Mega-Law Firm Skadden, Arps, Defrauds the Court
Court Ignores | Awards Skadden Victory.
Skadden’s Scheme to Exploit Pro Se Plaintiff, Abuse the Court System, and Defend Copyright Infringement via Digital ‘Temp-Tracking’
Is Skadden, Arps Too Big To Fail?
This is a story of the worst known fraud on the United States Courts in history: a complex scheme of perjury, manipulation, and digital deception, committed by one of the world’s most powerful law firms - Skadden, Arps, Slate, Meagher & Flom – against one man without a lawyer.
Worse than Skadden’s fraud, however, is the courts’ failure to stop it. Despite meticulously documented and undisputed evidence of Skadden’s false statements and filings on behalf of defendants, the courts remained silent - they refused to address the issue, question Skadden, or allow plaintiff access to relevant evidence. The courts simply abstained, and thereby condoned Skadden’s misconduct.
The courts were not so passive, on the other hand, with the plaintiff – sanctioning him, ‘admonishing’ and warning him to refrain from taking legal actions, and, ultimately, dismissing his claims.
Contrary to the principles of justice, the courts – themselves victims of Skadden’s unlawful scheme to win at all costs - awarded Skadden every victory.
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“A ‘fraud on the court’ occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense.”
Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989) (citations omitted).
Courts have an obligation to respond to fraud on the court. The Supreme Court of the United States, in Hazel-Atlas Glass, explained a court’s “duty” to act when presented with evidence of fraud.
In the case at hand, plaintiff filed unchallenged evidence of Skadden’s fraud on the court. The courts did not act. The courts offered no reason for their failure to act. And moreover the courts did not even address the issue - no facts, no law, no discussion at all.
The courts’ silent dereliction of ‘duty,’ therefore, raises concern: Is Skadden – a large institutional law firm– ‘too big to fail?’ Is Skadden’s influence and power such that the courts are helpless to meet Skadden’s historic fraud on the court with equally historic action by the court?
Skadden Argues ‘Coincidence’ in the Face of Digital Evidence; Retreats to ‘Fleeting and Incidental’ Similarities; Ultimately Resorts to Fraud
Skadden represents defendants Time Warner, TBS, Bon Jovi, Boston Red Sox, Major League Baseball, and MLB Advanced Media, among others (collectively, ‘MLB Media’), in a musical copyright infringement lawsuit filed in 2008 by plaintiff Samuel Bartley Steele, pro se and in forma pauperis, in the United States District Court of Massachusetts. Steele’s lawsuit is the largest of its kind, international in scope, involving hundreds of millions of dollars.
Steele alleges that his copyrighted song was unlawfully reproduced and synchronized by MLB Media during production of their 2007 Bon Jovi-baseball-themed audiovisual, which was used in a national campaign to promote MLB playoffs, and to support Bon Jovi’s record-setting worldwide concert tour of 2007-08.
Steele’s claim spans three federal cases and four appeals; it raises new points of law affecting digital copyrights, and exposes a practice which is illegal, yet widespread throughout the advertising and multimedia industries: ‘temp-tracking,’ the secretive, unauthorized reproduction and use of a copyrighted song to create an audiovisual work.
Temp-tracking is universally recognized – including by its practitioners – as infringement of the song owner’s exclusive rights to reproduce and synchronize their song. Advertisers, movie studios, and multimedia companies utilize temp-tracks (behind closed doors) for cost and convenience. Temp-tracks help video editors meet tight deadlines (no need to seek the song owner’s permission), and producers meet tight budgets (no need to pay the song owner).
Temp-tracking is rarely discovered by the song owner because, prior to releasing the final audiovisual, the temp-track is replaced with a different - and licensed - song. Forensic musicologists – experts in music history, theory, and law - are often hired to help conceal temp-tracking during production. They are hired again, when necessary, as expert witnesses, to help conceal temp-tracking in court.
In four years of litigation, MLB Media has never denied ‘temp-tracking’ Steele’s song, i.e., that his work was digitally duplicated and synchronized to video during production of defendants’ audiovisual.
