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COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, ss. SUPERIOR COURT
CIVIL ACTION
NO. 00-3893
WILLIAM SILVERSTEIN,  Plaintiff)
v.)

MICROSYSTEMS SOFTWARE, INC.,
THE LEARNING COMPANY, INC., and
MATTEL, INC., defendants

)
)
)


AMENDED COMPLAINT
Jury Trial Demanded

Pursuant to Massachusetts Rule of Civil Procedure 15(a), the plaintiff hereby amends his Complaint as a matter of course, prior to the service of a responsive pleading, as to read follows:


1. The plaintiff, William Silverstein, is a natural person residing at #### ##### ####, Austin, Travis County, Texas.

2. On information and belief, defendant Microsystems Software, Inc ("MSI") is a Massachusetts Corporation, with a usual place of business at 1900 West Park Drive, Suite 180, Westborough, MA 01581.

3. On information and belief, defendant The Learning Company, Inc ("TLC") is a Delaware Corporation, with its usual place of business in Cambridge, Massachusetts.

4. Upon information and belief, TLC acquired all of the stock of MSI subsequent to the plaintiff's firing by MSI and prior to September of 1998.

5. Upon information and belief, defendant Mattel, Inc. ("Mattel") is a Delaware corporation with its world headquarters and principal place of business in El Segundo, California, which is registered to do business in the Commonwealth of Massachusetts.

6. Upon information and belief, Mattel acquired the stock of TLC and merged TLC's operations into its own subsequent to September of 1998 and prior to August 31, 1999.

7. On information and belief, TLC is no longer treated as a separate corporation by Mattel but merely as a division of Mattel.

8. Upon information and belief, TLC is often referred to by Mattel as "Mattel Interactive."

9. In 1996, the plaintiff's employment with MSI was terminated when he took time off from work to obtain medical treatment.

10. During the time that Silverstein took off, Silverstein did receive medical treatment for his tendinitis at a hospital.

11. At the time that MSI terminated the plaintiff, his salary was $48,400 per year.

12. As a result of MSI's termination of the plaintiff, the plaintiff was unemployed for 7 months and 2 days.

13. Plaintiff has detailed his medical and employment situation on his world wide web site since he was terminated by MSI.

14. This website was located at http://www.mrbill.com and is currently located at http://www.sorehands.com.

15. In response to the plaintiff's discussing his complaints on his World Wide Web site, he received a letter from MSI's President, Richard Gorgens, in December of 1996 that demanded that he remove unspecified defamatory materials from his web site.

16. The plaintiff sent an e-mail to Mr. Gorgens on January 4, 1997, asking what part of he was saying was factually incorrect.

17. The plaintiff did not receive a response until he re-sent that e-mail on January 10, 1997, asking whether it had been received, to which Mr. Gorgens responded simply that he had received the e-mail.

18. No explanation of what was untrue or defamatory was included in Mr. Gorgens' response, and no further communication was received from MSI on the subject until after the plaintiff filed a lawsuit alleging discrimination and retaliation against him in September of 1998.

19. One function of the plaintiff's web site was to inform others of their rights and to encourage employees assert their rights under the Americans with Disabilities Act, MGL c.151B, their Workers' Compensation laws, and the Family and Medical Leave Act.

20. One function of the plaintiff's web site was to warn employers of the dangers of ignoring the injuries and rights of their employees.

21. One function of the plaintiff's web site was to encourage workers to promptly treat their RSIs and to warn workers of the danger of delaying treatment of RSIs.

22. In response to his web site, the plaintiff received messages from people who said that they had felt encouraged in pursuing their own claims of handicap discrimination as a result of reading his web site.

23. In response to his web site, the plaintiff received a message from one employer who said:

"Very interesting and informative web site. Good luck with the case. I'm going to go back to work (at a small college) and make sure I do everything to accommadate [sic] a lady who is having RSI."

24. One function of the plaintiff's web site was to gather information and opinions on the plaintiff's case in preparation for trial.

25. Plaintiff solicited and received feedback from readers of the website. 93% of the readers of whom made an average award to the plaintiff of $45,824,832.31 in punitive damages and $2,741,071.46 for pain and suffering.

