Varian SLAPP on Ice: Notice of Appeal Filed!
”Dear Mr. Poppe:
Attached to this letter you will find an endorsed filed copy of the Notice of Appeal filed today by Mary Day and Michelangelo Delfino. As you know, the perfecting of the appeal stays action upon the mandatory aspects of the judgment, which includes the requirement to remove material from web sites and postings. As a result of the appeal, the demand for internet removals that you cite in your letter of March 1, 2001 each encompass affirmative and mandatory actions (“shall remove” “must be stricken” “removed form defendants’ web site by ...”) of defendants, which are stayed by the appeal.
Your characterizations of the Internet pages and postings are not only premised on incorrect factual and legal conclusions, but they are also misleading and self-serving. You use the terms “false” and “misleading” without citing the specific language, much less the context, of the statement. You use the most general and vague references to language, leaving me to guess what it is you are complaining about. You claim things are not a “fair & true” report, without either providing the specifics of what is unfair or untrue, ,much less detailing what report(s). You claim impersonations, without citing specific names or identities. You claim violations for words or concepts that are not contained in the judgment. You equate “sick” with “mentally ill” without providing the authority or example, much less the context of what was said. You unilaterally claim that there are no privileges or constitutional rights that attach to any statements, and you insist that that is so because you find “malice” in such statements.
But your biggest offense to law, justice, logic, and just plain old good sense is your conclusion that “continuing stream of Internet postings” are by Ms. Day or Dr. Delfino. There is no basis for that self-serving conclusion, especially, as you know, the trial evidence revealed that several current and past employees of Varian were regular “flamers” on the web sites.
Please don’t take this letter to be my formal opposition to your accusations about my client or Ms. Day. This is merely to put you on Notice that you are not to proceed against the stay now in place against the mandatory aspects of the injunction. Your failure to heed this warning will result in sanctions being sought for your unlawful activities in violation of the automatic stay.
As to your proposal to be in Judge Komar’s department of Monday, March 11, 2002 at 8:30 a.m., not only would you be in violation of the automatic stay, but I am not available that morning, having long ago rescheduled a deposition that morning which had been previously continued due to my earlier participation in the trial of this case. I also understand from Mr. Widmann that he is also conflicted and can’t be there, either.
Finally, you have failed to meet and confer as to, as you put it, “... other violations contained in Internet messages they have posted ...” You have provided no information which messages you are referring to, yet you expect me to respond to those? This resembles the same ambush tactics (read: trick) that you utilized at trial. If a message is important enough for you to threaten legal action, I would think it would be important enough to specify in a letter to me. Apparently it isn’t, or more likely, you haven’t figured out a way to somehow tie it/them in as violative of the judgment.
I will be glad to sit down with you and meet and confer over any aspect of your letter, or of mine, to reach an amicable result, especially in light of the the appeal. Sometimes I truly wonder about the sincerity of your meet and confer offers. For instance, your letter of March 1, 2002 was hand delivered to my office on a late Friday afternoon at 4:59 p.m., exquisitely designed to make sure that it actually isn’t received by me until the following Monday, leaving not enough time to read, review, contact m y client and respond to your 100+ page accusations. That doesn’t seem fair, does it?
I would note, however, that your March 1, 2022 letter does acknowledge that my client has been making a good faith effort to comply with the court’s judgment, as you tacitly admit that the web site has been edited to contain asterisks to words possibly subject to the court’s order. My client has been in full compliance with the court’s ruling, judgment, and intended decision(s) (there were many - right up to time of signature).
Just let me know if you truly want to meet and confer (or even settle this case). We made you an offer, but apparently the conflict of interests between your respective individual and corporate clients have made it too difficult for you to respond. But, it was exactly in line with what Judge Komar had proposed, and which you acknowledge to him that you understood and would consider if made. And, it wouldn’t have cost your individual clients one red cent, and would have allowed all to move on with their lives or business with a quiet peace and accord. Which, is what I understood they wanted. Did corporate disapprove? We never heard a response from you.
Please confirm by voice-mail to 650-323-0333 that you are not appearing March 11, 2002.
Very truly yours,
Glynn Falcon”
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