Moreover, supporting Steele’s claim, MLB Media admitted it possessed a copy of Steele’s song prior to their 2007 production. MLB Media specifically admitted ‘access’ to (i.e., reasonable ability to view/hear) Steele’s song on October 20, 2004, when Steele’s music agent emailed it to the Red Sox, at their request. Mag Jewelry Co., Inc. v. Cherokee, Inc., 496 F.3d 108, 119 (1st Cir. 2007) (“proof of access remains necessary” for infringement claim).
Steele’s 2004 song is an up-tempo, country-rock, 02:38:90-long playoff baseball anthem featuring the Boston Red Sox, referencing Yawkey Way at 00:18:80-seconds, and declaring ‘I Love This Team.’
MLB Media’s 2007 audiovisual is an up-tempo, country-rock, 02:38:90-long playoff baseball anthem featuring the Boston Red Sox, referencing Yawkey Way at 00:18:80-seconds, and declaring ‘I Love This Town.’
Both works are identical length – to the tenth-second - from start to ‘fade’ ending. Both works are equally precise at 18 points of thematic similarity. The works are 96% synchronized. And both works share other, substantial combined musical and dramatic elements.
MLB Media did not dispute the above facts. They have never, in fact, disputed any facts showing the works’ digitally precise synchronization. Nor were the facts disputed by MLB Media’s expert - forensic musicologist Anthony Ricigliano of Donato Music, Inc. (Ricigliano did, on the other hand, file a misleading report, and a bad faith “Declaration” to the court denying involvement with a “song” where a separate “soundtrack” was at issue.
Skadden’s defense, based on Ricigliano’s expert report, was that the numerous exacting similarities between the works - provided by Steele in a detailed spreadsheet filed at summary judgment - were “obviously mere coincidences.”
Similarly the court, while not discrediting Steele’s facts showing fractional precision, found them, as Skadden suggested, “unsurprising” and “inevitable.”
When Steele pointed out in appellate briefing the sheer implausibility of Skadden’s claimed ‘coincidence’ (and the court’s ‘inevitability’), Skadden abandoned their position, and instead justified the similarities as “fleeting and incidental.”
Ultimately, faced with conclusive facts demonstrating MLB Media’s unlawful use of Steele’s song as a temp-track, and lacking a credible - or even consistent – defense, Skadden resorted to the unethical and unprofessional practice of law, in defense of their prestigious clientele.
Skadden’s Unlawful Scheme to Conceal Primary Defendants, Restrict Discovery, and Alter Primary Evidence
In light of the adverse facts above - and their own shifting arguments - Skadden resorted to an unconscionable scheme to exploit their pro se opponent (in fact, to deprive him of counsel), deceive the court, and mislead proceedings away from primary defendants, possessing primary evidence.
Skadden covertly and illegally removed three principal defendants from Steele’s case, without the court’s permission, or notification to Steele. Specifically, despite being properly served summonses (i.e., legal ‘process’) by U.S. Marshals, the defendants failed to appear in court and defend against allegations in Steele’s complaint.
Accordingly, these three defendants ‘defaulted,’ which normally results in the court clerk entering their defaults on the docket (the clerk is responsible for, among other things, monitoring which defendants are served, which appear, and which default). Yet, in Steele’s case, the record showed that all defendants had appeared; no defaults were entered.
The record, however, had been manipulated. To hide the defaults from the clerk (and Steele), Skadden filed appearances for unserved, similarly-named, yet legally discrete entities, each of which misrepresented itself as one of the defaulting defendants. These proxies affected proceedings and concealed the defaults throughout Steele’s original case. Zocaras v. Castro, 465 F.3d 479, 484 (11th Cir. 2006) (appearing in a case “under a false name deliberately, and without sufficient justification, certainly qualifies as flagrant contempt for the judicial process and amounts to behavior that transcends the interests of the parties in the underlying action”) (quotation omitted).
