(From filing of the dismissal of Mattel's countersuit to present)
|To start of time-line||To start of Round 1||To 1999||To Round Two||To Injury page.|
|March 26, 2003||The appeal court has ruled against Silverstein. The appeals court ruled that the trial judge can ignore the rule that says a summary judgment motion must be ruled on. The appeals court ignores the harm of self censorship solely because this website has not been completely shut down. The appeals court judges have it completely wrong. For example, the court stated that Silverstein took his judgment and then went to Texas. This decision allows a SLAPPer, like Mattel, to get away with brinkmanship but does not effect the current lawsuit against Mattel.|
|January 27. 2003||Mattel denied cert on Barbie Girl case. Mattel kept trying to shut the parody of Barbie, but the Supreme Court told Mattel to shut up by denying Mattel's request for certiorari . Will Mattel be held in contempt of court for intentionally disobeying Judge Kozinski's order to chill.|
|June 15, 2002||The entire hearing is located here, click here to hear. There is a break in the sound is where the court had turned over the tape. |
More excerpts from the Round II oral arguments held on May 16th.
At the outset of Mattel's argument, Schwartz reminded the Appeals Court that Silverstein is appealing not only from Judge Sosman's ultimate decision to let Mattel dismiss their libel counterclaim without prejudice, but also from Judge Fahey's decision - the prior September ruling - to ignore that the agreed-upon Rule 68 judgment had already given Silverstein a binding judgment against the counterclaim, when she denied my motion to have the trial court tell MSI and TLC that its outstanding discovery requests were moot as the case was already over:
|June 5, 2002||Silverstein asks Irwin Schwartz if Silverstein's analysis of the CPBreak case was a fraud on the court perpetrated by Schwartz for the purposes of publicity and intimidation and if there is anything factually incorrect on this website. |
Schwartz did not deny that allegations the CPBreak lawsuit was a fraud on the court and did not identify any factually incorrect material on the site. However, Schwartz did call the material on this site obnoxious.
|May 16, 2002||Oral arguments in Round II today. Irwin Schwartz argued for the evil empire known as Mattel. Some of the most revealing moments came in the presentation by the attorney representing Mattel/MSI/TLC.|
Schwartz: "We don't think there are a lot of difficult issues on appeal here."
Justice Greenberg: "Well, it wouldn't be on for a hearing before a panel unless we thought there were some difficult issues."
I wonder if Schwartz will still bill Mattel for this appeal, since there are not a lot of difficult issues here.
Schwartz: "Because she was faced with what could be a very difficult motion for summary judgment. It implicated all kinds of new issues of law that she would have had to resolve in rendering a decision on summary judgment on the merits. One of the rights that a court has to control its own docket is to decide, when given the opportunity, to dismiss without prejudice under Rule 41, to do so rather than to reach the merits."
Justice Grasso: "Doesn't that say too much? Are you saying that when a judge gets a tough summary judgment motion, the judge, rather than handling the merits, can just say 'Ok, we're going to dismiss this without prejudice and you'll all go home'?"
Hold it! Didn't Schwartz say, "We don't think there are a lot of difficult issues on appeal here?" The summary judgment is in front of the court, as the appeals court can perform a plenary review of a summary judgment motion into front of it.
Is Irwin related to Harcourt Fenton Mudd?
|February 3, 2002||After doing some research, I have come to the realization that Irwin Schwartz and Laura Kling are liars. You can decide for yourself.|
On 3/15/2000, Schwartz in the CPBreak brief , "Microsystems -- as well as the public -- will continue to suffer irreparable harm unless the defendants are prohibited from distributing the Bypass Code."
On 3/20/2000, Microsystems Software announces the general availability of a new version of Cyber Patrol, which automatically updates itself on every user's machine, making CPBreak ineffective almost immediately. Didn't Schwartz know that this being developed when he told the court, " will continue to suffer irreparable harm?" According to their PR company, there was a patch to Cyber Patrol rendering the bypass code useless, before Schwartz went into court claiming that without an injunction there would be irreparable harm.
On March 27, 200, Microsystems software had a hearing to turn their temporary injunction into a permanent injunction. I doubt that Scwartz was honest with the court by informing the court that CPHack bypass code was rendered ineffective.
