APPEALS COURT
 

2012-P-1085

ROBERT FONTAINE
 

Appellant  V.
 
 

CAPE COD TIMES
Appellee
 
 

ON APPEAL FROM A JUDGMENT OF THE

BARNSTABLE SUPERIOR COURT

CIVIL DOCKET #BACV2008-00630

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BRIEF AND RECORD APPENDIX OF THE APPELLANT
 
 

Appellant; Pro Se
Robert V. Fontaine

30 Skyline Drive West Yarmouth, MA 02673
Telephone: (508)394-1604
 

Fontaine appears before this court on a pro se basis. He believes that he can substantiate, using Cape Cod Time’s own documents and words, that the Barnstable Court’s decision was clouded by the intentional and repeated false statements made to it by the Appellee/Cape Cod Times, on many of the exact same issues Fontaine claims Cape Cod Times has deceived him on. Mass 93A was intended for this type of rascality.
 

Cape Cod Times is caught. Fontaine can offer a single document here that proves The Cape Cod Times has been less than honest on a wide variety of the most relevant of matters in this case. The document is their own, “Real Estate Merger Analysis, Attachement C”(A1). CCT can not recover from the fact that document shows them counting ‘Real Estate Book Bundle” revenue in 2002, when they have sworn up and down before this court that bundling wasn’t conceived until 2003. Once you realize that CCT knew of Bundling during negotiations, their actions, words and deeds are illuminated. Exposed. 

Fontaine asks this court to overturn this decision as being substantially wrong in it’s determination of the facts. The Barnstable Judge, regardless of causation, made conclusions that are clearly erroneous on the most important issues of this lawsuit. Fontaine trusts that the court would have ruled otherwise had it been given honest and sincere information. It hasn’t.
 

After 7+ months of discussions, On October 31, 2002 Plaintiff Robert Fontaine sold his growing internet advertising business and websites, including CapeCodRealEstate.com and CapeCodRental.com and others to Defendant Cape Cod Times Under a Revenue Share Agreement and Employment Agreement.
 

In 2007, Fontaine initially filed suit in US First Circuit claiming Breach of Contract, Fraud in the Inducement, Intentional Misrepresentation, Detrimental Reliance, and violations of CH 93a. Plaintiff argued diversity of the parties, Cape Cod Times having been a Division of Ottaway Newspapers, a Delaware Corporation. Cape Cod Times claimed autonomy from the parent company. The action in Federal court was withdrawn without prejudice.
 

On September 2, 2008, Plaintiff filed suit in Barnstable Superior Court. On May 2012, Barnstable Superior Court Judge Nickerson granted Summary Judgment in favor of Cape Cod Times, on each of the counts. Fontaine was not present. Has never been present in court in relation to this matter. Fontaine seeks relief from that judgment.
 

The court below is in error on nearly every material conclusion it makes in its decision. In most cases, that is due to the affirmative misrepresentations of the Cape Cod Times and its agents. 
 

During the five year course of litigation, The Cape Cod Times has almost mockingly noted that Fontaine is limited to what was agreed to within the 4 corners of the contract. Fontaine asks this court to reserve opinion on that matter until it considers Fontaine’s evidence that Cape Cod Times intentionally and fraudulently altered those 4 corners as part of their ongoing scheme. The court below ruled in CCT’s favor based in good part on terms that CCT had contentiously conceded to Fontaine exactly two weeks prior to closing, but had surreptitiously placed back into the contract. Fontaine can show the contracts are bad. 
 

P&S sent to Fontaine "Subject" P&S revised 8.13.02". P&S Item (iii) reads: "Net Revenue is calculated by deducting various costs and charges, including but not limited to bad debts, credits, discounts and expenses, from gross revenue derived from CapeCodRealEstate.com" This revised document anticipates an August 02 closing.
 

By October 2002, long past the expected closing date, Item (iii) has morphed into something more constrictive of Fontaine's rights under the agreement, as CCT is apparently changing at will the terms from what they originally had defined and presented to Fontaine -  they add "and excluded revenue (i.e. revenue described in paragraph 1.3.b(ii) above), from gross revenue derived from CCTimes' new real estate web site(s), Fontaine's Web Sites (and/or their successor web sites), CapeCodRealEstate.com, and all web sites within the CCTimes' umbrella Internet real estate vertical including real estate, rental, building and mortgage verticals;".
 

So CCT is making sure to define what is excluded for revenues, but they want to have unlimited right to deduct costs and charges. Fontaine forces them to identify and specify those costs and charges in the P&S, and require they also remove their right to deduct “expenses”. They do.
 

Oct 16/17, 2002. Agrees with Fontaine - as CCT Internet Manager Robert Kempf writes to Fontaine: ([Robert Kempf] "We have deleted "but not limited to" from the language here. See attached revision". Attached P&S Item (iii) reads: "For purposes hereof, Net Revenue shall be calculated by deducting various costs and charges, including bad debt, credits, discounts and excluded revenue.."(A 2,3,4).

“But not limited to” is in the signed P&S (A5). CCT granted themselves back the right to unlimited costs and charges, of which the court rules they were allowed, due to CCT’s altering of the agreement(s). Cape Cod Times either signed the wrong contract, and was not aware of it’s terms, which they created and controlled, OR, Cape Cod Times is admitting their contract fraud, and this court should decide in favor of Fontaine. So a judge looks at their end product P&S and views it entirely differently. He might think it makes perfect sense the newspaper would be able to account for print costs. But that is why Fontaine insisted they identify the elements the newspaper could deduct. (A2/A3/A4).

We later find out that Cape Cod Times had conceived of a Print/Internet combination advertising product during these negotiations in 2002, "Bundles", where over a dozen Cape Cod Times professional outside sales staff and the entire classified phone room staff would be charged with selling this "Real Estate Book Bundle" to the same Realtors that were already advertising on Fontaine's website, so that CCT would be in direct competition with Fontaine - And this was a revenue share deal. That would be rather important for CCT to tell Fontaine. Especially since CCT was attributing 90% of the revenues from this program to their Print Department, away from Fontaine’s Revenue Share deal. All the due diligence in the world matters little if the this company is dodging and decoying the entire time.
 

The court ruled in it's (SJ Decision) "Factual Background" that Fontaine contacted CCT after another venture ended in 1999, and "CCT did not respond to his request" - the court refers to "SOF 5,6". The court then refers to Fontaine again contacting CCT in an email of October 12, 2001 email from Fontaine to CCT. CCT wants the court to think that Fontaine was chasing them. CCT President and Publisher Peter Meyer - "This letter was the culmination of Fontaine's pursuit of a sale..". (CCT Fact #10). This is what CCT wanted the court to think, that Fontaine was "pursuing" a disinterested party. But, as with most things CCT states, this is not wholly accurate. 
 