Significantly, the defaulting defendants are the most likely to possess the critical chain of evidence (emails, computer files, etc.) related to the creation of MLB Media’s audiovisual. That digital evidence is determinative of Steele’s claims of unauthorized reproduction: defendants either pressed COPY, or they didn’t. Universal City Studios Productions LLP v.Bigwood, 441 F.Supp.2d 185, 190-191 (D.Mass. 2006) (“downloading copyrighted media files ‘infringe[s] Plaintiffs' rights of reproduction’ and constitutes direct copyright infringement”).
In addition to shielding defendants, Skadden obscured critical evidence by persuading the court to exclude it. Specifically, the court’s ‘discovery’ order – in the spirit of Skadden’s argument - foreclosed evidence related to the creation of MLB Media’s audiovisual. This order, however, goes against precedent in denying plaintiff alleging copyright infringement the ability to establish, foremost, ‘probative’ evidence to determine ‘factual copying, in this case digital duplication. Johnson v. Gordon, 409 F.3d 12, 18 (1st Cir. 2005) (“[p]roof of wrongful copying is a two-step process,” i.e., through discovery of ‘probative’ and ‘substantial’ similarity).
Accordingly, following three concealed defaults and an unprecedented, restrictive discovery order, no evidence relating to the creation of MLB’s audiovisual has ever been disclosed (hence no evidence relating to Steele’s claim of infringement by reproduction).
As for evidence of record, specifically the primary evidence, Skadden filed under pains of perjury a willfully altered version of MLB Media’s audiovisual, which significantly misled the court insofar as it (1) removed MLB Media’s copyright notice (as MLB Media defaulted, and Skadden attributed ownership to another defendant), (2) altered identical length, (3) offset 96% synchronization, and (4) removed elements bearing on the legal standard for ‘substantial similarity.’
In a fact-intensive letter exchange between attorneys on appeal, in reference to MLB Media’s altered audiovisual, Skadden admitted filing a “version,” despite previously swearing to the court it was a “true and correct copy.” Skadden, however, refused to correct the record, openly defying rules of civil procedure and professional conduct. Later, Skadden misdirected the same court of appeals to an altered YouTube video (where MLB Media had deleted the original), despite their duty to preserve evidence. Arista Records LLC v. Usenet.com, Inc., 608 F.Supp.2d 409, 431, 433 (S.D.N.Y. 2009) (cease and desist letter in copyright infringement dispute “triggers the duty to preserve evidence, even prior to the filing of litigation”).
Though Skadden does not dispute any facts detailing their party defaults, altered evidence, and inaccurate statements, they make no effort at amends, or even explanation. Rather, Skadden’s defiance poses an existential challenge to the courts: levy unprecedented, severe, and appropriate sanctions against a celebrated law firm, or remain silent.
Regrettably, the courts chose the latter.
Default 1 - MLB Media: The High-Stakes, Low-Profile Business of Baseball’s Digital Monopoly
The primary defendant in Steele’s copyright infringement lawsuit is MLB Advanced Media, L.P. (‘MLB Media’), a Delaware company and copyright owner of the Bon Jovi-baseball audiovisual above (the final frame displays ‘© 2007 MLB Advanced Media’).
MLB Media owns all digitial property of Major League Baseball Properties, Inc. (‘MLB’), including MLB.com, MLB team websites, web content, etc. MLB Media and MLB are legally discrete companies. MLB Media is owned by the MLB team owners, but does not - like MLB - share profits with players. MLB Media keeps a low public profile (they have no website), and remains, in the words of CEO Bob Bowman, “stealthy by nature.”
MLB Media also owns and manages non-baseball properties, including Bon Jovi’s website, promotions, and music and ticket sales. The Bon Jovi-baseball audiovisual was used in a 2007 national promotion of MLB playoffs, and by Bon Jovi to promote a 2007-08 record-setting world concert tour.
MLB Media’s use of MLB to promote Bon Jovi – from whom MLB Media directly profits - raises issues of unfair use of economic power in one market (sports-baseball) to curtail competition in another (music). See Atlantic Refining Co. v. FTC, 381 US 357, 367-371 (1965) (unfair competition where gas distributor promoted one brand’s auto parts per agreement for commission).
