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Messages - icepick

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Nice. Is there a summary of this case somewhere other than Pacer? Where did the bond requirement come from?

I don't know about that, if any defendant has some balls and goes to trial RM Media will need to produce someone to testify in court, their attorney obviously can't testify for them. Travelling across the ocean, getting a hotel, spending 1-? days in court can add up fast for a $250 license judgment and while they may get attorney fees I don't think they will get their travel expenses back, win or lose.

I love seeing the language changes in Higbee letters as time passes. I'd wager he definitely got some blow back on some phrasings from someone. In the 2017 letter I've seen there is nothing about hiring an attorney or forwarding the communication to your lawyer if you already have one.

I noticed the attorney representing Higbee is Rayminh Ngo again. Didn't I read about him getting pinched in another matter about practicing in NY when he is out West?

I think the judge's comments on page 4 about how insufficient the evidence of valuation provided by the plaintiff so far is interesting. The issue is almost always damages for every case people come here with, not liability.

Lol, ELI or someone may want to setup a hall of shame website for these troll lawyers and their biggest gaffes. So any potential client or employer googling them with thoughts of hiring them can see the fine work they have done.

According to this they won on summary judgment so appealing, then remand, then trial on this just got a lot more expensive for the photographer and I wonder if he thinks his demands were worth it after having this blow up in his face.

Looking forward to seeing if the attorney gets his client to pony up the money for appeal and trial or leave this really adverse decision against him on the books.

That is interesting. I’m looking forward to seeing the pleadings. RM is interesting to me because unless they find a willful infringer with deep pockets or they have someone in the US that can go to court for them (to testify, not advocate) if a defendant takes them all the way I don’t see them showing up for a trial and no testimony = no money = paper tiger for anyone who holds off a default and summary judgment.

Higbee Associates Letter & Lawsuits Forum / Re: Help Exposing Higbee?
« on: June 26, 2018, 08:36:55 AM »
I don’t have any experience with PicRights, but if you did use an image without permission and can make it go away for a few hundred dollars I would certainly consider it. I think minimum copyright damages for innocent infringement are $200+ something so something close to that might be worth it. Higbee got greedy in his ask of me and added an extra 0, so he’s going to have to earn it from me.

Higbee Associates Letter & Lawsuits Forum / Re: Higbee followup
« on: June 18, 2018, 10:50:08 PM »
Higbee does win a lot of those motions concerning pleadings but when I was researching his case filings in multiple states the trend I saw is he loses on his motion for summary judgment. Shortly after he loses his summary judgment probably 90% or more of cases (the ones with serial small time images, not the established photogs) settled. Once he loses summary judgment that forces his hand to leave his California desk or pay out of pocket for local counsel to attend hearings etc and I wager those settlements are more favorable to defendants than to Higbee.

And there was at least once case from West Texas where the judge floated the idea of sanctions against Higbee for a discovery violation I believe. It didn’t reach its conclusion because the judge only mentioned it to facilitate settlement, and it worked.  I posted the letters from counsel about it in a post on here.

In hopes of preventing people from being misled and at risk of getting accused of spreading doom and gloom again, I need to point out that KingKendall’s welling meaning advice appears to be based on a complete lack of understanding of copyright litigation.   

Copyright litigation is pretty unique.   Cases not going all the way to trial is more likely a sign that attorneys, like Higbee & Associates and Liebowitz Law Firm, who file hundreds of cases a year, are winning big.  By winning, I meaning getting settlements that make their clients happy and wanting to file more cases.

Less than 1 percent of copyright lawsuits go to trial because defendants settle fast or plaintiffs win on a summary judgment or default judgment.   

I don’t have the time or inclination to go through hundreds of the lawsuits that Higbee & Associates files, but I have read the docket on about 25 of their cases and read the pleadings on about 10. 