26. On September 24, 1998 the plaintiff filed a lawsuit in Middlesex Superior Court against MSI, TLC, and individuals who were managers of MSI.

27. That complaint included allegations made on the website, including that the defendants violated MGL c.151B, the FMLA, and MGL c.152.

28. The plaintiff's 1998 Complaint included allegations of refusing to accommodate for a disability, increased scrutiny because of the plaintiff's disability, and harassment because of the disability. Those same allegations were posted on the website.

29. Under chapter 151B, the plaintiff filed a charge with the Massachusetts Commission Against Discrimination ("MCAD") before filing his 1998 complaint in court.

30. That charge was investigated by the MCAD before the plaintiff filed in Court.

31. The MCAD investigator issued a report that found that the plaintiff was a "Complainant is a qualified handicap [sic] who is afflicted with tendinitis."

32. The MCAD investigator's report stated that "the case is leaning towards a probable cause finding."

33. The plaintiff believed that the MSI and TLC had violated the Americans with Disabilities Act, MGL c.151B, the Family and Medical Leave Act, and the workers compensation laws.

34. The plaintiff had a reasonable belief that the MSI and TLC had violated the Americans with Disabilities Act, MGL c.151B, the Family and Medical Leave Act, and the workers compensation laws.

35. In response to the plaintiff's 1998 Middlesex Superior Court Complaint, MSI and TLC asserted a counterclaim for libel, claiming that they had been libeled by the plaintiff on his web site.

36. The parties engaged in discovery, including document requests, interrogatories, and numerous depositions.

37. The plaintiff posted many of the court filings and related documents on the website.

38. Included in the court filings posted by the plaintiff were responses and oppositions by the defendants in that case.

39. The plaintiff removed the home addresses of the individuals from the court filings prior to posting these filings on his website.

40. The plaintiff received no request or direction from the defendants to remove those home addresses from the court filings before posting them on his website.

41. The plaintiff did not publish confidential information on his website.

42. The plaintiff did not publish sworn deposition testimony of the defendants that they might have found embarrassing.

43. The plaintiff did not publish documents produced in discovery that the defendants might have found embarrassing.

44. MSI and TLC failed to produce any evidence showing any damage to the defendants caused by plaintiff's website.

45. Silverstein served discovery requests on the defendants that contained the following introductory provision:

"The plaintiff understands that the information he seeks with respect to individuals is sensitive, and he hereby agrees that he will keep confidential the names, addresses, telephone numbers and social security numbers of the individuals contained in those records, and will not use or refer to them other than in the course of discovery, in settlement discussions, or in the course of litigation of this lawsuit, such as motion practice, trial, or appeal. In the event any litigation documents are published by the plaintiff, such as on his website, that put such confidential information before a court, all such confidential information will be removed from the documents before publication by the plaintiff."

46. Despite Silverstein's pledge to protect the confidentiality of individuals, the defendants refused to produce numerous records that would have shown the validity of the Silverstein's claims unless he agreed not to discuss anything about what he learned on his website, by the following provisions in its demanded agreement:

"Any party producing or giving Discovery Materials may in good faith designate any such materials or portions thereof as being subject to the provisions of this Stipulation and Order by means of a stamp or other designation on the documents of the word "Confidential"."

"Any person receiving Discovery Materials designated "Confidential" shall not reveal or discuss such materials to or with any person who is not entitled to disclosure of such materials under paragraph "2" hereof."

47. After extensive discovery conducted by the plaintiff and all defendants, all of the defendants, including MSI and the TLC division of Mattel, served the plaintiff on August 31, 1999 with an Offer of Judgment [page 2] under Rule 68 of the Massachusetts Rules of Civil Procedure.

48. That Offer of Judgment offered to "allow judgment to be entered against them in the above-captioned case in favor of the plaintiff" for $125,000 plus such prejudgment interest as the Court might add.

49. On September 1, 1999 the plaintiff accepted the Offer of Judgment.

50. On September 13, 1999, pursuant to that offer and acceptance, Middlesex Superior Court entered judgment "against the defendants in the above-captioned case in favor of the plaintiff" for $125,000 plus prejudgment interest.

