1. Even as worded, Proposed Massachusetts Rule of Evidence 408 states that "This rule does not require exclusion when the evidence is offered for another purpose . . . "--and the settlement demand here is being advanced as evidence of the reason for in bringing the libel claim, not as an admission about the merits of that claim.

The other cases cited by the defendants do not support the broad exclusion they seek. Anonik v. Ominsky, 261 Mass. 65 (1927) is the classic pattern: exclusion of an offer of settlement by a defendant to buy peace, with no other justification advanced for its use other than as an admission of liability on the original claim. Chase v. Chase, 271 Mass. 485, 491 (1930) excluded a letter between counsel which was not put before the reviewing court, while pointing out that in some cases things contained in settlement correspondence can be admissible as admissions of fact.

Hunt v. Rice, 25 Mass. App. Ct. 622 (1988) excluded a letter from counsel for a plaintiff who had won a competitive bidding for real property and was seeking specific performance, offering to meet a higher bid submitted later and improperly accepted. The sellers had sought to offer that letter from plaintiff's counsel as evidence of the defendants' intent. No improper conduct on the part of the plaintiff was suggested that would destroy privilege, nor is it clear how a letter from the plaintiff could serve as evidence of the defendants' intent.

LePage v. Bumila, 407 Mass. 163, 166 (1990) does not stand for the broad principle it is cited for by the defendants--after all, other cases do allow the use admissions of guilt in criminal cases as evidence in civil cases. See Department of Revenue v. W.Z. Jr., 412 Mass 718 (1992) and Aetna Casualty v. Niziolek, 395 Mass. 737 (1985). What LePage stands for is the principle that one should not be forced to appeal a small fine for a traffic violation to avoid that being used as an admission in a later case. It's hard to see how failure to appeal an adverse ruling can be taken to be an admission anyway. It is more likely that what was meant was that it should not become collateral estoppel, and one should not be forced to appeal to avoid that result.

The defendants' quote from Deisenroth v. Numonics Corporation, et al, 997 F. Supp. 153, 157 (D.Mass. 1998), ignores the rest of the paragraph from which it came--which makes it clear that no misrepresentation or inducement to delay was to be found in the disputed statements (a key dispute was about whether the statute of limitations should be tolled due to settlement negotiations)--and that if there had been, the result would have been different. The reference to c.93A related to the claim that the defendant had defrauded the plaintiff--not just delayed him from suing--by what was said in negotiations:

"The allegations that the assurances by Dumler and Seidman were themselves the basis for the 93A claim will not suffice as fraudulent misrepresentations. The most they agreed to do was "to bring this matter before the board of directors of Numonics." There is no allegation they did not do so or intentionally made false representations regarding settlement. In any event, "evidence of conduct or statements made in compromise negotiations" is inadmissible, except where negativing a contention of undue delay. Fed. R. Evid. 408. Exposing a party to Chapter 93A liability for statements made in failed settlement discussions would hardly further the public policy in favor of compromise and settlement of disputes. See Fed. R. Evid. 408 advisory committee's notes."

In fact, ¶ 3 of § 9 of chapter 93A makes a defendant's failure to make a reasonable offer to make a party whole, after notice and demand, a material consideration on multiple damages, suggesting that Deisenroth (which has not been cited by any subsequent reported state or federal decision) was not entirely correct on the point for which it was quoted by the defendants here: failed negotiations can form the basis for multiple damages under chapter 93A.

2. See Carroll v. Gillespie, 14 Mass.App.Ct. 12, 26 (1982), quoting Jones v. Brockton Pub Markets, Inc., 369 Mass. 387, 389 (1975) (discussed at length, infra), itself quoting from Quaranto v. Silverman, 345 Mass. 423, 426 (1963). See also Gabriel v. Borowy, 324 Mass. 231, 236 (1949).

The quote from Gabriel on page 9 of the defendants' motion is from Gabriel's discussion of the claim of malicious prosecution, not abuse of process--both were brought and dismissed, but for different reasons. Gabriel was an action brought by a tenant who had moved out rather than contest an eviction, on the basis that the landlord's eviction had not been to recover possession for its own use but to rent the property to others.

Gabriel struck down the abuse of process claim not for the reason the defendants quote, lack of a judgment in the prior action (which is a required element of malicious prosecution), but for failure to plead the use of process--Gabriel was decided before the 1974 adoption of the Massachusetts Rules of Civil Procedure--or even that its use constituted abuse. Possession of the premises is, after all, the relief an eviction action is designed to provide.

