WILLIAM SILVERSTEIN,  COUNTERCLAIM-DEFENDANT (Plaintiff )

v. 

MICROSYSTEMS SOFTWARE, INC.,  and THE LEARNING COMPANY, INC.,  Defendants  (Counterclaim-Plaintiffs). 

OPPOSITION TO COUNTERCLAIM- (Counterclaim-Defendant),   PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

Counterclaim-Plaintiffs Microsystems Software, Inc. ("MSI") and The Learning Company, Inc. ⁽¹⁾ ("TLC") submit this memorandum in opposition to Counterclaim-Defendant's Motion for Summary Judgment.

MSI and TLC refer to and incorporate herein by reference Counterclaim-Defendant's "Statement of Material Facts as to Which there is No Genuine Issue to Be Tried" and Counterclaim-Plaintiffs' Response thereto.

In order to defeat Silverstein's motion for summary judgment, MSI and TLC only must demonstrate that there is a single dispute of material fact as to each element of their claim or, if there is no issue, that as a matter of law, Silverstein is not entitled to judgment. The elements of a defamation claim are: (1) the plaintiff was exposed to public hatred, ridicule or contempt in a considerable and respectable class in the community; (2) through publication of statements which are of and concerning the plaintiff; and (3) which are false. See McAvoy v. Shufrin, 401 Mass. 593, 597 (1988). ⁽²⁾ There is no dispute that Silverstein published on his Web Site statements of and concerning MSI and TLC. Silverstein Brief, p. 2.

I. The Statements are Defamatory.

That the statements at issue are defamatory -- in that they exposed MSI and TLC to public hatred, ridicule or contempt -- is self-evident. See 37 Joseph R. Nolan and Laurie J. Sartorio, Massachusetts Practice, § 118 (1989). Assertions that a company mistreats its employees by failing to accommodate employees' medical conditions and/or by firing employees who go to the hospital for treatment by definition expose that company to scorn. The defamatory nature of the statements at issue is underscored by the substance of responses Silverstein received to the Web Site, indicating that receipt of the statements caused some readers of them to adopt a negative view of the companies. See Exhibit K to Counterclaim-Plaintiff's Response to Counterclaim-Defendant's "Statement of Material Facts as to Which there is No Genuine Issue to Be Tried" ("Response to Facts"), Doc. 1011 ("It's about time someone speaks out about what these companies are really like, how they work you like dogs and when you are of no longer use to them, you are thrown out like an old piece of meat."); Doc. 1803 ("I definitely think you were screwed by MSI."); Doc. 1782 ("Kik [sic] their ass!"); Doc. 1801 ("I think they retaliated for larger reasons. Yes; the accommodation [sic] were a factor; but they appear to be an integral part of the more egregious behaviors of retaliation on their part."); Doc. 1801 ("MSI is guilty of theft of software licenses; discrimination against disabled employees; and being just plain mean"); Doc. 1802 ("It's apparent that they did not want someone defective working for them; how would they give hiring preference?"); Doc. 1802 ("As long as that co. continues to profit from his misfortune; other companies will follow suit."); Doc. 1803 ("It's obvious that they lied from their answers and their documents."); Doc. 1786 ("Bill, I owe you all sorts of responses -- and a call or two to Mattel and the Learning Company.").

One respondent went so far as to communicate directly with TLC about Silverstein's Web Site:

Your actions and mind set border on the criminal. How dare you demand his papers! He is not a criminal. You are violating several of his . . . Constitutional Rights. . . I applaud Mr. Silverstein's stand against you, and decry you for yours. This man was injured at work, and is entitled to just compensation, which you have denied him to this intolerable point. Your conduct is reprehensible. I am supporting him as well as I am able, and ask that you do the honorable thing, and give him and all others that you have treated so shabbily -- the pay and benefits to which they are entitled.

Id., Doc. 1067-1068 (emphasis added). The vehemently negative reactions of these individuals leave little room for doubt that the disparaging statements have exposed MSI and TLC to public hatred, ridicule or contempt. 

II. There is Evidence to Support a Finding that the Statements are False.

As set forth in Counterclaim-Plaintiffs' Response to Facts, there is evidence to support a factfinder's conclusion that the statements at issue are false. ⁽³⁾ See Response to Facts, ¶¶ 17, 76, and supporting exhibits. MSI had a policy that prohibited unauthorized leaves of absence. Silverstein was aware of the policy. When Silverstein asked for a leave of absence allegedly to obtain acupuncture in China, MSI managers told him that he could take the leave once the product on which Silverstein had been working was released. MSI managers also told Silverstein in no uncertain terms that if he took the leave without authorization, he would be fired. Silverstein knew full well that MSI fired him for taking an unauthorized leave in accordance with MSI's policy. Thus, there is evidence to support the contention that Silverstein's statement that MSI fires employees who go to the hospital for medical treatment is false.