51. Commencing with the receipt of notice of the September 13, 1999 entry of judgment, plaintiff's counsel made several requests of counsel to MSI and the TLC division of Mattel for agreement that the September 13, 1999 judgment concluded that lawsuit, and that outstanding discovery need not be responded to.

52. On September 17, 1999, the plaintiff notified the MCAD of the resolution of that charge by judgment in Middlesex Superior Court, directing it to close its file on that charge under  9 of chapter 151B.

53. On September 20, 1999 MSI and the TLC division of Mattel, by their counsel, Foley Hoag and Eliot, responded to the plaintiff's counsel's requests for agreement that the lawsuit was over by sending the plaintiff's counsel a draft settlement agreement with respect to the libel counterclaim that required the plaintiff to agree to confidentiality.

54. The demanded confidentiality agreement--if it had been agreed to--would have prohibited the plaintiff from speaking about the case, speaking negatively of MSI, TLC or Mattel, or about the employment practices of MSI, TLC or Mattel, punishable by a penalty of $50,000 each time.

55. The plaintiff's counsel responded to counsel to MSI and the TLC division of Mattel that it was inappropriate to demand a monetary penalty clause of the plaintiff.

56. On September 21, 1999 counsel to MSI and the TLC division of Mattel sent a fax regarding the demanded confidentiality agreement. This fax included an admission that plaintiff "honestly believed" what he published, in the course of justifying the need for what that fax admitted was a "penalty" provision.

57. After receiving that settlement demand from MSI and TLC, the plaintiff on or about October 4, 1999, served a motion for summary judgment against the libel counterclaim.

58. In that motion for summary judgment, the plaintiff argued that the counterclaim had no merit, but was instead a form of retaliation for the plaintiff's having asserted claims under the Workers' Compensation law, chapter 151B, and the Family and Medical Leave Act by imposing on him the cost of defending that claim.

59. The plaintiff also argued that the counterclaim was being used by MSI and TLC as a form of leverage to coerce the plaintiff into agreeing to confidentiality if he wished to avoid the cost of litigating their groundless claim, and in order to obtain prompt payment of the judgment the defendants had already agreed to.

60. On October 13, 1999, the defendants paid the plaintiff $140,874.80 to satisfy the judgment in that lawsuit.

61. At the hearing on the plaintiff's motion for summary judgment, when the judge asked counsel to MSI and the TLC division of Mattel what the plaintiff had published that was defamatory, their attorney responded by quoting the statement that the plaintiff had been fired when he went to the hospital for medical treatment from the text of the counterclaim but then announced their intention to dismiss the libel counterclaim to let the parties "get on with their lives."

62. MSI and the TLC division were subsequently permitted to dismiss their libel counterclaim "without prejudice" (which would allow them to start it again later, and to use the threat of doing so as leverage over the plaintiff) over the objection of the plaintiff to the dismissal's not being "with prejudice," which would have ended it once and for all.

63. The propriety of the "without prejudice" nature of the dismissal is currently under appeal by the plaintiff.

64. Plaintiff attended the Mattel stockholder meeting on June 7, 2000.

65. Plaintiff distributed out flyers criticizing the defendants' filing and continuing a libel action against the plaintiff.

66. While Plaintiff distributed these flyers, Bob Simon read one of the flyers.

67. Upon information and belief Bob Simon is an employee of Mattel working in security.

68. Simon then removed plaintiff from the meeting room telling plaintiff "this is a meeting only for stockholders."

69. Plaintiff informed Simon that he was a stockholder.

70. Plaintiff was permitted to return to the meeting room only after producing documents to confirm that he was stockholder, producing photographic identification and having his personal belongings searched.

71. Plaintiff was monitored by Mattel security during the meeting.

72. Upon information and belief, Michelle Stephen is an employee of Mattel in their shareholders' relation department.

73. Plaintiff was informed by Michelle Stephen that the shareholders' meeting is open to the public.

74. Upon information and belief persons that were not shareholders of Mattel attended the meeting.

75. The plaintiff has and continues to sustain harm including emotional stress, physical stress, lost salary, travel expenses, research expenses, and legal expenses in litigating the libel counterclaim.

