COMMONWEALTH OF MASSACHUSETTS
BARNSTABLE SUPERIOR COURT
NO. BACV2008-
__________________
Robert Fontaine,
Plaintiff
v.
Cape Cod Times
Defendant
__________________
AFFIDAVIT OF ROBERT FONTAINE, PLAINTIFF, PRO SE, IN SUPPORT OF THE RULE 60(b) MOTION FOR RELIEF FROM JUDGEMENT DUE TO FRAUD UPON THE COURT
NOW COMES ROBERT FONTAINE, PRO SE PLAINTIFF, In the above-
PROCEDURAL HISTORY:
May 2, 2012, Summary Judgment Granted CCTimes, Barnstable Superior Court (Honorable
Judge Nickerson).
December 23, 2013, Mass Appeals Court Affirmed (Honorable Justices
Kantrowitz, Grainger & Wolohojian).
January 17, 2014 Fontaine’s Petition For Rehearing
Denied.
February 28, 2014 Fontaine’s Application For Further Appellate Review, Denied
by SJC.
MASS RULE 60(b):
Rule 60(b) provides extraordinary relief which Fontaine believes is wholly appropriate
in this instance. The evidence establishing Cape Cod Time’s misrepresentations to
the Court certainly reaches the threshold of “exceptional circumstance required”
under the rule. Mass Rule 60 sets forth a comprehensive framework for obtaining relief
from a final judgment or order, balancing the competing needs for finality and flexibility
to be certain that justice is done in light of all the facts." Sahin v. Sahin, 435
Mass. 396, 399-
A 'fraud on the court' occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense." Rockdale Mgmt. Co. v. Shawmut Bank, N.A., 418 Mass. 596 , 598 (1994), quoting from Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989).
The unethical behavior that Fontaine details here is in not a mere technicality, or error in interpretation or even difference of opinions. Fontaine will identify how CCT’s lawyers, officers of the court, have made repeated statements of fact in sworn affidavits, that are false. Fontaine’s claims against CCTimes in this Motion are detailed so that the Court can determine which of the litigants has deceived it, and how. To date the Court has heard that which CCTimes and its various counsel have chosen it to hear, making Fontaine’s complaints appear frivolous. Fontaine believes the Court is entitled to the full truth.
The Court need only look at CCTimes own “Real Estate Merger Analysis” to see that any claim that suggests CCTimes conceived of bundles “AFTER” the sale is a complete farce. And two major law firms do exactly that, on behalf of CCTimes, emphatically.
When the Court understands that CCTimes has been withholding it’s 2002 bundle plan from the Court, it will have a more accurate perspective as to why the P&S is silent regarding bundles, and in fact the term “bundle” is not mentioned until Jan 9, 2003. And the reason is NOT that Fontaine had failed to attempt due diligence on the matter. He had.
FRAUD UPON THE COURT BY CCTIMES AND COUNSEL -
CCTimes has been concealing a fraudulent scheme they had in place during the negotiations of the sale of Fontaine’s valuable business in 2002, and had gone to extraordinary extremes to conceal this plan from Fontaine. They have done the same to this Court and the Massachusetts Appeals Court as well. They have committed Fraud Upon The Court. Fontaine did not expect that behavior from his local newspaper when he approached them in 2001. The Court as well likely expected to receive honest answers in affidavits filed by the company and it’s counsel. But it hasn’t.
CCTimes had this bundle plan in place in 2002, to deceive Fontaine through manipulation of contract terms and withholding of material facts, disguising their intentions, altering their numbers, producing fake projections, and ultimately altering the P&S itself. So CCTimes pretended to “conceive” of this plan 70 days after the sale, on January 9, 2003. It was therefore extremely important for CCTimes to convince the Court that bundles began “AFTER” the sale, and they did. But Bundles were planned for the entire deal BEFORE the sale. Management admits it, documents confirm it. The date CCTimes conceived of “Bundles” is the primary issue in dispute. Fontaine would not have made the deal had he known that which CCTimes was plotting. So obvious is that to all that CCTimes had to Hide the plan from the Court.
Unfortunately for CCTimes, there is a “Smoking Gun”, CCT’s 2002 document “Real Estate Merger Analysis, attachment c” (JA M p262) which clearly establishes that CCTimes Internet Department expected $7,300 in revenue for year 2002 as it’s 10% share of “Real Estate Book Bundles”. Yet CCTimes Appeal Brief of March 15, 2013 states: “The Real Estate Merger Analysis makes no reference to any bundled products”. CCTimes had failed to recognize that Fontaine had identified that their own document confirmed 2002 Bundles. The denial of 2002 bundles is futile of course, as it is patently false.
CCT could not have paid Fontaine for 2002 bundles per the P&S, because they could not disclose them. They had to provide the Court with false financial details, because they had to shield 2002 bundles. CCTimes had to use the same January 9, 2003 ploy on the Court, as it had on Fontaine. BOTH Courts ruled CCT could not have withheld bundles because they began on Jan 9, 2003.
At The Root Of The Fraud: Cape Cod Times actually delayed “conceiving” of Real Estate Book Bundles until 70 days AFTER the October 31, 2002 sale, inventing them instead on January 9, 2003, so that they could mislead Fontaine then, and the Court NOW.
*After Fontaine plastered “Real Estate Merger” atop his Reply Brief filed on 3/29/13,
CCTimes attempted to file a Sur-
Fontaine has been fighting the deception of Cape Cod Times since 2002. If Counsel
doesn’t think THAT 2002 Real Estate Book Bundle plan, setout for the entire deal
BEFORE the deal, is what Fontaine is complaining about, perhaps counsel can explain
to us WHICH 2002 real estate book bundle the document refers to? And then explain
how they substantiated for the the Court that bundles were not even conceived until
2003? And then explain to the Court how the record indicates they only presented
Fontaine 3 So-
The affidavits of counsel and Peter Meyer state unequivocally that bundles were conceived in 2003, and those statements are false! By denying Fontaine the ability to present his evidence to the Court, and making false statements as officers of the Court, CCTimes and Counsel should be in trouble. Each accusation Fontaine makes is substantiated with evidence in the record. CCTimes management depositions and CCTimes official records themselves establish that the Court was deceived by Counsel into ruling Bundles were conceived AFTER the P&S, in 2003.
Fontaine details for the Court in SOF #17 Below that the January 9, 2003 “Memo” that both Courts ruled as having established when bundles began in 2003 “AFTER” the P&S, is completely fictitious. The lawyers claimed knowledge sufficient for Summary Judgement that this “evidence” was legitimate, tossing Fontaine’s accusations aside as “bald allegations”. But the lawyers are wrong. CCTimes managers said “yes” when asked if bundles were used in 2002, and they were represented by CCTimes counsel. CCTimes document shows 2002 bundles in the very context of buying Fontaine’s business.
