How to respond to RIAA harrassment

[Just a bit from a classic legal letter to RIAA's attorneys composed by Attoprney Merl Ledford III of Visalia CA]

MERL LEDFORD III - It is not too late to correct your clients' (and your law firm's) mistakes.

Mr. and Mrs. Merchant's emotional condition puts a premium on immediate case resolution. Thus, although I generally do not make opening legitimate offers as defense counsel, the clients' non-monetary interests and their probability of recovering their fees and costs in this matter (at a minimum) suggest that a defense settlement offer would not be inappropriate. Therefore:

My clients are willing to accept dismissal of the litigation in exchange for

1. Payment of Mr. Merchant's reasonable fees and costs including retainer of $6,880.25. The payment represents good value considering what your own firm's billings will have been to date and use of those billing records as the loadstar rate for Mr. Merchant's award. . .

2. Apology on your firm's letterhead by your supervising partner for inappropriately filing and maintaining an action against Mr. Merchant without probable cause and for the emotional hardship that such litigation caused; and

3. Execution of a mutual general release of all claims in my office's usual form. The RIAA form of release I have seen will not be used. It is my practice in these kinds of cases to require that the plaintiffs indemnify my clients against claims by third parties as part of my general release language. (E.g., your clients sue a site for posting guitar tabs to copyrighted music; my client visits the site, read the tabs, plays them on his guitar, and get sued by way of cross-claim by the guitar tab site. . .

4. Confidentiality: It is my general practice to disfavor confidential settlements. Under the circumstances, and so long as your clients are prompt and candid in dealing with their mistaken, misplaced lawsuit, I would consider a reasonable confidentiality provision. Again, quick response, full payment, and immediate dismissal will allow confidentiality as an option. . .

The authorized settlement offer expressed in the preceding paragraphs of this email . . . may be accepted by signing a copy of this email and returning it to my office by fax no later than the close of business on Friday, March 30, 2007. . . It is the best offer that will be made in this litigation based on the facts and circumstances as they are known at this time. Substantial discovery, investigation, and exchange of information remains that could substantially alter the settlement position of the parties to the betterment of either side in ways that cannot now be responsibly predicted. The case settlement value will, however, trend upward the longer I have to work on it. And the emotional distress damages for willfully filing and thereafter maintaining claims for relief without probable cause will only increase as the matter drags on. . .

Procedurally, we need to address how best to move the case to the Fresno Branch so you can enjoy our new Courthouse and avoid Judge Levi's wrath for filing in the wrong court. . .

Once the case is moved to the Fresno Branch, your clients should consider cleaning up their complaint. The FRCP and collateral estoppel from other RIAA law and motion matters require much greater specificity in pleading than your clients provided in the complaint I reviewed. Dates of the alleged downloads, which plaintiff (or affiliate) holds which copyright to which track, etc. must be specifically pleaded and proven. You are as familiar as I am with the results in other cases where RIAA's general allegations have been challenged. Let's get over that hurdle without unnecessary law and motion practice. . .