COMPLAINANT'S OPPOSITION TO
RESPONDENTS' MOTION FOR SANCTIONS

Hearing Requested

After numerous dilatory and frivolous tactics, from failing to respond to William Silverstein's charge—or even make written request for more time to do so—within the time allotted by the Commission's rules, to filing a frivolous motion for a more definite statement, to appearing for the investigatory conference without making the required investigation beforehand, Microsystems Software, Inc., The Learning Company, Inc., and Mattel, Inc. (hereinafter, for convenience, "Mattel") now ask the Commission to sanction Silverstein for two things: (1) having asked the Commission to enforce its procedural rules against them (requests the Commission has never ruled upon) and (2) having removed his charge to Superior Court in complete compliance with § 9 of chapter 151B of the General Laws.

Mattel's motion is completely unjustifiable and should be rejected out of hand.

1. Turning to the first asserted basis for Mattel's request for sanctions, Silverstein's prior requests for sanctions against Mattel, in order to make them the basis for sanctions against Silverstein, they would first have to be considered on their merits and not only denied but found not to have been supportable by any good faith argument. Oral argument is requested in connection with those motions.

Putting it as succinctly as possible, Silverstein's motions were not only supportable by a good faith argument but were absolutely correct on their merits under the Commission's rules. If, in order to rule on Mattel's motion for sanctions, Silverstein's motions are now ruled upon, they should succeed on their merits. If they are now denied, such denials could only be made on the basis of giving Mattel a break in the exercise of discretion—as the respondents did indeed clearly violate the Commission's rules. On no stretch of the imagination can one say that Silverstein's motions were directed to violations that had not occurred and that no good faith argument could be made to say that they had. Thus, Mattel's demand for sanctions itself cannot have been made in good faith. Indeed, its only apparent purpose, since the case is not even before the Commission any more, is to harass William Silverstein.

One point that Silverstein submits in connection with any consideration of his motions for sanctions—if forced as a part of evaluating Mattel's current motion—is that Mattel's current motion was served together with a Superior Court Motion More Definite Statement—one of the very same dilatory tactics that it used here. (A copy of the text of that motion is attached hereto as Exhibit 1.)

When William Silverstein did respond, under protest, to a request from the investigator here for more definite statement, Mattel did find itself able to file a Position Statement in response.

Now that the case is in Superior Court, the counsel to Mattel who wrote that Position Statement is, once again, complaining of inability to figure out what the complaint is about. William Silverstein submits that Mattel's repetition in Superior Court of its claim of inability to understand the basis of his charge is strong evidence that its claim of incomprehension here was also a pose—as Silverstein has said all along.

2. The claimed precipitating event for Mattel's current motion for sanctions here was Silverstein's prosecuting of his action in Middlesex Superior Court.

The relevant part of the second paragraph of § 9 of chapter 151B says:

"Any person claiming to be aggrieved by a practice made unlawful under this chapter or under chapter one hundred and fifty-one C, or by any other unlawful practice within the jurisdiction of the commission, may, at the expiration of ninety days after the filing of a complaint with the commission, or sooner if a commissioner assents in writing, but not later than three years after the alleged unlawful practice occurred, bring a civil action for damages or injunctive relief or both in the superior or probate court for the county in which the alleged unlawful practice occurred or in the housing court within whose district the alleged unlawful practice occurred if the unlawful practice involves residential housing. The petitioner shall notify the commission of the filing of the action, and any complaint before the commission shall then be dismissed without prejudice, and the petitioner shall be barred from subsequently bringing a complaint on the same matter before the commission. . . . " [emphasis added]

The statutory procedure is clear: after filing with the Commission, one can wait 90 days, file in Court, and notify the Commission that one has done so. Only if one wants to go to Court sooner than 90 days must one ask the Commission's permission--and then merely for not waiting the normal 90 days.

As specified in Mattel's motion for sanctions, William Silverstein filed this charge with the Commission on September 27, 1999 and filed in Middlesex Superior Court on August 22, 2000. He thus waited 330 days (over three times as long as required) before going to court. No permission was needed from the Commission, under the express wording of § 9 of chapter 151B.

In the face of this clear statutory procedure, Mattel cast about for some basis for criticizing Silverstein's having filed in court. It seized upon 804 C.M.R. 1.15(2)(b). But that provision--even as selectively quoted from by Mattel--does not require that a complainant get permission from the Commission to go to court.

"(b) After a complaint has been pending before the Commission for 90 days Complainant may file, with the Commissioner having charge of the matter, notice of Complainant's intent to file a complaint pursuant to M.G.L. c. 151B, § 9, along with a request that the Commission not initiate a complaint pursuant to 804 CMR 1.10(1) and 804 CMR 1.11, upon withdrawal, upon the same subject matter, against Respondent. The Commission retains discretion to grant or deny such a request, as the interests of justice demand."

[Italics flag the portion omitted by Mattel. ⁽¹⁾]

This is not a requirement of seeking permission before filing in court--as Mattel seeks to suggest. All that 804 C.M.R. 1.15(2)(b) provides is that a complainant "may" (not must) ask that the Commission not initiate a complaint on its own upon the same subject matter. (As a matter of fact, Silverstein's October 20, 2000 notification to the Commission that he had filed in court included a request that beyond closing its file on his charge and dismissing it without prejudice the Commission "take no further action." (See Exhibit 2.))

Mattel's suggestion that a complainant must wait until the Commission makes up its mind about whether to file its own agency charge before the complainant is allowed to file in court is both without any warrant in the language of the Commission's regulations and would be squarely contrary to chapter 151B's express statutory authority for a complainant to go directly to court after 90 days have elapsed without seeking permission. Since the Commission would not be able to impose any such requirement even if it tried, no such requirement may be implied into a regulation that does not even try to do so--no can such an argument be advanced in good faith.

From its absurd choice of phraseology--"William Silverstein ("Silverstein") without permission has attempted to file a Superior Court action" [emphasis added] ⁽²⁾--to its wilful misreading of the Commission's regulations to create a conflict with the express provisions of its enabling statute, to its demand for sanctions against Silverstein for his bringing justifiable requests that the Commission enforce its own regulations against dilatory conduct, Mattel's current motion for sanctions is frivolous on its face and totally abusive.

Unlike Silverstein's motions, however, Mattel's current motion cannot have been advanced in good faith but was clearly submitted solely to harass him. It is, in fact, a form of retaliation for his having filed his Superior Court action, which is unquestionably a protected act under chapter 151B. The bringing of the current motion for sanctions should subject Mattel itself--and its attorney--to sanctions.

Five hours were expended by Silverstein's attorney (whose hourly rate is $200) in preparation of this opposition to Mattel's motion for sanctions, including review of the challenged motions, legal research, and writing--$1,000 in legal expenses associated with this opposition to this point, not including postage and other expenses. ⁽³⁾