Skadden Conceals MLB Media’s Default by Appearing for an Unserved, Unrelated, Similarly-Named Proxy
On November 17, 2008, at their headquarters in New York City, MLB Media was served ‘process’ for Steele’s civil action by a United States Marshal, including a complaint and summons to appear in court. That same day, across the city, MLB evaded Steele’s summons, by instructing security guards to prevent the same U.S. Marshal from entering the building. (Thus never served process, MLB was not legally required to appear in court.)
Yet on December 8, 2008, MLB appeared voluntarily for Steele’s case, claiming to have been “misidentified” as MLB Media (depite separate, individualized process sent to each). Skadden would later file several inaccurate, conflicting corporate disclosure statements on behalf of MLB Media, and others.
The motivation behind MLB’s voluntary appearance as a defendant in a lawsuit involving several million dollars in potential damages, and possible criminal charges under 17 U.S.C. § 1204 for willful removal of copyright notice to conceal infringement for commercial advantage or private gain, was deemed “unclear” by the court, though no further inquiry was made (or allowed).
Meanwhile, MLB Media - the primary defendant and owner of primary evidence – who was properly served, never showed up for court, thus ‘defaulted.’ MLB Media remained shielded from litigation throughout district court proceedings, with MLB falsely assuming their identity. Zocaras v. Castro, 465 F.3d 479, 484 (11th Cir. 2006) (“A trial is not a masquerade party nor is it a game of judicial hide-n-seek where [a party] may offer [his opponent] the added challenge of uncovering his real name.”).
MLB Media’s default was discovered by Steele’s lawyer Christopher A.D. Hunt (Hunt Law Firm), who was retained on appeal and represents Steele today. Attorney Hunt discovered additional facts showing that MLB Media’s audiovisual evidence was variously altered, misrepresented, and deleted in a scheme worked by Skadden to conceal the default above.
Skadden Conceals MLB Media’s Default by Filing False Evidence: Copyright Notice Removed, Ownership Misattributed, YouTube Video Altered
On the same day proxy MLB voluntarily appeared to conceal MLB Media’s default, Skadden filed, under oath, an altered, now-conceded “version” of MLB Media’s audiovisual, the primary piece of evidence in the case. Skadden’s alterations removed MLB Media’s copyright notice, and misattributed ownership of the audiovisual to another party.
Specifically, the removal of MLB Media’s copyright notice - occupying the last frame of the video - left Skadden’s version concluding with the logo of TBS (a/k/a Turner Broadcasting System, Inc.). Based on this, Skadden lead attorney (and former White House counsel) Clifford Sloan misrepresented the audiovisual in open court as “what we’ll call the Turner promo.” Skadden’s papers also referred to the “Turner Promo” and “TBS Promo,” the name adopted by the court for MLB Media’s work.
Removing MLB Media’s name from the proceedings was not without consequence: the court dismissed Steele’s claim against MLB Media, finding that Steele made merely an “oblique reference” to it that did not sufficiently state a claim.
On the contrary, Steele asserted point-blank MLB Media’s involvement in the primary infringing work: “Let's get the record straight, MLB Advanced Media and MLB.COM claimed copyright for the audio visual and not TBS.” This allegation – and several others using MLB Media’s assorted trade names – was overlooked by the court, at the urging of Skadden.
Recently, in a related case where Skadden is a defendant (represented by Ben Clements of Clements & Pineault LLP), they misled the court of appeals to an altered YouTube audiovisual – MLB Media’s copyright notice removed – where the original was deleted, i.e., ‘taken down,’ by MLB Media, despite obligations to preserve evidence. Torres v. Lexington Insurance Co., 237 F.R.D. 533, 534 (D.Puerto Rico 2006) (plaintiff sanctioned for deleting websites contradicting her claims; “This is the type of unconscionable scheme the court seeks to deter.”)
Such bold fraud on a court of appeals is unprecedented in caselaw. And such undisputed, material alterations to the central work at issue, i.e., ‘spoliation,’ defy the most basic principles and rules of evidence. Booker v. Mass. Dept. of Public Health, 612 F.3d 34, 45 (1st Cir. 2010) (deliberate spoliation supports the inference that withheld evidence is unfavorable to the spoliator) (citation omitted).
