Time-line

(From filing of the lawsuit to dismissal of countersuit)

To start of time-lineTo start of Round 1To 1999On to Round ThreeTo Latest
September 24, 1998Suit filed against Microsystems Software and the Learning Company. Amended complaint filed October 5, 1998. The complaint interspliced with the defendant's answers is easier to read.
October 30, 1998Microsystems Software and The Learning Company removed to federal court.  They were warned that this case is not removable. Their item 4 actually makes the entire case un-removable. See paragraphs 151 to 153 of the complaint 
Defendants Notice of Removal: [page 1] [page 2]

Apparently, MSI's lawyer is afraid to have the case heard in state court, where the judges are more familiar with the state worker compensation and state discrimination laws than the federal judges.

November 18, 1998Filed motion to remand.
December 4, 1998MSI's lawyer, Rosen, filed an opposition to the Plaintiff's motion to remand. Rosen argues that 1367 allows removal unless there is a statute prohibiting removal. He ignores that 1445(c) is a statute.  He also argues that violating the workers compensation laws (MGL c152 75A, 75B)  is not a violation of the workers compensation laws.
December 8, 1998MSI and The Learning company filed an answer, after only two months.
December 8, 1998MSI and The Learning Company entered a counterclaim of libel. It's likely that they wanted to intimidate me, or that they forget that truth is the ultimate defense to libel. They might have forgotten that in December 1996,  I had asked MSI that if there was anything factually incorrect,  and if so  please inform me as to what it is so that I may make the changes.
December 21, 1998Plaintiff's Answer to the Counterclaim filed.
January 25, 1999US District Court Judge granted plaintiff's motion to remand. The case is now back in state court where is should have stayed!
March 1, 1999PC Week wrote an article that mentions this lawsuit.
March 8, 1999Massachusetts Lawyers Weekly published an article featuring this lawsuit.
March 28, 1999Boston Globe article about this case. The article contains one mistake, the cap on damages is under federal law, not state law. Under federal law the future and punitive damages are limited to $300,000. Under state law, which my case is brought under, there is no such limit. In the article, Michael Rosen is quoted, "What Mr. Silverstein is asserting is just one side of the story.'' Rosen seems to forget that on this website their own side, in form of their answers to the complaint, is posted.  Rosen had the chance to tell the reporter their side of the story, but refused to do so.
April 12, 1999Plaintiff discovery document request served on the defendants. One would hope that they might be forthcoming with what they are legally required to provide. We will see in 30 days.
April 15, 1999Defendant's discovery requests served to the plaintiff. Their request is invasive, but I will comply as legally required.
May 7, 1999Shareholders approve merger of Mattel and The Learning Company.
May 10, 1999Defendant objects to all discovery. Most of the documents that were requested are needed because of their responses to the complaint. I thought that they might be forthcoming, but I was mistaken. They are forcing me to compel the documents that they are required to provide.
May 10, 1999Who are they trying to kid?  The defendants claim that the documents that they relied upon in answer to the complaint are not relevant. They claim different versions of their WebPages announcing the release date are "proprietary and confidential business information." They also make the same claim as to stockholder communications. Shades of insider trading? (insider trading would require not only confidential information being given to people, but trades based on that information).
May 10, 1999The defendants claim that the documents that evidence their countersuit are " vague, overbroad and unduly burdensome." This goes to show that there are no facts that support their claim, and that they only did this to harass and intimidate.
May 13, 1999The Learning Company is merged into Mattel.
May 21, 1999CNet wrote an article on the counter-claim.
May 24, 1999The defense was provided with some of the legal theories and arguments. This way, they will know how deep of a hole that they are in.
June 3, 1999Phil, my attorney, and I went to the Foley, Hoag, and Elliot offices to inspect the documents that they have produced.  The refused to provided most of the documents that had been requested. They wanted us to agree not to use any information or present it to a jury, without an order from a judge. We had already agreed to not make public names, social security numbers or other personal information.
June 4, 1999First day of deposition. The defendants had two attorneys and a summer intern there against myself and Phil, my attorney. Rosen asked some questions that I refused to answer. At first I was a little nervous, but relaxed as the day went on. Rosen repeatedly made references to the fact that I was checking dates on my Palm V. I explained to Rosen, since I did not have a printed calendar, I could check days of the weeks on my Pilot. Winneg, one of the the defendants' attorneys had a Palm Professional.  We did find some minor date errors in some of the documents. They questioned me on my work after I was fired and before I was hired. The only relevance is towards the mitigation of damages that the defendants stated "Plaintiff has failed to mitigate his damages." The plaintiff  have already provided defendants with over 130 documents showing attempts at mitigating damages.
June 7, 1999Second day of the deposition.  The defendants had three attorneys present along with the same summer intern. The defendants continued with some of the time period after my employment with MSI. They also covered some of the time period of the employment. They forced me to talk about some of the dirt and the threats that were made. They genuinely appeared shocked the behavior of the MSI management. They stopped at about 5:00pm and want me to fly up again for another half day. Phil and I were willing to keep going, but they did not want to.
