NEW YORK—United States District Court Judge Shira A. Scheindlin issued an Order of Discontinuance Wednesday in Ventura v. Mansef—the copyright infringement case that revolves around the often-controversial business models used by adult tube sites, four of which have been operated by the defendants in the lawsuit—that has sown some confusion regarding the actual disposition of the case, which is apparently still ongoing.
The order by Scheindlin, which is attached below, reads, in part, “The parties having notified the Court that they have reached a resolution of this action, it is hereby ordered that the above captioned action, and the same hereby is, discontinued with prejudice but without costs.”
The same order, however, announces the scheduling of another conference on Oct. 7 at 5 pm, and states, “Any party seeking to raise an issue at this conference, shall (1) apply for restoration of the action no later than Oct. 4, 2010, and (2) in such letter, specific (sp) the issues to be addressed."
AVN spoke Friday with Jessica Pena, in-house counsel for Pink Visual, the production company owned by Ventura, in order to clarify what was going on, in light of a comment posted by Pink Visual president Allison Vivas to the GFY webmaster board, that said the claims made in an article by XBIZ to the effect that the parties in the lawsuit had reached a settlement is “inaccurate.”
Pena said she could not comment directly on the case or the order issued by the judge, but did say, “The interpretation of the court order by XBIZ is misleading.”
AVN also put calls in to lawyers for Mansef and another defendant in the case, 6721851 Canada. The Mansef attorney has not returned the call, but AVN did get through to 6721851 Canada attorney Dennis Nolan, who said he could not speak with us at all.
Thus, one is left to interpret the Scheindlin order in light of the fact that neither side is willing to confirm that the parties have reached a settlement, which is the common occurrence when high-profile cases such as this conclude, even if the particulars of the settlement cannot be discussed.
If, in fact, the case is over, why has another hearing been scheduled that is clearly intended to address issues related to the lawsuit? Is it possible that the parties have proceeded down the road toward a settlement, but have not yet concluded their negotiations? By saying that the parties have reached “a” resolution in the action, was the judge referring to a specific resolution rather than a complete resolution of all matters at hand?
Industry attorney and AVN Legal Columnist Clyde DeWitt replied to a request for a clarifying comment.
“The order is to say the least opaque,” he said. “The only scenario that I can imagine that would be consistent with this order is that the parties have tentatively settled, but are in the process of either reducing the settlement agreement to writing or they have a draft, written settlement that has details to be worked out.”
When asked how common it is for judges to do this sort of thing to clear their docket/calendar, only to find themselves putting hearing dates back on later, if the parties haven’t yet reached a resolution, DeWitt said, “It happens with some regularity. For example, if the parties go to a mandatory settlement conference and get very close to a settlement but leave some details to work out.”
Those interpretations would seem to square with the refusal by Nolan to comment, as well as the Vivas comment regarding the “inaccurate” XBIZ article and the follow-up reiteration by Pena, that Ventura v Mansef remains active, even if the parties appear to be engaged in substantive discussions that are bearing fruit.
AVN will continue to provide updates on this case as they develop.
The Order of Discontinuance can be read here.