It’s not even partially accurate. CCT Fact #7 of the ("Consolidated Pleading" (9A)(b)) "Fontaine did not hear back from anyone at CCT following his June 7, 1999 e-mail". (CCT Fact #8) "A few years later on October 12, 2001, Fontaine contaced Robert Kempf ("Kempf"), the Internet Business Development Manager for CCT via e-mail to again express an interest in exploring possible business venture with CCT...". 
 

Cape Cod Times’s reply to that October 12 email shows it was not Fontaine who was in “pursuit”. in (A6). is CCT's October 13, 2001 reply to Fontaine's October 12 email. Robert Kempf writes to Fontaine: "sorry we've been out of touch for so long'' -"Nonetheless, I'm sorry not to call. We are still very much interested in working with you" - "We've been doing some behind the scenes work getting various layers of management on board. it's a process" - "let's try to have a quick conversation so I can update you" - "Thanks for checking in and thanks for your patience". Fontaine had not been ignored.

CCT has taken the position that “Fontaine’s revenue share could have been zero” and that “Cape Cod Times reserved the right to price products as we choose’. Fontaine believes that CCT did in fact have an obligation to try. Fontaine was assured $60,000 payment up front, and a potential $1,000,000+ from potential revenue share and employment sales commissions $4,310,000 @ 20% + Portion thereof at 10% sales commissions)(A7).

Soneran Scanners V PerkinElmer (Sonoran Scanners, Inc. v. PerkinElmer, Inc., 590 F. Supp. 2d 196 (D. Mass. 2008) “We conclude that PerkinElmer did have an implied obligation under the Purchase Agreement to use reasonable efforts.”
 

II. Statement of the Issues:
 

1. Whether the court erred by overlooking considerable documentary evidence presented which on the most central questions in the dispute when Defendant’s affidavits are proven false by Defendants’ own words and records? 

2. Did the Judge mistakenly rely on terms in the P&S which Plaintiff has shown the Defendant had specifically conceded and removed from the P&S two weeks prior to closing, but were fraudulently placed back in?
 

2B. Did Defendant intentionally alter terms of the P&S agreement, or did Defendant not know the terms of the agreement they signed?
 

3. Did Defendant conceive of Product "Bundling" AFTER the sale in 2003, as they have attested to multiple times, and as the judge relies on several times in his decision? Or does their own document make that impossible?
 

4. Did the parties "negotiate" a yearly "baseline" deduction of $100,000 in September 2002 as the court had ruled, or does its inclusion in the June 19, 2002 offer to Plaintiff and Defendant’s Aug 13, draft P&S, which assumes an “August____,2002” closing date, make that unlikely? 
 

5. Was Defendants’ right to "change" their advertising strategy as broad as the judge has ruled, or was this a right the Defendant has acquired through fraud? 
 

6. Can the Defendant prevail in a matter where the record evidence, inclusive of Defendant’s sworn affidavits and corporate documents, prove that Defendant has misled the judge on nearly every substantial conclusion he offered in his decision?
 

III. Statement of the Facts:

Plaintiff/Appellant pro se Robert Fontaine ("Fontaine") received his Mass real estate agent license with material support of The Massachusetts Rehabilitation Commission.
 

By 1994 Fontaine was working as a real estate broker under his own agency, Fontaine Real Estate. By 1995 Fontaine had concluded that the real estate and summer rentals market on Cape Cod would be hugely impacted by the Internet. Fontaine registered the domain name CapeCodRE.com, and then CapeCodRental.com, and started placing some advertising for several of the Realtors he 60 associated with often from MLS tours or showing properties together, many of the Realtors had become friends and associates. In 1997 Fontaine was able to register the valuable domain name CapeCodRealEstate.com. 
 

1998/1999 Fontaine made a 1 year deal with a local Tourist Publication "Best Read Guide", where Fontaine would continue to sell the advertising and they would take care of marketing and web mastering. Fontaine did not use an attorney for this 1 year agreement and no change of ownership of assets took place. The deal with BRG ended and Fontaine opted not to renew.
 

By 2002 Fontaine, while his business was growing, finally making a livable profit, had been contacted along the way with other businesses about considering some form of a deal, including Community Newspaper Corp and the vendor for the CCI MLS. Realtor franchises would want to discuss possibilities. After extensive discussions with CCT, which the record shows was mostly about Fontaine trying to force CCT define and explain specific aspects of the deal, ultimately signed the two Agreements on October 31, 2002.
 

Fontaine’s negotiations and communications were primarily through Cape Cod Time’s Internet Business Manager Robert Kempf (“Kempf”), and occasionally with Advertising Manager Molly Evans (“Evans”), as well as Cape Cod Times President and Publisher Peter Meyer (“Meyer”). When Kempf left CCT in Jan 2005, Part-Time salesperson Kate McMahon replaced Kempf as Internet Manager and became Fontaine’s manager.
 

Fontaine’s trust in the local newspaper company somehow turned into a distressing ten year ordeal for he and his family. Fontaine had trusted that the words and promises they had put in writing would mean what they said. But none of that matters due to the “integration clause“.
 

Working a full shift at CCT’s offices, then another at his home office. Every day every night for years. The email evidence of Fontaine pleading with his employer for help number the dozens. CCT’s indifference to Fontaine’s efforts were shocking. 
 

Fontaine would explain to a jury how his manager asked him to give false circulation estimates to a group of ten C21 Franchise owners six months into his employment, owners who had already been Fontaine’s client’s prior to the sale. In 2006, asked to lie again, advertisers contacting him at home looking for answers, Fontaine ended up in the Cape Cod Hospital with work related stress. Fontaine returned to a hostile work environment as the manager he had accused of asking him to lie and President Meyer confronted him upon his return writing "you seem unable to sustain in the most routine of tasks" (A9).
 

These were not “reasonable” modifications of an employment contract, these were real experiences within a contractual employee / employer relationship that constitutes breach of contract on behalf of CCT.
 

In 2006 Fontaine filed a whistleblower complaint with CCT parent company Dow Jones against Peter Meyer and The Cape Cod Times for allowing advertisers, most who had advertised on Fontaine’s websites long before the sale to CCT, to be egregiously overcharged, for years. The Dow Jones Auditors who met Fontaine in Hyannis allowed that circulation fraud to continue. The advertisers weren’t even informed. This group of Realtors ended up paying about $140,000 for what cost anyone else, and would have cost them about $40,000 if not for this “contract”.(The Actual Complaint).
 

IV. Summary Of Argument:
 

Product Bundling - Fontaine Can show CCT conceived of Product Bundling prior to 2003, in conflict whit what they have sworn to in affidavits. P13.
 

