Patterico's Pontifications

4/27/2011

How is This NOT a Violation of Rule 11? (Video Added)

Filed under: General — Aaron Worthing @ 6:56 pm



[Guest post by Aaron Worthing; if you have tips, please send them here.  Or by Twitter @AaronWorthing.]

Update (II): Do be sure to check out Ted Frank’s other blog relating to the Center For Class Action Fairness, which does good work trying to fight abusive class actions. And if you are a member of the affected class, you can volunteer to help Ted fight these things.

Update: Exclusive to Patterico (in the sense that I ripped it off from Ign), we have video of the crime occurring:

Well, it was inevitable, wasn’t it?  I present to you the Playstation Network Security breach class action suit.  Joystiq, a blog I read from regularly, reports:

As expected, the first federal class action lawsuit addressing the recent PSN security breach has been drawn up and submitted to the Northern District Court of California. The complaint, which was filed by the Rothken Law Firm representing 36-year-old Alabama resident Kristopher Johns (as well as every other affected PSN user), accuses Sony of “failure to maintain adequate computer data security of consumer personal data and financial data,” and of failing to take “reasonable care to protect, encrypt, and secure the private and sensitive data of its users.”

Now I have already registered my disdain for class actions generally here, so I won’t bother to repeat myself.  The class representative will get some money.  The lawyers will get rich.  Our prices will go up and we get very little to show for it.

But that first paragraph raised my lawyer antenna.  Consider some of the allegations in the complaint (which I will embed below the fold):

  • “By reason of said special and fiduciary relationship, defendant had a duty of care to use reasonable means to keep the credit card account and other nonpublic information of the Plaintiff and the Class that is in their possession private and secure, and to inform Plaintiff and the Class members forthwith when any compromise of the security of such information occurred. Defendant has unlawfully breached these duties.
  • “defendants had a duty to use reasonable care to prevent the unauthorized access, use or dissemination of the credit card account and other nonpublic information of the Plaintiff and the Class herein. On information and belief, defendants unlawfully breached said duty.”
  • “Pursuant to California Civil Code § 1798.81.5, defendant had a duty to implement and maintain reasonable security procedures and practices to with respect to the credit card account and other nonpublic information of consumers, including, without limitation, the Plaintiff and the Class herein, in order to protect such information from unauthorized access, use or disclosure. On information and belief, defendants unlawfully breached said duty.”

Now, if you read through the complaint, they don’t allege one iota of special knowledge.  This is not an employee of Sony or anything like that.  It’s just one random guy in America, as is typical in these class actions.

So how does he know Sony has done any of those things?  Over and over again, in the complaint claims that Sony failed to take reasonable security measures, but how do they know they didn’t?  Maybe they did, and the hacker beat them anyway. I have been following the story close enough to know that Sony has told us very little about it. So, they don’t know what Sony did to protect the data, and we don’t know what the hacker did to defeat that protection.  Indeed, we don’t even know if anyone’s credit card data has been stolen.

And that is a serious problem because of a little thing called Rule 11.  It’s a rule of Federal procedure that says, in relevant part:

By presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting, or later advocating it — an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery

So if you don’t have evidence to support your contentions, and they are not, at this stage of knowledge, likely to have evidentiary support after discovery, then you have broken this rule.  And what does this rule provide as a remedy?  Well, it can be all kinds of things.  For instance, in the case featured in A Civil Action a violation of Rule 11 resulted in the case being dismissed (by the way, in my opinion that was the right call, despite the biases of the movie—the plaintiffs had no idea what was causing their patients’ ailments).  Other sanctions include forcing the offending parties or their lawyers to pay attorneys’ fees and other costs arising from this.

That doesn’t necessarily sink all of the claims.  I would have to do a detailed study of Californian law to say that.  But many of the claims rely on assertions that Sony didn’t act reasonably, when I don’t know how they can possibly pretend to know they didn’t.  If I was Sony’s lawyer, a Rule 11 sanctions hearing would be on my table.

But then again, maybe California courts, even the Federal courts in California, take a different attitude about these things.  What the rules say and what actually happens in court can be significantly different.  For instance, in Virginia we have a very normal-sounding summary judgment procedure, but good luck trying to actually obtain one, leading many to assert that despite what the rules say, there is no such thing as summary judgment in Virginia state courts.

But if we apply the rules as written, it is hard to understand how this rule has not been violated.

Anyway, the complaint is embedded after the break. And you can read similar thoughts, here.

JohnsvSony Complaint FINAL

[Posted and authored by Aaron Worthing.]

98 Responses to “How is This NOT a Violation of Rule 11? (Video Added)”

  1. Great point.

    The fact is that it’s nearly impossible to make a hackerproof item, but the PS3 had a great reputation for being particularly difficult to hack, taking much longer than the Wii or Xbox.

    They need to explain how they know the PS3 was unreasonably easy to hack. The only people who really know the answer to that are the hackers and Sony.

    Dustin (c16eca)

  2. Aaron, I’ve seen arguments that under Cal Civ Code 1798.81.5, that the breach is sufficient evidence of failure. But that’s an arcane argument.

    You know that this kind of pleading of ultimate facts is not going to be found to be frivolous with respect to facts that are not in the plaintiff’s own possession. This is not anything new.

    SPQR (26be8b)

  3. Oh, and while I am sympathetic to the complaints of abuse of class actions, being a big fan of Ted Frank … given what Sony has been doing to George Hotz, screw ’em.

    SPQR (26be8b)

  4. SPQR

    you can’t get away with any of this in virginia, i know that much.

    The law presumes that sometimes bad things happens and guess what? no one is to blame. Like you can have a car accident and the jury finds no one was negligent, and therefore there is no liability, period.

    in normal negligence, you have to have some idea how the bad thing happened, period. maybe cali is looser. i wouldn’t put it past them. but you wouldn’t get away with it in my neck of the woods.

    Btw, i think cali has serious chutzpah if it thinks its laws govern this situation anyway. Sony is a japanese company, and i am a virginian. i did not consent to Cali having as say in my transactions. i am sure there is a loophole, but cali law should butt the hell out.

    Aaron Worthing (73a7ea)

  5. SPQR

    you do know that this might be in retaliation for what happened to hotz, right?

    not that i even know what they are so upset about anyway.

    Aaron Worthing (73a7ea)

  6. given what Sony has been doing to George Hotz, screw ‘em.

    I disagree. George deserves to face the law. He didn’t just use someone else’s work to make piracy easy, he distributed that information, while exploiting a system in violation of the conditions he agreed to. Then he distributed the ability to pirate to millions of people.

    The good folks who pay for their games were screwed the first time by George, because he made game development less profitable. Then, those who took down the PSN screwed them a second time.

    I say screw George. I hope Sony comes after him with everything he has. Anything less is a license for criminals to engage in cyber terrorism to get their way. I say that as someone who loved OtherOS (used ubuntu) and was really quite ticked at Sony for removing it from my PS3.

    BTW, if you want to look at frivolous legal claims, check out that kid’s defense.

