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    Techdirt Interview of Ira Rothken
    -Discussion of Ira Rothken's career handling internet copyright cases

    February 23, 2012 Radio New Zealand
    -US abuse of power in taking down Megaupload
    -No such thing as criminal secondary copyright infringement
    -The Prosecution is politically motivated

    September 26, 2012 NewstalkNZ
    -Illegal Gov spying on Kim Dotcom
    -Case should be dismissed in the interests of justice
    -Trail of Gov illegality
    -Hollywood's involvement
    -Unfair procedures 

    Ira Rothken presentation at e-discovery seminar (excerpt)
    - discussion of technical-legal factors to consider in determining whether e-discovery related data is "not reasonably accessible"
    - More information can be found here 
     

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      Featured Current Events

      60 Minutes Interview of Ira Rothken by Bob Simon regarding government abuse of Kim Dotcom

      New Megaupload/Kim Dotcom Whitepaper

      Megaupload General Legal Points

      Ira Rothken interview with CNBC on the Kim Dotcom case

      For updates on the Megaupload/Kim Dotcom case please visit our special case update section

      Kim Dotcom, Steve Wozniak, Ira Rothken

      Read what Steve Wozniak thinks about Kim Dotcom and the Megaupload case in this CNET News.com article 

       

       

       

       

      Ira P. Rothken on Bloomberg 

      Bloomberg Interview with Ira P. Rothken on the Megaupload/Kim Dotcom case discussing Court Order finding illegal government conduct

       

       

       

      ABOUT US

      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 Moredata.com 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.

      We Have Assisted in the Startup of Some of the Most Successful E-Commerce and Electronic Entertainment Companies in the World

      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:


      News

      Saturday
      Mar262016

      Kim Dotcom Argues Against Fugitive Disentitlement in the Fourth Circuit Court of Appeals

      Ira Rothken, Kim Dotcom’s Lead Global Counsel, informs TorrentFreak that the District Court’s decision denied defendants’ basic rights and violated due process.
      “We asked the Fourth Circuit to rule in favor of fairness, natural justice, and due process by stopping US efforts to take Kim Dotcom’s global assets for doing nothing more than lawfully opposing extradition to the United States—a country he has never been to,” Rothken says.
      Rothken believes that the U.S. Department of Justice (DOJ) wrongfully labeled the Megaupload defendants as fugitives and hopes the appeals court will undo the verdict.
      “The DOJ in our view is trying to abuse the Fugitive Disentitlement Doctrine by modifying it into an offensive weapon of asset forfeiture to punish those who fight extradition under lawful treaties, and a provocation for international discord.”
      “Today we asked the Court of Appeals for justice,” Rothken adds...
      Tuesday
      Sep152015

      Professor Lessig from Harvard Law School Provides Expert Opinion in the Kim Dotcom Extradition Case

      In submissions filed by the Kim Dotcom legal team in District Court in New Zealand, Professor Lawrence Lessig, from Harvard Law School, provided his expert legal opinion on the United States Department of Justice's (DOJ) criminal allegations in the extradition record against Kim Dotcom and the others. Below are quoted excerpts from Professor Lessig's opinion.

      //
      EXCERPTS FROM THE OPINION

      I, LAWRENCE LESSIG of Cambridge, Massachusetts, United States of America, swear as follows:

      1. I am a professor of law at Harvard Law School, Harvard University and a practicing lawyer. One of my chief areas of specialty has been intellectual property law in the context of the Internet.

      2. I have been retained by the respondents’ (alternatively referred to as “defendants”) United States attorneys, Quinn Emanuel Urquhart & Sullivan LLP and Rothken Law Firm as liaison counsel to Anderson Creagh Lai Limited, to evaluate the Superseding Indictment and Record of the Case, to presume the truth of factual allegations therein, and to give my opinion as to whether a prima facie case has been made out that that would be recognized by United States federal law and subject to the Treaty on Extradition Between the United States of America and New Zealand, Art. VI, § 3, 1970 U.S.T. LEXIS 470; 22 U.S.T. 1s (US – NZ Extradition Treaty).

