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      Our firm emphasizes intellectual property litigation (including trademarks, trade secrets, copyrights, and patents), internet law, startups, complex business litigation, class actions, videogame law, business law, employment litigation, consumer protection litigation, and personal injury/tort litigation. We are actively involved in cutting edge electronic discovery ("e-discovery") matters and Ira P. Rothken is an active member of the Sedona Conference and maintains a blog at on electronic discovery and evidence issues for legal professionals. Here is a CNET News Story Profiling Ira P. Rothken's Career Protecting Internet Technology Companies.

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      Ira P. RothkenIn addition to our robust litigation practice we assist electronic entertainment, high technology, and e-commerce companies in their business, startup, and legal transactions. For example, since the inception of the "commercialized" internet in the mid 1990s, we have represented some of the largest and most successful web sites in the world on a huge range of matters from startup issues to risk reduction strategies to e-commerce policies and agreements. In many instances we were called upon to handle issues where there was no clear precedent and thus we had to innovate a solution.

      We have also helped start numerous successful electronic entertainment and videogame companies including Nihilistic Software, Pandemic Games, Telltale, and Arenanet. Ira P. Rothken, a member of IGDA, has spoken multiple times on how to start a videogame development company at the Computer Game Developers Conference (CGDC). Here is a sample of videogame development transactions in which we assisted our clients:



      Kim Dotcom Files Supplemental Brief in Support of Petition to the United States Supreme Court

      Kim Dotcom and others filed a supplemental brief today in the United States Supreme Court in support of their Petition for Review of the Fugitive Disentitlement related Judgment.
      Here is an excerpt of the supplemental brief below the full brief can be found here.
      Pursuant to Supreme Court Rule 15.8, Petitioners respectfully file this Supplemental Brief in support of their Petition for a Writ of Certiorari.
      Last week, the Sixth Circuit issued two opinions that compound the circuit splits Petitioners have identified surrounding fugitive disentitlement: Unit- ed States v. $525,695.24, Seized from JPMorgan Chase Bank Inv. Account #xxxxxxxx (“Sbeih”), --- F.3d ----, No. 16-3209, 2017 WL 3612006, at *8 (6th Cir. Aug. 23, 2017); United States v. $525,695.24, Seized From JPMorgan Chase Bank Inv. Account #xxxxxxxx (“Salouha”), --- F.3d ----, No. 16-3542, 2017 WL 3613299, at *7 (6th Cir. Aug. 23, 2017). The two opinions address claims by persons residing in Israel and Gaza to property in the United States. The property at issue is allegedly forfeit because it connects to illegal prescription drug sales and money laundering. Sbeih, 2017 WL 3612006, at *1–*2.
      In Sbeih (the lead opinion), the Sixth Circuit has vacated and remanded the Northern District of Ohio’s ruling that Sbeih is a fugitive who has requisite intent to avoid prosecution. Sbeih, 2017 WL 3612006, at *1. While purporting to align itself with the Fourth, Second and Ninth Circuits (contra the D.C. Circuit) on the substantive standard governing fugitive disentitlement (the Third Question Presented), the Sixth Circuit actually adopted a position peculiar to it—vacating application of fugitive disentitlement on facts indistinguishable from those the courts below found sufficient to disentitle these Petitioners and espousing a higher burden the Government should face. As to the procedural standard (the Second Question Presented), the Sixth Circuit took pains to instruct the district court that it must develop a fulsome evidentiary record well beyond that adduced in Petitioners’ case, which was decided based on papers alone. As elaborated below, the Sixth Circuit has thus illustrated the need for this Court to bring clarity and uniformity to the procedural and substantive standards governing fugitive disentitlement.

      Kim Dotcom Files Reply in Support of Petition to the United States Supreme Court

      Kim Dotcom and others filed a reply brief today in the United States Supreme Court in support of their Petition for Review of the Fugitive Disentitlement related Judgment.

      Here is an excerpt of the reply brief below the full brief can be found here.

