CAPE COD TIMES IS ATTEMPTING TO DECEIVE THIS COURT, BUT HAS INSTEAD PAINTED ITSELF INTO A CORNER.

Cape Cod Times Appellee Brief 3/15/2013:
“The Real Estate Merger Analysis makes no reference to any bundled products”

"It has nothing to do with bundled products".

".substantiated evidence establishes that the CCTimes conceived of the bundling strategy in early 2003, after the execution of the Purchase and Sale Agreement”.

Barnstable Superior Court SJ Decision 5/2/2012:
“THUS, CCT COULD NOT HAVE MISREPRESENTED TO PLAINTIFF AN ADVERTISING PROGRAM THAT DID NOT EXISTS DURING THE 2002 NEGOTIATIONS”.

“IN HIS AFFIDAVIT, MEYER STATES THAT SUCH PRODUCT “BUNDLING” BEGAN “IN EARLY 2003”.

“..AND THE RECORD REFLECTS THAT THIS CONCEPT WAS NOT FORMALLY PROPOSED UNTIL January 2003”.

THE DOCUMENT (A1) DOES INDEED REFER TO BUNDLES!
CAPE COD TIMES IS BADLY MISTAKEN.
 

Appellant’s (A1) “Real Estate Merger Analysis”: “Real Estate Book Bundle” - $7,300 for 2002.

CCTIMES attributed 90% of the revenues to the Print as a “bookkeeping measure”, The ONLY ramification of that attribution being that they didn’t have to pay Fontaine his 20% on 90% of the revenue. A policy they had in place IN 2002 DURING NEGOTIATIONS, but one that CCTimes Appellee brief STILL tries to conceal.

I. CCTIMES BRIEF EXPOSES THEIR "BUNDLES" SCHEME.
THE CAPE COD TIMES, A DIVISION OF DOW JONES, HAS, TO ITS OWN DETRIMENT, OVERLOOKED AND IGNORED THE MOST IMPORTANT DETAIL IN APPELLANT'S BRIEF ("A1") "REAL ESTATE MERGER ANALYSIS, ATTACHMENT C". 

SPECIFICALLY, CCTIMES FAILS TO RECOGNIZE THE REVENUE CATAGORY IDENTIFIED ON THAT DOCUMENT AS "REAL ESTATE BOOK BUNDLE" WHICH SHOWS A FULL YEAR TOTAL OF $7,300 IN PROJECTED REVENUES FOR 2002.

THIS IS A COMPANY, A BIG COMPANY, WITH STAFF, WITH OFFICES, WITH RECORDS, WITH THE HARD DRIVES. IT IS INEXCUSABLE AND INEXPLICABLE THAT CCTIMES CONTINUES TO TRY AND DENY THAT WHICH THEY CANNOT, THAT BUNDLES WERE CONCEIVED PRIOR TO 2003. THE IMPLICATIONS OF THAT DOCUMENT (A1) ARE SUCH THAT THIS COURT NEED NOT LOOK ANY FURTHER TO DEFINE "RASCALITY". CCTIMES IS CAUGHT. 

The inclusion of that “Bundle”, as a Cape Cod Times revenue source, in their own 2002 document, establishes that Appellant Fontaine has been correct about bundles having been conceived in 2002, prior to the sale, and therefore fraudulently withheld from him by CCTimes, who swears multiple times under oath, that Bundles were “NOT CONCEIVED” until 2003. THIS IS THE 3RD SUCH COURT THIS CORPORATION ATTEMPTS TO DECEIVE.

This is an unfortunate oversight on behalf of the Appellee, one that is not just fatal to their defense in this matter, but to their collective credibility as well. The record shows that when they thought they could get away with it, they tried to. THIS COURT WILL DETERMINE IF THEY DO.

The level of collusion required to effectuate this scheme is disturbing. Picking & choosing for Discovery. A company worth dozens of billions and they have to steal the small business of a guy who comes to them in good faith? Ends up in the hospital protecting advertisers from THEM. And HE’S the bad guy?

MULTIPLE PERSONS ASSURED THE COURT THAT BUNDLES WEREN'T CONCEIVED UNTIL 2003, EFFECTIVELY CALLING FONTAINE A LIAR. So Fontaine can understand how the court below would rule against him as it has. His voice wasn’t very loud in that venue. Fontaine does not believe the court was wrong on the law, he believes the court was misled, as he was. 

Thinking they've gotten away with it, for 6 years now CCTimes repeats the company line that Bundles weren't conceived until "January 2003". Once the Court sees this trickery, rascality, for what it is, there is likely no need to look much further. 

