| To: John_Farro who wrote (8954) | 10/1/2005 7:42:48 PM | | From: Jeffrey S. Mitchell | | | | I still fail to see how Franklin applies:
Regarding the defamation claims, the central issue was whether Franklin Life was vicariously liable for the allegedly defamatory comments of its agent, Murray. The Court concluded there was no proven basis for an apparent agency claim. vbwr.com
So perhaps it was an alternate theory, but the court's conclusion -- which is all that matters -- was contrary to what Faro apparently thinks would be favorable to his lawsuit.
More Faro-speak:
On or about January 5, 2005, the Plaintiffs filed a "tactical lawsuit" against the Media Defendants.
"Tactical"? He just sunk his own battleship with that admission. What an idiot.
- Jeff |
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| To: Jeffrey S. Mitchell who wrote (8956) | 10/1/2005 9:32:59 PM | | From: Mighty_Mezz | | | | Yes, that "tactical lawsuit" line brought quite a laugh. Didn't he read the judges ruling awarding CNN fees and expenses?
This statement evinces that the plaintiffs filed their complaint in federal court for the sole underlying purpose of exerting “political and business pressures” upon a defendant in another lawsuit, and to obtain discovery it had been denied in the other cases.
...
Given the plaintiffs’ lack of reasonable inquiry, and the statements in Mr. Faro’s letter to one of the media defendants, I conclude that an ordinary person in the plaintiffs’ and Mr. Faro’s shoes would not have prosecuted this claim. On the record available to me, I find strong circumstantial evidence that the plaintiffs brought this defamation suit against the media defendants for an improper purpose.
Now Faro is trying to reargue that issue, after the ruling? Something tells me he wasn't at the top of his class in law school.
The judge just might add to the sanctions for wasting the court's time with this latest motion. |
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| To: Mighty_Mezz who wrote (8957) | 10/1/2005 9:42:24 PM | | From: the_worm06 | | | | Mighty Mezz
there is more
There is an appeal still pending in the CNN dismissal.
and
in addition, Faro also filed an appeal for the order on sanctions.
I understand that Appeals Judges don't take these "tactical lawsuit" shenanigans too lightly.
Expect severe sanctions considerably greater than those previously ordered.
also
expect sanctions in at least two other lawsuits. |
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| To: Jeffrey S. Mitchell who wrote (8956) | 10/2/2005 12:02:18 AM | | From: John_Farro | | | | Jeffrey, BINGO! You hit the nail right on the head. I bet the lawyers at Lycos are salivating over that statement as well. If they ever start playing offence then I wouldn't be surprised to see this statement prominently displayed in their countersuit.
Let's look at Faro's characterization of the Franklin Life suit a bit more closely.
Here is what Faro wrote:
Moreover, the Media Defendants also failed to addressed the "ratification" theory of liability in any of their papers before this Court, even though the Amended Complaint explicitly alleged the continued dissemination (re-publication) of the defamatory materials from and after the date of receipt of notice thereof from UCSY, [DE 8 @ Paragraph 20 ("continue to be published"); Paragraph 32 (have and continue to be disseminated")]; Paragraph 33(a) (have and continue to be published and disseminated")].
The issue of "ratification" of the tortious actions of another, relative to legal theory of a pleading of a defamation claim, arose in Franklin Life, when the Circuit Court erroneously instructed the jury that liability was to be predicated on the theory of "apparent agency" of an employee for his employer, which was not specifically alleged in the pleadings. The District Court reversed, in part, based upon the requirement that the jury instructions were required to track or parallel the ratification theory of the case, as evident from the explicit allegations of the complaint. The explicit allegations in complaint, which were held to be sufficient to assert ratification of defamatory materials, in Franklin Life, were as follows:
22. Defendant MURRAY published the defamatory statements in the actual performance of his duties relative to the sale of life insurance for the defendant Company.
23. Defendant COMPANY failed to take any remedial measures concerning the defamatory publication complained of herein and that failure constitutes acquiescence and ratification of Defendant Murray's intentional tortious conduct. . . .Id. @ 588 (emphasis added).
Accordingly, in Franklin Life, the attribution of the defamatory materials to the Company, was presumed to be based the same legal theory, as asserted in the Amended Complaint, specifically, ratification by "acquiescence".