$100,000 Issue - CCT intentionally misled Fontaine and the court regarding the $100,000 “baseline”. p19. 

COUNT I: Rescission & Restitution - Fontaine argues why Rescission and Restitution are both appropriate. P29.
 

COUNT II: Breach of Contract - Fontaine details how CCT manipulated and in fact altered the agreements, and still then when well beyond “reasonably modified”. p35. 

COUNT III: Detrimental Reliance - Fontaine can show that the requirements for Detrimental Reliance apply. p38.
 

COUNT IV: Fraud in the Inducement - Fontaine can document that CCT made false representation in order to induce him into selling his valuable business/assets to them. P40.
 

COUNT V: Intentional Misrepresentation - Fontaine can show that false and misleading statements and representations made by CCT were not merely bad calculations about future events. They were intentionally misleading. P43.
 

COUNT VI: Chapter 93A - Fontaine will document that CCT’s action undoubtedly and repeatedly rise to "a level of rascality that would raise an eyebrow of someone inured to the rough and tumble of the world of commerce". P.43.
 

The Argument:
 

Bundling:

The most important thing the court should consider about “Bundles” is that once it is proven below that CCT had already conceived on the Bundle plan during the heat of negotiations in 2002, and are covering it up now, you can see the reasoning behind the language they want to use in the agreements “but not limited to’, for example.
 

The court below made a significant attention to the point that Cape Cod Times did not conceive of Product “Bundling” until 2003, after the 2002 sale. This really is a key factual dispute in this case. And the court has erred. And CCT has helped the court err. The court trusted to local paper just as Fontaine had. The Judge: "In his affidavit, Meyer states that such "product bundling" began in "early 2003"(SJ Decision).
 

The following document defeats nearly every contention that Cape Cod has made in this matter. It is a smoking gun. "Real Estate Merger Analysis, Attachment C", ("RE Merger")(A1)This single document is the "Smoking Gun" evidence proving Cape Cod Time's ongoing concealment and factual misrepresentations of the most relevant factors in this matter. The court's Decision expressly relies upon Cape Cod Times President Peter Meyer's Affidavit that Product "Bundling" was conceived in Jan 19 2003, AFTER the October 31, 2002 sale.
 

This is hugely important in understanding the fraud because AFTER the sale CCT ended up having ALL their sales and phone staff assigned to sell this Print/Internet real estate advertising product, with 90% of the revenues going to Print Department, outside of Fontaine's "NRS". Nobody would have made a deal under those conditions if they realized their new "partner" was actually going to be their biggest competitor. 
 

And Fontaine did his due diligence, as will be described further below. But CCT lied in their answers and have since lied in signed documents some half dozen times that Bundling wasn't conceived until 2003. Fontaine details many of those below. But CCT is wrong. And so too the court is wrong. Cape Cod Times cannot hide from the profound meaning of this estimate they made, and withheld from Fontaine, with at least 6 months left in 2002 - hence precisely when Fontaine was asking CCT "what else affects the net?".
 

So "RE Merger" is a Cape Cod Times revenue projection from 2002 in anticipation of buying Fontaine's business. And clearly listed as a revenue category for year 2002 is a product "Real Estate Book Bundle", which CCT assumes will bring in $7,300 for 2002. 

Peter Meyer - August 23, 2010 Deposition :
Q. When did this bundling package occur?  A. "I actually don't know when it started. I don't recall exactly when it started."  Q. An estimate? Can you give me an estimate? A. "No, I really can't. Maybe 2003 or 2004 maybe. Again, that's speculative. I'm not really sure...." 

6 months later, on February 1, 2011, having taken the opportunity to reflect on and clarify Meyer’s vague answer in deposition, Cape Cod Times’ Attorney places her signature on a document which indicates they can now be precise in the timing of this important question! “AFTER”: 

"In January, 2003, AFTER the contract had been executed, CCT developed a marketing concept which was a combination real estate advertising product". (A10).
 

* "..in early 2003, CCT introduced the concept of offering a combination real estate advertising product"(A11).
 

* "The record evidence involving the package pricing for the real estate book Cape at Home and Internet advertising for real estate was part of an overall plan set out in a memo dated Jan 9, 2003" (A12). 

* "Second, the bald allegation that Fontaine reasonably relied on any such statement is squarely contradicted by the uncontested evidence in the record that the bundling plan wasn't even hatched until months after contract execution"(A13).
 

* "Therefore, because ccT had not yet developed the marketing strategy of offering its customers a combination of advertising space in its print and online editions, rescission is inappropriate."(A13).
 

* "In early 2003, as a way to drive more internet real estate revenue by leveraging existing print customer, CCT began offering print and internet advertising products with a monthly print product, Cape at Home, and its real estate internet site. This "bundling" was only a small component."(A14).
 

Each of which is untrue. Plaintiff's Response 52: “The document "Real Estate Merger Analysis" showed the amount of revenue the Internet expected to receive each year from the bundle concept as follows: 2002-$7,300, 2003-$8,500, 2004-$10,000, 2005-$12,000, 2006-$14,000 Fontaine Aff. Exhibit K, page 15, para 66" - CCT'S Reply 52 "CCT does not dispute Plaintiff's Response 52". Effectively admitting what they have sworn for 5 years was not true. (A15).
 

This “RE Merger” document is devastating to several other CCT claims - How did CCT forget Bundles when Fontaine asked "what other factors effect the net?”(A3,4). CCT could not have paid Fontaine for 2002 Bundles per the NRS, being that they claim they did not exist. 
 

CCT says Bundles were for Fontaine's benefit, but then took 57% off Internet rates and then sent 90% of the revenues to print, paying Fontaine 20% of that 10%. There was no accounting in the P&S for that. Had CCT wanted those ad units to be excluded, they should have negotiated that - Instead of switching out the closing documents, so that the court thinks they had.
 

CCT’s Print and Internet Managers discuss the 2002 Real Estate Book Bundle split between them in a September 13, 2003 email: Kempf to Print Managers: Subject: RE: Budget RE Book. “. . In 2002 the online revenue for the Real Estate book was 11.4% of total revenue. To date in 2003 the online revenue share is running 18.1%. Given the fact that we provided more online elements in '03, the increase in rate is understandable. We have agreed to scale back the bundle to a simple 1:1 for properties. Given the increase in online traffic and balance of this product's value propostion, I think a 15% revenue share is appropriate.” (A16). So they knew in Sept 03 they had negotiated a Bundle with each other in 2002, they just forgot about it in 2002 when Fontaine asked, and the past five years.
 

