Varian's 1st SLAPP complaint revealed for the first time after being filed under seal for over 763 days:
Complaint for Damages and Injunction
"Plaintiff Varian Associates, Inc. ('Varian'), on behalf of itself, its employees, and the general public, Susan B. Felch, and George Zdasiuk (collectively, 'Plaintiffs'), hereby complain and allege against defendants Michelangelo Delfino and Does 1 through 20 (collectively, 'defendants') as follows:
NATURE OF ACTION
1. This is an action for preliminary and permanent injunctive relief and damages arising out of defendants' improper and unlawful actions in violation of the California state laws pertaining to false advertising, Cal. Bus. & Prof. Code §§ 17500 et seq., unfair competition, Cal. Bus. & Prof. Code §§ 17200 et seq., libel, slander, the Lanham Act, 15 U.S.C. § 1125a, and California Penal Code § 637.1, invasion of privacy, intentional interference with and conspiracy.
JURISDICTION AND VENUE
2. This Court has jurisdiction over this entire action by virtue of the fact that this is a civil action wherein the matter in controversy, exclusive of interest, exceeds $25,000. Venue is properly laid in this county pursuant to California Code of Civil Procedure § 395.
THE PARTIES
3. Varian is a corporation duly organized and existing under the laws of the State of Delaware, having its principal place of business in Santa Clara County, at Palo Alto, California. Varian is a U.S. -based manufacturer of a variety of medical and other products. At all times herein mentioned, Varian has enjoyed a good reputation both generally and in its business and in its business and in relation to its goods and services.
4. Susan B. Felch is an individual who resides in Santa Clara County, California. She has been employed continuously by Varian since 1985.
5. George Zdasiuk is an individual who resides in San Mateo County, California. He has been employed continuously by Varian since 1980.
6. Plaintiffs are informed and believe, and on that basis allege, that defendant Michelangelo Delfino is a California resident who resides in Santa Clara County, California.
7. Plaintiffs are ignorant of the true names and capacities of the defendants sued herein as Does 1 through 20, and for that reason have sued them by their fictitious names. On information and belief, Plaintiffs allege that each of these fictitiously named defendants is responsible in some manner for some or all of the acts alleged herein, and that Plaintiffs' damages as herein alleged were proximately caused by such defendants. Plaintiffs will amend this Complaint to set forth the true names and capacities of the fictitiously-named defendants once Plaintiffs have ascertained that information.
8. Defendants at all times herein mentioned were the agents of their codefendants and in doing the things hereinafter alleged were acting within the course and scope of such agency and with the permission and consent of their codefendants.
DELFINO'S PATTERN OF HARASSING CONDUCT AS AN EMPLOYEE OF VARIAN ASSOCIATES
9. Delfino was hired by Varian Associates on April 25, 1988 as a Senior Engineer.
10. Beginning in approximately 1994-1995, a Varian Associates employee named Jim Fair was the target of a pattern of harassment, including the posting of inappropriate graffiti on bulletin boards, the changing of the names of Mr. Fair's computer files on the Lab computer to suggest that Mr. Fair was homosexual (e.g., changing 'Fair' to 'Fairy' so that the file names were altered to 'Jim is a Fairy,' 'Jim was a Fairy,' 'Jim the Fairy,' etc.), and the alteration of a letter written by Mr. Fair and subsequent distribution of the revised letter. The letter was altered to include derogatory comments about Mr. Fair, derogatory comment about his family, negative comments about the work program in which Mr. Fair was involved, suggestions of improper use of government funding, and comments implying Mr. Fair was homosexual. Varian Medical and Varian Semiconductor are informed and believe, and thereon allege, that Delfino was responsible for the pattern of harassment of Mr. Fair. Upon being asked about his involvement in the harassment by Ron Powell, Delfino's supervisor at the time, Delfino accused Mr. Fair and Mr. Powell of being 'seriously nuts,' or words to that effect, and was insulting, hostile and insubordinate. Delfino then complained that he was being harassed as a result of being questioned about the pattern of harassment directed at Mr. Fair.
11. Delfino was transferred in 1995 to a position in which his new supervisor was George Zdasiuk.
12. On or about January 23, 1995, Susan Felch was promoted. After that time, her relationship with Delfino changed. Following her promotion, Delfino stopped speaking to Felch generally. When she passed him in the hall and greeted him, he would respond with cold silence.
