Higbee followup

[A Lawyer]

I've tracked over 50 cases involving Higbee.  Not one has gone to trial.  Not one!  So why are we talking about judgements?
 
 That's the key folks.  Don't let a copy troll intimidate with legal threats because when you punch a bully in the nose they run away.

You can get a judgment without ever going to trial. The Higbee cases that I have seen seem to mostly seem to be someone using photos on a website, a screenshot attached to the complaint, and Higbee claiming they never purchased a license. Barring some type of fair use defense, in most cases that would probably be enough for a court to eventually grant summary judgment. So those types of cases would likely never go to trial anyway.

My guess is that Higbee is smart enough to only choose the best cases to file on, which is why they all seem to settle eventually. Going to trial is expensive, and if you are on the defense side (and paying your lawyer hourly) it probably isn't worth the expense, especially when there is a good chance of losing. That's the unfortunate reality of these cases.

[UnfairlyTargeted]

Judgment or no judgement, who cares.  A court is not a collection agent.  And for many of the awards I have seen, it won't be worth it to collect those amounts if the extortion target is unwilling to pay.

It's THEIR problem to figure out where my assets are.  And good luck with that.  Life goes on, no problem.

[Ethan Seven]

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?

[Ethan Seven]

It's THEIR problem to figure out where my assets are.  And good luck with that.  Life goes on, no problem.

What awards have you seen?  Do tell.

I do not know if Higbee is doing his own collections or outsourcing them, but someone is.  Federal judgments are valuable.   Plus, logic would suggest that they are only filing lawsuits against people who they believe have assets.  (Which goes back to my suggestion that those who do not have assets or won’t have collectible assets shouldn’t worry too much about this stuff).

Federal judgments last a minimum of 20 years and accrue interest, usually at around 10%.   20 years is a longtime to try to lay low and hide assets. 

[Matthew Chan]

Really? Higbee is doing his collections? Of course he is.  Is he outsourcing his collections? I would like to know more about this if anyone wants to send me the information.

And since these federal judgments are such a sure and easy thing, anyone who owns any assets should just bend over and pay whatever anyone demands and sends via email, right?

I do not know if Higbee is doing his own collections or outsourcing them, but someone is.  Federal judgments are valuable.   Plus, logic would suggest that they are only filing lawsuits against people who they believe have assets.  (Which goes back to my suggestion that those who do not have assets or won’t have collectible assets shouldn’t worry too much about this stuff).

Federal judgments last a minimum of 20 years and accrue interest, usually at around 10%.   20 years is a longtime to try to lay low and hide assets.

[Matthew Chan]

Hence, Oscar Michelen has been the legal advisor for ELI for 10 years. Oscar and his legal representation program is the best value program offered anywhere that I have seen for these types of cases:

https://www.extortionletterinfo.com/oscar-michelens-copyright-legal-defense-representation-program/

He charges a reasonable flat legal fee to assist those parties who prefer a legal representative and legal services.

If people prefer to NOT handle their own cases and use unconventional strategies and tactics, I endorse Oscar Michelen.  He understands both worlds.

Over the years, Oscar and I have had many discussions over the years from both perspectives.  Without getting into specifics, we actually agree on a lot. I understand his arguments and he understands my arguments.

On ELI, people get the best of both worlds whether they prefer to handle things pro se or if they elect to hire him. Everyone has options.  (No, I get no commission from him or his law firm for recommending him.)

I am not helping anyone’s cause but people who are looking for help.  If a person has assets worth protecting, they need to speak to a lawyer who handles copyright law.   That lawyer can properly advise them on whether they should fight, settle or lay low.    That is not caving or giving in, that is getting educated and in position to make the best possible decision.

[Ethan Seven]

And since these federal judgments are such a sure and easy thing, anyone who owns any assets should just bend over and pay whatever anyone demands and sends via email, right?

Is this your attempt to misconstrue my comments or am I becoming defensive?  Eitherway, let me reiterate, anyone who has assets, plans to have assets or cares about their credit should hire an attorney to evaluate their case.  Relying exclusively on posts in any online forum, including mine, is a very bad idea. 

Once a person gets competent legal advise, they they can decide what approach to take. 

Oscar Michelen sounds like a good starting point. 

Any idea how much he charges?  In what states is he licensed to practice?

[Matthew Chan]

Since it is so simple and easy, WHY is it there so many bad debt, collection accounts, and outstanding judgments? It must be because they don't have access to your expert knowledge.

Judgments don't just show up out of thin air.  People get some notice because a lawsuit has to be filed in advance and generally there are warning signs of impending legal action and there are attempts to process serve the party. Once people realize that service is imminent, informed people can make things happen very quickly and execute actions. People strategically do things if they are determined to fight it. They don't just sit on their hands.

They may not win the fight and ultimately lose. But ultimately, it is a civil matter.  People have the right to be legally vexatious if they want to be. I am not telling people to be vexatious but the fact of the matter is that people can be vexatious if they choose it.