3. Fishman v. Brooks, 396 Mass. 643, 652 (1986).

4. Rzeznik v. Chief of Police of Southampton, 10 Mass. App. Ct. 335 (1980) allowed the use of time sequence to show retaliation. See also Oliver v. Digital Equipment Corp., 846 F.2d 103, 110 (1st Cir., 1990) ("A showing of [adverse action] soon after an employee engages in [protected activity] is indirect proof of a causal connection between the [adverse action] and the activity because it is strongly suggestive of retaliation."), Blackie v. Maine, 75 F.3d 716, 722 (1st Cir. 1996), Hazel v. U.S. Postmaster General, 7 F. 3d 1, 3 (1st Cir., 1993). and Ruffino v. State Street Bank & Trust Co., 908 F.Supp. 1019, 1044, 1046 (D. Mass. 1995).

5. See Bain v. Springfield, 424 Mass. 758, 760, 765-769 (1997), which upheld the right to recover punitive damages under chapter 151B for retaliation against an individual for having opposing discrimination by complaining of it publicly, even though her belief that she had been discriminated against was wrong. Federal law is in accord. See Sumner v. U.S. Postal Service, 899 F.2d 203, 209 (2nd Cir. 1990), which held "good faith" belief protected against retaliation. Section 8 of the EEOC Manual (attached) cites cases under all the federal statutes involved and notes that aiding or encouraging others to oppose discrimination is protected "opposition." (Silverstein's web site has become a resource to others embroiled in similar cases. See his attached affidavit and those of several who have read his site, some of whom have exercised self-censorship for fear of being sued for libel as he was.)

6. Their argument is supported by citation to cases on the independent tort of infliction of emotional distress, which misses the point entirely. That tort is so open-ended, containing no definition of what is prohibited, that courts have had no choice other than to limit its scope by speaking in terms of "extreme and outrageous" conduct, focusing on the actor's disregard of social norms. It is similar to the open-ended nature of chapter 93A, which has produced similar language designed to limit its reach, also by reference to the outrageousness of the conduct involved. Essentially, an showing of wrongful intent has been required by the courts so that otherwise permissible conduct would not be made the basis of liability.

Of course, claims of abuse of process and retaliation already contain the element of wrongful intent. Statutory retaliation claims require a showing of intent to interfere with or punish the exercise the exercise of rights protected under the statutes involved. Abuse of process claims require showing intent to obtain a benefit from the use of a lawsuit that is not among the intended forms of relief from that type of lawsuit. A finding of abuse of process or retaliation should supply the needed intent for infliction of emotional distress as well.

Just as there is no dispute by Silverstein that there is a privilege for settlement--which he shows above was exceeded--exactly the same applies to the defendants' appeal to the first amendment right of petition as a defense, which Silverstein says was also exceeded by their effort to coerce silence with their libel suit. By definition, an action that gives rise to a claim of abuse of process exceeds the protection of the first amendment right of petition, or the tort of abuse of process could not exist.

In fact, these defendants should be estopped from trying to use the first amendment as a shield against a claim that their actions were an attempt to use the courts to help them suppress Silverstein's own first amendment rights!

7. Federal courts have come to the same conclusion, finding retaliation in adverse actions against former employees ranging from the filing of a criminal complaint of forgery against a discrimination claimant, Berry, et al. v. Stevinson Chevrolet, et al., 74 F.3d 980, 986 (10th Cir. 1996), causing a former employee's customers to make complaints that the employer forwarded to the licensing body, Durham Life Ins. Co. v. Evans, 166 F.3d 139, 147, 157-158 (3rd Cir. 1999), seeking the revocation of a former employee's teaching license, Charlton v. Paramus Board of Education, 25 F.3d 194, 196-202 (3rd Cir. 1994), and distributing libellous flyers in former employees' neighborhood accusing them of being suspected prostitutes, child molesters, and/or drug users, EEOC v. Die Fliedermaus, L.L.C., 77 F. Supp. 2d 460, 464, 471-472 (S.D.N.Y. 1999). These federal cases reach this result even without the benefit of the "any person" language in c. 151B.

8. To state this last argument is to refute it--its obvious absurdity can be seen by the easy formula it lays out for avoiding liability for abuse of process: omit the claim that could give rise to a claim of abuse of process from the original complaint that you serve by process server, and then, once service has been made, immediately add it by filing and mailing an amended complaint!

The absurdity of this focus on the use of a process server is also made clear by Jones v. Brockton Public Market, 369 Mass. 387, 389 (1975), which took that focus to its illogical extreme. After rejecting an injunction as "process," Jones refused to accept the service of process of the action itself as the abused "process," saying that since the process server was used only for the purpose the law intended--to initiate a lawsuit--no claim of abuse of process was stated. That paragraph in Jones wasn't even supported by the case it cited for that principle, Noyes v. Shanahan, 325 Mass. 601, 605 (1950), which, like Gabriel v. Borrowy, supra, had held merely that abuse of process could not be found in using an eviction action to regain possession of the premises. Of course, if consistently followed, Jones' line of analysis would completely abolish the tort of abuse of process. (One could equally argue that an improper attachment was only used for its proper purpose, to prevent alienation of the defendant's property.)