    Dustin (c16eca)

  7. Aaron, yeah, I know the hacking was in retaliation for the Hotz litigation. Does not break my heart that Sony is holding the bag given the dishonest stuff that Sony has pulled in that case.

    I do believe that this is acceptable pleading of ultimate facts in a Federal civil complaint.

    SPQR (26be8b)

  8. I know it’s kinda easy to reject the practice of these terms of use that apply to everything we open and touch these days. Sometimes those seem pretty shady to me.

    But with a product that is as awesome as a PS3, and whose development is practically impossible without a hope for high game sales to recoup a huge investment, I think it’s simply a matter of respect for other gamers, and a matter of basic honesty, to go ahead and not compromise the agreement. At least to some extent. Obviously I don’t care if someone hacks their PS3 or does a little homedev. That’s not similar to distributing a hack to millions of script kiddies. George Hotz didn’t even figure out how to crack a PS3… he just copied someone else’s work (someone who did this to discuss security, and specifically stop short of letting people pirate games, for the basic reason that that’s a dick move).

    This is an industry where lower sales cost good jobs. Some people out there will lose work over George’s self serving drama. I’m glad he’s paying some legal penalty. I hope a portion of his wages are garnished for the rest of his life. Why should anyone hold it against Sony for suing someone who broke an agreement with Sony, causing great damage to their business? I fundamentally do not get it.

    Dustin (c16eca)

  9. That said, Aaron, there are some other defects in this complaint in my opinion, based on today’s Supreme Court ruling.

    SPQR (26be8b)

  10. btw, tornado warning here. going for cover.

    too bad, because i had a very important issue to bring up in a new post…

    http://www.theblaze.com/stories/muslim-actress-receives-threats-for-posing-in-playboy/

    I am telling you, we have to stand up for free speech…

    Aaron Worthing (73a7ea)

  11. Dustin, Sony and Hotz settled. And not for very much at all. Because Sony’s case against Hotz had a lot of problems, including the fair use exceptions to the DMCA claims. And because of Sony’s getting caught lying to the court.

    SPQR (26be8b)

  12. I know they settled, but Hotz doesn’t have much money, so if I recall, Sony got all of Hotz’ paypal money and Hotz agreed never to hack another Sony product. That’s basically 100% of what Sony could possible get.

    You say sony would have gotten more if they hadn’t lied in court. What lie?

    And in what way is hacking this console a fair use exception to DMCA?

    Dustin (c16eca)

  13. Aaron,

    Isn’t the fact that credit card numbers were stored without encryption show some level of negligence?

    Scott Jacobs (d027b8)

  14. BTW, if talking about honesty to the court, I think one has to admit Hotz lied too.

    He claimed to have never signed up for a PSN, but his playstation 3 did sign up for one from his house. (Hotz was using this to claim he didn’t agree to the terms). Then, George fled to South America for some reason, he claims to have a little fun.

    And the court ordered Hotz to submit his personal computer to a third party, but when it got there, the hard drive had been tampered with.

    And soon after Sony made these revelations, George settled the case.

    The fact is that George lied to the court about having a PSN, and he tampered with evidence, and Sony got everything they could have possibly gotten from this case.

    I forgot they settled until this evening, though. I was hoping Sony would get high monetary damages, and perhaps they did for all I know.

    Dustin (c16eca)

  15. Isn’t the fact that credit card numbers were stored without encryption show some level of negligence?

    It would if it were a fact. I read somewhere that a “hacker” was claiming this data was not encrypted, but no one had verified it. Am I mistaken (completely possible)?

    Dustin (c16eca)

  16. Was my personal data encrypted?
    A: All of the data was protected, and access was restricted both physically and through the perimeter and security of the network. The entire credit card table was encrypted and we have no evidence that credit card data was taken. The personal data table, which is a separate data set, was not encrypted, but was, of course, behind a very sophisticated security system that was breached in a malicious attack.

    If Scott’s right, then Sony is outright lying about the credit card data being encrypted.

    Whether it is unencrypted in my PS3 or Sony’s servers, they had better be telling the truth, or they are in deep kimschi.

    Of course, I’m pretty sure they are telling the truth.

    Dustin (c16eca)

  17. Dustin, basically you are quoting Sony’s claims about Hotz as facts. But the reality is that those were among the things that Sony got caught lying to the court about.

    Hotz did not flee, and the hard drive was not tampered with. In fact, that latter is among the more outrageous of your recitations.

    SPQR (26be8b)

  18. NJ muslims complain about anti-mosque racists and threatens to sue.

    Not only that a bunch of illegal aliens sodomized a gay man and bashed his skull in.

    Now to be on topic Isn’t it ironic Chuckie Manboobs[Sounds like a name for a guy belonging to the mafia] is reliefed he didn’t sign on to PSN for fear of his privacy being violated?

    DohBiden (15aa57)

  19. What percentage of Rule 11 filings result in actual sanctions, fines, etc …?

    JD (318f81)

  20. But the reality is that those were among the things that Sony got caught lying to the court about.

    Oh

    Actually, I know for a fact Hotz went to South America. Like I said already, he claims it was for fun.

    the hard drive was not tampered with.

    Oh. That’s interesting. I tried to find verification for this but came up short. Is there a link?

    The components’ SCEA is talking about are hard drives’ controller cards. The neutral [third party which is examining the equipment Hotz was ordered to surrender] subsequently had to explain to SCEA the form and function of hard drive controller cards. It is a stock part that can be purchased at any electronics hardware store. Those controller cards have since been provided to the neutral so the point is moot

    That’s Hotz’s lawyer, who appears to think SCEA made a good faith comment about a missing component. You say that Sony (or perhaps you mean me) was outrageously lying, but Hotz’s lawyer doesn’t go nearly so far. Why in the hell did Hotz take that part out, and then wait for the third party to obtain it later? Yes, Hotz’s lawyer is right that eventually the point was moot because eventually Hotz complied with the court order, but it seems that Sony was right to point out that this is pretty crappy compliance. He was ordered to turn over his computer. When he did, the third party was unable to read the hard drives on it. Seems like someone like Hotz would know how to install a hard drive properly.

    And again, Hotz claimed he didn’t have a PSN account, but Sony proved that was a lie. You have failed to show Sony lying a single time.

    I think maybe you’ve accepted a very tilted version of the facts, on the basis of defending a proven liar, this Hotz POS. He settled with Sony, and while I do not know how much money Hotz gave Sony, if any, I do know Hotz can not hack Sony property in the future. He went from claiming he had the right to do whatever he wanted with it, to agreeing to never do it again.

    Again, this really has nothing to do with the morality PSN being hacked. Your attitude of ‘screw them’ is pretty screwed up, as that affects 70 million innocent people, such as myself. Sure, it also affects Sony very negatively, but it’s cyberterrorism. You think Sony handled their legal dispute in a way you don’t like, so you’re saying ‘screw them’ when someone commits an outright crime against millions of sony’s customers. All this because it’s an outrage to complain that Hotz removed a hard drive controller card when ordered to turn over his computer (according to his own lawyer)? Jeez.