Cape Cod Times admitted in SOF #52 that their own document established that CCTimes
expected real estate book bundle revenue for year 2002. A document with the heading
“CapeCodRealEstate.com Product Mix and Revenue Projections 2002-
The Barnstable Court’s May 2 2012 ruling shows us the result of Cape Cod Time’s posturing
of January 9, 2003 as evidence, substantiated by counsel, to misrepresent this as
the date they conceived of bundles -
Cape Cod Times embarked on a surprisingly complicated effort to acquire Fontaine’s valuable internet advertising business at a price well below it’s actual and known value. Since litigation they have been on a 7+ year journey of making false representations to the Courts.
Cape Cod Times Opposition To Plaintiff’s Rule 60(b) Motion dated May 22, 2014 (cover pg) claims that Fontaine’s request is procedurally barred because it repeats arguments in his summary judgment opposition papers. But Fontaine’s summary judgment papers were detailing the fraud Cape Cod Times committed on Fontaine, THIS Motion, on the other hand, is intended to show for the Court that it has been the victim of Cape Cod Time’s deception. This Motion complains of extrinsic Fraud Upon The Court, unique and separate from the underlying fraud, yet utilizing much of the same deceptive claims and calculations.
Cape Cod Times Opposition To Plaintiff’s Rule 60(b) Motion dated May 22, 2014 (cover),
referring to The Barnstable Court, The Appeals Court, and the Supreme Judicial Court,
states “Each of these Courts addressed and expressly rejected Fontaine’s repeated
contention that the Dismissal was based on flawed Evidence”. Counsel again takes
liberty with the truth. We know this to be so because 4 Massachusetts Judges have
their names on decisions, making factual determinations that “bundles” began “after”
the P&S -
THIS Motion is a claim of Fraud Upon The Court, and as such was not addressed in the Barnstable Court litigation. Likewise, the Appeals Court looked only at the underlying case for error of law or discretion. This claim, on the other hand, accuses the Company AND Counsel, of orchestrating the facts, creating and hiding evidence, so that the Court would overlook the truth.
As recent as that May 22, 2014 Rule 60(b) Reply, CCTimes tries once again to make the Court THINK the timing of Bundles is immaterial. Counsel is under oath repeatedly asserting in affidavits that bundles were conceived in 2003, when the actual evidence, THEIR documents and THEIR Depositions confirm, makes it indisputable that bundles were in place in 2002.
And STILL, here in 2014, with all the information they have access to, they tell the Court “In other words, Judge Nickerson concluded that timing of the “bundling” strategy was immaterial, because, even if the CCTimes conceived of the print and internet bundling strategy prior to the execution of the Purchase and Sale Agreement, there is no evidence that the CCTimes made any false promise or statement that it would abstain from such a strategy...”. OF COURSE is it matters if it can be shown that CCT conceived of the bundles prior to the P&S. THAT is Fontaine’s complaint. Does CCTimes realize how many of their affidavits are false if bundles were conceived BEFORE the P&S?
“Immaterial”? The actions Fontaine claims and then documents here are substantially and significantly more than simple non disclosure of a marginal matter. What can be shown here, and proven, is that Cape Cod Times, with the assistance of counsel, officers of the court, have committed a species of fraud which has, AND CONTINUES UNABATED, to defile the Court itself.
The lawyers can’t say they knew as fact that bundles were conceived in 2003, when they weren’t, under Rule 56(e). But they did. The Court didn’t rule, repeatedly and emphatically, that bundles began in 2003, because they knew bundles were in place in 2002.
The Honorable Appeals Court Judge Wolohojian wrote in Mt Ivy Press v Defonseca: “Although
fraud on the court typically involves officers of the court, we are unprepared to
say that pro se litigants are in all circumstances insulated from committing fraud
on the court. Pro se litigants are generally required to comply with the same rules
as represented parties and their attorneys, see, e.g., Pandey v. Roulston, 419 Mass.
1010 , 1011 (1995); Kyler v. Everson, 442 F.3d 1251, 1253-
Honorable Judge Wolohojian was ALSO in the Appellate Panel that ruled in CCTimes favor, basing their Rule 1.28 decision on the false assertion that Bundles began “AFTER” the P&S. Her Honor was told by counsel the “ONLY SUBSTANTIATED EVIDENCE” established that bundles were conceived AFTER the sale. Rendering pro se Fontaine’s actual evidence useless, moving the goal posts.
Fontaine asks the Court to look closely at Statement of Fact #15 below. Oct 16, 2002, Fontaine asks CCTimes to identify ANYTHING that will effect the net, But instead of admitting “Bundles” would effect the net, or ever using the word “bundle”, CCTimes agreed to remove the term “but not limited to”, which had the contractual effect of requiring that they could only apply costs and charges to items they list in the P&S. The signed P&S, signed in CCT’s offices without attorneys, has that TERM BACK IN.
On February 1, 2011 Cape Cod Times Filed Affidavits in Support of Motion For Summary Judgment. In that filing they attested to the fact that they had not “conceived” of product bundling until Jan 9, 2003 “AFTER” the 10/31/02 P&S. CCT says in that filing that Fontaine’s claim that CCT withheld the bundle plan from him during negotiations was merely a “bald allegation”. HOWEVER, 4 months after this SJ filing CCTimes effectively acknowledged the 2002 bundle plan, as CCTimes “does not dispute” that their own document “Real Estate Merger Analysis, attachment c” showed that CCTimes expected “Real Estate Book Bundle” revenue, in 2002. (Rule 9a(b) SOF Reply #52).
Their own 2002 Projection showing 2002 Real Estate Book Bundles. Unequivocal. The representations CCTimes and counsel have made in affidavits related to Bundles in that filing, the predominant issue in contention, are patently and brazenly false, incapable of being true. That counsel has some special knowledge to assert Fontaine is lying should not be allowed.
Mass Rule 56(e) requires that “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein”. Massachusetts law is clear on the remedies available to the Court for those who would usurp the authority of the court and circumvent the right of opposing litigant to a trial by a jury.
Mass Rule 56(g) addresses Affidavits Made in Bad Faith. “Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt”. “Any time” “shall” “forthwith”.
CCT’s 2002 document “Real Estate Merger Analysis, attachment c” (JA M p262) IS a Smoking Gun, as it clearly establishes that CCTimes was expecting “Real Estate Book Bundles” revenue for year 2002, and in fact plans the revenue breakdown for the entire NRS Agreement, while affirmatively hiding it from Fontaine’s due diligence, and shielding it’s meaning from the Court throughout this litigation.