      3. I have also been asked to give my opinion as to whether the Superseding Indictment and Record of the Case are reliable, viewed in light of obligations of the United States to act as a model litigant in its extradition request for alleged criminal misconduct.

      SUMMARY OF OPINIONS

      4. It is my opinion that the Superseding Indictment and Record of the Case filed by the United States Department of Justice (DOJ) do not meet the requirements necessary to support a prima facie case that would be recognized by United States federal law and subject to the US – NZ Extradition Treaty. On the whole, the filings are not reliable.

      5. Charges in the Superseding Indictment fall into three classes:

      (a) Counts Four through Eight allege that respondents themselves committed crimes of copyright infringement. General allegations in such Counts do not find support in specific facts set forth in the Record of the Case. A showing of willful criminal copyright infringement requires compact factual proof identifying a specific copyrighted work, a right of the owner that has been violated, the geographical location of the infringement and other specific facts needed to establish a violation of United States criminal law. Such compact facts are absent here. The generalized accusations, defective and irrelevant allegations, scattered facts of alleged multiple infringements and statistics set forth in the Superseding Indictment and Record of the Case do not satisfy requirements of proof but rather manifest unreliability of the overall approach. Charges in Counts Four, Seven and Eight are outside the three-year statute of limitations provided by the US-NZ Extradition Treaty that I understand is applicable in this proceeding as well as lacking proof of other necessary elements.

      (b) Counts One through Three allege conspiracy. Count Two (Conspiracy to Commit Copyright Infringement) is the chief matter discussed herein. In brief, it is alleged that respondents agreed with users of the Megaupload system that users would commit copyright infringement by means of Megaupload. Again, general allegations do not find support in actual facts. There is no showing of specific criminal “willful” infringements committed by specific individual users. There is an even more serious lack of evidence of communications between respondents and such alleged users needed to prove an agreement that is subject to laws of conspiracy. The United States Constitution (U.S. Const.) prohibits the United States DOJ from prosecuting, as they apparently want to here, a new kind of criminal conspiracy based on defendants providing an “environment of infringement” or their failing to disable all links to an allegedly infringing copy. Under the approach of the DOJ, many online operations and even individual persons would, without notice, suddenly become subject to criminal prosecution. Count One (Conspiracy to Commit Racketeering) and Count Three (Conspiracy to Commit Money Laundering) require showings of independent predicate offenses, which are lacking here.

      (c) Counts Nine through Thirteen allege Fraud by Wire and Aiding & Abetting Fraud by Wire. Charges involve an online “Abuse Tool” provided to copyright owners by Megaupload so that owners could report to Megaupload the appearance of unauthorized links to their works and automatically disable access to such links. It is alleged that owners were misled by Megaupload’s messages provided with the tool and that links, outside those included in such copyright takedown requests, were not removed although copyright owners believed that they should have been. The facts set forth in the Record of the Case fail to show a Wire Fraud offense or any offense. A novel interpretation of the Digital Millennium Copyright Act (DMCA) needed to support such charges would be contrary to the nature of Internet operations and to the DMCA itself. Essential elements of causation and damages are not supported by proof.
      ...

      CONCLUSION

      114. The DOJ has failed to prove a case of direct civil copyright infringement. The Megaupload cloud storage system was the type of passive Internet hosting contemplated by the Loopnet court. There is an absence of compact facts that show liability of respondents for copyright infringement in the United States of a specific copyrighted work. Just as important, the Fourth Circuit Court of Appeals in Loopnet concluded that, “[a]t bottom, we hold that ISPs, when passively storing materials available to other users upon their request, do not ‘copy’ the material in direct violation of section 106 of the Copyright Act.” Loopnet, supra, at 555.

