ALERT! FSC & 2257 TRO - I just dug up Exhibit A in court docs. FSC case weakend?

Something not addressed yet... a TRO is used as an emergency remedy for harm to a person/persons.

Now that the FSC has postponed the hearing for a TRO ... does it not make sense that now the case has weakend, if their filing was ever strong in the first place? Why would they settle like this? I have a theory. Is it possible they've weakend their own case?

I subscribed to PACE for the 10th Circuit Court of Colorado.. ( yes I put my money down to research this ) I found something not yet released to the adult community regarding this case See Exhibit A

Exhibit A is important for this reason. When the DOJ filed it's opposition to the FSC TRO request on page 23 of their opposition they made the following statement:

"More importantly, following the Sundance decision, DOJ did
nothing that would have suggested to Congress that DOJ had abandoned its interpretation that section 2257 applies to secondary producers. To the contrary, as of the date of enactment of the PROTECT Act (five years after the Sundance decision), DOJ’s previously enacted regulations remained in effect. Indeed, even lead counsel for the plaintiffs was quoted in a Free Speech coalition article (attached as Exhibit A, see page 4) as saying, “All along I have advised my clients not to rely on Sundance; that any image they had in any book, magazine, video, or whatever, whether it’s amateurs or swingers or any of that stuff, that they should have the appropriate records.”

I think that Exhibit A... which hasn't been released to our community until this post... is damaging to the case. What do you think? And you do you think it's wise for their attorneys to be making such public statements that can be used against them in this way?

That is taken directly from the response of the DOJ in regards to the lawsuit filed by the FSC. It's mostly propoganda. It's directly from the mouth of DOJ attorneys and of course it's going to try to paint the FSC in a bad light.

Nobody was willing to lose today. I'd call it a draw.

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Originally Posted by Huskyhunks

That is taken directly from the response of the DOJ in regards to the lawsuit filed by the FSC. It's mostly propoganda. It's directly from the mouth of DOJ attorneys and of course it's going to try to paint the FSC in a bad light.

Nobody was willing to lose today. I'd call it a draw.

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Did you read Exhibit A?

The article written by the FSC attorney, that is now being used against them in this case? It basically says, amongst other things, he's advised people not to rely on sundance... and all of a sudden now.. there is a postponement of the TRO hearing. Nobody in our industry has made issue with this VERY important point.. until this thread

The DOJ responded to Exhibit A with a point by point analysis of why the FSC should not be granted an injunction. It's somehting like 35 pages long, I read it and just laughed.

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Originally Posted by Huskyhunks

The DOJ responded to Exhibit A with a point by point analysis of why the FSC should not be granted an injunction. It's somehting like 35 pages long, I read it and just laughed.

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The Exhibit A is only addressed in the paragraph I pasted in the original post.

How can an attorney advise his clients NOT to rely on sundance.. then file a case in federal court that DOES rely on Sundance?

I don't know law but I do know that it must certainly weaken their stance.. and this could be why the TRO was delayed .. and may later be denied... what do you guys think?

It's anyone's guess at this point how this will come out.

But remember, 2257 itself is not new. Only these recent changes that the government is amending.

It was explained to us that producers have had to have the records all along. Most of them do.

The big deal is about the "secondary producer"... not 2257 itself.

We'll just have to sit back and play guessing games it seems until something is poured in solid concrete before we'll know for sure.

At best, all we can do is hope that the attorney's fair well in their efforts. After all, "they are fighting city hall" so to speak!

PapaBear

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Originally Posted by GLBTcity

It's anyone's guess at this point how this will come out. ..... We'll just have to sit back and play guessing games it seems until something is poured in solid concrete before we'll know for sure.

At best, all we can do is hope that the attorney's fair well in their efforts. After all, "they are fighting city hall" so to speak!

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I think they need to explain to members how this impacts their case and EXACTLY why they agreed to a delay!

I was ready to support the FSC today if an injunction was granted... but this recent action makes them very suspect in my eyes.

How on earth can they maintain credibility now? Members are complaining left and right about being misled and being told the injunction hearing was today etc etc.

Advising your client to prepare for the worst possible scenario ? How is that bad advice ? Playing it safe seems to have been the best advice they have offered so far. They've said to comply all along just in case they lose. I fail to understand why that is bad advice.

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Originally Posted by Huskyhunks

Advising your client to prepare for the worst possible scenario ? How is that bad advice ? Playing it safe seems to have been the best advice they have offered so far. They've said to comply all along just in case they lose. I fail to understand why that is bad advice.

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They said more then prepare for the worst case scenario. They've said not to rely on Sundance.. which they are now themselves relying on to win a TRO.

