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| The HP Litigation Begins - CNET Reporters File Suit |
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Thursday, August 16 2007 @ 01:57 PM EDT
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Several CNET reporters have now filed suit against Hewlett Packard over the pretexting scandal last year, Dawn Kawamoto, Stephen Shankland and Tom Krazit. The specific claims are invasion of privacy, intentional infliction of emotional distress, and violations of California Business & Professions Code §§ 17200 et. seq. That means there will be discovery. The most remarkable detail already revealed is this: In fact, Defendants continued to commit the alleged illegal and bad acts even after confirming that such actions were illegal and inappropriate. The defendants so far are HP, Patricia Dunn, Kevin Hunsaker, and Does 1 through 100, which means that if others turn out to have been involved as shown by discovery, their names will be added as defendants.
But while the plaintiffs ask the court for injunctive relief and damages and punitive damages, I don't think this case is about money so much as it's about freedom of the press, the ability to report on a matter of interest to the public without being harassed or intimidated and without having your privacy, or your family's privacy, invaded. Courts can only make you whole to an extent, and that's why they award punitive damages sometimes. But it's not about the money; it's about making an example of a wrongdoer so others don't do the same thing, and so it doesn't become a habit, due to having insufficient penalties. Here's Shankland's Complaint as PDF. Relatives have filed too. Rachel Konrad, Shankland's wife and a reporter for AP, has also sued. All of the complaints are available from the court and from the Plaintiff's law firm, Panish Shea & Boyle. Here's the press release. All the complaints, which are as far as I can see on a quick reading identical, were filed in California Superior Court for the County of San Francisco. So negotiations to try to avoid litigation evidently broke down. That surprises me beyond words, that HP would let this go to discovery and then trial.
I said I'd cover any such litigation if it happened, though, so I am making available Stephen Shankland's Complaint as text, as representative of the group.
HP has issued a statement: "As we have said since last fall, HP regrets these events, and we have apologized individually to those who were affected," said Ryan Donovan, an HP spokesman. "In an attempt to resolve this matter short of litigation, HP made a substantial settlement offer to the reporters, their family members and a charity of their choice. Unfortunately, rather than respond to the offer, they have decided to sue. HP is disappointed by their decision and will defend itself." When they file their answer, I'll provide it also. What does it all mean, aside from being unusual for reporters to sue companies they report on? Reporters don't much want to be the story, after all. Looking at the complaint, I see a couple of other things. First, as mentioned, the plaintiffs seem to believe that HP continued their alleged activities after admitting they were illegal. They are asking for an injunction against any future such activities. And I gather there may be an issue about getting records back from HP. But the big issue seems to be punitive damages. They want the court to award not only an injunction to make sure HP never does this again, but punitive damages in an amount high enough to deter others from ever doing anything like it.
You can also go to the court website where all the complaints were filed to view them. For example, here's Shankland's. The court shows you only an image, and it's very, very hard to read. So are the PDFs. That means, of course, that I may have made errors in hand typing, so go by the court version for anything that matters. Thomas and Rebecca Shankland, his parents, have also filed. Tom Krazit has one filed too, as has Dawn Kawamoto. Her husband Jon is co-Plaintiff.
I'll explain the steps you need to take to find documents like this that are filed in state courts, as opposed to what you are used to, federal district courts, which would be found more easily on PACER. This is a bit more complex. Go to Groklaw's Legal Research page. Click on Courts, then ALSO by state. Notice all the amazing resources available to you. Cases, court information, court rules for each county, state government agencies, bar associations, law-related periodicals, municipal codes, rules of practice, etc. This is available for all states. This litigation is about California Business and Professions Code, for example, and you can scroll down to find the specific section referenced, 17200 et. seq. Isn't ALSO handy? Next, from ALSO's list of states, choose California. Scroll down the page to find the courts. You want Superior Court Web Sites, the one in San Francisco. That takes you to the Superior Court of California, County of San Francisco website. Look for
Civil Online Register of Actions in the right-hand menu. It's Case Number CGC-07-466208. Or search by Shankland as the keyword in Name Search, then Stephen from the results. Note that while it says the fee is $335, that's the filing fee, I believe. You can safely click view and read it for free. The court gives instructions for Windows and Apple Macs only. Sigh.
**************************
PANISH, SHEA & BOYLE, LLP
Lawyers
[address, phone, fax]
BRIAN J. PANISH, STATE BAR No. 116060
KEVIN R. BOYLE, STATE BAR No. 162710
RAHUL RAVIPUDI, STATE BAR No. 204619
Attorneys for Plaintiff
Filed Aug. 15, 2007
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
___________________________
STEPHEN SHANKLAND, an individual,
Plaintiff,
vs.
HEWLETT-PACKARD COMPANY, a Delaware Corporation,
KEVEN T. HUNSAKER, an individual,
PATRICIA DUNN, an individual, and
DOES 1 through 100,
Defendants.