      While opposing review, the Government barely engages the circuit splits and constitutional concerns Petitioners identify. If ever the views of the United States should be discounted, it is in the context of civil forfeiture and fugitive disentitlement. Here, the United States has a vested financial stake in forestalling review and preserving the prevailing regime. See Brief of Amici Curiae Institute for Justice, et al. (“IJ Br.”), at 4–5, 7–15. The Government today is relatively unconstrained in pursuing forfeiture of assets abroad, and circuits are in disarray as to the bounds of fugitive disentitlement. This Court should clarify the jurisdictional, procedural and substantive parameters governing civil forfeiture.
      The First Question Presented implicates essential jurisdictional limits. The circuits disagree about those limits, with the Second Circuit standing apart in applying “traditional” rules demanding control of property to constrain all in rem proceedings, notwithstanding 28 U.S.C. § 1355. That foreign courts have yet to enforce the forfeiture order and have expressed doubts about ever enforcing it (Petition for a Writ of Certiorari (“Pet.”) 18–19) heightens concern that it is an unconstitutional advisory opinion.
      As to the Second Question Presented, the procedures governing fugitive disentitlement have occasioned sharp splits. Although the Government now doubts preservation (Brief for the United States in Opposition (“Opp.”) 26), it had no such doubt below, pointedly engaging the issue and citing its side of the on-point circuit split. See Supplemental Appendix (“Supp.”) 5a–8a. When the Fourth Circuit opted to review factual findings derived at the pleading stage only for “clear error” (36a), it joined those circuits holding that disentitlement and related factual disputes may be decided on pleadings alone. The D.C. Circuit and Sixth Circuit diverge, however, insisting that resolution of disputed facts await summary judgment, at which point non- movants still deserve all reasonable inferences.

      Finally, the Third Question Presented has further fractured the circuits. While favoring the Second and Fourth Circuit’s “specific intent” standard for fugitive status, the Government blinks reality when denying that the D.C., Fifth, Sixth, and Ninth Circuits substantively differ. Lest there be any doubt, the Second Circuit (which the Fourth followed) has “respectfully disagree[d]” with the D.C. Circuit (as later followed by the Sixth). United States v. Technodyne LLC, 753 F.3d 368, 371, 384–85 (2d Cir. 2014).

      Any principled view of fugitive disentitlement has been abandoned in this case. Cf. Degen v. United States, 517 U.S. 820, 828 (1996) (noting due-process question); Niemi v. Lasshofer, 728 F.3d 1252, 1255– 57 (10th Cir. 2013) (Gorsuch, J.) (expressing qualms); IJ Br. 20–26. Far from being directed towards persons who have fled or avoided our country while claiming assets in it, fugitive disentitlement is being used offensively to strip foreigners of their assets abroad. Contrary to the Fourth Circuit’s view, the mere fact that a defendant simultaneously contests extradition and forfeiture of his foreign assets should not suffice to disentitle him as a “fugitive.”

      These Questions Presented build upon those the Court recently answered to invalidate criminal imposition of fines against innocent persons and forfeiture of untainted property. See Nelson v. Colorado, 137 S. Ct. 1249 (2017); Honeycutt v. United States, 137 S. Ct. ---- (2017). Absent review, forfeiture of tens of millions of dollars will be a fait accompli without the merits being reached. This is especially disconcerting because the Government’s criminal case is so dubious. When the Government characterizes Petitioners as “designing and profiting from a system that facilitated wide-scale copyright infringement,” (Opp. 5), it continues to paint a portrait of secondary copyright infringement, which is not a crime. See Pet. 5 & n.3. If this stands, the Government can weaponize fugitive disentitlement in order to claim assets abroad.

      It is time for the Court to speak to the Questions Presented. Over the past two decades it has never had a better vehicle to do so, nor is any such vehicle elsewhere in sight.