On May 5/16/2000, In a Boston Globe article, Irwin Schwartz writes that Microsystems distributed a new version that eliminated the weakness and making CPBreak code ineffective. According to this article, the change to CyberPatrol was published the day (3/16/2000) after the emergency temporary injunction was granted. How can the existence and publication of ineffective code cause any harm, not to mention irreparable harm? What is the real truth here?
After looking at this information and reading the press release one may wonder if this injunction was solely done to intimidate others or to boost the sale price of Microsystems Software to $100,000,000, or both.
On May 15, 2000, Schwartz-Nystrom requested a more definite statement claiming that they were unable to understand the MCAD complaint.
On May 23, 2000, At the MCAD hearing, Schwartz said the from what he could tell, the case is an abuse of process claim brought under MGL c.151B -- the anti-discrimination statute. Schwartz 's description is a concise description of the case.
On June 27, 2000 Mattel filed their position statement in the MCAD answering my complaint there. A few months later, after the waiting period was up, I filed in court on that claim.
November 6, 2000, Laura Kling files a motion for more definite statement in the superior court, even though they received explanation of the lawsuit on June 4, 2000 and, while in the MCAD had been able to answer it there.
Are they liars or just stupid? After dealing with Kling, there is no wonder why Zobel would attribute Kling's lack of understanding to mental vacancy. But with this pattern, I would suspect it is more dishonesty than stupidity.
|January 8, 2002||The Supreme Court Ruled in Toyota v. Williams. This was a case where the appellate court granted a plaintiff's summary judgment motion. The court did not rule that Carpal Tunnel Syndrome ("CTS") is not a disability under the Americans with Disabilities Act ("ADA"). The court ruled "the Sixth Circuit did not apply the proper standard in determining that respondent was disabled under the ADA because it analyzed only a limited class of manual tasks and failed to ask whether respondent’s impairments prevented or restricted her from performing tasks that are of central importance to most people’s daily lives." The case was sent back to the trial court to make a more detailed determination. |
In states that have their own version of the ADA, this may not apply. Courts in both California and Massachusetts recognized that they have differing standards from the federal. In Massachusetts under MGL c.151B there is not only a different from the ADA, but by the function of MGL c.152 §75B(1) an on the job injury makes one a qualified disabled person.
|October 9, 2001||Irwin Schwartz: You've got SPAM! |
We received email from Laura Nelson (was Kling), complaining of email communications to them about the case and that they will only accept communications from counsel of record. What they got was SPAM, from a disreputable company that I never heard of, trying to sell a service to increase traffic to this site. It is ironic that the inventors of the SPAM subpoena did not recognize that they themselves were spammed.
|September 20, 2001|
Until now, I considered the attorneys at Schwartz-Nystrom the mentally vacant of the legal profession. After reading a Salon piece on the DMCA I realized their brilliance -- or is this a fluke similar to a million monkeys typing Shakespeare's sonnets.
|August 13, 2001||Mattel lost another bid to silence critics. Mattel lost the Walking Mountain/Forsyth case.|
|July 30, 2001||Mattel finally filed their new answers (Inter-spliced version). Once Mattel was required to explain defenses, their number of their defenses were cut in half. It seems as though Kling want to thumb her nose at Zobel -- on June 29th there were ordered to re-plead within 30 days, but they served the new answers on July 30th.|
|June 29,. 2001||Our motion to strike their affirmative answers was held by Zobel today. Zobel granted our motion and said that Mattel's opposition to our motion was unprofessional and was not something that should be filed in court. Zobel gave Mattel 30 days to re-plead. The defendants may consider this a victory if their strategy is to delay and run up legal expenses.|
|May 8, 2001||Mattel responded to my motion to strike some of their defenses. Apparently, Mattel is afraid for the truth of their evils to be known. Mattel claims to have advance their defenses in good faith, but offers no proof of that. I will not just take Mattel's word for that they have no credibility with me. Mattel's opposition is NONSENSE! |
Does Mattel have credibility with any thinking person?
