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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
Verbal contracts are binding, and who wouldn't trust the word of a lawyer?
Intron: the portion of DNA which expresses nothing useful.
>...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.
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
1. File class action lawsuit without plaintiff's permission.
2. Sue plaintiff.
3. Profit
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')
I hope the lawyers are eaten alive by a cauldron full of insane, demonic, snow-weasels.
Why bring Canadian lawyers into it?
KFG
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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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.
Dewey, what part of this looks like authorities should be involved?
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.
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.
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.
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