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."
Steve Berman... (Score:4, Interesting)
Let's say that the following is completely speculative and happens in fantasy-land. (I don't wan't to get sued!)
One day in autumn 2005, Bill Gates is playing golf with his lawyer friend Steve Berman.
-Steve: Did you see the new iPod nano?
-Bill: Yeah yeah I did...nice little player but you know my position about iPods... We had big plans with the RIAA to impose WMA as the audio standard, by this year we were supposed to drop Red-Book audio from all CD sold in the US, replacing the content with DRMed WMA. You can imagine how the iPod and iTMS screws up our plans badly.
-Steve: I guess many big-players are pissed-off by the iPod success.
-Bill: Yes they are, but the iPod seems unstoppable... Even with dozens of our ghost-writers publishing negative articles about the iPod, it keeps dominating the market.
-Steve: I've read that the iPod nano scratches very easily, and that some of the early batches had screens that spontaneously break.
-Bill: I know about it, our ghost-writers are already trying to spread the word... but we need something bigger, we don't have a choice.
-Steve: There's a guy that built a website to complain about his iPod nano screen problems and he's very vocal about it.
-Bill: What if your law firm gave him a hand to help him build a class-action suit against Apple?
-Steve: Yeah we could do that, but what if he doesn't want to be part of the lawsuit?
-Bill: I'm %100 sure your great firm will be able to "convince" him... And by the way, you owe me that, remember that "thing" I sent you last month?
-Steve: Oh right, that "thing" was very enjoyable... I guess I owe you that one...Let me see what I can do!
What I do not understand... (Score:4, Interesting)
If indeed he did not file the case that would seem the best revenge, but them out of the loop (and the winnings).
I would say the lack of any signed document stating the case is truly in his behalf almost certainly indicates his story is the correct one, for what lawyer would even pick up a pad of paper without a full and binding contract signed in triplicate?
Re:The only solution that makes sense (Score:1, Interesting)
I haven't read any of the pleadings in the case, and of course there's two sides to every story (it should be noted that the above letter was drafted or approved by this guy's lawyers) but based on the facts made available, something should happen to these lawyers. If not disbarment, then at least a suspension, or fines payable to this guy.
Anyone else asked the lawyers for clarification? (Score:4, Interesting)
info@dmlaws.com
rcarey@hbsslaw.com
steve@hbsslaw.com
info@hbsslaw.com
mark@firmani.com
Unfortunately none of them has responded so I can't clarify the truth of the allegations. Perhaps some other people should email them asking for clarification as well.
Re:next up (Score:5, Interesting)
They would not remove his name from the lawsuit even though they had no proof he wanted to be involved and he explicity stated he want to NOT be involved.
They did not comply so he was forced to file a lawsuit to clear his name. Instead of settling, the offending lawfirm counter-sued using Anti-Slapp laws. Now the guy will be in for a boatload of money because some scum bag lawfirm decided to use a few quotes of his from a blog and his name inappropriately for a class action lawsuit.
The headline says they are suing him because that is the news. This guy should be suing the lawfirm, but them suing him? Now that's news.
Either Or ... (Score:4, Interesting)
If this fella *is* telling the truth, he simply needs to report this incident, along with all evidence of correspondence and communication, to the Bar Assn. An egregious misuse of the law such as this could get the attorneys disbarred.
You might be right but.... (Score:3, Interesting)
The class action suite is severly diluted if the highest profile person is not party to the action. They hope to harrass him into joining their case.
I'd like to say I can't believe this... (Score:1, Interesting)
All that being said, let's remember that we have a history in this country of the big guy lording it over the little guy, so I find no reason to disbelieve him. How about this: let's put this community of ours to work here and raise funds to help him against these lawyers. There are so many readers here at
This can't happen... (Score:2, Interesting)
http://www.hbsslaw.com/report_a_fraud.jsp [hbsslaw.com]
Re:this is why... (Score:3, Interesting)
No!
I firmly believe that a guranteed loser-pays system is worse than what we have now. What we have now encourages frivilous, unfounded, and stupid lawsuits, but having a loser-pays system makes it nearly impossible to file well-founded but risky lawsuits against big companies. You think that the story in Erin Brokovitch could have happened with a loser-pays system? No way in hell. You wouldn't find someone willing to take that risk.
Re:The only solution that makes sense (Score:2, Interesting)
But what is justice? In the legal system, it's being able to prove beyond all reasonable doubt that the defendant is guilty. The state has the burden, and they must do so using only legal methods (thus many cases won on technicalities like an illegal search). It sounds like the system is set up in favor of the criminal, but that's not the case. It's set up in such a way that a false-negative is much more likely than a false-positive. In a country that (supposedly) values freedom, it's more important to let a guilty man go free than to wrongfully convict an innocent. Maybe you think that's wrong, but those are the ideals that drive our justice system.
Although I'm sure that will change as we give up more and more freedom in exchange for "security". Before you know it, we'll be back to "guilty until proven innocent". (as if we're not there already. How many of you think OJ killed his wife? But he was never proven guilty, thus he must be innocent under "innocent until proven guilty".)
Re:It's not about making the case (Score:5, Interesting)
I don't know. Seems like he'd make an ideal witness for Apple. He's provably not biased toward them (the whole episode started because he had a problem with their products), yet clearly doesn't want this to procede.
To be honest, I think Apple should make peace with him by introducing him to the happy side of their legal department. Shysters against little guy? No problem. Shysters against Apple's legal unit? Not so easy. It'd be relatively cheap for Apple and great PR.
IANAL (Score:4, Interesting)
I would say he possibly has a libel case on his hands, with him being the beneficiary.
Assuming he did not enter into an enforceable verbal (or written) contract, then he is potentially gonna make a buck off of those boneheads. And that's assuming they did more than merely quote him.
