One question answered...

[ALittleBirdie]

DirecTv (more specifically Mr. Boatman and Mr. Roberts of Stump, Storey, and Callahan in FL) have continued to file "Fulfillment Plus" cases after the supposed S.O.L. for Federal Wiring Taping laws (Source: Complaint obtained from PACER, for case 3:2003cv00196 in Pensacola, Florida relating to purchases from Vector and Canadian Security and Technologies). I don't think anyone should be really surprised at this...

There is good news though...DTV seems to be way, way off last week's pace (14 cases from yesterday) and most are in Florida (possibly all of the "Fulfillment Plus" cases as I was unable to view the complaints of the single Georgia, who didn't join in the fun until last week, and New Hampshire cases).

DTV may be using Florida and Stump, Storey, and Callahan again to test the waters, this time regarding S.O.L.

It'll also be interesting to see how the "DTV defense lawyers" react to this. While the lawyers I've talked won't give definative answer regarding S.O.L. (they say the key word here is opportunity though), they have said using May 25th is most definately a valid defense and should be tried. The "DTV defense lawyers" are in interesting position, because filing a motion to dismiss an untimely claim could potentially cost them a number of clients in the future.

[yellaboyla]

If they KNOWINGLY filed a claim that was outside the SOL, a federal judge would nail them to the wall.

Most judges will see the date of seizure as the SOL. They can't come and say, oh we waited 6 months to dig through the servers.

[ALittleBirdie]

Originally posted by yellaboyla
If they KNOWINGLY filed a claim that was outside the SOL, a federal judge would nail them to the wall.

Most judges will see the date of seizure as the SOL. They can't come and say, oh we waited 6 months to dig through the servers.

From 2520..

A civil action under this section may not be commenced later than two years after the date upon which the claimant first has a reasonable opportunity to discover the violation.


I think that's why I've been told "opportunity" is the key word. I don't think it matters when they actually came across your name, but when they had the opportunity to do so (i.e. the day they had access to the records).

I'm sure they'll try the "but, it didn't come up in our computers until ...", but I don't see it flying. If DirecTv can prove they didn't have access to the records until a later date (maybe local law enforcement or the FBI had them for some period of time), then I think a judge will most certainly side with them.

I really believe the key question is "If S.O.L. is up does DTV pay defendant's attorney costs". That's a question for an attorney (I'll certainly be asking around this weekend) and will determine how many "Fulfillment Plus" cases they file until we get a ruling or rulings on this. DTV certainly does not want to pay the attorney's costs of thousands of people.

[Slam_mm]

As usual, great info from ALittleBirdie. I'm afraid that we won't see any of these cases go as far as court, where there could be a favorable judgement based on the SOL. I doubt dave intends for these to make it that far. He's probably testing his "settlement rate" now that the SOL is questionable. It's still going to cost $$$ to fight a post-SOL suit guys. I'd guess the fighters get their cases dropped eventually, but not after spending more $$$ than a settlement. Then it's up to YOU to file suit to recover attorney fees. Not an easy road.

[ALittleBirdie]

Originally posted by Slam_mm
As usual, great info from ALittleBirdie. I'm afraid that we won't see any of these cases go as far as court, where there could be a favorable judgement based on the SOL. I doubt dave intends for these to make it that far. He's probably testing his "settlement rate" now that the SOL is questionable. It's still going to cost $$$ to fight a post-SOL suit guys. I'd guess the fighters get their cases dropped eventually, but not after spending more $$$ than a settlement. Then it's up to YOU to file suit to recover attorney fees. Not an easy road.
I've been led to believe (someone please correct me if I'm wrong) that a motion to dismiss an untimely claim, is done before actually going to trial...somewhat similar to Mr. Lowenthal's motion to dismiss 2512, early in process. I don't think this has to go to "trial".

[stackunderflow]

In all the reading I have done, Dave is using the May 25th date in his legal filings. I can't find it now but many fulfillment plus lawsuits say to the effect "On May 25th 2001 DirecTV and local law enforcement raided Fulfillment Plus" "Records siezed in that action" Blah Blah Blah. Dave is limiting himself to that date, by saying he siezed the records on that date. If you can produce a copy for a judge, I'm sure it will get thrown out. If you didn't get sued yet Dave probably didn't have enough evidence to even start, so why would they shoot themselves in the foot now?


Just my opinion.