If CCTimes was willing to lie about that relevant factor, and then to this court, and the one before it, and the one before that… then we must assume that all of the words they used were/are calculated, every figure, estimate or projection they gave must be tarnished - because they are certainly not dealing in good faith - CREATING A FALSE ESTIMATE IS DIFFERENT FROM MAKING A BAD ONE. To see them trying to sneak the term "But Not Limited To" into the agreement, then PLACING it back in. A COMPLETE SETUP.

The Judge trusted CCTimes affidavits when ruling in their favor, and refers to product Bundling & Combo advertising on Pages 2, 3, 4, 5, 8, 10, 11, 12, in a 15 page decision. And 15 is the signature page.

Yet EACH of the following statements is proven false:

"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).

Fontaine hopes that those who come before this court, regardless of their status in the community, regardless the size of their bank accounts, are required to provide full, accurate and truthful information to this honorable court. Plaintiff expends funds here that are needed for other causes, in order to have his voice heard in this appeal. If laws have been broken they should be enforced. If sanctions or costs are appropriate they should be so charged. The court should not lower the bar when confronted by such behavior by a wealthy corporation, who hides behind its layers for protection. So now we have CCTimes here again with their reply brief, new counsel, but the same false answer to the most important issue in the case, assuring THIS court that bundling happened "AFTER" the sale.

II. ATTEMPTING TO FURTHER DECEIVE THIS COURT, CCTIMES CLAIMS, UNFORTUNATELY FOR THEM, THAT THE DOCUMENT (A1-RE Merger) WAS "DISCLOSED" DURING NEGOTIATING THE P&S. THOSE WHO ATTEST TO THAT MAKE A FALSE STATEMENT. IT IS QUITE CLEAR THAT "RE Merger" HAD TO PRECEDE THE "3" SO-CALLED "INITIAL PROJECTIONS" AND EQUALLY CLEAR, LOGICAL AND PROVABLE THAT THIS DOCUMENT WASNT PRESENTED TO FONTAINE DURING NEGOTIATIONS. There is no attribution in their Brief?

RE Merger (A1) had to be created prior to the so-called 3 “Initial Projections” because the 20% version of those “three” projections is produced on July 9 2002. And “RE Merger Analysis” assumes 6 months STILL remain in 2002 after a sale.

CCTimes doesn't recognize "Real Estate Book Bundle" stated in the middle of the document they created (A1), yet got word to the lawyers it would be important to say they had given it to Fontaine during negotiations - is what they attempt there.

Molly Evans Depo (A18) Refers to the "three" projections. They mention showing those 3 projections to Fontaine on June 19. CCTimes would NOT have given Fontaine the projection of $1,300,000 (of RE Merger) when they could (AND DID) just make up another one that says $4,310,000 instead. Nor could they let Fontaine see “Real Estate Book Bundles” shown on that document. BECAUSE ANY SELLER SEEING THAT WOULDN’T WALK AWAY FROM THIS DEAL, THEY WOULD RUN!

There’s a very good reason they speak about the “3” projections” and fail to acknowledge the 4th - Real Estate Merger Analysis, BECAUSE THAT WAS CREATED FOR THEIR NEEDS, THE 3 SCENARIO “INITIAL PROJECTIONS”, ON THE OTHER HAND, WERE ONLY CREATED TO INFLUENCE FONTAINE, IN ORDER TO ADVANCE CCTIMES’ SCHEME.

CCTimes, not realizing (PERHAPS UNTIL THEY READ THIS) they had left evidence of their scheme in the open, adds to their fabricated story - Evans Depo "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“. THAT "most likely scenario" THEY came up with (A7)shows $198,000 for 2002. NOW TRY AND THINK OF A WAY THAT DOESN’T TELL FONTAINE THEY WILL DO $100K? 

*CCTimes 93a reply "Cape Cod Times didn't separately account for internet real estate revenue until after the sale". Add that to the impossible statements CCTimes has offered and disproved by “RE Merger”.

THE VARIABLES HADN'T CHANGED FROM MARCH 02 OFFER TO JUNE 02 OFFER. WHICH CATAGORY DID THEY ALTER FOR THESE INTIONALLY-MIS-NAMED "INITIAL PROJECTIONS" TO SHOW AN ADDED $3,000,000(The difference between “RE Merger” Total and the high-end number on the “Initial Estimates” created from Fontaine “benefit”).

III."BASELINE" 1ST MENTIONED SEPTEMBER 30, 2002.
September 30, 7 weeks after the $100k deductible figure is listed in CCTimes August 13 P&S sent to Fontaine, ”Baseline“ is first mentioned. This "Baseline" issue is just a play with words by CCTimes. BUT IT IS AN IMPORTANT ONE.

Appellee Brief Page 1, CCTimes (quotes) the "baseline" aspect of this deal, twice. And claims those terms were memorialized in the Oct 31, 2002 P&S. CCTIMES GOES ON TO USE THE TERM "BASELINE" SOME 22 TIMES IN THEIR BRIEF.

