For the first time ever, the public has access to the latest (the 4th) complaint that the Varian (VAR & VSEA), Susan B. Felch & George Zdasiuk Plaintiffs have submitted to the Courts (not yet ruled upon by the presiding Judge Rushing):
geocities.com
Third Amended and Supplemental Complaint for Damages and Injunctive Relief
"Plaintiffs Varian Medical Systems, Inc. ('Varian Medical'), Varian Semiconductor Equipment Associates, Inc. ('Varian Semiconductor'), on behalf of themselves, their employees, and the general public, Susan B. Felch, and George Zdasiuk (collectively, 'Plaintiffs'), hereby complain and allege against defendants Michelangelo Delfino, Mary E. Day, and Does 2 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, unfair competition, libel, invasion of privacy, breach of contract, and conspiracy, as well as Cal. Bus. & Prof. Code §§ 17200 et seq., Cal. Bus. & Prof. Code §§ 17500 et seq.
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.
3. Defendant Michelangelo Delfino removed this case to federal court by filing a Notice of Removal on March 25, 1999. This Court regained jurisdiction when the federal court entered an order remanding the case to this Court and mailed a certified copy of the remand order to this Court.
THE PARTIES
4. Varian Associates, Inc. ('Varian Associates') was one of the original plaintiffs in this action. Varian Associates was 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. At all times herein mentioned, Varian Associates enjoyed a good reputation both generally and in its business and in relation to its goods and services. On April 2, 1999, Varian Associates completed its reorganization into three independent, public companies: Varian Medical, Varian Semiconductor, and Varian, Inc. These companies are the successors-in-interest to Varian Associates.
5. Varian Medical 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 Medical is a U.S. -based manufacturer of a variety of medical products. Varian Medical has always enjoyed a good reputation both generally and in its business and in relation to its goods and services.
6. Varian Semiconductor is a corporation duly organized and existing under the laws of the State of Delaware, having its principal place of business in Essex County, at Gloucester, Massachusetts. Varian Semiconductor is a U.S. -based manufacturer of ion implantation systems that perform a key step in the semiconductor chip manufacturing process. Varian Semiconductor has always enjoyed a good reputation both generally and in its business and in relation to its goods and services.
7. Susan B. Felch is an individual who resides in Santa Clara County, California. She was employed continuously by Varian since 1985.
8. George Zdasiuk is an individual who resides in San Mateo County, California. He has been employed continuously by Varian since 1980.
9. 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.
10. Plaintiffs are informed and believe, and on that basis allege, that defendant Mary E. Day is a California resident who resides in Santa Clara County, California. Day was formerly named as 'Doe 1' in this action.
11. Plaintiffs are ignorant of the true names and capacities of the defendants sued herein as Does 2 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.
12. 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
13. Delfino was hired by Varian Associates on April 25, 1988 as a Senior Engineer.
14. 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.
15. Delfino was transferred in 1995 to a position in which his new supervisor was George Zdasiuk.
16. 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.
17. 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 supervisor.
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.
18. 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.
19. In September 1998, Felch notified Jane Crisler that Delfino had, despite earlier warnings, continued to make gestures at her.
20. As a result of his continued pattern of harassment of several Varian Associates employees, Varian terminated Delfino's employment on October 8, 1998.
DAY'S EMPLOYMENT WITH VARIAN AND RELATIONSHIP WITH DELFINO
21. Day was hired by Varian Associates in or about April of 1983 and worked there as a Senior Engineer. She worked closely with Delfino at Varian Associates and quit shortly after Delfino was terminated from his employment at Varian Associates, on or about December 21, 1998.
22. While at Varian Associates, Day shared Delfino's animosity toward Felch, Zdasiuk, and others at Varian Associates.
23. Day lives two doors away from Delfino in the same condominium complex. Day and Delfino socialized regularly during their employment at Varian Associates and have continued to do so since leaving Varian Associates. On information and belief, Day and Delfino are involved in an ongoing sexual relationship with each other.
24. Since leaving Varian Associates, Day and Delfino have been running a company called MoBeta. Day and Delfino are the sole officers and employees of MoBeta. On information and belief, MoBeta is the alter ego of Day and Delfino.
DEFENDANT'S WRONGFUL CONDUCT ON THE INTERNET
25. 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.
26. 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.'
27. 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. The emails that falsely show Felch as the author contain the following statements, among others:
28. 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 'aronaldo') 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:
29. Defendants have published on the Internet numerous messages regarding George Zdasiuk. Defendants have impersonated Zdasiuk by posting messages which appear to be authored by Zdasiuk but which are in fact authored by defendants. In addition to the wrongful appropriation of Zdasiuk's name, the contents of the messages are defamatory of Zdasiuk and invade Zdasiuk's privacy in several ways. Examples of messages that falsely show Zdasiuk as the author are:
30. 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:
31. 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,' 'aronaldo,' 'go_get_help,' 'gino_in_torino,' 'dick_et_al,' 'halperthal,' 'jane_crisco,' and 'ah_michelangelo,' 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.