NOT SO FAST, MR. FARO!!! You're leaving a few things out. It is true that the appellees were asking the court to find Franklin Life liable for ratifying Murray's letter. What you conveniently forgot to mention was that Murray was an agent of Franklin Life and that Franklin Life sent out another letter to the customers who had received Murray's original letter. You also forgot to mention that Franklin Life talked to angry customers over the phone who had received Murray's letter. Franklin Life's letter discussed both the appellees and Murray, and it was this letter, along with the phone conversations with Franklin Life's customers, that may have ratified Murray's behavior.
Now, does anyone believe that wolfblitzzer0 was an agent of CNN or Turner Broadcasting??? I don't think so!
Did the real Wolf Blitzer or any employee of CNN or Turner Broadcasting make a post discussing wolfblitzzer0’s postings that could be the basis for ratification???? I don't think so!
Did anyone reading the Raging Bull Board call CNN or Turner Broadcasting and did anyone at CNN or Turner Broadcasting say anything over the phone that could have ratified wolfblitzzer0's posts???? I haven't seen any evidence of this.
Now, let's look at a slightly longer passage from Franklin Life. This includes the passage that Faro cited, but it also includes information that he probably doesn't want the Court to see.
employee-leasing.org
With respect to the defamation claim, both appellees alleged in their respective third amended complaints that the liability of Franklin Life is premised upon Franklin Life's ratification of Murray's letter. Davy and Rousselle each alleged:
21. The oral and written defamatory publications complained of were communicated intentionally, maliciously, and without regard for their truth or falsity of their ultimate effect on the Plaintiff, and were not privileged.
22. Defendant MURRAY published the defamatory statements in the actual performance of his duties relative to the sale of life insurance for defendant COMPANY.
23. Defendant COMPANY failed to take any remedial measures concerning the defamatory publications complained of herein and that failure constitutes acquiescence and ratification of Defendant MURRAY's intentional tortious conduct. Thereafter Defendant COMPANY sent a letter to the approximately 1600 policyholders who received the letter referenced in paragraph 8, supra. That follow-up letter, a copy of which is attached hereto as Exhibit "B," further ratified Defendant MURRAY's intentional tortious conduct.
24. Defendant COMPANY further communicated orally with certain of the policyholders to whom Plaintiff had sold life insurance policies in Dade County and Broward County, Florida, in such a manner and fashion to ratify and approve the content of the letter referenced in Paragraph 8, supra. . . . (Emphasis added.)
Note above that it was the appellees, and not the Court, that said that Franklin's failure to take remedial measures was sufficient to ratify Murray's behavior. Here is what the Judge said:
The evidence produced by appellees at trial conformed to that theory of the case. Therefore, given appellees' pleadings and the evidence produced by them, there was no basis for instructing the jury on the theory of apparent agency with respect to the defamation claim. . . .
Over the objection of the appellees, the jury was instructed that Franklin Life could only be held vicariously liable for the negligent acts of its actual or apparent agent, Murray. Injecting negligence law into a claim regarding an intentional tort is erroneous and misleading, argue appellees.
As to the defamation claim, it was appellees' theory of the case that Franklin Life's liability arose from its ratification of Murray's letter. The jury, however, expressly found that Franklin Life did not ratify Murray's letter.
The Court never even came close to saying that Franklin Life’s failure to act was sufficient in itself to justify trying the case on the ratification. It may have implied that all the facts taken together--including Murray’s status as a Franklin Life agent, the letter sent out by Franklin Life discussing Murray’s original letter, and the phone calls between Franklin Life and the customers that Murray had written to—could justify trying Franklin Life for libel under the ratification theory. But Faro made a bigger jump than Evel Knievel crossing the Grand Canyon on his motorcycle when he claimed that the Court adopted the appellee’s position that inaction by itself on Franklin Life’s part would have been sufficient to invoke the ratification .
The Court didn’t even explicitly say that the jury should have been instructed to decide the case based on the ratification theory. The Court merely noted that the jury was erroneously given instructions based on negligence law and that the evidence produced at trial conformed to the ratification theory. One could assume that the Court would have approved the jury instructions if it had been based on ratification theory, but the Court did not explicitly rule on this, probably because it saw no need to make such a ruling since the jury had already rendered the point moot by deciding that Franklin Life had not ratified Murray’s letter.