      115. The DOJ has failed to prove a case of criminal copyright infringement. Criminal infringement prohibitions under 17 U.S.C. § 506(a) apply to specific kinds of misconduct or to protect specific kinds of copyrighted works. Necessary specificity as to extraditable offenses is not clearly stated in the ROC. To prove a criminal case, in addition to showing copyright infringement of specific works in the United States, the DOJ must show a very high level of knowledge and intent, namely, a “willfulness” mental state. “Evidence of reproducing and distributing copyrighted works does not, by itself, establish willfulness.” See 17 U.S.C. § 506(a)(2). Under a willfulness standard, proof of indifference, recklessness, or negligence is insufficient to constitute criminal copyright infringement. Attacking an ISP for generally bad or negligent policies or alleging how the ISP could be better, faster, or more precise in its takedowns, user terminations, or repeat infringer policies is not enough. “Willfully” as used in 17 U.S.C. § 506(a) connotes a “voluntary, intentional violation of a known legal duty.” (See para. 61 and United States v. Liu, 731 F.3d 982, 990 (9th Cir. 2013).) Allegations revolve around, “fostering an environment conducive to infringement,” similar to a civil case of secondary copyright infringement. Principles of United States criminal law prohibit novel and expansive prosecutions on the basis of such evidence.

      116. The DOJ has failed to prove a case of criminal conspiracy. In addition to proof of criminal copyright infringement in the United States of specific copyrighted works, the DOJ must show an agreement with respect thereto between the actual infringer and an alleged conspirator. No such agreement is shown here. General allegations of, “fostering an environment” cannot substitute for the requisite agreement or for the necessary “willful” mental state of the alleged conspirator.

      117. The DOJ has failed to prove a case of wire fraud. In my opinion, the DOJ is improperly attempting to use an inappropriate “wire fraud” theory to criminalize new categories of conduct without the required Congressional authorization. Criminal charges based on alleged DMCA shortcomings would be contrary to DMCA principles stated by Congress. Wire fraud allegations further suffer from lack of requisite damages suffered by the victim of the fraud.

      118. The remaining alleged counts of RICO and Money Laundering require a predicate offense that is lacking here.

      119. It is my opinion that the Superseding Indictment and Record of the Case filed by the DOJ do not meet the requirements necessary to support a prima facie case that would be recognized by United States federal law and subject to the US-NZ Extradition Treaty. An attempt has been made to extract facts from multiple sources and over a wide span of time, to organize a large number of otherwise disconnected facts by using systematic phraseology and to juxtapose phrases in order to create an impression of coherence and substance. However, the attempt fails to reach its goals and any impression of coherence or substance dissolves under examination. Insofar as they are alleged in the Superceding Indictment and the ROC, respondents’ actions were not prohibited by criminal statutes of the United States. Filings of the DOJ attempt to create a false impression of criminal guilt and are not reliable.

      Monday
      Sep142015

      Megaupload Files Reply Brief in Fourth Circuit Court of Appeals Asking for Reversal of Fugitive Disentitlement

      Megaupload, Kim Dotcom, and others filed their reply brief today in the Fourth Circuit Court of Appeals urging the Court to reverse the trial court's finding of "Fugitive Disentitlement."

      Here is an excerpt from the reply brief:

      "The government asks this Court to affirm a forfeiture order that is purely advisory, was justified only by Claimants’ exercise of their right to oppose extradition, and was obtained without any opportunity to contest the government’s case on the merits. Our justice system requires more. Claimants have not been convicted of any crime, have not fled the jurisdiction, and have not been extradited. They stand ready to defend their property—located entirely in countries that have refused to enforce the U.S. forfeiture orders. But without considering the merits, the district court declared that property forfeited. That order contravenes fundamental jurisdictional requirements, statutory commands, and due process..."

      Read the full reply brief.

      Monday
      Aug242015

      Megaupload Opposes Server Data Destruction

      Megaupload submitted a brief to the United States District Court in the Eastern District of Virginia on August 24th, 2015 asking to specially appear, to prevent destruction of Megaupload's server data so that it can be used as crucial defense evidence in pending civil and criminal copyright cases.

      Megaupload also supports reasonable consumer access to legacy cloud storage data.

      Below is an excerpt from the Megaupload brief.