    I agree with Scott that if Sony didn’t encrypt my credit card information, that is negligence, and I’ll seriously reconsider buying Sony products in the future, but given the amazing degree of inaccuracy that Sony deals with from her detractors, I’m going to wait for proof.

    Dustin (c16eca)

  21. I have legal question about this in the sense of how courts will rule on such matters in the future when they catch up to the 20th century :).

    No one reads service agreements, so at some point won’t some judge say, that as a class, service agreements have no validity simply because they are ignored?

    Ag80 (6134b7)

  22. also, Hotz agreed to the jurisdiction issue when he signed up for a PSN. When he claimed he never signed up for a PSN account, he committed perjury. That is a felony.

    It’s one thing to say that the terms and conditions don’t apply to Hotz, because of his pure intentions and specialness, but it’s quite another to say that he can commit felonies, and if you hold that against him, well screw you, and let’s hack your business and make it impossible for your customers to enjoy their property.

    Dustin (c16eca)

  23. No one reads service agreements, so at some point won’t some judge say, that as a class, service agreements have no validity simply because they are ignored?

    Comment by Ag80

    That would be a bad move, because then we’d be unable to have nice things anymore.

    Perhaps a better solution is something like the UCC default rules, only applying specifically to products like iphones, Windows 7, PS3s, etc. Any deviation from these rules could be highlighted.

    As things stand now, it’s easy to read terms and conditions. They scroll in pretty cleartype text across my screen. You have usually have to go to the bottom before you’re allowed to click “I agree”, and you know you’re agreeing to something. If you don’t read it, that’s kinda… on you, no offense.

    If I don’t feel like reading it, I usually do not agree, and wait a few days to see what technology blogs have to say. That’s how I avoided erasing my OtherOS feature on my PS3 for a few weeks before I gave up (seriously still very annoyed with Sony about this, though the hackers make me want to give sony more money).

    Dustin (c16eca)

  24. I don’t think it’s a Rule 11 violation, at least not in the paragraphs you’ve quoted. They’re pleading conclusions, not facts, and the conclusions will track to what they think the relevant legal standards are.

    I haven’t read the whole pleading, but why let that stop me from throwing out some hipshot conclusions?

    I’m not sure whether there’s a fiduciary duty; that seems like it would be a state-law issue on which there would be a lack of commonality in a national class action, unless there’s a choice-of-law provision in Sony’s EULA (which there probably is, and it would be quite typical if it specified California substantive law).

    I get your drift: You want them to plead in much more factual detail than those paragraphs, at least, seem to show. And as part of that, you want to see a fact pattern which could support the conclusions they’ve pleaded, including important things like precisely what conduct is alleged to have violated that standard of care.

    Fair enough. “File a motion for more definite statement or take some discovery.” That’s what most federal district judges would say about that, IMHO. Followed by:

    “If you get to the point of ruling out what they’ve alleged and you think you can also show they ought to have known it was ruled out but they said it anyway, come back and we’ll talk about Rule 11. Until then, you’re just saying they haven’t proved their case yet. Well, it’s not time for that, and they’re going to give you a little bit more specifics, and you’re going to give them some discovery, and then we’ll see what’s what.”

    Or some variation of that.

    And I pretty much agree, actually. The basic fact pattern that Sony has already publicized itself, if I’m not badly mistaken, suggests a very serious data compromise on a huge scale; the generalized risks (that hackers would want a huge list of active gamers’ credit card numbers, for example) are pretty obvious; and announcements like this don’t come along every day. There are indeed gaps in the proof that will need to be plugged up, but they’re the sorts of gaps which can only be filled through access to Sony’s internal documents — through discovery — to confirm, for example, the factual bases on which the computer security expert witnesses will end up rendering opinions.

    Beldar (67f528)

  25. Dustin:

    I understand that, but I think we can imagine scenarios where class-action suits ignore the rule of law simply because individuals are ignorant of the law.

    Ag80 (6134b7)

  26. N.B.: Apologies to non-lawyer readers, I was writing in legal jargon and short-hand to Aaron and Patterico and others who follow such things professionally or out of weird generalized interests.

    I’m NOT saying the law suit is meritorious. I don’t know if it is or isn’t. I think Aaron & I would likely agree that a lot of what it would take for the lawsuit to be genuinely meritorious would have to be established by what he’s complaining isn’t there yet — a much more detailed and persuasive factual scenario to support conclusions of blameworthiness or negligence.

    I’m just saying that what struck him from this complaint as being sanctionable under Rule 11 — likely to get a lawyer fined — doesn’t strike me that way.

    Beldar (67f528)

  27. (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery

    Means this is compliance with Rule 11. IOW, “yes, we don’t have any evidence at the moment, but we sincerely think that we’ll have it once discovery is done.”

    As for the rest of what you’re discussing with SPQR, I don’t follow gaming enough to know WTHYATA.*

    *but I know enough to make up Internet acronyms. In this case, what the h— you are talking about.

    kishnevi (cc1ec4)

  28. I understand that, but I think we can imagine scenarios where class-action suits ignore the rule of law simply because individuals are ignorant of the law.

    Oh yes, I think you’re right that this is a possible problem.

    I also think it would be a tremendous breach of our freedom to make deals with eachother. But then, that’s a common problem with our legal system. I think that’s a fundamental aspect of a lot of ‘you let him buy that and use it in a way that he was too stupid to avoid’ lawsuits.

    Perhaps a nice safety net would be a default terms and conditions, but then, how many customers out there are familiar with the default contract terms, or the penal code of their state? How many of us know how many feet we need our turn signal on before a lane change? The legal system has a lot of cases where the average person doesn’t know the exact rules they are living with. Any reform to this seems impossible, so I guess I’ll just share your hope a judge doesn’t insist ignorance of the law is an excuse.

    I’m just saying that what struck him from this complaint as being sanctionable under Rule 11 — likely to get a lawyer fined — doesn’t strike me that way.

    A rule 11 sanction is an extreme sort of thing, right? You have to really have screwed up to get to that point? I guess Aaron’s point is that they are asserting they already know Sony wasn’t reasonable, and they don’t really know that at all. They are lying to say they know that. But your point is that the system will just move towards discovery rather than shutting down the suit.

    Perhaps class actions should require a higher burden somehow. I fell pretty pie in the sky whenever I try to propose a reform to civil law, so I’ll just shut up.

    Dustin (c16eca)

  29. @Dustin & Ag80: There’s a considerable, and growing, volume of precedent — a lot of it from federal courts in California, but not all of it — upholding so-called “click-through shrink-wrap” user agreements and licenses. There must be some affirmative step taken — literally a mouse click or, better, some road-block that the user has to navigate to use the product and by which there’s a conspicuous warning that the user is giving consent. But the fact that 99.999% of them aren’t actually read — that’s not fatal at all to their enforceability.