Let’s hope the Judge who is deciding on Faro’s motion to vacate actually reads the Franklin Life case. It will be interesting to see if he thinks Faro’s interpretation of the case was made in good faith.
And BTW, I thank God that I’m not Faro! |
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| To: John_Farro who wrote (8959) | 10/2/2005 1:47:25 PM | | From: John_Farro | | | | Time to look at yet another aspect of Faro's Motion to try to get out of his sanctions. Faro relied heavily onNew York Stock Exchange v. Gahary to prove that Wolf Blitzer, CNN and Turner Broadcasting had the right to control their celebrity mark.
Anyone wanting to read the New York Stock Exchange case can click here:
pub.bna.com
Now, I've got something positive to say about Faro: At least he didn't botch up his characterization of this lawsuit as badly as he did the Franklin Life case. It is reasonable to cite the New York Stock Exchange (Henceforth NYS) case as evidence that CNN et al could exercise the right to control their celebrity mark. However, Faro slightly over stated his case when he characterized the NYS as follows:
Thus, each of the New York Stock Exchange, and the Media Defendants, had the exclusive right to control the continued usage of the celebrity name, and to compel deletion of any postings to prevent their re- publication, that were improperly associated by an impersonator, with their respective proprietary celebrity names. (emphasis added)
This is a slight oversimplification of what the Court actually said, because the Court recognized the defendant's First Amendment rights to use the celebrity mark for the purpose of parody. It also stated that "the law requires a balancing of the rights of the trademark owner against the interests of free speech" when a trademark was used "for expressive purposes of comedy, parody, allusion, criticism, news reporting and commentary."
But I am quibbling here. Whether wolfblitzzer0's right to use the Wolf Blitzer mark for the purpose of criticism, news reporting, and commentary outweighs the rights of the Blitzer et al is something that could only be determined at trial. So although Faro did oversimplify the NYS case and and though he somewhat overstated the breath of its conclusion, it is reasonable to rely on NYS to make the point that Wolf Blitzer et al probably had the right to control their mark. However, Faro made a huge leap into the Twilight Zone with this remark:
The inaction by the Media Defendants to act, under the facts of this case, reinforces the implication that the Media Defendants intended to harm UCSY and its management.
WHOA, HOLD YOUR HORSES!!! Even if the Media Defendants had the right to control their celebrity mark, it is a huge jump to concluding that they had the obligation to to control their mark. And there was nothing in the NYS case that spoke to the obligation to control one's mark.
And Faro's contention that the Media Defendants' inaction implies that they intended to harm UCSY and its management is just plain bizarre. Their inaction is more likely due to a desire not to be bogged down in a three-ring circus. Or perhaps the people at CNN recognize the right of critics to post anonymously on the internet and they don't want to be involved in stomping on those rights.
---------------------------------------------------------------
And now for something completely different, we present this radio drama:
General: Colonel, we have uncovered the coordinates of a dangerous al-qaeda operative. Intelligence tells us they are on the verge of building a nuclear weapon. It is up to you and your men to wipe out this rat's nest.
Colonel: Yes Sir! I won't return until the job is done, Sir!
Announcer: Eighteen tense hours of waiting click slowly by. And then.... And then... And then... In walks the Colonel.
General: So you're back! How did it go?
Colonel: I've got great news, Sir!
General: Ah, so you've wiped out the al-Qaeda operation.
Colonel: No sir! Unfortunately they have eluded us.
General: Then what's the good news? Did you at least switch to Geico?
Colonel: No, sir!
General: Then what news do you have for me?
Colonel: Good news, Sir! I AM NOT JOHN FARO! |
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| To: John_Farro who wrote (8960) | 10/2/2005 2:15:59 PM | | From: John_Farro | | | | There is another reason that could explain CNN’s reluctance to act. Perhaps someone at CNN was alerted the following death threats on the Yahoo YAKCE board against wolfblitzzer0 and don't want to be involved in any action that could jeopardize the person behind the wolfblitzzer0 alias.
finance.messages.yahoo.com
Re: UCSY Lawsuit Makes National News...
by: bashersuit
Long-Term Sentiment: Strong Buy 01/31/05 11:59 am
Msg: 4450 of 7689
Wolfblitzzer0 real identity has been found out..
Tony Ryals
tryals@angelfire.com
have fun!