Yet the courts said nothing, citing no fact and no law governing Skadden’s open, willful breach of conduct (in spite of the long and undisputed record to the contrary, the court found “no evidence of bad faith”). And when the court ruled on the merits, it ignored the single most compelling fact detailing copyright infringement by unlawful duplication - which was altered by Skadden’s ‘version’ of the audiovisual - namely, the works share identical length, precise to the tenth-second.
Skadden’s Version of Evidence Alters Identical Length, Offsets Synchronization, and Removes Similarities
While Skadden’s altered evidence concealed MLB Media’s default through misattribution of ownership and removal of copyright notice, it also impaired the court’s ability to fairly judge ‘probative’ and ‘substantial’ similarities, the factual and aesthetic standards used to determine copyright infringement.
Steele’s entire case rests on evidence that MLB Media unlawfully reproduced, or digitally duplicated, his song, which is 02:38:90-long from start to ‘fade’ ending. In 2004, MLB Media admittedly gained access to Steele’s song. In 2007, MLB Media released their audiovisual - similar to Steele’s song in structure, theme, subject, title, arrangement, and tempo – whose duration is 02:38:90-long, the same as Steele’s.
Where two works possess the exact same discretionary length (among many other distinctive similarities), and where defendants admit prior access to plaintiff’s work (as MLB Media does here), courts may infer evidence of ‘probative similarity,’ or proof of actual copying. Mag Jewelry Co., Inc. v. Cherokee, Inc., 496 F.3d 108, 119 (1st Cir. 2007) (“[W]hen the similarities concern details of such an arbitrary character...an inference of copying may be drawn.”).
Given the strength of the evidence above, however, Skadden took improper steps to conceal the facts, and mislead the court. Specifically, Skadden’s audiovisual ‘version’ alters the identical length (02:46-long as opposed to 02:38:90), removes the distinctive ‘fade’ ending, and inserts ‘dead air’ at the beginning, which offsets the 96% synchronization and 18 points of precise, thematic similarity.
Whereas Skadden’s alterations, as explained above, concealed from the court the identity and default of MLB Media, the alterations similarly misled the court in its analysis of copyright infringement, i.e., the court never once mentioned the works’ indisputed identical length. Conversely, the court – at Skadden’s insistence – broke with First Circuit precedent and disallowed Steele any discovery of actual copying, i.e., ‘probative similarity,’ typically the first of two steps in a court’s copyright infringement analysis. Yankee Candle Company, Inc. v. Bridgewater Candle Company, LLC, 259 F.3d 25, 33 (1st Cir. 2001) (infringement determined by a “two-part test” for ‘actual’ and ‘substantial’ copying) (citation omitted).
Such evidence of actual copying, e.g., digital duplication, is determinative of Steele’s primary claim of infringement by reproduction (via temp-tracking). A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014 (9th Cir. 2001) (“users who download files containing copyrighted music violate plaintiffs’ reproduction rights”).
Similarly detrimental to Steele, the court never mentioned Skadden’s deleted, material ‘fade’ ending, Three Boys Music v.Michael Bolton, 212 F.3d 477, 485 (9th Cir. 2000), as an element bearing on ‘substantial similarity,’ i.e., the degree to which an ‘ordinary observer’ regards works’ aesthetic appeal as the same. Incidentally, the court improperly disregarded all Steele’s ‘ordinary observer’ affidavits, citing no rule of law, and based on a clear error of fact.
The court also ignored Steele’s facts of originality, which placed his and MLB Media’s as the only 2 of 15 million musical works to combine baseball with the unique title “I Love This (Team/Town), and only 2 of 5 of 15 million works to combine country-rock with the Boston Red Sox. See Coquico, Inc. v. Rodriguez-Miranda, 562 F.3d 62, 69 (1st Cir. 2009) (copyright extends to original “juxtaposition of features” and “idiosyncratic...combination [of elements”).