    If that begins to break down around the edges, it’s the provisions by which the users are typically “agreeing” to waive really important personal rights secured by the federal constitution — like your due process right not to be sued in a state where you don’t “do business” or maintain a substantial presence. Lots of these agreements say, “We live in California, so even if you live in Des Moines, the only place you and we can have a lawsuit is here in Los Angeles. Not only do you have have to come and get us here if you want to sue us, but we can sue you here too, even though you live in Iowa.” That’s on the harsh ragged edge of unconscionability, I think — too much of a penalty and forefeiture. But I haven’t seen a case yet where that’s been properly preserved as an error and then litigated. And I may never, because lots of these agreements also have mandatory arbitration clauses that make court appeals almost impossible.

    This is complicated stuff, and because so many of the tech companies are in California, there are lots more lawyers there who do this stuff than anywhere else.

    Beldar (67f528)

  30. which the users are typically “agreeing” to waive really important personal rights secured by the federal constitution — like your due process right not to be sued in a state where you don’t “do business” or maintain a substantial presence.

    This is one of the provisions Sony forces PSN users to agree to, actually. It was a central facet of George Hotz’s failed defense. It certainly didn’t help that George forced Sony to prove his PS3 did sign up to the PSN, and thereby agreed to these terms (George claimed he did not). Leaving the facts aside, I think the problem is that we live in a world where digital content can be abused all over the place, and I don’t think it’s fair to force a company to learn all kinds of jurisdictions, or hire attorneys wherever they have customers.

    My pie in the sky solution would be a special court for these kinds of controversies, with rules to make it easy to handle the case without appearing in a courtroom at all, and legal rules that are easy to follow, and predictable. and an overt warning that you are agreeing to this court’s jurisdiction.

    Dustin (c16eca)

  31. @ Dustin (#28): Yeah, Rule 11 sanctions are basically judicial spasms which translate essentially to:

    “Oh, man, I can’t believe you wasted my time and everybody’s time on this turkey, and you’re gonna be sorry you did before I’m done with you!”

    As for their being higher hurdles for class actions, in some ways there are. It’s reasonably common for defendants to argue that these are fishing expeditions, and to ask that “merits discovery” (including rummaging through the defendants’ books and records) be delayed until after threshold issues (like the adequacy of the named plaintiffs for purposes of representing the class and any subclasses, or discovery limited to issues of class commonality) be resolved. Sometimes that works, sometimes not: Some judges sequence, some order merits and ancillary issues to proceed simultaneously. (That generates more settlement pressure.)

    I’ve only defended a small handful and they all settled early, but I had occasion to watch a really huge one play out (on behalf of a similarly situated client whose case was more or less next in the queue behind the one I was watching). And I have yet to be convinced that anything other than the roughest justice can ever be done through them in the real world, and even that only very, very rarely.

    Class actions are the kudzu vine of the litigation business, and either Congress or the SCOTUS will take a big whack at them once every few years, but the damn things are impossible to stamp out.

    Beldar (67f528)

  32. “their being” –> “there being”

    Beldar (67f528)

  33. Class actions are the kudzu vine of the litigation business, and either Congress or the SCOTUS will take a big whack at them once every few years, but the damn things are impossible to stamp out.

    I’d be satisfied with getting rid of those sorts of settlements which consist of a lot of money going to the lawyers and vouchers or coupons to the ‘class’ which can only be used to purchase goods/serviced from the company being sued. (And often enough, coupons with such twisted rules that they would are nearly impossible to use.) Lawyers win, defendant company wins (or at lest gets a chance to get its money back), supposed plaintiffs–who cares about them?

    kishnevi (cc1ec4)

  34. goods/serviced ==goods/services

    they would are nearly impossible ==they are nearly impossible

    I think my brain is trying to give me a hint that it’s time to go so sleep.

    kishnevi (cc1ec4)

  35. I think Kishnevi’s solution sounds great, but how do we enforce it?

    The reason this scheme works is that the company settles the case. They want to settle it for as little expense as possible.

    I still think this is the best way to reform the problem, though. I’d just like to make a rule limiting the lawyer’s fee to a reasonable representation of the value of their service. No doubt, the value of their service to me, a PSN user, is extremely low.

    I’d like to limit their compensation to what class members agree they have earned, not to exceed what the class members earned. If Sony gives me a $10 coupon, the lawyers have to get me on record agreeing that I am satisfied with their services.

    Perhaps (and I think this is just the other side of the class action problem), I wanted something better than what my class lawyers got for me, and I’m not satisfied at all. Sometimes, these lawyers only get a donation to a charity, or some stupid label.

    If the lawyers can get 1000 people to agree they are satisfied, and those 1000 people got $10 each, the lawyers’ compensation is limited to $10,000. Just something like that.

    If anything, they should have a class of class members to sue their lawyers for ripping them off. I know, they send out those post cards where I can reserve the right to sue on my own, but that’s just crap.

    Dustin (c16eca)

  36. will likely have evidentiary support after a reasonable opportunity for further investigation or discovery

    it shouldn’t be hard to depose a security engineer who will say that this kind of breach must be the result of negligence and that discover will certainly provide evidence of same.

    i think the evidence-after-discovery out makes a rule 11 motion in this case useless.

    aphrael (9802d6)

  37. Ya know this is bush’s fault

    /heh

    DohBiden (15aa57)

  38. it shouldn’t be hard to depose a security engineer who will say that this kind of breach must be the result of negligence and that discover will certainly provide evidence of same.

    Of course not. Hell, Instapundit’s claim is that Sony shouldn’t collect this data if they can’t protect this data. I get the logic in that, but I think this really depends on what the hackers had to do. Was this data encrypted, and only accessed via hacking a PS3, originally requiring voltage modifications to a memory chip to allow access to the root key?

    That’s harder to do than it would be for me to kick down a door and grab a locked file cabinet, and then smash it open.

    Honestly, nothing is totally secure. It’s conceivable that someone could hack your email and decrypt some file you emailed yourself with private data. But Sony has deep pockets, and many will just accept that they should have forseen any hacking possibility.

    I still agree with Scott’s point that if Sony left credit card information unencrypted, then they should pay heavily.

    Dustin (c16eca)

  39. originally requiring voltage modifications to a memory chip to allow access to the root key?

    Not to mention, I’m skipping a lot of steps… and they aren’t easy ones.

    Dustin (c16eca)

  40. Re class actions, I don’t think I agree with you guys who are against them. As I understand it, the purpose of class actions is to deter people from making fortunes by ripping off a lot of people for a little bit each. If I ripped one person off for $100K it would be worth his while to sue me, but what if I rip off 100K people for $1 each? Even if each of them is sure he’s been ripped off, and is angry about it, it’s not worth anybody’s while to do anything about it, so I get away with it. And having got away with it, I’d be a fool not to start plotting my next scam. But if some lawyer finds out about it and certifies a class, it’s worth his while to make me disgorge that $100K plus costs and perhaps punitive damages, because he’ll end up with 1/3 of it. And the law allowing him to do this means I have a reason not to engage in such schemes in the first place.