____________________
Case No. CGC-07-466208
COMPLAINT
1. Invasion of Privacy/Intrusion
2. Intentional Infliction of Emotional Distress
3. Violation of California Business & Professional Code §§ 17200 et. seq.
DEMAND FOR JURY TRIAL
FILED BY FAX
COMES NOW the Plaintiff, STEPHEN SHANKLAND, who, on information and belief, complains and alleges as follows:
GENERAL ALLEGATIONS
1. Defendants have admitted that, as a general practice, they engaged in "pretexting" by attempting to obtain personal information of others through fraud and false pretenses. In an interview held on September 8, 2006, when asked if she believed pretexting is illegal, Defendant Patricia Dunn replied, "I have no idea, but it's wrong."
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2. On September 12, 2006, Defendant Patricia Dunn, who was at the time Chairman of the Board for HP, admitted that pretexting "technologies were practiced on a number of individuals including certain directors, two employees and a number of individuals outside of the company including journalists."
3. To further highlight HP's widespread use of pretexting, on September 28, 2006, Defendant Patricia Dunn testified before the United States Congress that "the fraudulent misrepresentations of identity... was part of a standard arsenal" of HP tactics.
4. Subsequent to these disclosures and admissions, both State and Federal Governments initiated civil and criminal indictments on HP, and its officers and agents. As a result of the State Government investigations, on December 7, 2006, the Superior Court of the State of California entered a Final Judgment and Permanent Injunction, which, among other things, imposed monetary penalties of $14.5 million and required HP to undertake efforts to reform its corporate governance.
5. In addition, certain Defendants involved in the pretexting scandal have been indicted by the United States Government. In fact, in January 2007, Bryan Wagner, a Colorado private investigator, pleaded guilty to two felony charges in the San Jose federal court. In pleading guilty to two felony counts, Bryan Wagner admitted that he was paid as part of a conspiracy with HP to make fraudulent use of Social Security numbers and other confidential information to obtain the personal phone records of reporters and HP officials as well as their family members.
6. Moreover, the Federal Government was so alarmed by Defendants' conduct that it too became involved by expediting the drafting and enactment of legislation. The United States Congress drafted and the President signed into action the Telephone Records Privacy Act of 2006 which expressly outlaws pretexting in an attempt to obtain another's telephone records -- the very acts committed by Defendants.
7. Plaintiff is informed and believes, and thereupon alleges, that by using Plaintiff's social security number and other personal information, Defendants engaged in illegal and reprehensible conduct which includes, but is not limited to, contacting Plaintiff's home, work and cellular phone providers and falsely represented themselves as the Plaintiff in order to obtain his private telephone records.
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8. Plaintiff had a reasonable expectation of privacy in the intercepted information and also had a reasonable expectation that such information would not be intercepted. Plaintiff only became aware of the intercepting and disclosure of his confidential communications and information within the last year.
9. Accordingly, the Plaintiff brings this action to redress Defendants' attempts to obtain his personal information through fraud and false pretenses.
PARTIES
10. Plaintiff, STEPHEN SHANKLAND, is, and at all relevant times herein was, a journalist and resident of the State of California.
11. Plaintiff is informed and believes, and thereupon alleges, that at all times mentioned herein, Defendant HEWLETT-PACKARD COMPANY (hereinafter referred to as "HP"), was and now is a corporation organized and existing under and by virtue of the laws of the State of Delaware, and that said Defendant has regularly conducted business in the State of California.
12. On information and belief, Defendant Kevin T. Hunsaker is an individual who, at all relevant times, was the in-house counsel and ethics chief for HP and was a resident of the State of California.
13. On information and belief, Defendant Patricia Dunn is an individual who, at all relevant times, was the Chairman of the Board of Hewlett Packard and a resident of the State of California.
14. The true names and/or capacities, whether individual, corporate, associate, governmental or otherwise of Defendants, DOES 1 through 100, inclusive, are unknown to Plaintiff at this time, who therefore sues said Defendants by such fictional names, and when the true names and/or capacities of said Defendants have been ascertained, Plaintiff will amend this complaint accordingly. Plaintiff is informed and believes, and thereupon alleges, that each Defendant entered herein as a DOE is responsible, negligently or in some other actionable manner, for the events and happenings hereinafter referred to, and caused injuries and damages proximately thereby to Plaintiff
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as hereinafter alleged, either through said Defendants' own conduct or through the authorized and/or ratified conduct of its agents, servants or employees or in some other manner.
15. Plaintiff is informed and believes, and thereupon alleges, that at all times mentioned herein, Defendants, and each of them, including DOES 1 through 100, inclusive, were the agents, servants, employees, joint venturers, successors-in-interest and/or alter ego of their coDefendants, and were, as such, acting within the scope, course and authority of said agency, employment, joint venture, successorship-in-interest and/or alter ego and that each and every Defendant, as aforesaid, when acting as a principal, was negligent in the selection and hiring of each and every other Defendant as the agent, servant, employee and/or joint venturer, and that each and every Defendant, when acting as a manager, director and/or officer of the Defendant corporation, authorized, ratified or otherwise approved of the acts of its agents, employees and/or representatives as alleged herein.
