April 18, 2008
TaxAct users: BEWARE! Personal data leak.
I just got spam to the unique tagged address I gave to the TaxAct people a while back when I bought their tax software. (Not this year, either.)
Relevant details:
Return-Path:
From: "taxact.com.g35d.k72a"
To: "taxact.012504"
Subject: Be the man of her dreams
... And yes, you guessed right, it's penis pill spam. But they clearly know this is a list of TaxAct customers, meaning they're well-placed to do phishing attacks based on tax information, especially if they got any other information.
I haven't yet found out anything from TaxAct. If you used them, especially last year, be wary. If you know other people who have had to do taxes, you might warn them too.
(Edited to add: Apparently not the first time, someone I know had the same experience in June 2006. TaxAct, at the time, didn't seem to feel it was a big deal or anything worth investigating.)
April 28, 2007
Those annoying car stickers
So, every so often, someone plasters my car with little stickers advertising some kind of "earn $$$" thing. "If you have an extra 8-12 hours per week and desire to earn an extra $8000-1,000 a month".
I got one of them to call me back. Melissa (at 651-636-6628) works for "Maverick Applied Concepts". They may or may not be registered with the secretary of state; I show a "MAC international", but I don't think that's the same one. (There could be more than one.) Their web site (which is mostly defunct) is at the most obvious name.
What do they sell?
Fake drugs. Here's the core of their pitch:
"60,000 - 140,000 Americans will die this year from adverse reactions to FDA-approved over-the-counter and prescription drugs?"
You get the idea.
Anyway, Melissa got sort of snippy about how I was wasting her time, but apparently she has enough time to put little stickers on everybody's cars. Poor baby. I gotta find out whether that's actually illegal, or just really annoying. (I'd file a BBB complaint for grins and giggles, but contrary to their claim, they are not discernably registered.)
March 23, 2007
Integris Mortgage followup
Integris Mortgage finally got around to hiring lawyers. I suspect they're paying a lot of money, because these guys sure love to write stuff.
Not that it's always good stuff, mind. But there's a fair bit of it. Consider the following from the definitions section of their recently-provided Interrogatories:
"Communication" means any transfer of information, ideas, opinions, or thoughts by any means at any time or place or under any circumstance.
So, say, gravity. Gravity is a transfer of information, yes?
But it gets funnier. Here's one that made me laugh out loud:
The words concern or concerning include referring to, eluding to, responding to, relating to, connected with, commenting on, with respect, about, regarding, discussing, showing, recording, describing, mentioning, reflecting, analyzing, constituting, evidencing, or pertaining to.
I am pretty sure the only typo in there is theirs. Certainly, there is an obvious typo. But wait, typo's the wrong word. That's just a plain spelling error, and a funny one. Guys, if you've never seen a word written, you should probably look it up before using it. Just a thought.
Some of the writing covers a broad range of topics. For instance, consider the scope of Interrogatory 9:
9. Identify what purpose the facsimile machine identified in Paragraph 2 of the Complaint is used for and whether it is personal or business use. Also, provide the date of purchase and all numbers that are or have been associated with your fax machine.
Contrast this with the much narrower focus of Interrogatory 12:
12. Describe for what purposes the facsimile machine identified in Paragraph 2 is used.
Now, generally, when you see shoddy work like this, with insanely burdensome demands for documents or information, the conclusion is simple; the attorneys want to make money. A lot of money. Since defense attorneys don't get awards in court, the way they make money is to spend time. Their goal is to rack up the billable hours. That's why, rather than asking for, say, faxes in some way related to the case, they want every junk fax I've gotten. You know, all 1,392 of them (as of last count, not including any that were tossed before I started saving them up in the late 90s).
Do they need those faxes? No. Are they related to the case? No. Can they charge a fairly hefty chunk of pocket change per hour to have some gormless intern grovel over them hoping to find proof ... oh, wait. That's not the point; it's not to look for evidence, it's to get billable hours. He's not looking for anything; he's just "examing evidence". $150/hour, please. Company check only.
The funny thing is, we're only talking about 11 faxes. Even given the clear admission that they knew that they were using fax advertising, that only gets us $1,500 per fax plus attorney's fees. At $16,500 plus fees, the whole case would be settled, and we'd be done... I don't know if they've spent that much on defense yet, but if they keep going, they will. Ironically, the defense counsel in this case and I have common interest here, albeit for different reasons. We both want Integris to pay as much as possible. Me, because I don't think they'll stop faxing if they can get away with it. (The seven or more faxes I got from them after my first call to them suggest this, certainly.) The defense counsel, because sharkskin briefcases don't buy themselves.
But hey, common cause is common cause.
October 04, 2006
Integris Mortgage: Dumb and arrogant
This looks like it's gonna be a fun one. Will we get the madness and intensity of another Source Lending? The incoherence and babbling lunacy of Complex Capital? Only time will tell.
So let's start at the top. I get a lot of faxes. A lot. Many, many, of them are mortgage ads sent by "lead generators". The idea is that, just as it's totally legal to hire a hit man, or at least legal to hire someone who promises you will inherit money even though he doesn't say exactly how he will kill your parents, it is obviously totally legal to hire someone to "generate leads" for your business, by sending unsolicited faxes, even though you are not yourself sending the solicited faxes. The analogy is perhaps not entirely precise, but the legal effects are rather similar, which is to say, you might be able to get a judge to laugh openly at your stupidity.
So, this company called "Mortgage Services" sends faxes. That's probably not a real name; rather, it's a name specifically intended to make it impossible to identify them, serve them with paperwork, or anything. (If you have an idle moment, try calling one of these places and trying to get real identification. They will hang up on you if you push it, but they will never give any kind of actual company identification. If you talk real pretty, you might get them to admit that the "loan officer" is not at their company, but that they are rather a marketing firm only.)
When you call the response number for the fax, you are directed to a "loan officer"; that's the guy at the mortgage company buying the leads. What that means is that the ads are being sent on his company's behalf. The way the TCPA works, that's the company you have a case against. You could in theory probably sue the fax broadcaster too, but there's no point; companies like that (such as the famous fax.com) simply dissolve in the night, leaving no contact information, while the people who ran them take a little money out of their offshore bank accounts to start a new company doing exactly the same thing. It'll keep happening until the market dries up; that is to say, until the local mortgage companies stop paying for "leads" generated through theft, conversion, and tresspass to chattel. (Don't the legalese words make it sound cool?)
Last April, I called "Mortgage Services" and gave them my name and city and some information about the size of house loan I might be looking for. (I did not, as a matter of happenstance, get around to mentioning that I am not gonna get a mortgage from the sorts of companies that send junk faxes; Northern Lights Mortgage, whom I sued for this a while back has since been busted for predatory lending, and it seems commonplace in the "mortgage brokers who send faxes" part of the industry.) I was directed to a man who was identified as "Jeff" at a company he called "Integris Mortgage, in Coon Rapids". I got their corporate web site and such, and explained to them that junk faxing is illegal and I planned to sue.
Well, stuff happened, and I didn't actually get around to suing. My mistake. They've since sent me a lot more faxes. A bit over a week ago, I called one of the six most recent faxes I had from "Mortgage Services" (now using a new 800 number), and got directed to... Jeremy at Integris Mortgage, in Coon Rapids. Same story. He doesn't care about illegal, he wants me to call the fly-by-night scam operation whose real corporate name is a closely-guarded secret. I explained about liability. He ignored me.
So I got another one. And I called back. This time, Jeremy saved time and hung up on me.
I called their office, and confirmed that there's only one Integris Mortgage in Coon Rapids. Yes, they send faxes; the receptionist assured me that this was not illegal, and tried to convince me that it was not Jeremy, but some guy at Mortgage Services, who hung up on me. Uh-huh.
So we have all the elements in place. They know they're faxing, they get told that they can and will get sued, they keep faxing. The complete lack of surprise about the "I saw your fax" stuff makes it clear that they were already aware that faxing was happening. In terms of the TCPA, that's willful and knowing even if they didn't know about the law; the law cares whether you understood what you were doing, not whether you were aware that it's been illegal for fifteen years. They don't think anything can happen to them.
I am expecting lots of fun from these bozos. They'll deny that it was illegal, they'll try to claim I asked for the information, they'll blame the third party. They will probably try to avoid actually identifying that company. They'll accuse me of all sorts of things; they'll talk about how I'm in it for money (heh), and when that blows up, maybe we'll get another "it's a lark!" defense. They will try to claim we don't have enough evidence, but they won't provide any evidence to the contrary. What with them being junk faxers, I think it's pretty much a given that they'll lie about it, and whine about how hard it is to make a living stealing people's houses. (Of course, they'll deny being predatory lenders. So do all the predatory lenders.)
As a side note, if you're in the MN area, and you've gotten faxes from these people, you might find it interesting to give them a call. So far, every fax I've gotten in 2006 that said "Mortgage Services", and that I've called back, has gotten me to Integris. I have no reason to believe anyone else uses that particular blaster; there are a number of mortgage fax blasters, so I'm guessing the other mortgage brokers use other blasters.
Anyway, fun ensues.
September 30, 2006
Junk faxes and "the little guy"
I just created a separate category for fax-related (and spam-related) articles in my blog. It's been over three years now since I first sued a junk faxer.
I still get junk faxes.
Occasionally, some reporter is suckered in by a sob story about how it's all innocent small victims that are being sued, and junk faxing isn't bad. It's big corporate lawyers trying to steal the money of poor little us, who had no idea what was happening.
It's bullshit.
First, it's not "big corporate lawyers" in most cases. Of the lawsuits I've seen or been involved in, the vast majority are pro se (that is to say, non-lawyers filing without the benefit of a lawyer at all) or handled by just some guy. All but one of my fax cases have involved only one lawyer on my side. His heart is pure, though, so he fights with the strength of ten, and that helps.
Secondly, it's not innocent small victims. Every time we actually get through the lies and excuses, we find that someone at the company made a deal where someone would fax for them. They knew what they were doing. In most cases, they're even vaguely aware of the law.
Now, you might say "if they aren't aware of the law, they shouldn't get sued". And that would sound really wonderful, except that it's not how laws work. It's not illegal to send junk faxes because the government wants to destroy small businesses. It's illegal because junk faxes were destroying small businesses. Everyone who has a business fax gets bombarded with these things, and they are still a major cost and nuisance. Not as much as they were before the law, but quite serious. (And no, calling to be removed doesn't work. It's no more illegal to send after such a call than it was before it, so why should the faxer waste resources keeping track?)
That the junk faxes are illegal makes pretty much the entire argument stupid. It's not as though people are suing for imaginary damages or claiming emotional trauma; people are claiming the damages defined by the law. Why are those damages more than cost of paper and ink? Because it costs money to collect, and it costs money to sue. There's some analogy here to the various programs that offer people rewards for information leading to convictions, but our overworked public servants are even better off if the enforcement can be handled by third parties too. So that's what happens.
The basic damages ($500 per ad) are fairly small. If I get a single fax, it's hard to justify collecting. The treble damages provided for people who knew they sent faxes without permission are higher, but still not high enough to make it easy to hire a lawyer.