--------------------------------------------------------------
Re: UCSY Lawsuit Makes National News...
by: bashersuit
Long-Term Sentiment: Strong Buy 01/31/05 12:09 pm
Msg: 4451 of 7689
I wonder if Tony Ryals values his life?
Good Luck
Posted as a reply to: Msg 4450 by bashersuit
--------------------------------------------------------------
Hey Tony Ryals ....
by: bashersuit
Long-Term Sentiment: Strong Buy 01/31/05 08:51 pm
Msg: 4471 of 7689
BAM!!!!
Good Luck
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CNN’s reluctance to cooperate with Zwebner is especially understandable if they have seen the following posts which suggest that Zwebner is either using the bashersuit alias or is working in cahoots with the bashersuit alias. (These posts were made on the Yahoo YAKCE message board)
messages.yahoo.com
MESSAGE TO BASHERS
by: bashersuit
Long-Term Sentiment: Strong Buy 06/01/05 07:08 pm
Msg: 7092 of 7689
YAHOO CHATLINE BASHERS
From: "mjzwebner@sprynet.com" Add to Address Book
To: bashersuit@yahoo.com
Subject: YAHOO CHATLINE BASHERS
STEVE THIS SHOULD MAKE THEM THINK. SHAWDOW ALREADY POSTED THE NEWS ON RAGINGBULL! SEND THIS TO ROBERTO ALSO
MESSAGE TO BASHERS
NOTHING HAS BEEN WON IN TODAYS COURT RULING ZWEBNER v. COUGHLIN
IF YOU CONTINUE TO SPREAD YOUR VILE, HATE AND LIES YOU WILL SURELY LOSE BIG TIME!
YOU HAVE BEEN TOLD BEFORE THAT THERE WILL BE NO REST UNTIL JUSTICE IS SERVED. UCSY/ZWEBNER HAS TIME AND MONEY TO FIGHT THE EVIL THAT BASHERS SPREAD.
QUESTION IS DO YOU??
--------------------------------------------------------------
ROBERTO VILLASENOR - WORM06
by: bashersuit 06/30/05 11:13 am
Msg: 7275 of 7689
YOU are hereby notified that, on the following day / dates and times, the Plaintiff in the above-styled cause will take the deposition by oral examination for purposes of discovery and for use as evidence in said cause, or both, of:
Deponent Date Time 7/1/05 1:00 p.m.
Place: Century Court Reporters
19000 Avenue of the Stars
Suite 1650
Los Angeles, California
310-284-9000
You are to bring with you the following documents:
1. Copies of all written documents, including, without limitation, e-mails and faxes, sent by you or received by you or in your possession which include the name Zwebner and/or UNIVERSAL COMMUNICATION SYSTEMS, INC. and/or AirWater Corp. or any derivation thereof.
2. All Internet postings made by you on any Internet site directly or through any alias which includes the name Zwebner and/or UNIVERSAL COMMUNICATION SYSTEMS, INC. and/or AirWater Corp. or any derivation thereof.
3. Copies of all communications between you and the Attorney General's office of the State of Florida.
4. Copies of your 2001 through 2004 Federal income tax returns including all schedules.
5. A copy of your current driver's license and any past driver's license from the year 2001.
6. The copy of all state income tax returns from the year 2001 to 2004.
7. Copies of your cell phone bills and telephone long-distance bills from January 1, 2001 to date.
8. Copies of all statements from any frequent-flier program to which you belong from January 1, 2001 to date.
9. Copies of any all documents which evidence your ownership of shares of any company or corporation which maintain offices in the State of Florida.
10. All documents which evidence any type of trading in shares of plaintiff, Universal and/or YACK, including, without limitation, stock purchases, stock sales, option purchases, calls, puts, short sales, or any other type of transaction involving either of those entities by you or anyone that you have furnish services to as a financial consultant or that you have communicated with at any time.
11. All written communications between you and Lycos or any attorney representing Lycos.
Said deposition(s) will be taken before Century Court Reporters or any officer authorized to administer oaths by the laws of the State of Florida, and a person who is neither a relative nor employee of such attorney or counsel and who is not financially interested in the action.
Said deposition(s) shall be taken pursuant to the Florida Rules of Civil Procedure in such cases provided. Said oral examination will continue from hour to hour and from day to day until completed.