FIRST CAUSE OF ACTION
(Invasion of Privacy/Intrusion as Against All Defendants)
17. Plaintiff repeats and incorporates herein by reference all of the allegations contained in the preceding paragraphs.
18. Plaintiff had a legally protected privacy interest in his confidential records.
19. Plaintiff had a reasonable expectation of privacy under the circumstances that his confidential records and communications would not be intercepted, copied and/or reviewed.
20. Defendants' conduct in pretexting to obtain Plaintiff's confidential records constitutes a serious invasion of privacy.
21. In addition, Defendants conspired to and intentionally intruded into the Plaintiff's solitude and private affairs by surreptitiously pretexting and obtaining information about Plaintiff's private affairs without his knowledge or consent, Defendants' intrusion was highly offensive to a reasonable person because, among other things, the intrusion resulted in the revelation of confidential and private communications.
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22. As a direct and proximate result of Defendants' actions alleged above, Plaintiff suffered damages, including emotional distress damages, all according to proof at trial, but in excess of the minimum jurisdictional limit of the Court.
23. As a direct and proximate result of Defendants' actions alleged above, Plaintiff has lost and will continue to lose income, interest and benefits, in an amount to be proven at the time of trial, which amount is in excess of the minimum jurisdictional limit of the Court, as well as additional foreseeable consequential and incidental damages in an amount to be shown at the time of trial.
24. In addition, Defendants' conduct as described herein was done with a conscious disregard of Plaintiff's rights, and was done with the intent to vex and annoy him. In fact, Defendants continued to commit the alleged illegal and bad acts even after confirming that such actions were illegal and inappropriate. Defendants' acts constitute oppression, fraud and/or malice under California Civil Code Section 3294, entitling Plaintiff to an award of punitive damages in an amount appropriate to punish or set an example of the Defendants, and each of them, in an amount to be determined at trial.
SECOND CAUSE OF ACTION
(Intentional Infliction of Emotional Distress as Against All Defendants)
25. Plaintiff repeats and incorporates herein by reference all of the allegations contained in the preceding paragraphs.
26. Defendants' intentional acts of pretexting to obtain Plaintiff's confidential and personal records without his consent were outrageous.
27. Defendants intended to cause Plaintiff emotional distress or acted with reckless disregard of the probability of causing him emotional distress, and did so for the purpose of causing Plaintiff to suffer humiliation and mental anguish.
28. Plaintiff suffered severe emotional distress as a proximate result of Defendants' outrageous conduct.
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29. As a direct and proximate result of Defendants' actions alleged above, Plaintiff suffered damages, including emotional distress damages, all according to proof at trial, but in excess of the minimum jurisdictional limit of the Court.
30. As a direct and proximate result of Defendants' actions alleged above, Plaintiff has lost and will continue to lose income, interest and benefits, in an amount to be proven at the time of trial.
31. In addition, Defendants' conduct as described herein was done with a conscious disregard of Plaintiff's rights, and was done with the intent to vex and annoy them. Defendants' acts constitute oppression, fraud and/or malice under California Civil Code Section 3294, entitling Plaintiff to an award of punitive damages in an amount appropriate to punish or set an example of Defendants, and each of them, in an amount to be determined at trial.
THIRD CAUSE OF ACTION
(Violations of Business & Professions Code §§ 17200 et. seq.
As Against HP and DOES 1 through 50)
32. Plaintiff repleads and incorporates herein by reference all of the allegations contained in the preceding paragraphs.
33. Business & Professional Code §§ 17200 et. seq. defines unfair business practices to include any "unlawful, unfair and fraudulent" business act or practice.
34. Defendants' widespread practice of pretexting as alleged above is unfair, fraudulent and deceptive.
35. By committing the acts and practices alleged above, Defendants have been and continue to be engaged in unfair and/or deceptive business practices within the meaning of the Business & Professional Code §§ 17200 et. seq.
36. Plaintiff has been injured in fact and has lost money and property as a result of Defendants' unfair business practices as alleged throughout this Complaint.
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37. Defendants, through their acts of unfair and deceptive business practices, have obtained a value as a direct result of their scheme. Plaintiff requests that the Court impose relief by way of restitution by ordering that the Defendants return any direct or indirect gains to the Plaintiff and to enjoin Defendants from continuing to violate the Business & Professional Code by pretexting in the future.
38. As a further result, the Court should also order Defendants to make restitution of all ill-gotten gains attributable to these acts and practices, plus interest and award any other relief the Court deems appropriate.