      Defendant Megaupload Ltd. (“Megaupload”) (owner of some data at stake herein, legal custodian of third-party data, and named but not served as a criminal defendant in these proceedings) seeks leave of Court to specially appear for the limited exigent purpose of responding to the instant “renewed” motion [D.E. 217-218] that will determine the preservation or destruction of crucial defense evidence stored on servers formerly leased from Carpathia (now “QTS”).1 The Court granted leave to specially appear and oppose the original motion [D.E. 87].
      It is well-settled the Due Process Clause “standard of fairness” requires that “criminal defendants be afforded a meaningful opportunity to present a complete defense.” California v. Trombetta, 467 U.S. 479, 485 (1984). To that end, it is equally well-settled that “the government has a duty to preserve evidence that possesses ‘an exculpatory value that was apparent before the evidence was destroyed’ where ‘the defendant would be unable to obtain comparable evidence by other reasonably available means.’” United States v. Newsome, 322 F.3d 328, 334 (4th Cir.2003) (quoting Trombetta, 467 U.S. at 489). In such circumstances, the Government may have a duty “to take affirmative steps to preserve evidence on behalf of criminal defendants,” even where the evidence is not already (or not still) in the government’s control. See Trombetta, 467 U.S. at 486. In this action, Megaupload respectfully submits that the Government has a constitutional duty to preserve the “Carpathia Servers” as potentially exculpatory evidence that “might be expected to play a significant role” in the defense against the crimes alleged in the Superseding Indictment.
      Moreover, since the original motion concerning these servers was filed, as discussed below, the Government filed a civil forfeiture action implicating the broad electronically stored information (“ESI”) preservation and eDiscovery cooperation mandates of the Federal Rules of Civil Procedure. The duty to preserve and cooperate in ESI preservation to prevent destruction begins not when litigation begins but when it was reasonably anticipated by the Government that it might occur. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003); The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities LLC, et al., Amended Order, Case No. 05-cv-9016, 2010 U.S. Dist. LEXIS 4546, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010). The forfeiture civil action in combination with private civil copyright lawsuits related before this court act as an additional and separate basis on which Megaupload requests to be specially heard as an interested party in this proceeding. requests preservation of the Megaupload server data, which is important evidence in all the related cases.
      A criminal defendant’s rights to present evidence, to confront witnesses and to obtain discovery are essential to a fair trial. Forfeiture alleged in this case in the Superseding Indictment [Dkt. 34, ¶¶ 106-116] was adjudged and ordered in Civil Action No.: I: I 4-cv-969, presently on appeal. Civil proceedings impose further requirements on preservation of evidence.
      In this novel and complex case, the Government appears determined to prevent defendants from having a fair trial and appears determined to deprive defendants of due process rights protected by the United States Constitution. Distilled to its essence, the Government removed Megaupload’s server data from Megaupload’s control, will not give it back, and has taken active steps to prevent preservation of the data for use by Megaupload in its own defense.
      Non-Party QTS/Carpathia confirms this in their renewed motion. The Government has controlled events for the manifest purpose of seeing such evidence destroyed in a case it has described as one of “the largest criminal copyright cases ever brought by the United States.”
      Defendants submit that, unless the Court acts to preserve the Megaupload server evidence, the integrity of the criminal case and related proceedings will be irreversibly undermined.
      The Court is familiar with the facts. On January 19, 2012, the Government executed search warrants as to Defendants at numerous locations around the world, including Carpathia's server-hosting facility in the Eastern District of Virginia.4 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 specific data or selection criteria. [D.E. 32]. The Government expressly disclaimed any possession, custody or control over the Mega Servers.
      Ensuing events contradicted Government disclaimers of control over the Mega servers.