A COPY OF THIS NOTICE HAS BEEN SENT TO YOU BY US MAIL TO THE ADDRESS YOU HAVE PROVIDED TO THE COURT. IN ADDITION, BY THIS PUBLICATION, YOU HAVE NOW BEEN OFFICIALLY AND PUBLICLY NOTIFIED.
Michael Zwebner
--------------------------------------------------------------
Now, perhaps bashersuit isn’t really working with Michael Zwebner. Perhaps bashersuit is really an enemy of Zwebner’s who is trying to make Zwebner look bad by making it look like he is behind the death threats. Well if that is the case then it is unfortunate for Mr. Zwebner. But CNN has a valid reason for not wanting to be involved in exposing wolfblitzzer0’s identity since there is no way for CNN to know whether it is really Zwebner or an enemy of Zwebner’s behind the death threats. If there is even a remote chance that Zwebner is behind the threats then why should CNN stick its neck out and risk helping him identitify wolfblitzzer0? Would CNN face any exposure to liability if they helped Zwebner discover wolfblitzzer0’s identity and if Zwebner subsequently used that information to harm wolfblitzzer0? There are certainly other reasons than a desire to harm UCSY and Michael Zwebner to explain CNN’s reluctance to get involved.
Oh, and BTW, I’m still not John Faro. |
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| To: John_Farro who wrote (8960) | 10/2/2005 3:39:15 PM | | From: Jeffrey S. Mitchell | | | | There's an interesting consequence to you using the misspelled named of John Faro. By Faro's own court filings, he is *obligated* to sue SI to subpoena your identity. If he didn't, would he not be admitting he himself (or his law firm) were not obligated, like he claims Turner is, to protect the celebrity mark of one of its employees? But if he did sue SI, given the CDA which protects SI, Faro would likely be sanctioned yet again. He loses either way.
- Jeff |
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| To: Jeffrey S. Mitchell who wrote (8962) | 10/2/2005 4:12:25 PM | | From: John_Farro | | | | Jeff, that's a twist I hadn't thought of! The mind reels from the implications.
I chose my alias in order to set up the dilemma (parody) I raised in post 8950. But you raise an excellent point. I feel like I have walked into the Twilight Zone.
--Not the real John Faro, and loving it. |
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| From: John_Farro | 10/2/2005 4:29:42 PM | | | | | | The last part of Faro’s motion to vacate is by far the funniest. If Faro is ever disbarred then he might find a career as a standup comedian. His argument, if I read it correctly, is that CNN had the duty of keeping their legal expenses low by cooperating with UCSY in helping them find the identity of wolfblitzzer0. Or, to put it another way, the last part’s theme is “Even if we filed a frivolous lawsuit, you had a duty under Rule 11 to knuckle under our demands in order to avoid unnecessary litigation and excessive legal expenses!” And what was UCSY’s key demand?
At a minimum, this cooperation would involve consent/stipulation to permit Plaintiffs' third party discovery of Lycos, and possible others, to ascertain the true identify of the poster and his associates.
Actually, it is the Judge in UCSY v. Lycos that Faro should be beseeching for permission to carry out discovery, not CNN. Oh, but Zwebner tried that and ran up against a brick wall. And Judge Jordon called Faro out on this in his order for sanctions (as others have already pointed out):
Significantly, however, the plaintiffs attached to the amended complaint a letter dated January 6, 2005 - a day or two after Lycos opposed the plaintiffs’ motion to compel discovery - from Mr. FARO to Johnita Due, in-house counsel for CNN. In that letter (attached as Exhibit 3 to the first amended complaint), Mr. FARO states:
[My] clients believe that there are both political and business pressures that can be brought to bear by CNN/AOL upon Lycos to cause them to exercise responsible internet community citizenship and, once and for all, permanently deny’ access to their Raging Bull web sites by individuals whom they know are abusive and misuse their web services to manipulate securities and/or extortion.
This statement evinces that the plaintiffs filed their complaint in federal court for the sole underlying purpose of exerting “political and business pressures” upon a defendant in another lawsuit, and to obtain discovery it had been denied in the other cases. See Pelletier v. Zwefel, 921 F .2d 1465, 1515 (11th Cir. 1991) (“Where.... . [the court has] no direct evidence of the party’s and counsel’s state of mind, [the court] must examine the circumstantial evidence at hand and ask, objectively, whether an ordinary person standing in the party’s or counsel’s shoes would have prosecuted the claim.”). Given the plaintiffs’ lack of reasonable inquiry, and the statements in Mr. FARO’s letter to one of the media defendants, I conclude that an ordinary person in the plaintiffs’ and Mr. FARO’s shoes would not have prosecuted this claim. On the record available to me, I find strong circumstantial evidence that the plaintiffs brought this defamation suit against the media defendants for an improper purpose.