But let's imagine, for the sake of argument, that there was no law against junk faxes. Would it be moral to send them?
No.
The fact is, junk faxes are pretty much theft. I think they formally call it "conversion" when, without permission, you take something that doesn't belong to you and use it, rendering it unusable for the person who owned it. Paper and ink are just the start of this. I'm on my third fax machine now. In the time I've owned fax machines, I have gotten perhaps ten faxes that were not junk faxes. I am somewhere between 1,300 and 1,400 junk faxes.
Without the junk fax law, junk faxes were a lot more common; think five or ten a day, for every fax machine. Large companies may still get this many; a newspaper with 40 fax machines will probably get 40 copies of most ads.
All the stuff about established business relationships is a red herring. Frankly, it doesn't apply in most cases, but even if it did, why not just get permission before stealing your customers' resources? You'd better believe a lot of people will drop a vendor who harasses them at their expense.
But we still hear the "oh, I have to do this, why are you telling me to stop" line. It turns out there's a word for it; these people are entitlement bitches. They think the world owes them a living. Junk faxing (in the absence of lawsuits) is an insanely cheap way to advertise to lots of people, because the bulk of the costs are borne by the recipients. Imagine that you could distribute a large full-page ad to a hundred thousand people, and have total printing costs of $0. Who wouldn't go for that? Well, someone who didn't like stealing wouldn't go for that.
Instead, what we find time and again when we sue these people is that they are liars, they are cheats, and they are incompetents. They are at companies that are involved in predatory lending, or they are violating their card merchant agreement to overcharge credit card buyers by 3%. (Yes, I know it costs money to accept cards; card merchant agreements require you to eat that cost, and prohibit a surcharge for card payments. The "cash discount" is a clear sign of a company that is trying to weasel out of a contract.) These are the people who can't make a living, not because some mean lawyer somewhere sued them for junk faxing, but because they aren't willing to do their own work instead of making someone else pay their way.
Of course they complain about how innocent they are. You know the type; they're never wrong, nothing is ever their fault, and if only everyone would give them a chance they'd be fabulously wealthy. A "chance", for these purposes, is pretty involved. It requires:
- Anything I need to make something work should be cheap or free.
- If I make a gamble and lose, I don't have to pay.
- If I hurt other people, they can't complain or demand compensation.
- Recognition that, in any conflict, I am an innocent victim.
What's scary is that they often seem to really believe this. From the idiot at Complex Capital who responded to a junk fax lawsuit by becoming a franchise for the junk faxing operation (installing hardware capable of dialing every number in the area code and sending faxes to every fax machine), to the lunatic Source Lending had sue my lawyer for suing his client, they're all really that crazy. My latest (Integris Mortgage) is looking to be just as wacky and fun as the others.
The only problem with junk fax laws is that they have been weakened over fears of harming "small businesses", who can't afford to advertise. The same logic would have us allow a company that purchased something once from Office Depot shoplift from that store without penalty, because there's no way they can afford to pay for office supplies.
So the next time you read something about how these mean, nasty, fax lawyers are picking on the little guy, think of that annoying kid in school who burst into tantrums when told to stop cheating. It's the same person, all grown up and wearing a suit, but nothing else has changed.
September 14, 2006
Satcom: We make up for incompetence with rudeness!
Okay, so, I did, sort of, get the call back from SatCom.
SatCom is a marketing company. Let's see how proud they are of their brand identity.
Exhibit 1: The envelope.
That's sort of odd. You'd think that a global leader in any field would be proud of their identity. Instead, they omit it entirely. (The astute reader may notice the one clue they couldn't eliminate; the mailing zip code on the postmark.)
Exhibit 2: The letter.
This letter is a marvel of vagueness. Note the awkward use of "the company", to avoid giving any hint of which company is involved.
Exhibit 3: The policy.
This is a marvel of weasel words. The policy so carefully described makes no reference to state or federal law; obviously, if they followed those laws, they would never have called us, because we are on both the Minnesota and Federal do-not-call lists, and have been for over a year. But to be fair, it's possible that they comply mostly with this policy; this policy merely fails to guarantee any kind of compliance.
But once again, note the refusal to identify the source. BTW, they didn't quite follow the policy; the person trying to pitch Comcast cable to me said nothing about removal of my name eliminating "important information regarding [my] service by means of both telephone and direct mail".
But the real fun begins when I try to find out who sent this. Was it SatCom? Was it someone else? Calling in, I am told I must speak to Liz. I leave a message on her voice mail. She calls back. I ask. She says "yes, that's from us". I ask why it doesn't identify them. "That's what the law requires us to send, so that's what we send." After a couple of futile attempts to get her to explain where the law says that they cannot identify themselves, she makes the script explicit; she states that she will not say anything else, all she can do is repeat that. She has been "instructed" to do so. She cannot answer any questions; for instance, she cannot discuss what her company does to handle state or federal DNC requests, even though every telemarketing company is, so far as I know, legally obliged to honor those.
I have the call recorded. I may try to get a transcript made. It's sorta funny, but mostly sad.
Anyway, just to be sure, I called back the number that showed up in caller ID for her call, on the off chance that it was a prankster trying to make them look bad. The front desk person told me I needed to talk to Liz.
Thanks, but no thanks. We already know Liz can't say anything. I'm actually pretty sure that, strictly speaking, what she said is false. It is not true that the document I received is "what the law requires". The law does not require an anonymous message with no identifying information. The law probably doesn't require the various errors in this policy. The law does, by contrast, require handling of state and federal DNC requests.
So. Thinking about telemarketing? May I be so bold as to suggest that you might do better with "Bob's Discount Shack Of Telemarketing" than with Satcom? If you're the one hiring them, you are the one who has liability for their mistakes. (In this case, it's Comcast, who still haven't answered my questions.) Between the incompetence and the rudeness, Satcom has earned a definite place in my list of companies I hope never to hear from again.
Of course, now that they've got our DNC request on file, that might even happen. Or might not; what's one or two extra laws between friends?
Update, September 15th
And, back to incompetence. They called me again. Not telemarketing, though. Rather, trying to call back the person I talked to at Comcast, they dialed my number, and were very confused. I was instructed to disregard the call. I don't think I'm going to try to sue them for it (what with it not having been telemarketing), but it does encourage me to note that they at least had to call back.
I betcha they lie to him about what their rep said on the phone. Oh, how I loves me some phone recording hardware. Mmm-hmm.
Routing calls at its finest
So, we got some junk mail, which was interesting only in that, while it was addressed to my company, it was also addressed to our health benefits manager. By name.
We do not have a health benefits manager.
So, what's even more interesting is that I know this person, and perhaps more disturbingly, I know that this person has a stalker somewhere out there.
After a month or so of queries to the company who sent us the mail, I was informed that the list came from Experian, one of the big credit reporting agencies; it turns out they have a sideline in business credit and in business marketing lists.
Well. I called Experian. After being on hold a bunch, I was informed that this person's name didn't seem to be in our company profile, but that the person I was talking to might not have full access to the record. Solution? Call "Commercial Relations" at a provided toll-free number. But they're out today, and they're only in from 8-2 PST on the days they're in.
Okay. So I call their number just to see. I get a voice mail saying that I absolutely must have three pieces of information to get through:
1. My company's "experian business profile number". I have never heard of this.
2. My "commercial relations reference number". I have never heard of this, but it sounds like a trouble-ticket number that I should have been given.
3. My company's name and address. Hey, one out of three.
I call back to the original number to get these, and I am directed to a different person, who says it's silly to send me to commercial relations; I need to talk to Lorne! Lorne is the guy who can find out sources of stuff on the lists Experian sells. I am given a (toll) number. I have left a message.
We'll see what happens. I'm not very optimistic. Today's been the day for marketing firms being silly. We got a letter today, with no return address, and no identification at all, claiming to be a Do Not Call policy. I called a company that I think might have sent me one, and was directed to the voicemail of the person who might know. No call back from them, either.
Or Comcast, come to think of it.
Add in about an hour trying to get one of my credit card companies to stop demanding that I put them on a conference call with the company I was trying to buy something from, and it's been a pretty annoying day.
August 08, 2006
Gevalia: Spamming scum
So, Kraft's subsidiary, Gevalia, are spammers. Boy, are they spammers. They've been actively spamming the whole internet for years.
They now have an unsubscribe page.
http://www.gevalia.com/Gevalia/customerservice/spam_unsubscribe.aspx
Yes, that's right. They even call it "spam_unsubscribe". Because, see, unlike some companies, who at least feel enough shame about their abuses to lie about them, or say it's not spam, the Gevalia people know full well that what they are doing is spamming.
The page makes the usual false statements about people have "registered to receive information and promotional messages from various advertisers", but the name of the page, alone, tells the truth: It's spam. They know it's spam.
You would think that a company like Kraft, with actual products people are willing to pay for, would know better. But then, Gevalia's products don't have quite the reputation for culinary mastery that you get from, say, Kraft Macaroni and Cheese.
August 07, 2006
Junk faxes: Back to the grind
Well, it's been a while, and I had to replace my scanner...
But here we are. 1,293 unsolicited advertising faxes. I have a database program I've been working on that will, in principle, let me file them and then search the database for faxes by remove number, or callback number, or whatever else.
What that means is, it's about time to get back to pursuing these actively. When I started this, I had maybe seven hundred faxes, give or take. I'm still getting them. I've lost count of how many suits we've settled or won at this point; it's been a lot. And they're still faxing, so it looks like I get to sue them some more.
Some people might dodge some bullets. The recent amendments to the TCPA's anti-junk-fax language create loopholes for certain abusive companies to keep sending unwanted faxes, but for the most part the faxes are still just as illegal as they were when the law first passed in 1991.
I'm also finding some old stuff worth working on; for instance, one of the companies I settled with submitted forged documents in discovery. I might have some fun looking into those in greater detail. I think just about every junk faxer I've dealt with has told at least one obvious lie in discovery answers; maybe it's time to do a review of the state of perjury in modern America.
But in any event, the faxes are nicely scanned in, and in a few days I hope to have a searchable database. I may make some of the data available online, too.
July 26, 2006
University of Phoenix: We don't know where we got your address
On June 27th, I got spam from University of Phoenix. It was addressed to "Dear Dawn", but used my regular email address. A couple of emails and contact-us forms later, no luck.
Today I called.
I got the information that the only thing the database shows is that my address came from "a banner ad". Well, that, and they have my home address to. You know, the snail mail one.
So.
A few calls later, I got someone who explained that they do buy lists "like every company", and that they have no way of knowing where they got my address. Apparently they just don't have the kind of detailed records they'd need. Since I've heard from other people that they are "unrepentant repeat spammers" (in one person's words), I think I'm gonna just accept the apparent reality: Despite being in a great position to be a really cool company with a good vision and a good product, they've decided to punt and be spammers.
Poking around their voice mail was depressing. Menus with only one real person, who's not in the office, and multiple "mailboxes" you can leave a message in. When someone tried to transfer me to the department I was supposed to talk to, I got a cute little message saying that they do not monitor or look at messages left in this mailbox, so use the web form. (Yes, the web form I'd already filled out twice to no avail.)