13. After Felch was promoted, she became the target of a pattern of harassment by Delfino, including:
a. The posting at work of a notice published in the local newspaper regarding the purchase by Felch of a house in Los Altos. Someone took the sale notice from the paper and posted it on a bulletin board so that it was visible to all passing employees. Felch was distressed that someone had posted a document that listed not only the price of her house, but also her home address. Approximately one year later, near the anniversary of that date, someone left another copy of the notice near a copier in Felch's work area.
b. After Felch's promotion, Delfino also began treating her in a very different and non-professional manner, and subjected her to a variety of forms of harassment. That harassment included making odd and bizarre faces at Felch from outside the windows in her office as she sat attempting to work, and making a gesture, the 'phone hand gesture,' at Felch through the office window when Felch was speaking on the phone. When making this gesture, Delfino would hold his hand up to his head, as if he were holding a telephone, and make an unflattering face in what appeared to be an attempt to mimic Felch talking on the telephone.
c. Delfino began to use obscenities around Felch while engaging in hostile behavior. For example, on or about June 4, 1997, Felch approached a set of double doors in a Varian Associates building. Delfino and another employee were standing at the double doors. As Felch came to the doors, the other employee who had been talking with Delfino held the door open for Felch to pass and said to Delfino, 'Open the door for her,' or words to that effect. Delfino responded with words to the effect of 'Not on my fucking deathbed.' Felch reported this incident to Jane Crisler of Varian Human Resources, and also spoke to George Zdasiuk, who was Delfino's superior.
d. On another occasion, in August of 1997, Felch greeted Varian Associates employees who were walking nearby, including Delfino. Following her greeting, Delfino turned away from the group of people and faced the wall and said loudly words to the effect of 'Were we having a technical conversation? Yes, we were having a fucking conversation and we were fucking interrupted.' Delfino then continued to make several similar comments. Felch reported this act to Jane Crisler of Varian Human Resources.
e. In December of 1997, Felch learned that Delfino had asked to move to an office which was next door to Felch's. In light of the hostile actions he had taken toward Felch, Felch asked that he not be permitted to move to that office Delfino was not permitted to move to that office.
f. Following the denial of his request to move to an office next to Felch's office, Delfino's harassment of Felch escalated. Delfino continued to make hand gestures mimicking and satirizing Felch while she was in her office using the telephone. Although Felch initially attempted to ignore the faces and gestures that Delfino made, they distracted and disrupted her telephone conversations, including those with important customers.
14. Delfino's pattern of harassment of Felch continued into May 1998. Felch notified Jane Crisler of Varian Human Resources about the problem, seeking to have her encourage Delfino to stop harassing Felch. Although Delfino had been warned several times to stop harassing Felch, his harassment of her continued. Felch began to be worried about her safety.
15. In September 1998, Felch notified Jane Crisler that Delfino had, despite earlier warnings, continued to make gestures at her.
16. As a result of his continued pattern of harassment of several Varian Associates employees, Varian terminated Delfino's employment on October 8, 1998.
DEFENDANT'S WRONGFUL CONDUCT ON THE INTERNET
17. Plaintiffs are informed and believe, and on that basis allege, that commencing immediately after Delfino's termination from Varian Associates, defendants began a pattern of unlawful conduct described below and which is the subject of this Complaint.
18. Plaintiffs are informed and believe, and on that basis allege, that defendants have committed a variety of wrongful conduct. This conduct, includes but is not limited to, the actions by defendants in impersonating various Varian employees, including but not limited to, Susan Felch, George Zdasiuk, Dick Aurelio, Jane Crisler, and others, and posting on various Internet web pages emails allegedly from the impersonated Varian employeees, which contain false and defamatory statements. In addition, defendants have defamed both Varian Associates and its employees through a variety of false allegations, including by contentions that employees 'cause some trouble,' that nobody at Varian Associates 'is working,' that Varian employees are having affairs with other employees and executives, that Varian employees are engaged in projects that waste money, and that Varian Associates has engaged in actions including, but not limited to 'corporate rape.'
19. Defendants have published on the Internet numerous emails regarding Susan Felch. In many cases, defendants have impersonated Felch by posting emails that appear to be authored by Felch but were in fact authored by defendants. In addition to the wrongful appropriation of Felch's name, the contents of the emails are defamatory and invade Felch's privacy in several different ways. Examples of emails that falsely show Felch as the author include:
a. - h.
20. In addition to the emails in which defendants impersonate Felch, defendants have also published on the Internet numerous additional emails in which defendants have defamed Felch and invaded her privacy. In these additional wrongful emails, defendants have either (a) impersonated other Varian employees by giving the emails the appearance of having been authored by such other Varian employees, or (b) posted the emails under aliases (such as 'go_get_help,' 'ah_michelangelo,' and 'bite_me_now' ) such that the true authors of the emails cannot be determined without obtaining information from the operators of the Internet web site pursuant to subpoena. Examples of statements in these additional emails are:
a. - r.