|April 25, 2001||Mattel refused to correct their answer, so we filed our motion to strike their affirmative defenses.|
|April 13, 2001||The appeals court denied the motion for expedited hearing on the appeal. At first blush it seems bad, but it is actually good. In the decision to deny the expedited appeal , the appeals court judge stated that if Mattel's libel claim is baseless, then Mattel could be liable for 3 times damages under MGL c.93A. (this provides for damages for unfair and deceptive acts). This decision provides the needed ammunition to dissolve the stay of discovery.|
|April 13, 2001||Zobel granted Mattel's motion to stay discovery. Mattel's refusal to answer any of my discovery requests may immunize me from any further libel claim. By requesting information in discovery that may prove future statements false, I have met the requirements to insulate me from any claim of negligence or recklessness in determining the truth of falsity in those statements.|
|April 10, 2001||Finally, received Mattel's answer. The inter-spliced complaint and answers is located here. Mattel answers deny obvious truths and makes intentional misrepresentations. It took Schwartz-Nystrom almost 6 months to respond with this answer.|
|April 2, 2001||Received a motion to stay discovery. These people are still trying to say that this is the same claim - ITS NOT! |
This is the second time that Mattel filed a motion to stay discovery. Either Mattel's attorneys wants to generate fees, or Mattel is terrified of the truth that discovery will reveal.
To explain it so even Kling, and Schwartz can understand it: Even if the appeals court denied the appeal, it does not diminish the validity of the round 3 lawsuit. The denial of the appeal would only prevents us from amending the lawsuit to add a count of malicious prosecution.
|March 27, 2001||Just received in the mail: Zobel denied Mattel's motion to dismiss. So much for the "spanking" that Schwartz claimed that Phil received.|
|March 26, 2001||Mass. Lawyers weekly wrote a interesting profile on Zobel. After reading this and re-reading Schwartz's fax, it's possible that Schwartz doesn't understand the difference between a spanking and Zobel's infamous socratic questioning.|
|March 22, 2001||Schwartz sends Phil a fax after the motion hearing. Schwartz claims that Zobel "spanked" every aspect of the complaint and the appeal, and even threatens sanctions. |
Maybe Schwartz didn't understand what Zobel was saying. Or, maybe he was at the wrong hearing.
|March 20, 2001||At the regular status conference, we had the hearing on the motion to dismiss. |
Right away, Zobel said that he was not inclined to dismiss, but probably stay the case pending the appeal. Phil was on the top of his game volleying back and forth with Zobel. Appearing in front of Zobel is akin to continuing legal education. Schwartz did try to argue the issue of admissibility of the "blackmail note/settlement offer." Zobel took our side on the admissibility of those documents, and said that a jury should see them. Zobel was less welcoming of the abuse of process claim. Zobel didn't believe that Near applied to civil cases, though Phil pointed out that the cases that he referred to were civil case. Zobel felt that the cost of appeal may have been unnecessary, feeling that the libel claim is now time-barred anyways. Phil is concerned that the laws of tolling is uncertain enough to warrant the appeal. Zobel was gravely concerned that the motion to dismiss without prejudice had been granted without a hearing. Given Mattel's history of using baseless lawsuits, I want them precluded from trying again.
I wonder why Kling stayed silent in the back of the courtroom instead of standing at the counsel table.
|March 14, 2001||Filed my opposition [pdf] to Mattel's motion to dismiss. By function of the rules of civil procedure, Mattel admits every factual assertion in the second amended complaint!|
|March 14, 2001||Filed my appellate response to Mattel's brief. This is to address of Mattel's many misrepresentations of law and facts.|
|March 5, 2001||Mattel served their opposition to opposition to my motion to strike their motion to strike and my motion for sanctions against their their motion to strike and my motion for sanctions.|
|February 28, 2001||Mattel served their reply brief in the appeals court case. As usual, they misrepresent the law and the facts of the case.|
|February 21, 2001||Filed my response to Mattel's motion to "Strike Evidence Concerning Settlement Negotiations." This also includes well deserved sanctions against Mattel and their attorneys. Do all attorneys working for Mattel's believe they can ignore the judges instructions?|
|February 20, 2001||Mattel lost another round in an attempt to silence critics. In Mattel v. Walking Mountain Productions, the appeals court refused to overturn the lower court's denial of an injunction. The original denial is here: [page 1] [page 2] [page 3] [page 4] [page 5] [page 6] [page 7] [page 8] [page 9].|
|February 5, 2001||Kling served a motion to "Strike Evidence Concerning Settlement Negotiations." This is in direct violation of Judge Zobel's orders from January 17th.|
|February 2, 2001||Just added a list of Mattel involved cases in the Federal Courts. Which cases are abuse of process? Which are legitimate? Which are just Mattel being bullies? Mattel have more cases in the state courts.|
|January 26, 2001||Completed the appeal of the dismissal without prejudice. I am appealing the "without prejudice" portion of the dismissal, otherwise Mattel can, and probably will, try to bring their libel claim again -- just to try to shut me up.|
|January 17, 2001||Judge Zobel surprised us. Not only did he recognize the impropriety of Mattel's motion to dismiss -- Zobel ordered the motion to be treated as a summary judgment motion., Zobel ordered Mattel to cooperate in providing us with the discovery that we need, since Mattel failed to material respond to my discovery requests.|
|January 11, 2001||Mattel served their motion to dismiss. For the most part, it's a rehash of their improper motion to dismiss the MCAD action. So, we know that Kling knows how to use cut and paste. |
This motion to dismiss further evidences that Mattel's litigation strategy is to create delay and run the the billing timer for all parties. There is nothing in this motion that indicates that Mattel needed a More Definite Statement to understand this claim.