I did finally reach someone, but all I found out is what I already pretty much knew: They buy dirty lists, they spam those lists, and they neither know nor care where the addresses come from.
July 20, 2006
Reflections on trusting TRUSTe
So, there's this thing, called TRUSTe. They "certify" privacy. What's that mean? Well, it means about the same thing for privacy that a diploma mill does for education. It's not that a TRUSTe logo tells you nothing; it's that it is a good indication that you are dealing with someone who could not otherwise hope to convince anyone that they would be safe.
My own experience is that, out of the half-dozen or so TRUSTe customers (they are paid by the sites they "certify") that have my email address, I believe every single one, without exceptions, has spammed me. Companies that do not have TRUSTe logos sometimes spam me, but not nearly as often.
But when it comes to big-time spammers, such as RealNetworks, TRUSTe is there. Certifying them. When eBay unilaterally changed their privacy policy, spammed customers before the new policy had even taken effect, and issued multiple mutually exclusive statements about what just happened, do you think there was any enforcement? I'll give you a hint: There wasn't.
The problem is immediately obvious. Since TRUSTe's customers are the companies whose policies they "certify", to confirm that there was a problem would require TRUSTe to hurt their own bottom line. That isn't likely to happen. The excuses offered are many and varied. But the fact remains; only bad actors have the incentive to try to buy a logo that says they're trustworthy. Honest companies don't need to worry, because they don't have the rumors of their spam efforts haunting them.
All of this has been known for years. What's news about it now is that it's been verified (PDF file, sorry). Real data, real analysis, and a confirmation that this isn't just a confirmation bias:
I find that TRUSTe-certified sites are more than twice as likely to be untrustworthy as uncertified sites, a difference which remains statistically and economically significant when restricted to "complex" sites.
This result is not surprising. What is marginally surprising is that there are still people out there who will tell you to check for a TRUSTe logo, as though anything would happen if you got spammed (and you will!) and reported it. To the best of my knowledge, I have never even gotten so much as a single human response from TRUSTe over complaints; once I established they weren't interested, I stopped wasting time.
But you can, it turns out, use the TRUSTe logo as a marker to help you determine when it will be safe to give someone your information. If they have one, it is probably unsafe.
June 12, 2006
Suncoast: Shut up and eat your spam.
I'll say what can be said in their defense: It wasn't technically illegal.
I used to be a customer of Suncoast Motion Picture Company, a subsidiary of Musicland Group. They were once a small local chain that sold videos and anime in malls. They introduced a rewards program, where you get gift certificates for shopping there. I've been in it for a couple of years.
Then the prerecords started. Now, this is where I have to speak in their defense, a little. Technically, it's not illegal to hit your customers with prerecorded calls. It's not illegal, because there are many legitimate uses; late notices, order notification, things like that. However, among the reasons it's legal is NOT "so we can give you a prerecorded call in which we simply repeat the offers we have nearly every week".
But it gets worse.
The call gives an 800 number to opt out. That number leads to a voicemail system in which you can listen to their smug declaration that they are not breaking any laws, you can opt out, or you can hear the promotion again. There is no option for speaking to someone.
They know that, if you want to speak to someone, you're about to waste THEIR time, and that's not something they want. Your time is free to them; prerecords give them a huge advantage there. Their time would cost them money, so the whole name of the game, as is always the case with prerecords, is to get rid of the customer as fast as possible.
I called their main number, followed options on the voicemail system, and got routed to an empty number which simply rang and rang; not even hold music. I tried again, and got to someone who simply couldn't see why I'd be upset. I mean, you can opt out, right? She didn't apologize for anything until I mentioned that failure to apologize is itself a sign of ill intent from a corporation. (It is, too; any decent customer service sort would know to start with, at the very least, "I'm sorry this bothered you.") I eventually got routed to a "supervisor" who spoke poor English and explained at some length that they did this because they thought some of their customers would like it. The idea of, say, letting those customers express that interest... No, too advanced.
My guess is the company is failing. Whenever a company that's been cruising along fine suddenly starts spamming, or using prerecords, it's a sign that sales aren't holding up, and they need to boost the cash flow. Because spamming and prerecords alienate and annoy customers, though, they just turn the questionable future into a certain one.
If you have gift cards, use them now.
May 12, 2006
(214) 279-0990
So, here's the thing. You can spoof caller ID. There are several ways to spoof it, but all of them depend on the cooperation, at some level, of the phone company.
The number (214) 279-0990 is being spoofed by a lot of people. It used to go to a fax machine; now it goes to some girl's voicemail. What they do is simple; they send out prerecorded calls that ask you to press 9 to connect to their operator. This way, you have no real contact info for them; you don't know their number, and you don't know the number you're being connected to.
This allows them to engage in various scams; it used to be "$99 vacations", now it's "we can lower your credit card rates".
I did a call trace, and may subpoena Qwest to try to get whatever information they have. It's unlikely that they'll cooperate willingly; I have been told by various scammers that they pay Qwest to give them special caller ID lies, like "out of area", even when they're calling from within state. I believe them, on that; there's no reason for Qwest not to sell this service.
Anyone who has more information is welcome to suggest things. A lot of people suggest complaining to the FCC and/or FTC. While that may help, it won't help much without an identification of who's really behind these numbers.
Good luck, and good hunting.
March 09, 2006
USAA: Willful harassment and lies
One of my friends has the tragic misfortune to have a credit card with "USAA", who are a business. Probably; there's some debate about their legal status.
What they do, in my experience, is call at inconvenient times. They are rude. They are annoying. When I point out that they are calling during the time I'm normally supposed to be sleeping, they use this as a lever to say that, if I don't help them contact this person, they'll keep calling. And sure enough! Daily calls.
Today, I finally got them to claim that they would remove my number. I have no real confidence that they will; they have consistently acted in bad faith throughout our little relationship.
The fact is, I know exactly who they're calling for. I don't care. I don't owe them anything; not money, not time, not help harassing someone. If they'd been anywhere near "polite", I might have tried to get them in touch; as is, I am not planning to help them in any way.
Which brings me to my point: If you are thinking about doing business with USAA, don't. If you want insurance, I understand some insurance companies will, say, make you walk across broken glass to get a quote, but that's still a big improvement. If you want credit cards, there are probably a number of better options. (It's not that I can't think of worse, admittedly.)
I have recorded the call. It was funny. I will probably record more. The guy kept calling me "ma'am", and couldn't figure out my name. His big sticking point was a claim that this was the number he was given, only I don't think my friend ever gave him this number; it's possible that, say, they got it from someone else, and decided to just lie about it.
So... Definitely a company to be avoided. I've lost many hours of sleep to these people, and they have strongly implied that, knowing that I work nights, they are specifically targeting times when I'm likely to be asleep. And whaddya know; for once, I'm willing to believe that they're telling the truth.
March 07, 2006
The Dove Foundation: Lying telemarketers
So, we got a phone call from some lying telemarketer scum. They asked to speak to "the lady of the house". (We don't have one.) I told them not to call. A while later, they called again. We told them not to call.
I got curious and called in to find out who they are. They're an organization claiming to promote "family-friendly" entertainment.
They give an A-OK rating to Left Behind, the blasphemous, ghoulishly masturbatory, apocalyptic revenge fantasy. They pan the Harry Potter movies for "occultism". Harry Potter gets attacked for "violence", but the recent production of The Lion, The Witch, and the Wardrobe is okay. Because, see, a full-scale battle in which all the death happens off-screen is family friendly. It's like the difference between a movie in which you actually see someone get punched, and the family-friendly entertainment of Gulf War I, where it was just buildings blowing up, with no identified people in them.
My favorite so far is that they attack the Fantastic 4 movie for "occultism", on the grounds of "references by villain to being a god". These people don't understand metaphor, apparently.
These people are delusional, at best. They are dangerous, they are deceitful, and they promote evil.
But, frankly, what really bugs me is that they're also telemarketers who have disregarded our request to not call us anymore.
Actually, one other thing is worth noting: They hang up on you. As soon as they've decided you're not gonna give them money, they hang up. Because, see, your time isn't worth anything; only theirs is.
Edited to add: For hilarity, read the glowing and supportive review of the Dove foundation posted at Family First. Then read the comments. And more comments. These people have been doing annoying telemarketing for a long time, and they don't seem inclined to stop. They are, just as they seem to be, money-grubbing psychos who are out to rip off naive Christians who are afraid of the world.
February 28, 2006
Today's funny spam
Got this today, found it amusing:
I've visited plethora.net today, and really would like to talk about partnering up. My name is (redacted) from (redacted).com a US top general search engine. We are a profitable and debt free company since 1996 and listed on Dunn's and Bradstreet. You can check out our stats on Alexa to see our global reach and growth.[...]
I thank you for taking time to read this email and hope to welcome you
as a new (redacted) partner! This is a one time email as we found your site
off of Thelist or Google and thought this partnership would be a great
fit.
So, I should "partner" with them because they're open spammers, whose search engine is so awesome that even they don't use it.
February 26, 2006
Please phish our customers, 'k? thx! lol
Citibank sent me something.
I think.
I got an offer advertising my new "ThankYou(tm)" member card. I am, it says, to visit their website, www.thankyounetwork.com. If I sign up there, and put in information about Citi-related credit card accounts, they will give me "points" which I can redeem for rewards. You know, like every other membership program, from airline miles and on.
But there's an issue here. Who runs this? Why should I enter information about my Citibank card into an account run by... Someone else? And if it's not someone else, why isn't it somewhere in citibank.com?
Honestly, I feel that this ought to create liability for Citibank in the event that their customers are successfully tricked into giving out account information. They are actively communicating to their customers "you should enter identifying information about your accounts with us into a form run by some other site".
Maybe Citi really does run this one, but since there's not even a hint of a relationship in the name, what's to stop Phisher Phil from creating a new site, "thankyourewards.com", and telling people that their existing thankyou accounts are moving, and can they please reenter all that data? ... Nothing, that's what. Citi has opened the door to the notion that account data from them can and should be entered in other web sites.
To make it scarier, the letter implies that, for instance, you can use this new site to apply for other Citi accounts, such as a bank account with them. So, they really want you to enter all sorts of identifying information on someone else's site. And to just assume that the site in question is legit.
Crazy!
February 22, 2006
You win.
Until such time as the comment spammers give up, or comment-spam-prevention improves, there are no comments on my blog.
In a typical day, I was getting hundreds of spams. Hundreds. Worse, at any given time, maybe fifty a day, maybe more, make it past the filter to sit there in the moderation queue, so I go to the blog, and of course I have to filter comments before I start writing, and I see this:
Hello admin, nice site you have! JeyZee Collect all 15! 2006.02.21
� good site, good short contents of the good work. I have loved your site :D Haree Go Virginia! 2006.02.21
Very interesting site and beautiful design !! Thank. Bill The secret joys. 2006.02.21
Very interesting site and beautiful design !! Thank. Haree Hard Drive Failures 'R Us 2006.02.21
<a href='http://domain removed/toons/mom-son-cartoon-sex. html'> http://www.asiansho... TnFARutwDj That Cenk Uygur thing 2006.02.21
Yo have nice site, admin! keep up good work man! JeyZee Weird Stuff, Vol. 2: It's not that the faucet is in the wrong place, mind you. 2006.02.21
Very interesting site, beautiful design, thank. Aron I'm getting old. 2006.02.21
The formatting's screwed up, but really, it doesn't improve with formatting.