Count I
Workers Compensation - Retaliation
Massachusetts General Laws Chapter 152,  75B

76. The facts set forth above are hereby incorporated in full with the same force and effect as if they had been individually realleged herein.

77. The plaintiff brought a claim for benefits against MSI under c.152 that was resolved by a lump-sum settlement signed by MSI's Chief Executive Officer, Richard Gorgens.

78. The plaintiff complained in his initial lawsuit and publicly on his website that MSI and TLC violated MGL c. 152.

79. The facts set forth state claims against all of the defendants under  75B of chapter 152 of the General Laws.

Count II
Retaliation
Massachusetts General Laws Chapter 151B 4

80. The facts set forth above are hereby incorporated in full with the same force and effect as if they had been individually realleged herein.

81. The plaintiff complained in his initial lawsuit and publicly on his website that the defendants violated MGL c. 151B.

82. The plaintiff brought a charge of retaliation under the MGL c.151B for complaining of handicap discrimination by filing their libel counterclaim before the Massachusetts Commission Against Discrimination ("MCAD") against all respondents within thirty days of his learning their true purpose for bringing that libel counterclaim.

83. The purpose of that libel counterclaim was to intimidate the plaintiff into being silent about the defendants' violations of the MGL c.151B, to prevent the plaintiff from speaking out against the defendants, and to prevent the plaintiff from discussing the defendants' employment practices.

84. More than 90 days have passed since the plaintiff brought his charge of retaliation for complaining of handicap discrimination before the MCAD.

85. The MCAD has made no decision about the merits of the plaintiff's charge of retaliation.

86. The plaintiff hereby, pursuant to  9 of chapter 151B, removes his charge of retaliation from MCAD by complaining of those violations in this action against all of the defendants.

Count III
Retaliation
Family and Medical Leave Act - 29 U.S.C.  2601 et seq.

87. The facts set forth above are hereby incorporated in full with the same force and effect as if they had been individually realleged herein.

88. On information and belief, defendant MSI has been engaged in commerce or in an industry or activity affecting commence since 1995, within the meaning of 2611 of Title 29 of the United States Code.

89. On information and belief, during calendar year 1995, defendant MSI had an employment relationship with 50 or more individuals for each working day during 20 or more calendar workweeks, within the meaning of 2611 of Title 29 of the United States Code.

90. On information and belief, during calendar year 1995, MSI had an employment relationship with 50 or more individuals within 75 miles of the worksite at which it employed the plaintiff, within the meaning of 2611 of Title 29 of the United States Code.

91. On information and belief, during calendar year 1996, defendant MSI had an employment relationship with 50 or more individuals for each working day during 20 or more calendar workweeks, within the meaning of 2611 of Title 29 of the United States Code.

92. On information and belief, during calendar year 1996, MSI had an employment relationship with 50 or more individuals within 75 miles of the worksite at which it employed the plaintiff, within the meaning of 2611 of Title 29 of the United States Code.

93. On information and belief, during calendar year 1997, defendant MSI had an employment relationship with 50 or more individuals for each working day during 20 or more calendar workweeks, within the meaning of 2611 of Title 29 of the United States Code.

94. On information and belief, during calendar year 1997, MSI had an employment relationship with 50 or more individuals within 75 miles of the worksite at which it employed the plaintiff, within the meaning of 2611 of Title 29 of the United States Code.

95. On information and belief, during calendar year 1998, defendant MSI had an employment relationship with 50 or more individuals for each working day during 20 or more calendar workweeks, within the meaning of 2611 of Title 29 of the United States Code.

96. On information and belief, during calendar year 1998, MSI had an employment relationship with 50 or more individuals within 75 miles of the worksite at which it had previously employed the plaintiff, within the meaning of 2611 of Title 29 of the United States Code.

97. On information and belief, during calendar year 1999, defendant MSI had an employment relationship with 50 or more individuals for each working day during 20 or more calendar workweeks, within the meaning of 2611 of Title 29 of the United States Code.

98. On information and belief, during calendar year 1999, MSI had an employment relationship with 50 or more individuals within 75 miles of the worksite at which it had previously employed the plaintiff, within the meaning of 2611 of Title 29 of the United States Code.

99. On information and belief, defendant TLC has been engaged in commerce or in an industry or activity affecting commence since 1997, within the meaning of 2611 of Title 29 of the United States Code.