Again I'm not against the FSC. I think they are doing a great thing... but recent actions have made me suspicious of their intent these include:

1) Being vague as to whether a TRO would protect only FSC members... then going public after a big member drive and saying it would technically protect everyone

2) telling members they would be in court today on the TRO... then settling

3) Telling members not to rely on Sundance... then themselves relying on Sundance to win the TRO.

These actions make me suspicious. I really want to support the FSC but until they answer these questions publicly I just can't do it.

Those of us who have all ID's etc. and adapted to the new regs, have nothing to worry about, other then someone knocking on the door to inspect docs and being inconvenienced.

I hear you Squirt. Things are very weird sometimes with the FSC...

I have a feeling that this will end up in the Supreme Court since the Appeals Court has dealt with this issue before and no real resolution has been made.

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Originally Posted by Huskyhunks

I hear you Squirt. Things are very weird sometimes with the FSC...

I have a feeling that this will end up in the Supreme Court since the Appeals Court has dealt with this issue before and no real resolution has been made.

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After I see action on their part that produces legal results... not deals struck.. I'll support them. I'm all for the little guy fighting for what they believe in.

After today I can see the FSC striking a deal in the end for its members and not even tackling 2257. They've been saying all along they were ready to fight today.. and now... there is a delay with a deal struck. I really wonder if they weren't prepaired. We are all getting surprisingly little information regarding the goings on here and it's shocking.

first off, let me say that in general, I have the same questions and concerns about the FSC as you do Squirt... perhaps I even have more, since I am a jaded prick...

but, just to play devil's advocate... isn't it possible that when the FSC said not to rely on Sundance, that they didn't know something crucial about why they could rely on it. in other words, they learned new info after making the original statement, that led them to change their position.

just a thought.

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Originally Posted by thetwink

but, just to play devil's advocate... isn't it possible that when the FSC said not to rely on Sundance, that they didn't know something crucial about why they could rely on it. in other words, they learned new info after making the original statement, that led them to change their position.

just a thought.

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Yeah you never know really... especially when they aren't communicating such reasoning to members, or the industry in general.

I find it very odd that we all have gotten the message to become a member of FSC in the recent "news" articles... but we haven't been given access to "the deal". We weren't told yesterday, when they said they had a deal, what it was.. why? They said today that some particulars had to be ironed out at the last minute and that's why we didn't get official notice until today... but that means they DIDN'T have a deal yesterday and the "news" articles were wrong, except for their message to become members of course.

The more I'm digging the more things don't add up. At best they need to get their PR on track with what they're doing to avoid the appearance of shadiness and not have so much doubletalk in the PR they do put out there.

I also want to re-iterate a very significant point about this 'deal'...

It was NOTHING to do with the US legal system, it wasnt ordered by a Judge, it wasnt made in conjunction with any legal proceedings, specifically they TRO we were told that they were going to file but ultimately didnt.

This deal is worth absolutely nothing legally, to anyone, including FSC members.

The DOJ can repeal this agreement at any time they want and, there is nothing that any of us can do about it.

Again, why hasnt this deal been made public, because imho, it has several 'clauses' in it that the FSC dont want us to know about.

Id urge all of the FSC members we have on the GWW community to ask for a full copy of the 'deal' they struck with the DOJ, you are entitled to a copy as you were the ones who funded the deal.

Only when this 'deal' becomes posted publicly, in full, will any of us know just how 'safe' we may, or may not, be.

Ask the FSC for a full copy of the 'deal' i bet you get given several reasons why they are 'unable to disclose' the information contained within it.

Regards,

Lee

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Originally Posted by Lee

Ask the FSC for a full copy of the 'deal' i bet you get given several reasons why they are 'unable to disclose' the information contained within it.

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It's at that point I'd suggest the member who is requested a copy of the deal, and denied it, to retain Chad Belville to obtain them on their behalf. Seriously.

Who's a member of GWW and the FSC that wants to see a copy of this deal? Post here?

bet there is a non disclosure clause which will be the explanation... which wouldn't be out of the ordinary either...

just my guess

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Originally Posted by gaystoryman

bet there is a non disclosure clause which will be the explanation... which wouldn't be out of the ordinary either...

just my guess

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Right, the good thing is, that non-disclosure clause will only effect people who ARENT plaintiffs.

So for example, Charles could ask the FSC for a copy and, as he is a member of the FSC, they have no reason not to provide him with a copy, unless that is, they have something to hide.

Regards,

Lee

Hmm.. well to be honest Lee, if I was heading the FSC, and it had a non disclosure clause in it and that violation could terminate the agreement, I'd think long and hard before releasing it to the general membership of the group, for the simple fact that the more it was made available, the greater the risk of it being made public.. which defeats the non disclosure aspect. So while I'd love to know what was in the deal, I dont' think I can fault them for not releasing it assuming, big assumption, that it does have a non disclosure agreement.