|January 1, 2001|
Regardless, since Mattel failed to properly respond to the Request for Admissions within the proper time that all items requested to be admitted became admitted.
In brief, by the function of Rule 36 of MRCP, Mattel now admits that:
|December 27, 2000||The second amended complaint on was served on Mattel's attorneys. This restarts the clock on anything that the defendants' motion for stay may have stopped. Since the Motion to Stay was never ruled on, Mattel can't claim that allowed them to ignore the dates to respond to discovery requests.|
|December 4, 2000||Judge Zobel said that Mattel's attorneys should have been able to understand my complaint, but directed my attorney to amend my complaint since the Judge thought that my version was too verbose. |
The judge did not like that I used survey numbers for setting the amount of punitive damages. Though survey was not very scientific, but it's the best that I can do until Mattel provides the requested discovery.
|December 1, 2000||Received the defendants response to Admissions of Facts and document requests. They refused to respond until a ruling on their Motion to Stay Discovery Pending on Ruling On Motion For A More Definite Statement. Mattel could not even bother to request additional time or a motion to stay, before the response to the Request For Admission was due. Mattel has failed to abide by time limits in both the superior court and the MCAD.|
|December 1, 2000||Received a Motion to Stay Discovery Pending on Ruling On Motion For A More Definite Statement, dated 11/29/00, from defendants. This motion makes is clear to a person with a modicum of intelligence that Mattel's sole reason for the Motion for More Definite Statement is to 'run the clock' on the discovery period.|
|November 17, 2000||Served my opposition to the defendants retaliatory request for sanctions in the MCAD.|
|November 16, 2000||Served my opposition to the defendants REQUEST FOR MORE DEFINITIVE STATEMENT.|
|November 15, 2000||Kling requests a delay in responding to the request for admissions and discovery requests until there is a ruling on the more definite statement. Kling does not need to understand the case to provide documents or to admit facts, unless she wants to obscure the truth.|
|November 13, 2000||OSHA has published their final rules on ergonomics. Now companies may treat RSIs as real injuries instead of harassing employees who become injured.|
|November 7, 2000||Olenick, Silverstein's attorney, received a packet from Kling. It not only contains the NOTICE OF RELATED ACTION and the motion for MORE DEFINITIVE STATEMENT , but also a motion to sanction Silverstein for his filing a lawsuit in superior court and his having sought sanctions against Mattel and their attorneys the past.. This is asking the MCAD to retaliate against Silverstein for exercising his right to bring a lawsuit against Mattel. Kling is a fine one to talk about following the MCAD rules. Mattel failed to respond within time limits, Mattel failed to request extensions within time-limits, Mattel's attorneys did not make a reasonable inquiry as required under 804 CMR 1.09(d). It has been ruled that Mattel has misused the courts in another case, by filing a lawsuit for someone speaking out against their wrongs. Section 425.16 is the California anti-SLAPP statute.|
|November 6, 2000||Kling served a motion for a REQUEST FOR MORE DEFINITIVE STATEMENT . Kling received a more definitive statement, after the same request in the MCAD proceedings. In the MCAD, Kling was able to file a response to the same factual allegations, why not here? Can't she be bothered to read and understand what is put in front of her?|
|November 6, 2000||Mattel's attorney, Kling, files a NOTICE OF RELATED ACTION. Well duh! Did Kling learn in law school that an abuse of process case is related to the case that was the abuse of process? Since the libel counterclaim was the abuse of process, of course the current case is related to their counterclaim in the previous case. The two cases are loosely related, but Kling has tried to confuse people by the relationship. The bringing of the original case and speaking out about it were protected acts. The judgment in Silverstein's favor establishes the truth of the statements on the website. The retaliation is Mattel continuing their libel claim after judgment was entered.|
|October 31, 2000||Served my first discovery request on Mattel. Trick or Treat!|
