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."

Comments

next up

[iocat]

a lawsuit for slashdotting his server. No posts and already dead.

Re:next up

[Anonymous Coward]

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

Re:next up

[phoenix.bam!]

The filed a lawsuit using his name as the lead defendent.
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.

Re:next up

[Anonymous Coward]

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.

Re:next up

[cfulmer]

First, Plaintiff's firms are very different from the general practice firms that you're thinking about. They are often the bottom-dwellers of the legal profession.

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

[Anonymous Coward]

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.

Re:next up

[damacus]

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

Re:next up

[Anonymous Coward]

Your points are well taken, and if I were to guess, I'd guess this scene was incorrectly described. But I'm not convinced of Mr. Tomczak's dishonesty.

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.

Re:next up

[Ath]

i don't believe him

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

[Cramer]

... this is almost certainly a highly deceptive account, incorrectly reported. ...

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.

Re:next up

[Max Threshold]

You readily admit you're some type of lawyer, but you expect us to believe your speculation over the testimony of an actual human being? Riiiiight...

Re:next up

[imdx80]

...and its using a old typewriter style font, that makes it appear much more official and serious...

Re:next up

[CptNerd]

just because the guy writes a letter and tells everyone that he didn't have an agreement / etc. with these lawyers, doesn't make it true, right? this is just his account. it's not proof of anything.

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:next up

[rgravina]

Second, the California Bar ...

Is that the one with the nougat centre covered in peanuts and chocolate?

Re:next up

[Ath]

Meyer's a member of the Ohio Bar, which does not yet require signed agreements in every case. (BTW, IAAL too, and actually in Ohio. I'm not sure why you think the California bar gets to regulate his ethics; at worst, they disallow him from practicing pro hac vice and report him to the Ohio Bar).

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

[sgtrock]

Then you've clearly been very lucky in life. Slimeballs who will lie to you and about you, and take every advantage of you that they can do exist. Unfortunately, they tend to gravitate to professions that allow them to do this where they hold all the cards.

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?

Sing Sing?

[dotslashdot]

If they lose, do they go Sing Sing?

Re:IANAL...

[Intron]

Verbal contracts are binding, and who wouldn't trust the word of a lawyer?

Steve Berman...

[Starxxon]

Steve Berman from Hagens Berman Sobol Shapiro was one of the lawyers handling the nano suit. He's one of Microsoft's favorite lawyer, having defending MS in more than 50 class-action suits made by the states and consumers.

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!

We have a word for this:

[Paladin144]

Clusterfuck.

This poor guy. I hope things turn out okay for him. Conversely, I hope the lawyers are eaten alive by a cauldron full of insane, demonic, snow-weasels. Or another group of lawyers. Whichever is more painful.

Re:We have a word for this:

[Anonymous Coward]

Dear Paladin144, I have recently received notice of your threatening other lawyers. I quote, "I hope the lawyers are eaten alive by a cauldron full of insane, demonic, snow-weasels. Or another group of lawyers. Whichever is more painful.". I warn you, under Section 37B of the attacks and counterattacks act of 1957, it states that "all threats against lawyers is a crime against the state, and..." oh hello, little weasel. You do seem cold today. What's that you want? You want sdffj gdfgjdfg AAAAH my face aaah it's trying to eat my face aaaah actuallythatwasquitenice AAAAAAHHH

Re:We have a word for this:

[kfg]

I hope the lawyers are eaten alive by a cauldron full of insane, demonic, snow-weasels.

Why bring Canadian lawyers into it?

KFG

What I do not understand...

[SuperKendall]

If he is listed as the lead plantif, why can he not simply ask for the case to be dropped OR dismiss the law firm handling it? People persuing lawsuits seek other legal counsil all the time.

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:What I do not understand...

[RingDev]

I would assume that if he took any action regarding the case it would show his intent to be involved in the case and would give the law firm grounds to demand payment from him.

-Rick

Re:What I do not understand...

[abelenky17]

Sadly, the slashdot article is misleading, if not wrong.

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.

slimiest lawyers I've heard of in a while

[ummit]

Presuming we can believe Jason's letter, these guys are mondo scumbags. The "anti-SLAPP" suit they filed is normally intended to protect "little guys" who are being legally harrassed by big companies. In filing one against him, they're implying that he's harrassing them. Lovely.

Re:IANAL...

[rovingeyes]

Verbal contracts are binding...

NOT TRUE. If it were, lot of men would be married to lot of women.

this is why...

[Yahweh Doesn't Exist]

>...is likely to still loses thousands of dollars under the best scenario ...a loser-pays court system is the only reasonable way, like in the UK.

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:this is why...

[EvanED]

"a loser-pays court system is the only reasonable way"

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:this is why...

