Opinion by Consumer Advocate Tim Bolen
Judges in Court cases ENCOURAGE parties to settle, The new Judge in the Doctor’s Data v Stephen Barrett Federal Court case is no exception. After all, the court system is overloaded.
Shortly after Judge Edmond E. Chang issued his Decision in Barrett’s Motion to Dismiss the entire case, Chang indicated to the parties that it would be a good time to talk “settlement.” Chang ordered settlement talks.
According to Court documents filed, following the Judge’s request, Doctor’s Data set up a meeting with Barrett’s Chicago law firm to discuss settlement. Jeff Levens and Al Augustine, attorneys for Doctor’s Data, personally attended the meeting with Peter M. Katsaros, of Golan & Christie LLP, Barrett’s Chicago attorneys. Michael Botts, Defendants’ lead attorney, joined via conference call. The documents say:
“During said meeting, Mr. Levens continued, Mr. Augustine and he listed four components that were and are integral to a settlement: Defendants would (1) delete the offensive articles from the Internet; (2) agree not to discuss Plaintiff for a specified period of time, other than to (3) publish a pre-agreed retraction; and (4) pay some amount of money in damages. It was emphasized that Plaintiff would be extremely reasonable with respect to its monetary demand were Defendants to agree to the three non-monetary components.
Mr. Katsaros then told the court that no settlement would be possible where Plaintiff had demanded a “7-figure” payment. This statement was not true, however, because no amount whatsoever had been stated during the meeting of September 10, 2010.
While keeping in mind that settlement is a voluntary process; believing the court was encouraging the parties to at least consider engaging in voluntary settlement discussions; and, knowing that it had been conveyed to this court that Plaintiff’s primary goals are non-monetary, Plaintiff’s attorneys believed the spirit of the court’s directive was for Mr. Levens to summarize, in a letter to defense counsel, what Plaintiff intends to pursue and prove if this case is not settled, discuss Plaintiff’s demands, and explain why such demands are necessary…
Plaintiff’s attorneys delivered such a letter to defense counsel on Monday night, December 5, 2011, in accordance with this court’s order of November 28, 2011. This letter, a copy of which is readily available for this court’s reference, pointed out many of Defendants’ objectionable activities, such as libeling Plaintiff on the Internet, and conspiring with others, some of whom were named therein, to smear Plaintiff’s name and cause it to incur huge litigation expenses in many lawsuits.”
Just above, in the bolded text, are words key to the Plaintiff’s strategy “Defendants’ objectionable activities, such as libeling Plaintiff on the Internet, and conspiring with others, some of whom were named therein, to smear Plaintiff’s name.” What they are talking about here is Barrett’s support network – “some of whom were named therein,” and some WHO WILL BE NAMED after Discovery properly identifies them.
The document goes on to say:
The letter did not itemize damages, because (a) money is the least important of the four-prong settlement demand; (b) without a protective order in place, Plaintiff does not trust Defendants to maintain complete confidentiality; and (c) the reason this court ordered damages to be itemized appears to have been due to Mr. Kotsaros’ representation to the court that Mr. Levens was pursuing a 7-figure settlement, and this simply was not ever and is not now true.
The letter concluded that if Defendants would agree to cease their objectionable activities and publish a retraction or an agreed amelioration, Plaintiff would be amenable to discussing, and would agree to, a monetary settlement significantly less than what would be pursued at trial.
Now it is time for a laugh at attorney Michael K. Botts, Esq‘s response. Botts actually reverted back to a silly claim made by Barrett, and the National Council Against Health Fraud (NCAHF) in a series of cases in California where the NCAHF said that “You are guilty until you prove yourself innocent…”
The Judge in one of those cases, the NCAHF v King Bio case, wrote “Furthermore, the Court notes that the logical end-point of Plaintiff’s burden-shifting argument would be to permit anyone with the requisite filing fee to walk into any court in any state in the Union and file a lawsuit against any business, casting the burden on that defendant to prove that it was not violating the law. Such an approach, this Court finds, would itself be unfair.”
Here, once again, Barrett, and his goofy support network attempt to apply law they just made up out of thin air. Read on:
“In other words, despite the fact that there exists a 5½-count complaint which sets out, with exhibits and in specific detail, that which Plaintiff alleges Defendants have done, and despite the fact that Defendants have answered [# 25], Mr. Botts gave Mr. Levens an ultimatum: Were Plaintiff not to comply precisely with the order and itemize its evidence and damages against Defendants by 5:00 p.m., Friday afternoon [December 9, 2011], he “will use [such] failure to comply with the Order and [such] refusal to remedy that failure to argue [Plaintiff has] no damages and no provable causes of action.” [Emphasis Added]1 Why Mr. Botts thinks information exchanged—or not exchanged—in settlement discussions can be used to support a motion for summary judgment is an enigma.