|October 27, 2000||The appeals court granted an extension until January 26, 2001 to file the brief with the appeals court. This is enough time for both the MCAD and the EEOC to intervene.|
|October 23, 2000||Filed a request for an extension of time for the brief with the appeals court. Since it will take some time for the EEOC to transfer the case, they will need the additional time to intercede. We served a request for admissions from Mattel.|
|October 20, 2000||I spoke with Olophius Perry, Deputy Director EEOC. Mr. Perry told me that he would liked to litigate the case from his office, but since the case is in Massachusetts, they would have to transfer it to the litigation unit in either Boston or New York.|
|October 18, 2000||Kling tried to tell the judge that this lawsuit is the fourth action I brought against them, but he did not want to hear it. Judge Zobel refused to rule on Mattel's emergency motion to strike -- a defacto denial. Mattel is a fine one to talk about about abusing the legal system. As a note, two of four actions were required prior to filing a lawsuit. In most discrimination complaints, filing an agency complaint is a necessary prerequisite of filing a lawsuit.|
|October 17, 2000||Phil served the complaint and amended complaint onto Laura Kling, Mattel's attorney. From reading her MCAD responses, she does not do well in state court. I explained in the complaint, so that even Laura Kling and Jill Burtis can understand, that they can't remove this case to federal court. Kling might have enough sense to know she will be sanctioned if she removes this case to federal court.|
|September 14, 2000 (Saturday)||I found an emergency motion to strike my subpoena to Yahoo! from Mattel on my doorstep. This motion is docketed for September 18, 2000. This claims that my serving this before their receiving service of the complaint is a violation of the rules. It's not since it is not a subpoena for oral deposition, as described under MRCP 30A. It is also a self created emergency. If Yahoo! was noticed of a filing of the motion to quash, Yahoo! would have waited until judicial determination. It seems like Mattel wants to practice abusive litigation instead of of litigating on the strength of the case.|
|September 26, 2000||Met with the Olophius Perry, Deputy Director EEOC, today. He seems helpful and understands the issues in the case. Director Perry said that the case is very interesting and it seems like it is something that the legal staff would like to sink their teeth into.|
|September 25, 2000||Went to the federal court in Los Angeles. According to the court's docket system, there are 138 cases from Mattel in this court. This is only one of 94 federal courts. I can't imagine how many cases they have in state courts. I wonder if Mattel's legal staff gets a bonus for each lawsuit they file? Does Mattel give attorneys a bonus for filing abusive lawsuits?|
|September 20, 2000||Filed the amended complaint with the court.|
|September 20, 2000||Appellate mediation with Mattel.|
|August 22, 2000||Silverstein filed a new lawsuit against Mattel for their retaliation and attempt at censoring him. Silverstein asks for $48,595,103.77 in the coversheet.|
|July 11, 2000||Mattel lost another case. Mattel accused the firm of Luce, Forward, Hamilton & Scripps of defamation and bringing sham litigation. One must laugh at Mattel accusing others of bringing sham litigation. In this case, Mattel claimed that the defendants "subject Mattel to hatred, contempt, and ridicule, and have a tendency to injure Mattel in it's reputation, trade and business." Between Pink Anger and their actions in the CPHack case, I thought that Mattel did a good job of this on their own.|
|July 24, 2000||Sent my response to Mattel's position statement.|
|July 7, 2000||Mailed my response to Mattel's response. I moved to strike their response and default them. I opposed their opposition to my motion to sanction their attorneys. I opposed their improper motion to dismiss.|
|July 3, 2000||Received Mattel's response to my motions and their position statement. They also moved to dismiss, but that is improper. They did finally provide a position statement, though much past the time limit.|
|June 22, 2000||I was just notified that Irwin Schwartz took over the Appeal from Michael Rosen. Since Rosen handled appeal level cases before, I would guess that Mattel was not happy with Rosen's performance in this case.|
|June 14, 2000||SAG pickets Mattel Headquarters. Some of the picketers dressed as Barbie and Ken and wore bandaids covering scabs.|