CCTimes counsel apparently feels that they ALONE possess the authority to decide for the Court how much truth the Court should be told. CCTimes counsel has the audacity to suggest to the court that “Even if” the evidence shows bundles were conceived in 2002, before the sale, it doesn’t matter because... IT MATTERS.
As recently as 3/15/13 CCT Counsel was STILL telling the Court of Appeals that “the only substantiated evidence establishes that the CCTimes conceived of the bundling strategy in early 2003, after the execution of the Purchase and Sale Agreement”. COUNSEL KNOWS THAT ASSERTION IS FALSE. Each time CCTimes asserts Bundles began in 2003 they are lying under oath, susceptible of actual knowledge, with access to ALL the corporate documents, in spite of their obligation to comply with Rule 56(e) and in conflict with their responsibilities under Rule 3:07 of Massachusetts Rules Of Professional Conduct.
A Nutter lawyer admitted in SOF Reply #52 that CCT own document shows CCT counting 2002 bundles in 2002, in they very document they use to “project” the revenue during the entire NRS period, representing the price CCT will pay Fontaine for the acquisition of Fontaine’s “CapeCodRealEstate.com”, which is stamped atop the document (next to “Confidential”).
Yet An H&K lawyer tells the Massachusetts Court of Appeals in it’s brief that the
same document doesn’t even reference bundles. “The Real Estate Merger Analysis makes
no reference to any bundled products” -
A Nutter lawyer, in line with Meyer’s Deposition, convinced the Barnstable Court that a 90% revenue allocation (diversion) “policy” with bundles was due to the relative “cost”.
Yet an H&K lawyer convinced the Appeals Court that the 90% allocation was based on “value” of the product in the bundle. Neither can explain WHY neither “Bundles” nor the 90% allocation “policy” was disclosed to Fontaine prior to the sale, claiming instead bundles were conceived after the sale.
A Nutter lawyer firmly stated for the Barnstable Court that bundles were not even mentioned prior to the sale.
Yet An H&K lawyer told the Appeals Court that the SAME document showing 2002 bundles was “disclosed” to Fontaine during negotiations. Evan as their primary defense is they didn’t even “conceive” of bundles until 2003.
Cape Cod Times could fill a large void in this dispute if they would simply come
forward to explain exactly what information it came across in the 6 month period
AFTER Meyer’s August 2010 deposition, when Kempf & Evans had already stated YES there
were bundles in 2002, and ON February 1, 2011 Motion for SJ, that allowed counsel
to claim sufficient knowledge under Rule 56(e) to state as fact that Bundles were
conceived on January 9, 2003 -
On May 22, 2014, Counsel at H&K sent to Fontaine “OPPOSITION TO PLAINTIFF’S RULE 60(b) MOTION FOR RELIEF FROM JUDGMENT”. Since
Fontaine had not completed his Rule 60 Motion, so he will include also CCTimes Updated Opposition with this filing.
In that May 22, 2014 signed Motion to THIS Court, Page 8, Counsel continues to misrepresent the facts! Counsel states “To the contrary, the only substantiated evidence establishes that the CCTimes conceived of the print and internet bundling strategy after the execution of the Purchase and Sale Agreement, and that no representations concerning internet bundling were made to Fontaine whatsoever during the negotiations of the Purchase and Sale Agreement”. The Court cannot take counsel at face value.
Counsel fails to appreciate the implications of “Real Estate Merger Analysis”, which
counted Bundles from 2002-
“In January, 2003, AFTER the contract had been executed, CCT developed a marketing concept which was a combination real estate advertising product offering advertising space in CCT's print edition of its quarterly publication Cape at Home in addition to online advertising.” (SJM p8).
Cape Cod Time’s President and Publisher Peter Meyer’s Affidavit, noted in the Court’s Ruling: ”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...”(JA @25).
The Barnstable Court agreed in it’s May 2, 2012 Ruling with CCTime’s assertions on this profoundly important aspect of Fontaine’s claim of fraud. And in it’s Dec 23, 2013 Rule 1.28 Opinion AFFIRMING, the Appeals Court concluded “After the agreement was executed, CCTimes began to sell Internet advertising in a "bundle" with print advertising, charging a discounted price for the Internet advertising..”. CCTimes couldn’t have planned it better if they tried, except for getting caught.
Listed as “A1” in Fontaine appellate appendix, Identified as the “Smoking Gun” in Fontaine’s Appellate Brief, then Pictured atop his Reply Brief, this “Real Estate Merger Analysis” is a CCT Revenue Projection listing Fontaine’s “CapeCodRealEstate.com”, and assumes the sale takes place prior to July (*2002 for 6 months”). This 2002 CCT document is projection of the revenues If CCT purchased Fontaine’s business, and “Real Estate Book Bundles” is expected to generate $7,300 in 2002, Internet’s 10% share for year 2002 Bundle.
Year 2007 wasn’t even added as an element of the NRS until CCT’s July Offer, when they gave Fontaine unsolicited “projections” of up to $4,310,000 during the deal. So they withheld “Real Estate Merger Analysis” from Fontaine, and it’s $1,300,000 “plan”, and replaced it with a projection of up to $4,310,000 instead. But they need the Court to ALSO believe that bundles were born on Jan 9th, 2003, AFTER the P&S. So Fontaine’s claim would be impossible, frivolous.
Fontaine’s claim is not frivolous, Cape Cod Time’s defense is.
Meyer, Evans and Kempf were each experienced and educated business executives. The Nutter law firm team included a retired Superior Court judge. The H&K attorney was involved in Facebook litigation. There are no excuses available to any of them here. Their words are on record, their false statements voluntarily offered to the Courts under the penalty of perjury. The record evidence establishes that Bundles were planned and indeed in place, in 2002, prior to the sale, and hidden. The Courts didn’t have an opportunity to rule on the evidence, because the Motions and Affidavits of the Company were false.
FONTAINE ASKS THE COURT FOR AN EXPEDIENT CONSIDERATION OF THIS MOTION -
The financial and emotional toll of extended litigation on an individual litigant, as wealthy corporations can pay high priced law firms from the very profits they have stolen from a “real” person, is incalculable. Left to appeal an adverse decision in Barnstable Court pro se, In late 2013 Fontaine was diagnosed with his second lethal cancer since 2010. 3 surgeries and too much radiation and counting, having to ALSO fight the litigation misconduct displayed by experienced counsel, who’s actions have elongated this matter at great cost to Fontaine, cannot be overlooked. Nor should it be. Those injuries are separate and distinct from the underlying matter. That Fontaine spends ANY of his remaining time or resources on this company and these lawyers is distasteful at best.