      The Institute for Justice, The Cato Institute, and others file an Amicus Brief in Support of the Megaupload Defendants' Petition to the United States Supreme Court

      Today numerous public interest groups filed an Amicus brief in support of the Megaupload defendants' petition to the United States Supreme Court.
      The groups consist of: Institute for Justice, The Cato Institute, The DKT Liberty Project, Drug Policy Alliance, Americans for Forfeiture Reform, and California Attorneys for Criminal Justice.
      The Amici stated in their papers that:
      "Amici are deeply troubled by the Fourth Circuit’s expansion of federal forfeiture beyond its historical justifications and practice, particularly in light of the direct financial interest that inures to the government. This case offers a good vehicle for this Court to begin limiting civil forfeiture to its historical justifications."
      Below is a summary from the Amicus brief - you can read the full brief here.
      As this Court has consistently recognized, con- stitutional protections must be at their apex when the government stands to financially benefit from its actions. The Fourth Circuit’s decision turns this principle on its head – disregarding essential constitutional safeguards like jurisdiction and due process because the government has sought to take property using civil rather than criminal forfeiture. This Court should grant certiorari to clarify that the Constitution does not have a “civil forfeiture” exception. 
      This case involves civil forfeiture of alleged proceeds from secondary copyright infringement (or the encouraging of others to infringe copyright) – a novel and untested theory of liability not expressly contemplated by the criminal copyright infringement statute. Because the Justice Department is allowed to keep and use the forfeited assets, courts must be especially vigilant to ensure that the forfeiture complied with constitutional requirements. Despite the government’s significant financial incentive in reaping the proceeds of civil forfeiture, the Fourth Circuit dangerously expanded in rem jurisdiction to property not within the control of the district court while denying overseas property owners a meaningful opportunity to contest forfeiture of their property. 
      This case illustrates the degree to which civil forfeiture has come unmoored from its historical origins and how the doctrine’s devolution now threatens fundamental rights. The petition presents an important opportunity for this Court to begin limiting civil forfeiture to its historical origins, and thereby restore the constitutional protections that its modern application has placed in jeopardy. 
      At the time of the Founding, civil forfeiture was justified by the necessity of obtaining “in rem” jurisdiction over property located in the United States – typically ships involved in smuggling – because the person responsible for the crime was overseas and therefore beyond the jurisdiction of United States courts. Today, civil forfeiture is often used to take property even when its owner is within the court’s jurisdiction and could be subjected to criminal prosecution. The Fourth Circuit’s ruling, however, expands a court’s power to civilly forfeit property even further, to cases where the property is not even located within the court’s jurisdiction. If the government can proceed “in rem” in a case where it does not even have control over the res, then the “in rem” doctrine has lost all meaning. 
      This aggrandizement of the federal government’s forfeiture powers necessarily expands the scope of financial incentives available to law enforcement, as vividly demonstrated by this case. Here, the Fourth Circuit affirmed the forfeiture of up to $175 million worth of assets from seven, non-U.S. citizens living outside the United States through an action brought in rem against those assets – even though none of these assets are under the control of U.S. courts. 
      Compounding this redefining expansion of in rem jurisdiction, the Fourth Circuit extended the so-called “fugitive disentitlement” doctrine, ruling that because these foreign property owners insist on their right to contest extradition and decline to come to the United States (leaving their families, work, and their entire lives, for months, perhaps years) without a court order, they may be deemed “fugitives” and consequently “disentitled” from even asserting a claim to their own property. If left to stand, the Fourth Circuit’s decision ratifies the ability of the United States to arbitrarily deem foreign residents “fugitives” and take their prop- erty without providing any meaningful opportunity to defend against the forfeiture of their property on either procedural or substantive grounds. Entering default forfeiture orders against international claimants – who are not fleeing justice but lawfully are staying in their home countries – both contravenes historical practice and violates due process. 
      Despite the Fourth Circuit’s radical departure from historical practice, the United States has heavily relied on the decision below in seven pending cases across the country. This Court should accept review to safeguard constitutional rights that civil forfeiture has placed in jeopardy. 

