San Francisco, California – A lawyer for Prenda Law argued before the United States Court of Appeals for the Ninth Circuit and was heard by Judges Harry Pregerson, Richard Tallman and Jacqueline Nguyen. The appeal focused on the rulings of U.S. District Court Judge Otis Wright II.
The intellectual property attorney representing Prenda Law, the now-infamous copyright trolling law firm, squared off with the judges of the Ninth Circuit recently. In a hearing before the appellate court, he contended that the district court had denied due process to the Prenda Law parties. He noted that Judge Wright had threatened incarceration argued and, in doing so, Judge Wright had indirectly initiated a criminal contempt proceeding.
“The entire proceeding was tainted. Mark Lutz, the CEO of Ingenuity 13, was not allowed to testify. As soon as they asserted their Fifth Amendment rights, the judge stopped the proceeding,” Prenda Law’s lawyer said. “He can’t use that against them,” he continued, arguing that Judge Wright had punished the Prenda Law parties for invoking their Fifth Amendment rights against self incrimination.
Judge Tallman countered, “Sure he can.” Because this was a civil proceeding, Judge Wright was allowed to “draw adverse inferences” as a result of an invocation of the Fifth Amendment. Judge Pregerson added that the Prenda parties “should have taken the Fifth, because they were engaged in extortion. They sent out thousands of extortionate letters.”
“Let’s say you’re right,” Pregerson said. “Do you want us to send this back and have this turn into a criminal contempt proceeding?” The court was surprised when the answer was “yes.”
Judge Pregerson continued: “They used our court system for illegal purposes to extort money–they used our discovery system. They bought these pornographic films, and seeded the Internet with them…. If they really want to have a trial on this, with all protections of a criminal case–burden of proof, and a prosecutor, and all the rest of it–you sure they want that?”
“I’m amazed that you are asking us to vacate the sanctions and send it back for an independent prosecutor to pursue,” said Judge Nguyen added, noting that the case currently before the court was not the only matter that prosecution could include.
Judge Tallman also seemed surprised that Prenda Law had asked that the matter be considered as a criminal matter: “With a potential penalty of life in prison for criminal contempt? They’re prepared to run that gauntlet?”
Prenda Law’s attorney repeated that, yes, the Prenda Law parties wanted their day in court.