The perils of suing crypto exchanges after ransomware attacks

In October 2019, unknown hackers infiltrated a Canadian insurance company by installing the malware BitPaymer, which encrypted the firm’s data and IT systems. The hackers demanded a ransom of $1.2 million be paid in Bitcoin (BTC) in return for the decryption software needed for the firm to regain access to its systems. 

The firm’s United Kingdom-based insurer — known only as AA — arranged to pay the BTC ransom, and the firm’s systems were back up and running within a few days. Meanwhile, AA started the process of seeking legal avenues to recover the BTC obtained by the hackers. It engaged the blockchain investigations firm Chainalysis, whose investigations revealed that 96 of the 109.25 BTC paid had been transferred to a wallet linked to the Bitfinex exchange.

So far, this story is (unfortunately) far from unusual. Bitcoin accounts for the vast majority of ransomware payments due to its anonymity, accessibility (making it easier for victims to pay the ransom) and verifiability of transactions (allowing criminals to confirm once payment has been made). What is unusual about this story, however, is that it sparked a 14-month-long legal battle between AA and Bitfinex, one that only recently concluded after AA discontinued its claim against Bitfinex in the U.K. High Court.

Having traced the stolen BTC to Bitfinex’s platform — and with the identity of the hackers still unknown — AA started its litigation against Bitfinex in December 2019. Again, this is not unusual: U.K. courts have a wide range of remedies at their disposal to assist victims of fraud in trying to recover their assets. In instances where banks, exchanges or other intermediaries may find themselves unknowingly receiving or holding misappropriated or stolen assets, victims of fraud have been able to rely on:

  • Norwich Pharmacal orders, which require a third party to disclose certain information to the applicant that will assist in recovery efforts. In this context, the information would be the identity of the wallet holder to which the BTC was traced, and/or details of any other transactions involving the BTC since receipt by the wallet linked with the exchange.
  • Freezing orders that prevent defendant…


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The ‘Choose Your Own Adventure’ People Are Suing Netflix Over ‘Bandersnatch’

As you may have already heard, the latest iteration of the Black Mirror franchise on Netflix, titled Bandersnatch, is an absolute hit. You likely also have heard that it allows the viewer to influence the plot by making choices within the story’s many inflection points. And, hey, perhaps you even heard that Netflix is facing legal action by Chooseco LLC, the company behind the “Choose Your Own Adventure” series that were popular in the ’80s and ’90s.

But if you haven’t dug into the details, both in terms of why Chooseco states the Netflix series violates its trademark and the damages it is asking for in court, you may not realize just how bonkers all of this is.

Chooseco LLC is suing Netflix for trademark infringement and dilution over the streaming service’s new hit, claiming that Netflix is “willfully and intentionally” using its trademark “to capitalize on viewers’ nostalgia for the original book series from the 1980s and 1990s.”

Bandersnatch is an interactive film that allows viewers to make choices that drive the plot and decide the ending. Early on, the main character informs his father that “Bandersnatch is a ‘Choose Your Own Adventure’ book” and holds up a copy by fictional author Jerome F. Davies.

Now, it should be noted that this entire claim appears to rest on two things. First, there is very brief nod to the book series at one point in the film. Second, Netflix at one point had spoken with Chooseco about officially licensing their trademark for a Choose Your Own Adventure series that doesn’t appear to have anything to do with Bandersnatch. But it’s important to make something clear: at no point has Netflix ever referred to its own Banderstatch as “choose your own adventure,” or anything close to that. It is true that many people may have compared the two because, duh, but that’s not on Netflix (one might argue it’s on Chooseco for picking a name that is so easily genericized). From there, Chooseco claims that there will be public confusion about the origin and/or affiliation of Bandersnatch having something to do with Chooseco, and it claims that the film’s use dilutes the positive warm-and-fuzzies people have for the book series. On that front:

Overall, Bandersnatch is a dark film and the videogame that Butler creates in it based on its fictional inspiration is equally dark. Nearly every narrative fork includes disturbing and violent imagery. The movie has a rating of TV-MA, which means the content is specifically designed to be viewed by adults. Depending on the choices the viewer makes, it can include references to and depictions of a demonic presence, violent fighting, drug use, murder, mutilation of a corpse, decapitation, and other upsetting imagery. These dark and violent themes are too mature for the target audience of Chooseco’s CHOOSE YOUR OWN ADVENTURE BOOKS. Association with this grim content tarnishes Chooseco’ s famous trademark.

This, as should be plainly evident, is absurd on many levels. Fans of Bandersnatch aren’t going to think less of the Choose book series because Bandersnatch is dark. Dark is the whole point of Netflix’s series. Aside from that, a throwaway line in the beginning of the film serving as a simple nod to the book series doesn’t exactly create the lasting impression that there is any affiliation here. Bandersnatch regularly does commentary on popular culture by turning it dark. It’s kind of the point.

And, again, there’s nothing in here that’s going to cause people to somehow think Chooseco is involved in this film at all. The trademark claims ought to fail on the lack of any real concern over public confusion. And yet…

The real legal adventure, though, could come in its request for $ 25 million in damages or Netflix’s profits, whichever is greater, and that the damages be tripled because of the alleged willful nature of Netflix’s conduct.

Supporting the company’s claim that it deserves treble damages is its allegation that the two parties had been in “extensive negotiations” over the use of the trademark in 2016 but that Netflix never obtained a license. Also, Chooseco claims it sent Netflix at least one cease-and-desist letter regarding its unauthorized use of the “Choose Your Own Adventure” trademark in another program.

Every piece of evidence here is weaker than the last, which makes a $ 25 Million price tag seem a bit too much. Perhaps this is a lawsuit fishing for a settlement to make it go away, but I would hope Netflix digs its heels in instead.

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