LAS VEGAS, NV—U.S. District Court Judge Gloria M. Navarro ruled today that despite claiming it never definitively agreed to a settlement, Oron.com must abide by terms laid out during negotiations undertaken in July with Liberty Media, the parent company of gay content producer Corbin Fisher, as part of discussions intended to end the copyright infringement lawsuit brought in June by Liberty against the Hong Kong-based file locker.
In addition to enforcing the settlement, Navarro further ordered "that FF Magnat’s account shall remain frozen, in order to satisfy any fee award, which may be sought by Plaintiff, but which must be brought within thirty (30) days of this Order," and that "this case is DISMISSED with prejudice against Defendant FF Magnat and Defendant Maxim Bochenko." [emphasis in original]
In one fell swoop, the judge also ordered that "Motions at ECF Nos. 4, 5, 6, 21, 68, 70 and 73 are DENIED as moot," and that "the motion hearing scheduled for Thursday, August 9, 2012 at 1:30 p.m. in Courtroom 7D, is hereby VACATED." [emphasis in original]
The court said it would rule another time on a plaintiff's motion for attorney's fees, and it also ordered the court clerk to unseal any documents in the case that had been sealed.
"The instant case involves a dispute over Defendants’ alleged copyright infringement of Plaintiff’s works," wrote Navarro. "This Court previously granted Plaintiff’s motion for a temporary restraining order against Defendant. Thereafter, on July 1, 2012, attorneys for Plaintiff and Defendant signed a letter memorializing settlement terms in regards to this case and a similar case between these two parties in Hong Kong. The pertinent parts of the settlement letter are as follows:
"1. Oron pays Liberty Media $550,000.
"8. Once payment is received by both parties, both proceedings in NV and HK will be dismissed with prejudice, and in the event that Oron breaks any part of the deal, the claims may be reinstated via arbitration after a 30 day “notice and cure” period.
"12. Liberty agree to announce publically that after a careful review of the facts they believe Oron is protected by the DMCA safe harbor and that a review of the actual files shows that there never was any child porn on Oron’s site.
"14. Liberty will immediately, once the terms of the agreement are agreed to issue a letter asking that the HK bank accounts be unfrozen allowing the payment to the Randazza Trust and then to Leaseweb as well as send a letter to Leaseweb asking them to allow Oron ten (10) days to pay as the settlement of the matter is imminent.
"15. All parties mutually release. . .
"19. If you agree to these terms for your client please sign on the line below and return."
According to previous motions filed by Oron, a settlement letter sent to Liberty's lawyer Marc Randazza that purportedly countered in detail terms proposed by Randazza was merely a “draft term sheet for review by Plaintiff’s counsel, setting out certain terms of a proposed settlement."
Of the dispute, Navarro wrote, "There is nothing in the Settlement Letter that indicates that Defendant did not intend to be presently bound by the proposed terms or that a future writing was required. The requirement for the Plaintiff’s attorney to sign and return indicates that the parties do agree that all these terms are acceptable and binding. If this was only a proposal of terms there probably would not be a requirement for Plaintiff’s counsel to sign and return.
"Moreover," she added, "Defendant does not argue that it did not intend to be bound by the terms once the letter was signed. Instead Defendant only points to statements made by Plaintiff after signing the letter that it argues indicates the negotiations were ongoing. Defendant argues that the settlement was not final because the letter sent by Plaintiff to LeaseWeb states that 'Oron.com is on the eve of making a deal with us.' Likewise Defendant argues that the stipulation submitted to the court to delay the hearing on the permanent injunction motion does not state that a settlement was reached and that Plaintiff’s counsel’s comments indicating that "the settlement we brokered is going off the rails,' is further proof of no settlement."
Navarro, however, was "not persuaded that any of these statements are sufficient evidence to indicate that the parties did not intend to be bound by the terms in the signed Settlement Letter. The comment that 'Oron.com is on the eve of making a deal' only indicates that documents have not been finalized. A contract can be formed so long as the parties agree to the material terms, even though the contract’s exact language is not finalized until later.
"Finally," she concluded, "the comments that the 'settlement we brokered is going off the rails' including the context of the e-mail actually indicates the contrary, that Defendant was not holding up its end of the bargain."
The judge then determined that, in fact, all of the material terms of the settlement had, at one time or another, been agreed to by both parties, including the one apparent sticking point, whether the case against defendant Maxim Bochenko, a/k/a Roman Romanov, the alleged "owner, operator, and guiding force behind Oron.com," would be dismissed with prejudice. Once agreed to by Liberty verbally and in a text message, Navarro reasoned, "Defendant cannot plausibly claim that it no longer intended to be bound by all the other terms of the Settlement Letter when it 'got its way' on the one material term in dispute."
With that out of the way, Navarro ruled, "The Court finds that there is an enforceable contract. The Settlement Letter written by Defendant was an offer, accepted by Plaintiff when its counsel signed the letter. There was a meeting of the minds as to all material terms on July 5, 2012, when Plaintiff agreed that the settlement would include dismissal with prejudice of Mr. Bochenko. There settlement includes valuable consideration on the part of both Plaintiff and Defendant. In this case, the Court can compel compliance because there are no uncertain material terms that remain. Accordingly, the Court grants Plaintiff’s Motion to Enforce Settlement."
The clerk wasted no time filing the official decision of the court, to wit, "Judgment is hereby entered in favor of Plaintiff in the amount of $550,000.00 and against Defendant 'FF Magnat Limited, d/b/a Oron.com,' and execution of that amount shall be issued forthwith."
A request for comment sent to Liberty Media counsel Marc J. Randazza was not immediately returned.
Judge Navarro's Order can be accessed here.