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I read the Judge's order today and it tempered any celebration I initially felt. The Judge in this case was not very impressed with many key issues such as privacy, first amendment and the law being unduly burdensome. Were it not for precedent that the Judge was compelled to follow in Sundance, I think this case might have had a very different result already. Kudos to the FSC on their strategic planning of venue and for winning this battle, however close it might have been.
There is alot of work to do here for the FSC lawyers is the message I got from the Order.
As far as debating whether the DOJ will prosecute non FSC members, while the law is pretty clear that the injunction is only applicable to FSC members and named plaintiffs in the case, I do agree that there is a potential for the prosecutors to get a very negative response from another jurisdiction since this case is ongoing and some results have already been reached. The potential to have their asses handed to them in a very public manner certainly will chill the desire for the DOJ to prosecute.
On the other hand, if I was a prosecutor who detested Company A's business, their business was in a jurisdiction with friendly law on the books, and I wanted to break a "bad guy" down financially, well yeah it would be worth considering. Remember that to get to a similar result that the FSC has reached will require significant legal funding, and maybe the Feds might just choose a small guy who they know doesnt have the backing to withstand a full court DOJ press. Maybe if I was a prosecutor, I could use the 2257 as a vehicle to just toss the place and look for evidence of other crimes. It doesnt mean I have to actually prosecute 2257 but the law allows me to knock on his door and be let in...
Bottom line IMO is if you are not an FSC member, now is not the time to be asleep at the wheel when it comes to records and you be wise to reaffirm that all aspects of the your business can withstand some level of scrutiny by government agents.
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