Clearly talking about the “Bundle” giving Internet 11.4% of the revenue split in 2002. Kempf argues that due to the increase in traffic in 03 (Since they now own Fontaine’s dominant websites, which they didn‘t in 02) that 15% is a better split. 11.4% in 2002, 18.1% to date in 2003, will accept 15%, apparently ends up having reduced Internet rates by 57% for the bundle, and CCT determined 10%.
 

CCT reply 52. "the purpose of the marketing strategy was to develop new business for internet real estate advertising". (A15). Kempf to Fontaine August 5, 2002 “I agree. When the two companies meet, the combined power will command a higher price. We just have to find it and implement it. I see this as the kind of problem one likes to have”(A16B)
 

*In retrospect, It is Important to note that Kempf had recently negotiated the “11.4%” for 2002 as he noted in the September 13, 2003 email just above. So in the key January 9, 2003 email from Kempf to Print managers and Ad Manager Molly Evans (A17), which CCT refers to as when “Bundles” were “hatched” and the court, it was curious that Kempf - The Internet Manager - comes out of nowhere and “proposes” a plan to the print department offering to reduce Internet Rates by 57%. Kempf’s proposal suggests a 40%+- share go to Internet, and Fontaine’s NRS bucket. But, as a manager negotiating these very matters, He HAS to know from 2002 that CCT attributes 90% of the revenues to print, only 10% (or 11.4, or 18.1) to online. One has to wonder the purpose of that email, and why it was being CC’d to Fontaine.
 

The judge quotes Meyer "In his affidavit, Meyer states that such "product bundling" began in "early 2003" - "For purposes of bookkeeping, 90% of the revenue generated from this combined advertising program (which utilized the magazine Cape at Home and CCT real estate website) was allocated to print revenue, and 10% was allocated to online revenue. (Meyer aff 25/26)". “For the purposes of bookkeeping”. Fontaine’s NRS Agreement mentioned as a contractual consideration.
 

The $100,000 Issue:

Another issue the court considers key in his decision, yet is wrong in his conclusions. This document “RE Merger” shows that CCT’s 100,000 "estimate" for 2002 is complete nonsense, though the court ruled otherwise. This document shows that Molly Evans misspeaks when she talks of the "three" estimates CCT made. (A18/A18B) 
 

Because this is a 4th, and the most detailed. And the one they withheld. They title this document “Initial Projections”, which “RE Merger” (A1) shows us is not accurate. The entire document is for Fontaine’s benefit. CCT already had formulated their real estimate which they would rely for the on in June 19, 2002 offer. (A23/A24).
 

If you look at the degree of attention Evans describes CCT having spent on creating the "three" estimates (A7) - You have to wonder how the unsolicited Estimates CCT gave to Fontaine have potential for $4,310,000 in revenue for the NRS, yet this hidden "RE Merger" (A1) is a quite well itemized revenue projection, and totals just $1,000,000.
 

"I remember that Peter and Bob Kempf and I poured over it and poured over it. Bob Kempf had prepared it, massaged it and massaged it". Evans says. Why didn't they give just this real estimate to Fontaine? Who among them suggested they give Fontaine any projections? How does CCT explain how they all forget about "Bundles" in the midst of counting them? $1,000,000 itemized projection for their benefit is withheld and replaced with a $4,300,000 projection to induce Fontaine  with no accounting for specific revenue, or expenses? 

Fontaine has Meyer depo stating a $45,000 figure for CCT revenues in 2001, “RE Merger” shows us they expect $66,000+- in 2002. Kempf writes Fontaine that CCT thinks it can achieve $150,000 in 2003 (A44). There is no basis in fact for those statements.

Did the parties "negotiate" a yearly "baseline" deduction of $100,000 in late September 2002 as the court had ruled? The answer is "no" CCT included that number in a June 19, 2002 offer to Fontaine, they confirmed to Fontaine the $100,000 figure represented CCT's 2002 revenues on June 23, 2002, they themselves placed that $100,000 figure in 6 different unsolicited projections (themselves falsified) they gave to Fontaine.

CCT management is seen discussing Fontaine's (false) reliance on that $100,000 representation on August 10, 2002. CCT Draft P&S of August 13, 2002, sent to Fontaine, anticipates an August 2002 closing, but also includes the $100,000 deductible. The court, relying on CCT's version of events, mentions this late September period as when "negotiated" this "baseline" amount. If Cape Cod Times had planned to negotiate the $100,000 "baseline" - they planned to do it after the sale. 
 

The court noted in it’s decision, and Meyer states in affidavit A19). “Throughout July and August 2002, negotiations continued and centered on the terms of the revenue share plan and the amount of internet real estate revenue which CCT expected to generate for 2002”.

Two months spent on “the amount of internet real estate revenue which CCT expected to generate for 2002“. How is that a “negotiation”?  Why would it take CCT two months to offer even an initial estimate to Fontaine? They had, with the June 19 offer, and included the $100,000 number. 6 different projection showed $100,000 deductible. 

Fontaine’s Sep 30, 2002 Emails to CCT show the myriad of possible explanations of what CCT is trying to represent with this numbers game (A42/A43/A44/A45).

An August P&S draft, with an Aug closing they sent to Fontaine has the $100,000 deductible already accounted for in it. Meyer affidavit(A19/A14 @ 20)“In negotiating the baseline amount for the revenue share provision in the Purchase and Sale Agreement (P&S), CCT proposed to Mr. Fontaine that they use the amount of $100,000, which represented the average amount CCT expected to earn in annual internet real estate revenue during the ensuing five years, independent of the merger”. The $100k is already in their June 19, 2002 offer. 

There is nothing in the record anywhere to suggest CCT gave Fontaine any number other than $100,000, until late September 2002, long past the date the parties expected the deal to be closed. In fact, Cape Cod Times has quite convincingly assured the lower court that the $100,000 was simply a “baseline”. Just like they had convinced Fontaine, just as they had convinced C21 and others.

Was the $100,000 a “Baseline” Was it something the parties spent two months “Negotiating”? Or was it the number CCT thought they would do in 2002, as they had allowed Fontaine to believe? They’ve indicated it might be each, but were not very clear on which it is. Fontaine can tell the court what HE thought it was.
 

There are 8-10 different documents referring to the $100,000 number, June 19, 2002 offer, 6 projections given to Fontaine, several draft P&S Drafts, in addition to the P&S from October 16/17 where they attached the revised P&S with “But not limited to“ removed, and the signed P&S that again includes “But not limited to“. Yet there are zero documents suggesting how CCT came up with the $100,000 number.
 

