Today was the long-awaited appeals court hearing in the ongoing Prenda saga. Almost exactly two years after Judge Otis Wright went sci-fi on Prenda and its principles, the 9th Circuit Court of Appeals held an appeals hearing requested by Prenda on the sanctions, and it was not a pretty day for Prenda.
Today was the long-awaited appeal for Prenda and associates in the 9th circuit. A welcome change from other hearings is that the case was live-streamed by the court, enabling those who were unable to get to the courtroom, a chance to view the proceedings, and what a show it was. Daniel Voelker, representing Prenda, left the first half hour battered and bleeding (metaphorically) from the many jabs and barbs by the three judges on the panel, while Morgan Pietz representing the Doe, had a much more cordial reception.
Central to the Prenda argument, as laid out in their earlier brief, was that in threatening incarceration at one point, the entirety of the hearing, and thus the sanctions awarded at the end of it, were improper. That includes the adverse inferences drawn from the mass decision to “plead the 5th” which is allowed in civil cases, but not criminal ones. However, they failed to contest any of the factual elements and conclusions from the case, relying wholly on procedural grounds.
The three judges – 91yo Senior Judge Harry Pregerson, 62yo Judge Richard Tallman, and 49yo Jacqueline Nguyen – were both sharp and to the point with Voelker, repeatedly asking probing questions, and even making fun of him on occasion. “Explain to me in simple english how this er operation worked” asked Pregerson of Voelker, adding “how they make their money” when asked to clarify shortly followed by “who ran this operation?“. Voelker’s answer of “I don’t know” prompted Pregerson to retort “You don’t know anything, do you?“. When Voelker tried to salvage that by referring to the 5th amendment pleading, Pregerson delivered one final blow saying “They should have asserted the 5th amendment because they were engaged in extortion, eh? They sent out thousands of extortionate letters“.
Perhaps the highlight of it all though, was the 7½ minutes spent by judge Pregerson describing how these cases work, including reading a letter that was sent (embedded below). His closing remark on it left no doubt what he was thinking, saying “That is just an ingenious, crooked, extortionate operation”.
Other arguments from Voekler were shot down, Ngoyen (reportedly Obama’s next choice for a Supreme Court justice) telling him that he’s “swimming upstream” while Tallman told him to stop ‘bobbing and weaving’ when asked questions, and if certain documents (specifically the forged copyright assignment) were ‘left by the tooth fairy’. However, all were left a little agasp when Voelker seemed to have no issues with remanding it back to Judge Wright, as a criminal matter under a special prosecutor, which would not only put the Prenda principles at risk of imprisonment, but also open things up to allow information from all other cases to be included.
Pietz by contrast, had a more boring turn before the judges. There to represent the judgment, he did engage in some mild banter with the judges, but in a good natured way, rather than the adversarial way of his opponent. The central issue here being the damages themselves, specifically Judge Wright’s “punitive” doubling, which is in the grey area of what’s allowed. since it seems to be for misconduct not entirely inside the courtroom. Pietz did seem happy with what seemed to be a general consensus (although we won’t know until the order is released) of the judges, which would be to let the original fee award sanctions stand, and remand the punitive doubling back down to the circuit court, as a criminal case.
It is of no doubt, however, that these three judges have “smelt a rat”, as Judge Wright’s motivation was described; the numerous times the word ‘extortion‘ was used made that clear, as did the jokes of Voelker’s ad saying that he was a great lawyer, which Popehat’s Ken Pope called “perhaps the most devastating line I’ve ever heard used against a lawyer“.
Pregerson: And you’re a great lawyer too.
Voelker: I really appreciate that.
Pregerson: That’s what your ad says, when you go on the internet, right? [Tallman chuckles] I wonder how many super lawyers there are in this country.
It seems probable that there will be some form of criminal investigation stemming from this. That’s on top of the references to the US Attorney’s office and the IRS in Judge Wright’s order. Plus, by not contesting the facts and conclusions drawn by Judge Wright, they may very well have admitted them as true, which won’t help them in other cases still pending nationwide.
Whatever the strategy was supposed to be for Prenda, it just didn’t work out well at all. However, the final word has to go (as most did in this hearing) to Judge Pregerson
This is going to be… going to be written about for years and year. You’re probably gong to be part of the story, we all will be. I don’t know where this is going to end up.
Truer words were never spoken.