Regular spam's just as bad. If I wait five minutes, and check my mail, there will be spam in my mailbox -- and this is after three layers of very aggressive spam filtering!
I think the underlying problem here is lack of ethics. I was talking to someone about the importance of respecting privacy, and he explained that people don't mind junk mail as much as they claim to, because hey, sometimes they buy stuff. I think this misses the point rather significantly. If it's all about sheer pragmatism, hell, just steal from them. They might not notice.
We have developed a culture in which respect for others, honesty, and other such concepts are casually dismissed as outmoded, and in which sheer efficiency is prized above all. Amazon's frivolous patent lawsuit, filed by a company that openly asserted that their patent portfolio was "purely defensive", is defended by people who make insulting and sarcastic remarks about how self-righteous it is of me to expect Jeff Bezos not to openly and brazenly lie.
Is the usage "defensive"? Amazon sued Barnes & Noble, demanding an injunction against B&N using a technology similar to theirs. Was B&N at the time suing Amazon over a patent? No. Was the lawsuit used primarily to defend against other patent lawsuits? No.
To quote The Register:
Bezos says that business methods patents are particularly bad, but Amazon has filed patents on a wide variety of business methods, including affiliates programs, payments, data presentation and and even gift giving. In an open letter five years ago, Bezos called for a public comment period, but Amazon.com users non-publication requests that prevent the US Patent and Trademarks Office from disclosing the application, such as when it filed to patent a weblog interface.In his defense, Bezos argues that patents are defensive and should never be used, and illustrated this when Amazon.com sued rival bookseller Barnes and Noble for infringing on its notorious One Click patent.
In fact Bezos hates patents so much he has applied for 15 in his own name of which eight have been granted; as patent-watcher TheoDP noticed recently, one Amazon patent was granted after five rejections over four years. And as patent '399 shows, he was busy filing before Amazon.com had sold a single book.
So... Do we just not care? Are lies and malice par for the course? Is it no big deal that useful things like email, and blogs, are being shut down by spammers? There are too many people who have been forced to give up. "Filtering" isn't really much of a solution; while it cuts down on the personal stress, it still leaves networks and servers massively bogged down under what is quite simply a prolonged DDoS attack. That the attack mostly doesn't completely kill the target systems doesn't much change things.
And you know whose fault it is? It's the fault of all the people who, while claiming they are opposed to massive and systematic frivolous abuse of the patent system, keep buying from Amazon. It's the fault of the people who buy things from spammers, and the people who don't pay any attention to dishonesty because "everyone does it".
If you have ever thought that it might be nice for people not to habitually lie to you about everything from whether or not someone is in the office today to whether or not they are selling a product new or used, you might give some thought to the various enabling behaviors that are society has come to expect.
Oh, and if you want books? Buy them from Powell's, or any of the dozens of other independant bookstores that have mysteriously been able to sell books without filing frivolous and disruptive lawsuits.
(During the writing of this message, I received 8 new spams, and that's not even counting the roughly 80% of mail server connections we drop before they even start to talk to our server.)
February 16, 2006
Source finished!
I sorta spaced off mentioning this. See, every time I come to my blog, it's buried in unapproved comments, 99.5% of which are spam. I'm lucky to get one comment per two hundred which isn't spam. Spam has random plausible names on it, and comment bodies like "Pending Very interesting site, beautiful design, thank." (attributed to "Nelly"). I have to skim it and delete it ALL to find the one comment from an actual person.
And speaking of probably unlawful communications which are really annoying... Source Lending may not be sending so many.
Lemme quote:
Source Lending Corporation, its officers, agents, and employees, and those acting in active concert or participation with them are hereby enjoined from knowingly sending unsolicited advertising by facsimile transmission contrary to Minn. Stat. Section 325E.395 or 47 U.S.C. Section 227 and enjoined from knowingly causing others to do so on its behalf.
Oh, and they paid $11,500, with no confidentiality agreement or nothin'.
From when they got a serious lawyer to the settlement was maybe a month or so, after something like two years of Mr. Fiddlefuckin' playing weird games and sending surreal letters.
November 10, 2005
Never mind the numbers, I don't get what the damage is.
I recently had the opportunity, no, the privilege, to watch a court proceeding that I think would have been improved only by a car from which an unreasonably large number of clowns climbed during the course of the event.
Sitting with me in the back row were two robots and an inventor/comedian. Well, they were with me in spirit, anyway. I have taken the liberty of adding their comments to the court reporter's transcription, in the hopes that they will help the reader understand what happened.
What happened? What happened is probably the eventual death of the abusive and frivolous lawsuit filed by Source Lending against my lawyer, in an effort to create a conflict of interest and waste our time. Give it up, dude.
Page 1 1 STATE OF MINNESOTA DISTRICT COURT 2 COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT 3 4 5 ----------------------------------------------------------- 6 Source Lending, Incorporated, 7 Plaintiff, MOTIONS HEARING 8 vs. 9 FILE NO. 05-10780 10 Robert J. ELIDE, Jr., 11 and Steven Appelget, Esq., 12 13 Defendants. 14 ----------------------------------------------------------- 15 The above-entitled matter came on for hearing before the 16 Honorable Isabel Gomez, one of the Judges of the above- 17 named Court, on the 17th day of October, 2005, at the 18 Hennepin County Government Center, City of Minneapolis, 19 County of Hennepin, and State of Minnesota 20 21 Michael C. Mahoney, Esq., appeared on behalf of the 22 Plaintiff. 23 Steven T. Appelget, Esq., appeared on behalf of the 24 defendant Appelget. 25 REPORTER: Darlene Heinz ** Tom Servo, Rbt., did not appear. ** Crow T. Robot, Rbt., did not appear. ** Joel Hodgson, Cmdn., did not appear. ** Dr. Forrestor, M.Ph.D., did not appear. Page 2 1 THE COURT: We're here in the matter 2 of Source Lending, Incorporated, vs. Robert ELIDE and 3 Steven Appelget This is Court File 05-010780. 4 And we're here on Appleget's motion to 5 dismiss, to strike Paragraphs 9, 14, and 19 of the 6 Complaint, as well as Paragraphs 1 and 2 of the prayer for 7 relief, as a lessor -- I guess lessor included -- if the 8 Court were not to grant the motion to dismiss in its 9 entirety. 10 Now, counsel, would you enter your 11 appearances. 12 MR. MAHONEY: Good morning, Your 13 Honor. I am Michael C. Mahoney, appearing on behalf of 14 the plaintiff, Source Lending, Incorporated. With me is 15 my assistant, Gina L. Miller. 16 MR. APPELGET: Steven Appelget, 17 appearing on behalf of myself. 18 I do not represent Mr. ELIDE in this 19 matter. **CROW: Crow T. Robot, not appearing. **TOM: Tom Servo, not appearing. 20 THE COURT: And I understand that. 21 And as I indicated, I was aware the 22 motion was on your behalf. 23 It should be noted for the record that 24 while Mr. Appelget is pro se here today, he is an 25 attorney. **JOEL: I'm not late! Uhm. Joel Hodgson, not appearing. Page 3 1 Now, at the outset, I think one part 2 of the discussion we can just eliminate up front, is that 3 the Court certainly will grant the motion to strike the 4 claims for punitive damages, since that is clearly 5 inappropriate under the law regarding punitive damages. **CROW: Score one for the defense! **TOM: Don't count your chickens before they're hatched. 6 I have read the papers. 7 I should say, Mr. Mahoney, that the 8 file does not contain either a copy of Mr. Appelget's 9 affadavit of 5-27-05, or the ELIDE Complaint. 10 Your Complaint alleges -- you know, is 11 based on those documents. The Complaint says they're 12 attached. They're not attached, the Court doesn't have 13 them. So, I need those. 14 Do you have them today? 15 MR. MAHONEY: I may have them, Your 16 Honor. I have a hearing book. I will take a look and 17 see if I have those. 18 Also, there was a question, Your 19 Honor. about service of Mr. ELIDE, about whether Mr. ELIDE 20 had been served in this matter. 21 THE COURT: Well, since -- 22 Yes. Although, the Court is not 23 particularly concerning itself with that. 24 Certainly if you have proof of 25 service, we'll put it in the file. Page 4 1 MR. MAHONEY: I do, Your Honor. 2 If I may approach? 3 THE COURT: Absolutely, you may. 4 Thanks, Mr. Mahoney. 5 And I have accepted from Mr. Mahoney 6 an Affidavit of Service from a process server in Norfolk 7 County, in Massachusetts, indicating that there was 8 personal service to Mr. ELIDE in Massachusetts. 9 However, Mr. ELIDE's interests are not 10 at issue today. 11 Now, of course, there get to be issues 12 about service, under these circumstances, because this 13 Court does not -- 14 Well, we won't get into all of that. 15 As I just said, his interests are not at issue today, and 16 we will let that go. 17 Were you able to find the other 18 things? 19 MR. MAHONEY: No, Your Honor. 20 I have our moving papers. And I had 21 seen correspondence indicating that they had been filed. 22 But I don't have those with me. **JOEL: How're you stocked for socks and underwear? 23 I have the memorandum, the responsive 24 memorandum, the answer. 25 MR. APPELGET: If I may, Your Honor. Page 5 1 THE COURT: Yes. 2 MR. APPELGET: I do have my file copy 3 of the affidavit, and the ELIDE Complaint is Exhibit 1 to 4 that. 5 If someone would like to photocopy 6 approximately an inch of paper -- 7 THE COURT: Well, I need to read that 8 inch of paper, so -- 9 MR. APPELGET: If I may approach your 10 clerk? 11 THE COURT: Yes. 12 So I take it then I will have the 13 5-27 affadavit, as well as including the ELIDE 14 Complaint. 15 MR. APPELGET: The ELIDE Complaint is 16 an exhibit to the affadavit. 17 THE COURT: Thank You. 18 So, you should know that I have read 19 your memoranda and the attachments to those. 20 Mr. Appelget. 21 MR. APPELGET: Your Honor, this is a 22 matter that as the Northern District of Illinois called a 23 case once, is 100 percent conclusion, and zero percent 24 fact. **SFX: Alarms. Footage is interrupted for a hilarious segment ** in which Dr. Forrester introduces his Litigomatic, which tragically ** kills Frank with papercuts from high-speed pleadings. [...] Page 11 2 THE COURT: Excuse me. 3 So, Mr. Mahoney was not representing 4 Source when that Settlement Agreement was entered? 5 MR. APPELGET: He was representing 6 Source at that time. 7 THE COURT: So then he had the 8 information, right? 9 Just the way you did? 10 MR. APPELGET: I would presume so, 11 yes. 12 I don't know if I would like to go to 13 trial on a presumption. 