It's important to remember "RE Merger Analysis" (A1) here. That document shows that CCT expects to do $66,000 in revenues for 2002. We know this because March 12, 2002 offer from Meyer states they assume Fontaine will prove $90,000 in revenues spread out evenly over the year for 2002.(A22), and this "RE Merger Document" shows a total of $111,350 for 2002. You simply deduct Fontaine's 6 month contribution ($45,000). 
 

So when CCT put the pen to the Offer to Fontaine with $100,000 in it, naturally expecting Fontaine to ask about this $500,000 offset, they knew for their own purposes that they expected to do $66,350 for 2002. Fontaine inquired, they allowed him to believe $100,000 represented their 2002 revenues, but they knew it didn't.
 

August 10, 2002 (Fontaine's prior counsel incorrectly says "August 20") Fontaine had on August 9, 2002 informed CCT he would transfer the domain names to their administrative control, but that he was "relying" on their representation of the $100,000 figure. On August 10, 2002, Kempf emails Meyer and Evans "Additionally though, [Fontaine] seems to be operating under the assumption that our '02 revenues will be $100k+. He's also beginning to indicate that he wants us to show exactly what those are."(A 21/A21). 

CCT introduced the $100,000 number which they later called "simply a baseline" in June 19, 2002 offer (A23/A24) where they plan to verify Fontaine doing $90,000 by 2002, evenly spread out over the year. With that offer they provide Fontaine with an unsolicited series of 3 different revenue projections, each containing the $100,000 a year deductible  (A25). Fontaine's June 23, 2003 reply to that offer, and those revenue projections(A26/A27) "Relating to the offer" and asks CCT "4) Should I be under the assumption that CCT currently takes in 100k+- on real estate and rentals, & mortgages, and combined with the $80,000+- I bring, would be considered $180,000 within our agreement?". CCT's June 25, 2002 reply to Fontaine's question for Item #4 "4) Your assumption is correct". (A27/A27).
 

Meyer "In negotiating the baseline amount" for the revenue share provision in the P&S, CCT proposed to Fontaine that they use the amount of $100,000, which represented the average amount CCT expected to earn in the ensuing 5 years independent of the "merger". This amount was based on CCT's knowledge of the marketplace and forecasting internet advertising space". (A19/A14).
 

Was CCT's right to "change" their advertising strategy as broad as the judge has ruled?: "It is undisputed that CCT could set the marketing plan and price of it's products." (CCT Reply 53) However, This right did not also grant CCT the right to pay Plaintiff any other percentage than 20% for applicable revenues. "Because the print and distribution costs associated with the print portion of packaged products were far greater than costs for internet advertising, a 90% allocation went to print revenue while 10% was allocated to Internet revenue".  (CCT Fact 54). Meyer & the judge mention that “NRS” and CCT’s 2002 Revenues were ‘primary’ topics throughout July and August. Yet CCT knew very well at that time how they allocated these costs, with 90% going to print. Two months of hiding is what Fontaine suggests. 

Consider this exchange as Fontaine attempts due diligence on this issue, and was stalled at every turn by CCT. On October 16, 2002 Fontaine asks CCT "what other factors effect the net? This is a BIG TIME legitimate question for me to ask. If you can define it, is there some reason you can't define it in the agreement?".(A2/A3/A4). Important here to remember the document "RE Merger Analysis"(A1) It's also important to remember that CCT's P&S anticipated an August 2002 closing date, so the fact Fontaine is fishing for information that CCT ought to be up front about is telling in and of itself at this late date. “Negotiating” “100,000” “baseline” ? 

CCT reluctantly concedes to Fontaine's insistence that "expense" related items are defined (Fontaine not knowing what CCT knows, but is withholding, about RE Book Bundles), CCT agrees to remove the term "expenses" from the net revenue calculation language".
 

*[Robert Kempf] "We have deleted "but not limited to" from the language here. See attached revision" .(A2/A3/A4) In that exchange CCT is seen agreeing to remove the word "expenses" and is limited to the "various costs and charges" they can deduct to those items they specify in the P&S. they actually send Fontaine a draft P&S with the term "but not limited to" removed.
 

So Fontaine thought he had accounted for "expenses and costs and charges" this huge newspaper company might attempt to deduct from the 20%,which would now be limited to what was spelled out in the P&S. And CCT identifies nothing else that would effect the net. When we look at the Purchase and Sale Agreement signed two weeks later on October 31, 2002, again has the term "But Not Limited to" in it. They took the term out, gave Fontaine a version with the terms removed, and then put it back in. So now they can tell the judge that the Agreement says CCT’s right to deduct things such as print was “unlimited”. 

This altering of the Agreement completely changes the perception the court would have on the interpretation of the parties, as CCT must have expected it would when initially fighting for inclusion of those terms. And it worked. The judge explicitly allows them to consider "costs" factors where Fontaine required CCT explicitly remove said factors.
 

The Internet Advertising portion of "Bundles" placed Realtor listings in the CapeCodRealEstate.com "Directory-Listings" database. CCT itself listed "Directory Listings" as eligible under the NRS, long before Fontaine understood what the term meant. Had CCT wanted to Exclude Directory Listings that were part of the Real Estate Bundle from Fontaine's NRS equation, they were uniquely qualified to do so, because they were the only party that was aware of them. The Judge's determination on this important matter is factually wrong. The court has erred.
 

COUNT I: Rescission & Restitution.

* "Therefore, because ccT had not yet developed the marketing strategy of offering its customers a combination of advertising space in its print and online editions, rescission is inappropriate." CCT (A13). The judge clearly relies on the false premise that "Bundling" was something new, created in 2003, after the sale. That Fontaine is really arguing about a future condition. That is what CCT informed the court in multiple statements. But it is false. Fontaine has shown that Bundling was withheld from him when engaging in his due diligence.
 

The court also believed that CCT's had unlimited right to "change it's advertising strategy" under the agreement. Fontaine will note that CCT, while having, yet concealing from Fontaine, full knowledge of the 90%/10% Real Estate Internet/Book Bundle program, had agreed in the October 16, 2002 email (A2). "net revenue objection; we've eliminated the word "expenses" from the net revenue calculation, more precisely defining it". CCT wasn’t helping define anything, they were hiding an existing program the court has ruled did not exist. 

This puts into question the January 9, 2003 email that the judge specifically relies on in his opinion, that CCT did not even "propose" a "bundled" product until January 9, 2003.(A17).
 

B. Employment Agreement. The Judge's decision says that Fontaine relies on a statement in a September 28, 2008 email from Meyer to support his claim that CCT failed to provide him with sales support to allow for online growth of the online business, he alleges was promised during negotiations.
 

The court is mistaken, referring to the initial offer CCT made to Fontaine on March 20, 2002 - Meyer (A28/A29) - Of course, once it is realized that “plenty of support” meant they would change Fontaine’s Job Description so he could help Print and classified make under $15k a year for online through the bundles, we know he was being deceptive from the start.
 