Fontaine has ZERO interest in pity. He has SIGNIFICANT interest in a timely resolution of this process. Justice delayed may indeed mean justice denied, as this litigation has been extended far beyond where it needed to go, and the rules of law stretched far beyond where they should be allowed to go. Fontaine’s family, wife and 3 children have shared in this burden.
Fontaine is confident that the Court has the same goal. Fontaine therefore respectfully asks this Honorable Court to timely find Cape Cod Times and Counsel in Contempt Of Court, to Reverse and find in Fontaine’s favor, to Rescind the original “agreement” and to award any and all fees, damages, sanctions, costs, and remedies available to it. That this foreign corporation would allow such a frivolous defense is insulting to the institution itself.
Fontaine will note for the court that many of the domain name assets sought in rescission through this action were discarded or transferred to other parties, long before this court made ANY rulings. This served to usurp the Court’s authority prior to the Court’s decision. Public WHOIS record will substantiate that as fact.
Counsel describes in appellate documents that Fontaine’s accusations that Cape Cod Times has misled the Court as “Ad Hominem” attacks. Fontaine has been stating facts and If the glove fits. Fontaine is the party who should be offended, along with the Court, for Counsel’s ongoing failure to be completely truthful and accurate with the Court.
Fontaine is not oblivious to, nor immune from, the reality that wealthy executives and 100 billion dollar corporate interests might test the veracity of Fontaine’s profoundly serious accusations. Fontaine trust that This Court is in the best position to determine who among the litigants has been truthful, and who hasn’t.
Robert Fontaine
30 Skyline Drive
West Yarmouth, MA 02673
(508)394-
___________________
Robert Fontaine, pro se
COMMONWEALTH OF MASSACHUSETTS
BARNSTABLE SUPERIOR COURT
NO.
BACV2008-
__________________
Robert Fontaine,
Plaintiff
v.
Cape Cod Times
Defendant
__________________
STATEMENT OF THE MATERIAL FACTS:
1. Cape Cod Times Publisher and President Peter Meyer On Record in his August 23, 2010 deposition, did not know when the “bundling” began. Q. When did this bundling package occur? A. “I actually don't know when it started”.
6 Months later on February 1, 2011, CCTimes filed a Motion in Support Of Summary Judgement, asserting without equivocation, that “In January, 2003, AFTER the contract had been executed, CCT developed a marketing concept which was a combination real estate advertising product offering advertising space in CCT's print edition of its quarterly publication Cape at Home in addition to online advertising” (SJ Motion p8).
"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". (SJ Motion p17)
The Barnstable Court’s May 2, 2012 ruling accepted those representations by Cape
Cod Times: “In his affidavit, Meyer states that such product bundling began in early
2003"(p3) and ”Indeed, contrary to plaintiff's assertion, documentary evidence indicates
that CCT did not propose -
Neither Meyer nor Cape Cod Times has identified exactly WHAT took place in the 6 months between his August 23, 2010 Deposition and February 1, 2011 Motion for Summary Judgment, that enabled the company to state with the requisite personal knowledge to tell the Court as fact that CCT didn’t even “conceive” of bundles until Jan 9, 2003? January 9, 2003 is a complete fraud. It was part of the fraud used against Fontaine. It is Fraud Upon The Court Today!
2. Cape Cod Times Misrepresented their Actions after Fontaine had contacted them in good faith. This fact was relevant to the Court as The Court made mention on page #1 of it’s 5/2/12 decision, noting that Fontaine had contacted CCT after 1999, but CCT did not respond. This is reiterated at the end of the Court’s decision (p15 FN 5) saying Fontaine tried unsuccessfully to engage CCT in a “joint venture” in 1999. This is what CCT wanted the Court to think, but it is false.
The nature of the relationship is relevant because it influenced the court to think Fontaine was chasing CCT, when in reality Fontaine had a dominant business in a growing market, and Cape Cod Times was in a fading one.
CCT Fact #7 (9A)(b) "Fontaine did not hear back from anyone at CCT following his
June 7, 1999 e-
CCT Fact #8) "A few years later on October 12, 2001, Fontaine contacted Robert Kempf
("Kempf"), the Internet Business Development Manager for CCT via e-
CCT President and Publisher Peter Meyer would suggest to the Court -
The Cape Cod Times Is NOT being completely forthcoming to the Court, hence the Court’s conclusion on This issue is factually incorrect. The Court can not be expected to issue accurate rulings if litigants are allowed to be disingenuous. Cape Cod Time’s October 13, 2001 response to that October 12, 2001 email (Fontaine Exhibit #2), established that Cape Cod Times statements on this issue are false, and the honorable Court’s ruling is erroneous on this page 1 issue.
On October 13 CCT REPLIED to Fontaine: "sorry we've been out of touch for so long”
-
3. Cape Cod Time’s “Real Estate Merger Analysis” (JA M p262 -
CCTimes entire defense is based on the fact that they couldn’t have withheld this Bundles plan from Fontaine BEFORE the sale, because they didn’t even “conceive” of Bundles until AFTER the sale.
CCT Memo in Support of SJ: "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". Cape Cod Time’s claim is SIMPLY NOT POSSIBLE. CCT Management depositions admit 2002 Bundles, as does CCT Statement of Facts Reply #52. It is only the corporation and counsels sworn affidavits that say otherwise.
CCTimes and it’s counsel have sentiently set in motion an unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate this matter by improperly influencing the trier of fact and unfairly hampering the presentation of Fontaine’s claim.
4. CCT’s Internet Business Development Manager Bob Kempf ADMITS Bundles were in place
in 2002. Deposition March 2, 2010 (pg 87 @7):
Q. Now, in 2000, 2001, 2002, were there
joint internet and print products?
A. Yes.
Q. In those years, even including 2000,
2001, 2002, were there situations where people would be offered print products and
also an internet product at well, under the same advertising package?
A. I believe
there were.
5 CCT’s Advertising Manager Molly Evans ADMITS Bundles were in place in 2002, Aug
26, 2010 Deposition (pg 23 @ 18):
Q. Was it being bundled when you where there?
A.
At some point, yes.
Q. Was it being bundled two years before you left?
A. Oh, yes.
Q. So it was being bundled in 2002?
A. Yes.
6. CCT Publisher and President Peter Meyer DID NOT KNOW when bundles were conceived. Deposition Aug 23, 2010, 6 mo prior to the Feb 1 Statement in Support of SJ, Meyer did not know, or would not say, which year Bundles were conceived. (Meyer Depo p55/56).
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...."
So as of August 23, 2010, CCT top Managers had confirmed 2002 Bundles, President Meyer claimed not to know. None said “AFTER”.
7. On 2/1/11 CCT filed a Memorandum in Support of Summary Judgment, stating Bundles began “AFTER” the P&S, on 1/9/03.
“...misappropriated the online revenue through its subsequently adopted plan to "bundle' its print and online products, incorporated months after the Agreements were executed” (SJ Motion p6).