|June 12, 2000||Hot off the Supreme Court docket. In Reeves v. Sanderson Plumbing Products, Inc. the court appears to adopt a pretext only standard versus a pretext plus standard. This is important in discrimination cases, that the employer does not admit the discrimination.|
|June 12, 2000||I spoke with Michelle Stephen of Mattel's investor relations. She confirmed that the meeting was open to the public, not just shareholders. Apparently, it's open to the public unless you speak out against Mattel's retaliation under the disability laws. She recalled the person speaking about a member of Mattel's board who additionally bills Mattel for legal work. Stephen did not know which member of the board this person speaks. The|
|June 7, 2000||I attended the Mattel stockholders meeting. Mattel security tried to remove me, but could not as I am a shareholder. The meeting was picketed by the Screen Actor's Guild. More details here.|
|June 5, 2000||The Thompson Publishing group published an article that discusses "extreme retaliation" and the concern of the EEOC. This includes lawsuits for libel when the employee complains of an ADA violation. I would hope that the EEOC will follow their words with action on this type of retaliation. This is the type of action I have been complaining of in this case.|
|June 1, 2000||Filed a motion for sanctions against Schwartz. Under the MCAD rules, he is required to do some inquiry into the case, not just throw up his hands and claim ignorance. |
Filed an additional objection to the motion for more definitive statement. The hearing officer asked for additional explanation in writing. I did comply, but still object to it as improper.
Filed a motion to default all respondents. Mattel / MSI / TLC were required to send someone who was familiar with the charges. The rules do not allow them to send someone ignorant of the charges. By Schwartz's own admission he was ignorant of the facts in this case.
Filed a motion to default TLC. The motion for definitive statement was for MSI and Mattel, not for TLC. Schwartz stated that he was representing Mattel and MSI, not TLC. TLC is still a separate entity.
This is an obvious attempt by Mattel / TLC / MSI to delay and obfuscate these proceedings. Why didn't they send Rosen? Are they unhappy with his performance? Or did they want to send someone who knew nothing about the case. Is Schwartz unable to access the web or to pick up a telephone and call Rosen? Since you are reading this, it's obvious that the information is easily available.
I want the MCAD to enforce their own rules, not to be a pawn of corporations and just kick out cases.
|May 23, 2000||Irwin Schwartz, the attorney who handled the CPHack case for Mattel, appeared for Mattel. My objection was not heard, the hearing officer said that she would not rule on it, but it would be taken under advisement. Schwartz claimed that he did not understand the charge at all.|
|May 19, 2000||Silverstein files an objection to the respondents' motion for more definitive statement. This objection includes a cross-motion for default, and a request that the MCAD to finds probable cause.|
|May 17, 2000||Silverstein finally gets the motion for more definitive statement from the MCAD. This motion was served on May 16, after their position statement was due. If the respondents really needed a more definitive statement, they could have asked for that before the time expired. If the respondents really didn't understand the charges, they could have read this website. The respondents could not claim that they could not access the website, they sued Silverstein over this website.|
|May 15, 2000||I, Silverstein, telephoned the MCAD and asks for the respondents' position statement. Ms. Belizaire calls Mattel to inquire of them where their response is. Ms. Belizaire informs Silverstein that Mattel will be filing a motion for more definitive statement. Silverstein finds out that Irwin Schwartz will be handling this case. For those who don't know, Schwartz is the attorney who handled the CPHack case for Mattel. Given my knowledge of the case, it seems to be another abusive lawsuit by Mattel.|
|April 20, 2000||The MCAD determine Mattel / MSI / TLC's actions can be retaliation. This reverses MCAD's December 21, 1999 decision. This means that the actions by Mattel / TLC / MSI could be considered retaliation under MGL c.151B. The "Investigative Conference" is set for May 23, 2000.|
|April 3, 2000||The countersuit is dismissed! The dismissal was entered today.|
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