    Milhouse (ea66e3)

  41. 🙁

    Dustin (c16eca)

  42. That emoticon is a hyperlink.

    Dustin (c16eca)

  43. Here is what I recall reading happened:

    Some enterprising young lad figured out how to get Developer access to PSN. This gave him all sorts of access to content and options not available to your standard user. Building from this, someone was able to expand his access, leaving all of PSN open before him.

    I’m missing steps and items, I know.

    But from what has been reported, CC data was plain text.

    I had thought there were federal laws about that.

    Maybe Sony thought no one could get that kind of access from a console, but that’s stupid, and I don’t think it was even remotely enough.

    Scott Jacobs (d027b8)

  44. Stupid question but didn’t the SCOTUS just essentially strike down virtually all class action lawsuits since almost every contract has an arbitration clause in it these days? doesn’t that mean this lawsuit goes nowhere fast?

    Rorschach (c5574d)

  45. Lefty liberals[which aren’t liberals] are big fans of violating ones privacy.

    DohBiden (15aa57)

  46. Comment by Milhouse — 4/27/2011 @ 11:55 pm
    I’m not against class actions in general. I’m just against class actions in which the lawyers get the money and the members of the class get nothing of real value; I’m especially against the kind where the settlement is essentially a means to guarantee future sales for the defendant.

    I’d like to limit their compensation to what class members agree they have earned, not to exceed what the class members earned. If Sony gives me a $10 coupon, the lawyers have to get me on record agreeing that I am satisfied with their services.

    Sound reasonable to me. Actually, since these settlements require the consent of the court (or at least all the ones I’ve seen) put a rule in place that doesn’t allow coupons as part of the settlement–or at least, allows each member of the class of plaintiffs to opt for a cash amount in lieu of the coupons, or caps the coupons at a maximum percentage of the compensation (say, 25 or 30 percent).

    Or, alternatively, require all attorney’s fees to be paid in the same medium as what the plaintiffs get. So if you, as a plaintiff in the Sony action, get a $10 coupon and nothing else, then the lawyers get paid in $10 coupons and nothing else. I can guarantee you that if such a rule was in place, these coupon settlements would be a thing of the past.

    kishnevi (38f6c3)

  47. Beldar

    No offense, but you really need to read their complaint. that have nothing but those conclusory allegations to support their claims. and following the news, i don’t know how they could possibly pretend to know more.

    That isn’t enough, especially after iqbal.

    Aaron Worthing (e7d72e)

  48. “and following the news, i don’t know how they could possibly pretend to know more.”

    But the rule requires “belief… following an inquiry reasonable under the circumstances.” Are you saying they should, under the circumstances, have had more inquiry?

    They could have just used notice pleading. But this at least lays out the directions they plan to go in their case. That should be encouraged.

    daniel (9d38d7)

  49. nothing is totally secure.

    true dat.

    aphrael (9802d6)

  50. Just to make sure there is no confusion, Hotz did not hack into the Sony network. Hotz explained how to circumvent some protection features of the Play Station itself that prevented users from installing and running their own programs on it … ( not unlike the Air Force that is using PS3’s for a huge array multi-processor supercomputer installation … ). This is related to Sony’s removal of the ability to run linux on the PS3 – for which they were sued in a class action as well.

    Here are some articles posted on Groklaw with a pro-Hotz pov for those who wish to see the counter to Dustin’s recitation of Sony’s spin.

    SPQR (26be8b)

  51. So if you don’t have evidence to support your contentions, and they are not, at this stage of knowledge, likely to have evidentiary support after discovery, then you have broken this rule.

    You don’t understand how Rule 11 works. This sentence proves it. Lots of lawyers — ones who actually practice in courts — who have read this sentence are laughing at you.

    Under your “spin” of Rule 11, very few cases would pass muster. Put bluntly, you don’t look at the evidence that a pleading plaintiff has to support the contentions in his pleadings. That is what discovery is for. In fact, an entire complaint can be alleged “on information and belief” and still not run afoul of Rule 11.

    But you would have to be a litigating attorney to know these things.

    Kman (5576bf)

  52. kman

    lol you don’t know one constitution from another and you are lecturing me on the law?

    > Put bluntly, you don’t look at the evidence that a pleading plaintiff has to support the contentions in his pleadings.

    Well, good because i didn’t say that. i said you have to look at their evidence and what is likely to be true.

    Aaron Worthing (e7d72e)

  53. > Put bluntly, you don’t look at the evidence that a pleading plaintiff has to support the contentions in his pleadings.

    Well, good because i didn’t say that. i said you have to look at their evidence and what is likely to be true.

    Nope. Sorry. Thanks for playing.

    Rule 11 acknowledges that “sometimes a litigant may have good reason to believe that a fact is true or false but may need discovery, formal or informal, from opposing parties or third persons to gather and confirm the evidentiary basis for the allegation.” (Commentary to Rule 11)

    Even then, a litigant isn’t sanctioned under Rule 11 if those factual contentions fail to pan out; he’s only sanctioned if he persists on asserting they are true in the clear absence of supporting evidence (and after having had opportunity to do discovery).

    But it is perfectly fine to plead as he did. There aren’t any Rule 11 violations (at least not now).

    Kman (5576bf)

  54. Kman, I’m a litigating attorney. In fact, I’m one that filed my first equivalent to a Rule 11 sanctions motion (under California state law) in 1998.

    And I’m only laughing at you.

    SPQR (26be8b)

  55. Hotz did not hack into the Sony network.

    Probably this is true, but it’s certainly not known for a fact.

    SPQR, thanks for the link, but I’m not issuing pro sony spin. I’m simply stating the facts. Hotz was sued for hacking Sony stuff. His case said it was his property and the issue was that he could do whatever he wanted to his property, and later agreed to never hack Sony stuff again, so I think Sony won.

    You’ve said Sony lied, and when I checked, I was able to quote Hotz’s own lawyer contradicting your position, which I think is pretty compelling.

    not unlike the Air Force that is using PS3′s for a huge array multi-processor supercomputer installation

    No, I don’t think they circumvented Sony’s protection features. You can run a cluster under OtherOs, and they can run OtherOS because they never downloaded the newer firmware.

    The PS3 was the most open console out there with otherOS. I ran firefox and even some office applications, and it was neat. I am very irritated that sony removed that feature, but then, they did that to preserve their business model’s viability because Hotz was hacking the PS3 (and indeed, he was doing this *before* the otheros feature was removed).

    Hotz said on his own blog in 2009 he was hacking the PS3. OtherOS wasn’t removed until March 2010. I don’t know why you have consistently gotten the facts wrong. It doesn’t help that Hotz has made his blog unreadable unless you’re invited, but you can easily verify everything I’ve said with google. I guess you merely say Hotz’s hacking is related to OtherOS removal, so perhaps I just misunderstand you. You make it sound like Hotz was an activist trying to preserve the feature, but his hacking caused its removal (rather than the other way around).

