Be Careful Who You SLAPP!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
"Contempt Claim Brought in Internet Libel War
Shannon Lafferty
The Recorder
01-09-2003
Two defendants embroiled in an Internet libel suit with their former employer
are now demanding contempt proceedings for opposing counsel, arguing they are
misrepresenting a court order.
Defendants Mary Day and Michelangelo Delfino are asking the 6th District Court
of Appeal in San Jose, Calif., to hold attorneys for Varian Medical Systems
Inc. and Varian Semiconductor Equipment Associates Inc. in contempt for
sending out cease-and-desist letters based on a trial court injunction now
temporarily stayed by the 6th District.
The pair's attorney, John Eisenberg -- a partner at Encino, Calif.'s Horvitz &
Levy -- filed a motion for adjudication of contempt Wednesday.
In court papers, Eisenberg argues that Orrick, Herrington & Sutcliffe partner
Lynne Hermle and Pillsbury Winthrop partner Thomas Loran III, "coerced a
bookseller and several newspapers to cease distributing and running
advertisements for a book written and published by appellants" by using
threats of litigation.
According to papers filed with the court, "The threats are premised on
misrepresentations that such distribution and advertising will violate the
trial court's judgment in this case, without disclosing that the judgment has
been stayed by this court's supersedeas order."
On Wednesday, Eisenberg acknowledged it was unusual to request contempt from
an appellate court. "It's a very serious accusation not made lightly," he
said.
Loran said he doesn't think this contempt processing "has any merit."
"Varian will respond to the motion in due course," he said. "I don't think
what I said violates any court order. Nothing that was done was improper."
The motion for contempt is the latest shot fired in an ongoing battle over
Internet babble. Varian Medical and Varian Semiconductor sued former employees
Day and Delfino for posting thousands of Internet messages about Varian.
Day and Delfino have posted more than 13,000 messages about Varian, its
executives and lawyers, and maintained a Web site primarily for that purpose.
In November 2001, a Santa Clara Superior Court jury found Day and Delfino had
libeled Varian and its employees and had invaded their privacy. The pair was
ordered to pay $775,000 in damages. Santa Clara Superior Court Judge Jack
Komar also permanently enjoined the pair from posting specific messages on the
Web.
Day and Delfino appealed, and the 6th District stayed Komar's injunction
pending appeal.
The two published a book, "Be Careful Who You SLAPP," contending that the
libel trial was a strategic lawsuit against public participation. They also
purchased advertisements in local newspapers, including The Recorder, to
promote the book. Although The Recorder was aware of the stay, it chose to
discontinue the advertisements after being contacted by Loran.
Hermle sent letters to Barnes & Noble demanding the book retailer stop selling
Day and Delfino's book online to avoid liability. Hermle attached a copy of
the trial court judgment.
Hermle's letter to Barnes & Noble does not mention the appellate court stay
but does state that contempt proceedings against the pair are stayed. It does
not mention that the injunction is stayed as well. "The superior court has
initiated contempt proceedings against Mr. Delfino and Ms. Day for repeatedly
violating the injunction, but those proceedings have been stayed pending
resolution of the defendants' appeal of the judgment.""
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