The court of appeals, upon review of the lower court’s errors and oversights, summarily affirmed all holdings, and moreover found insufficient evidence to support an “inference” of probative similarity (factual copying), despite Steele’s beingdisallowed discovery of any probative evidence, and despite the works’ numerous exacting similarities, including identical length.
In this case involving duplication, synchronization, and digital precision, the court’s inexplicable holdings and refusal to examine unchallenged chronological data – not to mention Skadden’s misconduct – is illogical, unjust, and inconsistent with First Circuit law. See Concrete Machinery Co., Inc. v. Classic Lawn Ornaments, Inc., 843 F.2d 600, 608 (1st Cir. 1988) (proof of factual copying demonstrated by “articulable similarities”).
Whereas the above unchallenged facts detail Skadden’s unprecedented fraud to remove and conceal primary defendant MLB Media, Skadden similarly schemed to default and conceal two other principal defendants who likely possess the critical chain of evidence: Vector Management and Fenway Sports Group.
Default 2 - Skadden Conceals Vector Management’s Default by Appearing for an Unserved, Similarly-Named Discrete Subsidiary
On December 8, 2008, the same day Skadden filed false evidence and arranged a proxy appearance to conceal MLB Media’s default, Skadden staged a second concealed default for another principal defendant with direct ties to primary evidence – Vector Management (at pertinent times, Bon Jovi’s manager and contributor to MLB Media’s audiovisual.
As above, Vector Management was properly served process, yet did not appear in court, thus defaulted. Yet Skadden filed a notice of appearance for Vector 2 LLC, an unserved, legally discrete party who claimed it had been “misidentified” as Vector Management.
The facts on record, however, show that ‘misidentification’ was impossible - Steele properly and precisely named “Vector Management” in his summons and complaint, a U.S. Marshal served process on Vector Management at their headquarters in Nashville, TN, and their general manager signed for it. Vector 2, on the other hand, is a legally discrete company, with different offices at a different address, and different management clientele (excluding Bon Jovi).
Casting more doubt on Skadden’s claim of ‘misidentification,’ during eight months of Steele’s pre-litigation attempts to resolve differences amicably, he directly and repeatedly contacted Vector Management, concluding with an evidentiary ‘preservation letter.’ On the other hand, Steele had never heard of Vector 2 in relation to Bon Jovi or any other defendant, unsurprising since Vector 2 has no website or any internet presence whatsoever (in fact, “Vector 2” is false and misleading itself, as the company’s true name is “Vector Two LLC”).
Finally, Vector 2 is a subsidiary of Vector Management – such diminution of potential evidence and liability is self-evidently contrary to the rules of civil procedure and the notions of fair play and justice. One may not simply reduce risk in litigation by sending in a proxy with far less to lose (or expose).
When Vector Management’s default was brought to light, Skadden offered numerous contradictory statements of fact, and went so far as to justify Vector 2’s appearance by claiming concern for Steele’s expiring statute of limitations. (Again, as with MLB, a party appears voluntarily, potentially facing millions of dollars in damages and criminal charges, out of concern for the plaintiff?) In a bizarre attempt to defend themselves by clouding the issue, Vector Management used 16 names for 3 parties within 2 pages of briefing, which – like so many other inconsistencies – went unaddressed by the courts.
Despite the undisputed evidence of Skadden’s unilateral, illegal party substitution, the courts deferred to Skadden, dismissing Steele’s claims against Vector Management based on Steele’s amended complaints naming Vector 2, not Vector Management (Steele did this precisely because Vector 2 falsely appeared claiming to be Vector Management, in response to Steele’s original complaint).
Alas, the courts strained to justify each of the two unprecedented, concealed defaults above, making no attempt to ‘connect the dots’ indicating a pattern of improper scheming. And the courts made far less of an attempt (none, in fact) to examine the undisputed facts detailing a third willful default, principal defendant Fenway Sports Group who, like the others, was concealed by the appearance of an unserved proxy.