CCtimes Brief Page 11 "In a September 30, 2002 e-mail, Kempf again suggested to Fontaine that for calculating Fontaine's Net Revenue Share, they use $100,000 as a "baseline". THEY BRING UP “BASELINE’ ON September 30. Take advantage of the term 22 times in their brief?

THE TERM "BASELINE" IS NOT IN THE PURCHASE AND SALE AGREEMENT, NOR ANY DRAFT OF THE PURCHASE AND SALE AGREEMENT, NOR ANY OF THE OFFERS CCT MADE TO FONTAINE, NOR ANY OF 6 PROJECTIONS THEY INDUCED HIM WITH. NOT EVEN IN THE DOCUMENTS THEY WITHHELD FROM HIM. "BASELINE" IS 1ST MENTIONED ON SEPTEMBER 30, 2002 (A41). LONG PAST THE EXPECTED CLOSING, AND LONG PAST THE TIME IT COULD EVEN BE CALLED "NEGOTIABLE".

Peter 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”. IF THE BASELINE REPRESENTED WHAT CCT EXPECTED TO EARN, THEN WHAT DOES "negotiating the baseline amount" EVEN MEAN? THE BASELINE WAS NOT NEGOTIATED - PERIOD. 

As noted on Appellant Brief P26, 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, 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."(A 21/A21). Fontaine finds this out in discovery. 

On 10 August 2002, Kempf, Evans and Meyer know Fontaine is "relying" and the understanding CCTimes will do $100,000 in 2002, the ONLY figure having been given to Fontaine. But they allow him to continue the transfer. THREE DAYS LATER they give Fontaine a Draft P&S (8.13.02) with the $100,000 deductible in it, and an ____August, 2002. Close.

Behind it all we know that CCTimes had very detailed Projection they were counting on - "RE Merger". So at THAT POINT IN TIME THEY REALLY THOUGHT THEY WOULD DO $66,350 IN 2002 ($111,350 SHOWN, less $45K CCT expects Fontaine 6 Mo.), BUT WITHHELD THOSE AND CREATED AND GAVE FONTAINE NEW PROJECTIONS THAT WORK OUT TO WELL OVER $100,000 FOR 02.

Molly Evans Deposition: "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"(JA J PP160/161). THEY ALREADY HAD A PROJECTION THEY WERE RELYING ON, THEY WERE CREATING INDUCEMENTS FOR FONTAINE WITH ALL THIS EFFORT. After all, these "projections" differ from one another by over $3,000,000!.

IV. CCT - "FONTAINE ALSO SPECULATES CCTIMES "ALTERED" OR "SWITCHED" TERMS OF THE PURCHASE AND SALE AGREEMENT AT CLOSING". Fontaine has caught CCTimes CHANGING THE TERMS. Speculates? FONTAINE DIDN'T AGREE TO RE-INCLUDE THOSE TERMS AND CAPE COD TIMES KNOWS THAT VERY CLEARLY. CAPE COD TIMES APPEARS TO SUGGEST THAT IT WAS THEIR RIGHT TO ADD THOSE KEY TERMS BACK IN, AND NOT INFORM FONTAINE. If Fontaine had 200 pages it would not be enough to catalog the deceit of this company.

CCTimes B p17: "Fontaine had the opportunity to review, and did review, the CCTime's accounting methods with regard to "Cape at Home revenue, and did not object to this allocation during the contract term".

Fontaine THINKS that CCTimes is actually trying to suggest here that even though they FRAUDULENTLY withheld existence of the Cape at Home "Real Estate Book Bundle" from Fontaine in March, April, May, June, June, July, August, September and October 2002, that nonetheless Fontaine had an opportunity to look at what CCTimes was doing AFTER the sale. It's not quite the same finding out about it AFTER the fact, when you've got to decide if you dare bring it up to your employers, since they are very unreceptive to discussing it - AND HOLD BOTH YOUR EMPLOYMENT AND THE PRICE OF YOUR BUSINESS IN THEIR HANDS. The record shows that Fontaine did object and was derided, in writing, for daring to ask.

CCTimes Brief p30: CCTimes mentions the September 27, 2002 email where CCTimes now comes clean and gives Fontaine a $75,000 estimate for 2002. Suggesting Fontaine had 30 days to walk away from the deal. NOT SO SIMPLE. From July on we were perpetually 30 days of less away from closing. Fontaine had given CCT all his financials and banking, all his business records, accounts, codes, had given them control of the domain names back in August 9 (anticipating an Aug closing as stated on their P&S), He had told his webmaster / vendor their services were no longer needed and had turned away a lot of business for the year, for the sake of the deal with CCT where the 1st offer came in March. They had an Aug closing date on one P&S. 