June 7, 1999Rosen produced a document from Debra Gorgens that said that a software engineer only use the keyboard 20% of the time. My response was that it was a bald-faced lie, or that she had no idea of what she was talking about.  Rosen could not seem to understand that when operating a computer, you need to use a keyboard and that you use a keyboard and look at the screen at the same time. I tried to explain it to Rosen by using an analogy of driving a car, "when looking out the windshield, does that mean that you don't operate the vehicle?" I even provided Rosen with a copy of their own job posting that said that typing and using the computer for extended periods were physical requirements.
June 22, 1999The defendants still demand the survey responses. The defendants have not provided any  evidence of any damages from the statements on this website. How can they claim damages, when they have not produced any evidence that they were harmed? The defendants ask me to show if  they were harmed, since they have not experienced any harm themselves. Since they have shown no damages, they must now realize that their counter-suit is clearly frivolous and now using it as an excuse for a fishing expedition.
June 22, 1999The Supreme Court decided  Kolstad v American Dental Association. This helps my case. The court decided that to receive punitive damages the plaintiff only needs to "show malice or reckless indifference to federally protected rights"...."That the employer's conduct need not be independently egregious."
July 6, 1999CaLANdar is a dead product! Now how can the defendants claim that the version notes and the bug reports of a dead product be of any harm? Since they are not selling the product, how can this impact the sales of a product that they are not selling? How will information regarding the release dates of a dead product harm them? How will comments about a dead product harm them? How will the bug reports of a dead product harm them? How can they claim, while keeping a straight face, that the release dates of this dead product are confidential when release date information has already been disclosed to customers?
July 16, 1999Defendants serve a motion to compel discovery on the plaintiff.
July 26, 1999Had one more day of deposition. It's interesting to note that Michael Rosen was the only lawyer for the defense there? Maybe Winneg did not want to hear any more about what happened at Microsystems Software?
July 30, 1999All the obligations that TLC had towards Silverstein, extend to Mattel. In a memo from Rosen, the defendants admit that Mattel and The Learning Company ("TLC") are the same entity. This is significant in that calculating punitive damages, the wealth of Mattel is now the measure. Mattel has more resources and that it would take more to "sting" Mattel, than TLC.
August 2, 1999Dick Gorgens, ex-CEO of MSI, was deposed today. Among things admitted are that:
  • Silverstein was a very good engineer.
  • That Silverstein would not have been fired if he had not left for medical treatment.
  • That Silverstein did do technical support at MSI.
  • That MSI has terminated people for dishonesty. MSI fired one person who was at a bar, when he claimed to be working.
  • That an employee, other than Silverstein, did not provide medical documentation nor was fired for being out of the office due to a non-work related illness.
August 3, 1999The defendants deposed Dr. Joanne Borg-Stein.  She mostly testified to Silverstein's medical records, that she had with her. She did not remember, prior to departure, that Silverstein was going to take the time off. She did not recall any mention of Dr. Gordin treating Silverstein. Dr. Borg-Stein did not doubt the symptoms that Silverstein reported.
August 4, 1999Larry Mason was deposed today. He was very careful in his responses and not especially forthcoming.  He claimed that Silverstein was a poor performer, which is contradicted by Dick Gorgen's testimony of two days ago. Mason stated that the 10% raise that he had given Silverstein on Silverstein's annual review was a minimal raise. Mason admitted to actions that constituted retaliation because Silverstein requested accommodations. Retaliation for exercising rights is a separate violation of law than the violation of the rights requested. This means, that even if the defendants were found not to have discriminated against Silverstein, the defendants can be found to have retaliated against Silverstein based on Mason's admissions.
August 8, 1999Debra Gorgens was deposed today. She admitted that she and Dick has been to Hong Kong before Silverstein and was aware of the travel time. Debra has testified that she and Dick took two days to travel each way. This establishes that the defendants knew it was impossible for Silverstein to return. Debra stated that Silverstein's 10% raise was a "decent raise" for the department that Mason supervised. This contradicts Mason's statement that 10% is a minimal raise.  Who is telling the truth?
August 10, 1999Dr. Donald McKay was deposed today.  He thoroughly explained Silverstein's condition to the defendants. Dr. McKay provided a diagram so that the defendants may understand the seriousness of the problem. One thing McKay explained to the defendants, that most of the doctors were looking at the restricted supination (turning) of the wrist as part of the problem. This was not the problem and had nothing to do with the problem. Dr. McKay also explained that the time I spent at the computer, even without typing, worsened my condition. This renders Deb Gorgen's ridiculous contention a non-sequitor.
August 10, 1999Michael Rosen admitted that they did not have the medical records from China translated.  He had stated that they had no reason to doubt the translation that Silverstein provided to them.
August 10, 1999The plaintiff responded to the opposition to the motion to compel and served a cross-motion to compel.
August 20, 1999Rosen provided some answers to the supplemental interrogatories.

