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iPod Lawsuit Lawyers Sue Their Own Plaintiff?
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."
Open Letter to the Mac Community
The Truth Behind the iPod Nano "Scratch" Class Action Suit
May 22, 2006
Dear Mac Community:
Hello! My name is Jason Tomczak. Many people around the world rightly know me as a mild-mannered techie, photographer, writer, and nature-lover. I am an Apple fan and have been fortunate enough to use Mac computers and other Apple products since about 1985.
On October 19, 2005, my life changed due to the unauthorized conduct of others. From that date forward, countless numbers of people around the world were driven to hate me and slander my name, sometimes using foul and threatening language.
Since October 19, 2005, my name has been infamously tied to the iPod Nano "Scratch" Class Action law suit filed against Apple.
What You Don't Know About The Nano Suit
The truth is that I never sought out nor did I ever hire David P. Meyer & Associates or Hagens Berman Sobol Shapiro to represent me in any case, much less the iPod Nano Class Action suit.
The iPod Nano Class Action law suit was initiated by David P. Meyer & Associates Co. LPA of Columbus, Ohio and their representative firm, Hagens Berman Sobol Shapiro LLP of Seattle, Washington and filed on October 19, 2005.
David P. Meyer & Associates contacted me, soliciting my opinions and comments about the scratching of my iPod Nano after finding Nano-related blog posts I'd written on my own website, on The Unofficial Apple Weblog and on The MacCast. They informed me that they had received an "overwhelming number of complaints" about the Nano and that they wanted my "insight into the problem". Yes, I answered their communication and told them that I had problems with my iPod Nano, however I clearly told them that they should do their own professional and technological study of the iPod Nano.
I emphasized that I did not have any access to any specific data about the materials used in making the iPod Nano. David P. Meyer & Associates used my personal comments and opinions as the basis of the iPod Nano suit. To my knowledge, there was no actual technical study done on the iPod Nano before the Class Action suit was filed.
Additionally, I told David P. Meyer & Associates that I wanted to remain private, and that my wish for privacy, among other considerations, would preclude me from getting involved in the case.
No Documentation
At no time did David P. Meyer & Associates or Hagens Berman Sobol Shapiro ever receive any attorney-client agreement form from me. On their own time and based on their own schedules and plans, they prepared the paperwork and filed the iPod Nano Class Action suit in California using my name as Lead Plaintiff, however this was done without my knowledge or consent.
The Filing and The Call
The senior partner of David P. Meyer & Associates and one of his representatives called me during the afternoon of October 21, 2005 to urgently request my signature on an attorney-client agreement - two days after the Class Action suit was filed; two days after they began their action against Apple; two days after the press had begun running the story. They then warned me that my family, friends, clients and I should expect to hear from the media and others interested in the iPod Nano Class Action suit.
During that phone call to me, David P. Meyer and his associate blamed the faulty Nano filing on Hagens Berman Sobol Shapiro.
Spin Cycle
During that week and the following months, my name was posted in relation to the iPod Nano Class Action suit on websites all over the world, even in foreign publications like Russia's "Pravda" newspaper, the Enquirer, Stuff Magazine, Popular Mechanics, CNN, BusinessWeek, MTV, VH1, etc.
Google results for my name skyrocketed. 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 a
Actually, in many places verbal contracts *are* binding, as long as they meet certain criteria. See the following for some details.
. html
http://www.onlinelawyersource.com/contract/verbal
Verbal contracts are definitely binding, except in very specific circumstances. Marriage and real estate are two of those. However, your burden of proof of having the contract is high, and since the contract is not written the judge is going to impose what he thinks are reasonable terms on it. For example, if you have an oral contract to paint a house and one of you claims the amount was for 6 rooms and the other for 1 room, the judge will decide which is more likely correct based on market rates.
I still have more fans than freaks. WTF is wrong with you people?
IANAL, but what you're describing seems to be a serious breach of ethics on the part of the lawfirms involved. Yes, some lawyers actually take their ethical obligations to society and the courts seriously. I think you or your lawyers would be well advised to immeadiately contact the ABA (American Bar Association) and talk to them about your situation. The simple fact they cannot produce a client-attorney agreement when a lawsuit has been filed in your name is pretty damning. More then that, their behaviour after the fact is plain out wrong and the ABA may be able to help redress that.
