To make the counterclaim and answers easier to read, I have combined them into one document. MSI's statements are in this color, the answers to the counterclaim are in this color.

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UNITED STATES DISTRICT COURT

MIDDLESEX, ss. DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 98-12219-RGS

 

WILLIAM SILVERSTEIN, Plaintiff-Counterclaim Defendant

v.

MICROSYSTEMS SOFTWARE, INC., THE LEARNING COMPANY, INC.,
RICHARD GORGENS, DEBRA GORGENS, LARRY MASON,
Defendants-Counterclaim Plaintiff

 

COUNTERCLAIM

Count I - Libel

and PLAINTIFF'S ANSWER TO COUNTERCLAIM

1 Counter-plaintiff Microsystems Software, Inc. ("MSI") is a Massachusetts corporation with a place of business in Cambridge, Massachusetts.
1. Admitted.

2. Counter-plaintiff The Learning Company, Inc. ("TLC") is a Delaware corporation, with its usual place of business in Cambridge, Massachusetts.
2. Admitted.

3. Counter-defendant William Silverstein ("Silverstein") is a natural person who, on information and belief, currently resides in and is a citizen of Texas.
3. Admitted.

4. Silverstein was employed by MSI from March, 1993 until September, 1996 as a software engineer.
4. Admitted.

5. Silverstein was terminated from his employment by MSI for taking an unauthorized leave of absence.
5. Admitted that William Silverstein was terminated from his employment for taking a leave of absence from work, but otherwise denied.

6. TLC acquired the assets of MSI in 1997.
6. William Silverstein is without sufficient information as to the specific method of TLC's acquisition of MSI to admit or deny the allegations of paragraph 6, and calls upon the counter-plaintiffs for their proof.

7. Following his termination by MSI and continuing to the present, Silverstein has maintained an Internet website, previously entitled "Bill Silverstein's Home Page" and now entitled "Sorehands.com." Upon information and belief, Silverstein exclusively decides and controls the content of his website.
7. Admitted that during and for a period after his employment at MSI William Silverstein maintained an Internet website entitled "Bill Silverstein's Home Page" and otherwise denies the allegations of paragraph 7.

8. Via his website, Silverstein has made and published a number of false statements about MSI and TLC, including inter alia, that he was harassed at work by MSI's management because of his alleged handicap; that MSI, "owned by the The Learning Company," fired him because of his alleged medical condition; that MSI is using software which belongs to Silverstein; that MSI violated and refuses to comply with the Family and Medical Leave Act, the Americans With Disabilities Act, M.G.L. c.151B and other laws, that Microsystems "fires an employee who goes to the hospital for medical treatment," and that Microsystems refuses to accommodate injured employees.
8. Denied that William Silverstein's website contains false statements about the counter-plaintiffs.

9. Through the published statements about them contained in Silverstein's website, MSI and TLC have been exposed to public hatred, ridicule or contempt in a considerable and respectable class in the community. These statements have been made and published recklessly or with actual malice.
9. Denied.

10. By these statements, plaintiff has caused and continues to cause MSI and TLC damages.
10. William Silverstein is without knowledge or information sufficient to form a belief as to the allegations of paragraph 10.

First Defense

The Counterclaim fails to state a claim upon which relief may be granted.

Second Defense

The statements made on the website are true.

Third Defense

The statements on the website were not published recklessly.

Fourth Defense

The statements on the website were not published with malice.

Fifth Defense

In December 1996 and January 1997, William Silverstein wrote to counter-plaintiff MSI asking for identification of any factual inaccuracies on the website. The January 1997 message was acknowledged, but no inaccuracies were identified. Therefore counter-plaintiffs MSI and TLC (as TLC has stipulated that the two corporations are managed as one) may not bring this suit claiming to have been harmed two years later.

Sixth Defense

The counter-plaintiff TLC was aware of the website for over a year, but has never objected to any information published on the website. Therefore TLC may not bring this suit claiming to have been harmed a year later.

Seventh Defense

The information on the website is based on documents filed with the court or administrative agencies in the course of litigation. The counter-plaintiff has no less right to discuss and comment on those documents and the underlying controversy without being sued for defamation than has any other individual or entity,

Eight Defense

The counter-plaintiffs have failed to mitigate damages.

Ninth Defense

The counter-plaintiffs have not incurred any damages.

Tenth Defense

The counter-plaintiffs have filed this counterclaim in retaliation for William Silverstein's having exercised his rights under ch. 151B and c. 152 of the Massachusetts General Laws and the federal Family and Medical Leave Act, to intimidate him from exercising his rights, and thus constitutes a prohibited practice under those laws.



WHEREFORE William Silverstein requests that this Court:

Respectfully submitted,

WILLIAM SILVERSTEIN
By his attorney,

 

Philip R. Olenick
BBO No. 378605
101 Tremont Street -- Suite 801
Boston, Massachusetts 02108
(617) 357-5660

December 21, 1998