This stated that they were not covered by the FMLA when I first notified them of the time off. MSI remains silent regarding the time Silverstein made written request of time off, or when Silverstein took the time off, or when Silverstein was fired. MSI has admitted to being covered when Silverstein asked to be reinstated. They also MSI advertising for and hiring another engineer, that was not more qualified than Silverstein, to work on CaLANdar.

August 31, 1999The defendants made a rule 68 offer (page 2) for $125,000. This is when a defendant makes an offer, that if the plaintiff wins, but not more than the offer, the court will reduce the award amount by the defendants' attorney fees. Once accepted, this is entered as a judgment against the defendants. The defendants state that "this is an offer for settlement...", not an admission.  One does not pay out $125,000 if they did nothing wrong!
September 1, 1999Reed Lewis, chief engineer at MSI/TLC/Mattel, was deposed today. Reed's testimony contradicted parts of Mason's and Dicks's testimony. Reed further stated that Silverstein was not more likely to introduce bugs into CaLANdar than himself. Reed did testify that, "I believe that any engineer working on any code can cause problems in other parts of the code." This is even more true with the spaghetti code that composed CaLANdar.
September 1, 1999Silverstein accepted this offer. This offer and acceptance does not mean that Silverstein has to keep quiet. The defendants fail to recognize that this judgment ends their counterclaim. There is more to come.

The lawsuit may be settled, but the case is far from over!

September 9, 1999Rosen offered to drop the countersuit in exchange for a confidentiality agreement.  I understand their desire to keep this case and the depositions away from the public. The defendants don't want the public to know the extent of their wrongdoing and their hypocrisy.
September 13, 1999Judgment against the defendants entered in the court.
September 20, 1999Tracey Spruce sends Mattel's settlement offer. It's more like blackmail! If  I don't take down most of this site, Mattel will litigate. If I agree, I won't be able to talk about the case, Mattel, or Mattel's employment practice, or have to pay a $50,000/blab fine to Mattel.
September 21, 1999Tracey Spruce, Mattel's counsel, sends a fax to Silverstein's counsel that admits that Silverstein honestly believes what he publishes.
September 27, 1999Filed a new complaint with the Massachusetts Commission against Discrimination (MCAD) against Mattel, The Learning Company, and Microsystems Software for retaliation. They filed their countersuit only because Silverstein publicly complained (here, on this site) about their violations under the anti-discrimination laws (MGL c.151b and the ADA). They were warned, but they failed to heed Silverstein's warning.

Vulcans do not bluff.