32. In addition to the messages discussed above regarding Felch and Zdasiuk - which also reflect poorly on Varian Associates and its successors-in-interest, including Varian Medical and Varian Semiconductor -- examples of the messages that defendants have published on the Internet regarding Varian Associates include:
33. Many of the messages described above were posted on the Yahoo! Inc. message board for Varian Associates, Inc. To post a message on this board, a user must sign up for 'Yahoo! Chat,' which entails agreeing to the terms of a service agreement. Plaintiffs allege, on information and belief, that defendants read the service agreement and agreed to its terms before posting any messages on the Yahoo! message board for Varian Associates, Inc. The terms of the service agreement include, but are not limited to, the following:
a. "Yahoo Chat currently is provided as a free service to users who agree to abide by the terms and conditions of this Agreement."
b. "ENTERING A CHAT ROOM OF YAHOO CHAT WILL CONSTITUTE ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ABIDE BY THESE TERMS, PLEASE DO NOT ENTER YAHOO CHAT."
c. You agree not to do any of the following actions while using Yahoo Chat:
(1) harass, threaten, embarass or cause distress or discomfort upon another Yahoo Chat participant, user, or other individual or entity;
(2) transmit via Yahoo Chat any information, data, text, files, links, software, chat, communication or other materials ('Content') that Yahoo considers to be unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, hateful, racially, ethnically or otherwise objectionable;
....
(4) impersonate in Yahoo Chat any person, including but not limited to, a Yahho official, forum leader, guide or host;
....
(7)intentionally or unintentionally violate any applicable local, state, national or international law, including but not limited to any regulations having the force of law while using or accessing Yahoo Chat or in connection with your use of Yahoo Chat in any manner.
34. One of defendants' objectives in posting the messages has been to drive down the stock price of Varian Associates, Varian Medical, and Varian Semiconductor. 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 and that readers should sell their Varian Associates stock.
35. 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.
36. 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.
37. 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.
DEFENDANTS' CONTINUED UNLAWFUL CONDUCT AFTER THE FILING OF THIS LAWSUIT AND THE ISSUANCE OF A TRO
38. Plaintiffs initially filed this lawsuit in the Superior Court for the County of santa Clara on February 26, 1999. On that date, the Superior Court issued a Temporary Restraining Order ('TRO') prohibiting Delfino from, inter alia, impersonating other persons on the Internet, using more than one alias to post Internet messages relating to Plaintiffs, defaming Plaintiffs in Internet messages, and disposing of his computer equipment.
39. On February 25, 1999, one day prior to filing the complaint, Plaintiffs notified Delfino by telephone and hand-delivered letter that they intended to file a complaint and seek the TRO the following day. The notice described the nature of the complaint and the requested relief.
40. On or about February 25 or 26, 1999, after Delfino was received the notice described in the previous paragraph, Day disposed of her used Apple Performa. On information and belief, Day disposed of her used Apple Performa with knowledge of the complaint and the TRO application in this case and with the intent to destroy evidence showing Day's and Delfino's responsibility for the Internet messages at issue in this lawsuit.
41. By reason of subsequent orders entered by the Santa Clara County Superior Court and this Court, the TRO remained in effect continuously until the Court issued a preliminary injunction on June 21, 1999.
42. Following the issuance of the TRO, defendants have posted at least eight messages on the internet under several aliases in which defendants continue to defame, harass, and impersonate Plaintiffs and related persons in direct violation of the TRO. These messages include the following:
DEFENDANTS' CONTINUED DEFAMATORY POSTINGS AFTER THE FILING OF THIS SECOND AMENDED COMPLAINT
43. Following the filing of the Second Amended complaint in this action, defendants have posted, by their own admission, more than one thousand messages relating to this action. In many of these messages the defendants continue to defame and harass Plaintiffs, Plaintiffs' counsel, and other persons whose names have arisen as potential witnesses against defendants, including but not limited to Joseph Phair, Jim Fair, Ron Powell, Jane Crisler, Craig Moro, Jeff Wright, Kathy Hibbs, Dick Levy, Dick Aurelio, and others. In these messages, defendants have defamed Plaintiffs in new ways, such as by insinuating (i) that George Zdasiuk is homophobic; (ii) that Plaintiffs have videotaped persons in company bathrooms, going to the bathroom, using the bathroom, or engaging in private activities in the bathroom, or have otherwise invaded the privacy of persons in the bathroom, (iii) the Plaintiffs are bullies, fasicsts, tyrants, or seek to oppress free speech, or that this is a SLAPP lawsuit, (iv) that Plaintiffs destroyed or tampered with evidence, (v) that Susan Felch sabotaged a laboratory, (vi) that Susan Felch is 'scary' or has violent tendencies, and (vii) that George Zdasiuk would not have hired a woman employee if he had known she was pregnant. These messages, which the defendants admit posting, include the following:
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, directly or indirectly as follows:
a.Refrain from posting on, or e-mailing to, any Internet message board, chat room, stock page or other Internet posting pate or location (including but not limited to any Yahoo! or Stock-Talk page), any emails or electronic messages of any kind that refer, directly or indirectly, to Susan Felch, Kevin Felch, George Zdasiuk, Julie Fouquet, Jim Fair, Ron Powell, Jane Crisler, Craig Moro, Kathy Hibbs, Joseph Phair or any trial witness or attorney in this action.