[ALittleBirdie]

I believe this what you're talking about Stack...

On May 25, 2001 DIRECTV executed Writs of Seizure with the assistance of local law enforcement at the mail shipping facility used by several major sources of pirate technology including Vector Technologies, DSS-Stuff, DSS-Pro, DSS-Hangout, White Viper Technologies, Meadco, Intertek, Shutt Inc., and Canadian Security and Technology.


The statement remains unmodified in the complaint filed yesterday in Pensacola...i.e. they're not trying to keep it a secret.

[ALittleBirdie]

I remembered a motion to dismiss an untimely claim in a Louisianna, so I went back to look it over (for those intersted it was filed even before the return of service).

The case is 02-CV-2666 (DirecTv v. Breaux), where the attorney for defendant Chris Carter tried get DTV's case dismissed under Louisianna tort law's statue of limitations (sec. 3492...one year).

Directv's response is very interesting...
(1)the statue of limitation's claim for DirecTv's 18 USC 2512 claim is two years as prescribed in 18 USC 2520.

(2)the Fifth Circuit's decision, in a similar case, holding that the three year federal Copyright Act limitations, rather than the Louisianna prescription statue, should be applied, and...

(3)that the commencement of any limitations or prescription period is dependent upon unresolved fact issues - such the date of Carter's last violation and the date when DirecTv could have reasonably discovered Carter's violations - that cannot be determined by means of Carter's motion to dismiss.

The court agrees with DTV's assertions in one and two (two years for 2511 and 2512, three years for 47 USC 605), and on the third Justice Trimble states...

DirecTv argues that commencement of this time period requires a resolution of fact issues as each wrongful interception of a satellite transmission is a statuatory violation and the date that DirecTv should have reasonably discovered the violation requires a factual determination of what is reasonable. The court agrees and accordingly the motion to dismiss will be denied.

Nice of Justice Trimble to get in to detail on that one...

The third is argument is almost definately going to be meat of DTV's opposition to any S.O.L. claims...as ridiculous it sounds (it seems this Judge bought it though..granted he didn't say why). It's time to start digging for some case law that's gonna shoot this claim down...

I guess signal theft is like murder...no statue of limitations :R

[dsschaos]

I've been led to believe (someone please correct me if I'm wrong) that a motion to dismiss an untimely claim, is done before actually going to trial...

the law is my business. You are not wrong

[ALittleBirdie]

From the Den's sister site (FreedomFight)...


Overview: Avantec Round 1

Some of you might be aware that when the DirecTV Letter Campaign began in 2001, many of the first recipients received letters based upon purchases made from Avantec/VCipher.

These letters were generated from records seized from Avantec/VCipher by the RCMP sometime in November 1998. [I will acknowldge and leave for another discussion the prospect of the authenticity of the records as I do not see it as fruitful at this time.] DirecTV obtained some, but not all, of these records and generated its first letters.

Making good on its threat to protect its signal property rights, which it is entitled to do under Title 18 and 47 of the United States Code, it eventually sued many of those persons (Avantec Round 1).

The Law: Statute of Limitations in End User Cases

Under Title 18 sections 2511, 2512 via 2520, there is a 2 year statute of limitations to bring suit against End Users on the grounds of stealing signals or assisting others to do so. 18 U.S.C. 2520. That means two years from the date that DirecTV "reasonably" could have found out about a particular purchase. Often times agreed to as the raid date of any particular device seller or website.

Under Title 47 section 605(a), the water is murkier. The current case law appears to allow a three year statute of limitations. Thus, DirecTV may be able to bring a suit as far out as three years from the date of the raid solely based upon 47 USC 605, even though the Title 18 claims would be stale.

The Avantec Round 1 suits were brought in a timely fashion for the most part.

Avantec Round 2:

Some of you may have noticed a second round of letters being sent by DirecTV relating to Avantec/VCipher purchases dating back to 1996. This has raised a few questions regarding whether a suit based upon these purchases are timely suits under Title 18 or even Title 47.

Unconfirmed information indicates that DirecTV may not have obtained all of the Avantec/VCipher information on the first go around. If this is true and substantiated, then the statute of limitations for actions based on these purchases would not have started to run until DirecTV's receipt of this new batch of information. In other words, depsite the date of purchase, the suit might be timely.