39. Plaintiff also respectfully requests an award of attorneys' fees, costs and expenses upon prevailing in the request for relief against Defendants.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays judgment against Defendants HP, Kevin T. Hunsaker, Patricia Dunn, and DOES 1 through 100, and each of them, as follows:
1. General damages according to proof and beyond the jurisdictional minimum of this court;
2. Punitive damages in an amount to be determined by the trier of fact;
3. Damages for loss of earnings, past and future, according to proof;
4. Damages for lost earning capacity, according to proof;
5. Damages for Plaintiff's other economic losses, according to proof;
6. Cost of suit incurred herein;
7. Such other relief as the court deems just and proper.
WHEREFORE, Plaintiff further prays judgment against Defendants HP and DOES 1 through 50, and each of them as follows:
8. Restitution as permitted under California Business & Professional Code §§ 17200 et. seq.
9. Disgorgement of profits as permitted under California Business & Professional Code §§ 17200 et. seq.
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10. Injunctive Relief as permitted under California Business & Professions Code §§ 17200 et. seq.
11. Reasonable attorneys' fees as permitted under California Business & Professions Code §§ 17200 et. seq.
DATED: August 14, 2007
PANISH, SHEA & BOYLE, LLP
__[signature]___
BRIAN J. PANISH
KEVIN R. BOYLE
RAHUL RAVIPUDI
Attorneys for Plaintiff
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DEMAND FOR JURY TRIAL
Plaintiff hereby demands a trial by jury for all causes of action in the instant matter.
DATED: August 14, 2007
PANISH, SHEA & BOYLE, LLP
__[signature]___
BRIAN J. PANISH
KEVIN R. BOYLE
RAHUL RAVIPUDI
Attorneys for Plaintiff
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| Authored by: rc on Thursday, August 16 2007 @ 02:01 PM EDT |
| And please observe the important stuff! Thanks! ---
rc [ Reply to This | # ]
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- Novell's OOXML --> ODF translator - Authored by: stites on Thursday, August 16 2007 @ 02:42 PM EDT
- Future Groklaw addict! - Authored by: DL on Thursday, August 16 2007 @ 03:22 PM EDT
- Congratulations - Authored by: Anonymous on Thursday, August 16 2007 @ 03:40 PM EDT
- Congratulations - Authored by: Anonymous on Thursday, August 16 2007 @ 03:56 PM EDT
- Groklaw - Comment Administration - Authored by: Anonymous on Thursday, August 16 2007 @ 03:46 PM EDT
- Future Groklaw addict! - Authored by: PJ on Thursday, August 16 2007 @ 03:52 PM EDT
- To the moon! - Authored by: Anonymous on Thursday, August 16 2007 @ 04:44 PM EDT
- Congratulations - Authored by: tyche on Thursday, August 16 2007 @ 03:53 PM EDT
- Congratulations!!! - Authored by: Anonymous on Thursday, August 16 2007 @ 03:55 PM EDT
- Future Groklaw addict! - Authored by: LaurenceTux on Thursday, August 16 2007 @ 10:00 PM EDT
- Future Groklaw addict! - Authored by: chaz_paw on Thursday, August 16 2007 @ 11:58 PM EDT
- Future Groklaw addict! - Authored by: JamesK on Friday, August 17 2007 @ 08:36 PM EDT
- Name? - Authored by: Anonymous on Saturday, August 18 2007 @ 04:35 AM EDT
- anyone know about vista opengl? - Authored by: skip on Thursday, August 16 2007 @ 04:19 PM EDT
- M$ in decline - Authored by: Anonymous on Thursday, August 16 2007 @ 04:34 PM EDT
- MS Homeland Security Ties. - Authored by: Anonymous on Thursday, August 16 2007 @ 07:32 PM EDT
- MS and Canada - Authored by: mram on Thursday, August 16 2007 @ 07:45 PM EDT
- Question on SCO 8K filed Thursday AM. - Authored by: Anonymous on Thursday, August 16 2007 @ 08:29 PM EDT
- Off-Topic Here, please - Authored by: LaurenceTux on Thursday, August 16 2007 @ 10:04 PM EDT
- Off-Topic Here, please - Authored by: Anonymous on Thursday, August 16 2007 @ 10:09 PM EDT
- Next SCO v Novell court deadlines - Authored by: Anonymous on Thursday, August 16 2007 @ 11:48 PM EDT
- http://en.wikinews.org/wiki/Reports:_Richard_Stallman%2C_founder_of_GNU_Project_missing_in_Peru - Authored by: Anonymous on Friday, August 17 2007 @ 12:31 AM EDT
- Frantic Desperate SCO shill's looking for relief - Authored by: Anonymous on Friday, August 17 2007 @ 12:38 AM EDT
- [Dell] 'Bout time -- Dell to restate earnings after probe - Authored by: Aladdin Sane on Friday, August 17 2007 @ 02:32 AM EDT
- Microsofts Refurbishment programme - Authored by: Anonymous on Friday, August 17 2007 @ 05:12 AM EDT
- Off-Topic Here, please - No lock in here, just support the customer. - Authored by: Anonymous on Friday, August 17 2007 @ 08:43 AM EDT
- IBM
IBM developerWorks Article on the XO Laptop - Authored by: luvr on Friday, August 17 2007 @ 09:16 AM EDT
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| Authored by: SpaceLifeForm on Thursday, August 16 2007 @ 02:03 PM EDT |
---
You are being MICROattacked, from various angles, in a SOFT manner.[ Reply to This | # ]
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| Authored by: rc on Thursday, August 16 2007 @ 02:05 PM EDT |
| And please observe the Important stuff!
