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Bruce Perens Seeks Mandatory Award of Legal Fees vs. Open Source Security Inc

89 points by OMGWTF 9y ago

rhizome 9y ago
A little background: https://www.theregister.co.uk/2018/02/08/bruce_perens_grsecurity_anti_slapp/ https://www.theregister.co.uk/2018/02/08/bruce_perens_grsecu...
rwmj 9y ago
What happens if the plaintiff loses but cannot afford to pay the defendant's fees?
- JoshTriplett 9y ago
  Same thing that happens if a defendant loses and can't afford to pay court-ordered damages. Note that some court-ordered damages can be discharged with bankruptcy and some cannot; I don't know the full details of categorization there. But in the absence of bankruptcy, the payment has to happen at some point by some means.
  - rwmj 9y ago
    Well someone goes bankrupt. But the lawyers presumably still want to get paid so does their client have to pay the difference?
    - philipodonnell 9y ago
      The law firm will have a claim on the assets during backruptcy. They usually get paid before other creditors, but not sure where they rank vs the govt
      - Scaevolus 9y ago
        Maybe they'll auction off the assets (grsecurity) to some company that will make it open source? :-)
      - shaki-dora 9y ago
        That’s only true for the law firms working on the bankruptcy itself. The justification is obvious: otherwise, it would be impossible to have bankruptcy lawyers. Standard claims from a lawyer you once hired go into the same pot as your gardener’s.
    - ThrustVectoring 9y ago
      Non-payment of judgements is likely built in as a cost of doing business, alongside a general unwillingness to seek awards on a contingency basis against people with no assets. Also, taking on an anti-SLAPP case with mandatory attorney's fees on a contingency basis means that the list price for the fees is more of a tool to extract wealth out of the other side, kind of like list prices in healthcare.
- DaiPlusPlus 9y ago
  I want to know how it would work if the plaintiff proceeded on the case in good-faith but they lost the case on a technicality or other conclusion that doesn’t mean the defendant was found innocent - what happens then?
  - shaki-dora 9y ago
    A civil trial doesn’t decide “guilt” and “innocence”. If plaintiffs lose, they were simply wrong in filing the lawsuit. It’s a risk they knew about, and they had all the decision-making power while their opponents had none. The word “technicality” is also misleading: every law has some justification, and if a plaintiff finds themselves on the wrong side of that law, they legitimately lost the lawsuit and should have never brought it.
neveroffensive 9y ago
Can anyone speak to how likely it is a case like this will succeed? It seems like abuse of the court system has become more rampant, especially with the emergence of patent trolls. How often are people able to recuperate expenses incurred while defending against a frivolous suit? How much additional legal work is required to actually seek reparations like this? Is it judged as part of the original case, or is it a separate lawsuit?
- pcwalton 9y ago
  It depends on the state. California is one of a few states that has an anti-SLAPP statute that allows for award of legal fees under certain circumstances. Popehat has a good explanation: https://www.popehat.com/2012/06/07/why-yes-i-am-into-slapping/ https://www.popehat.com/2012/06/07/why-yes-i-am-into-slappin...
Lazare 9y ago
Seems fair. I'm sure Spengler really didn't like Perens comments, but abusing the legal system to shut up people saying things you don't like is very wrong, we (thankfully) have laws which punish people who try this in extreme cases (like this one), and Spengler knew (or should have known, before filing his suit) that these laws existed and how they worked. Play stupid games, win stupid prizes.
pcwalton 9y ago
Glad to see that the court reached the correct result. Nobody is allowed to use the court system to threaten and harass opponents for exercising their free speech rights. It doesn't matter how talented Spender is: those who use the court system for bullying deserve to face consequences.
Osiris 9y ago
Why should it cost $500k to defend oneself against a frivolous lawsuit with no legal merit? What I'm trying to ask is why is our legal structure in the U.S. setup in such a way that simply filing a suit against someone immediately puts a significant financial burden on the defendant?
- pessimizer 9y ago
  Let me tell you about bail... Our legal system is mostly about wealth, unless it's a dispute between two people of vaguely equal wealth.
- pcwalton 9y ago
  It's not, not in all states anyway. Popehat has an explanation here: https://www.popehat.com/2012/06/07/why-yes-i-am-into-slapping/ https://www.popehat.com/2012/06/07/why-yes-i-am-into-slappin...
- ldiracdelta 9y ago
  It is a real shame. In of the 90's, I heard "loser pays" tort reform bandied about a lot. Too bad nothing ever happened. https://en.wikipedia.org/wiki/Tort_reform#Loser_pays https://en.wikipedia.org/wiki/Tort_reform#Loser_pays

89 points by OMGWTF 9y ago

A little background: https://www.theregister.co.uk/2018/02/08/bruce_perens_grsecurity_anti_slapp/ https://www.theregister.co.uk/2018/02/08/bruce_perens_grsecu...

rwmj 9y ago

What happens if the plaintiff loses but cannot afford to pay the defendant's fees?