100. On information and belief, during calendar year 1997 and through the present, defendant TLC had an employment relationship with 50 or more individuals for each working day during 20 or more calendar workweeks, within the meaning of 2611 of Title 29 of the United States Code.

101. On information and belief, defendant TLC is a successor in interest to defendant MSI, within the meaning of 2611 of Title 29 of the United States Code.

102. On information and belief, defendant Mattel has been engaged in commerce or in an industry or activity affecting commence since 1997, within the meaning of 2611 of Title 29 of the United States Code.

103. On information and belief, during calendar year 1997 and through the present, defendant Mattel had an employment relationship with 50 or more individuals for each working day during 20 or more calendar workweeks, within the meaning of 2611 of Title 29 of the United States Code.

104. On information and belief, defendant Mattel is a successor in interest to defendant TLC within the meaning of 2611 of Title 29 of the United States Code.

105. The facts alleged set forth a claim under  2617 of Title 29 of the United States Code for intentional violation of  2615(b) of Title 29 of the United States Code by MSI and the TLC division of Mattel for discriminating against the plaintiff by filing a countersuit due to his having:

(a) complained publicly via his website that MSI, then later that TLC and Mattel violated his rights under the FMLA and

(b) filed a lawsuit against MSI and TLC for violations of the FMLA.

106. This Court has jurisdiction to hear these claims under the provisions of  2617 of Title 29 of the United States Code.

107. This count embodies the same cause of action as the other counts of this Complaint, as they arise out of a common nucleus of operative fact and are designed to provide redress for the same wrongful actions.

108. Count I of this Complaint, arising under Massachusetts' Workers Compensation statute, chapter 152, is not removable to federal court under the express terms of  1445(c) of Title 28 of the United States Code.

109. As this Count embodies the same cause of action as Count I, this case may not be removed to federal court with Count I, nor may it be severed from Count I and Count I remanded under  1441(c) of Title 28 of the United States Code as Count I is not "separate and independent" from the other counts but constitutes a single cause of action with the other counts that may not be split between different courts without the consent of all parties, consent to which is hereby expressly withheld.

Count IV
Retaliation
American with Disabilities Act.

110. The facts set forth above are hereby incorporated in full with the same force and effect as if they had been individually realleged herein.

111. On information and belief, defendant MSI has been engaged in commerce or in an industry or activity affecting commence since 1995, within the meaning of 12111 of Title 42 of the United States Code.

112. On information and belief, during calendar year 1995, defendant MSI had an employment relationship with 15 or more individuals for each working day during 20 or more calendar workweeks, within the meaning of 12111 of Title 42 of the United States Code.

113. On information and belief, during calendar year 1996, defendant MSI had an employment relationship with 15 or more individuals for each working day during 20 or more calendar workweeks, within the meaning of 12111 of Title 42 of the United States Code.

114. On information and belief, during calendar year 1997, defendant MSI had an employment relationship with 15 or more individuals for each working day during 20 or more calendar workweeks, within the meaning of 12111 of Title 42 of the United States Code.

115. On information and belief, during calendar year 1998, defendant MSI had an employment relationship with 15 or more individuals for each working day during 20 or more calendar workweeks, within the meaning of 12111 of Title 42 of the United States Code.

116. On information and belief, during calendar year 1999, defendant MSI had an employment relationship with 15 or more individuals for each working day during 20 or more calendar workweeks, within the meaning of 12111 of Title 42 of the United States Code.

117. On information and belief, defendant TLC has been engaged in commerce or in an industry or activity affecting commence since 1997, within the meaning of 12111 of Title 42 of the United States Code.

118. On information and belief, during calendar year 1997, defendant TLC had an employment relationship with 15 or more individuals for each working day during 20 or more calendar workweeks, within the meaning of 12111 of Title 42 of the United States Code.

119. On information and belief, during calendar year 1998, defendant TLC had an employment relationship with 15 or more individuals for each working day during 20 or more calendar workweeks, within the meaning of 12111 of Title 42 of the United States Code.

120. On information and belief, during calendar year 1999, defendant TLC had an employment relationship with 15 or more individuals for each working day during 20 or more calendar workweeks, within the meaning of 12111 of Title 42 of the United States Code.