I would submit to you that both getting a judgment AND collections are difficult. It ain't slam dunks. I would submit to you it takes a LOT of time and effort. My statement is not a theoretical one. They come from multiple informed sources.

And history has shown in the age of the Internet, anyone who decides to embark on a reckless lawsuit campaign or hits the wrong defendant the wrong way invites a lot of potential bad karma their way. 

The general public will NEVER be sympathetic to onerous lawsuits against any mom-and-pop business or individual just because they refused to pay an outrageous settlement over using some worthless low-resolution image. History has shown that bad things happen to those parties and employees who engage in reckless, irresponsible behavior.

I think many people know this. People are never truly anonymous.  Employees in the attack business are never really safe against an angry person. They know in the age of the Internet, they need to be somewhat tempered. There are people who will lash out at them in unpredictable ways.

Some of these employees who work in the extortion business are downright stupid. They may find themselves unemployable or limited future employment opportunities for some of the things they do and sign in the name of their employers.

They may ultimately get their money out of a defendant but I can see that some of those defendants might become vengeful and become vindictive. 

This idea is premised on the assumption that the judgment debtor has to somehow give permission for the judgment creditor to be able to collect. If I had a judgment against you, I could just fill out a simple form, file it with the court to get a writ of execution and then walk into your bank (or have the sheriff do it) and the bank will immediately levy your account. If I know where you work, I can fill out a form and get your wages garnished. If I know that you own property, I can just go to the county recorder's office and fill out a simple form and put a lien on your property. etc etc etc.

Believe it or not, most of this stuff is pretty easily searchable on LexisNexis or other public records databases that most lawyers usually have access to. At that point, simply being uncooperative would not be as effective as a strategy as in the pre-litigation phase. Don't get me wrong, it still takes time and effort to do all of that, but if someone is going to go through all the trouble to get a judgment (which is usually the hard time-consuming part) I doubt they will just suddenly tap out and decide its "not worth it" to collect. Especially since they can easily turn it over to a professional collections firm who will take it on contingency.

[Matthew Chan]

We are going to have to agree to disagree on some points. I am not intentionally trying to misconstrue your comments but I don't care for some of the intentional or unintentional inferences you make about federal judgments. I feel a need to offer a counter-point and counter-argument to your points and arguments.

I would like to point out that not everyone has the luxury of paying $300-$500 per hour for legal advice.  And even those who can afford it don't necessarily find the right lawyers.  The right lawyers are those that know how this extortion letter niche works and the parties involved, not just copyright infringement broadly.

People who can afford and have the natural instinct to hire a lawyer will do so.  Most of the ELI readers here are not necessarily well-heeled or they are outraged over what has happened. Most don't need me or anyone else to tell them to call a lawyer.  That is most people's FIRST instinct.  If they could do it easily find expert help affordably, they would. They would not come to these forums looking for alternative ideas.

To read through hundreds of discussion posts from different perspective takes much more work, effort, and brainpower.

People who really want to know about Oscar and his program can start here.

https://www.extortionletterinfo.com/oscar-michelens-copyright-legal-defense-representation-program/

 He also has written hundreds of posts over the years. Just do a search on his name on these forums.

Is this your attempt to misconstrue my comments or am I becoming defensive?  Eitherway, let me reiterate, anyone who has assets, plans to have assets or cares about their credit should hire an attorney to evaluate their case.  Relying exclusively on posts in any online forum, including mine, is a very bad idea. 

Once a person gets competent legal advise, they they can decide what approach to take. 

Oscar Michelen sounds like a good starting point. 

Any idea how much he charges?  In what states is he licensed to practice?

[icepick]

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?

[A Lawyer]

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.

Would you mind posting the names of the cases where he lost on summary judgment? I would love to see if I can get his moving papers from Lexis/pacer to see what arguments he made and why the judge denied the motion. I'll try and post them here if I can find them (and they don't cost an arm and a leg in pacer fees!).

[Matthew Chan]

My comments inline...

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 am not sure what you mean by "winning big". Do you mean a high ratio of settlements or do you mean the actual dollar amounts being settled is large?  I would probably agree that the majority of the cases don't go all the way because they are being settled. Nevertheless, I refer you to the Masterfile, RIAA, Righthaven, Prenda cases, that went "all the way". I don't consider their records as "winning big". Based on my light research, people who are determined to fight, be vexatious, and not pay do end up succeeding in not paying. There may be collateral damage to the defendant themselves or the occasional defeat but I would venture to say a certain negative price was paid by the plaintiffs.

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.

I would say that those are the exceptions, not the rule. And regarding Liebowitz, he is not considered a shining example of long-term career success in his efforts. Anyone can score short-term wins.  Time will tell. Every copyright troll that have embarked on aggressive reckless legal litigation has not ended up well for them. Let's talk about Liebotwitz in a few years and see if he is still in business and not considered a legal pariah.  It is still early. Liebowitz has already been loudly called out by a NY judge and reported very publicly (eg. The Hollywood Reporter) for his questionable, reckless tactics. He is currently suffering collateral damage for he's done thus far but most people don't see that. People who only read PACER, docket, and pleadings miss out on other events that occur outside the court system. I follow "outside stuff" quite closely because I am a big believer in seeing what happens in the "real world". People and lawyers also have to live in the "real world" not just the bubble of Pacer. There are no shortage of arrogant lawyers who make the news and have become viciously spanked by the "real world". FWIW, comparatively speaking, I view Higbee operation more credibly than Liebowitz's. Unless Liebowitz changes his ways, someone or some entity will spank him in a big way he never expects. That is the way the world works.