14 THE COURT: Well, it would be pretty 15 hard to understand how an attorney could represent a 16 client, settle the case, and not know what the settlement 17 was. 18 But, call me crazy. **CROW: The foreshadowing is really clumsy. **JOEL: Maybe it's a plot point, and she's prescient. 19 Anyway, go ahead. 20 We don't need to stick with that. **TOM: Or to it. ** [ A commercial break, after which we return to the hearing. ] Page 12 9 MR. APPELGET: In any event, this 10 lawsuit has no basis in fact, and it's barred by law. 11 I have nothing further. **CROW: This is really boring. Do we need to go back to commercials again? **JOEL: I bet it gets better. 12 THE COURT: A thing that you said that 13 I had not -- it just didn't sink in previously, and I want 14 to make sure I got it right, you're saying that originally 15 the Seebach and ELIDE cases were filed at the same time, 16 or were running at the same time? 17 MR. APPELGET: No. They were not 18 commenced at the same time, but there was a time when they 19 overlapped. 20 THE COURT: What do you mean, 21 "overlapped?" 22 MR. APPELGET: Well, the ELIDE matter 23 commenced in May of 2003, and the Seebach matter 24 commenced, I believe, in October of 2003. And the 25 Settlement Agreement wasn't finalized until May of 2004. Page 13 1 THE COURT: Okay. Well, that is what 2 I thought -- 3 It's the general idea that I hadn't 4 recognized before. 5 I think I had it in my head, for 6 whatever reason, that ELIDE was concluded and settled, and 7 then Seebach was filed. **JOEL: Well, otherwise, this whole thing's stupid. **CROW: I think she just assumed it made sense. 8 MR. APPELGET: No, that is not the 9 case, Your Honor. 10 THE COURT: Thank you, Mr. Appelget. 11 Now, Mr. Mahoney, there were a couple 12 of things -- 13 I guess I will confine myself to the 14 question. 15 I do not understand your damages 16 theory in this case. Never mind the numbers, I don't get 17 what the damage is. **TOM: "The" damage, not "your" damage. I suppose that's charity. **CROW: I bet it turns out to be his anyway. 18 Because the way I read it, you're 19 saying if you lose the Seebach case, then somehow 20 Mr. Appelget and Mr. ELIDE get responsible for those 21 damages that you have to pay Seebach. And I'm not 22 getting that. 23 MR. MAHONEY: Well, Your Honor, I 24 think the theory of the case is that there was a 25 confidentiality agreement, a settlement, that was to Page 14 1 remain -- the terms, not necessarily the fact that it was 2 settled, or exactly the amount of money -- but the terms 3 surrounding the settlement. **JOEL: That's not even a sentence. **CROW: The theory of the case is a sentence fragment. **TOM: We have the settlement surrounded! Come out with your terms up. 4 And the theory of the case is that the 5 plaintiff in that case, and counsel who then submitted 6 that and publically filed it, created the information which 7 gives rise to the claim that Mr. Seebach subsequently 8 brought. **JOEL: So Seebach didn't bring the case until after his lawyer filed ** these documents in it? **CROW: This reminds me of Timecube. 9 That is, the facts of that settlement, 10 which were to remain confidential -- **TOM: The amount isn't a fact, though. Because it's a term OF the ** settlement, not a term surrounding the settlement. 11 THE COURT: Here is where I'm 12 confused. **TOM: Me too. 13 What I just heard was that he didn't 14 subsequently bring it, that he had already brought it, and 15 then the case was settled. 16 MR. MAHONEY: Well, I think that's a 17 fact question, Your Honor. **CROW: He said it was a fact question, everybody drink! **JOEL: That's a stupid rule. 18 THE COURT: Well, is it true or not? 19 MR. MAHONEY: As I stand here, I'm 20 not exactly sure. **TOM: Okay, I'm calling the judge crazy now. **JOEL: Give her a break, she's not crazy yet. 21 What I remember was that the case was 22 settled, and we are now proceeding with the second 23 lawsuit, the Seebach lawsuit. **JOEL: If only we had some way of recording these oh-so-transient ** sensory impressions, so that we could review them later. 24 And so the theory of whether we can 25 prove that the theory of the case, is that confidential Page 15 1 settlement needed to remain not filed, and could not give 2 rise to anyone ever finding that information. **JOEL: My head hurts. His theory is whatever he can prove? **TOM: Is this going to be on the test? 3 And if anyone ever did find that 4 information, that that information gives rise to 5 damages. The use of it gives rise to a cause of action 6 for breach of the contract. **CROW: But what if no one found that information until some idiot started ** a whole new case about it? **TOM: I thought I knew what "give rise to" means, but now I'm not sure. 7 THE COURT: And did you not disclose 8 it first? 9 MR. MAHONEY: We disclosed the fact 10 of the settlement -- 11 THE COURT: And the fact of how much 12 it was, et cetera? 13 MR. MAHONEY: And the dollar amount. **JOEL: Here it comes. 14 THE COURT: So was that not part of 15 the confidential information, and does not the Settlement 16 Agreement say, if you do that, that the confidentiality is 17 over? **JOEL: You know how they write "LOL" on the internet? This is what ** it's for. **CROW: I always wondered. What's "ROFL"? 18 MR. MAHONEY: No, I don't believe it 19 does, Your Honor. **TOM: Can I call her crazy now? **JOEL: It's a fine point. Maybe she's just charitable. 20 THE COURT: I haven't seen it but -- 21 MR. MAHONEY: I think that's also a 22 fact question. **CROW: He interrupted the judge! Everybody drink. **JOEL: It'd be a pretty easy question to answer if he'd attached ** the documents he said he had. **TOM: He was trying to save paper. **CROW: Oh, and he said it was a question of fact. Everybody drink ** again! 23 This is a rule 12 motion. **CROW: He said something true! Everybody drink! **JOEL: That's a stupid rule. **TOM: I bet lots of the things he says are true. 24 THE COURT: Well, it's kind of a -- 25 It's sort of slid into a Rule 56, Page 16 1 because there are all these -- 2 I'm not sure whether it's a Rule 56 or 3 not, because the documents -- 4 Actually, it's probably not. 5 The documents, though, upon which some 6 parts of the motion are based, should have been attached 7 to your Complaint. 8 And in that sense -- 9 [To Mr. Appelget] [You] Sit down. **CROW: Yeah! Sit down! **TOM: Oh, she totally owned him. 10 And in that sense, it is on the 11 pleadings. 12 But there are facts, or there are 13 things contained in the pleadings -- the Court certainly 14 can take notice of its own file, in terms of dates and 15 things. **JOEL: Assuming you're not talking about dates, recitations, ** acknowledgements, or notarizations. **CROW: I don't get it. **TOM: Crow doesn't get it, everybody drink! **CROW: That's a stupid rule. 16 MR. MAHONEY: That I believe is true, 17 Your Honor. **CROW: Which religion does that make him? **JOEL: I think it's from Luther's Little Catechism. 18 But I believe that there are fact 19 questions as to whether or not the words of the Settlement 20 Agreement, besides the fact of the settlement and the **TOM: See? This isn't over. There's questions of fact. **CROW and JOEL together: (bored) Everybody drinks. 21 dollar amount, the disclosure -- the fact that there is a 22 settlement, and the dollar amount, I don't believe give 23 rise to a breach under the contract. **CROW: *sputters, chokes, falls out of chair* **JOEL: Crow, that's what we mean when we write "ROFL". 24 That is really part of the fact 25 question is, did those facts give rise to any damages. **TOM: Fact question! **CROW: Pour me another. **JOEL: I think "give rise to" here is a synonym for "cause". Page 17 1 I don't believe they did. **CROW: What religion does that make him? **JOEL: ELCA. 2 THE COURT: Why not? 3 Won't that hurt -- **TOM: The procedure is completely painless. 4 Usually that is exactly the part that 5 people don't want out, that they paid. **TOM: But that's just what they want you to think! 6 So, if you disclosed the information 7 that you settled the case by paying, I would normally 8 consider that to be pretty significant. **CROW: Well, not as significant as the actual dollar amount. ($2,500) 9 MR. MAHONEY: I believe, Your Honor, 10 it is significant. 11 But I don't believe it gives rise to a 12 breach. I don't believe -- **JOEL: What does "give rise to" mean? **CROW: I think it means "I'm a lawyer." 13 THE COURT: Why is it not itself a 14 breach? 15 MR. MAHONEY: Because I don't believe 16 under the terms of the confidentiality agreement that it 17 is a breach. **TOM: NOW can I call her crazy? **JOEL: Well, uhm. **CROW: Yeah. 18 We only filed the release. **CROW: And put the dollar amount in a public filing. 19 The confidentiality agreement, that 20 four or five page document, was not filed. **JOEL: I don't think we're in Kansas anymore. 21 THE COURT: Well, I realize that. 22 But you did -- 23 You do agree that you did state in 24 your memorandum that there had been a settlement, and that 25 the settlement basically involved your paying Mr. ELIDE Page 18 1 some money? 2 MR. MAHONEY: Correct, Your Honor. 3 THE COURT: And then he dismissed -- 4 And then he relinquished any 5 additional claims. 6 What more would there be? 7 Was there more to it than that? **TOM: Here's where he brings out his surprise witness. 8 MR. MAHONEY: There is, Your Honor. 9 THE COURT: Like what, for example? **TOM: Here it comes. 10 MR. MAHONEY: There is in the 11 confidentiality agreement with respect to Source, its 12 business, the terms and conditions of the settlement. **JOEL: That wasn't even a sentence. 13 And we believe the submission of the 14 whole Settlement Agreement, which is now part of the 15 public file, is quite different than a discussion in a 16 paragraph of the Memorandum of Law. **CROW: Is a Memorandum of Law a part of the public file? 17 Now that document is available to 18 anyone. It's a publicly-filed document. And that public 19 filing of that document gives rise to the claim that 20 damage can result from. **JOEL: Damages result from claims? 21 So, on a Rule 12 motion, the only 22 question is, do the pleadings describe the facts necessary 23 to give rise to a claim. **CROW: I think that was true. Everybody drink just in case. 24 The facts are, there was a 25 confidentiality agreement, it provides it can't be Page 19 1 publicly disclosed, it was publicly disclosed. **TOM: It's good that this question of fact has been resolved. **JOEL: I don't drink when YOU say it. **CROW: Wait, I thought he didn't know. 2 There was a claim for damages. The 3 claim for damages indicates it's for in excess of 4 $10,000. **TOM: How many gumballs is that? **CROW: Oh, you don't want to go there. 5 THE COURT: Okay. Now, let's go 6 there. **TOM: Hey, she can hear us! 7 Because right now, you know, I'm 8 assuming you're correct about everything else you have 9 said. 10 What damages? **JOEL: This ought to be good. 11 MR. MAHONEY: The damages would be 12 the defense of this claim, and any other claim that may 13 come up. **TOM: And he's defending! **CROW: Making it his damage. Told you so. 14 There is currently pending -- 15 THE COURT: But if it is true that 16 this claim, the Seebach case -- 17 Is that what you mean by this claim? 18 MR. MAHONEY: Correct, Your Honor. **JOEL: May I have another? 