      Kim Dotcom Files Petition to the United States Supreme Court

      Today Kim Dotcom and the other defendants, in what is called the largest criminal copyright case in history, filed a petition to the United States Supreme Court for relief against "fugitive disentitlement" and forfeiture of assets.
      This is a summary of the Petition below:
      This case arises from a civil forfeiture action related to a separate criminal case, in which the Government indicted a group of foreign defendants (Petitioners here) on a novel theory of secondary criminal copyright liability. Because Petitioners are lawfully invoking their rights to contest extradition, the Government’s novel theory for prosecuting has yet to be tested in the criminal case. 
      More than two years after filing the criminal indictment, the Government filed a separate civil action seeking forfeiture of Petitioners’ foreign assets. When Petitioners submitted claims to those assets, the Government successfully moved to strike the claims at the threshold. According to the decisions below, Petitioners’ participation in extradition proceedings—and failure to voluntarily leave their homes, families, and businesses to travel to the United States—has rendered them “fugitives” who seek “to avoid...prosecution” and who therefore should be “disentitled” from contesting forfeiture. 28 U.S.C. § 2466(a)(1). Civil forfeiture has been ordered for this reason alone. 
      This Court has previously admonished that the “harsh sanction” of fugitive disentitlement in a civil forfeiture action is “most severe and so could disserve the dignitary purposes for which it is invoked,” be- cause it “foreclos[es] consideration of claims on the merits.” Degen v. United States, 517 U.S. 820, 827– 29 (1996) (unanimously reversing resort to fugitive disentitlement under inherent authority). The Court noted that it “ha[d] held it unconstitutional to use disentitlement similar to this as punishment for rebellion against the United States,” but left open the question of “whether enforcement of a disentitlement rule under proper authority would violate due process.” 517 U.S. at 828 (citations omitted). Nonetheless, a divided panel of the Fourth Circuit affirmed civil forfeiture based on fugitive disentitlement. 
      The Fourth Circuit’s panel decision added to one circuit split by affirming the exercise of in rem jurisdiction over foreign property within the exclusive custody and control of foreign courts. It also compounded two other circuit splits by affirming forfeiture on the ground that the foreigners who own the property should, at the very threshold (without benefit of any discovery or evidentiary hearing), be deemed fugitives who are disentitled from defending their property against civil forfeiture—even while they are lawfully contesting their extradition to the United States through the courts in their home countries, pursuant to treaty rights. 
      If left undisturbed, the Fourth Circuit’s decision enables the Government to obtain civil forfeiture of every penny of a foreign citizen’s foreign assets based on unproven allegations of the most novel, dubious United States crimes. And the Government can do so without affording a foreign defendant any opportunity to challenge in court whether the foreign assets are traceable to criminal conduct, whether the Government’s allegations are sufficient to establish the charged crime, or even whether the charged “crime” is a crime at all. Civil forfeiture would be a fait accompli just as soon as the Government moves to strike a foreign claimant’s initial submission, invokes fugitive disentitlement, and notes that the foreign claimant remains abroad while lawfully contesting extradition. By nonetheless affirming in all respects, the Fourth Circuit has ratified a worrisome new playbook for the Government to use against foreign nationals whom it indicts while they are abroad: any foreign defendant who dares exercise rights to contest extradition may be deemed a fugitive whose foreign assets are immediately forfeitable to the United States. In other words, according to the decision below, foreign defendants must either abandon their rights to challenge extradition or else forever forfeit their assets (and, correspondingly, their ability to fund a criminal defense). 


      Read the full Petition here.


      Megaupload Files Brief with Federal Court Requesting Data Preservation While Protecting User Rights Under the Stored Communications Act

      Megaupload filed their response brief to the MPAA and RIAA studios' motion for preservation order on March 23rd, 2017 in Federal Court in the Eastern District of Virginia. Megaupload agrees that the cloud server data should be preserved and repaired as needed. Megaupload disagreed with the studios on certain proposed language in the draft preservation order that would act to preclude Megaupload from protecting the rights of its users under the Stored Communications Act (SCA) and accessing the data as needed to defend itself and others in the pending court cases. Here is a summary of Megaupload's submissions below.

