iPod Lawsuit Lawyers Sue Their Own Plaintiff? 424
Guinnessy writes "Jason Tomczak, who is mentioned as the lead to the iPod Nano 'Scratch' Class Action law suit
filed against Apple computers has published an open letter to the mac community. In it he claims that he never asked to be represented by David P. Meyer & Associates or Hagens Berman Sobol Shapiro, the lawyers in the case. He spoke to them once by phone about his scratched iPod case and asked that his name not be used. In fact, the two firms agree there is no signed document proving that Tomczak asked for representation. However, because Tomczak wants nothing to do with the case, David P. Meyer & Associates or Hagens Berman Sobol Shapiro are currently suing him to try and stop him from pulling out. They also say Tomczak is legally liable for their fees if they lose the court case against Apple. Needless to say Tomczak isn't happy with the arrangement, and is likely to still lose thousands of dollars under the best scenario."
Just go away. (Score:2, Insightful)
this is why... (Score:5, Insightful)
no wonder the USA legal system is so fucked if you can do no wrong, tell the truth, and still by charged money that is a significant part of your wages. whereas companies can provably break laws, be found guilty, and still be charged a meaningless fraction of their profit.
Re:next up (Score:1, Insightful)
Re:What I do not understand... (Score:3, Insightful)
-Rick
Re:IANAL... (Score:2, Insightful)
Re:The only solution that makes sense (Score:2, Insightful)
Too bad that the Mac community is so full of mindless toadies that they joined in the harassment from their own side. I don't think *they* deserve an apology from this guy, who did nothing wrong.
"I began getting hate mail from people upset about the iPod Nano suit. I had to take my website down and remove legitimate references to my name on numerous web services. My fiancee and I were afraid to go outside in our own home town for fear of recognition and reprisal."
I mean, seriously folks, you love a defective product *that* much? It sounds like great advertising for Apple...except for the whole "well, we sell so many of these because people are mindlessly attached to our brand and don't want to hear anything bad about them" bit.
Re:The only solution that makes sense (Score:5, Insightful)
I certainly don't see how there'd be conflict with defending a murder suspect. It's important to force the state to prove their case, lest innocent people be wrongly accused and punished for things they didn't do.
Re:wow (Score:2, Insightful)
Shouldn't he go throught different channels (Score:2, Insightful)
It's not about making the case (Score:5, Insightful)
Here's the deal:
They didn't care about actually getting the necessary documents signed before filing.
They need this guy to keep quiet so they can pursue the lawsuit.
They want to keep him tied up in legal proceedings until the Apple case has been resolved, and they're using a number of dirty tricks to do so.
If they win, he won;t get a dime anyway, as it will all be eaten up in "legal fees."
If they lose the suit with Apple, they'll then go after this poor guy with everything they have to either get him to cough up some obscene legal fees or declare bankruptcy. After all, if they lose, SOMEONE has to suffer for it.
It's not about proving anything about if he's really their client. It's all about delaying him so they can continue going after Apple.
Re:wow (Score:5, Insightful)
Making hundreds of thousands, if not millions of dollars in "legal fees" from a case that will eventually get all the people in the class 5 free songs off iTunes.
Typical class action stuff. The lawyers win, we get screwed.
Re:I'd like to say I can't believe this... (Score:3, Insightful)
Re:next up (Score:5, Insightful)
Second, there is always a race to the courthouse with class-action suits: the firm that gets listed as lead counsel stands to get a big share of any settlement. Whereas most of the class ends up getting things like coupons, the counsel gets a big chunk of change. Being the first to file, especially if they have a good representative plaintiff, will be considered favorably by the court when picking a lead counsel.
I don't know much about either firm, but in this environment, it wouldn't surprise me to find a few i's and t's that weren't crossed. I suspect that they don't often get a lead plaintiff who says "Not interested."
Re:next up (Score:2, Insightful)
Legal proceedings take a *LOT* of time. 7 months is relatively little when it comes to this sort of thing. I'm sure in the earlier stages he felt much more positive about the chances of getting things straightened out.
In fact, it was only on May 1, 2006 that he received the news about the SLAPP. That and any discussions after that probably led him to draft this letter and go through a process with his lawyers to ensure they were ok with him posting it, and helping him edit the letter to ensure it doesn't jepordize his legal standings. They may attack harder because of it, but if it was written well (and it looks like it was) at least they won't face additional charges.
IANAL
Odd choice ... (Score:5, Insightful)
Re:next up (Score:5, Insightful)
Unless you want to talk about the proper methods by which to balance the processor consumption versus memory bandwidth consumption of index generation algorithms using doubly linked list sectorization on Opteron processors, I can't think of what you could question me about for six hours that wouldn't intrude on my sense of personal-space.
As a lawyer you might find these things routine, but to the average citizen six hours of questioning by people with hostile intentions has to be a bit unnerving.
The statement, "...but they won't do it without knowing *everything* about you" seems self-disproving. That sounds like an assumption by a competent person about how these things should be handled. If they'd questioned him enough to know close to *everything* about him they would have chosen another lead plaintiff. The fact (if it is a fact) that they couldn't produce a single signed document from Mr. Tomczak to defend their (mis)use of his identity would seem to me to lend credence to the argument of that their research was cursory at best. I don't know what the minimum number of whiners have to be to start a class action lawsuit, but I'd guess it's several, and I find it hard to believe Mr. NoPaperwork was the best choice for a competent legal firm, when suing Apple.