From the Washington State Bar Assoc. Rules for Professional Conduct...
RULE 7.3 DIRECT CONTACT WITH PROSPECTIVE CLIENTS
(a) A lawyer shall not directly or through a third person solicit
professional employment from a prospective client with whom the lawyer has
no family or prior professional relationship in person or by telephone,
when a significant motive for the lawyer's doing so is the lawyer's
pecuniary gain.
(b) A lawyer shall not send a written communication to a prospective
client for the purpose of obtaining professional employment if the person
has made known to the lawyer a desire not to receive communications from
the lawyer.
RULE 1.2 SCOPE OF REPRESENTATION
(f) A lawyer shall not willfully purport to act as a lawyer for
any person without the authority of that person.
(CAPCHA: 'Sexual')
It's not about who's right and who's wrong.
It's about who has the better lawyers.
"Live Free or Die." Don't like it? Then keep out of the USA
You don't need to repeat the facts stated in the letter. I read it. I understood it. If accurate then the law firms have behaved despicably. However, he is suing them according to his letter. They are not suing him, according to the letter. They have filed an anti-SLAPP motion to make his suit more difficult, according to the letter, and if the letter's contents are accurate then that's a terrible misuse of anti-SLAPP provisions.
However, there is nothing in the letter that suggests that they have sued him. No matter how much it might be news if they were suing him, that simply isn't something that you can get out of that letter.
I think the /. post got that part wrong. I think they're trying to hold him responsible for their fees in his little suit against them telling them to take his name off the big suit, or perhaps for their fees in their own suit against him for failing to participate, but not for their fees in the big suit against Apple. (That'd be completely insane!)
http://www.dmlaws.com
Phone numbers
866.827.6537 Toll Free
614.224.6000 Local
614.224.6066 Fax
Address
The Arena District
401 North Front Street
Suite 350
Columbus, Ohio 43215
If you wait outside their offices, you might even be able to say "Hi" to them and have a conversation about the case.
What's that? You don't know what they look like? Sure you do.
David P. Meyer, principal
Marnie C. Lambert, Associate Attorney Possible home address Possible home phone: (614) 469-1400
Patrick G. Warner, Associate Attorney
Shelly J. Coffman, consumer claims investigator
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Sooo, October 19th his name became infamous, and hes only just releasing his letter? Somethings not quite right here....
Excellent Phoenix AZ Office Space - Thistle Landing
It's a rhetorical device where one says the opposite of what one means, for emphasis. Perhaps you should look it up, you may find it useful.
- None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton
Actually, it would be the Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio that would handle such a complaint. The ABA is a voluntary professional organization that has no such power over attorneys. (Although they are involved in drafting the Model Code of Professional Responsibility).
OSBA article explaining how to file a complaint against an Ohio attorney.
What?
From the article:
...
"Given the gravity of the situation I was facing, I had to hire a law firm to protect myself, clear my name and set the record straight"
"(DPMA HBSS) when contacted by my lawyers, did not even offer to correct any of their press releases. Not even an official apology was offered."
"Then (DPMA HBSS) each hired professional defense law firms to fight against me."
DEFENSE firms.... as in DEFENDANT not PLANTIF.
So, he sued them, they hired defense firms to fight his suit (Lawyers hire defense team? INCONCEIVABLE!). Their defense firms are making motions, digging & delaying (Defense lawyers play dirty? INCONCEIVABLE!). These motions could cost him thousands of dollars, stress, etc. etc. etc. (Lawsuits cost money and take time? INCONCEIVABLE!).
Do DPMA & HBSS sound like scumbags?
Yes.
Does the slashdot article title reflect the content or meaning of the linked site?
No. INCONCEIVABLE!
Is this guy an idiot if he thought suing a lawfirm would be free and stress-free?
He's been slandered enough by the scumbags, I'll leave it to you to answer for yourself.
You keep using that word, I do not think it means what you think it means.