"I anticipate that strong sales support and dynamic product offerings will allow you to easily surpass this level of sales". (A28). Fontaine's complaint here isn't just that CCT did not supply Fontaine with sufficient sales support for Fontaine's purposes. Rather, Fontaine complains that it was an unreasonable modification of his Employment Contract to require Fontaine to effectively work two complete shifts as a standard week, without pay. 
 

Document given to Fontaine closing "Full Time Employee Benefits Summary" - "Weekly hours = 37.5 hours per week". "REGULAR FULL TIME EMPLOYEES: (set schedule 37.5 hours every week)"(A30).But CCT creates the Job Description on July 17, 2002 (A31). and mark it as “exempt”.
 

The record is clear that Fontaine was responsible for about 100% of the one million in revenues during the deal(A32) He had sales goals and his Job Description changed so that he had to assist print teams and Classified phone room staff in selling bundles, in direct competition, with himself. His Job Description says he answered to the "Internet Business Development Manager" which was Robert Kempf until January 2005 when part-time sales person Kate McMahon was named Manger to replace Kempf. Leaving Fontaine as the only "sales" person in the Internet Department.
 

Fontaine spent 4 years working days, nights, weekends, vacations, holidays. While repeatedly sending CCT management communications pleading for help. 6:00am starts and 11:30pm end times can be shown in literally hundreds of emails where Fontaine asks CCT for help. Fontaine can document some 3,000 hours of overtime work performed without pay on behalf of employer Cape Cod Times.
 

Fontaine filed a complaint with the US Department of Labor in May 2006. A FOIA Request years later Fontaine reads the report of the Investigating Agent who came to Cape Cod Times to interview the parties on May 4 2006 wrote in his report "The firm considers him their real estate manager with full responsibility for the online real estate business including supervision". 
 

Fontaine would like to confront CCT management with a letter left on his desk some 3 hours after the DOL agent left the CCT Offices, which claimed "A reliable source stated you were making threats of violence against the company". Fontaine disrupted those charges in writing, hired an attorney, and asked to confront the person making those charges as stated in the Employee Handbook. CCT has refused to identify that person.
 

The contract states "Employees Full Time" refers to the Employee Handbook which states 37.5 hours work weeks, as does the attachment to the P&S. Fontaine never intended to enter into an employment agreement where he was required to work 50-60-70 hour weeks without pay. (Though each paycheck indicates 75 hrs worked - 37.5 x 2 weeks).
 

Fontaine refers to (A32/A33/A34). Where is can be seen that on Nov 2, 2005 Manager Kate McMahon wrote to Fontaine at home to say she appreciates all of Fontaine's hard work (ID at para 106), and December 23, 2005 when Manager McMahon writes in her Yearly Manager's Report of Fontaine "You handle yourself in a professional way with customers.." "You are creative, bringing forth new ideas". ".
 

However, Fontaine falls ill at work on Jan 6, 2006, and goes immediately to the Cape Cod Hospital Emergency room, admitted over night. Fontaine is out of work for some 3 weeks, having blood and stress tests. Discovery notes show the HR Manager's notes that Fontaine called for the emergency room saying, "he didn't want to get into it with Kate about lying to a customer".
 

Come 2006, those C21 Realtors who had been given false estimates are contacting Fontaine directly at his house, at night, asking for answers. Kempf and Evans were long gone, promoted within Ottaway Newspapers, Dow Jones. Fontaine notifies CCT who does nothing to shield Fontaine. It’s unlikely other CCT employees endured such imposition.
 

The week in January 2006, working an unhealthy number of hours almost 7 days every week, Fontaine pleading with CCT to help him on ANY issue, is asked to lie to another Customer. And Fontaine breaks. He drives from a meeting with his manager to the CC Hospital Emergency Room and is admitted overnight.
 

The retaliation upon his return was immediate and it was brutal! (A9). There had been but NINE (9) official work days from Manager Kate McMahon's December 23, 2005 Manager's Report praising Fontaine, until Fontaine became ill at work, and returned to work at the end of January 2006. The letter given to Fontaine by McMahan (who Fontaine had accused to HR Manager from ER of asking him to lie to an advertiser) and Peter Meyer, discussing his return to work states "you seem unable to sustain in the most routine of tasks" (Id at para 108). That letter also talks about customers contacting him at home, as if it were a benefit to Fontaine. At trial, Fontaine would produce a few hundred letters he sent to CCT management asking for help. 
 

Fontaine would also show a jury the monthly receipts where CCT management signed off on reimbursement to Fontaine's for his Comcast Home Internet bill. That letter, which is clearly retaliation for refusing to lie, again, continues "You asked for an absolute, set work schedule, but we both know your position demands flexibility and self-directed to achieve our objectives.. it is impossible to build a set schedule around those needs" (ID at para 109)

So in the 9 work days from the Dec 23 2005 Manager's report and the day he walked out of the meeting to the Emergency Room 2 weeks later, apparently Fontaine became useless to CCT. At the end of the meeting they hand Fontaine a new Job Description, revised that day, which added duties that Fontaine needs to help print and classified staff with matters relating to real estate. They wrote "We discussed your job description which is attached. I believe it clearly outlines the expectations of your position. Please let me know if you need additional clarity". There is nothing in the record of any CCT employee other than Fontaine selling but a few thousand dollars in the RE Portal during the entire 4+ years. (A32) shows Fontaine was credited with creating nearly 100% of total revenues. There is no magic #2 employee that CCT can identify. 
 

COUNT II: Breach of Contract.

The court states that Fontaine will not be able to prove Cape Cod Times Breach of Contract on the Purchase and Sale Agreement or the Employment Agreement, because the record shows that it (CCT) has fully performed under both.
 

The court is in error. Fontaine has shown that CCT has failed to performed under either of those contracts. Fontaine can prove that CCT switched the P&S at closing, so that the P&S itself is suspect, and certainly did not represent Fontaine's understanding of the agreement.
 

Fontaine would suggest that CCT indeed Breached the Employment Agreement by claiming Fontaine "exempt" from overtime laws of the United States and The State Of Massachusetts. Fontaine was told in writing by CCT HR Manager that his "Primary Duty is sales", but then that same department convinced the US Department of Labor that Fontaine was a "Manager, with supervision". It is quite clear from the retaliation letter Fontaine received upon return to work that Cape Cod Times was not interested in Fontaine's 4 year long request at reducing his work hours and work load.
 

