damages against the parties involved in the alleged fraud. In 2013, the Debtor filed the Peoples Seventh Amendment Jury’s judgment and other documents containing the heading of “Our One Supreme Court” in the South Dakota state court. The filing of these documents resulted in the Debtor being convicted of the crime of accusing a state court judge of treason and threatening the judge with death. That conviction was affirmed by the South Dakota Supreme Court. …
In addition to the arguments which had previously been rejected by the courts, he also now asserts that ConAgra and the political and judicial leaders of South Dakota have conspired to destroy his livelihood as an organic farmer and take over the food industry.

The court found that Mr. Paulson’s opposition to the dismissal of his second bankruptcy case was both untimely, and meritless. Paulson v. McDermott, No. 16-6018 (8th Cir. 2016) http://law.justia.com/cases/federal/appellate-courts/ca8/16-6018/16-6018-2016-11-17.html

Don’t Lie to the Bankruptcy Court.

Paul Hansmeier was a wealthy, but unscrupulous, attorney.  5 years ago, he was making hundreds of thousands of dollars “porn trolling,” i.e. getting courts to issue broad John Doe subpoenas to internet service providers for users suspected of downloading copyrighted pornography.  Subpoena requests are routinely granted without evidentiary hearings.  Paul would then send threatening letters to pressure the thousands of suspected users to settle by paying hundreds or thousands of dollars or risk “public exposure” in litigation, when he had no actual proof that the users were the actual downloaders. When the courts found out he was abusing the subpoena process, they sanctioned him repeatedly, totaling $576,000 as of 2014.  Paul dissolved that firm and moved on to filing ADA (Americans with Disabilities Act) claims against small, family-owned businesses with non-compliance issues such as improper signage or doors with round knobs instead of levers.  Most small businesses would settle (or authorize their insurer to do so) rather that engage in a protracted federal case. Business was lucrative, but the pesky 1/2 million dollars worth of sanctions kept following him.

With multiple courts coming after him to collect the sanctions he had been ordered to pay, Paul decided to file a chapter 13 bankruptcy.  Perhaps not coincidentally, he did so immediately before he was to turn over significant financial disclosure in response to a judge’s request. Paul made just over $10,000 worth of payments to the bankruptcy court over a 4 month period before things fell apart. The trustee found he had been less than honest in his filing and his subsequent conduct. The trustee also asked the court to change the case to a chapter 7 and sell Paul’s assets, instead of letting Paul pay the equivalent value over a 5 year period. Paul fired his attorney and filed his own response saying, “Actually, can I have the $10,000 back? I’ve got this plan to repay everybody. And the Trustee’s a crook, he buys a new Mercedes every Christmas.” The court sided with the trustee. Paul appealed.

The appellate court cited some of the findings of the bankruptcy court. It noted that Debtor had been found by a federal district court judge in the Southern District of Illinois to have exhibited “a serious and studied disregard for the orderly process of justice and a relentless willingness to lie to the court on paper and in person”; he had been found by a state court judge in Minnesota to have “intentionally given inconsistent testimony” throughout the proceedings; he had filed his bankruptcy petition to avoid disclosing financial information to the state court; he had failed to disclose numerous transfers totaling over $500,000.00 on his statement of financial affairs; he moved to a rental property and failed to amend his schedules to reflect the resulting reduction in his monthly living expenses; and “numerous courts had entered findings and conclusions that he had engaged in fraud and misrepresentations to the courts regarding his assets and his use of various entities to hide his assets” to misrepresent his financial condition.

Paul is going to lose everything (including his licence to practice law if it has not been revoked already.) Don’t lie to the court, and don’t lie or leave stuff out of your bankruptcy paperwork. Don’t think you won’t get caught. It will not end well.

“Do I have a Case?”

I receive a number of calls and consults each month that end with the question “You’re the lawyer, do I have a case?”  Often, to my caller’s disappointment, the answer is “No.”  Typically, the potential client doesn’t like this answer, so another 5-10 minutes is spent answering the “but what about…” or “even though…” followup questions.  In many cases, the reason the potential client does not have a case is not lack of liability on the part of the wrongdoer (though sometimes that is also questionable): it is lack of definable damages.  Take the recent case of Hancock v. Urban Outfitters, (D.C. Ct App. 2016).

Whitney Hancock and Jamie White made purchases with credit cards at Urban Outfitters LLC and Anthropologie, Inc.  At the register, the credit card was scanned, then the sales clerks asked for Whitney or Jamie’s zip code, which they entered into their registers (not the card machines).  “My zip code!” cried Jamie and Whitney.  “That’s part of my address, and is protected consumer information!  That violates consumer protection law!”  (*Actual exclamation marks may vary.)

So they hired a lawyer, who said “Yep, it’s right here in this federal statute, asking for an address or other personal identification information breaks the law.  Let’s make this a class action suit.” and sued.  And quickly lost on a motion to dismiss, with the court saying “A zip code, without more, is not protected.”  Their lawyer appealed.  The conversation went something like this:

Appellate court: I know you want to talk about whether a zip code is a prohibited part of an address or not under consumer protection law.  But first, what are your clients’ damages?

Lawyer: “The only injury … that the named plaintiffs suffered was that they were asked for their zip code when under the law they should not have been.”

Appellate Ct: Hmm, I guess the court below erred.

Lawyer: Hooray!

Appellate Court: This should have been dismissed for lack of standing because there is no real injury, not on the merits of whether a zip code is or isn’t an address.  Without an actual injury, the complaint here does not get out of the starting gate.

Lawyer: Awww…

So at the end of the day, I turn away some clients who, admittedly, have been wronged.  Why?  Because they have damages that are either non-existent, or are minimal enough that hiring me makes no sense.  The court is not going to “punish” the other side in the manner the potential client wants, and I think it’s a disservice to let people hire me because they believe otherwise.  So I don’t.