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.
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.
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.