Also, tradition has it to
put the title of the newpick in your subject (and I personally request a link to
the newspick item also - all too often an interesting one shows up and its
already scrolled off - of course, I guess I could just go to the 'previous
newspics' page or whatever its called :-)
Anyway - thanks! And thanks again
to PJ for such a useful site! ---
rc [ Reply to This | # ]
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| Authored by: Carlo Graziani on Thursday, August 16 2007 @ 02:23 PM EDT |
In fact, Defendants continued to commit the alleged illegal and bad
acts...
The wording struck me. Is there a legal distinction
being drawn here? Is "bad" a legal term, a qualifier that somehow makes an
"illegal" act worse, or is this just rhetorical flimflam? [ Reply to This | # ]
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| Authored by: Aladdin Sane on Thursday, August 16 2007 @ 02:33 PM EDT |
| HP would never get close to a situation like this.
This company needs to
change its name.
Toxic HP sounds about right. ---
"You
interact with a computer differently when you can trust it to be reliable."
--from a blog comment, 2007-07 [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 16 2007 @ 02:35 PM EDT |
They admitted guilt out of court, yet they will 'defend'.
Isn't it simpler to admit guilt before court too?
They might spare some money they will pay to lawyers and also their remaining
grace before the public.
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 16 2007 @ 02:38 PM EDT |
"the ability to report on a matter of interest to the public" ...
funny choice of words, I'm not aware of any particular merit in allowing
reporters to comment freely on matters "of interest to the public" ...
please take careful note, this is totally and utterley different to
"matters of public interest".
For example, it is in the public interest to disclose alleged offences committed
by some celebrity, and whilst it may well be of interest to the public what
they get up to in their bedroom, it is not in the public interest to disclose
such a thing.
I do find this whole lawsuit very odd. Reporters have used for years and years a
huge variety of crooked techniques to find information they have no reason to
know, however when the boot is on the other foot, they start squealing like
children.
[ Reply to This | # ]
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| Authored by: rsteinmetz70112 on Thursday, August 16 2007 @ 02:43 PM EDT |
It is my understanding that the intent was that no one ever know that this
investigation was done and it only became known when a disgruntled board member
went public.
Was there an "intent to vex and annoy"?
Certainly the part about "intended to cause Plaintiff emotional distress or
acted with reckless disregard of the probability" certainly is applicable,
since any idiot should have foreseen that this could easily become public.
If it hadn't become public would it have caused Emotional distress? Since HP
didn't make it public but a third party did does that mitigate HP's
responsibility.
I wonder about this because PJ mentioned in her article mentioned that reporters
should be able to report "without being harassed or intimidated". The
complaint does not seem to allege either harassment nor intimidation. They do
mention "oppression, fraud and/or malice" but that seems formulation
taken for the statute and a list of possible grounds of action rather than the
specific action in this case.
I imagine the issue of intent will form a large part of HP's response and
defense.
---
Rsteinmetz - IANAL therefore my opinions are illegal.
"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk
[ Reply to This | # ]
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| Authored by: rsteinmetz70112 on Thursday, August 16 2007 @ 03:01 PM EDT |
This sounds to me like they are relying on the advice a lawyer gave to HP. I
seem to recall several lawyers being involved, including at least one board
member. I'm not sure if HP had conflicting advice or not. I guess we'll see.
---
Rsteinmetz - IANAL therefore my opinions are illegal.
"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk
[ Reply to This | # ]
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| Authored by: DannyB on Thursday, August 16 2007 @ 03:02 PM EDT |
<Sarcasm>
According to all the FUD I've read, Groklaw is an
anti-SCO website.
So how can you cover a lawsuit where SCO is
not a party?
For that matter, how can you talk
about:
- OOXML
- Microsoft-Novell patent deal
- Microsoft-(everyone
else) patent deal
- ...and other inconvenient
topics...
</Sarcasm>
Could it be that Groklaw is
not an anti-SCO website?---
The price of freedom is eternal
litigation. [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 16 2007 @ 04:01 PM EDT |
9. Disgorgement of profits as permitted under California Business
& Professional Code §§ 17200 et. seq.
This will be an
interesting argument. What is the percentage of profits HP gained by these
actions?
[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 16 2007 @ 04:28 PM EDT |
it's about making an example of a wrongdoer
I'll call you on
that, PJ. Justice is served by objective verdicts, and penalties or damages
appropriate to the wrongdoing. Start "making an example" of people, and justice
goes out the window.