It amazes me that Mr. Faro would have the chutzpah to practically admit in his Motion to Vacate the sanctions that this was a “tactical” lawsuit and then further seemingly claim that the Media Defendants had an obligation imposed on them by Rule 11 to knuckle under Zwebner’s demands and help him get what he could not obtain through proper legal channels.
I found the following statement worthy of the Comedian’s Hall of Fame:
One of the prongs underlying the policy of Rule 11, is the avoidance of burdening the Court with litigation that can be resolved, or alternatively, contained. This was precisely the objective of this January 31, 2005, communication counsel for the Media Defendants.
HAHAHAHAHAHAHAHAHAHAHA
The thought of Zwebner’s lawyer lecturing on the importance of not burdening the Court system with litigation that can be resolved or contained brings me to my knees in laughter. If Zwebner wanted to avoid burdening the Court system then he shouldn’t have filed this case in the first place. And just how many lawsuits has Zwebner filed in the past few years? Let’s see how many I can name:
1) Zwebner v. alias Tobias95 and John Does 1 - 100 03-CV-22328 (S.D. Fla)
2) Universal Communication Systems, Inc. v. Lycos, Inc. 04-CV-21618 (S.D. Fla)
3) Universal Communication Systems, Inc. v. Lycos, Inc. 05-CV-20149 (S.D. Fla.)
4) Universal Communication Systems, Inc. v. Lycos, Inc. 05-CV-20917
5) Universal Communication Systems, Inc. v. Lycos, Inc. 05-CV-20916
6) Zwebner, et al v. Coughlin, et al 05-CV-20168 (S.D. Fla)
7) Universal Communication Systems v. Turner Broadcasting 05-CV-20047 (S.D. Fla.)
8) Universal Communication Systems, Inc. v. Pedro Dembovich and Roberto Villasenor 04-27383-CA-01 (11th Circuit Court, Fla.)
9) Airwater Patents v. J.J. Reidy & Co., Case No. 05-CV-20650, (S.D.Florida)
10) Atmospheric Water Technologies, Inc. v. RG Globallifestyles, Inc et al (filed in Superior Court of the State of California, Orange Count as per this press release:
biz.yahoo.com
Every one of the above lawsuits was filed after September 1, 2003. All the lawsuits except for the Zwebner v. Tobias95 were filed after July 1, 2004. So in the past year and a half, Zwebner has filed nine lawsuits.
And this list is incomplete since it doesn’t recognize re-filing a case in a second jurisdiction after it has been dismissed from the original jurisdiction because it was filed in the wrong venue or because the original Court lacked proper jurisdiction. For example Zwebner v. Coughlin was dismissed from the Florida Court because Coughlin is a California resident and did not have the minimum contact requirements in Florida for the Florida court to have jurisdiction over him. So Zwebner responded to the dismissal in Florida by filing a lawsuit against Coughlin et al in California.
Given all this litigation (and Faro has a hand in several of these cases), Faro has the balls to preach about the importance of avoiding unnecessary litigation??? That’s like Bill Clinton preaching the importance of chastity.
One more point and I am done with my analysis of the Faro motion. This may be my most important point, so I will put it in bold:
If the Judge goes along with Faro’s contention that CNN had an obligation to knuckle under Zwebner’s demand in order to comply with Rule 11’s objective of minimizing legal costs, then it would have TERRIBLE policy ramifications. If the Judge buys Faro’s thesis then it would turn Rule 11 from a tool intended to discourage the filing of frivolous suits into a sledgehammer to be wielded by frivolous litigants. If Faro pulls the wool over the Judge’s eyes and if this case sets legal precedent, then Rule 11 will multiply frivolous lawsuits manifold. Everyone with enough money and a grievance, no matter how ridiculous or trivial, would be encouraged to file a lawsuit knowing that their opponents could not invoke Rule 11 without caving in to their demand. If Judge Jordan rules for Faro on this point then he may as well stick a dagger through the heart of Rule 11.