CCT deceived the court just as it had deceived Fontaine about that Jan 9, 2003 conception of "Bundling", “The stated plan to increase revenue in real estate advertising and the implementation of the strategy for the real estate department us found in the record in a January 9, 2003 memo from Robert Kempf, the Internet Business Development Manager. See Joint Appendix , P.)” (A37). It should be very clear that CCT could not have accounted for and paid Fontaine for "Bundles" for year 2002, because they conspired to claim Bundles did not exist until 2003!
 

The record shows that nothing was suggested, and certainly not agreed to, where Fontaine intended CCT to allow CCT reduce the percentage of revenue share from anything less than 20%. Had CCT wanted to exclude "Directory Listings" when they were part of a Real Estate Bundle sale, they should have. They didn't. CCT switched the closing documents so they had the terms in the P&S which allows their position on the Breach of Contract issues to sound reasonable, except it is clouded by fraud. The court states "In sum, Plaintiff has not offered evidence that the topics allegedly misrepresented to him, were even contemplated by CCT at the time the P&S was executed, much less actively concealed from him". But Plaintiff had (A1).
 

It's not credible, and indeed not possible, that CCT management created the revenue projection named "Real Estate Merger Analysis" prior to July 2002, and all of them forgot they had included $7,300 in 2002 revenues for the "Real Estate Book Bundle" listed on the page? 
 

Advertising Manager Molly Evans depo (JA J PP160/161) Q. "How did the 20 percent get agreed upon?" A. "We had come up with three different scenarios, financial scenarios, on an Excel spread sheet. I have a visual of the spread sheet in my mind. It had three different likely scenarios of what the revenues and the bottom line might look like if we bought Mr. Fontaine's company and merged the two websites. It was projected out for a multiple of years, five years, or something like that. It was a low case scenario, a middle range and a high. I remember that Peter and Bob Kempf and I poured over it and poured over it. Bob Kempf had prepared it, massaged it and massaged it". Ms Evans forgot to mentioned the "fourth" estimate. They all forgot to mention the fourth. 
 

COUNT III: Detrimental Reliance.

The complaint states the circumstances constituting fraud with the requisite particularity. Mass.R.Civ.P. 9(b), 365 Mass. 751 (1974). The allegations indicate the statements made, the period in which they were made, their falsity and the defendant's knowledge of their falsity, as well as the plaintiff's detrimental reliance thereon. Friedman v. Jablonski, 371 Mass. 482 , 488-489 (1976). 
 

Fontaine can show reliance on the issue of silence by CCT to the question he asked CCT such as "what other factors effect the net"(A2), when we now know that at that time CCT itself was aware that Real Estate Book Bundles effected the net. Yet CCT is seen playing with words like "expenses" and "but not limited to", instead of honestly informing Fontaine of the actual status, so Fontaine could make an informed decision.

They had JUST spent 7 months negotiation with Fontaine, and CCT brings to closing the documents that don’t represent what they had just fought and agreed to.
 

Meyer forgot, or disregarded the fact he had assured Fontaine they would “work together to fine tune the details of the job”, so he wrote it himself and marked it as “Exempt” from the Fair Labor Standards Act. Fontaine worked 3,000 hours of unpaid overtime, CCT told the US Department of Labor he was a manager, with supervision? He did 100% of the sales, but his primary duty was “manager”? 
 

How do they explain the day after they tell each other that Fontaine is relying on their $100,000 representation, they don’t tell Fontaine. What they do is tell each other but tell Fontaine “perhaps we can get this thing to closer, with or without attorneys”. Sep 27, 2002 (A38). 
 

CCT’s claim and the judge's acceptance of the September 27, 2002 "negotiation" of the $100,000 "baseline" is compromised by the fact that CCT already had an August 13, 2002 P&S draft with that $100,000 deductible accounted for, and which assumed an August 2002 closing. CCT was more than happy to allow Fontaine to rely on their false statements, to his detrimental reliance. September 27 was not a realistic date for the “negotiation” of the $100,000 deductible to begin. There was clearly no negotiation, CCT stated it as a fact, allowed it to linger, and then their anticipated August closing turned into September, then October, and possibly November. 
 

Fontaine trusted that the Projections CCT claims to have worked so hard on and presented to Fontaine with their offer on June 19, 2002 assumed up to $4,310,000 in revenues under the NRD deal. Had Fontaine known that CCT had a quite detailed and itemized estimate which they themselves used in determining how to purchase Fontaine's websites ("RE Merger")(A1), and that it assumes $1,000,000 in NRS over the deal, NOT $4,310,000, and this 2002 document shows between $7,300 and $14,000 a year maximum would come from some product named "Real Estate Book Bundle", Fontaine would have stopped this sale in it's tracks.
 

COUNT IV: Fraud in the Inducement.

The court mentions that Fontaine's claims CCT fraudulently induced him by misrepresenting their online revenue and business model. There seems little doubt that they presented Fontaine with an offer on June 19, 2002 that contained a $100,000 deductible in it. Fontaine's response to the offer asks if he can assume they are currently doing $100,000 in 2002, they answer that his assumption is correct. They tell Fontaine they think they can do $150,000 on their own for 2002 - Kempf Sept 30, 2002 “Our target for next year under this scenario is $150k - very achievable in our view.”(A44). 

They "poured over it" and "massaged it" so much that they turned a $1,000,000 itemized estimate they enjoyed, and turned it into a $4,310,000 estimate for Fontaine's "benefit". This Is Key - When you look at "RE Merger" document, you have to wonder - they expect $7,300 from Real Estate Book Bundles for 2002(which they say didn't exist until 03), But we don't see the document that shows us where the other $3,000,000 is going to come from?
 

Ms Evans and everyone else at CCT apparently forgot to mention that FOURTH estimate. reliance upon those statements. Fontaine's issue isn't that CCT is bad at projecting, it's that they're bad a lying.
 

The court again mentions this was an "estimate" by CCT. Even if it were an estimate, that is not how CCT sold it to Fontaine, which is the issue at hand. Fontaine logically responds to the June 19, 2002 offer from the CCT which includes this $100,000 deductible. A23). Fontaine asks CCT is it fair to assume CCT is currently doing $100,000 in 2002(A27/A28). they answer "your assumption is correct". There is nothing in that discussion that suggests the $100,000 number is an "estimate". This was an offer to Fontaine that first involed the $100,000 figure, it came with 3 projections that we know replaced the "real" estimates that CCT relied upon in making their own decision. Fontaine asks "Should I be under the assumption that CCT currently takes in $100,000 on Real estate.." CCT responds "Your assumption is correct". (A27)
 

On August 10, 2002, the day after Fontaine wrote to CCT informing him of his reliance on their $100,000 number, as he was placing the domain names in CCT administrative control, Kempf wrote to Meyer and Evans “Additionally though, he seems to be operating under the assumption that our ’02 revenues will be $100K+. He’s also beginning to indicate that he wants us to show exactly what those are”.  (Fontaine's Affidavit in Support Opp Motion SJ). CCT knew in August when I told them and in June when they told me, that I believed they were doing $100,000 a year. 
 