Despite the obvious dislike for the breadth of DirecTV's campaign against End Users, my experience has been that their attorneys conduct themselves in a professional manner at all times and would not knowingly bring a stale lawsuit. Out of an abundance of caution, you should assume that if you receive such a letter based upon Avantec/VCipher purchases, the suit may well be timely and part of the Round 2 information. You attorney can then make efforts to discover the facts for your particular case. Do not simply assume that the suit would be untimely and ignore the letters. You do so at your own peril.

Unresolved Issues:

How do you know if your name appeared in the information batch for Round 1 or Round 2? We do not yet know.

The analysis of whether you have a viable statute of limitations defense depends on your facts and the answer to the above question.

Albert A. Zakarian, Esquire
zakarian@tampabay.rr.com
(813) 251-2200
2024 West CLeveland St.
Tampa, FL 33606


An interesting, informative post by Mr. Zakarian...
If though DirecTv is so good about not filing "stale" lawsuits, and it is "Often times agreed to as the raid date of any particular device seller or website", I'd be curious to hear his thoughts on the Florida "Fulfillment Plus" cases filed this week (2511 and 2512 is included). Even more questions :)

Thanks for your thoughts on SOL though...much appreciated.

I have a hard time believing Boatman and Roberts don't know what's going on (as far as S.O.L)...it'll be interesting to see what they have up their sleeve.

[tchicken5000]

We're so near the SOL date, I think they still may be relying on reaching a settlement before that is brought up. The settlement will still be more profitable before they drop the case.

I'm not sure if the S.O.L. has been brought up yet at all.

[slowpok]

I've read Mr. Zakarian several times and each time I wonder who would hire this guy.
He seems to be unusually attracted to the opposition. He is obviously making a lot of money right now and is just as obviously grateful to the people that are causing this to happen. These are just my thoughts and I may be wrong as hell but I don't think so.

[Rydman313]

IMHO, you might get that sort of impression because he appears to be somewhat neutral in the whole scheme of things. Of course he's making a lot of money ultimately because of DirecTV's actions, whose attorney isn't? He's also a professional at what he does, and he appears to respect other professionals in his trade. Personally, I think it would be better to get legal advice from someone who isn't personally involved with the situation, or might have some axe to grind with the enemy, for fear that their own interests might color the legal advice that you're paying them for. IMHO, you're attorney shouldn't be considered as your own personal pit-bull-in-the-courtroom, even though that's basically what we all would like them to be. I would expect my attorney to give it to me straight, good or bad, because, theorhetically, that's supposed to be the way the judge would see things. Unfortunately, sometimes it's difficult to swallow. :Z
I could be wrong, but I don't think his behaviour/comments reflect poorly on him. I considered retaining him when I first received my fan mail from DTV, but chose to retain one locally instead.....

[tcan]

IMHO, you're attorney shouldn't be considered as your own personal pit-bull-in-the-courtroom,

The attorney/client relationship MUST be established before you
pay dime-one. If you don't want to litigate... hire a social worker.

I agree that a local lawyer should be your "lead" attorney if you intend to sue Dave after your successful defense. In the defense of Dave’s suit your local attorney should have told you that he would also be using the services of an "Expert" attorney.... That is why a successful defense... followed by a malicious prosecution lawsuit costs >20K, and that only gets you to day-one of "your" (malicious) lawsuit. The end game depends on everything done right, from day one.

[ALittleBirdie]

Update (May 27th)

1. DirecTv continues to be way of last week's mad dash for the supposed finish line for "Fulfillment Plus" records. There though have been 161 cases filed, though 150 of them are the work of "Team Boatboy" down in Florida. It does indeed seem Florida is again being set up for a DTV test, this time for SOL chalenges.

2. Does DirecTv pick up the the defendant's tab for a successful motion to dismiss untimely claims? From what I've been told: In short, no, because it is likely that 47 USC 605 will be allowed to stand even in the the event of the a succesful dismissal of Federal Wire Taping charges.

3. For civil penalties under 47 USC 605, please see http://www.cybercrime.gov/47usc605.htm . I've been told it is unlikely they will pursue a suit under this only, but who knows.

[mrself_destruct]

They've filed a lot more than that in the last few weeks. Each state has had a rash of new lawsuits.


Originally posted by ALittleBirdie
Update (May 27th)

1. DirecTv continues to be way of last week's mad dash for the supposed finish line for "Fulfillment Plus" records. There though have been 161 cases filed, though 150 of them are the work of "Team Boatboy" down in Florida. It does indeed seem Florida is again being set up for a DTV test, this time for SOL chalenges.