Higbee & Associates is consistently winning its motions.  I saw wins on motions to strike defenses and in opposition of motions to dismiss for various causes.  I saw them lose a motion for lack of personal jurisdiction over one party on a multi-party litigation.   

Higbee and Liebowitz are also going deep on some cases.  Some of their cases have been going on for more than a year.  This shows that they have the resources and incentives to fight.  I read an article that said Higbee is getting a whopping 50% of the recovery.

It is impossible for non-parities to know what the outcome is on cases that settle, which is what happens on 99% of copyright cases, but fact that the law firms keeping filing more cases and that they are consistently winning their motions is a good indication that they are consistently getting outcomes their clients like.

@KingKendall, are you seeing something I am not?  Can you point to a case where Higbee lost on a motion to dismiss, was sanctioned for frivolous filing or anything else to suggest they are not consistently winning/getting good outcomes for their clients?

It is possible, but it appears very counter-intuitive. Higbee wants people to send in a check and don't ask questions. The more time he spends on a case without getting that check equals his investment and risk of unpaid time going up. The last thing he wants is his target getting informed, independent (hopefully competent) legal advice. It certainly struck me as an odd addition to his letter and one I do not think he made of his own volition.

I've raised points on some of the rules Higbee may be skirting the edges of in other posts if you want more info, but the biggest gray area he faces is any kind of conduct involving "dishonesty, fraud, deceit or misrepresentation" is a potential violation in certain states he is licensed in, not all. It has no bearing if the communication is pre-litigation or not, it covers all conduct of any type at any time to anyone. A bar overseer reading his blustery letters without a disclaimer that you may want to consult an attorney since I'm threatening the end of the world on you could see an issue.

His letters also have him playing good cop/bad cop at the same time and that can create the impression to the recipient that he is giving them advice when he is their adversary. That confusion can be a perceived conflict of interest and another avenue of violation that an overseer would want him to clarify with the 'speak to an attorney' line.

It's just a theory. I will certainly watch Higbee's career unfold with great interest.

You could be right IcePick, but my guess is that the change in language is a psychological ploy.  The language projects confidence and infers a seriousness to the matter.   If they send a lot of letters, my guess is that they test the language and that the language of letters reflect the test results.  Do they use the exact same language for different clients?  It is also possible that the client exercises some control.

Also, I am not aware of any state having a rule of professional conduct that requires a prelitigation letter to state the obvious fact that a person may wish to hire an attorney.   Do you know of any that do?    My guess might be colored by the fact that I also am very skeptical about complaints to regulatory agencies having any impact on situations like this, other than making the attorney focus more on the claim.

I did go back and look at the letters I have access to from 2017 and that 'hire an attorney' paragraph was different. This is pure speculation on my part, but I don't see Higbee's operation rewriting that section voluntarily to suggest people get a legal opinion before paying him off. My best guess is someone with oversight authority took a look at his letters and told him he had to add something to that effect in it to avoid some kind of rule violation. Maybe a bar complaint or AG complaint somewhere made some progress and hopefully he gets to critical mass soon.

It's been a while since I looked at Higbee letters, but this part right here:  If you have an attorney assisting you with this matter, please forward this communication to him or her.   If you do not have an attorney representing you, you may wish to hire one. does not sound familiar with what I've seen.

Can anyone with older letters confirm if this is a new addition to his letters? I'm intrigued at what likely forced its inclusion if it is new.

I haven't looked at the case history but one thing that jumped out at me is it is for 'willful infringement' so they probably left the images up or something equally careless. I don't see it as anything to be alarmed about for people that have facts refuting any willful infringement claim Higbee might make, but that's just my opinion.

I haven't dealt with your plaintiff but so far ignoring it has worked better than trying to have a substantive discussion with Higbee's goons. As I've said before, I think everything up to that 15 day threat and draft complaint is part of a standard script he has implemented. What happens after that is probably based on the specific facts of each case where they make a judgment call on if it is worth pursuing.

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