    Also, would hacking the PS3 network be possible without hacking the PS3? No. So every PS3 gamer should blame Hotz specifically. Opening up these systems allowed this to happen. I wouldn’t be surprised if Hotz had something to do with the intrusions into the network, either.

    Anyway, you’re usually more reasonable than this, so I guess you just dislike Sony. A lot of people do, ever since that Rootkit BS years ago. But in this case, you’ve failed to show a single lie on Sony’s part, and the ones you’ve claimed were lies I showed were not lies.

    Dustin (c16eca)

  56. And I’m getting really, really tired of the PSN being down. It seems to me like this has been long enough, and Sony is not looking so great.

    Sure, I blame the anti-sony idiots who engaged in this hacking because of spin and lies they read on the internet. With respect, SPQR, you also said ‘screw them’ regarding this major and costly crime, but even your worst accusations amounted to their legal arguments, in a court of law, rather than anything horrible. That is quite extreme and unfair.

    But I am starting to blame Sony for reacting way too slowly to this problem, and I think Aaron and Scott’s earlier discussion of the negative implications of a free game service make a lot of sense now. Does Sony feel they owe me a quick repair, or do they feel that it’s a free service, so they are off the hook?

    Dustin (c16eca)

  57. Kman, I’m a litigating attorney. In fact, I’m one that filed my first equivalent to a Rule 11 sanctions motion (under California state law) in 1998.

    And I’ve dealt with Rule 11 motions in federal court since 1994. Even once got a court to issue an order to show cause why Rule 11 shouldn’t be applied against my opponent… based on the improper Rule 11 motion against me (that was sweet).

    Kman (5576bf)

  58. Just got this new update from Sony.

    Valued PlayStation Network/Qriocity Customer:

    We have discovered that between April 17 and April 19, 2011, certain PlayStation Network and Qriocity service user account information was compromised in connection with an illegal and unauthorized intrusion into our network. In response to this intrusion, we have:

    1) Temporarily turned off PlayStation Network and Qriocity services;

    2) Engaged an outside, recognized security firm to conduct a full and complete investigation into what happened; and

    3) Quickly taken steps to enhance security and strengthen our network infrastructure by re-building our system to provide you with greater protection of your personal information.

    We greatly appreciate your patience, understanding and goodwill as we do whatever it takes to resolve these issues as quickly and efficiently as practicable.

    Although we are still investigating the details of this incident, we believe that an unauthorized person has obtained the following information that you provided: name, address (city, state/province, zip or postal code), country, email address, birthdate, PlayStation Network/Qriocity password and login, and handle/PSN online ID.

    It is also possible that your profile data, including purchase history and billing address (city, state, zip), and your PlayStation Network/Qriocity password security answers may have been obtained.

    If you have authorized a sub-account for your dependent, the same data with respect to your dependent may have been obtained. While there is no evidence that credit card data was taken at this time, we cannot rule out the possibility. If you have provided your credit card data through PlayStation Network or Qriocity, to be on the safe side we are advising you that your credit card number (excluding security code) and expiration date may have been obtained.

    For your security, we encourage you to be especially aware of email, telephone, and postal mail scams that ask for personal or sensitive information. Sony will not contact you in any way, including by email, asking for your credit card number, social security, tax identification or similar number or other personally identifiable information. If you are asked for this information, you can be confident Sony is not the entity asking. When the PlayStation Network and Qriocity services are fully restored, we strongly recommend that you log on and change your password. Additionally, if you use your PlayStation Network or Qriocity user name or password for other unrelated services or accounts, we strongly recommend that you change them, as well.

    To protect against possible identity theft or other financial loss, we encourage you to remain vigilant to review your account statements and to monitor your credit or similar types of reports.

    We thank you for your patience as we complete our investigation of this incident, and we regret any inconvenience. Our teams are working around the clock on this, and services will be restored as soon as possible. Sony takes information protection very seriously and will continue to work to ensure that additional measures are taken to protect personally identifiable information. Providing quality and secure entertainment services to our customers is our utmost priority. Please contact us at http://www.eu.playstation.com/psnoutage should you have any additional questions.

    Sincerely,
    Sony Network Entertainment and Sony Computer Entertainment Teams

    Sony Network Entertainment Europe Limited (formerly known as PlayStation Network Europe Limited) is a subsidiary of Sony Computer Entertainment Europe Limited the data controller for PlayStation Network/Qriocity personal data

    No matter how you slice it, that sucks for Sony customers. I actually think I may have reused my security verification question/answer on a few different sites, so I consider this to be a serious breach. It’s really my mistake too, for trusting Sony’s security to not get hacked. I knew they were a big target for punkass losers.

    Dustin (c16eca)

  59. Damn, I meant to bold this:

    It is also possible that your profile data, including purchase history and billing address (city, state, zip), and your PlayStation Network/Qriocity password security answers may have been obtained.

    Dustin (c16eca)

  60. Kman @58 is relying on his reputation for honesty on this blog.

    hilarious.

    Aaron Worthing (e7d72e)

  61. Kman also confused the issue a little between whether this would result in sanctions, or whether the rule was actually violated.

    I know, legal issues confuse Kman. That’s why he has to assert that he’s a great legal mind, instead of showing us great legal thinking.

    Dustin (c16eca)

  62. Kman also confused the issue a little between whether this would result in sanctions, or whether the rule was actually violated.

    *facepalm*

    Kman (5576bf)

  63. No, Kman, that’s not a facepalm. It’s one thing to realize that in all practicality, the courts are likely to just let the discovery process proceed. It’s another to note that there is no way the plaintiff knows the facts alleged yet.

    Plenty of violations of rules are handled via discretion. It’s possible to break a rule and not be in trouble over it.

    Facepalm away, legal scholar.

    Dustin (c16eca)

  64. It’s another to note that there is no way the plaintiff knows the facts alleged yet.

    Which describes about 95% of all lawsuits before discovery is taken. it is not a violation of Rule 11.

    Kman (5576bf)

  65. By presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting, or later advocating it — an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

    (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

    (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

    (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery

    And yet being sanctioned is unlikely.

    It doesn’t seem like Kman understands this law, and I have to wonder just how much experience he has with this matter at all. Sure, I won’t get a speeding ticket for going 5 mph over the speed limit, but that doesn’t mean the speed limit is 5 mph higher than the sign says it is. This is pretty basic stuff.

    Dustin (c16eca)

  66. Which describes about 95% of all lawsuits before discovery is taken. it is not a violation of Rule 11.

    Except you’re just making crap up now.

    Making a claim before a reasonable inquiry, without evidentiary support, is a black and white violation of rule 11. Just read the damn thing.

    Beldar’s commentary is helpful. Just because the rule was violated doesn’t mean we can expect sanctions. Kman is just saying the opposite of what Aaron says, and as usual he does so in a way that shows a very superficial or even nonexistent logic.

    Dustin (c16eca)

  67. Dustin, the reason I seem unreasonable to you on this is because you keep claiming that Sony’s allegations are facts.