“In January, 2003, AFTER the contract had been executed, CCT developed a marketing concept which was a combination real estate advertising product offering advertising space in CCT's print edition of its quarterly publication Cape at Home in addition to online advertising. SOF { 50. This 'bundled" product was sold at a discounted price, and was a minor part of an overall strategy to leverage existing print customers. 1d. This was done in an effort to increase internet real estate revenue, and thus Fontaine's net revenue share, and to better compete with competitors”.. (SJ Motion p8). CCT Capped “AFTER” for emphases.
"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". (SJ Motion p17)
“Silence does not constitute a material misrepresentation. See Zimmermann 3l Mass. App. Ct at 77 (a claim for fraudulent misrepresentation requires a false representation of a material fact) 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”. (SJ Motion p17). CCTIMES ANSWER EFFECTIVELY ADMITS THAT IF CCT HAD INDEED DEVELOPED THE BUNDLE STRATEGY, PRIOR TO THE SALE, RESCISSION WOULD INDEED BE APPROPRIATE!
8. President Meyer, with access to ALL the records, was able to state with specificity that bundles began in 2003: "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...”. (Meyer affidavit JA @ 25).
In CCT’s May 22, 2014 Rule 60(b) Reply papers (pg 7) CCTimes repeats an assertion
made in the Sur-
RE Merger shows CCT planning to offer Real Estate Book Bundles, in a document specifically
made to analyze revenues should they purchase “CapeCodRealEstate.com” prior to July
2002 (“2002 for 6 months”), and which CCT applies their claimed 90% allocation policy
for bundles. CCT “projects” in this pre P&S document that less than $53,000 in total
will be The Internet Department’s 10& share (Since the 10% bundle policy somehow
preceded the conception of bundles) for the entire term of the NRS, 2002-
Meyer tells the Court in JA @ 25 CCT began bundles under their Cape At Home real estate handout / bundle in early 2003 (Jan 9), and we know they soon after renamed the Book Bundles after Fontaine’s websites, CapeCodRealEstate.com and CapeCodRental.com, for the rental version. Therefore, counsel’s argument that the hidden 2002 bundle plan, which CCTimes strategically and fraudulently concocted, with the assistance of top management, wasn’t even thought of until January 2003, AFTER the P&S, and is not the same bundle issue that Fontaine complains of, is completely misplaced and without basis.
Because Counsel has yet to comprehend the significance and implications of “Real Estate Merger” which quite obviously shows CCTimes planning RE BOOK BUNDLES in 2002, under the 10% policy, BOTH withheld from Fontaine. And Counsel CONTINUE to brazenly deceive the Court with their attempt to suggest January 9, 2003 is “the only substantiated evidence”.
9. CCT Ad Manager Evans speaks in deposition of “three” projections they gave Fontaine
(JA M p260), never disclosing the true projection that CCT itself relied upon -
“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. Bob Kempf had prepared it, massaged it and massaged it”.
“I just remember that we spent some time on it and wanted to be as accurate as we could.(Evans Depo p 60/61/62).
10. The extraordinary efforts Evans describes of Meyer, Kempf and herself were NOT for the legitimate projection (plan) that CCT itself had relied on when Making their offers, “RE Merger”. No, Top Cape Cod Times management was spending all this effort and energy “massaging” the unsolicited and FALSE projections they gave Fontaine to rely on. This disclosure by Evans also suggests that the acquisition of Fontaine’s business was more important to CCT than the Court has been led by CCT to believe.
The three Cape Cod Times Managers “messaged it” so much that in June they had a “plan” (RE MERGER) to do $1,300,000 during the sale, and then made an offer to Fontaine with a “Projection” of as much as $4,310,000, INSTEAD. When it is understood that CCT had manipulated complete control of allocation, it also becomes clear that they completely controlled the consideration.
11. The “three” unsolicited projections CCT gave to Fontaine with the June and July offers would NECESSARILY have to include and account for “Bundles” at the 90/10 Policy just as “RE MERGER Analysis BEFORE them had.
It is difficult to believe, therefore, that President Meyer would somehow forget that he had, as Evans stated, “poured over” the projections, trying to be as “accurate as we could”, yet completely forgot about both RE Merger Analysis and 2002 Bundles. EACH of the “three” scenarios CCT presented to Fontaine were higher than CCT’s “RE MERGER”, one was $3,000,000 higher.
12. 4 Months after assuring the Court in Motion for SJ that Bundles came “AFTER”
THE P&S, CCT ADMITS they expected Bundle Revenues BEFORE, in 2002. Reply 52 confirmed
their 2002 projection “Real Estate Merger Analysis, attachment c” (JA M p262 -
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-
CCT'S Reply 52 on June 14, 2011 "CCT does not dispute Plaintiff's Response 52".
13. CCTime’s contradictory Statement of Facts are ALSO unwavering in their insistence that “Bundles” were conceived in 2003.
This is important because 70 days AFTER the 10/31/02 sale CCT claims to “conceive”
of a “Real Estate Book Bundle” plan, where all their sales staff & phone room staffs
were to be sent out to sell Print and Internet combination advertisements -
"..in early 2003, CCT introduced the concept of offering a combination real estate advertising product". (CCT Fact 50).
"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". (CCT Fact 56)
14. On 5/2/12 The Barnstable Court Ruled CCT could not have misrepresented in 2002, a plan that “did not exist” until January 2003. The “Bundle” aspect of this case was appropriately significant to the Court, as it’s Ruling refers to product Bundling & Combo advertising on Pages 2, 3, 4, 5, 8, 10, 11, 12, in a 15 page decision.
The Court CLEARLY believed bundles were not even conceived by Cape Cod Times until January 9, 2003.
pg2. "In January 2003, Kempf sent the following email to certain CCT staff, on which
he copied plaintiff" -
pg3. “In his affidavit, Meyer states that such product bundling began in early 2003"
pg5. ”Indeed, contrary to plaintiff's assertion, documentary evidence indicates that
CCT did not propose -
pg5. ”CCT could not have misrepresented to Plaintiff, an advertising program that
did not exist during the 2002 negotiations”.
pg8.”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. Rather, plaintiff admits that "bundling" was not discussed
during negotiations, and the record reflects this concept was not formally proposed
until January 2003”.
p11. "Second, the record does not support Plaintiffs allegation that CCT executives
had expressed or implemented bundle advertising, prior to 2002. To the contrary,
the record reflects that Robert Kempf did not propose the concept until January 2003".
p12. ”Indeed, Plaintiff's own allegations confirm that bundling was never discussed
during negotiations”.
