Wednesday, May 24, 2006

iPod Nano "Lead Plaintiff" says, "Am I?"

As reported by ENgadget:

iPod nano "scratch" lawsuit: lead plaintiff never wanted to be involved

In an open letter to the Mac community, Jason Tomczak, the so-called lead-plaintiff in the iPod nano "Scratch" class-action lawsuit, says he never wanted anything to do with the case. The fact that he was named lead-plantiff was a mistake according to Jason, as he never sought out, nor hired the firms of David P. Meyer & Associates or Hagens Berman Sobol Shapiro to represent him. Sure, he did respond to their request for information after Jason complained about scratches on his personal blog and within other Mac-related forums. However, Jason claims that the lawyers prepared the paperwork and filed the iPod Nano Class Action suit in California using Jason's name as Lead Plaintiff "without his knowledge or consent," even after Jason requested not to be involved, and without Jason signing an attorney-client agreement. On top of this, the poor kid's name has become synonymous with the class action resulting in threats, hate mail, and other forms of harassment from the more fanatical-types amongst the Mac zealotry. Jason is currently suing the two firms -- a move being met by the type of aggressive and staunch defense you'd expect from a couple of powerful and scheming law firms.

The letter in it's entirety follows (in case deleted or moved):

Open Letter to the Mac Community
The Truth Behind the iPod Nano "Scratch" Class Action Suit

May 22, 2006

Dear Mac Community:
Hello! My name is Jason Tomczak. Many people around the world rightly know me as a mild-mannered techie, photographer, writer, and nature-lover. I am an Apple fan and have been fortunate enough to use Mac computers and other Apple products since about 1985.

On October 19, 2005, my life changed due to the unauthorized conduct of others. From that date forward, countless numbers of people around the world were driven to hate me and slander my name, sometimes using foul and threatening language.

Since October 19, 2005, my name has been infamously tied to the iPod Nano "Scratch" Class Action law suit filed against Apple.

What You Don't Know About The Nano Suit
The truth is that I never sought out nor did I ever hire David P. Meyer & Associates or Hagens Berman Sobol Shapiro to represent me in any case, much less the iPod Nano Class Action suit.

The iPod Nano Class Action law suit was initiated by David P. Meyer & Associates Co. LPA of Columbus, Ohio and their representative firm, Hagens Berman Sobol Shapiro LLP of Seattle, Washington and filed on October 19, 2005.

David P. Meyer & Associates contacted me, soliciting my opinions and comments about the scratching of my iPod Nano after finding Nano-related blog posts I'd written on my own website, on The Unofficial Apple Weblog and on The MacCast. They informed me that they had received an "overwhelming number of complaints" about the Nano and that they wanted my "insight into the problem". Yes, I answered their communication and told them that I had problems with my iPod Nano, however I clearly told them that they should do their own professional and technological study of the iPod Nano.

I emphasized that I did not have any access to any specific data about the materials used in making the iPod Nano. David P. Meyer & Associates used my personal comments and opinions as the basis of the iPod Nano suit. To my knowledge, there was no actual technical study done on the iPod Nano before the Class Action suit was filed.

Additionally, I told David P. Meyer & Associates that I wanted to remain private, and that my wish for privacy, among other considerations, would preclude me from getting involved in the case.

No Documentation
At no time did David P. Meyer & Associates or Hagens Berman Sobol Shapiro ever receive any attorney-client agreement form from me. On their own time and based on their own schedules and plans, they prepared the paperwork and filed the iPod Nano Class Action suit in California using my name as Lead Plaintiff, however this was done without my knowledge or consent.

The Filing and The Call
The senior partner of David P. Meyer & Associates and one of his representatives called me during the afternoon of October 21, 2005 to urgently request my signature on an attorney-client agreement - two days after the Class Action suit was filed; two days after they began their action against Apple; two days after the press had begun running the story. They then warned me that my family, friends, clients and I should expect to hear from the media and others interested in the iPod Nano Class Action suit.

During that phone call to me, David P. Meyer and his associate blamed the faulty Nano filing on Hagens Berman Sobol Shapiro.

Spin Cycle
During that week and the following months, my name was posted in relation to the iPod Nano Class Action suit on websites all over the world, even in foreign publications like Russia's "Pravda" newspaper, the Enquirer, Stuff Magazine, Popular Mechanics, CNN, BusinessWeek, MTV, VH1, etc.

Google results for my name skyrocketed. I began getting hate mail from people upset about the iPod Nano suit. I had to take my website down and remove legitimate references to my name on numerous web services. My fiancee and I were afraid to go outside in our own home town for fear of recognition and reprisal.