Moreover, MSI and TLC have submitted record evidence demonstrating that MSI's efforts to accommodate Silverstein's alleged handicap were extensive, thus creating a material dispute of fact as to the truth of Silverstein's statement that MSI "refuses to accommodate injured employee." Id. He admits that MSI provided him with an ergonomic keyboard and chair, and allowed him to take significant time off to receive treatment from massage therapists, doctors and acupuncturists. He even rejected MSI's offer to provide him with voice recognition software.

The evidence of the lengths to which MSI went to accommodate Silverstein's alleged condition raises a dispute of material fact as to whether his statement that MSI refuses to accommodate injured workers is false.

Finally, the Court should ignore Silverstein's argument that the Rule 68 judgment entered for him precludes a finding here that the statements on his Web Site are false. See Silverstein Brief, pp. 5-7. The Court already rejected this argument on September 22, 1999, when it denied Silverstein's "Emergency Motion for Declaration that Further Discovery is Moot, Due to the Entry of Judgment in the Case." During that hearing, Counterclaim-Plaintiffs pointed out that on its face, Massachusetts Rule of Civil Procedure 68 permits only defendants to make offers of judgment. See Mass. R. Civ. P. 68 ("a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him. . . .") (emphasis added). Moreover, Silverstein cites no authority for the proposition that a defendant's offer of judgment automatically disposes of any corresponding counterclaim that may rest upon the same or similar facts. This tired argument should be put to rest.

III. There is Evidence to Support the Damages Claim.

There is a genuine dispute about whether MSI and TLC have suffered damage to their reputations as a result of Silverstein's libelous statements. Corporations have "reputation[s] which may be affected adversely and a publication which tends to prejudice it . . . is appropriate matter for actionable defamation." 37 Nolan and Sartorio, Massachusetts Practice, § 121 (1989). A number of individuals have responded to the Web Site with comments indicating that their opinions of MSI and TLC have diminished as a result of Silverstein's statements. See Response to Facts, ¶ 77 and Exhibit K, Doc. 1011 ("It's about time someone speaks out about what these companies are really like, how they work you like dogs and when you are of no longer use to them, you are thrown out like an old piece of meat."); Doc. 1782 ("Kik [sic] their ass!"); Doc. 1801 ("MSI is guilty of theft of software licenses; discrimination against disabled employees; and being just plain mean"); Doc. 1803 ("I definitely think you were screwed by MSI."); Doc. 1803 ("It's obvious that they lied from their answers and their documents."). See also p. 3, supra. Indeed, Silverstein admits that "the [Web Site] responses show . . . that many of the respondents felt that [MSI and TLC] should be punished with punitive damage awards." See Silverstein Brief, p. 10. MSI and TLC are not required at this stage to prove actual injury, which includes reputational harm. See Lakian v. Globe Newspaper Co., 399 Mass. 379, 382-84 (1987). It is enough that there is evidence that raises a dispute about whether Silverstein's statements have caused any damage to MSI's and TLC's reputations. The voluminous electronic communications Silverstein received in response to his Web Site cast doubt on his claims that MSI's and TLC's reputations have not been harmed.

IV. Silverstein's Hypotheses About MSI's and TLC's Intentions are Improper.

Silverstein offers a number of theories about why Counterclaim-Plaintiffs are pursuing their counterclaim against Silverstein: to prevent him from executing on the Rule 68 judgment, to punish him for exercising his rights, and to end-run around the rule that injunctions cannot be issued in defamation cases. See Silverstein Brief, pp. 10-12. The Court should ignore these baseless arguments. As an initial matter, the Court recorded the judgment as satisfied on October 14, 1999. Further, these random hypotheses have nothing to do with whether Silverstein's statements have defamed MSI and TLC. Finally, the only evidence Silverstein offers to support his remaining arguments is Counterclaim-Plaintiffs' proposed settlement agreement to dispose of the counterclaim. Yet, statements relating to settlement negotiations are inadmissible as evidence. See Enga v. Sparks, 315 Mass. 120, 124 (1943); Green v. City of Everett, 179 Mass. 147, 152 (1901). In any event, the proposed agreement undercuts Silverstein's argument: MSI and TLC tried to settle the counterclaim, Silverstein refused. If anyone has kept the counterclaim alive, it is Silverstein himself.

Respectfully submitted,

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

______________________________

Michael L. Rosen, BBO# 559954
Tracey E. Spruce, BBO# 638124
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, MA 02109

Dated: October 26, 1999 
(617) 832-1000