      On March 20, 2012, Non-party Carpathia Hosting Ltd. filed its Emergency Motion for Protective Order, which is renewed herein. [D.E. 38-39.] On March 30, 2012, Non-party Kyle Goodwin, represented by the Electronic Frontier Foundation, sought to appear to obtain access to files backed up on the Megaupload servers, which he needed because his hard drive had crashed. [D.E. 51-52.] Plaintiffs in related civil suits also appeared. [D.E. 53-55, 80.] The Government opposed Carpathia’s Motion. [D.E. 56.] After Megaupload filed papers [D.E. 67], the Government filed a response thereto. [D.E. 76.]
      Evidence showed that Megaupload and Carpathia had reached an agreement for Megaupload to purchase the servers from Carpathia for $1,465,500 with payment deferred until final disposition of the criminal case against Megaupload. [D.E. 67, Exhibit C, ¶¶ 1.3, 1.4.] The deal would have given the Megaupload defense team cheap and easy access to the all data evidence and would have substantially alleviated evidentiary and due process issues in both the civil and criminal cases. As stated by Carpathia, the agreement was: “a much less expensive alternative than Mega making its own image of the servers. ... The government objected to that sale, apparently for the reasons described in its response brief: ‘The government ... is additionally concerned because it has not seen any detailed plans for appropriately transferring the Carpathia Servers to an entity that demonstrates reasonable and untainted resources for that purpose, provides sufficient safeguards regarding access, successfully deals with the specific concerns of victims, and deals appropriately with the contraband and other illegitimate files on the Carpathia Servers.’ (Govt Br. at n. 3). ” (Carpathia Rebuttal Memo [D.E. 70 at 7-8] quoting from D.E. 56.)
      The Government’s stated concerns about safeguards, etc., were not based on fact. Contrary to Government objections, Megaupload wanted the servers to be preserved “ under a litigation hold.” Defense counsel and consultants would have “exclusive access to the Mega data hosted on the Mega servers” and “[a]ll uses of the data . . . [would] be for purposes of assisting Mega and co-defendants in criminal or civil litigation.” Defendants proposed that “consumer access to server content shall be prohibited and allowed only on such terms as shall be ordered by a UnitedStates District Court or agreed to in writing signed by the US Attorney's Office,” and that “Noelectronically stored materials may be materially altered, wiped, deleted, or destroyed in any manner.” [D.E. 67, Exhibit D.]
      A hearing on the matter was held on April 13, 2012. [D.E. 86, 84, 87.] The Court ordered the parties to meet and confer in front of a magistrate judge and to report in two weeks if the matter was not resolved. [D.E. 87.] Resolution not having been achieved and a new Motion for Return of Property/Pre-Trial having been filed by Non-party Goodwin [D.E. 90-91], a secondhearing was scheduled for June 29, 2012, which led to further briefing. [D.E. 92, 98, 99, 105, 110.]
      Thereafter, on October 2, 2012, the Court ruled that “the Court finds that it is unable to reach a conclusion as to this matter without an evidentiary hearing.” The Court ordered briefing and stated that: “The Court will consider the parties filings and designate a date for the hearing thereafter.” [D.E. 126, see also D.E. 130, extending time for briefing.] Further motions, briefs and documents were filed. [D.E. 131, 133-136, 139-141, 144, 149, 153, 155, 157-158, 161-164, 168-170, 174-189.]
      In the meantime on or about February 1st 2013 the Government permitted the Megaupload server data located in the EU at Leaseweb in the Netherlands to be destroyed. Megaupload advised Judge Anderson of the development, see letter of July 3, 2013, attached hereto as Exhibit A, and asked to reconvene the meet and confer meetings ordered by the Court on April 18, 2012 [D.E. 87.] in order to preserve the server data located at Carpathia. The United States declined any meet and confer on data preservation.
      On July 29, 2014, the Government filed a civil forfeiture action targeting all the revenues and user conduct arising out of Megaupload’s global cloud storage services including revenues arising out of the server data evidence in the Netherlands and revenues arising out of the server data evidence in the United States.
      No hearing on the server data preservation matter was scheduled until QTS/Carpathia filed the instant renewal Motion. Defendants again request that the Court intervene and permit the transfer of the Megaupload servers in a manner and method that preserves the integrity of the data such that it can be used in the civil and criminal case and to preserve the integrity of due process...