October 4, 1999Served the summary judgment motion against the counterclaim on the defendants. Both Silverstein and his attorney spent a couple of "all-nighters" to get this done.
October 8, 1999In-house counsel for TLC assured us that the check is being sent today via Federal Express. This check is for the amount of $140,691.71.
October 12, 1999We were informed the check arrived at Foley Hoag & Elliot (the defendants' local law firm), but the payee was incorrect.  They said that they will send another check, plus the additional interest today. That mistake cost them $183.09 in additional interest.
October 13, 1999The check for $140874.80 arrived this afternoon, finally!
October 17, 1999 Silverstein went to his attorney's, Phil Olenick, office to inspect the documents provided by the defendants. This was needed since they refused to drop their ridiculous and retaliatory counter-suit.
October 25, 1999Filed a new complaint in the Los Angeles office of the Department of Fair Employment and Housing.  This was filed against Mattel, The Learning Company, and Microsystems Software. Since the people giving the orders on this counterclaim are in California, then they are subject to the laws in California. Since they are ordering the acts to be done in Massachusetts, they are also subject to Massachusetts law.
October 26, 1999Defendants finally deliver their response to my summary judgment motion. I must respond to some of the representations in their response. I would think, after this, that this opposition destroyed any credibility that the defendants have with the court. Some of the claims they make that make me question if they have credibility are:
  • They stated that, "Silverstein never verified that he underwent three-weeks of intensive treatment in China." Silverstein always stated that he underwent 2 weeks of daily treatment (during the week). The medical records, both originals and translations, have been posted on this website. This material was covered in Silverstein's deposition. The defendant's attorney was provided with copies of these records in 1997. 
  • They state that, "He admits that MSI provided him with an ergonomic keyboard" when talking about accommodations. They have been corrected on this issue before. Silverstein received the keyboard before Silverstein had any symptoms. MSI have claimed this "special" keyboard was an accommodation on many occasions. They had been corrected on this since 1996. In 1996, the defendants admitted that Silverstein received this keyboard before there was any condition. In the deposition, Mason admitted that Silverstein received this "special" keyboard before he complained of pain. This special keyboard was a Microsoft Natural Keyboard.
November 2, 1999Served the leave to respond on the defendants. The representations that the defendants make cannot be allowed to be presented to the court without a response.
November 10, 1999Silverstein was examined by Dr. Carter. Dr. Carter recommended and scheduled surgery on Silverstein's right arm. The left arm was corrected on August 20, 1997. This new surgery is schedule for December 7, 1999.
November 15, 1999The defendants responded to Silverstein's leave to respond to reply. Their reply, in my opinion, is just irrelevant hand waving.
November 16, 1999Silverstein had an EMG which showed denervations (nerve impingement) on his right arm.
November 16, 1999Silverstein's motion for summary judgment packet was filed with the court.
November 18, 1999Metabolife International Inc. v. WCVB-TV, Susan Wornick, et. al
was dismissed.  The judge based this on the anti-SLAPP statute. This case seems to have much in common with Silverstein v. MSI, TLC. 
November 21, 1999Boston Globe article, Getting personnel, discusses the retaliation by Mattel / TLC / MSI.
November 22,1999Retaliation complaint filed with the Los Angeles office of the EEOC.
November 22, 1999Received notification that the summary judgment motion hearing is scheduled for January 10, 2000. I not only expect the judge to to dismiss the ridiculous counterclaim, but to sanction Mattel / TLC / MSI for bringing it and continuing it.
December  7, 1999Silverstein had surgery to resect the supracondylar process on the right extremity (in English: the surgeon removed the bone spur from the right elbow). The surgeon was surprised that the nerve and artery was so tightly wound around the process (bone spur).
December 15, 1999The ThirdAge published "Speak Out:Free Speech Online."
December 15, 1999Silverstein had the stitches removed. He will start physical therapy in approximately a week.
December 21, 1999The MCAD issued a "Denial of Formal Investigation of MCAD Complaint." This denial claimed:
  • The commission lacks jurisdiction
  • The information provided contradicts an inference of discrimination.
  • The complaint was not filed within the six month State of Limitation.

This was appealed on March 6, 2000.

January 4, 2000Summary Judgment motion hearing postponed to January 18, 1999.
January 7, 2000Jorge Quiroga interview Silverstein and Olenick for WCVB TV (the Boston ABC affiliate). 
January 7, 2000Summary judgment motion, opposition, facts, etc. have been placed online. Commentary to come soon.
January 16, 2000This case hits the 11:00 pm news on WCVB TV Channel 5 in Boston. 
January 18, 2000Mattel falls on its sword! Today, at the summary judgment motion hearing , Mattel asks that their counterclaim be dismissed. More details to come.
January 21, 2000The sword Mattel fell on was a toy sword! Mattel faxed Silverstein's counsel, and filed in court, the Motion to Dismiss [page 2]. Mattel submitted a motion to dismiss without prejudice. If this motion was granted, Mattel could file a new suit again for the same thing and start over. This may be another attempt by Mattel coerce Silverstein into silence with a continued threat of forcing him to re-litigate their ridiculous countersuit from the start.
January 24, 2000Objection the Mattel's Motion to Dismiss without prejudice.  [pdf]
January 24, 2000The court rejects Mattel's motion. It was rejected because it must be stipulated to. I will only stipulate to a motion to dismiss WITH PREJUDICE! Mattel's motion to dismiss without prejudice would allow Mattel to keep threatening Silverstein with more litigation, forever.
January 28, 2000Mattel re-files their motion
March 6, 2000Hearing at the MCAD. Met with Gregory Manousos, an attorney for the MCAD. When he heard the history and the facts of my new complaint, he stated that my case is one that the MCAD should investigate. He asked if I had any cases on this, my response was, "Do I have any cases!!!!"  Of course I had cases. These cases showed that this website is a protected activity and their countersuit IS a retaliatory act.
April 3, 2000The countersuit is dismissed! The dismissal  was entered today.
 On to Round three!

 

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