Mr. Botts was asked whether he really expected Mr. Levens to send him “proof that DDI did not commit fraud or conspire with nonstandard doctors to trick grieving parents into chelating their autistic children, as opposed to expecting Defendants to present proof that Plaintiff did. Mr. Botts, displaying no recognition of the fact that the burden of proof is on the defense in a case of slander, answered in the affirmative.”
Then Jeff Levens, tiring, I think, of the Barrett/Botts legal blithering said to the court:
In sum, while this court had the best of intentions in encouraging the parties to explore settlement, it has become clear that defense counsel never intended to seriously consider settling now any more than they did in September 2010. Instead they saw the court’s order as an opportunity to:
- Obtain substantial discovery from Plaintiff—evidence and a litany of damages—without having to reveal anything themselves;
- Turn the law upside down by requiring DDI to prove a negative, for Mr. Botts claims actually to believe the burden of proof in a case of libel per se is on the plaintiff, and that DDI must prove it has not committed fraud or conspired with physicians.
- Avoid having to reveal that they have no evidence whatsoever that Plaintiff has committed fraud or conspiracy; and,
- Learn all about Plaintiff’s financial losses, even though Plaintiff has made it clear that if the three non-monetary components were to be resolved, Plaintiff would settle for substantially less than its damages, anyway.
Accordingly, Plaintiff respectfully requests that this court withdraw its order of November 28, 2011, in its entirety, and order discovery to proceed, for what began as a court-sponsored encouragement to amicably resolve this dispute has evolved into a defense tactic to persist in obfuscating the issues, and it is evident they have no intention of agreeing to the aforesaid non-monetary components.
In the alternative, Plaintiff requests revisions to the order of November 28, 2011:
- Include a protective order such that all communications exchanged among all counsel during settlement negotiations are confidential;
- Strike the requirement that Plaintiff re-state Defendants’ liability, and clarify that the onus remains Defendants’ to produce information to substantiate their claims of fraud and conspiracy. Mr. Botts claims it is Plaintiff’s obligation to identify “exactly what those statements were, facts supporting your assertion that each statement is not true, and specification of the associated damage.” However, the statements are specified in the 5½ counts and exhibits which remain viable, and the burden is his to demonstrate the truth of his clients’ claims, not vice versa.
- Require that Plaintiff reveal, in settlement negotiations, only so much of its damages as are necessary to support the amount demanded. Plaintiff’s counsel has identified DDI’s four-prong settlement demand, including three non-monetary components; and, while damages will have to be disclosed in discovery, this is a pre-discovery exercise in which monetary damages are not the pivotal issue.
The screeching —
Jeff Levens said, in a footnote to the document:
“This is the third time Mr. Botts has imposed an ultimatum on Mr. Levens, with his e-mail in 13.5-point bolded font. The first was when he decided Mr. Levens should be sanctioned if he did not make a litany of changes in the complaint; the second, when Mr. Levens wouldn’t be bullied during preparation of a status report. [#48] Plaintiff, not to mention Mr. Levens, really hope he will quit doing this at some point.”
So what did the Judge say in response?
Well, the judge didn’t seem to like Barrett’s attitude. His official response to Jeff Levens’ Motion to Clarify was:
“MINUTE entry before Honorable Edmond E. Chang: This entry supplements the 12/15/11 order concerning Plaintiff’s motion to withdraw the 11/28/11 settlement-letter exchange order 88. As explained at 11/28/11 status hearing and again at the 12/15/11 motion hearing, the Court does not compel parties to participate in settlement discussions — even if good-faith settlement discussions would be sensible in light of the expense, delay, and uncertainty of further intensely-contested litigation — and thus the Court will not require the parties to further exchange settlement demand and offer letters.
It is worth noting, however, that the parties and counsel could not even complete an exchange of settlement letters. That failure, as well as the blows struck by both sides in the litigation to-date, does not bode well for a cooperative discovery process. The parties are admonished that the Court will closely monitor discovery and the already-long discovery deadlines set in the 12/15/11 order shall be non-extendable absent the most extraordinary of circumstances.”
The parting shot…
Jeff Levens has a different style then his partner Al Augustine. Al, to me, reminds me of Dragnet’s Sergeant Friday “Just the facts, Maam…” Jeff bites...
Below is Jeff’s last footnote – and it says volumes…
“Just to give Mr. Botts a taste of Plaintiff’s damages, Mr. Levens assured him in the e-mail exchange that DDI has suffered losses of more than $1 million in insurance premiums and deductibles alone, due to Defendants’ conspiracies. Mr. Botts rejected this, insisting that Mr. Levens deliver, by 5p last Friday, “an itemization of the damages beginning with those that you knew of when you filed the suit and going up to the present time.” Such a demand does not reflect the attitude of a lawyer trying to settle a case, or a defendant who is relieved that the plaintiff is not seeking 7 figures if the case settles. It is rather the demand of a lawyer who is “playing the system,” gleaning what he can while revealing nothing.”
Smile here… This is going to be a FUN case to watch.
And, stay tuned.
Tim Bolen – Consumer Advocate