19 THE COURT: So, if it is true that the 20 Seebach case was filed before the ELIDE settlement 21 occurred, how can you say that anything your client has to 22 pay to Seebach is somehow Mr. ELIDE's fault, or 23 Mr. Appelget's? **CROW: He could lie. 24 MR. MAHONEY: Because of the proof, 25 the evidence that comes from the now-filed confidentiality Page 20 1 agreement, which establishes the basis for the claim. **CROW: Told ya. **JOEL: So Seebach is suing over the confidentiality agreement? **TOM: I just like knowing that the claim has a basis. **CROW: I think the statement rejects our conventional dialectic. ** Everybody blow bubbles in your glass. 2 Had that not been filed -- 3 THE COURT: You would win, is that 4 what you're saying? 5 MR. MAHONEY: I think the case is 6 different, Your Honor. 7 I'm not saying we'd win. 8 It's the same kind of question, am I 9 competent to say we would win? **CROW: That's a very narrow look at the question. 10 I say the case is dramatically 11 different with the publicly-filed Settlement Agreement, 12 disclosing the terms and conditions of what was suppose[d] to 13 be a confidential settlement agreement. 14 THE COURT: Okay. So then you would 15 have to, additionally -- **TOM: Yeah? 16 I mean, you certainly could not 17 directly claim -- **JOEL: Yeah? 18 I mean, if that is your damage theory, 19 it seems to me that the case is not even ripe, because 20 nothing has happened. **TOM: Nothing has happened? How can she say this? A man's life is in ** ruins. **CROW: Who's that? **TOM: Some guy I saw today collecting tin cans. 21 I mean, you're saying, maybe something 22 would happen, and if it did, maybe there would be some 23 damages. **JOEL: I think she should award him subjunctive damages. Maybe there ** would be a check. 24 Because whatever it is that you say 25 has -- Page 21 1 You know, normally, we file lawsuits 2 when the damages have occurred. Whether they are 3 fully -- whether the damages have fully spun themselves 4 out is a different issue. But there have been some 5 damages. **TOM: You can tell she likes him because she's mentoring him on ** our legal system. 6 You're saying that the damage is that 7 you might lose this lawsuit, which you might not otherwise 8 lose. 9 We don't even know if you're going to 10 lose it at this point, so there isn't any damage if you 11 win. **JOEL: I think he already lost it. **CROW: I don't get it. 12 MR. MAHONEY: That may be true, Your 13 Honor, that it may be difficult to establish the level of 14 damages. **CROW: Some cultures don't even have the concept of zero. **JOEL: That's very true. 15 But I think the events giving rise to 16 the cause of action have occurred. **TOM: I think "giving rise to" is sort of like a comment in ** a programming language. 17 THE COURT: Well, today, what is the 18 damage that has occurred today? 19 MR. MAHONEY: The attorney's fees, 20 costs, and expenses related to the Seebach action. **JOEL: Huh? **CROW: It's like Who's on First, but without the comedic timing. 21 THE COURT: But you already were 22 defending that before the ELIDE thing ever happened. **CROW: Or so we would assume. But call me crazy. **TOM: You're crazy. 23 MR. MAHONEY: That's correct, Your 24 Honor. But it is enhanced, and made more difficult now by 25 the public filing. **JOEL: Huh? Page 22 1 THE COURT: Well, maybe it is, and 2 maybe it isn't. 3 But it just does not seem ripe to 4 me. 5 I have not -- **TOM: Yeah? 6 I can't even remember when I have 7 ever -- **CROW: Yeah? 8 I have dismissed cases for lack of 9 standing. I don't think I have dismissed a case because 10 it wasn't ripe, but -- 11 MR. MAHONEY: That seems -- **JOEL: And he interrupts her again. Everybody drink! **CROW: I think that's a question of fact. 12 THE COURT: It does not appear to me 13 to be ripe. **TOM: She interrupted him, spit it back out! 14 So maybe you need to give me some 15 cases about ripeness, so I can stop worrying about that. 16 MR. MAHONEY: Yes, Your Honor. I 17 will be glad to do that. 18 THE COURT: Go ahead, Mr. Mahoney, I 19 have kind of got you off on my track here. 20 MR. MAHONEY: That's where I need to 21 be, though. I need to be where the Court has questions. **JOEL: And that's "ROFLCOPTER". **CROW: *wheezing* 22 I have looked at this as a Rule 12 23 motion, and the Rule 8 standards for basic notice 24 pleading. 25 We have -- Page 23 1 I believe, the Complaint addresses the 2 minimum requirements for establishing a breach of 3 contract, and for tortious interference of that 4 contract. **JOEL: He believes this on faith alone, since he's obviously never ** read the complaint. **CROW: Faith is the enemy of reason. 5 The argument about identifying 6 damages, damages are clearly pled. Whether you can prove 7 damages, I think is a Rule 56 motion. **TOM: Does this make it a question of fact? 8 I don't believe that this case needs 9 to be considered under Rule 56 standards. 10 If the Court is going to consider it 11 under Rule 56 standards, we would appreciate the notice 12 and the opportunity to take discovery. **JOEL: This is only funny if you've ever seen him take discovery. **CROW: What's he do? **JOEL: I don't know, I've never seen him take discovery. 13 But I don't think it's necessary, Your 14 Honor. I think it can be analyzed under the pleadings. 15 There was a mention to the anti-slap 16 statute, the slap-statute. It has no application here, 17 because there is no public context. **JOEL: Well, if there's no public context, who cares about filings? 18 This is simply a lawsuit related to 19 damage for contract claims. 20 THE COURT: I'm not sure about that 21 either, because I would have to look at that. 22 I know that Mr. Appelget cited a part 23 of the statute. And I haven't looked at the statute for 24 years. 25 MR. MAHONEY: I can provide the Court **CROW: with a pony! Page 24 1 with the case on it. 2 A contract claim, a tortious 3 interference claim, has nothing to do with influencing 4 government. **TOM: See, here he's totally in his element. **JOEL: Making things up on the fly. 5 THE COURT: Well, what I'm talking 6 about, you know, the way the slap thing goes, as I recall 7 it is, you burden somebody else's doing a function that is 8 protected as somehow related to the government. 9 And I guess here the argument would 10 be, well, Mr. Appelget is, if you will, enforcing, or 11 going after an alleged violator of the law and suing, in 12 order to to that. 13 And certainly there are all this kind 14 of cases that say that damages -- there are those cases 15 that say, that when a citizen is doing that, he is acting 16 in sort of a quasi-attorney-general fashion, or whatever. 17 So, I'm not sure about that. 18 MR. MAHONEY: I can provide the Court 19 with -- 20 But Your Honor, may I end this with a 21 simple suggestion: 22 Given the Court's concern about 23 ripeness, I would like the opportunity to consider a 24 voluntary dismissal, based precisely on that. **TOM: Noooo! You were totally winning. 25 THE COURT: Sure. Page 25 1 MR. MAHONEY: Within -- by Wednesday 2 morning. 3 If we were to advise the Court that we 4 would voluntarily dismiss, based upon -- well, it doesn't 5 make any difference what the basis would be. 6 But it would be based upon the Court's 7 comments that this may not be ripe, and do a voluntary 8 dismissal without prejudice. **JOEL: So he can do this again later, after our entire notion of ** causality has changed. 9 I would advise the Court -- 10 I will call counsel before 9 a.m. 11 Wednesday, and then advise the Court what that conclusion 12 will be. 13 THE COURT: We would have to have, 14 otherwise, a briefing schedule, because I do -- I would 15 need to have that ripeness issue briefed, if you're going 16 on. 17 Because, as I said, it's not one that 18 I'm particularly familiar with. You know, I haven't 19 readily explored it in any depth at all. 20 MR. MAHONEY: Well, the Court's 21 point, I think, as I understand it is, if it's not ripe, 22 then I think my client should dismiss the claim. 23 And if damage is later established, we 24 can always re-address these same issues. 25 I will call counsel before 9 a.m., on Page 26 1 Wednesday. 2 THE COURT: Just to be clear, on the, 3 is this a Rule 56, because of comments I made earlier I 4 want to be clear that I agree with both sides that the 5 current motion can be decided on the pleadings, once we 6 have those documents that the pleadings say were attached. 8 And so I don't think we're at Rule 56, 9 because nobody is bringing in documents outside of that. 10 At least not that I recall. 11 And as to the damages thing, when I 12 think about ripeness, where I'm sticking is not that we 13 don't know an amount of damages, but that we don't know 14 whether -- we don't know really where the damages lie. **TOM: But he told you that! They give rise to a cause of action! **JOEL: From now on, "everybody drinks" does not include you. 15 MR. MAHONEY: Is it a causation 16 question, Your Honor? 17 THE COURT: Yes. 18 MR. MAHONEY: That's how I understood 19 it, Your Honor. 20 THE COURT: Mr. Appelget. 21 MR. APPELGET: I think the ripeness 22 issue would probably be disposed of based on cases 23 regarding, say, abusive of process and malicious 24 prosecution, which definitely require, in the context of 25 litigation about litigation, that the litigation that Page 27 1 you're suing about be ended. **CROW: Same word three times in one sentence, everybody drink! **JOEL: That's a stupid rule. 2 And there is a pretty good chain of 3 case law on that. 4 THE COURT: That is interesting. I 5 didn't know the chain, obviously. 6 MR. APPELGET: And I don't know if 7 the Court is sitll interested in actually having those -- 8 now in light of the discussion of a voluntary dismissal. 9 THE COURT: Well, I think we will 10 wait, because in order to conserve everybody's resources, 11 we will wait until Mr. Mahoney talks to his client, and 12 comes to a conclusion about the voluntary dismissal. 13 And then I would ask, Mr. Mahoney, if 14 you're not dismissing, that you schedule a telephone 15 conference so that we can figure out a briefing schedule 16 on the ripeness thin. 17 MR. MAHONEY: I understand, Your 18 Honor. 19 THE COURT: Thank you. 20 MR. MAHONEY: Thank you, Your Honor. 21 MR. APPELGET: Thank you, Your 22 Honor. **CROW: I think I prefer B-movies. **TOM: Yeah. We should sue.
November 01, 2005
Fiddlefuckin'
We learned a new word today. The word is fiddlefuckin', and it refers to the process of refusing to waste time trying to help someone fix the glaring errors in his stipulation to dismiss a baseless lawsuit. As you may recall, Source Lending sued my lawyer to attempt to create conflict of interest. They now want to dismiss the case, perhaps after the hilarity of the judge's inimitable "I don't understand your theory of damages, Mr. Mahoney". (Apologies if the quote isn't exactly right; the transcript isn't done yet.) But they want to dismiss... And can't be bothered to write a stipulation to dismiss that does not contain flagrant errors.
Anyway, the context of the discussion is simple. This was the deposition of JDS Marketing, the people who brokered the junk faxes for Source. According to Source, they did not send any junk faxes at all, and if they did, they don't know how many or by what means. They also assure us that no one but Chris Hacker, their president, has any information that could lead us to information about the case. They have no records about the junk faxes, you see, because he paid for them with a personal check. Oh, and the reason they can't tell us the size of the fax run is that only some unidentified third party has the information. Months later, in conference with the judge, they came up with a mostly reconciled story, where JDS Marketing sold them junk fax stories. Their various conflicting answers have mostly been "supplemented" (read: corrected) to match this.
