FH Cann & Associates, Inc. v. McKinney (D. Mass. 20-cv-11180).

Debt collection company FH Cann filed an additional lawsuit in which a debtor, Carlos McKinney, has claimed copyright infringement for Cann’s use of his name in its collection efforts.  McKinney filed a notice of dispute that demanded a number of things from Cann that the complaint contends are not required by law, such as additional documentation and verification under oath that the claims are valid.  This demand included language stating that Cann’s failure to provide the demanded information within 30 days would result in a waiver of Cann’s right to collect the debt, which Cann contends is not valid.  The demand includes a statement that McKinney declares “under penalty of perjury without the United States that the above statements are the truth…” (emphasis added).  Finally, the demand included an invoice for $500,000 for the alleged breach of McKinney’s common law copyright in his name., and to authorize McKinney to file a UCC-1 Financing Statement asserting a lien for that amount on Cann’s assets.  This document purported to be notarized in Georgia, but Cann asserts that the alleged notary is not licensed in Georgia and that the notarization is fraudulent.  Cann seeks declaratory and injunctive relief as well as damages for tortious interference with business relations.

While it seems unlikely for two such claims to arise in such a short period of time, Cann asserts that the documents provided by McKinney evidence a “number of fraudulent theories circulating on the internet and by various militia and ‘sovereign nation’ groups” to avoid debt collection and defraud creditors.  This case is before Judge Saylor.

FH Cann & Associates, Inc. et al. v. Moorman (D. Mass. 20-cv-11251).

FH Cann, a debt collection company, sought to collect defendant and North Carolina resident Troy Moorman’s past due student loan debt.  In response, Moorman mailed a packet of documents to FH Cann that included an affidavit claiming that he had a “common law copyright” and had trademarked his name and another purporting to establish a security interest in all of FH Cann’s assets, which FH Cann says included a forged signature on behalf of FH Cann.  Moorman subsequently sent an invoice to FH Cann seeking $500,000 for Cann’s use of Moorman’s name.  He then filed a UCC-1 statement with the Secretary of the Commonwealth, purporting to place a $500,000 lien on the home of co-plaintiffs Sherri and Frank Cann, owners of FH Cann.  Cann seeks declaratory judgment that Moorman has no copyright or trademark rights in his name, that the purported contract, lien and UCC statement are not valid, injunctive relief preventing continuations of Moorman’s behavior, a decree granting the Cann’s quiet title in the house on which Moorman purports to have a lien, and actual and punitive damages resulting from the lien under a conversion or trespass to chattel theory.  Judge Woodlock has the pleasure of unwinding this case.

Foss v. Marvic, Inc. d/b/a Brady-Built Sunrooms et al. (D. Mass. 20-cv-4057).

Graphic designer Cynthia Foss, acting pro se, accuses Marvic of using a twenty-page brochure prepared by Foss in a scope beyond that contemplated by her (unwritten) agreement with Marvic and in violation of her copyright in the brochure.  Foss first brought suit in 2018, asserting copyright infringement, breach of contract, tortious interference with advantageous business relations, conversion, unfair and deceptive business practices, fraud, and breach of fiduciary duty.  The copyright claim was dismissed following the Supreme Court’s Fourth Estate decision because the Copyright Office had not yet acted on Foss’ application for registration, and Marvic was granted summary judgment on the remaining claims, in part because Foss failed to respond to Marvic’s requests for admissions, resulting in the admissions being deemed true.  Foss appealed the dismissal of the copyright count, believing that Fourth Estate allows for a stay of litigation pending a decision from the Copyright Office rather than dismissal, and the appeal remains pending.  Foss asserts that Marvic refused to agree to a tolling of the statute of limitations on her copyright claim while the appeal was pending, forcing her to file the new complaint to preserve her rights.  Judge Hillman, who presided over the previous case, has been assigned to this matter.

RS Means Company, LLC et al. v. SED Associates, Inc. et al. (D. Mass. 20-cv-10993)

RS Means and The Gordian Group accuse SED Associates and Aaron Richardson of copyright and trademark infringement in connection with SED’s alleged sales of counterfeit copies of books relating to construction cost estimating data.  RS Means asserts that its RS Means data is the construction industry standard for local cost estimation data, and that SED sells counterfeit copies on Amazon under the pseudonym “Code Emporium.”  RS Means says that Aaron Richardson, an SED engineer, purchased seven different RS Means titles in November 2019,  which were then copied and sold via Amazon, several specifically from Aaron Richardson himself.  RS Means points to reviews of these books on Amazon, which include complaints as to the quality of the physical books themselves, as opposed to the content.  In addition to copyright and trademark claims, RS Means asserts unfair competition under M.G.L. c. 93A.  Judge Casper has the case.

YourFavorite.com et al v. Payment Printer, LLC et al. (20-cv-10791).

Richard Rogers of Yourfavorite.com filed a pro se complaint alleging that Payment Printer, LLC and its sole owner and agent, Christopher Cardi, infringe the copyright in his works titled “Check Writer User Guide” and “Reasons for Return” by copying them verbatim at the paymentprinter.com website.  Rogers alleges that the infringement began on March 18, 2018, although he claims he just discovered the infringement last month.  

There are several problems with this complaint.  First, Rogers makes no assertion that either Payment Printer, a Florida Corporation, or Cardi, a Florida resident, are subject to personal jurisdiction in Massachusetts.  Additionally, it appears from the complaint that, while a copyright registration has been obtained for “Reasons for Return,” registration in “Check Writer User Guide is merely pending, meaning that the complaint with respect to this work is premature.  Moreover, a review of the Copyright Office indicates that the copyright in the one work that has actually issued was not registered in time to permit Rogers to claim statutory damages under 17 U.S.C. 412, leaving Rogers only with actual damages as a potential remedy.  Judge Saris is assigned to the case.