Default 3 - Skadden Conceals Fenway Sports Group’s Default by Appearing for an Unserved Non-Entity, Merging Two Defendants Into One
With two unsanctioned concealed defaults to their credit, above, Skadden was emboldened to attempt a third, with principal defendant Fenway Sports Group (a/k/a FSG) (“Fenway Sports”), the designedly low-profile ‘synergistic sister company’ and business manager of the Boston Red Sox, and linchpin in the chain of critical evidence related to the production of the Bon Jovi-baseball audiovisual.
During pertinent times, Fenway Sports executives (who function concurrently as Red Sox executives) had access to Steele’s song, which was received via email from Steele’s agent at the request of the Red Sox. Also during this time, Fenway Sports provided business consulting and promotional services to MLB Media, including during production of the 2007 Bon Jovi-baseball audiovisual, used to promote Major League Baseball nationally, and to support Bon Jovi’s worldwide concert tour.
Fenway Sports – like MLB Media and Vector Management before them - was properly served process, but failed to appear or defend in court, thus defaulted. In their stead, Skadden filed an appearance for a separate defendant – New England Sports Enterprises - who claimed Fenway Sports was not a discrete party, but rather its ‘d/b/a.’ Skadden bolstered this false claim through inaccurate briefing, exhibits, and corporate disclosure statements. Thus Skadden attempted to merge two defendants into one, in an effort to conceal the default of Fenway Sports.
When Steele’s attorney discovered and notified Skadden of the default, Fenway Sports responded with an appearance in court, then promptly deleted its website, retired its name, restructured its ownership, and rebranded the company, in conflict with its corporate disclosures, and without a word of notice to Steele or the court. Fenway Sports further masked its identity through a series of inaccurate and inconsistent disclosures in three court proceedings, including the court of appeals, without explanation or attempt to correct or clarify the record.
Presented with the undisputed evidence above, the district court averted the issue entirely, refusing to consider Steele’s facts or claims, based on his failure to file a motion for entry of Fenway Sports’ default - despite the court’s own explicit warning not to file such a motion. The court of appeals – which issued four summary affirmations of the lower court, signed by the clerk, with no written opinions – remained remarkably silent.
Despite the courts’ duty to police their proceedings – and Steele’s timely and diligent exposure of fraud – the courts again systematically avoided confrontation with Skadden, and instead admonished Steele, depriving him of due process and justice.
Conclusion: Skadden’s Fraud is Deplorable, Yet Understandable; the Court’s Silence is Confounding, Yet Unacceptable
Skadden’s unprecedented misconduct – however distasteful – is understandable in the context of human affairs, where, as here, an imbalance of power, money, and opportunity enticed a cadre of distinguished attorneys from an otherwise reputable law firm, to take unethical, unlawful, calculated risks on behalf of prestigious clientele, against a non-lawyer pro se plaintiff, in a lawsuit involving several million dollars in potential damages. This story, though sensational, is not beyond the realm of human failings, to which attorneys are not immune.
The more troubling question, however, is why did the Courts remain silent?
Unsurprisingly, there is no precedent or legal rationale for the courts’ silence as to Skadden’s abuse of the judiciary. Conversely, courts far and wide impose the most severe sanctions for such misconduct - for restitution and deterrence - to “send a message, loud and clear” that fraud will not be tolerated. Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1122 (1st Cir. 1989).
As the Supreme Court stated in its landmark opinion addressing fraud on the court, Hazel-Atlas Glass (1944): “The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud.”
Why the courts remained silent in the present case lies in the hearts and minds of the judges. And because the courts did not disclose their rationale through customary written legal opinions analyzing the compelling, undisputed facts and issues at hand, the courts’ disposition of these cases leaves considerable room for debate.
Which is why Bart Steele rightfully pursues his claim, through a forthcoming Petition for Writ of Certiorari to the United States Court of Appeals for the First Circuit, in the Supreme Court of the United States - in the abiding belief that the ‘court of last resort’ will finally – and merely - apply established law to established facts, and similarly draw this inevitable conclusion: defendants infringed Steele’s song through temp-tracking, then conspired with Skadden to defraud the court and Steele in a calculated, unconscionable, historic scheme to win at all costs.