JoshTriplett 9y ago
Same thing that happens if a defendant loses and can't afford to pay court-ordered damages. Note that some court-ordered damages can be discharged with bankruptcy and some cannot; I don't know the full details of categorization there. But in the absence of bankruptcy, the payment has to happen at some point by some means.
- rwmj 9y ago
  Well someone goes bankrupt. But the lawyers presumably still want to get paid so does their client have to pay the difference?
  - philipodonnell 9y ago
    The law firm will have a claim on the assets during backruptcy. They usually get paid before other creditors, but not sure where they rank vs the govt
    - Scaevolus 9y ago
      Maybe they'll auction off the assets (grsecurity) to some company that will make it open source? :-)
    - shaki-dora 9y ago
      That’s only true for the law firms working on the bankruptcy itself. The justification is obvious: otherwise, it would be impossible to have bankruptcy lawyers. Standard claims from a lawyer you once hired go into the same pot as your gardener’s.
  - ThrustVectoring 9y ago
    Non-payment of judgements is likely built in as a cost of doing business, alongside a general unwillingness to seek awards on a contingency basis against people with no assets. Also, taking on an anti-SLAPP case with mandatory attorney's fees on a contingency basis means that the list price for the fees is more of a tool to extract wealth out of the other side, kind of like list prices in healthcare.
DaiPlusPlus 9y ago
I want to know how it would work if the plaintiff proceeded on the case in good-faith but they lost the case on a technicality or other conclusion that doesn’t mean the defendant was found innocent - what happens then?
- shaki-dora 9y ago
  A civil trial doesn’t decide “guilt” and “innocence”. If plaintiffs lose, they were simply wrong in filing the lawsuit. It’s a risk they knew about, and they had all the decision-making power while their opponents had none. The word “technicality” is also misleading: every law has some justification, and if a plaintiff finds themselves on the wrong side of that law, they legitimately lost the lawsuit and should have never brought it.

neveroffensive 9y ago

Can anyone speak to how likely it is a case like this will succeed? It seems like abuse of the court system has become more rampant, especially with the emergence of patent trolls. How often are people able to recuperate expenses incurred while defending against a frivolous suit? How much additional legal work is required to actually seek reparations like this? Is it judged as part of the original case, or is it a separate lawsuit?

pcwalton 9y ago
It depends on the state. California is one of a few states that has an anti-SLAPP statute that allows for award of legal fees under certain circumstances. Popehat has a good explanation: https://www.popehat.com/2012/06/07/why-yes-i-am-into-slapping/ https://www.popehat.com/2012/06/07/why-yes-i-am-into-slappin...

Lazare 9y ago

Seems fair. I'm sure Spengler really didn't like Perens comments, but abusing the legal system to shut up people saying things you don't like is very wrong, we (thankfully) have laws which punish people who try this in extreme cases (like this one), and Spengler knew (or should have known, before filing his suit) that these laws existed and how they worked. Play stupid games, win stupid prizes.

pcwalton 9y ago

Glad to see that the court reached the correct result. Nobody is allowed to use the court system to threaten and harass opponents for exercising their free speech rights. It doesn't matter how talented Spender is: those who use the court system for bullying deserve to face consequences.

Osiris 9y ago

Why should it cost $500k to defend oneself against a frivolous lawsuit with no legal merit? What I'm trying to ask is why is our legal structure in the U.S. setup in such a way that simply filing a suit against someone immediately puts a significant financial burden on the defendant?

pessimizer 9y ago
Let me tell you about bail... Our legal system is mostly about wealth, unless it's a dispute between two people of vaguely equal wealth.
pcwalton 9y ago
It's not, not in all states anyway. Popehat has an explanation here: https://www.popehat.com/2012/06/07/why-yes-i-am-into-slapping/ https://www.popehat.com/2012/06/07/why-yes-i-am-into-slappin...
ldiracdelta 9y ago
It is a real shame. In of the 90's, I heard "loser pays" tort reform bandied about a lot. Too bad nothing ever happened. https://en.wikipedia.org/wiki/Tort_reform#Loser_pays https://en.wikipedia.org/wiki/Tort_reform#Loser_pays