Larson v. Perry (19-cv-10203).

Judge Talwani denied Defendants Jeffrey A. Cohen and Cohen Business Law Group’s motion for reconsideration of her previous finding that the claims against them could not be dismissed at the pleading stage.  She rejected Cohen’s argument that her prior decision was based on case law that was not controlling; while she agreed that the particular case was not “controlling” but instead was, as a decision of a district judge presiding over a diversity action, merely persuasive authority.  She instead pointed to the controlling decision of the Massachusetts Supreme Judicial Court, which provides for litigation privilege where the communications at issue are made prior to the onset of litigation only where the communications relate to a legal proceeding which is contemplated in good faith and which is under serious consideration.  Judge Talwani also rejected Cohen’s argument that Larson had failed to sufficiently allege bad faith as required under the controlling SJC decision, finding that the issue had not been raised in the Motion to Dismiss and thus could not be brought for the first time in a motion for reconsideration.

Minden Pictures Inc. v. Find Import Corp. (20-cv-10598).

Stock photography company Minden Pictures accuses Find Import of copyright infringement and violation of the Digital Millenium Copyright Act in connection with Find Import’s alleged use of a Minden-controlled photograph on its website. As has been the case with several similar Minden complaints filed in Massachusetts, this complaint alleges copying and removal of copyright management information without providing any suggestion of access and seek full statutory damages for willfulness without factual allegations of the same.

Yourfavorite.com et al. v. Federation of Exchange Accommodators et al. (20-cv-10649).

Richard Rogers, who runs Yourfavorite.com., accuses Federation of Exchange Accommodators (FEA) and a number of individuals of having wrongfully taken his copyrighted material for use on its own website. Rogers asserts that FEA’s publication titled “Member Guide to Internal Controls and Procedures for Handling Exchange Funds” contains material duplicated from an article he authored on 2007, titled “Reasons for Return.” He states that the infringement is willful and knowing, and that the Defendants ignored his cease and desist letter. The case is before Judge Casper.

Mugraby v. UndercoverWear, Inc. (20-cv-10641).

Israeli photographer Sam Mugraby, who operates through his business Photos5.com, accuses UndercoverWear of infringing his copyright in a photograph entitled “Heart in the Sky” by placing a copy of the image in its website. Mugraby asserts copyright infringement and removal of copyright management information.

Larson v. Perry et al. (19-cv-10203).

Sonya Larson sued Dawn Dorland Perry, seeking a declaratory judgment that a story written by Larson did not infringe Perry’s copyright in a similar story, and sued Perry, her attorney and his law firm for defamation and tortious interference with contractual relationships when Larson’s publisher was threatened with a lawsuit if they continued to publish Larson’s story. Perry’s lawyer, Jeffrey Cohen, and his California firm, Cohen Business Law Group, moved to dismiss for lack of personal jurisdiction, which Judge Talwani denied. She noted that Cohen Law had sent letters to BFF in Cambridge, MA, alleging that Larson’s story plagiarized Perry’s letter and that publication would infringe on Perry’s rights, and threatened statutory damages of up to $150,000 should BFF publish. Larson alleges that this letter knowingly misrepresented both the facts and the law such that it constituted an unfair or deceptive trade practice under Massachusetts law and was designed to interfere with her agreement with BFF. As this behavior was targeted to a Massachusetts company for the purpose of affecting BFF’s business decision. This therefore is sufficient to establish specific personal jurisdiction.

Cohen and his firm also moved for dismissal on the grounds that, as a matter of law, their alleged conduct is shielded by Massachusetts’ litigation privilege. An attorney’s statements in the Commonwealth are absolutely privileged where such statements are made by an attorney engaged in his function as an attorney whether in the institution or conduct of litigation or in conferences and other communications preliminary to litigation. Where the communication is to a prospective defendant, however, the anticipated litigation must be contemplated in good faith, and does not allow a lawyer the freedom to act with impunity. While lawyers cannot be held liable for the contents of their speech, that speech can be used as evidence of misconduct, with the line between the two determined on a case by case basis. In this case, the complaint asserts that the Cohen letter was used to effectuate unlawful ends, rather than looking to establish liability based on the content standing alone, and Judge Talwani determined that the good faith of the Cohen firm could not be determined on the pleadings. Accordingly, she refused to dismiss based on litigation privilege.

Judge Talwani denied Perry’s moved to dismiss on the grounds that defamation was not properly pled and that Larson failed to plead actual malice, a requirement under Massachusetts defamation law when the plaintiff is a limited purpose public figure. The complaint identified instances in which Perry is alleged to have told several writing organizations, Larson’s employer, and a writing organization where Larson sought a fellowship that Larson plagarized her work, providing Perry with enough specificity to mount a defense. Regarding the “limited public figure” issue, Judge Talwani noted that while the issue is one of law, it is inherently fact-specific such that it cannot be determined on the pleadings.

Judge Talwani granted Perry’s motion to dismiss the tortious interference counts. The complaint alleged that, as a result of Perry’s conduct, two publishers decided to pull Larson’s story from their website earlier than call for by the contracts between Larson and the two. Ordinarily, this would be sufficient to survive a motion to dismiss. Here, however, the two contracts were included as exhibits to the complaint and could thus be fairly considered in determining the motion. In reviewing the contracts, neither included the promises alleged in the complaint that the story actually be published or remain on available for any particular length of time.

As a note, Judge Talwani denied Perry’s request for a hearing on her motion, finding that the coronavirus crisis combined with the Court’s determination that it could properly adjudicate the issue on the papers weighed against a hearing.