I find your holier-than-thou attitude to this case
misplaced. Journalists complaining about invasion of their privacy? Dear me!
Poor things!
(heavy sarcasm on)
Of course, no journalist would ever
invade anyone's privacy!
(heavy sarcasm off)
People have been driven to
suicide by journalists invading their privacy - and the paparazzi typically get
off scot-free. This lawsuit stinks.[ Reply to This | # ]
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| Authored by: ETian on Thursday, August 16 2007 @ 04:51 PM EDT |
6. "...The United States Congress drafted and the President signed into
action the Telephone Records Privacy Act of 2006 which expressly outlaws
pretexting in an attempt to obtain another's telephone records..."
I can understand why the reporters and their families would sue HP for
pretexting, but why list No. 6 as part of that reason? Wouldn't the new law be
enough to discourage pretexting, at least by HP, in the future? Did HP pretext
litigants after 2006?[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 16 2007 @ 04:57 PM EDT |
Not sure it matters, but the complaint claims John Doe 1-100 as defendants. The
prayer for relief asks for damages against Does 1-50.
Yeah, I realize that's the original, not Groklaw. [ Reply to This | # ]
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- How many Does? - Authored by: Anonymous on Thursday, August 16 2007 @ 06:15 PM EDT
- That's easy.... - Authored by: Jude on Thursday, August 16 2007 @ 06:40 PM EDT
- How many Does? - Authored by: Anonymous on Thursday, August 16 2007 @ 09:55 PM EDT
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| Authored by: Anonymous on Thursday, August 16 2007 @ 07:56 PM EDT |
Anyone remember when buying an HP printer actually *meant* something? Those were
the good old days. HP had a good, solid reputation. Now, these dirtbags who've
taken over the company have driven their company and their reputation into the
dirt.
That's what this lawsuit is really about. Showing the world what HP has really
become.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, August 16 2007 @ 08:31 PM EDT |
No doubt there will be many words/posts/opinions on this subject but I will
offer one thought:
The original founders of Hewlett Packard would have NEVER stooped so low as to
impugn their business they worked so hard to build by carrying on in this
manner. (put kindly, I hope)
I would surmise, both Bill Hewlett and David Packard would, for starters, have
nailed Carlton S. Fiorina's butt to the proverbial wall for her corporate power
plays and antics she exhibited during her "command of HP".
[ Reply to This | # ]
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| Authored by: RSC on Thursday, August 16 2007 @ 09:05 PM EDT |
I am not a big fan of journalists, never have been, because some, and I doubt I
would be incorrect in saying this, do practice dubious and most likely illegal
methods in obtaining information they use.
I think they are a necessary evil though. While some are reprehensible for their
actions, some times they do do good with the information they convey. Even if
the methods used to get that information could be questionable.
But from what I have seen from CNET and other IT reporters, in general is fairly
innocuous information. True, some seem to be very biased in their points of
view, but really I don't think you could say they behave like the tabloids and
some broadsheet reporters.
What I find ironic is that HP would feel so threatened by reporters that they
would go out of their way to do the things they have done. Do they honestly
believe that these reporters articles could harm their profits so much?
I know, I know, it would most likely be closer to the truth to say that the
company itself may not feel threatened but perhaps individual officers high up
in the company did feel threatened. I am not sure the real truth as to why they
behaved this will ever be revealed.
Its also quite funny, the touch of irony, the whole "reports sue for
invasion of privacy". Makes me laugh. I do feel sympathy for the reporters,
have no doubts, but I feel as a whole the media might wish to humbled by the
fiasco and perhaps learn from it themselves. Sometimes the invasion of privacy
that the media themselves commit, is not in anybodies interest.
It is a shame though to see the slow degeneration of a company that, not a
decade ago, was an industry standard for quality and integrity. Many times in my
30 odd year career, have I praised the products of Hewlett Packard. Not any more
i am affraid.
I have even been disappointed by the new laptop I purchased not 2 weeks back. I
purchased it out of a lingering sense of loyalty to the older HP. There is
nothing really wrong with its operation, but the finish quality is nothing like
that of the old Test Instruments and Data Acquisition systems of theirs I used
in a previous career life.
I honesty believe that this fiasco proves how far from grace this once enviable
company has fallen due to the greed of a mere few people.
RSC
---
----
An Australian who IS interested.[ Reply to This | # ]
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| Authored by: The Mad Hatter r on Thursday, August 16 2007 @ 11:24 PM EDT |
We know that troll activity tends to rise when certain sorts of articles are
posted, it's been happening for the last several years. I'm really surprised to
see an article on the HP Pre-Texting scandal bring out this many of them.
So - what stake do they have? Are the HP staffers, do they work for the private
detective agencies, or are they HP stock holders terrified that their investment
will loose value? I don't know. I'd love to find out, but I don't have the time.
Right now I don't have enough time to sneeze.
Still if someone else does the digging, I'd love to know.
