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5/21/01 - "Listeners' Lawsuit" Report

Letter by Carol Spooner

Dear Friends,

The pins & needles waiting for the Judge's rulings after the hearing on May 15th were removed today! At last week's hearing Judge Sabraw took matters under submission. Today he issued his rulings.

1) On Pacifica's demurrer (motion to dismiss) to our case Pacifica was overruled on all issues except a technicality. The Judge wants ANOTHER letter from the Attorney General approving the complaint we filed. We anticipate no difficulty with that, as the AG's office has already said they would supply it if needed. The Judge also doesn't like our "quo warranto" legal theory, but as he pointed out, we can get all the legal remedies we seek without it, so that is of little consequence (although I liked it a lot, myself, and am disappointed).

2) On our motion for preliminary injunction prohibiting Pacifica from taking significant actions until the case is resolved the Judge said he will make a "Case Management Order" if the parties do not stipulate to some restrictions on Pacifica's actions. It looks like the Judge will require Pacifica to give 30 days notice to all parties before they do anything significant, so that we will have time to get to court to stop it, if necessary. We're very pleased, we never would have gotten this without our motion, so this is a BIG victory. This should be a big help over the coming months, as Pacifica has been calling telephone conference board meetings on 48 hours notice, and without notice to all directors, and refusing to tell the minority "dissident" directors what they were voting on at the meetings!

3) The Judge Granted our motion to prohibit Pacifica from paying attorney's fees for its directors (unless they put up a bond to repay Pacifica if they lose). At the hearing last week Mr. Temchine (from director John Murdock's law firm -- Epstein Becker & Green) and Mr. Rapaport (from Pacifica's insurance defense law firm Wendel Rosen Black & Dean) "unintentionally" gave the judge the false impression that Epstein Becker & Green was being paid by Pacifica's insurance carrier. (The law permits and encourages insurance defense, but prohibits the corporation from using its own funds to defend its directors, without adequate security that they will repay the money if they lose the case.) When we clarified that for the judge today that Pacifica is paying Epstein Becker & Green the Judge was quite surprised! Anyway the directors will have to come up with a bond if they want Pacifica to pay for their legal defense.

4) However, the judge would not disqualify Epstein Becker & Green for conflicts of interests, saying the directors have the right to counsel of their choice. I was quite disappointed with that ruling. The trial date was set for January 7th.

The 3 lawsuits, LAB suit, Directors' suit, and our Listeners' suit were consolidated for trial, as expected. What does that mean? There will still be three suits, but they will move through the court together. We will all have a full opportunity to present our cases and our listeners' claims that the bylaws must be revised to grant listeners' voting rights and legal "membership" status, as well as other claims we have that are distinguised from the directors' and LAB suits, will remain separate and each of the plaintiffs' groups will continue to have separate counsel to represent our separate points of view and interests as listeners, LAB members, and directors.

All in all it went well. You rarely get everything you ask for from a judge, so we're happy with the Judge's rulings.

My impression of both of Pacifica's lawyers in court was that they are VERY slick but negative on their legal ethics. And I hope they used up some of their "benefit of the doubt" points with the Judge. Judge's do take note when they have been misled. They'll only chalk it up to "unintentional" so many times before an attorney loses credibility. Besides the issue of who is paying EB&G, Mr. Rapaport made a direct false statement to the Court about what is on my webpage. Intentional direct false statements of facts by lawyers to the court, in my experience, are not all that common. Usually, if an attorney wants to mislead the court, they do it more subtly -- by innuendo or implication or failure to clear up a misunderstanding by the judge (like they did about who was paying Epstein Becker & Green).

But Pacifica is very upset about Juan Gonzalies' Pacifica Campaign and Micheal Palmer's resignation from the board of directors last week. Mr. Temchine told the judge that MY "MINIONS" are responsible for harassing and threatening the directors, and Mr. Rapaport told the judge that my webpage is encouraging to do it (which of course is not the case at all). However, Pacifica is taking the tactic that I am personally the embodiment of all evil, have "unclean hands", etc., etc., etc., and that I control all the protesters around the country who are expressing their outrage over Pacifica's actions. Quite a comical thought, that is!

There is an old lawyers' rubric: "If the law is against you, argue the facts; if the facts are against you, argue the law." In Pacifica's case, where they have neither, their tactic is to try to prejudice the Judge by creating a "stench".

Again, your moral support and encouragement are what keep us strong. Over the past week of anxiety waiting for the Judge's ruling, I knew you were all there waiting, too.

Thanks for everything,

Carol Spooner
Committee to Remove the Pacifica Board
(sponsors of the "Listeners' lawsuit")
http://home.pon.net/wildrose/remove.htm