2. Does DirecTv pick up the the defendant's tab for a successful motion to dismiss untimely claims? From what I've been told: In short, no, because it is likely that 47 USC 605 will be allowed to stand even in the the event of the a succesful dismissal of Federal Wire Taping charges.

3. For civil penalties under 47 USC 605, please see http://www.cybercrime.gov/47usc605.htm . I've been told it is unlikely they will pursue a suit under this only, but who knows.

[ALittleBirdie]

Yes, there were 1100+ unique cases last.

Those 161 cases were from this week...should've been more clear, sorry!

[Dean_M_Love]

Originally posted by slowpok
I've read Mr. Zakarian several times and each time I wonder who would hire this guy.
He seems to be unusually attracted to the opposition. He is obviously making a lot of money right now and is just as obviously grateful to the people that are causing this to happen. These are just my thoughts and I may be wrong as hell but I don't think so.

The reason you do not like his position is because, quite frankly, it is REALISTIC.

IT IS ILLEGAL TO "STEAL" DIRECTV IN THE U.S.A.

period.

(note: in Canada, until last April, in many jurisdictions it was LEGAL to decode DTV without paying them.)


If a lawyer tries to get you a settlement, it is in YOUR best interest, not because he "likes the other side". It is because he realizes that the law is on their side, so at best they may not be able to prove the facts, or you luck out on some technicality.

To settle upfront for several thousand dollars, versus a multi year legal battle costing tens or hundreds of thousands (assuming you get that far before you run out of money).

Maybe they shouldn't be blindly sending letters to all the names on a customer list without some form of investigation, but that doesn't some how make it "open season" on their signal.

If they have no factual foundation for their claim, they will fold pretty quick once things start moving forward. Even by then you could easily spend thousands on legal fees.

If you try to sue them later for legal fees, they can use the shipping records as a defense to say the attempt to collect from you was legit, even though it may have been dismissed for other reasons.

The fact is, NOBODY make money going to court except the lawyers. The big question is, whose got deeper pockets? You or DTV. If you spend $5000.00 it hurts you way more than the $100,000.00 they spend hurts them. And that is the sad reality of the judicial system, that it can be exploited by those with the money to do so, and even when they lose, they win.

[mrself_destruct]

You assume Dave is willing to get into a "multi-year battle" also. Bottom line here is although each case is different, with the majority of these cases, Dave has little or no real evidence. With the latest ruling on 2512 and some creative counter-tactics any competent lawyer should be able to get the average case dropped.

They are not going to pursue these cases to the end. You can either settle up front and pay $3500 to sign some screwed up settlement agreement admitting to stealing satellite or you can spend that $3500 on fighting a little bit in the beginning and getting the case dropped.

Again each case is different and needs to be individually assesed. If he really does have evidence then perhaps settling is the best option. But at LEAST get their evidence, review it and file the motion to dismiss under 2512, if that doesn't work you can always settle later.

They want you to settle, they dont want a court fight either.


Originally posted by Dean_M_Love
The reason you do not like his position is because, quite frankly, it is REALISTIC.

IT IS ILLEGAL TO "STEAL" DIRECTV IN THE U.S.A.

period.

(note: in Canada, until last April, in many jurisdictions it was LEGAL to decode DTV without paying them.)


If a lawyer tries to get you a settlement, it is in YOUR best interest, not because he "likes the other side". It is because he realizes that the law is on their side, so at best they may not be able to prove the facts, or you luck out on some technicality.

To settle upfront for several thousand dollars, versus a multi year legal battle costing tens or hundreds of thousands (assuming you get that far before you run out of money).

Maybe they shouldn't be blindly sending letters to all the names on a customer list without some form of investigation, but that doesn't some how make it "open season" on their signal.

If they have no factual foundation for their claim, they will fold pretty quick once things start moving forward. Even by then you could easily spend thousands on legal fees.

If you try to sue them later for legal fees, they can use the shipping records as a defense to say the attempt to collect from you was legit, even though it may have been dismissed for other reasons.

The fact is, NOBODY make money going to court except the lawyers. The big question is, whose got deeper pockets? You or DTV. If you spend $5000.00 it hurts you way more than the $100,000.00 they spend hurts them. And that is the sad reality of the judicial system, that it can be exploited by those with the money to do so, and even when they lose, they win.

