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Wayne Lonstein has made a specialty of representing cable and satellite TV companies, filing hundreds of signal piracy cases in courts around the country, more than 250 in New Jersey alone. The cases seldom go to trial and the defendants, mostly without counsel, often fail to answer, paving the way for default judgments that have exceeded $100,000. Now, a federal judge has found that the Ellenville, N.Y., lawyer routinely overreached by seeking relief for his client, Comcast, under a $100,000 statutory damages provision, and further that he misled judges into granting default judgments against lawyerless defendants. In an April 28 opinion, U.S. District Judge Dickinson Debevoise states that “throughout the District of New Jersey (and perhaps elsewhere in the United States) Comcast has sought relief for the kind of offense charged in this case which is without basis in law or the facts.” “In its zeal to eliminate distribution and use of illegal coding devices, Comcast has departed from the role of victim of illegal conduct and has assumed the role of victimizer,” Debevoise wrote in Comcast Cable Communications v. Adubato, Civ. No. 04-4643 [digested in this issue at page 53]. He was especially disturbed by the role played by Lonstein, who is licensed to practice in New Jersey. “Particularly, where as here, a defendant is unrepresented, an attorney must ensure that a judge is fully advised of the applicable law and that no allegations are advanced that are not fully supported by reliable evidence,” he wrote. The suit against Noel Adubato of West Orange is typical of those filed by Comcast for theft of cable TV services. Comcast identifies sellers of signal decoder devices, seizes their customer lists under court order and turns the names over to Lonstein, who sues the buyers. The complaint charged Adubato with having bought a decoder device to receive Comcast programs without paying and asked for injunctive relief and damages under the Federal Communications Act, 47 U.S.C. ��605, 553. Section 605, which applies to radio or wire transmissions, provides for statutory damages of $1,000 to $10,000 per violation, and up to $100,000 more where the violation was willful and done for commercial advantage or financial gain. Section 553 prohibits interception of cable signals and allows damages of $250 to $10,000, but up to $50,000 where the violation was willful. In Adubato and many other cases, Comcast’s complaints asked for $110,000 under �605, plus interest and costs. The case was filed last September but Adubato did not retain counsel and never answered, leading Lonstein to move for a default judgment in February. It was what Debevoise termed the “extraordinarily large damages request” of $163,259 against a defaulting and unrepresented defendant that prompted him to make “further inquiry.” He adjourned the hearing and gave Lonstein two weeks to answer questions about the bases for the claims. Among his concerns were unsupported allegations that Adubato conspired with the seller of the decoder device and acted for “private financial gain.” In an April 6 letter, Lonstein responded, stating that not only did other jurisdictions allow �605 claims for cable piracy but that New Jersey did too, until recently, and he identified four cases in the district where he had recovered more than $100,000. He agreed to withdraw the �605 claims against Adubato and to proceed under �553 but argued for an award of $50,000 in willfulness damages in order to deter others. Debevoise was not persuaded. After the adjourned default hearing on April 25, he issued his opinion, denying damages and granting only injunctive relief against Adubato. He pointed out that since 2001, the 3rd U.S. Circuit Court of Appeals has not allowed �605 claims in cable piracy cases, under TKR Cable Communications v. Cable City Corp., 267 F.3d 196, which requires suit under �553. He acknowledged that the circuit courts are split on the issue and that the 2nd Circuit does allow the �605 claims. Debevoise called it “inconceivable” that Lonstein and Comcast were not aware of the four-year old TKR case when Adubato was filed. Lonstein’s assertion that �605 claims were then allowed was “the ultimate in obfuscation,” he wrote. Debevoise blasted Lonstein’s request for enhanced willfulness damages under �553 as “a continuation of Comcast’s efforts to obtain unauthorized, excessive and oppressive damages against a defaulting defendant” because getting cable TV without paying for it does not constitute “private financial gain.” The fact that Lonstein won default judgments under �605 in seven similar cases only highlighted the abusive nature of the approach, by illustrating that cable TV pirates “are likely to be of medium or modest means,” wrote Debevoise. Six of the default judgments ranged from $50,240 to $145,631, with one defendant from Irvington, “one of Essex County’s most poverty-stricken communities,” and another from Vauxhall, “a humble working class section,” he pointed out. Those people now faced wage garnishment and judgment liens on their homes, Debevoise noted. He also mentioned that on Feb. 8, another judge in the district refused to award default damages of $100,000 in Comcast Cable Communications v. Dorris, Civ. 04-3587. The judge, Jerome Simandle, awarded Comcast $5,000 in statutory damages under �605, plus costs and attorneys’ fees. Undeterred, Lonstein two weeks later moved for the same relief in Adubato. Michael Cassell, of Newark’s Lefkowitz, Louis & Sullivan, who handles cable piracy claims for Cablevision, says he sues under �553 in New Jersey and under �605 in New York. Aside from �605′s higher damages, it is also better for plaintiffs because it permits stacking of claims where a defendant has bought more than one decoder, he says. When Cassell moves for default in a New Jersey homeowner case, he generally does not seek more than $10,000 in damages, he says. Richard Ravin, of Paramus’ Hartman & Winnicki, who has represented both sides in electronic piracy cases, says of Debevoise’s opinion, “as harsh as it was, it could have been much harsher,” noting no sanctions were imposed. Ravin calls the ruling “a reminder to judges and a wake-up call to attorneys that the courts cannot countenance sharp practices or overreaching by plaintiffs’ counsel, especially when the defendant is unrepresented.” The role of judges as gatekeepers is also important in Internet John Doe cases and file-sharing suits brought by record companies against music downloaders, he notes. Lonstein declines comment on Debevoise’s ruling, except to say “it’s nothing that should negatively reflect on Comcast” and that anything he did wrong was unintentional. He has not dawdled, moving to vacate the seven defaults right after the Adubato oral argument on April 25. By last week, several already had been set aside. He says he also withdrew all problematic default motions and is amending complaints that contain improper �605 claims. Lonstein says he has filed cable piracy suits in just about every state but Hawaii. He was the first lawyer to electronically file in the district of New Jersey, when e-filing became available on Jan. 6, 2004. It was a Comcast case.

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