But you forget that Apple sues their fans, it doesn't defend them.
Jason Tomczak is NOT the lead plantiff. He was listed as lead-plantiff when the complaint was originally filed on October 19th, 2005. ( documentation here: http://www.ifoapplestore.com/blog/nano_lawsuit.pdf )
But the lawyers amended their lawsuit 6 days later (October 25th, 2005) naming James M. Wimmer as the lead-plantiff ( documentation: http://www.hbsslaw.com/files/1ST_Amd_Complaint%20( v2)1130368932535.pdf )
But by the time Jason was dropped, the damage was done. He is referenced all over the 'net as a sue-happy whiner.
The lawyers are NOT suing Jason to stop him from dropping out. In fact, as best I can tell from Jason's letter, he is suing them for all the problems they caused him.
BTW: Its significant to note that this is the same law firm suing Apple over hearing-loss issues related to iPods.
Although I defend *against* class actions, this is almost certainly a highly deceptive account, incorrectly reported.
First, he is suing the plaintiffs' firms, not the other way around. His letter actually states this, but it's buried. That's the reason that he was deposed by malpractice defense firms. That's also standard procedure. If you sue someone, they may depose you and any law firm will hire a malpractice defense firm to do it. Depositions are invasive, but if you're subjected to one you'll have your own attorney to object to questions beyond their permissible scope. He doesn't mention it, but that attorney was sitting right beside him.
A firm does not need a written agreement to use a person as a lead plaintiff, but they won't do it without knowing *everything* about you. You have to want to be part of the case and want it *badly* for a class-action plaintiffs' firm to put you in that position. For two firms to have done so means that this person submitted to all sorts of pre-screening, interviews, and reference-checking. Notwithstanding the tactics he's now using, a class-action suit that loses its lead plaintiffs (or even whose lead plaintiffs don't hold up to scrutiny by the defense) surely will lose the case. Given how much money goes into these, it's simply not a chance that firms would take. 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.
If he never wanted to be a part of this suit? Why didn't he go public immediately? The plaintiffs' firms *can't* sue him under those circumstances, so he could tell his story with impunity.
A "demurrer" is a motion to dismiss, nothing more. He makes it sound like a counter-suit, but it isn't. He sued them; they moved to dismiss. Under those circumstances who wouldn't? And of course they want to block discovery during the pendency of their motion to dismiss. Discovery is expensive and damaging to a law firm. It's entirely proper for them to "pause" discovery until a judge rules on their motion to dismiss..
I could go on, but you get the idea. The man is lying through his teeth.
here it is
( v2)1130368932535.pdf
http://www.hbsslaw.com/ipod_nano_litigation
it is now an "amended" lawsuit.
details here
http://www.hbsslaw.com/files/1ST_Amd_Complaint%20
no mention of Jason.
they have a new plaintiff. how convenient!
All contracts - verbal or otherwise, require offer, acceptance and consideration. Under Australian law add reality of consent, capacity to contract and legality of object.
Offer and acceptance in verbal contracts are where the debate usually lies, but something of value needs to move between the parties - ie consideration. It doesn't need to be sufficient, but it needs to be. So if your Mum decides to give you her house, you need to buy it for a dollar to make to contract water tight.
Thus "I give you $8 and you give me that packet of cigarettes over there" is a contract, but "I'll wash your car on Saturday" is not.
I this case, I don't see the consideration. You may be able to argue that the lawyers have given him something, or at least the possibility of something. But if he hasn't given them anything, then there is no contract.
IANALBIDACLSIMMBA
(I am not a lawyer but I did a contract law subject in my MBA)
Norman Cook's Ode to Sl
He can represent himself and ask for the signed agreement for representation. When they cant produce, he asks the judge for a dismissal.
Honestly, not everything requires a lawyer, particularly a trivially idiotic matter like this. They cannot prove he agreed to be represented by him, the matter will barely win the laugh test of the judge.
Hell, my traffic lawyer had me sign a piece of paper and cut him a nominal fee saying he was representing me, that was in regards to a minor traffic accident (his fee was all of $150).
The phrase "more better" is acceptable English. suck it grammar Nazis