If he is so certain his case is so great, and the legal fees are getting him down, then he should find a firm willing to work on contengency.
Better, yet, drop the lawsuit and simply cooperate with the weasily lawyers who did this to him.
Then, at trial simply testify for Apple instead. That would get the lawyers good!
Re:No! Lawyers aren't suing him, he's suing them! (Score:2, Interesting)
http://apple.slashdot.org/comments.pl?sid=186589&
A SLAPP In The Face
On May 1, 2006, David P. Meyer & Associates and Hagens Berman Sobol Shapiro defense lawyers filed Motions to Strike the entirety of my case against the two firms despite evidence that I had unwillingly and unknowingly been made Lead Plaintiff in the iPod Nano Class Action suit. In their Motions to Strike my case against them, they also requested of the Court that I be held financially responsible for their attorneys' fees and costs.
IANAL, but a Motion to Strike seems like a pretty routine request. ("Hi, Judge! I did nothing wrong, and this lawsuit is obviously ridiculous. Can you send it away please?") As a previous poster indicates, he probably does have a reasonable libel lawsuit, so I imagine the motion would fail. However, that's hardly cause for any kind of indignation from the Slashdot community.
I don't know how common it is to request attorney's fees, but I know that in the UK, for example, it is common practice to make the loser pay the legal fees for both sides. So, if you think you are in the right, it does not seem crazy to ask for them.
Note that they do *not* seem to be requesting lawyer's fees for if the iPod Nano Class Action law suit fails. They're asking for reimbursing if the case the Jason Tomczak is bring fails. (Much more rational.)
Re:RTFA: He Sued them. (Score:3, Interesting)
And "defense law firms" are not incapable of preemptively suing, either.
Re:wow (Score:2, Interesting)
This is what they do. I have been through similar issues with lawyers, and had to represent myself on more than one occasion because of this sort of unprofessional and predatory conduct on the part of licensed attorneys.
It sounds to me like they know they goofed, and are trying to scare him into paying them. This is a common tactic employed by "legal professionals" when they screw up. Since there is no signed consent, they have no legal leg to stand on. Since the unwilling Plaintiff in the iPod case has been harassed and his living jeopardized, he now has a claim for punitive damages. Might not get much beyond expenses and so on, but it will be something.
The other possibility is that he pissed someone off. Lawyers are cruel vindictive self righteous little people. They usually have some sort of porn addiction and play too much D&D. This makes them feel strong, and seems to give them the idea that they can do no wrong. Fortunately for him, these lawyers will always loose at bench trial.
Just one thing that strikes me as odd about the post:
If they're asking him questions that are not relevant to his case, why aren't his lawyers objecting and getting the questions stricken? If I were a lawyer, that would be my gauge of the other side. If the questions that were not relevant got answered, our friend here, the reluctant Plaintiff needs better legal representation.
Re:The only solution that makes sense (Score:2, Interesting)
So if you are arrested after killing those 20 people and kept in jail for several weeks or months before and during your trial, you are then a currently innocent man sitting in jail.
How does this square with your statement? If I am innocent I should be free to leave and go where I want to, should I not? Bail? Why should I, as an innocent person, be punished by having to post a bond or abide by conditions that don't apply to other innocent people?
What do you think?
Re:this is why... (Score:1, Interesting)
In the UK small claims track for cases under £5000 (English law) then *neither* side can claim solicitors fees at all.
What's more is that you don't even need a solicitor. You file the papers, you show up and sit round the table with the district judge. I've taken a large multinational PC maker to court and they showed up with the heavyweights. Didn't do any good, and the judge remarked that he thought it "a little over the top". I won by being reasonable, having my paperwork prepared and not being intimidated. No bottom-feeders needed....
Re:next up (Score:1, Interesting)
this is analogous to the form seen today in modern spanish, "me gusta esta cosa", which is used colloquially to express liking something, but "esta cosa" is the subject, which pleases (gustar) the speaker.
"methinks" today runs against modern english's stricter requirements on the order of words in a sentence; an object-verb-subject ordered english sentence is very rare. perhaps this was the pressure which made "methinks" an archaic form.
Re:MOD PARENT UP (Score:2, Interesting)
Similarly, when Slashdotters are outraged by stupidity, you find the closest people to blame, google them up, and post their email addresses on Slashdot. Problem solved.
Re:next up (Score:4, Interesting)
All the lawyers have to do is present the signed agreement and his case is dismissed. If they don't allow anyone to look for such an agreement, or they refuse to produce one, it makes his case harder to dismiss. It sounds like they want to prevent his team from looking for such an agreement, which they likely would do if it didn't exist.
Re:this is why... (Score:4, Interesting)
Yes, that does mean the winner can lose out overall. That is what keeps the system relatively sane and provides a good incentive to BOTH sides to settle out of court.
Not fair on winners, who haven't done anything wrong and therefore shouldn't lose anything? Maybe. Is it as retarded as US "justice"? No way. Can you buy a favourable outcome if you stump up enough cash, even if you're in the wrong? Definitely not. Personally I prefer our system; it's not flawless by any means but overall I think it does a reasonable job.
Re:next up (Score:3, Interesting)
I will leave it to you to reread the article and figure out for yourself why California law applies here. As you are an attorney, I am confident you will figure it out.
Re:next up (Score:3, Interesting)
Used car salesmen, for example, are notorious because they know that once the vehicle is off the lot they are pretty much free and clear. They are in a business pretty much defined by caveat emptor.
Lawyers, for whatever reason, seem to come in just two flavors; those who are passionate about the law and its ability to create a set of circumstances that allow a civilized society to flourish, and the bottom feeders preying upon the weak. Guess which type I think the partners of these two law firms are?