Call For Help
Given the gravity of the situation I was facing, I had to hire a law firm to protect myself, clear my name and set the record straight. David P. Meyer & Associates and Hagens Berman Sobol Shapiro, when contacted by my lawyers, did not even offer to correct any of their press releases. Not even an official apology was offered.

Law Firms' Defense Begins
A David P. Meyer & Associates representative contacted my lawyers with a highly suppositional account of what my intentions might have been; that perhaps I had second thoughts or "buyer's remorse" about the suit, etc. They snubbed the fact that David P. Meyer & Associates violated my request for privacy and non-involvement and the fact that neither David P. Meyer & Associates nor Hagens Berman Sobol Shapiro ever received a single document or written communication from me agreeing to be any part of the iPod Nano Class Action law suit.

Then David P. Meyer & Associates and Hagens Berman Sobol Shapiro each hired professional defense law firms to fight against me. These two powerful law firms hired two highly aggressive defense firms to confront me, a sole individual.

Things Get Very Personal
Their malpractice defense law teams scheduled me for deposition in Los Angeles. During the first day of my deposition, which was scheduled for April 20 and April 21, 2006, David P. Meyer & Associates' and Hagens Berman Sobol Shapiro's lawyers deposed me for about 6 hours. Were the majority of their questions directly related to the Nano issue? No. They wanted to know details about my family, the personal circumstances of why my parents got divorced, what I thought about their divorce; where I went to grammar school, high school, college, what my majors were; names, locations and ages of family members and a number of other personal topics seemingly unrelated to the Nano issue. The bulk of the questions were, in my personal opinion, invasive, inappropriate, off-topic and an attempt to overwhelm me.

Toward the end of the first day, they bluntly refused to continue the deposition as scheduled. Their abrupt cancellation will likely cost me thousands of dollars in added travel and legal expense, time away from my family and clients and added emotional stress of not being able to find closure on this horrible and sometimes terrifying experience.

A SLAPP In The Face
On May 1, 2006, David P. Meyer & Associates and Hagens Berman Sobol Shapiro defense lawyers filed Motions to Strike the entirety of my case against the two firms despite evidence that I had unwillingly and unknowingly been made Lead Plaintiff in the iPod Nano Class Action suit. In their Motions to Strike my case against them, they also requested of the Court that I be held financially responsible for their attorneys' fees and costs.

The defense teams filed "demurrers" against my filings which state, in short, that David P. Meyer & Associates and Hagens Berman Sobol Shapiro did, in fact, mistakenly file the iPod Nano Class Action suit with my name, but they claim that they legally had a privilege to mistakenly file documents in my name without culpability or recourse.

They also filed an Anti-SLAPP motion against me and my claims against David P. Meyer & Associates and Hagens Berman Sobol Shapiro. The filing of an anti-SLAPP motion prevents me, the plaintiff, from amending my complaint against David P. Meyer & Associates and Hagens Berman Sobol Shapiro and delays all discovery. This means that no parties from either firm can be deposed, and possibly incriminating documents cannot be requested of them. Anti-SLAPP motions are like terribly expensive and time-consuming "pause buttons".

Where Do We Go From Here?
I've learned that every day that passes can bring big surprises - though not usually pleasant ones. I am not sure how the iPod Nano Class Action suit will turn out, nor do I know how David P. Meyer & Associates and Hagens Berman Sobol Shapiro will continue to act with regard to my request for justice and the return of honor to my name. If recent actions are any indicator, I am preparing for an emotional, stressful and expensive ordeal.

Although it is too late to completely clear my name from the iPod Nano Class Action law suit, by writing this Open Letter to the Mac Community, I am hoping to make an attempt to reduce the damage already caused to my good name and to open people's eyes to the fact that I did not approve, endorse, authorize, initiate or promote the lawsuit against Apple. These actions were taken without my authority and against my express wishes by the law firms of David P. Meyer & Associates and Hagens Berman Sobol Shapiro.

I am frightfully aware of the fact that issuing this letter could possibly spur an even more aggressive legal attack against me as they apparently wish to suppress the truth and wish to suppress me. Whatever the outcome, whether I am successful or I am financially crippled by David P. Meyer & Associates' and Hagens Berman Sobol Shapiro's defense firms, it is my sole intent to communicate the truth of what happened so that I can begin to find some peace of mind after the hate, harassment and embarrassment brought about by the misuse of my name in the iPod Nano suit.


Jason Tomczak

Very interesting ... now we get a chance to see a behind the scenes view of money grubbing attorneys. I knew there was something fishy about this ... I bet Apple legal is snickering just a tad on this one.

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