"Discovery is expensive and damaging to a law firm." When you stated this you were making a good point about the reason for a motion to dismiss. But I empathize with the fact that it's proportionally more expensive for Mr. Tomczak. How much disposable income does he have to put toward this. He'd have to be pretty rich to just laugh off his likely expenditures thus far.
That the lawfirm he is fighting is just doing what is most likely to make them money seems obvious. I wouldn't vilify them for knowing how the game is played.
That said, it was their lack of proper research that caused this mess, and had they done this properly they could have (rightfully in my opinion) chosen a non-adversarial approach to solving this problem. For X thousand dollars (where X is a single digit number) I'll bet they could have purchased a statement from Mr. Tomczak that stated he would not be able to participate for "health reasons." This would seem a great excuse to amend their complaint. Real lawyers would come up with dozens of even better alternatives, that would have allowed them to continue to pursue the juicing of Apple. Instead, they acted as unmitigated jerks and ruined their grab for the golden ring.
The shortsightedness of their behavior is to me the most convincing argument against the assertion that Mr. Tomczak is being deceitful. I would counter that he views his legal predicament through a glass darkly.
URGENT - CAREFUL NOW (Score:5, Insightful)
You have every reason to want your voice heard, regarding this case. I am outraged at what appears to be happening. However - go through the proper channels to have your say. Contacting these attorneys *at home* is not appropriate.
Complaining to the attorneys through professional channels is okay, and filing a complaint with the proper legal governing bodies is even better. But if these attorneys receive harassing messages at home, this may be interpreted as a threatining action. Because of the pending lawsuit, this may come up in court and make the "little guy" look bad.
I am not taking the lawyers' side by any means. But think before you speak, so you don't add to the fella's pile of trouble.
Re:next up (Score:5, Insightful)
Well, fortunately for everyone whether you believe him or not is irrelevant. I am pretty sure that every state requires that attorneys obtain an agreement in writing with a client. I know for a fact that California requires it. Either they have a written agreement or not. There is no middle ground. His intentions are completely irrelevant. The signed agreement is the only relevant issue of fact. If they cannot provide proof of one, then there is no dispute of fact.
The sad point here is that they are just trying to bleed him of financial resources using legal tactics. I think they are playing a dangerous game here for two reasons. First, a judge is very likely to sanction them really heavily and make them pay all costs if he can get it that far. Second, the California Bar will very likely discipline some of these attorneys if he files a complaint.
IAAL
Re:next up (Score:2, Insightful)
You are just as much in the dark as we are, so you're simply guessing. Maybe you don't make this kind of mistake. Maybe the firm(s) where you've worked are the few good, upstanding, ethical law firms that never make any mistakes. (most likely y'all are simply better at covering your oopses.)
However, it's also entirely possible the firms involved dropped the ball and actually did file without his legal authorization -- and possibly despite his request to remain anonymous. We don't have the complete story, assuming there's one to be had.
That is quite a "unique" viewpoint (Score:5, Insightful)
I'm fully willing to accept there are two sides to the story and take both sides with a pinch of salt.
That said, it's incredible to suggest that there is "simply not a chance" that the legal firm decided to take on a high profile case guaranteed to generate an enormous amount of free publicity and do try and do it off the back of "some guy they found on the internet" (who they can later try arm twist into staying on board by trying to make him feel like he's "locked in" and has agreed to it all).
There is every chance the legal firm did not behave appropriately, realised they made a mistake when they couldn't arm twist the "plaintiff" into going along for the ride and are now engaged in damage limitation.
I think you'll find there are plenty of highly unscrupulous law firms who take on cases of dubious merit and cajole people into taking up legal action in order to drum up business for the legal firm (even when the plaintiff's are unsure of the merits of the case and are liable to regret it later - it's not like these guys are family solicitors and can be counted on to look after your best interests). If your in any doubt of their prevalence, sitting down in front of the TV and watching the adverts should resolve it.
To be even more explicit, the plaintiff is asserting the legal firm called him after finding his details on the internet. That ought to raise all sort of warning flags and brings the legal firms credibility in to further disrepute (it is possible that's a lie, but it would be a ridiculous thing to lie about as it's going to be reasonably easy to prove or disprove either way from call logs from the operator).
Not getting a written agreement from him was a big gaffe, but don't think for a second that that means he didn't agree to do this. Without question, he did.
No, that's exactly the question, that's what is being disputed.
In a case like this, the failure to get written agreement is in itself highly suspicious. It's not as if they are an amateur legal firm. Given the case, I can't imagine this being an 'oversight' by any credible professional organisation.
I can't even signup for a library card without signing for it, let alone take out a high profile legal case against a large corporation. You don't start issuing press statements that your taking on Apple Computer over a case involving iPod's after looking up the details of some guy on the internet and getting his verbal agreement over the phone.
I think it's far more likely the legal firm knew exactly what they were doing and were counting on the pliability of the plaintiff, and that the approach appears to have backfired (free publicity notwithstanding).