So the unidentified third party is probably JDS Marketing. We took their deposition today. They provided us with an invoice for 25,000 faxes, at a price of $0.07/fax, for a total of $1,750. Sold to, and paid by, Source Lending. Paid by credit card.
So. I have two faxes. Presumably maybe they paid one by check, and one by credit card? We can't be sure. However, what we do have now is that they bought 25,000 broadcast faxes. They did not buy a generic marketing plan that may have contained faxing. They bought broadcast faxes. That is the very essence of a willful and knowing violation of the law.
So, at $500/fax, treble damages for willful and knowing, they are on the hook for $37,500,000. (Less any faxes they may have already settled.)
It doesn't even matter that they sent another batch, or that their admissions are full of incompetent lies, or that they are apparently so ludicrously incompetent that they can't even tell whether it was paid by personal check or credit card. They are still legally on the hook, and baseless litigation against my attorney does not change anything.
Here's some happy documenty goodness for you to enjoy:
Here's the actual faxes. (The stickers reading "exhibit A" and "exhibit B" are not original.) There is one notable change between these and the original; Exhibit A has my fax number whited out. (It used to be after the "To:".) There are no other changes that I can detect.
Here's the requests for admissions, and their responses.
We start out with the general objections, all of which are just silly.
Now, we start seeing lunacy. In response to "Admit that your agent transmitted Exhibit A to Plaintiff", we get "Defendant further objects to this Request on the grounds that it seeks speculation, opinion, and legal conclusions, rather than the discovery of facts."
See, while many of us use what is known as the correspondence theory of truth, wherein facts are claims about events or objects occurring in the world external to our minds, Source Lending, doubtless named after the epistemological uncertainty from which all true knowledge must come, asserts that the very question of "what happened" is necessarily one of speculation, not of fact.
This one, once again, utilizes strange theories of truth. We also see a wacky argument. In their response to Request No. 5, asking about Exhibit A, they argue that since Exhibit A might not be the untouched original, they can't answer. Idiots! The way to argue that is to admit obviously true facts about the exhibit, then argue that the exhibit is not the fax. Instead, they lie.
Also, we start getting the denials about Exhibit A being sent by them to multiple fax machines. As always, the primary defense seems to be that any claim about historical events is inherently speculative.
More of the same. Note that our requests topped out at 10,000 facsimile machines; we didn't really anticipate 25,000. It is conceivable that they simply had no way of knowing whether or not they had permission, but in that case, they have no basis for denying that they had no permission. They got one right, though; in fact, the fax was sent on February 27th, not March 6th. (Cut and paste error by my lawyer. Bad Steve! No biscuit.) On the other hand, we could charitably assume that we put this in just as a quick test. Was their purpose to deny everything without even reading it, or were they specifically making false claims in response to every question? In this case, their claim is a true denial, so we find that they are denying everything, without regard to truth or falsehood.
Here, we see the same round of nonsense for Exhibit B. Note my personal favorite: They deny that it is an advertisement. What, I wonder, is it missing? Perhaps they are not aware of what the term "advertisement" means. Perhaps they do not actually provide any kind of mortgage services, and thus something that might appear to be an advertisement is in fact a sort of installation piece intended to provoke the reader/recipient into a kind of reevaluation of what we think of as "commerce" and the purpose of transmitting documents. Perhaps they just lied again.
By now you're used to this; same round of questions, same round of denials.
I invite the reader to explore the answer to Request No. 31. Look at Exhibit B yourself. Do you see any address at all, let alone one the recipient could write to to request to receive no further facsimiles, as required by Minnesota law? If you do, please contact us immediately, and I will retract my assertion that they are just plain lying here. (Note: I have redacted addresses from those documents which contained them, but Exhibit B never contained one. If it had, it would be a big black box, actual-black and not the half-black my scanner produces.)
But the overall sentiment is clear. Source did not send any faxes. Source did not cause any faxes to be sent. Source did not send two faxes, or ten, or a hundred, or a thousand, or ten thousand. Source did not send them in a boat, or on a plane. Source did not send them with a goat. Source did not send those green faxes and spam.
But, oops, they lied:
Source paid JDS marketing (a broker) to have someone send 25,000 faxes on their behalf. One of which I got. I also got an identical fax on 2/27/05, with the same contents. We don't have to figure out exactly how their multiple fax runs worked, or where the personal check that they've been hiding got to. We have many, many, lies from them, all with nice legal signatures. We have frivolous, baseless, lawsuits brought against my lawyer in a hilariously incompetent attempt to create a conflict of interest. We have stipulations to dismiss with serious factual errors. We have high comedy, and we have $37,000,000 in liability. Even without treble damages, we have over $12,000,000 in liability. And, we have a shiny new cuss word: Fiddlefuckin'. I recommend using it to complain about overly greasy chicken. It just sounds right.
October 11, 2005
The more we owe you, the more you owe us
Forgot to mention this gem in Source Lending's lawsuit against my lawyer.
The damages, as stated here and in the Complaint, stem from continued litigation expense and potential liability for Mr. Seebach’s attempted class action lawsuit against Source. Far from being 'vague and illusory' as stated by Mr. Appelget, the damages can be measured merely by calculating trial costs and damages awarded to Mr. Seebach. These damages cannot be known until the litigation with Mr. Seebach ends; Source’s damage claims cannot be more specific until that time.
Translation: If we are liable for damages, we demand that your lawyer personally pay them.
If you were legally allowed to do things like this, or if the professional ethics of the Bar allowed them, no lawyer could file suit without facing a frivolous countersuit by the Defendant, seeking to create a conflict of interest.
Honestly, IMHO, this isn't a question of dismissing the case; this is a case where I think law licenses should be pulled. Think about it. "If you recover damages for your client, we will demand that the court award us those damages, plus our own fees, out of your personal bank account."
The whole basis here (and it was not pled in their original complaint) is the ludicrous claim that I sued Source, not because they were assholes, but because Mr. Appelget somehow revealed to me that, at an unknown future time, they would settle with Bob ELIDE and pay him money.
The fact is, my decision to sue was made when I found out that we had identified the senders of at least two of my dozens of unsolicited mortgage faxes. The other fact is, when Source filed frivolous counterclaims against ELIDE and accused him of "extortion", I became convinced that they were genuinely bad actors, willfully subverting the legal system to try to escape the liability they face for their unlawful actions. This has been confirmed by their latest gimmick.
Frankly, I am shocked that such an argument could have made it into any document signed by a lawyer. This is a threat, pure and simple, and it is a personal threat made by a defendant against a plaintiff's counsel; it can have no purpose but an attempt to create pressure to settle.
Well, fuck you, Source Lending. I work for a living, and if the cost of making you stop faxing is twenty thousand dollars in legal expenses to defend against your frivolous suits, I'll pay it, and if the cost of dealing with this is appealing all the way up to the Supreme Court of the US, then I'll pay that too. You can threaten all you want, and I will speak truth to your power, and we shall see what happens.
RULE 8.4 MISCONDUCTIt is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
[...]
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
A threat, however vaguely worded, attempting to coerce my lawyer into failing to represent me in accord with his duties under the Rules of Professional Conduct, certainly counts as "inducing" another to violate the Rules of Professional Conduct.
A lawsuit based on simply false claims about what I was told and when it was told to me, which presents baseless speculation as factual claims without even asking so much as a single question in discovery in either case, is "dishonesty", "deceit", and "misrepresentation". (I do not believe it is fraud.)
A lawsuit against my lawyer clearly tying the damages sought to any liability or damages justly and lawfully awarded to me by another court can hardly be seen as anything but "conduct prejudicial to the administration of justice.
And just think. I have over a thousand junk faxes, and all this over two of them!
October 10, 2005
Source Lending sues my lawyer!
Okay, I admit, at first I didn't really think this happened. I mean, hey. Once or twice, Steve's called up with some silly or hilarious story. Like the time he said that a defendant, get this, wanted me to provide blanket indemnity against all future liability. Oh, wait. That actually happened too. Same folks, even.
But when I heard Source was suing him, I honestly couldn't make sense of it. What possible point is there? The naive answer is obvious; I am given to understand that, if I settle my case with them on favorable terms, that their suit against him, seeking damages "in excess of $10,000" and further punitive damages "in excess of $10,000", will probably be dismissed. So you could theorize they're trying to put some pressure on my lawyer to make me settle.
But come on, no one would do that, right? I mean, that's not in one of the grey areas for modern legal ethics; it's just plain illegal.
Anyway, let's talk about the substance of the case. This will be hard, because it hasn't got any, and furthermore, their story has changed between the initial filing and the current paperwork.
The essence of the claim is this. Bob ELIDE (the guy from whom I found out that two of my faxes came from Source Lending) settled his lawsuit with Source Lending. That much is a matter of public record, as is the curious five month delay between the date of his signature on the settlement agreement and Source's signature. (This involves a judge, Hon. Isabel Gomez, having to issue a court order requiring Source to sign the settlement.) The details of the settlement are, or were, confidential.
In one of their filings in Seebach v. Source Lending, Source represented that they had settled all their claims with Bob ELIDE for the sum of $2,500. (I do not know this to be correct, because I have not read the settlement, but given their actions since, I assume it is.) In response to this filing, Mr. Appelget attached the settlement to Plaintiff's memorandum in opposition to Defendant's motion to dismiss, as an exhibit.
Here is where it gets funny. At the next court occasion we had (shortly after Source Lending gets wacky was written), in addition to the hilarious "lark" speech, they announced that they were going to sue Mr. Appelget for breach of confidentiality.
In discussion of this, the following paragraphs from the confidential settlement were disclosed:
i. If there is a breach of this agreement, the nonbreaching party shall at her [sic] option, disclose any of the terms of this Agreement and Litigation ...
So. The terms of the agreement are confidential. Source puts them in a public record (the filing). This is a breach, and Ms. [sic] ELIDE is then entitled to disclose any of the terms. In this case, they were disclosed by Mr. ELIDE's attorney in the matter, Mr. Appelget.
Well, that's nice. So where's the wacky part?
Part 2: You have ilk!
In their Memorandum in opposition to Defendant Appelget's motion to dismiss, Source begins:
On May 27, 2005, A. Peter Seebach...
Let's stop right there. Am I a party to the suit? No. And yet, they are using my actions as the basis for it, apparently.
Here's my favorite part:
Some persons, Mr. Seebach included, publish and collect the names of companies willing to settle junk fax cases, suing those that seem least likely to struggle. The disclosure of the terms of the agreement to Mr. Seebach and the submission of the document which makes it a public record exposed Source to the potential of an endless series of litigation.
Well, first off, the series of lawsuits (you can't have a series of a mass noun) is presumably endable, if Source simply refrains from sending faxes; the statute of limitations will then end it in due course.
However, this paragraph has other flaws. The first, and most blindingly obvious, is that the relevant terms were disclosed to me by Source Lending. I did not know the amount of ELIDE's settlement; at the time that he settled, all I found was that they had settled with him, but that to settle with me, they wanted me to indemnify them against all possible other junk fax suits.
Oops.