---
Wayne
http://sourceforge.net/projects/twgs-toolkit/
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| Authored by: webster on Friday, August 17 2007 @ 01:56 AM EDT |
..
1. A Bow and Two Layers: This is OT now, late, repeats what others have
undoubtedly said. Lo siento mucho. I have been away at this pivotal juncture,
with little time to access the Internet. Honduras is a Monopolized country as
far as I could see. Various Internet shops suffered accordingly. I should have
carried Ubuntu disks. But now let's see what samples Kimball left us,
bittersweet with nuts for sure.
2. Raspberry Truffle Filling: Kimball begins his background section by
explaining the APA, Bill of sale, TLA, and change of control and amendments. He
finds it "consistent" and in essence defers to the sanctity of the
written word, the contract. This is his presumptive foundation. He examines
the extrinsic evidence. Crucial to his analysis, and finding against SCO in
this area is their total failure to explain the "continuing stream of
revenue for Novell." That %100 to Novell and 5% back to Santa Cruz he
found to be a loud and eloquent omission. He finds that SCO submissions merely
speculated on the stock prices and what must have been. SCO beats around the
bush, but they could not explain it: "SCO, however, has provided virtually
no evidence from its perspective as to the purpose of or strategy behind the
creation of a continuing stream of revenue for Novell other than some testimony
that it could not afford to acquire it and the deal would not have proceeded
otherwise." p. 11. He further notes that the drafting history does not
support SCO. p. 12.
3. Coated peanuts: Kimball doesn't find anything in the parties, conduct that
would upset the contract: "In any event, none of these three licenses
contains any representation or warranty of SCO's copyright ownership." p.
15.
4. Doberge Pellets: Kimball next examines witness testimony as to the APA and
amendments. Clearly he discounts anything other than what the drafters and
negotiators declare. This really cuts SCO down. Indeed, all they have to say
about the APA, the Judge makes clear, is contradicted again in the drafting and
negotiating for Amendment 2. SCO clearly tried to draft in the copyrights, and
Novell clearly declined to do so. So SCO contradicts itself with its
declarations and conduct. If they felt they had the copyrights after the APA
and amendment 1, Why did they try and get them with the negotiations and
drafting to Amendment 2? Duh.... If one ever wanted to illustrate the value
of keeping drafts of a contract, this is it. E. G. ""All copyrights
and trademarks, except for the copyrights and trademarks owned by Novell as of
the date of this Amendment No.2, which pertain to the UNIX and UnixWare
technologies and which SCO has acquired hereunder. . . ." Id. ¶ 8, Ex.
1", p. 25, and E. G. "The final version of Amendment No. 2 also
deleted Santa Cruz's proposed reference to copyrights "which SCO has
acquired hereunder." Amendment No. 2 does not include any reference to an
acquisition or transfer of copyrights." p. 26. So why would Santa Cruz
keep trying to get what they supposedly presume they already acquired? Clearly
the Judge hangs his hat on the drafts and what the lawyers have to say about it.
5. Vanilla Cremes and A Non-Link: Kimball then examines Santa Cruz to Caldera.
The Santa Cruz lawyers backtrack and withdraw promises: "But the final
draft recognized that Santa Cruz may not be able to establish a chain of title
from Novell. Id. Ex. 1 at § 8(v)." p. 27. That is certainly not a
statement upon which one can establish a chain of title. It establishes a
missing link in the chain of non-title. Or something like that. Then a
delicious, brief, one paragraph, bittersweet walnut, "In late 2002, Darl
McBride, SCO's CEO, contacted Novell on several occasions seeking copies of
records concerning SCO's intellectual property rights to UNIX. Greg Jones Decl.
¶ 13." p. 27. Then a large clump of dipped peanuts, "Anderer noted
that Santa Cruz's "asset purchase" from Novell "excludes all
patents, copyrights, and just about everything else." Id. Anderer cautioned
that "[w]e really need to be clear on what we can license. It may be a lot
less than we think." pp. 27-28. Then the Honorable Dale A. Kimball,
United States District Judge, quotes Darl, "SCO needs the copyrights."
p. 28. What did they know and when did they know it? Early 2003 it seems.
Smoking guns and still locked in the rack. See why these guys could never
testify for SCO? Explaining this would contradict their claims. To explain it
would would be a lie. Why would you ask, Mr. Mac, for what you already own?
6. White Layers: The Judge licks his ifngers and goes on with his background
statement including Sequent and IBM contracts, amendments, Sun and Microsoft
agreements with SCO. The watchword remains "consistency." He cites
actions by all parties consistent with the agreements and he notes actions
inconsistent with the agreements. His chronology is undisputed. The hardest
fact is that the 100% royalties to Novell is inconsistent with SCO's claims and
they never explain it. He returns to it again and again. p. 32, 33, 34, 35.