[jazman]

Why do people always seem to assume that "loser pays" is implemented in the most retarded way possible: loser pays all costs incurred by winner regardless of personal ability and winner's invention? In the UK the loser pays, but the judge decides what the loser pays. If you sue Microsoft and lose, and they claim their lawyer cost them a googolplex pounds and you've got a sub-poverty income, the judge will order you to pay a minimal amount, court costs perhaps; the amount will be appropriately punitive. You will *NOT* be reduced to permanent debt to the winner.

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.

Fanboy danger

[Tx]

My fiancee and I were afraid to go outside in our own home town for fear of recognition and reprisal.

I'm scared of many things, but raging hordes of Nano fanboys fanatics? I think not.

Seriously though, this guy played it all wrong. It sounds like if he pulls out, the case is sunk, so he should've been like "What's my cut?". If the case is won, those lawyers would made a stack, I'm pretty certain a deal could have been struck.

Re:Fanboy danger

[doublem]

The problem is, as things stand now, if they lose the lawsuit, which is likely, this poor guy would be on the hook for all the legal fees concocted by the lawyers.

In other words, he'd end up selling everything he owns and spending the rest of his life in debt if Apple wins the lawsuit.

Re:Fanboy danger

[Syrrh]

Asking for a cut is dangerous. That would certainly be considered a volunteering to take charge on the case. It would also tie him to the anchor if they lose the case, his 'cut' would be paying the same percentage of their expenses. Lawyers don't work based on the risk of winning or losing, they'll still get paid either way.

Re:IANAL...

[Chirs]

Actually, in many places verbal contracts *are* binding, as long as they meet certain criteria. See the following for some details.

http://www.onlinelawyersource.com/contract/verbal. html

Anyone else asked the lawyers for clarification?

[Anonymous Coward]

I read his letter yesterday and thought t might be worth writing about. I emailed every contact address I could find on the sites of both law companies, unfortunately I haven't gotten a reply.

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:IANAL...

[AuMatar]

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.

Re:IANAL...

[agibbs]

As a law student I can categorically say that you are wrong. With only a very few exceptions (sale of land for example) verbal contracts are just as binding as written ones. The only issue is an evidentiary one of proving that the oral contract existed, which can sometimes be a bit difficult.

Profit

[Anonymous Coward]

1. File class action lawsuit without plaintiff's permission.
2. Sue plaintiff.
3. Profit

Re:The only solution that makes sense

[linefeed0]

I would think disbarment is quite possible here. The fact that their lawyers started asking him unrelated personal questions in a deposition, blatantly fishing for dirt, is quite possibly a criminal offense (harassment and abuse of process).

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.

Contact the ABA

[ChefAndCoder]

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.

Re:Full text of Open Letter

[Kaenneth]

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')

Either Or ...

[dbretton]

Either he is not telling the entire truth here, or these attorneys are out of their minds. I don't see any middle ground here.

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.

Re:Either Or ...

[Peyna]

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.

Re:The only solution that makes sense

[cpt kangarooski]

Oh, we have an oath. They vary from jurisdiction to jurisdiction, of course. I practice in Massachusetts, so the oath I took is as follows:

I (repeat the name) solemnly swear that I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any false, groundless, or unlawful suit, or give aid or consent to the same; I will delay no man for lucre or malice; but I will conduct myself in the office of an attorney within the courts according to the best of my knowledge and discretion, and with all good fidelity as well to the courts as my clients. So help me God.

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.

You might be right but....

[EmbeddedJanitor]

that won't stop the lawyers from trying to harrass him into joining or supporting their case. Not all lawyers rate the same on the scum-bag-o-meter. IMHO Class action suiters are the worst (patent trollers a close second). Patent trollers work in a similar way. A company might be legally OK to be using some ficticious IP, but often it is easier to pay off the trollers then get your products held up pending a court hearing.

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.

Re:wow

[ShibaInu]

Bottom line, when you call a lawyer, be very careful what you say. If you mention a public company and potential for class action, they will run with it.

It's not about "right"

[doublem]

It's not about who's right and who's wrong.

It's about who has the better lawyers.

Re:How is this even plausible?

[ummit]

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!)

This can't happen...

[Anonymous Coward]

Hagens Berman Sobol Shapiro LLP works hard to prevent this kind of fraud. Look:
http://www.hbsslaw.com/report_a_fraud.jsp

Why you dirty commie!

[spun]

What, don't you believe in the free market? We have the best justice system money can buy! I bet you just want to drag everyone down to the same level. Hah! If I have tons of money, that proves I am a better person and more deserving of justice. Damn commies with your "justice should be blind" crap. If I wanted justice to be blind, I would have hired someone to poke her eyes out.

Re:Why you dirty commie!

[Anonymous Coward]

It sure must be nice not having any sense of humor what so ever.

Shouldn't he go throught different channels

[91degrees]

Defending in court would seem rather foolish considering these guys know how to play the system extremely well. However, surely it should be possible to make a complaint to the bar organisation or something. these guys have clearly acted in a somewhat unscrupulous way. The professional body should be told.

It's not about making the case

[doublem]

Since lawyers are involved, I must first state that the following is my opinion, and is not to be considered authoritative in any way shape or form.