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.

I get more "quiet" information than most. It is true that in MOST cases I don't really know the amounts settled. But based on the few people who quietly and informally inform me, I have a small sampling and fair idea of the dollar amounts. And "winning" is not always as it appears on the surface.

[This Site Is A Joke]

Notice how Chan does not answer the question about what states Oscar Michelin is licensed to practice in??

He cannot answer because Oscar Michelin and his law firm Cuomo LLC Law Firm are only licensed to practice law in New York.  See for yourself at  http://cuomollc.com.   Oscar Michelin has been engaging in unauthorized practice of law when he undertakes representation of people when the claim has no connection to New York.   He and Chan are scam artists.

How long before someone reports Oscar Michelin  and Cuomo LLC for unauthorized practice of law???   Why isn’t Oscar Michelin's name and Cuomo LLC’s name all over Ripoffreport.com yet?

How many minutes before Mr. First Amendment Matthew Chan or one of his mouth-breathing admins delete this post and my account???

[Matthew Chan]

Who are you, "This Site is a Joke?"  What are you so upset about? What is your beef?  That I am taking up for extortion letter victims and explaining pro se options?

Notice how Chan does not answer the question about what states Oscar Michelin is licensed to practice in??  He cannot answer because Oscar Michelin and his law firm Cuomo LLC Law Firm are only licensed to practice law in New York.  See for yourself at  http://cuomollc.com.   

Of course, I could answer if I wanted to answer.  I didn't answer the question because it was a dumb question and shows that the person asking the question made zero effort to do any research himself of the rest of this website or on Google. Oscar Michelen has been on this website for 10 years and been in practice for far longer.  He and his law firm are not in hiding. The fact that he is based in New York and a NY lawyer can be found in many places.  I think he might be licensed in New Jersey also.  I am not obligated to answer questions, especially simplistic ones. I am not obligated to give any answers on a silver platter. I volunteer my time here.  I answer those posts that I feel appropriate.

Oscar Michelin has been engaging in unauthorized practice of law when he undertakes representation of people when the claim has no connection to New York. He and Chan are scam artists.

Oscar has been openly helping extortion letter victims for a decade now. And he literally has hundreds of clients very happy with his services. I can't remember the technical explanation of how lawyers can cross state lines but (I believe) the restriction comes in when it actually involves an actual court case. Even then, lawyers are routinely represent and admitted into other states pro hac vice through sponsoring lawyers.  Oscar can represent clients in the same manner Higbee can represent Nick Youngson in the UK and other copyright owners in the US. outside of Higbee's home base of California.

How long before someone reports Oscar Michelin and Cuomo LLC for unauthorized practice of law???   Why isn’t Oscar Michelin's name and Cuomo LLC’s name all over Ripoffreport.com yet?

Maybe because Oscar is not doing what you are claiming and actually has many grateful readers and clients appreciative of his involvement when very few lawyers are willing to take on copyright defense for the little guy?

How many minutes before Mr. First Amendment Matthew Chan or one of his mouth-breathing admins delete this post and my account???

I don't know. It depends on how disrespectful and defamatory you intend to be. ELI is a privately-owned site, not a government-owned site. "Mr. First Amendment Matthew Chan" knows where the boundaries are.  And why are you so upset with me?  I am on the side of most victims and trying to keep options open. Would you rather I just tell everyone, "yeah, people have zero options. People should go ahead and pay up?

And for the record, Oscar has represented me in GA and other people in court cases despite being a NY lawyer.  He did it through pro hac vice and had a sponsoring lawyer. Chan vs. Ellis went all the way to the GA Supreme Court.  Oscar was the NY lawyer who was also the LEAD Lawyer in a Georgia matter. 

[Ethan Seven]

He cannot answer because Oscar Michelin and his law firm Cuomo LLC Law Firm are only licensed to practice law in New York.  See for yourself at  http://cuomollc.com.   Oscar Michelin has been engaging in unauthorized practice of law when he undertakes representation of people when the claim has no connection to New York.   He and Chan are scam artists.

What basis do you have to think he takes claims that do not involve a party in NY?  Did you look to see if any other attorneys in his law firm are admitted in other states?   

All he would need is for the client or for the copyright holder to be in a state where he is admitted or, if the contract is with his law firm, any state where one of his associates is admitted.  Keep in mind that a couple federal courts do not require an attorney to be a member of the state bar.

Some of the content on this site could, emphasis on could, be construed as attorney advertising.  I would have lots of disclaimers on it if I were Mr. Michelin, but that is different than unauthorized practice of law.