CCTIMES WRITES TO FONTAINE ON SEPT 27:
“We would like to meet next week and perhaps, once we get to the table, we can even accelerate this thing to closure, with or without the attorneys”(A38). THEY HADN’T USED THE WORD BASELINE UNTIL SEPTEMBER 30TH!

CCTimes Brief p31: CCTimes says Fontaine knew their numbers were "simply projections”- BUT Molly Evans states "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"(JA J PP160/161). THEY ARE NOT TALKING ABOUT SPENDING ALL THAT EFFORT FOR A PROJECTIONS FOR THEM TO RELY ON, THEY ALREADY HAD THAT. THEY ARE TALKING ABOUT CREATING NUMBERS FOR FONTAINE'S BENEFIT.

CCTimes Brief p33: FRAUD ALERT: CCTIMES says they attributed 10% of the Cape at Home Bundle towards Fontaine’s revenue share - “because such a percentage approximated revenue that could be attributed to internet advertising”. BUT CCTimes has already said that the 90% was based on the cost of print, not due to its value in the sale. And the court agreed. So now CCTimes has BOTH sides of the story.

CCTimes Brief p41: CCTimes notes the undisputed facts establish that the Net Revenue Share baseline figure was never based on expected revenue for 2002. BUT THEY CANT TO THIS DAY SHOW WHAT IT WAS BASED ON.

FONTAINE CONTACTS CCTIMES COUNSEL. On October 16, 2012, Fontaine sent by email the document "RE Merger Analysis" (A1) to inform attorneys from both PRIOR AND CURRENT law firms representing the Times of their oversight of this important fact. 

“Here's is your former client's document. Withheld document. My accusation(s) are true, it was my attorney who was lacking! So I wanted to include you in the record so you have the opportunity to do whatever lawyers do when they give the court incorrect information, if anything. Because as it stands now, the only one who continues to be misled by that false assertion that "bundling was conceived after the sale" is the court. And I don't think it's right to deceive the court." 

Fontaine did not hear back from anyone. CCTimes just filed their brief stating those false material facts.

CCTimes Brief: “With hindsight, Fontaine now believes that the payment terms of the Purchase and Sale Agreement and Employment Agreement - terms that Fontaine entered into freely and with advice of counsel - were unfair. Specifically, Fontaine alleges that he was (a) deceived into agreeing to payment terms that yielded him less compensation than he, in his subjective opinion, deserved; and (b) was otherwise deprived of compensation due to him under the agreement”.

EXCUSE ME! CCTIMES SHOULD NOT BE TELLING THIS COURT WHAT FONTAINE BELIEVES. THEY LOST THAT RIGHT WHEN THEY TOLD THE COURT SOMETHING THAT THEY THEMSELVES DIDN’T BELIEVE, SOMETHING THAT WASN’T TRUE, SOMETHING THAT EFFECTS FONTAINE’S FAMILY EVERY SINGLE DAY.

CCTIMES MISCALCULATES. Fontaine was not outsmarted into making a bad deal. He was lied to. It would do the company well to pay attention to the distinction.

Conclusion:

Fontaine can counter every attempt by CCTimes to suggest good reasons for their bad behavior. He can go item by item by item. It is interesting that so many from CCTimes can pinpoint and recall the same events with specificity, when their answers are similarly false.

Both the Employment Agreement and the Purchase and Sale Agreement represented the consideration in the sale of my growing small business. CCTimes positioned themselves through a variety of fraudulent actions, to control the meaning of BOTH contracts. On other matters they created ambiguity, and then relied upon it in front of the court. Pleading that Fontaine got just what he was asking for. He just wants a do over.

CAPE COD TIMES IS CORRECT FONTAINE WANTS HIS PROPERTY BACK - “INCLUDING BUT NOT LIMITED TO”:
The Domain name assets CCTimes has converted to parent company Dow Jones ownership IN THE MIDDLE of the case in Barnstable, where Fontaine seeks rescission of those assets, of which several have been lost and simply allowed to expire. They couldn’t be bothered.

Fontaine asks this court to rescind this so-called "sale" and, to the extent available under the law, to further hold CCTimes accountable for the profound and ongoing damages they have caused Fontaine to suffer. This company should make whole those they have hurt and be made to refrain from breaking the law again.

Fontaine asks rights afforded him under the law apply here and that they not be waived due to failure of Appellant to identify same with specificity. 

Fontaine trusts that this process is not a test of his knowledge of the law, but rather an implementation of his rights under it. Pro se litigant does not ask this court to reach for novel theories or concepts in order to reach a just conclusion.

With utmost respect for this Honorable Court,

________________
Robert Fontaine
Pro Se, Appellant, Plaintiff.