Fontaine believes the court is in error in determining this number was portrayed to Fontaine as some future estimate. The judge then goes on to mention that "First, nothing in the P&S prohibited from "bundling' products specifically, or changing it's advertising strategy more broadly". Had CCT not withheld the existence of their Bundling plans during negotiations then it would have been prohibited or there would have been no sale. 
 

COUNT V: Intentional Misrepresentation.

Fontaine repeats and affirms each of the virtually limitless individual instances where CCT hid, replaced, denied, ignored, or colluded to misrepresent nearly every aspect of this deal.
 

COUNT VI: Chapter 93A.

Plaintiff/Appellant pro se Fontaine trusts that sufficient evidence has been offered to show that Defendant/Appellee Cape Cod Times engaged in such conduct that surpasses the level required under Mass 93a “.must attain a level of rascality that would raise an eyebrow of someone inured to the rough and tumble world of commerce.'”
 

Fontaine personally generated over $1,000,000 during the 4 years of the deal according to CCT’s numbers, (A32) and counting. Out of about $1,000,000. In spite of CCT, not because of them. Fontaine put out fires that CCT didn’t know they had. Fontaine gave CCT at sale. CCT additionally sold some $400,000+ in “Bundle” sales where  they redirected 90% to their print department. And there were some $250,000-$300,000 in unpaid overtime wages that should have been paid had CCT been honest with The DOL, or had simply adhered to their own Employment Contract they agreed to. And then there were the extra 7-9 valuable domain names that CCT received in exchange for up to $55,000 according to their estimates: "According to our estimates, increasing the revenue from 18% to 20% through 2006 could potentially increase payment to you by $20,000 to $55,000". June 25, 2002(A27). 
 

Molly Evans speaks of in deposition. Low/Med/High. Q. How did the 20 percent get agreed upon? Where did that number come from?(A18/A18B). A. “We had come up with three different scenarios, financial scenarios, on an Excel spread sheet. I have a visual of the spread sheet in my mind. It had three different likely scenarios of what the revenue and the bottom line might look like if we bought Mr. Fontaine’s company and merged the two websites. It was projected out for a multiple of years, five years, or something like that. It was a low case scenario, a middle range and a high. I remember that Peter and Bob Kempf and I poured over it and poured over it. Bob Kempf had prepared it, messaged it and messaged it. We kept looking at it trying to come up with, because we were new in this business ourselves, what the revenue might look like going forward and whether this was something we wanted to enter into, whether it was good for our business.
 

We looked at the middle-of-the-road scenario and said that’s probably the most likely based on data that’s available to us, which wasn’t a lot. Then I remember showing that document to Bob Fontaine. He looked at it and said - - he pointed to the best case scenario and he said “We can do better than that.” We thought, oh, my goodness, he is very optimistic, he must be very confident in his abilities, and that would be great. We would be happy and he would be happy, Andrew would be happy and the people who own the company would be happy. I just remember that we spent some time on that and wanted to be as accurate as we could..” - “We were new in this business ourselves” Evans says. But long past the expected August closing date Kempf is telling Fontaine CCT has this “Pattern” of “year over year growth”.

Kempf to Fontaine September 28, 2002 “For the purposes of the deal we are assuming $100k/yr over the five years of the deal. Our pattern (and expectations) for CapeCodOnline and the real estate vertical demand aggressive year over year growth. This has been our model and will continue to be our model so I don‘t forsee any shortfall on the Cape Cod Times contribution to the real estate vertical over the term of the deal"(A39/A40). That same September 27/28 2002 email exchange (A41) Kempf to Fontaine “It's pretty simple really. The $100k/yr. is simply a baseline - deliberately set at a very fair level - from which to calculate your revenue share. Because we would, in theory and according to plan, exceed that amount annually going forward on our own for the next five years, it makes the revenue share payable to you favorable.” this is NOT what they represented the $100k to be. 
 

Conclusion:

The Cape Cod Times attempted to circumvent the truth at every critical point in Fontaine’s attempt at making a fair and beneficial deal for both parties. Obstructing his quest for 2 full months as they “negotiated” the “baseline”.
 

When they didn’t lie they played ignorant, when they didn’t like the numbers they created new ones, when they created false reliance they exploited it, when they didn’t like the terms of the agreement they switched it, when they didn’t like being questioned they used their ill gained absolute authority and intimidated and retaliated.
 

One day, my new boss for 6 months, sent me an email from Dow Jones about ethics and integrity:

From: "Meyer Peter" <pmeyer@capecodonline.com>
Date: 2003/05/20 Tue PM 03:36:54 -  “Subject: A Note to All Dow Jones Staff from Peter Kann To the Staff:“ - “And the simplest antidote, in my view, is for all of us in journalism to keep in mind the childhood golden rule: "Do unto others as you would have them do unto you." In short, if we wouldn't consider what's being done to us to be fair we ought not to do it to someone else”.
 

The Next day my Manager sends me a proposal containing false estimates he wants ME to give the 10 CENTURTY 21 franchise owners, most of whom were on my websites long before CCT was a thought. He wants them to sign a two year adv contract @ $4,200 a month:

“From: "Robert Kempf" <robert.kempf2@verizon.net>
Date: 2003/05/21 Wed PM 05:03:52 CDT
To: "Bob Fontaine" <rfontaine@capecodonline.com>
Subject: C21 SMAD offer. Bob: Ok, here we go. Attached is our SMAD offer to C21. I won't be able to make this meeting tomorrow so I'm going to rely on you to present it.
 

Bottom line: it's a shared risk approach. VERY IMPORTANT: I need you to support the 100k impressions/month baseline. Trust me, Bob, we will get there and quickly”. The term “100K baseline” meant absolutely nothing in this deal, other than a device to perpetrate the fraud. Fontaine reported the fraud to Cape Cod Times and then Dow Jones. C21 over paid by $100k+. 
 

The Cape Cod Times should not be allowed to benefit from the ambiguity of a contract where they intentionally and repeatedly misrepresented the material facts they other party relied upon, including the actual contract itself.
 

Thus, for the reasons stated herein, Plaintiff asks that for the sake of fairness and law, this court reverse summary judgment ruling and order a trial on facts.
 

Plaintiff additionally asks that the court to require that Dow Jones Corporation, the parent and controlling corporation, transfer back the domain name assets they have taken ownership of, and which Fontaine seeks in rescission.