    And your method of “proving” that I’m wrong? Well, when I challenged that you wrote that Hotz “fled” to South America, that he did go on a vacation to South America was your proof. When Hotz’ hard drive is removed by Sony without its controller card, suddenly its “tampered with” even though the company tasked with examining it does not so characterize it. And so on.

    As for my bias against Sony, I’ve hardly concealed it. And it dates back to when Sony put rootkit s/w on its music CDs.

    SPQR (26be8b)

  68. Beldar’s commentary is helpful.

    I’m agreeing with Beldar, who doesn’t think it is a Rule 11 violation (#24).

    Kman (5576bf)

  69. (** looks at sole of shoe**) oh, Kman, you are still here?

    SPQR (26be8b)

  70. SPQR, I find your bias against Sony to be rooted in a reasonable case of Sony being an asshole.

    I don’t intend to present sony’s side so much as I’m simply giving my take on this case. I think Hotz is a POS, frankly, and I am convinced by the facts (as I understand them) that he’s simply not honest. He simply opposes someone that a lot of people have little sympathy for, which I understand but don’t agree with. Sony and their 77 mill customers don’t really deserve this attack.

    Anyway, we’ll just have to agree to disagree to some extent. If I’m misstated your position, I apologize. I only say this because I may have interpreted your ‘screw them’ to relate to the hacking when you may have meant ‘screw them’ in reference to the class action lawsuit.

    I’m curious: could he class plaintiff have filed a pre-suit investigation petition? Or by any other name, have filed for discovery without making claims before they had evidence of those claims after some reasonable inquiry?

    I have to assume the answer is yes.

    Dustin (c16eca)

  71. I’m curious: could he class plaintiff have filed a pre-suit investigation petition? Or by any other name, have filed for discovery without making claims before they had evidence of those claims after some reasonable inquiry?

    I have to assume the answer is yes.

    The answer is no. Under federal law, the only time you can get pre-suit discovery is when you need to preserve evidence that risks going away. And what’s more, you have to show that the evidence you are preserving is already known. in other words, you can’t go on a fishing expedition.

    Kman (5576bf)

  72. I’m agreeing with Beldar, who doesn’t think it is a Rule 11 violation (#24).

    Remember, Kman relied on my specific claim that the plaintiff did not know the facts asserted. Kman even quoted that and then said it’s not a Rule 11 violation, even though obviously that would be. That’s not at all what Beldar said. He instead claims the facts are known enough.

    Yes, this is a great example of Kman’s inability to keep up with a normal good faith disagreement about a legal issue. He just wants to find any disagreement with Aaron that sounds intelligent and use that to show how ‘everyone is laughing at Aaron’ and other stupid insults Kman always floods threads with.

    Kman: try reading the people you’re relying on more carefully in the future. Also, I recall you claiming this blog is an echo chamber, and explaining why that’s beneath you and terrible. May I please comment on your blog? What’s the URL, so all the commenters here may comment on your blog? Are you simply lying about your values?

    Dustin (c16eca)

  73. Yeah, a quick look around seems to suggest that Kman is correct that presuit discovery is not normally possible.

    I guess I see the reasoning behind it.

    Dustin (c16eca)

  74. Remember, Kman relied on my specific claim that the plaintiff did not know the facts asserted.

    Where did I do that?

    Kman even quoted that and then said it’s not a Rule 11 violation, even though obviously that would be.

    It’s not a Rule 11 violation. Plaintiffs can assert something “on information and belief”, which is basically ADMITTING they don’t KNOW (for a fact) that something is true, but believe it might be. Asserting allegation “on information and belief” is not a violation of Rule 11.

    I just realized…. You’re not a lawyer, are you?

    Kman (5576bf)

  75. Kman

    > Which describes about 95% of all lawsuits before discovery is taken

    That’s bullsh__. I have never filed a case where I wasn’t reasonably sure an actual violation of law had occurred. And I don’t know any lawyer who has. with the obvious exception of you, apparently.

    You don’t file and then go on a fishing trip hoping to discover bad conduct. You only file if you have reasonable cause to believe it actually happened.

    Just because sometimes its tough to learn what the other side did wrong, doesn’t allow you to substitute hopes for facts or reasonable conclusions.

    Actually most causes of action don’t require a deep investigation. For instance, an auto accident. You talk to your client, and you are entitled to believe their side of it. Same with contract actions. it is very rare that you are injured but you have no idea how that person injured you.

    Aaron Worthing (e7d72e)

  76. Will Obama give his campaign money to help the tornado ravaged states or is that a violation of his privacy commies?

    DohBiden (15aa57)

  77. “And I’ve dealt with Rule 11 motions in federal court since 1994.”

    Kman – You’re a file clerk?

    daleyrocks (bf33e9)

  78. I just realized…. You’re not a lawyer, are you?

    Comment by Kman

    Nope. I’m surprised it took you this long to tell, what with my ‘hey, I’m curious about this basic aspect of the law’ questions I post out of sheer curiosity.

    doesn’t change the fact that you completely misunderstood Beldar’s point, as I explained already. You said that if someone doesn’t know the facts of their case, as in 95% of the cases you’re aware of, that’s not a rule 11 violation, despite that plainly being what rule 11 forbids.

    Just read the law. It’s not really that hard to do.

    Dustin (c16eca)

  79. DUSTIN: It’s another to note that there is no way the plaintiff knows the facts alleged yet.

    ME: Which describes about 95% of all lawsuits before discovery is taken.

    AW: That’s bullsh__. I have never filed a case where I wasn’t reasonably sure an actual violation of law had occurred.

    Pay attention, AW. We’re talking about the FACTS alleged, not whether or not there has been an actual violation.

    You can plead that there has been an actual violation, without knowing every single fact about how that violation came about. The complaint in this post is a typical example, and MOST complaints have “information and belief” paragraphs.

    For example:

    3. On information and belief, defendant entered plaintiff’s house through a broken window in the basement.

    4. Defendant then proceeded to steal plaintiff’s stuff.

    See there? I’m guessing some facts, but still alleging a violation. And I haven’t violated Rule 11.

    See how that works?

    I’ll send my tutor’s bill via email.

    Kman (5576bf)

  80. Kman, Beldar said he thought the factual basis was there.

    I stipulated a scenario where they were not there, and you said that wasn’t a Rule 11 violation. You said that 95% of cases do not have the asserted facts known by the plaintiff. Then you said Beldar agreed, and I noted you were incorrect.

    Ya know, now is not the time to pretend to be the genius. You’re clearly a dishonest and lazy troll who doesn’t understand Rule 11.

    Dustin (c16eca)

  81. Just read the law. It’s not really that hard to do.

    No, it’s often not, and I applaud the initiative.

    But reading the law means more than reading just one sentence of a statute. It means reading the commentaries and the caselaw. It’s very easy to MISlearn the law if you don’t know the trappings.

    Kman (5576bf)

  82. You’re clearly a dishonest and lazy troll who doesn’t understand Rule 11.

    LOL. Okay, Sancho!