Oh, and BTW, I bet even the real John Faro has figured out by now that I am not John Faro.
And one more disclaimer: I am not a lawyer and the above remarks are my opinion based on the readings of Faro's Motion. My apologies to Mr. Faro if I have misunderstood what he has written. But I really think that I understood what he wrote all too well. |
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| To: John_Farro who wrote (8964) | 10/2/2005 10:23:35 PM | | From: John_Farro | | | | I want to make a modification of my last post. I had characterized the last part of Faro's Motion to vacate as saying "Rule 11 requires you to minimize the burden of litigation on the Court so you MUST knuckle under our frivolous litigation in order to get any Rule 11 sanctions." Actually, Faro's stance was slightly more nuanced. Faro made a big to do about how complying with Rule 11 sanctions to minimize litigation would impose minimal costs on CNN:
The pending litigation was of no consequence to the Media Defendants continued operation of its business, nor can it reasonably be characterized as requiring imminent attention (e.g. no pending Motion For Preliminary Injunctive Relief). Moreover, had the Media Defendants requested/insisted, Plaintiffs would have, on behalf of the Media Defendants, made whatever demands were necessary and appropriate on Lycos, Inc., to compel the deletion of the "wolfblittzer0" postings on the Raging Bull web site.
A better characterization of Faro's Motion would be the following:
Rule 11 requires you to minimize the burden of litigation on the Court so you MUST knuckle under our frivolous litigation provided doing so won't be too burdensome to you in order to get any Rule 11 sanctions.
Of course, this gets us into the slippery slope of what is too burdensome. If CNN had to shell out $100 to avoid $10,000 in litigation costs, would that have been too burdensome? What if it were $5,000? What if it were $9,999? Just where do you draw the line?
And what might be burdensome to one party might be no trouble at all to another. $1000 in costs would hardly be a burden to a multimillionaire like Mr. Zwebner. But it could be a real burden to someone who makes little more than minimum wage.
And more importantly, a litigant might want to fight a frivolous lawsuit as a matter of principle, even if caving in did not disrupt her business. For example, Mr. Zwebner has sued Raging Bull to try to shut down the UCSY board. But suppose he approached them with a deal: You turn over the identification of these aliases and I will drop all lawsuits against you. Turning over the identifying information would have no direct business costs for Lycos. However, Lycos would probably want to fight for its patrons right to remain anonymous. Of course, Lycos would probably face some indirect business costs because I suspect that people would stop posting on Lycos if they thought Lycos would turn over their personal information at the drop of a lawsuit.
Or take the CNN case. Suppose CNN caved in to Zwebner's demand and pressured Lycos to give up wolfblitzzer0's name. Though this would cost them little in direct expenses, they could face a major negligence lawsuit if anything happened to wolfblitzzer0 as a result of their action. Though there would be little actual immediate cost to knuckling under, the potential cost in the future could be great.
Or let's take one more hypothetical case. Suppose you owned a piece of land that was sacred to you. Perhaps an ancestor was buried there. Or perhaps it was farmland that has been in your family's possession ever since your ancestors arrived on the Mayflower. For whatever reason, you want to desperately keep your land.
Now, suppose a big bad developer came by and offered you five times the market price for your land. But you refuse to sell because the land is worth more than any price. So the big bad developer trumps up some frivolous excuse to sue you and bankrupt you through excessive legal fees. Now, suppose the developer said, we will buy the land for five times what anyone else will pay for it and we will drop this lawsuit if you sell us the land. Of course, if you want to continue to fight us then don't expect much in the way of Rule 11 sanctions. Caving in to our demand would cost you nothing--in fact, you will be making out like a bandit with what we will pay you for the property. So you MUST cave in, and any litigation expenses that you incur after receiving our generous offer will be self-inflicted and thus not recoverable under Rule 11.
In the world according to Faro, a litigant may have to knuckle under in order to get any rule 11 sanctions, even if doing so would break her heart. Did the lawmakers who passed Rule 11 expect us to give up fighting for what we believe in, just to get a minimal award of Rule 11 sanctions? Did the lawmakers expect us to give up our soles for Rule 11?
Halelujah! Praise the Lord! Shout it from the rooftops! I'M NOT FARO!!!! |
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