Lawyers say investigation against Moniker has been long-running.
For the record, I have no idea if any of the allegations in Transamerica’s lawsuit against Moniker are true. But I do know that its lawyers bungled the first complaint they filed. It was rife with many “gotchas” that could be proven false with cursory investigation.
So I was somewhat surprised to see, in an opposition to Moniker’s request for more time to make a filing, that the law firm says it has been investigating Moniker since 2005. The law firm writes:
The main contentions in Defendants’ threatened Rule 11 motion were that Plaintiff failed to perform a cursory pre-filing factual investigation and that its legal claims were frivolous. The investigation leading to this dispute was anything but cursory. That investigation goes back to 2005 and involves virtually every one of the principal trademark clients at the law firm of Plaintiff’s counsel, all of whom have been affected by the conduct of Defendants described in Plaintiff’s complaint. Plaintiff’s pre-filing investigation includes (and included at the time Plaintiff’s original complaint was filed) reports from investigators in the Cayman Islands, China, Germany, the Netherlands, the Russian Federation, Ukraine, and the United Arab Emirates.
That makes sense and is believable. But in all that time they didn’t talk to a domain name lawyer or someone familiar with the domain name system to figure out how it works? In all that time they missed so many red flags?
But the statement I really don’t get is that the lawyers say their amended complaint against Moniker is “fundamentally unchanged” from the original complaint, and:
Plaintiff did not amend its complaint to remove any frivolous contentions or material errors. Plaintiff amended its complaint to shorten and sharpen its allegations as a means of meeting Defendants legal contentions more directly, something that could not have been done before Defendants’ contentions were known.
I don’t know the definition of “frivolous contentions” or “material errors”. But to me, changing the crux of your argument from “Moniker owns all of these domains” and set up bogus entities to hide them is very different from “Moniker’s customers own all of these domains”.
Transamerica objection filing document (pdf)
Free Domain Newsletter says
This is what you get when you put a summer legal intern in charge of gathering information on a huge case like this.
They were lucky they were not sanctioned.
Troy
kevinMcMann says
This is what Oversee gets for screwing over their publishers. More to come. More to come.
He He He.
Cindy says
They probably did not trust this industy’s lawyers as some of them are in bed with the trademark industry.
Has anyone investigated the history of some of these lawyers going back to the 1990’s?
There is your dirty secret.
jblack says
“Plaintiff did not amend its complaint to remove any frivolous contentions or material errors.”
So they decided to leave the frivolous contentions and material errors intact. Hilarious.
John Berryhill says
“That investigation goes back to 2005 and involves virtually every one of the principal trademark clients at the law firm of Plaintiff’s counsel, all of whom have been affected by the conduct of Defendants described in Plaintiff’s complaint.”
Welcome to discovery city.
I do hope the plaintiff’s attorney informed “virtually every one” of his firm’s clients that he just made investigations done on their behalf a factual contention in a matter under litigation.
Enrico Schaefer says
Great point John. Sometimes less is more. When you are digging yourself out of a hole, you sometimes simply make the hole bigger.