b.Refrain from posting on, or e-mailing to, any Internet message board, chat room, stock page or other Internet posting pate or location (including but not limited to any Yahoo! or Stock-Talk page), any emails or electronic messages of any kind that defame or present false information about Varian Medical, Varian Semiconductor, Varian Associates, or any of their employees, agents, or attorneys, including, but not limited to, Susan Felch, George Zdasiuk, Richard, Levy, Richard Aurelio, Joseph Phair, and Kathy Hibbs, and/or their families, including, but not limited to, statements substanitally similar to or implying the following:
(1) That Susan Felch, Kevin Felch, George Zdasiuk, or Richard Aurelio is having or has had an extramarital sexual affair with any person;
(2) That Susan Felch, George Zdasiuk, Joseph Phair, Varian managers generally, or Plaintiffs' attorneys are liars or have intentionally made false statements regarding Delfino, Day, or MoBeta;
(3) That Susan Felch, George Zdasiuk, or Varian managers generally are neurotic, insane, or crazy;
(4) That Susan Felch, George Zdasiuk, or Varian managers generally hallucinate or imagine voices, faces, or gestures;
(5) That Susan Felch, George Zdasiuk, or Varian managers generally are non-technical persons;
(6) That Susan Felch, George Zdasiuk, or Varian managers generally, or Plaintiffs' attorneys are incompetent, unqualified, inept, stupid, ignorant, or not well-respected professionally;
(7) That Susan Felch, George Zdasiuk, or Varian managers generally do not follow company policy;
(8) That Susan Felch, George Zdasiuk, or Varian managers generally are homophobic;
(9) That Susan Felch, George Zdasiuk, Varian Associates, Varian Medical, or Varian Semiconductor wrongfully terminated or harassed Delfino, Day, or other employees, or drove them to quit, or created a hostile work environment;
(10) That Susan Felch, George Zdasiuk, Richard Levy, Kathy Hibbs, Craig Moro, or any other Varian employee, or Varian itself, has videotaped persons in company bathrooms, going to the bathroom, using the bathroom, or engaging in any private activities in the bathroom, or has otherwise invaded the privacy of any person in the bathroom;
(11) That Varian Associates, Varian Medical, Varian Semicondcutor, Susan Felch, George Zdasiuk, or Plaintiffs' attorneys are bullies, fascists, tyrants, or seek to oppress free speecj, or that this is a SLAPP lawsuit;
(12) That Varian Associates, Varian Medical, Varian Semicondcutor, Susan Felch, George Zdasiuk, or Plaintiffs' attorneys destroyed or tampered with evidence;
(13) That Susan Felch sabotaged a laboratory;
(14) That Susan Felch is 'scary' or has violent tendencies;
(15) That George Zdasiuk would not have hired a woman employee if he had known she was pregnant;
(16) That Richard Aurelio was removed from the board of directors of Novellus Systems for improprieties;
(17) That Susan Felch, George Zdasiuk, or employees generally at Varian Associates, Varian Medical, or Varian Semiconductor are not working, go home early, lack integrity, cheat the government, are underachievers, or intentionally lower product quality;
(18) That Delfino is a current Varian employee.
c. Refrain from telephoning, faxing, mailiig, or otherwise sending any letter or other form of communication for any purpose to Susan Felch, Kevin Felch, George Zdasiuk, Julie Fouquet, Richard Levy, Richard Aurelio, Joseph Phair, Kathy Hibbs, Ron Powell, Jim Fair, or Jane Crisler, or any trial witness or attorney, or their families, without the prior written consent of the recipient of the communication;
d. Refrain from using any pseudonym to discuss, in any way, any aspect of the business, stock prices, or employees of Varian Medcial or Varian Semiconductor on the Internet, except under the pseudonyms 'ima_posta2' (Delfino) and 'dantecristo' (Day);
e. Refrain from impersonating Susan Felch, George Zdasiuk, or any other past or present employee, officer, or director of Varian Associates, Varian Medical, or Varian Semiconductor on the Internet or elsewhere; and
f. Refrain from conspiring with, encouraging, requesting, or otherwise contacting others to engage in any of the actions specified in the injunction.
3. Order defendants to pay Plaintiffs the general and presumed 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: July 4, 2000" |