    Kman (5576bf)

  83. “Pursuant to California Civil Code § 1798.81.5, defendant had a duty to implement and maintain reasonable security procedures and practices to with respect to the credit card account and other nonpublic information of consumers, including, without limitation, the Plaintiff and the Class herein, in order to protect such information from unauthorized access, use or disclosure. On information and belief, defendants unlawfully breached said duty.”

    I happen to know the head of security for Sony Online Games — he and I used to work at a government laboratory, where he had been in charge of IT security. Anyone who claims that he breached a duty to “implement and maintain reasonable security procedures” is talking bullshit. This guy was very meticulous, very honest, and very, very competent at the lab, and he’s well-respected in his field — that’s why Sony lured him away to work for them. One reason Sony was able to grab him was because he felt that The Powers That Be at the lab weren’t taking security seriously enough.

    Murgatroyd (fd5fcd)

  84. At least somewhat relevant (via Althouse)

    Which suggests how far you have to go to get sanctioned under Rule 11.

    kishnevi (2d88a8)

  85. Ok Sancho

    Who is Sancho your inflatable doll?

    DohBiden (15aa57)

  86. Ok Sancho

    Who is Sancho your inflatable doll?

    DohBiden (15aa57)

  87. It’s very easy to MISlearn the law if you don’t know the trappings.

    Sorry, Kman, that doesn’t fly. The law is black and white, and sanctioning someone for breaking it is highly discretionary and rare. You flip from the former to the latter issue over and over again, but that’s because you’re unable to rely on the law.

    This is not complicated. That’s why it’s so helpful that you quoted my version of a scenario, where the plaintiff actually doesn’t investigate or know the facts they alleged. That is obviously a violation of Rule 11. you have asserted that it’s not, without really arguing at all how it’s not, but just insisting you’re an expert, and also insisting Beldar said something he did not say. Beldar made a more narrow point, about conclusions stated, with facts already known to the plaintiff, and some gap in facts to be found through discovery. Again, that’s why it’s so helpful that you quoted my scenario.

    We now have to argue over whether the plaintiffs know that Sony was unreasonable in their data protection, or if this violation of rule 11 is going to punished. Those are also important issues, but as a lawyer, if you really are one, you can’t separate the issue of likelihood of punishment from whether the law was broken?

    Dustin (c16eca)

  88. I accidentally double posted.

    DohBiden (15aa57)

  89. Kishnevi, God I hate truthers.

    Dustin (c16eca)

  90. Wow, this has gotten way too personal! Can we stipulate that the practicing lawyers who comment here, including those who’ve dealt with Rule 11 motions, aren’t infalible or all-knowing, and stipulate that some of the non-lawyer commenters may still have valid viewpoints, even if they diverge?

    In every determination of a Rule 11 motion I’ve ever come across, there’ve been lawyers on both sides who emphatically disagree. That’s no accident.

    I understand the desire of some folks to know, in the abstract, whether Rule 11 has or hasn’t been violated, in the assumption that a binary “yes/no” structure is implied by it. That’s a bit too epistemological for my tastes.

    I believe that Rule 11’s main benefit is its in terrorem effect. Its main value comes from the pleadings it deters — or the additional investigation that it encourages before pleadings are filed — and it’s the mere prospect of having to argue about such things, and the much more remote prospect of actually being punished, that drives the deterrence/encouragement.

    I’ve skimmed the whole complaint now. I agree that it doesn’t plead specific objective facts that could, if proved, survive a directed verdict motion, much less support a judgment. That’s what I had previously assumed too.

    But it’s certainly not obvious to me that such facts can’t be developed through pretrial discovery. And it’s not obvious to me that much more investigation could (and therefore should) have been done without Sony’s cooperation or the compulsion of pretrial discovery mechanisms.

    If I represented Sony and some in-house lawyer there came to me with the same argument Aaron’s made, I would listen to him — respectfully — and then I would try to share with him my very subjective near-certainty that a Rule 11 motion would be a waste of time and a strategic mistake (basically for “Caesar’s wife” reasons that I doubt can be ruled out even with whatever internal information Sony has and hasn’t yet shared with the public; i.e., I’m speculating).

    That’s a judgment call (or actually, a broad judgment based on a series of smaller ones). But selling that judgment is how I make my living.

    In fact, Sony will choose to rely instead on the judgment of other outside counsel, not mine, and they may come to a different judgment, and they might even be proved right. If so, I’ll be surprised. And the expression here of my contrary judgment will prove to be worth all that Sony has paid for it in that event.

    Beldar (67f528)

  91. I think you’ve made that case very well, and I apologize that the dispute brought you into it. I don’t think it made sense to use your explanation as justification for saying it’s absolutely not a violation of Rule 11 to assert something that is not yet known, though.

    Anyway, you’re right… the discussion got too personal. I apologize for my part of that.

    Dustin (c16eca)

  92. Milhouse (#40): I studied Rule 23 in law school under Mark Tushnet (famously among the most radical of American law professors), and the last class settlement hearing I had anything much to do with featured testimony from Harvard Law’s Arthur R. Miller. They’re both big fans, as you might guess.

    I agree that in theory, they’re fine and dandy, and appropriate to address particular kinds of problems that regular lawsuits don’t adequately address. It’s just that I’ve never seen one actually work in practice the way they’re all supposed to work in theory, and I’ve seen them very badly abused. (Coupons and outrageous legal fees for class counsel, by the way, aren’t even the worst of it.)

    Beldar (67f528)

  93. (Fans of class actions, not of me!)

    Beldar (67f528)

  94. It just seems like with the class actions I’ve read about, or even been a class member of, the lawyers don’t really represent the class members. They don’t put a premium on their interests.

    They act like prosecutors proving the defendant committed a crime, and they deserve to be rewarded with something that isn’t really damages, but rather high legal fees, almost like a bounty.

    Milhouse’s description of the issue class actions deter sounds great to deter, but it also sounds a lot like a crime (some kind of scam scheme).

    I’d rather be represented by my state’s attorney general than some law firm I have absolutely no control over.

    Dustin (c16eca)

  95. You have no control over your state attorney general either. And state attorneys general have no incentive to go after the scams worth going after, or not to go after ones not worth going after, but that they think will gain them political points. I’d rather trust a lawyer with a profit motive.

    Milhouse (ea66e3)

  96. I’d rather trust a lawyer with a profit motive.

    To earn a profit, sure. To serve me as a representative in court? No.

    And yes, the voters have control over their attorney general in a way I don’t think class members have control over these attorneys. Can we pick which law firm represents the class? I bet it’s conceivable, and yet we know it’s not going to happen.

    state attorneys general have no incentive to go after the scams worth going after

    Why do you say such a thing? AGs go after scams all the time. Theirs actually seem much more worth going after than, say this one, where it’s not even clear Sony was unreasonable in their protection of data. Everything from mortgage document fraud to facebook scams have earned the attention of AGs. Clearly they do go after scams.

    I’m sure that process goes astray sometimes, but as often as class action lawsuits? Hardly.

    Dustin (c16eca)


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