VICTORY IN THE NORTHWEST
In Spring, 2000, I had fought defensive discovery battles with Dorband, opposed NSI’s summary judgment motion, defended Gary’s deposition, served offensive discovery on Cohen, and was trying to get Rich Diestel up to speed on the case. But I had been unable to conduct discovery, because Dorband had run out the discovery clock with his decoy depositions. I had filed a motion to reopen discovery, but until it was granted, which didn’t happen until May 5th, I had to find new ways to hurl lead at Cohen. On March 7, 2000, I filed three complaints in Portland District Court naming Gary as an “intervenor” in cases Cohen had filed against Voice Media, Ron Levi’s company, and two other porn operators, Myriad Corporation and National A-1 Enterprises. The Portland Federal courthouse is an amazing new monolith notable for polished granite, stainless steel and water sculptures adorning the pillars with continuous rivulets flowing behind panes of glass. It is beautiful but austere, and although adorned with inspiring maxims of justice, is resolutely devoid of warmth. There is no law library for the use of attorneys, which strikes me as an oversight, as if the judges had forgotten that lawyers traditionally use books to prepare their cases. The law library in the Multnomah County Circuit Court, just up the street, is always jammed.
I’d only handled one case in the Portland Federal Courthouse -- a heroin case in front of Judge Redden. The detective who directed the search of my client’s house was a big dark-skinned Latino who wore a suit, cowboy boots, and a ponytail about as long as mine. He had a powerful manner, and had talked my client into allowing a search of his house; however, the heroin had been seized from a detached shed in the back yard. I moved to suppress the heroin on the grounds that my client had given consent to search the house, but not the shed. At the suppression hearing I needed to establish that any search outside of the house was beyond the scope of my client’s consent, so I asked each of the detectives whether they had the right to dig in the backyard. Each one responded they didn’t think so. Finally, the third time I asked the question, Judge Redden squinted and looked over at me asking, “What was dug up in the backyard?” I chimed back, “Oh, nothing, Your Honor. I was just asking it as a sort of ‘Supreme Court Question’ in order to illustrate the rule of law.”
Judge Redden’s wizened features transformed themselves into a mask of sudden distaste, as if he had bitten down on a worm and wasn’t pleased about it. “Just stick to the facts,” he said, “and don’t get into anything” -- here he paused as if he didn’t often speak the word -- “metaphysical.” Nevertheless, he understood the legal problem, and amazingly, so did the prosecutor, who cut us a deal for 27 months. Hell of a lot better than the seven years my client was looking at.
Gary often described me as a guerrilla fighter. When we went to Portland, we each met with our insurance defense lawyers about the Cohen v. Carreon and Kremen lawsuit. I went and saw Susan Eggum, and Gary met with his lawyer, Steve Kraemer. Later Gary told me what he told Kraemer. “I told him that he and his firm were like the American army. The American army is good for a lot of things. They can win a lot of battles. But a guerilla is the best fighter for other types of battles. Mao was a guerrilla fighter, and Charles is like Mao. And I think he’s perfect for the job.” Gary had a way of saying things that made me feel all mushy inside.
Early on when I began work on the case, I had suggested to Gary that we could do something clever with all of those other lawsuits that Cohen was filing against people, claiming that their adult websites infringed on his “trademark” in Sex.Com. With discovery shut down in the main action, it was time to open up another front in the war. Cohen had filed nine of these lawsuits in Portland Federal Court, and three of them were still pending. Cohen was deliberately racking up these litigation victories in order to announce to the world that, since he was winning trademark lawsuits in federal court, he must have a trademark in Sex.Com. An excellent strategy, because Cohen often sued the weak and defenseless, far from their homes in a venue convenient to his own lawyers -- Portland, home of the Duboff firm.
Lawsuits generally must be filed in one of two places: where the defendant lives, or where the wrongful act occurred. Because the Internet is everywhere, it has made it a lot easier to file lawsuits a long ways from where defendants live. Since a trademark infringement on the Internet is visible around the world and in all fifty states, plaintiffs have concluded that lawsuits for Internet trademark infringement can be filed anywhere. For years collection lawyers in California would sue on debts outside of the county where the defendant lived, making it likely that defendants would simply default. The practice was outlawed by the California legislature in the Unruh Act. Similarly, Cohen won most of his Portland lawsuits by default, and even those who contested these cases rarely did so vigorously, so he was continuing to rack up victories.