       

      Wednesday
      Jul012015

      Megaupload Files Appeal to the Fourth Circuit Arguing Fugitive Disentitlement Violates Due Process

      Megaupload, Kim Dotcom, and other interested parties filed their opening appellate brief today in Fourth Circuit Court of Appeals opposing the United States DOJ's attempt to use the Fugitive Disentitlement Doctrine as a procedural method of taking all of Kim Dotcom's and the other Megaupload parties' assets prior to trial and without any hearing on the merits of the underlying criminal claims.

      According to Megaupload Appellate Counsel Michael Elkin from Winston & Strawn “the Megaupload defendants were branded by the DOJ as 'fugitives' for lawfully fighting extradition in New Zealand (where they reside with their families).  The district court's denial of their basic rights to defend against asset forfeiture under a 'fugitive disentitlement' doctrine amounts to a violation of basic due process and we filed a brief today with the U.S. Fourth Circuit Court of Appeals seeking to reverse the injustice visited upon Megaupload and others who have been impacted by the Government's overreach."

      According to Ira Rothken, Lead Global Counsel for Kim Dotcom and Megaupload “with our appeal today we are asking the Fourth Circuit to rule in favor of fairness, natural justice, and due process by stopping US efforts to take Kim Dotcom's global assets for doing nothing more than lawfully opposing extradition to the United States—a country he has never been to. The DOJ in our view is trying to abuse the Fugitive Disentitlement Doctrine by modifying it into an offensive weapon of asset forfeiture to punish those who fight extradition under lawful treaties, and a provocation for international discord. Today we ask the Court of Appeals for justice.”

      //

      Megaupload and Kim Dotcom filed their opening appellate brief in the Fourth Circuit Court of Appeals today - here is an excerpt below:

      In a separate criminal case, the government indicted several foreign defendants on copyright-related allegations. Instead of following typical extradition procedures—bringing the defendants to the United States pursuant to international law and then proving its case at trial before seeking forfeiture—the government took a much more aggressive approach. It brought this civil forfeiture case against foreign property owned by the defendants and others (collectively, “Claimants”) and, relying on the seldom-used “fugitive disentitlement” statute, argued that the owners’ claims to their foreign property should be stricken and the property immediately forfeited. According to the government, Claimants’ participation in extradition proceedings—and failure to immediately leave their homes, families, and busi- nesses to travel to the United States—rendered them “fugitives” seeking “to avoid ... prosecution.” 28 U.S.C. §2466(a)(1) (Addendum-A-2).

      Accepting this argument, the district court disentitled Claimants from defending their rights to their property, based solely on their “non-appearance” in the separate criminal case and the government’s allegation that they are thereby “fugitives.” Without any hearing on the merits, the court then adjudged the property— all located abroad—immediately forfeited. In so doing, however, the court committed several reversible errors.

      For starters, this Court’s precedent makes control over the defendant property a prerequisite to exercising in rem jurisdiction, and the district court lacked control over this foreign property. Further, the Claimants are foreign citizens and residents who would not be in the United States regardless of the criminal case. Yet, relying on both a misreading of §2466’s intent requirement and an improper assessment of an undeveloped evidentiary record, the court held that Claimants’ intent necessarily was “to avoid prosecution.” Finally, even if these hurdles could be overcome, allowing the government to seize Claimants’ property without an adversarial hearing would be unconstitutional. Claimants have been convicted of no crime; they are asserting established procedural and substantive rights abroad; and the government has never proved that their property should be forfeited.

      In sum, the decision below upsets fundamental jurisdictional principles, misapplies the fugitive disentitlement statute, and violates both due process and the Supremacy Clause. If affirmed, that decision would hand the government unprecedented power. By stacking allegations of fugitive status on top of allegations of forfeitability, the government would obtain a roving worldwide license to indict residents of foreign countries who have never lived or worked in the United States and to take their foreign property—all without proving any wrongdoing. That is not how our justice system works. The judgments below should be vacated and the case either dismissed or remanded for trial on the merits...

      Read the full appellate brief here.