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:It's not about making the case

[Just Some Guy]

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.

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.

Re:wow

[loraksus]

What are these people doing???
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.

Apple should get involved

[_spider_]

Maybe Apple should move to strike the class-action lawsuit, since it seems to *only* benefit the lawyers. I think they were hoping he would jump onboard and sign anything they threw at him saying he would get a lot of money back from the class action suit (like $0.01 for every dollar they got in reality). But when he didn't go with it, they are going after him since it leaves them out there with their pants down.

I think Apple should help this guy beat the lawyers, and get the C. A. suit dismissed. Probably be cheaper for them anyway. Give this guy some ammo to fight back, as, its in their best interest.

Thats what I think..

-Me

Contact the STATE Bar (was Re:Contact the ABA)

[McNally]

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.

Not a terrible idea but.. the American Bar Association is largely a legal-profession advocacy group and doesn't have much of anything to do with licensing or with punishing unethical behavior. For that you'd want to contact the appropriate department of the state bar association for the state in which the case was filed.

Contact info for David P. Meyer & Associates

[loraksus]

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

If you think this is outrageous

[Anonymous Coward]

David P. Meyer & Associates and Hagens Berman Sobol Shapiro have also announced their intention to represent defendant Jason Tomczak in the case of David P. Meyer & Associates and Hagens Berman Sobol Shapiro v. Tomczak. In the case the defendant declines this unilateral offer, the offices of David P. Meyer & Associates and Hagens Berman Sobol Shapiro intend to double sue Mr. Tomczak for declining to accept their offer of defense against their suit.

It's called "sarcasm"

[spun]

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.

Re:The only solution that makes sense

[Osty]

but if justice does not prevail, I'd consider that "harm" to society as a whole

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".)

IANAL

[OYAHHH]

But,

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!

Pic of said lawyer

[SoCalChris]

How could you not trust a lawyer that looks like this?

Re:IANAL...

[ichigo 2.0]

Maybe they should ask the NSA for transcripts of their phone conversations?

Re:No! Lawyers aren't suing him, he's suing them!

[cinnamoninja]

I don't know anything other than what's been posted here, but it's pretty clear that he filed a lawsuit. Here, you can read the letter reposted in this comment:

http://apple.slashdot.org/comments.pl?sid=186589&c id=15397568

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.

[DragonWriter]

"Defense firms" does not mean that they were sued. When someone hires a lawyer and the lawyer contacts you to complain about something you've done, that's a red flag warning that you are likely to be sued. People that can afford to that think legal action is likely or even possible often preemptively hire appropriate counsel (for example, as I recall, President Bush hired a personal criminal defense attorney very early in the Plame leak investigation -- this doesn't mean criminal charges had been filed against him.)

And "defense law firms" are not incapable of preemptively suing, either.

Re:I'd like to say I can't believe this...

[ScrewMaster]

Actually, the whole human race has a history of the big guy lording it over the little guy. Beating the shit out of the little guy ... slicing him, dicing him, and pounding him into the ground. Now, you can say that "we have a history in this country ..." but remember that America's legal system was expressly set up to limit that kind of behavior, and it worked damn well for a long time. Truly, from that perspective life was better here that it ever was in most other nations. Unfortunately, that system is breaking down, and it's the lawyers that are bloody well making it happen.

Re:wow

[Anonymous Coward]

They're just being lawyers.

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

[innocent_white_lamb]

you are innocent until the jury hands you a guilty verdict. No ifs, ands, or buts.
 
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:IANAL...

[Mateito]

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)

Odd choice ...

[kitzilla]

... filing suit against the first law firm. He could have cleared his name by going to the state bar. To collect legal fees from this guy, the lawyers would have need to prove a contractual relationship existed. No paper? Good luck with that. THEN it would be time to petition the Court to remedy a rather glaring abuse of process. Judges hate that sort of thing.

No he wont lose anything

[Tweekster]

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).

Re:MOD PARENT UP

[Neoncow]

You know, when I read the article summary, the first thing that came to my mind was "When you have a hammer, everything looks like a nail." Clearly, lawyers have a better chance of winning when suing. So obviously when something goes wrong, you find someone you can blame it on, sue them, and you've made a bit of money and some publicity. Problem solved.

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.

URGENT - CAREFUL NOW

[Hootenanny]

To those who are posting home contact information of the attorneys involved in their case, and to those who are interested in contacting those attorneys:

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:http://www.hbsslaw.com/report_a_fraud.jsp

[Magic5Ball]

Great idea! Let's Katamari as many different lawyers into this as possible and let it loose into space.

That is quite a "unique" viewpoint

[@madeus]

I find it interesting that you take so hostile a tone against the plaintiff, and that you attempt to portray irrelevant details as him hiding information or attempting to be deceitful. It appeared like neither to me as I assumed them (perhaps I don't need things to be spelt out as clearly for me though and I'm just able to read between the lines).

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).