Massachusetts Courts would not have factually concluded that Bundles “BEGAN” in January 2003, were it not for the false representations made by the company, and then vouched for by two major law firms, themselves officers of the court.
15. DUE DILIGENCE -
Yet Fontaine forced CCT to remove the term “But Not Limited To” from the P&S, a term would allow them to deduct “costs and charges”. Two weeks before closing, October 16, 2002, Fontaine is still trying to force CCT to simply be clear and identify exactly what CCT intends to expense. CCT agrees to remove the term “But Not Limited To” (JA 244, 246, 247:) so that they would be required to specifically identify those items they could deduct as “expenses”, “costs and charges”.
Fontaine asks CCT in that Key October 16, 2002 exchange:
“P&S ITEM #1. 1.3 b 111) While i'm clearly in agreement that some revenue should be excluded, I don't understand why CCT can't simply define what is excluded? To remove the word "expenses" and leave in this term: "various costs and charges, including but not limited to" Tell, me what IS IT LIMITED TO? What other factors effect the net? That 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?”.
CCT’s Internet Manager Robert Kempf Replies to Fontaine: “We have deleted "but not limited to" from the language here. See attached revision”. And “but not limited to” was gone, and was never discussed again, and we signed the P&S on October 31st.
THAT was a hugely important concession by Cape Cod Times, especially with the hindsight of knowing what only they knew, that they were hiding in “Real Estate Merger Analysis” a “Real Estate Book Bundle” plan that, absent specifically identifying them in the P&S (which would cause Fontaine to walk), would require language in the P&S allowing CCT to consider “costs”.
So CCTimes knew “but not limited to” was important to have in the agreement, because the alternative was to disclose bundles and the 90/10 policy to Fontaine, but the deal would be immediately over. Combined with a similarly undisclosed 90%/10% allocation “policy”, CCTimes alone knew that the term would be controlling.
Tellingly, CCTimes did not disclose bundles per that October 16, 2002 exchange, nor did they mention the 90%/10% bundle allocation “policy”. Nope, CCTimes withheld that $1,300,000 projection and replaced it with a $4,310,000 “projection” instead, and simply conceived of bundles 70 days later, when the coast was clear.
CCTimes surreptitiously reinserted the term “But Not Limited To” into the P&S sometime
in those final two weeks, a term only they knew would have primary relevance. So
they can can say to This Court NOW “EVEN IF...”. Rascals.
16. There is absolutely NOTHING in the record to explain how “But Not Limited To” Made it’s way back into the signed P&S. Fontaine and CCT NEVER discussed this issue again.
In appeal CCT tosses that aside saying that wasn’t necessarily the final agreement on that issue. It should be easy enough for them to show ANYTHING to suggest that issue was ever addressed again. As IF that would be an issue or term Fontaine was going to allow back in the P&S without considerable discussion and clarity.
CCT HAD MANIPULATED THOSE TERMS IN ANTICIPATION OF ARGUING THE VALIDITY OF THEIR ACTIONS TO THIS VERY COURT! They knew, if they could make This Court believe that “EVEN IF” bundles were already in place, it doesn’t matter because the P&S doesn’t address bundles. They created the ambiguity related to bundles which the Court now sees as Fontaine’s lack of contractual limitation. Who would believe Fontaine over the local newpaper, and respected counsel?
17. The January 9, 2003 “Memo” that CCTimes has convinced 3 courts is when “Bundles” were “conceived”, “planned”, “hatched”, “developed”, “introduced” or “began” (JA p139, Fontaine exhibit #19)is completely fictitious!
This January 9, 2003 letter is a FARCE, part of the SCHEME. CCTimes had already determined
when drafting that letter barely 70 days after signing the P&S that their business
model is to have this 90%/10% allocation in place for the entire deal, 2002-
CCT had JUST created in “Real Estate Merger” a projection of what a "bundle" plan would look like, in the very context of purchasing Fontaine's CapeCodRealEstate.com. $53,000 will be Internet's 10% share of the "Real Estate Book Bundle" Plan over the entire deal. RE merger is the plan CCT would have sent to Dow Jones for their side to rely on and approve the sale. THEN the “three projections” are created in it’s place and given to Fontaine. Fraudulent Inducement.
HOW would CCTimes explain to the Court, this January 9, 2003 "Proposal", for this
new "concept" called "Bundles" which proposes that Internet department should get
40%+-
#1. Kempf already knows CCTimes policy is to allocate 90%+-
#2. Real Estate Merger Analysis informs us that CCT already had planned what the
Real Estate Book Bundle will do during the entire deal prior to July 2002 -
So why is Kempf Proposing this new concept, to Managers who know it isn't new, knowing
that CCTime's current policy is that Internet gets 10%, and talk of 40% share is
meaningless? So they could mark it "Confidential" and CC it to Fontaine -
18. CCT had ALREADY created RE Merger, with “Real Estate Book Bundles” priced at the 90/10 allocation “policy”, for the entire deal, PRIOR to Oct 16 2002, and therefore knew during this exchange that if they did not specifically identify bundles, they would not be able to deduct them, IF “But Not Limited To” was removed from the Agreement.
By secretly reinserting “But Not Limited To”, instead of simply disclosing Bundles and the 90/10 policy, Cape Cod Times completely reversed the most important and controlling term in the deal, to their favor. The combination of these actions resulted in Cape Cod Times having virtually complete control over how they allocated the revenue, IF ONLY they could hide bundles until Jan 9, hide the 90% allocation “policy”, and sneak the term “but not limited to” back into the agreement. Which is exactly what they did.
19. The Court ruled that CCT did not represent to Fontaine they would have $100,000
in applicable 2002 revenues. But with CCT’s June 22, 2002 18% Offer, again with the
20% July offer, they present Fontaine with a set of three “projections” (JA M p260).
BOTH of those so-
This goes to Extrinsic Fraud Upon The Court because CCTimes allowed the Court to
rule on knowingly altered projections, unaware of the hidden “RE Merger” and an altered
P&S, and THEN having Counsel “substantiate” -
Obviously had the Court been given the facts it deserved, it would have ruled otherwise in the underlying case. CCTimes doesn’t get away with deceiving Fontaine unless it can deceive the Court. Counsel’s false statements are mirrored in the Court’s decisions.
20. Tellingly, On August 9, 2002 Fontaine via email exchange agreed to transfer administrative control of the domain names to CCT, but stated he was “relying” on CCT’s representation that they were doing $100,000 for 2002.
On August 10, 2002, discovery shows 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”. They say nothing to Fontaine, and accept the domain name asset transfer.
(Fontaine Aff in Opp JAK p170 -
They allow the transfer of control to continue, they say NOTHING to Fontaine. CCT was more than happy to allow Fontaine to transfer the assets under the false reliance they themselves created and fostered. Because CCTimes has THWARTED Fontaine’s attempt to present these facts to the Court, these dishonest actions became Extrinsic Fraud Upon The Court.