[REDx]

from talking to attorneis involved in these
cases. they tell me dtv only has the evidence
he tells you in the beginning. like customer
list, address, name, verified delievery.
the only other thing is if you deny you recieved it
or ordered it. they have the dealer do a sworn
statement to the effect that you did and you plan
to use it to steal dtv's signal. just learned that
tidbit last week.
still its not enough for dtv pervail in court.

[Dean_M_Love]

...keep in mind in many cases they also have emails, so if they have an email you sent saying "I was watching the big fight and half way through the card went down", they can use that as proof you not only possessed it but also used it (at least for 1/2 the fight anyways:) )

[gunsmoke2]

Technically that card that went off could be a card with an active subscription. Although rare it has happen.


GS2

[Rydman313]

If that were the case, why would you be contacting your dealer instead of DirecTV itself?

[slowpok]

I just can' believe it. I'M GOING TO BE REAL NICE THOUGH.
Newbie...go to

http://forums.wumarkus.com/

to get the facts. The den is a great place after you understand what you are up against.
The site I refer to is 'THE BEST' place for information without this kind of bias.
Good Luck.

[REDx]

the DEN has the most respected Legal
section on the web.
there are those that are jealous of
the depth of knowledge.
you will find the DEN is one of the few
sites that real lawyers post on.
the problem with a lot of sites they want
to increase membership. they send out trolls
who will tell you what you want to hear.
like if you recieve the letter dont worry be happy.
when they cant defend that arguement. with
anything other than some unscientific poll
on some small site. they start saying that the
people who point out there errors in logic
are employees of DTV.
those people are dangerous. all i say is go
ahead and go to there site and look around.
if you feel it is better than here great.
just one warning do not i repeat do not drink the KOOL AID lmao.

[jones07]

wumarkus.com is also a good place to go for info. You can never have to much information or to many places to find it. ;)

Also some people may like the Non-hacking talk policy. A very Comfortable place for end-users from the USA who are being sued or think they are due to be sued.

[tcan]

Quote: "the only other thing is if you deny you recieved it
or ordered it. they have the dealer do a sworn
statement to the effect that you did and you plan
to use it to steal dtv's signal. just learned that
tidbit last week"

REDx: That is nonsense... The dealer that provided those names
should know he is going to be sued... The parties to a Malicious
Prosecution can all be individually sued. The dealers that are making up names & records are butt stupid... they will find themselves part of a class action & every final suit...

The biggest liability to DTV, in Court, is the cast of characters. The discovery process allows questioning the dealer and the veracity of those records… IRS fillings, accountant, auditing firm, computer security etc. If a dealer has fabricated those records, to obtain a deal with Dave, he will be find himself under oath committing perjury in front of the Jury. The investigator (call Dave) may be a phone center in a federal prison, that may not look good to a jury, or he may have broken a federal law in his communications.

The discovery process provides your side info on all of Dave’s slight-of-hand and he may not want some of those characters in a court of law.

[gunsmoke2]

If that were the case, why would you be contacting your dealer instead of DirecTV itself?


Since you bought it from your dealer it stands to reason you contact your dealer. Dealers can replace cards and they can buy them from DTV unless that's changed



GS2

[REDx]

Originally posted by tcan


REDx: That is nonsense... The dealer that provided those names
should know he is going to be sued... The parties to a Malicious
Prosecution can all be individually sued. The dealers that are making up names & records are butt stupid... they will find themselves part of a class action & every final suit...
[/B]
nonsense or not thats what they are doing, or
are you calling those lawyers liar's ?
maybe you should start a class action suit
against those dealers who are doing it.

[whoda]

Sorry for this stupid question but I've been trying to find out what the pacer report is all about?
If you recieved a letter this week should you be on the pacer report?

[Patrick Henry]

Pacer is a government service that allows you to view information (such as lawsuits filed by DirecTV) recorded in Federal District Court. Your name will only be on Pacer if you have had a complaint (summons) issued against you. If you have recieved a demand letter from DirecTV, that is the first step in thier game. More than likely you will receive another if you do not reply in the given time frame.

[whoda]

Thanks for the reply. If I received a letter and the date to call hasn't past yet, my name shouldn't be on a pacer report then right? Could be a coincedence that its' a common last name in the same state that I saw on a pacer report. Just got me worried as the time to call hasn't past yet.