21. Defendants have published on the internet numerous emails regarding George Zdasiuk. Defendants have impersonated Zdasiuk by posting emails which appear to be authored by Zdasiuk but which were in fact authored by defendants. In addition to the wrongful appropriation of Zdasiuk's name, the contents of the emails are defamatory and invade Zdasiuk's privacy in several ways. Examples of emails that falsely show Zdasiuk as the author are:
a. - d.
22. In addition to the emails in which defendants impersonate Zdasiuk, defendants have also published on the Internet numerous additional emails in which defendants have defamed Zdasiuk and invaded his privacy. In these additional wrongful emails, defendants have either (a) impersonated other Varian employees by giving the emails the appearance of having been authored by such other Varian employees, or (b) posted thev emails under aliase (such as 'ah_michelangelo,' 'go_get_help,' and 'manuforte' ) Examples of statements in these additional emails include:
a. - l.
23. Defendants have published on the Internet numerous emails in which defendants have defamed Varian Associates and engaged in unfair competition. Defendants' emails regarding Varian Associates are part of a scheme to harm Varian Associates and its successors-in-interest, including Varian Medical and Varian Semiconductor, by falsely portraying Varian Associates as poorly managed, having employees with no work to do because the company's business is deteriorating, having overpriced stock, and having quality problems with its products. Defendants have furthered this scheme by posting on the Internet a slew of emails which are not only defamatory and unfair, but in which defendants impersonate Varian managers and employees so as to give the impression that the defamatory and unfair representations are based on knowledge of highly-placed Varian employees and that these extremely negative views are widely held throughout Varian. Defendants have also furthered this scheme by posting on the Internet numerous emails authored by aliases such as 'manuforte', 'bite_me_now', 'go_get_help', 'gino_in_torino', 'dick_et_al', halperthal', 'lickamea,' 'ah_michelangelo', 'jane_crisco', 'ernesto', 'aronaldo', 'Giveemdx', 'ramrod_fishguts', 'FSUfanNORcal', and having these aliases respond to each other on the internet, thereby creating the impression that there is a multitude of people who have inside information about Varian which reflects badly on Varian's business and which could drive down Varian's stock price. In addition to defaming Varian Associates and being unfair, this scheme is likely to deceive consumers, stockholders, and potential consumers and stockholders regarding Varian Associates and its successors-in-interest, including Varian Medical and Varian semiconductor, as well as their products and their stock.
24. In addition to the emails discussed above regarding felch and Zdasiuk -- which also reflect poorly on Varian -- examples of these emails that defendants have published on the internet regarding Varian include:
a. - o.
25. One of defendants' objectives in posting the messages has been to drive down Varian's stock price. This is evidenced by the fact that defendants have posted all of the messages on stock-related internet sites, and defendants have specifically stated in several of the messages that Varian Associates' stock is extremely overvalued.
26. Another of defendants' objectives has been to cause personal distress to the Varian managers who were directly responsible for the termination of Delfino's employment with Varian, including but not limited to Felch and Zdasiuk.
27. Defendants' intent in making such allegations is to defame and harm Plaintiffs and various Varian employees, as well as to harm the price of Varian securities. Furthermore, by appropriating the identity of various Varian employees including Felch, and posting messages attributed to persons other than the sender, defendants have wrongly appropriated the identities of individuals.
28. Plaintiffs have been damaged by defendants' wrongful conduct, as described above. Plaintiffs' injury will be much greater -- irreparable -- if defendants are permitted to continue their wrongful conduct.
THE 10 CLAIMS
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray that the Court:
1. Enter judgment in favor of all Plaintiffs and against all defendants, jointly and severally, on all claims for relief.
2. Preliminarily and permanently enjoin defendants and their agents, servants, and employees, and all persons acting under, in concert with, or for them, from directly or indirectly continuing to:
a. Publish messages on the internet whose content relates to Varian and/or any of its employees, officer, or agents, or which relates to Varian's business or stock price, under any name other than defendants' true names;
b. Publish emails falsely attributed to Varian and its employees containing facts which place Varian and its employees in a false light;
c. Impersonate any past, present or future Varian employee, officer or agent in any email, message board, or other electronic communication, including but not limited to any communications which are transmitted on or through the internet; and
d. Interfere with Varian's advantageous business relationships;
3. Order defendants to pay Plaintiffs the general damages sustained by Plaintiffs as a result of defendants' unlawful acts;
4. Order defendants to pay Plaintiffs the special damages sustained by Plaintiffs as a result of defendants' unlawful acts;
5. Order defendants to pay Plaintiffs punitive damages;
6. Order defendants to pay Plaintiffs their attorney's fees incurred in this action and all other costs of the action; and
7. Order such other relief as the Court deems just and equitable.
Dated: February 25, 1999
Joseph C. Liburt
Attorneys for Plaintiffs..."
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