It is curious that Fontaine would run into a group of executives who, upon learning
that Fontaine was falsely relying on a reasonable assumption -
21. The Cape Cod Times, after learning of Fontaine’s reliance, attempts to speed up the closing, NEVER telling Fontaine his reliance was faulty.
On August 12, 2002 CCT writes Fontaine “it would be great if we could get the P&S
taken care of and move on to the next steps in the coming days”, no mention Fontaine’s
reliance on the $100,000 was in doubt. Fontaine Aff in Opp JAK p170 -
On August 14, 2002 CCT writes Fontaine “I was hoping we could set a date to review
and sign the P&S. How is Tue August 27?” (Fontaine Aff in Opp JAK p170 -
On August 17, 2002 CCT wrote Fontaine “I’m going to pencil us in for the 27th. Let
me know when you can if that will work”. (Fontaine Aff in Opp JAK p170 -
The August 27 closing would have made the October 16 “but not limited to” discussion a moot point. Before CCTimes made it one anyway. Not to mention the discloure of Sept that 2002 would NOT be $100,000, as CCT knew Fontaine was relying on since August 10, 2002.
22. On September 27, 2002, CCT informs Fontaine that 2002 revenues are now estimated to be $75,000 (JA L p 218). They add “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”. There were no attorneys at the closing at CCT’s offices on October 31, 2002. CCT knew very well in August, when they tried to have a closing, that Fontaine relied on CCT representations of the $100,000 number.
23. CCTimes Brief 3/15, 2013 (pg 21) -
The falsehoods breaking down so badly that they have to claim on one hand they disclosed bundles to Fontaine before the sale, and on the other they deny that bundles were conceived until after the sale. Prior counsel signed SOF #52 admitting “RE Merger” showed CCT expecting 2002 Bundle Revenue. Yet this new counsel tells the Appeals Court the document doesn’t even refer to bundles.
BOTH ASSERTIONS ARE FALSE. It was NOT “provided” to Fontaine. It DOES reference bundles.
24. CCT did not disclose “bundles” were “other factors effect the net” in reply to Fontaine’s Oct 16, 02 email, instead CCT agreed to remove the term “But Not Limited To” from the P&S. CCT expects the Court to actually believe that in the 14 days between that concession and signing the P&S Fontaine changed his mind on his insistence that CCT identify the terms?
Certainly there would be a record of communications related to changing terms that completely reverse the intention of the parties? Fontaine and his counsel would certainly want to contemplate ANY change in terms, especially ones that allow CCT to bypass it’s obligation to specifically identify items it could attribute cost and charges to, having already been forced to remove “expenses”.
25. CCT stated in Motion for SJ that the P&S did not address Bundles and The Court ruled that “bundling was never discussed during negotiations”(5/2/12 Ruling pg 8) “Rather, the P&S concerned only the purchase and sale of Fontaine's Website Business. Id. 140. It did not contemplate CCT'S print advertising or marketing, nor did it restrict CCT from determining how to generate advertising revenues” (SJ Motion p8).
Yet we find that CCTimes had a Real Estate Book Bundle Plan in place for the entire NRS period prior to the P&S. And CCTimes tells the court they had a 90%/10% allocation policy in place prior to the sale, for a plan they say they conceived of AFTER the sale. Any ambiguity regarding ANYTHING to do with bundles should belong to Cape Cod Times alone. If it fit their purpose of deception, you can be sure it would have been addressed. Just as they “addressed” “But Not Limited To”.
CCT thinks the lack of bundle language should work in THEIR favor. Hardly. CCT had
the deal all priced out from 2002-
26. CCT stated in SJ Motion that Bundling started AFTER the sale, and was done to “increase internet real estate revenue”. CCT “In January, 2003, AFTER the contract had been executed, CCT developed a marketing concept..”. “This was done in an effort to increase internet real estate revenue, and thus Fontaine's net revenue share, and to better compete with competitors”.. (SJ Motion p8).
Yet CCT had the undisclosed 90% Print allocation policy in hand, and “Real Estate Book Bundles” hidden from Fontaine, to be “conceived” of 70 days after the P&S instead. They withheld “RE Merger” and replaced it with a projection of up to $4,310,000.
27. During his employment with Cape Cod Times, Fontaine Filed a Whistleblower Complaint With Dow Jones against Cape Cod Times Management, for Presenting False Projections to a Group of 10 Cape Cod Century 21 Franchises, resulting in substantial overpayment. The Court certainly can decide if that is relevant and acceptable for the Court’s to consider. Fontaine’s initial witness list included leading and respected local Realtors who remain ready to explain how they were deceived by CCT. CCT’s deception extended beyond Fontaine, it extended beyond their own advertisers, it extended to the Court!
28. During his employment with Cape Cod Times, Fontaine ended up in Cape Cod Hospital, admitted overnight for work relates stress. Effectively working 2 full time shifts for the entire NRS deal, Fontaine had notified Management that advertisers were actually contacting Fontaine at home, complaining about the missing advertising traffic CCT had promised them. Immediately upon his return to work CCTime gave Fontaine a new Job Description, added that he must now help all sales and classified staff with matters of real estate. So when the Court suggested in it’s decision that Fontaine was merely not happy with the amount of support he received, the court will understand it was a little more complex than that.
30. CCT could not have accounted for or have paid Fontaine for 2002 bundles, claiming they were conceived in 2003. Financial records and accounting presented to the Court by CCT would necessarily exclude any and all information relating to 2002 bundle revenue. If Kempf and Evans depositions were truthful, if “RE Merger Analysis” is legitimate, if CCT Reply #52 was accurate, then CCT COULD NOT have disclosed 2002 bundle revenue when paying Fontaine for 2002 under the NRS in January 2003.
31. CCTimes cannot hide from their own marketing records showing them selling real estate book bundles in July / August 2002, precisely when they were hiding them from Fontaine. Litigants ought to be compelled to tell the truth!
2000/2002 Promo for the RE Book Bundle -
2003/2004 Promo for the Rental Book Bundle -
$225 before Fontaine, $405 after. 90% allocation to Print as “policy” Before AND After. All discounts came for Fontaine’s money. The Print Department didn’t share any of the pain, it was only Internet, who 70 days after the sale offered to offer a bunch of Website ads, when they know Internet will only get 10%.
CCTimes didn’t buy Fontaine’s website, then start a bundle that they sold at a lower, discounted rate. They HAD a bundle, it was FAILING, they stole Fontaine’s business, then RAISED the price of the now popular bundle, since the internet half was now Fontaine’s dominant websites.