It was not helpful to our case that Cohen was collecting these trademark judgments with such ease. I told Gary he had a right to intervene in those lawsuits, because under Rule 23 of the Federal Rules of Civil Procedure, a plaintiff may intervene in a lawsuit if they are so situated that, as a practical matter, their rights will be affected by any judgment entered in the case. It seemed obvious to me that every time Cohen got a court judgment saying he had a trademark in Sex.Com, it weakened Gary’s claim. Still, I had never filed a suit in intervention, and didn’t know anyone who had. In California, intervention is mainly used to attack voter initiatives, like that crazy anti-Mexican law that required nurses and teachers to rat out their patients and students to the Immigration and Naturalization Service if they discovered that they were “illegal aliens.” In a case like that, “illegal aliens” are unlikely to file suit, so the nurses association might start the lawsuit. The teachers would then be allowed to intervene, because as a practical matter, their rights would be affected if the law is put into effect. Finally, the right-wing cranks want to get in on the act, so the Citizens for Safe Borders may be allowed to intervene in support of the constitutionality of the law. As a practical matter, the judge faced with a proposed intervention must ask, “Does the proposed intervenor have an interest in the outcome of this case?”
Usually, the intervening plaintiff wants to intervene and do something. But I wanted to intervene and halt Cohen’s lawsuits so they would not proceed to judgment until after we won Kremen’s lawsuit against Cohen. So I was requesting a “stay,” the magic word that describes a case that is neither dismissed nor allowed to proceed, but remains in suspense pending the outcome of another case. The argument for a stay was simple. The only person with a right to sue over rights deriving from Sex.Com was Gary Kremen. It wasn’t fair to allow Cohen to sue people over the trademark to Sex.Com if he was not the true owner. Furthermore, there is the important “judicial economy” argument, which is basically, “judge, why spend all this time figuring out whether Cohen has a trademark? All you have to do is wait till we win this case down here in San Jose, and you’re not going to have to decide anything, because this case is going to go away.” Finally, there is the argument that the courts shouldn’t come up with different results about the same topics. The Portland courts shouldn’t be issuing judgments in Cohen’s favor when a California court might find Cohen had no right to even file such a lawsuit. This is called “avoiding the risk of inconsistent adjudications.”
Judge John Jelderks, a magistrate judge in Portland, ended up hearing the matter as to all three cases. He set a hearing for April 5, 2000, in one of those huge Portland federal courtrooms, even more impressive than the lobby, with walls as high and thick as a castle, windows like slits set close to the ceiling, and enough milled, joined, sanded and polished wood to account for vast tracts of missing rain forest. We hooked up with Mike Essler and Jim Buchal, lawyers for Levy and Myriad, respectively, who were defending against two of Cohen’s lawsuits. When we went to the hearing, Gary was wearing one of the innumerable dowdy sweatshirts that comprise the entirety of his wardrobe above the waist, and strutting like a Hapsburg grenadier looking for a fight. He amused himself by telling Bob Dorband he was going to sue him.
I had assured Gary that I knew how this would be handled, Oregon-style. All the judges who had these cases on their dockets were going to get together and talk about it over coffee. Then they would send all the cases to one guy, and let him or her decide them. We had a good case for allowing intervention, but I hadn’t predicted victory. So in that atmosphere of uncertainty and hope that seems to kick up like a high wind when you get too many lawyers together, we listened closely as Judge Jelderks told us what he had to say. Indeed, he told us, the judges to whom these cases were assigned, (who were all Article III judges) had gotten together, and to their surprise, discovered that virtually every judge had one of these Sex.Com cases, and none of them had known about the other ones. I got the impression that this was like each judge discovering there was a bedbug in his bed. The Article III judges had passed all the cases to Judge Jelderks to resolve.
After hearing arguments from Bob Dorband that required the deft application of fallacious reasoning, and some counter-argument from me, as well as a plea from Mike Essler to just stay the case and not rule on whether we had a right to intervene, Judge Jelderks ruled that Gary had a right to intervene, and stayed the cases pending resolution of Kremen v. Cohen. This ruling was the beginning of some real anti-Cohen momentum, emanating from the right place -- the bench.
A few weeks later, Judge Janice Stewart, following Judge Jelderks’ lead, issued a lengthy opinion staying the Cohen v. Carreon and Kremen lawsuit. Judge Stewart’s opinion observed that Kremen was an Internet pioneer who registered the Sex.Com domain name and claimed that he would have made a “woman-friendly” website had it not been stolen by plaintiff Cohen. Judge Stewart came down heavily on the issue of judicial efficiency, finding that many of Cohen’s allegations would have to be resolved in Kremen v. Cohen anyway. Finally, she concluded there was some possibility that the action was filed “merely to annoy and harass Mr. Kremen and his attorney.” It was a sweep. Cohen was no longer able to use the Portland Federal courthouse as a staging base. I got out the trumpets and flags, and broadcast the victory in an email to all the lawyers on Gary’s team using a bold subject line, all in caps -- “VICTORY IN THE NORTHWEST!”