More on Ex Parte Cutoffs of Foreign “Rogue” Domain Names

By Eric Goldman

I got the following email regarding our prior three posts on ex parte cutoffs of foreign “rogue” websites in the Chanel, True Religion and Philip Morris cases (I’m republishing the email with permission):

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All of the court papers in the Chanel case were been posted to http://servingnotice.com/sdv/. Similarly, the court papers in the Philip Morris case are at http://servingnotice.com/jiang/index.html.

A little exploration of the site reveals that a Fort Lauderdale lawyer named Stephen Gaffigan (who seems to be a sole practitioner) has brought a bunch of these cases. In the Chanel case, “service” on the vast majority of the defendants was achieved by posting the complaint at http://servingnotice.com/sdv/ and getting a TRO ordering the registrar of defendants’ domains to redirect the accused domain names to http://servingnotice.com/sdv/. Reading the court papers, it turns out that the purported authority cited by Mr Gaffigan in his memorandum supporting Chanel’s motion is a collection of orders and default judgments in other uncontested cases brought by the same lawyer, according to the same template. (See http://www.servingnotice.com/ofn/index.html; http://servingnotice.com/pan/index.html; http://servingnotice.com/off/index.html; http://servingnotice.com/oft/index.html; http://servingnotice.com/li2/index.html; http://servingnotice.com/qi/index.html; http://servingnotice.com/wu/index.html; http://servingnotice.com/ling/index.html).

Gaffigan’s method seems to be to rely on default judgments. Nobody has showed up in any of these cases to contest his motions in court. (The docket sheet in the Chanel case shows the voluntary dismissal of a couple of defendants, so I assume those individuals showed up and either settled out of court or got off without settling to avoid an in-court contest.) So, there has been nobody to make the argument to district courts that no US statute authorizes the remedies Gaffigan seeks, and nobody to appeal the judgments to a court of appeals, and no opportunity for a court to assess the appropriateness of the remedy in a contested proceeding.

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Eric’s comments: This email helps to answer some of my prior questions, such as how many similar cases are out there (many) and whether these cases will multiply (it appears the True Religion case was brought by an unrelated law firm, Greenberg Traurig). Yet, it leaves open my most basic question, which is what can be done proactively to educate judges about the potential abuses of the ex parte process, joinder, notice to defendants and orders purportedly binding non-litigant third parties. It also leaves open the implicit question of whether attorneys who seek overreaching ex parte requests will be subject to discipline or sanction for any possible abuses of the process.

Prior coverage:

* Does the House Judiciary Committee Debating SOPA Know What’s Going On In the Courts?–Philip Morris v. Jiang

* If You Dislike SOPA, You’ll Dislike This Case Too–True Religion v. Xiaokang Lei

* The OPEN Act: Significantly Flawed But More Salvageable Than SOPA/PROTECT-IP

* I Don’t Heart SOPA or PROTECT-IP: A Linkwrap

* Ad Network Avoids Contributory Copyright Infringement for Serving Ads to a Rogue Website–Elsevier v. Chitika

* Court OKs Private Seizure of Domain Names Which Allegedly Sold Counterfeit Goods–Chanel, Inc. v. Does

* Why I Oppose the Stop Online Piracy Act (SOPA)/E-PARASITES Act

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