But I certainly think a better PR position is needed. A point by point explanation at least, given that they do claim to be an 'industry watchdog'... which in my view, hasn't happened yet. Perhaps after the weekend?

Ian,

Non disclosure isnt an issue here, they have 'plaintiffs' and the FSC is acting on behalf of several thousands plaintiffs, how can those plaintiffs follow the agreement if, they dont know what is contained in it.

Its law 101, hopefully Chad will be able to shed a little more light on this matter for us though :)

Regards,

Lee

Here is how the agreement came about apparently:

The FSC also expresses appreciation to our extraordinary legal team: H. Louis Sirkin, Paul Cambria, Art Schwartz, Jennifer Kingsley, Roger Wilcox, Michael Gross, Barry Covert and Michael Deal. Special acknowledgement also to Michael Murray, whose agreement with the DoJ in the Connections Magazine case in Cleveland, Ohio, laid the groundwork for this agreement.

Apparently Michael Murray who is working on another case had something going and the FSC took advantage of a "good thing".

Might be worth checking up on this other case to see if something is available on it regarding the deal.

PapaBear

i just don't see how giving the doj more time to prepare is a good thing :(

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Originally Posted by basschick

i just don't see how giving the doj more time to prepare is a good thing :(

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Unfortunately, that seems to be lost in the shuffle.

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Originally Posted by basschick

i just don't see how giving the doj more time to prepare is a good thing :(

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I agree. It's been said that the DOJ thought they were going to lose the case... that's why they did this deal... well logically one has to ask.. if the FSC thought they were going to win, why broker a deal?

Has anyone seen a full copy of the 'agreement' yet?

Regards,

Lee

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Originally Posted by Lee

Has anyone seen a full copy of the 'agreement' yet?

Regards,

Lee

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Nope..nor who the actual decision makers were that said "Go for the deal!"

i also haven't read officially that there is, in fact, a non-disclosure agreement.

2c on the sundance thing, it's common knowledge that it is only applicable to a small part of the states and only in a very narrow set of circumstances.

This is from an old email from Obenberger on the topic:

"Sundance is the decision of only one American intermediate Appellate Court, the 10th Circuit Court of Appeals based in Denver, and its decision, strictly speaking, is binding law only in the ten states in its Circuit. Its decision does not bind any courts outside its Circuit. There are twelve Circuits in all. The Justice Department does NOT agree that Sundance was correctly decided (though they didn't try for an appeal to the Supreme Court), Justice takes the position that the secondary producer requirements are valid, and the new regulations proposed continue to incorporate them.

"A prudent webmaster or publisher will continue to obey them until there is a definitive decision nationwide invalidating the regulations. The risk is a maximum of 5 years in prison if Sundance is not followed by the other Circuits, or if the issue winds up in the Supreme Court in another case, and the Supreme Court goes the other way. Honestly, I think that's unlikely. But, given the risk, the only intelligent position is to demand the records required by the law until there is a clear decision of nationwide binding precedent that invalidates the law."

ap.

I personally see a lot of reason in this agreement.

Consider the fact that the law came in to effect on the 23rd of June. The TRO could have been denied. The hearing on the motion for a TRO could have taken awhile. So what we get in the agreement is assurance no action will be taken as proceedings are ongoing. Complete assurance for the plaintiffs (and implied assurance for everyone else) that no matter what decision might have been reached on the motion for a TRO and no matter how long it would have taken for that decision to be reached, they're safe from inspections and/or action. The June 23rd hearing was not going to offer any ounce of ruling on 2257 itself. The tRO hearing was never going to offer a permanent solution, or even permanent answer. That wasn't what the hearing was about. The court could have decided to deny a TRO and let the government do its work until a challenge to the law itself finally came about in subsequent hearings.

At the opening of the business day on June 23rd the government could very well have chosen to carry out a massive sweep of inspections. They could have brought action against anyone they wanted. They could have created a lot of hassle for a lot of people. If the judge denied the TRO, all hell could have broken loose for a lot of people. Even if the court had approved the TRO there still could have been ample time for folks lives to have been made miserable and anxiety and uncertainty run amock.

So this agreement has provided people with at least a month and a half of respite, regardless of any other circumstances that are beyond any of our control. Guaranteed month and a half of respite. Even a TRO on June 23rd could not have offered that much relief.

So you're allowed to breathe a little easier for at least a month and a half, get a guaranteed extra month and a half to be sure your ducks are in a row, and then on the date of the hearing on the motion for a PI the FSC goes in to fight for an even greater period of relief, followed then by their fight for total relief in the form of an oppressive relief being struck down by the court.