      Defendant Megaupload Limited (“Megaupload”) hereby responds to Plaintiffs’ Motion for Entry of Preservation Order (Dkt. Nos. 61-64). Megaupload agrees that the Court should enter a preservation order in this action and a related private copyright infringement action1 specifying the agreed upon protocol to retrieve, restore, and preserve the cached data on servers that non-party Cogent Communications, Inc. had leased to Megaupload (“Cogent Servers”). Thus, Megaupload agrees to certain paragraphs of the proposed preservation order submitted by Plaintiff (Dkt. No. 61-1). As explained below, however, paragraphs 5 and 8 of the proposed order should not be adopted by the Court. Although written to sound neutral, paragraphs 5 and 8 tread on Megaupload’s rights and impair its ability to access and use that digital evidence in defense of the civil and criminal cases—essentially they enjoin Megaupload from access to this data without any extraordinary showing having been made. Instead, those paragraphs should be edited, and a new paragraph 9 governing Megaupload’s access should be added. A proposed form of order is submitted herewith.
      The Servers and the Data: The primary servers allegedly used by Megaupload in the United States are the so-called “Carpathia Servers” and the Cogent Servers (which together the government calls the “Mega Servers”). In January 2012, the Government executed search warrants as to Defendants at numerous locations around the world, including at Carpathia’s server-hosting facility in Virginia and at Cogent’s facility in the District of Columbia.3 On January 27, 2012, the Government informed Megaupload that it had “copied selected Mega Servers and copied selected data from some of the other Mega Servers,” without identifying the specific servers, the specific data, or the selection criteria. (Criminal Action, Dkt. No. 32, AUSA Prabhu Letter (Jan. 27, 2012).) At that time, the Government expressly disclaimed any “custody or control” over the Carpathia and Cogent servers:
      "The Mega Servers are not in the actual or constructive custody or control of the United States, but remain at the premises controlled by, and currently under the control of, Carpathia and Cogent. Should the defendants wish to obtain independent access to the Mega Servers, or coordinate third-party access to data housed on Mega Servers, that issue must be resolved directly with Cogent or Carpathia.” (Id.).
      Yet, thereafter, Megaupload’s access to the data on those servers has been anything but an issue that Megaupload could resolve “directly with Cogent or Carpathia.”
      Importantly, Carpathia confirmed that it owns only the servers, but has no interest in the data: “Carpathia does not own and cannot access the data, nor does it have any interest in the data stored on” its servers; rather “its interests are solely in the physical hardware itself.” (Criminal Action, Dkt. No. 39 at 2.) Similarly, Cogent claims no interest in the cached data, only the servers on which the data are stored. As the Internet service provider (“ISP”), however, Megaupload has a statutory interest in the data (and its users have ownership and privacy interests in the data that has been stored).4 Similarly, as a defendant in pending civil and criminal cases, it has an interest in accessing this digital evidence to disprove the claims and charges. Yet, Megaupload has not yet had a clear path to the data on either set of servers.5
      When Megaupload tried to acquire the Carpathia Servers so as to gain access to the data, the Government objected to block the sale. (Criminal Action, Dkt. No. 39 at 3.) And the government continues to object to Megaupload’s acquisition of those servers and access to thedata thereon. (Criminal Action, Dkt. No. 223 at 4-5 & n.3.) While again disclaiming any “custody or control” over the Cogent Servers, the government also has objected to Megaupload’s access to the data cached on the Cogent Servers—baldly asserting that it contains “contraband” that cannot be turned over to counsel for Megaupload. (AUSA Prabhu’s Letter to Magistrate Judge Anderson, June 23, 2016.)6
      Accordingly, despite claiming that ownership of and access to the data is a private matter between Megaupload, Carpathia, and Cogent, all three have been handcuffed by the government’s objections—the servers and data supposedly are not “in custody,” but neither are they “free to go.”7

      Neither the government nor any party in the civil cases has filed a motion to enjoin Megaupload or preclude Megaload’s access to this data. Obviously, to obtain such extraordinary relief, the movant would have to make a substantial and detailed showing. None has been made. Yet, the government, merely by making bald assertions, and the Plaintiffs, through drafting legerdemain in the proposed preservation order, seek to bar Megaupload’s access to its own data. That is grossly unfair.
      To be sure, Megaupload agrees that a preservation order is warranted. In extraordinary circumstances, like those now present, and prior to active discovery in a civil case, the Court has “inherent authority” to issue a “preservation order” that specific procedures be adopted to preserve specific evidence....