Novell's retaining this right to revenue is a killer. SCO and it's predecessors
can't pretend they didn't act consistently with this provision. This right to
revenue is consistent with Novell's retaining copyrights. It is an irrefutable
fact and SCO doesn't try. SCO's wobbly copyright claim, as strong as it
screeches it, is destroyed in Kimball's eyes by the revenue stream, not to even
mention the waiver and control rights. When he discusses IBM and Sequent
Kimball notes "..when Santa Cruz received these payments, it treated 100%
of the money as SVRX Royalties payable to Novell, subject to the 5%
administrative fee that Santa Cruz would pay itself. Id. Ex. 14 at 1; 43 at 1,
3." p. 37. In the meta data Kimball's note to the law clerk scoffed
"Money talks and .... walks. p. 37.13 [Deleted]. So with all these
drafts, contracts and amendments consistent with Novell's retaining control,
copyrights, and revenue, How could SCO make such contrary claims? Well, they
couldn't, but they did. So Kimball is saying "No, not in your wildest
dreams. SCO is not being real. I can't let this pass. It is not worthy to be
put before a Jury."
7. Second layer delight, a coated Praline: Kimball seizes on another
unassailable, unappealable, undisputed fact. Novell's waiver of SCO's
termination of IBM's SVRX rights. " At no point during the written
correspondence between SCO and Novell in 2003 did SCO argue that the IBM
agreements were not SVRX Licenses under the APA or that the SVRX licenses are
limited to binary licenses or binary royalty streams. SCO did not state the
reasoning behind its actions or in-actions." p. 39. SCO silent against
the contract. No dispute here. The contract and Novell must win. Like the
revenue stream, Novell's control rights are there. No one can deny it. If you
pretend it's not raining, you still get wet.especially when the judge says you
have no clothes.
8. Dark-coated Brazil Nuts: The Judge concludes the background section with
his description of the Sun and Monopoly deals. It is undisputed that they
received SVRX material subject to the APA. So SCO owes Novell. p. 41.
9. Snarfing a Sticky Handful: The Judge chews very thoughtfully on the APA and
amendments. Whilst this account gobbles unappreciatively and voraciously at this
wee hour. 'Tis a pity. The Judge rules that the contracts do not convey the
copyrights and that extrinsic evidence is not warranted. But he does not
decline to add an extravagant flavor by then admitting the extrinsic evidence
anyway and ruling that it overwhelmingly supports Novell. No copyrights were
passed or intended to be passed. That which astonished him hears ago remains.
There is no evidence that SCO owns the copyrights. Kimball concludes expressly
that "...all copyrights were excluded from the transfer." p. 51.
Then gratuitously and to forestall any appeal, and at great cost in time and
effort he confects a a ruling using the extrinsic evidence that he has held
isn't admissible, many more delicious chews. Here is a big chewy one:
******"Moreover, even if the court considered the extrinsic evidence, there
is significant evidence that the exclusion "all copyrights" was
deliberate and consistent with the basic objectives of the APA. While there is
no specific evidence that business executives negotiated the issue of
copyrights, the changes to the drafts of the agreement show that a significant
change occurred. Novell has provided extrinsic evidence supporting the change in
the language and the fact that it was relayed to SCO, whereas SCO has failed to
present any evidence from witnesses on its side of the transaction who had any
involvement with the actual drafting or negotiation of the language in the
contract."******
p. 53. Fussy pickers should search [Control+F] for "consistent" and
taste Kimball's favorites. There are many delights. Oh, one more morsel:
Kimball explained how the extrinsic evidence showed that Santa Cruz acquired a
license to the copyrights enough to conduct the business as could SCO. Which it
did. "The conclusion that Santa Cruz had a license to the UNIX copyrights
is reinforced by the fact that Santa Cruz indisputably did not acquire ownership
of Novell's UNIX-related patents." p. 55. Kimball serves a Valdez Mocha
from Section 204 that confirmed a failure of a copyright transfer to SCO. p.
62.
10. Just one more, a Runny Liqueur: "Therefore, even relying on the
extrinsic evidence from the time the APA was signed and closed, the court is
convinced that the UNIX and UnixWare copyrights did not transfer under the APA
or the agreements executed in connection with the APA's Closing." p. 57.
11. Plum Fillings: Though there is more, enough of this glut. It is late and
the arteries need a rest. All thanks to PJ for this box.
---
webster
© 2007 Monopoly Corporation. ALL rights reserved. Yours included.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, August 17 2007 @ 12:19 PM EDT |
...wouldn't the plaintiffs be seeking criminal, not civil, prosecution? It
seems clear to me that fraud was committed, and that the people who hired it
done knew what was being done and should have known that it was fraudulent. We
shouldn't be hearing about money damages (which will be written off as a cost of
doing business and forgotten) but about the possibility of imprisonment.
Injunctive relief? For breaking the law? If people ignore the law, why
wouldn't they ignore an injunction as well? Disrespect for rules is a pattern
of behavior, not an isolated incident.[ Reply to This | # ]
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