Not surprisingly, that part of Jones has not been followed, and has, sub silentio, been reversed by Datacomm Interface, Inc. v. Computerworld, Inc. et al., 396 Mass. 760, 775 (1986). DCI cited and followed Jones in declining to treat an injunction as process, but immediately went on to allow the complaint to meet the requirement of process, even though Jones would have refused to. Of the nine cases in which the Supreme Judicial Court and Appeals Court have cited Jones since DCI, none have cited it for the proposition that service of the complaint can't count.

In any event, the "process" directed by the rules by which the defendant asserts jurisdiction over the plaintiff on a counterclaim is by serving the counterclaim in the answer, which did occur here. That the rules do not require the use of a deputy sheriff to deliver the answer does not deprive counterclaims of the effect of exerting jurisdiction over the plaintiff.

In Powers v. Leno, 24 Mass. App. Ct. 381 (1987), precisely this analysis was used to treat mailing of a copy of a zoning appeal--just as one would mail a copy of an answer and counterclaim--as being

"analogous to the "process" defined in Jones v. Brockton Pub. Mkts., Inc., 369 Mass. at 390" (24 Mass. App. Ct. at 383 n.6)

and thus as sufficient to support the element of "process" in a claim of abuse of process. (In fact, under § 17 of c. 40A, which that footnote cited as authorizing that procedure, that mailing is not called process but is stated as being "instead of the usual service of process" [emphasis added].)

9. The defendants' assertion of the defense of prior pending action is actually quite ironic here. The California Mattel lawsuit, from which a memorandum is enclosed here, was squarely vulnerable to exactly that charge:

Mattel was sued in Christian v. Mattel, Inc., et al., U.S. District Court for the Central District of California (Western Division) Civil Action Number 99-CV-2820 by Harry Christian, who was represented by attorney James Hicks and the law firm of Luce, Forward, Hamilton & Scripps, LLP, alleging that Mattel's "Barbie" doll infringed upon the copyrighted design of his "Claudine" doll. (See the January 5, 2000 opinion of Judge Nora M. Manella in that case, enclosed herewith for the description of that claim, and the enclosed certified copy of the docket in that case.)

Mattel counterclaimed in that action for trade libel and trade dress infringement under the Lanham Act, unfair competition under the Lanham Act and § 17200 of the California Business and Professional Code, and civil conspiracy to commit unfair competition. On January 6, 2000, Mattel obtained summary judgment against Harry Christian's claim against it, and also obtained an order for Rule 11 sanctions against attorney Hicks for bringing a frivolous lawsuit, set on June 12, 2000 at $501,656.00. (Ibid.)

On February 28, 2000, however, while Christian v. Mattel, Inc. was still pending in federal court (Mattel's counterclaims not having been dealt with yet), Mattel filed an action in California state court: Mattel v. Luce Forward, Hamilton and Scripps, LLP, James Hicks, Harry Christian, et al., Los Angeles County Superior Court Civil Action No. BC225556. A copy of that complaint is enclosed.

By that complaint, Mattel sued Mr. Christian and his attorneys for slander, trade libel under California law, false light, unfair competition under § 17200 of the California Business and Professional Code, and other claims. At the time that action was filed, the trade libel and unfair competition claims against Mr. Christian were still pending in federal court!

The overlapping claims against Harry Christian were not dismissed in federal court until almost half a year later, as the docket in the federal court action shows. The half million dollars in attorneys fees Rule 11 sanctions against James Hicks were still on appeal as of the January 17, 2001 federal court docket sheet.

In response to Mattel's state court lawsuit, James Hicks and Luce Forward filed S.L.A.P.P. motions to strike the Mattel's complaint, arguing that they had been entitled to talk about the lawsuit they were pursuing in federal court. Mattel, in the memorandum of law cited earlier, which it filed on June 30, 2000, opposed that motion, arguing that any privilege that might attach to a lawsuit was barred by it being meritless sham litigation--even though that point is still implicated by Mr. Hick's appeal from the Rule 11 sanctions.

10. A dismissal with prejudice of the libel counterclaim would be nice to have here, of course, as it could help give a second basis--upon which Silverstein is not presently relying--to defeat the claim of constitutional privilege for the libel counterclaim. After all, conduct giving rise to liability for malicious prosecution would have no more constitutional protection than conduct giving rise to liability for abuse of process!