121. On information and belief, defendant TLC is a successor in interest to defendant MSI, within the meaning of 12111 of Title 42 of the United States Code.

122. On information and belief, defendant Mattel has been engaged in commerce or in an industry or activity affecting commence since 1997, within the meaning of 12111 of Title 42 of the United States Code.

123. On information and belief, during calendar year 1997, defendant Mattel had an employment relationship with 15 or more individuals for each working day during 20 or more calendar workweeks, within the meaning of 12111 of Title 42 of the United States Code.

124. On information and belief, during calendar year 1998, defendant Mattel had an employment relationship with 15 or more individuals for each working day during 20 or more calendar workweeks, within the meaning of 12111 of Title 42 of the United States Code.

125. On information and belief, during calendar year 1999, defendant Mattel had an employment relationship with 15 or more individuals for each working day during 20 or more calendar workweeks, within the meaning of 12111 of Title 42 of the United States Code.

126. On information and belief, defendant Mattel is a successor in interest to defendant TLC within the meaning of 12111 of Title 42 of the United States Code.

127. The facts alleged set forth a claim under  12117 of Title 42 of the United States Code for intentional violation of  12203(b) of Title 42 of the United States Code by MSI and the TLC division of Mattel by filing and continuing a countersuit against him due to his having:

(a) complained publicly via his website that MSI, then later that TLC and Mattel violated his rights under the Americans with Disabilities Act ("ADA") and

(b) filed a lawsuit against MSI and TLC for violations of chapter 151B, a Massachusetts law which provides protection for acts that also violate the ADA.

128. Silverstein filed charges with complaint with the Massachusetts Commission Against Discrimination and the Equal Employment Opportunity Commission ("EEOC") about the events covered by this Count.

129. The EEOC issued Silverstein a "Right to Sue" letter on May 24, 2000.

130. This count embodies the same cause of action as the other counts of this Complaint, as they arise out of a common nucleus of operative fact and are designed to provide redress for the same wrongful actions.

131. Count I of this Complaint, arising under Massachusetts' Workers Compensation statute, chapter 152, is not removable to federal court under the express terms of  1445(c) of Title 28 of the United States Code.

132. As this Count embodies the same cause of action as Count I, this case may not be removed to federal court with Count I, nor may it be severed from Count I and Count I remanded under  1441(c) of Title 28 of the United States Code as Count I is not "separate and independent" from the other counts but constitutes a single cause of action with the other counts that may not be split between different courts without the consent of all parties, consent to which is hereby expressly withheld.

Count V
Abuse of Process

133. The facts set forth above are hereby incorporated in full with the same force and effect as if they had been individually realleged herein.

134. The actions of the defendants set forth above state a claim for abuse of process by bringing and continuing a libel claim against the plaintiff for the purpose of coercing him into silence about matters the defendants did not want him to speak about, a form of relief neither available nor constitutionally allowable under libel law, pursuant to Near v. Minnesota, 283 U.S. 697 (1931), which declared unconstitutional such prior restraint on free speech, and limited defamation actions to the provision of compensatory damages.

Prayers for Relief

WHEREFORE, the plaintiff prays that this Court advance this case in every way on the docket and grant a speedy trial and, as a result of said trial, he prays and demands that he be awarded his greatest total available recovery after determination of his rights to each of the following, under any of the counts in this complaint:

(1) His actual damages as a result of the bringing and continuing of the libel counterclaim, including but not limited to all expenses he has or will incur litigating that counterclaim, including attorneys fees and costs, travel to Massachusetts in that connection, lost income for time spent in that connection, and compensation for the ordinary and usual emotional distress occasioned by having to defend against that claim.

(2) his reasonable attorney's fees and costs for the prosecution of this action protection of his rights.

(3) Any and all other relief that the Court deems just and appropriate in this matter.

Jury Demand

The plaintiff demands a trial by jury on all issues herein which may be tried by right of jury and an advisory jury on all factual issues material to claims not triable by right by a jury, pursuant to Massachusetts Rule of Civil Procedure 39(c).

Respectfully submitted,


WILLIAM SILVERSTEIN