ROCA, or Reverse Online Class Action, Lawsuits have been one of my major pet peeves for some time now. What is a ROCA Lawsuit? A ROCA lawsuit is one which involves: 1) allegedly illegal online activity; 2) very little initial investigation; 3) sweeping threat letters to the owner of the computer demanding large damages; and 4) cripplingly litigation costs in the event the damages are not paid. ROCA suits, like the Record Industry Association of America suits against music downloaders and DirecTV suits against purchasers of descramblers have exploded in the past few years.
It used to be that plaintiffs who felt they had been wronged in small amounts, by a large number of people decried the judicial system. The plodding pace and exorbitant cost of federal court litigation made it cost prohibitive to sue any of the defendants. ROCA has turned that philosophy on its head. The time and cost involved have not changed, and in fact, have gotten worse, but plaintiffs now use that to their advantage. In the past if you sent a letter to someone demanding three thousand dollars not to take them to federal court, they would likely toss the letter without even a response. They knew you were not going to spend eighty thousand dollars to collect three.
To overcome that problem, plaintiffs with a large number of similarly positioned defendants take an assembly line approach. They send the first letter, the plaintiff ignores it, and then they spend the eighty thousand dollars to get the three. In the process, the small defendant also spends eighty thousand on attorney fees. If the defendant cannot spend the eighty thousand on attorney fees, they typically get slapped with an astronomical judgment which often includes payment of both sides’ attorney fees.
Sure, the defendant may get stuck paying out more than the judgment and may even get stuck with problems collecting from a bankrupt defendant, but they can take solace in the fact that the next five thousand defendants, having seen the carnage wreaked upon the first defendant, readily pony up the three thousand dollars in response to the letter.
Often, after the first lawsuit, attorneys are only tangentially involved, with the bulk of the collection efforts accomplished by “investigators” paid a commission on payments collected. Ironically, the defendants causing most of the harm are far too savvy to get caught in the net. They know that the Plaintiffs can only afford to do limited investigation on each case. Sadly, a large percentage of people receiving the letters are either not the actual perpetrator (someone else was using their computer or credit card), had no idea what they were doing was wrong, or were too unsophisticated to use the illegal device they purchased.
Your best defense in avoiding being the “victim” of a ROCA suit? Knowing the law and what is and what is not illegal online. If you have any questions about what you can and cannot do online feel free to contact me through Brett Trout or for more information, check out Internet Laws Affecting Your Company