This is where the speculation-as-substitute-for-fact thing sort of breaks down; since in fact the terms of the ELIDE settlement were not previously disclosed to me, the entire chain of reasoning falls apart. What I found out from Bob was who had sent these two faxes, and that Source Lending were the sorts of people who accuse law enforcement actions of being "extortion". I had a stack of perhaps 700 junk faxes to sort through; any that could be identified were likely candidates for pursuit. I assure you, after hearing that Source simply refused to show up for depositions, called names, and so on, I had no impression that they were "least likely to struggle". I did, however, form the impression that they were essentially crooked and slimy; an impression I confess has not much changed in over a year of litigation.
I would not recommend that anyone sue Source on the grounds that they are "least likely to struggle". The "least likely to struggle" theory, of course, marks something of a return to their earlier theory that I am in this for the money. C'mon, guys. You know already that I give the money away, and furthermore, as my bitching about accounts receivable suggests, I earn more in a week of work than I collect in a year of junk fax suits.
But nevermind. Source's whole theory here is that confidential information was given to me, and that I sued based on it. They say:
Persons who, like Mr. Seebach, repeatedly bring lawsuits against alleged junk faxers do not choose their targets at random. Litigation is not cheap. Mr. Seebach's decision to pursue litigation over an alleged two (2) junk faxes he received was aided by information to which he had no right. The later submission of not only the full text of the confidentiality agreement but the entire process of negotiation alerts those of Mr. Seebach's ilk to the presence of a profitable opportunity, and exposes Source to repetitive litigation.
(Emphasis added. I just love the word "ilk".)
This is a thing of beauty. What is the word "alleged" doing here? In their response to Plaintiff's Interrogatory #14, Source admitted to having hired a third party to send junk faxes. They are indeed senders of junk faxes.
Now, once again, it is crucial to remember that Source knows that I don't make any money at this; their key argument at our hearing back in June was that, since I don't keep the money, I am unable to competently represent a class. I respectfully disagree, having been the class representative in a previous junk fax case. However, their claim that my decision was based on confidential information is not only wrong, but flatly impossible! Without foreknowledge of future events, it would be impossible sue them in September of 2003 on the basis of a settlement agreement that they did not reach until December of 2003, and which Source refused to sign until a judge ordered them to in the middle of 2004. Believe me, if I could predict events that far in advance, and wished to make money, there would be better ways than this.
Litigation is indeed not cheap. It is not cheap because Source Lending refused to answer even simple questions about their junk faxing until the judge ordered them to. In their defense, they may really have not known; the sum total of information they've been able to offer is that the owner of Source Lending paid some entity called "JDS" by personal check for a marketing campaign that was to include some junk faxes, which they claim they believed were legal. (Given the ties between Source Lending and Northern Lights Mortgage, another local junk faxer real-estate company, I am skeptical. By the way, for those who keep track, Northern Lights Mortgage isn't just a junk faxer, but a predatory lender as well. It's almost as if a willingness for dishonest gains is itself some kind of pattern.)
If they want to imagine that this is a "profitable opportunity", I guess I'm not inclined to argue with them. However, it does seem we've actually reached some form of agreement; they are very concerned about the risk of repetitive litigation. Perhaps, noticing that this case was pled as a class-action suit, instead of opposing this on the frivolous grounds that they refuse to discuss the number of faxes they sent, they should stipulate to the class allegations, thus shielding themselves from further lawsuits! It is, of course, just a suggestion.
In conclusion...
So that's where we stand. If I settle with them on terms they find favorable, this lawsuit goes away too. Of course, they've been trying to argue that any money they have to pay is necessarily damages; this is a ludicrous attempt to get away from the clear liability they have for their unlawful faxing. But hey; they can just make stuff up. It's okay. I don't think my lawyer will be swayed by their threats, and it's not as though I have high professional-ethics expectations of junk-fax defendants or their lawyers.
September 01, 2005
Pwnz3d, beeyotch
Well, well, well. Let's just cut to the chase; Defendant's motion to dismiss is DENIED. (Emphasis in original.)
Source Lending's surreal combination of argumentation has been weighed in the balance and found wanting. It's hard to express how silly their arguments have been. After they tired of accusing me of extortion, they showed up in court with a brand new argument; this is all a lark! There is no serious case here. Whether or not they committed thousands of violations of federal law is not the point. The big question is whether I am having too much fun; after all, if you're having fun in court, any remedial claims would be barred by res sola bozocata ("it's just clowning").
No, folks. This isn't a lark. A lark is one of these:
Image inverted left/right from original
Or one of these:
Image inverted left/right from original. Original copyright Carol Davis, used by kind permission.
This is not to say that every argument raised in this case has been serious or well-grounded. For instance, consider this knee-slapper, offered by defense attorneys Mahoney and Emerson as explanation for Defendant's refusal to offer even basic responses to interrogatories they have been sitting on for close to two years:
The time afforded Seebach has been more than ample to discover, on his own, the merits of his class action. [...] Despite an allegation of thousands of victims, and hundreds of days to identify them Seebach has failed to find even one more, much less the numbers required to make joinder imparcticable.
What's the judge say? The judge says this.
Plaintiff claims that Defendant has not cooperated in the discovery process which would gather from Defendant relevant and discoverable informationnecessary for the Court to evaluate the class action allegations. Pltf. Opp. pp 11-13. In its Reply, defendant does not deny these allegations. Deft. Reply pp. 4-5. Defendant only says that plaintiff has not been able to discover anything yet. This leaves the Court with the impression that Defendant has not cooperated in the discovery process.
[...]
In the present case, Plaintiff may have had the time to discover the necessary facts, but if Defendant has not cooperated, the amount of time means nothing. [...] The answer is non-responsive, especially since it appears from the question that this would be information to which Source Lending had knowledge or could easily obtain the knowledge. [...] Again, Source Lending should have this information or easy access to the information, yet, it gives another non-responsive answer. [...] The Court also notes that Defendant's claim of attorney-client privilege or the work product rule in its answers to those three interrogatories is questionable, at best.
The judge also contributed a few other choice morsels; "Defendant is incorrect." "These arguments are without merit." "The Court agrees with Plaintiff [...]"
Entirely absent from this order are any reference to Source Lending's ever more ludicrous simultaneous assertions that this amounts to some sort of blackmail or extortion (their words), or the even sillier argument that, if I am just going to give the money away, I am ill-qualified to represent a class. (Apparently, a good class rep should be amenable to bribes.) This is for the best; the "arguments" are so meaningless and ill-formed as to defy rebuttal, standing best on their own as a monument to the importance of having a case before calling names.
Of particular interest is Defendant's tiresome assertion that I am in privity with someone else who sued them. The judge has adequately addressed the argument, observing that "The only known relationship is that they both hired Attorney Appelget as their counsel."
Since Defendant's laziness about discovery covers both the answering and asking of questions, I will save them the trouble of striving to form an Interrogatory trying to figure out the actual relationship between myself and Bob ELIDE, which is apparently of great interest to them.
I met Bob online, talked to him on the phone, and got a referral to an attorney who represented him in some junk fax cases. He explained that he handled most of his cases pro se, but that he retained an attorney for difficult cases. When I presented Mr. Appelget with my junk faxes, he identified the Source Lending faxes based on Bob's existing pro se suit against Source. Bob sued Source Lending on April 20th, 2003; my case was not initiated until October 17th, 2003.
Defendant's allegation that I was necessarily aware of Bob's case is based on false beliefs. Defendant, of course, should be aware that Bob's case was originally filed pro se. They certainly can't honestly think these are the same cases, despite their claims to the contrary, given that settlement negotiations in both cases were simultaneous, and clearly distinct. (This includes the bizarre letter they sent proposing that they settle with me only if I gave them blanket indemnity against other junk fax cases!)
The question of why I didn't join my case with Bob's is easily answered; Bob was seeking financial relief and had already filed and pled the case in a way incompatible with my interests. My interests are focused around preventing future junk faxing by Source Lending; Bob wanted to get paid. While the instrumentality of the cases (unlawful faxes sent by Source) is similar, the relief desired is dissimilar. Joinder would have served neither party's interests. Source could have found this out by simply asking, but the discovery process itself seems to be a mystery to them.
If Defendant wishes to continue wasting everyone's time with this frivolous defense, I would suggest beginning by complying with discovery. Defendant's refusal to show up for a deposition on the grounds of "we dun wanna" (they refused to come to the first noticed deposition, then claimed that they were unavailable for the second; they have not returned calls seeking to reschedule) is hardly helpful. The judge has helpfully identified specific interrogatories to which a response simply must be given for the case to proceed. If Defendant's allegations that there is no basis for class certification are rooted in fact, why are they so unwilling to provide the evidence needed to let the court establish this?
What I want is the same thing I always wanted from this; I want Defendant to never send junk faxes again, and I want Defendant to make some kind of restitution to the victims of their unlawful advertising campaigns. If they wanted to settle on terms like that, we could be done with this. Of course, they'd still have to cough up the information about who sent their faxes, how many were sent, and so on. For now, it seems they'd rather call names, indulge in a sort of surreal parody of standard civil practice, and insult the judge's intelligence.
June 03, 2005
Source Lending gets wacky.
I sued Source Lending corporation some time ago for junk faxes; the case has been pled as a class, on behalf of all the people who received junk faxes from source lending. They have been playing games, ignoring phone calls, and making ludicrous demands (they wanted me to indemnify them against all possible future junk fax cases at one point!) for quite some time; it's been almost two years since they decided to completely blow off a scheduled deposition, and to this day, we have received no substantive answers to most of our discovery requests.
We received a "reply memorandum" from Defendant's law clerk today. This is in response to a response to a hilariously badly-written memo they previously filed in this case. They are attempting to argue that, under various legal fictions (and just plain fictions), it is impossible for me to sue them because someone else already did.
The essence of their defense is that a serial killer should only be tried for a single murder, because any other case has the same essential facts (killer, method of killing, and the question of whether the victim actually died), and it would thus be double jeopardy. (In civil cases, this is called res judicata.)
A few comments are perhaps in order.
About That Summary
In this section, they start with a baldfaced lie. "Plaintiff, through his counsel Steven Appelget, is attempting to leverage a single alleged transmission of a fax into a class action." In fact, not only did they send me two faxes, but another person (the one who already sued them) also received one of their unsolicted faxes. Given the number of times they stress that the other case (ELIDE v. Source Lending) has already been settled, they can hardly pretend ignorance of it.
Section I: Argument
This optimistically-named section makes a number of interesting claims. The most significant is the assertion that I am, in fact, Robert ELIDE, the other person I know who has sued them over their junk faxes. The "argument" is that, since Mr. ELIDE's fax was similar to the first one I received, a settlement of that case settles this one. This is insultingly bad. First off, given that they were active in settlement negotiations with both myself and Mr. ELIDE at the same time, it seems reasonable to assert that they were aware of both cases at once. They continued to discuss settlement terms with me after settling with ELIDE; obviously, they felt there was something left to settle.
The section describing the factual circumstances is elegantly disingenuous. I quote:
Seebach's claim that ELIDE received his fax three hours later distinguishes the two without creating a legally substantive difference, changing only the timing of the injury, not the facts required to prove it.
Compare this with the hypothetical defense in Conan v. Extras:
Dark Tower Guard #2's claim that Dark Tower Gu