*Courts have taken judicial notice of the contents of internet archives. See ... Martins v. 3PD, Inc., No. 11 Civ. 11313, 2013 U.S. Dist. LEXIS 45753, 2013 WL 1320454, at *16 n.8 (D. Mass. Mar. 28, 2013) (taking judicial notice of "the various historical versions of a website available on the Internet Archive at Archive.org as facts readily determinable by resort to a source whose accuracy cannot reasonably be questioned").
32. CCT had a $1,300,000 projection for the deal (RE Merger) WHEN they gave Fontaine an unsolicited $4,310,000 projection with their June and again July 2002 Offers to Purchase. The $1,300,000 CCT relied on in RE Merger assumed bundles would account for less than $53,000 to Internet over the entire deal, meaning Fontaine 20% at best would be $11,000 from ANYTHING to do with bundles, TOTAL, according to CCTime’s plan. Yet they swear they thought up bundles in January, to help Internet and what is now an ungrateful Fontaine.
33. At 20% NRS and 10% commission, the potential difference between $1,300,000 and
$4,310,000 to Fontaine was over $900,000+. And Evan’s deposition speaks of Fontaine
replying that we could exceed CCT’s $4,310,000 4.5 year “projection” figure, as the
Cape market itself supports many millions per year in real estate and summer rental
related advertising. This was not simply some sub-
34.CCT insisted they were waiting to aggressively market the websites until our sale was complete. Sept 30, 2002 “In fact much like you, we’ve been waiting to aggressively promote and sell in this vertical until our deal with you is completed” (JA G p136).
And sure enough, 70 days after the sale, in the January 9, 2003 “Memo”, Internet Manager Bob Kempf tells the print Managers to get the entire sales staff prepared to begin selling the Real Estate Book Bundle they were hiding in “Real Estate Merger Analysis”, with a mere 10% allocation to internet. THEY WERE WAITING ALRIGHT.
35. CCT’s “Recap of Wages” (JA N p264) shows Fontaine personally responsible for approximately 100% of revenue during the deal. Fontaine’s 10% sales commission came to $111,984 on total disclosed NRS revenues of $1,087,603. The 145+ advertisers Fontaine had delivered to CCT had grown to over 250. Fontaine was THE only salesperson selling the Internet outside of the Bundle, which CCT knew PRIOR TO THE SALE would total less than $53,000.
37. Staffing for “Bundles” included 16 outside sales people (Meyer Aff), and the Classified Phone Room Staff. Staffing for selling the Internet at full price (outside of the $53,000 expectation) consisted of Fontaine.
38. CCT had complete control of the consideration. As CCT makes clear, they had the right to allocate as they saw fit. Fontaine NRS could have been $1, or $2,000,000. Because “But Not Limited To” was surreptitiously reinserted Prior to the signing of the P&S. CCT simply opted to hold off “conceiving” of the bundle plan until Jan 9, 03, instead of responding to Fontaine’s October 16 2002 email and disclose that their Bundle policy would indeed “effect the net” by allocating 90% to Print.
39. 90% “POLICY” IS A PART OF THE SCHEME: CCT’s President Meyer’s said the 90%/10% allocation favoring Print was related to the “Expense” of each product. (Meyer affidavit @ 25, as noted on Barnstable decision pg 8). The Barnstable Ruling accepted this reasoning.
But CCT’s Appeal brief stated the allocation 90% to the Print Department(excluded from Fontaine’s NRS) was based on Value, “because such a percentage approximated revenue that could be attributed to internet advertising”. The Appeals Court Ruling accepted this reasoning.
40. TELLINGLY, Cape Cod Times Advertising Manager Molly Evans DID NOT KNOW about
the 90%/10% “policy”!
Q. So when it went to the profit center within your books, how
would you determine where that sale would get credited to?
A. "It would be split
proportionately to what the pricing was when they were separate."
CCT “Advertising Manager”, Molly Evans helped build “Real Estate Merger Analysis”
the 2002 (maybe 2001) PRE-
41. If 90% Allocation was existing Policy, WHY IS THERE A JAN 9 2003 MEMO? Why in the January 9, 03 “Memo” (JA p139, Font Exhibit #19), a mere 70 days after the P&S, does Internet Manager Kempf come out of nowhere with a grand concept, to reduce Internet Rates by 57% so that Print can sell the bundle, and even offers Print Sales staff a 15% commission.
Evans, Meyer and Kempf Already know by January 2003, BECAUSE of “RE Merger Analysis”, as well as the claimed 90/10 allocation and pricing “policy” that Bundles are already priced and will be in effect throughout the deal, LONG before Jan 9, 2003.
Kempf pretending to ask for 40% while management knows 10% has already been determined? Internet offers a 15% sales commissions, when it knows it’s share will only be 10% by policy? Meyer knows the 90/10 allocation is due to Expense, Evans says it’s proportionate to the pricing when sold separately.
42. CCT’s Appellate Brief of March 15, 2013 tells the court “The cited “Real Estate Merger Analysis” was fully disclosed and provided to Fontaine during the negotiations of the Purchase and Sale Agreement”.
They then cite a page they claims Fontaine acknowledges this. If Fontaine or his
prior counsel suggested this FOURTH estimate was “disclosed” to Fontaine, it is error.
The page counsel refers to cannot be located “(Record Appendix, p. 1; S., pp. 299-
Cape Cod Times, at the time of preparing their brief, had CLEARLY not recognized the implication of the Smoking Gun, “Real Estate Merger Analysis”, that showed CCT counting “Real Estate Book Bundles” from AND INCLUDING year 2002 through 2006. Evans admitted it, Kempf admitted it, CCT Reply #52 acknowledged it, “RE Merger Analysis” makes it undisputable.
Yet Counsel can assure the Appeals Court that CCT had given Fontaine what would otherwise
had been an innocuous document, except it has “Real Estate Book Bundles” written
right in the center, priced for the entire deal (2002-
43. In that June 25 email(9A L p7/8), CCT again uses the faulty projection instead of the figures they themselves had relied on. CCTimes tell Fontaine "According to our estimates" increasing the revenue share from 18% to 20% through 2006 could potential increase payment to Fontaine by "$20,000 to $55,000". If 2% can be $55,000, then 20% is in the ballpark of $550,000. CCT’s REAL estimate “Real Estate Merger”, which used actual pricing, including “Real Estate Book Bundles” for the entire deal totals just $1,3000,000, with $100,000 yearly “deductible” over 4 years it would be $900,000 eligible for NRS. 2% of $900,000 is $18,000.
44. CCT Appeal Brief (p 34) Oddly states that “Real Estate Merger Analysis makes no reference to any bundled products”
“Moreover, the Real Estate Merger Analysis makes no reference to any bundled products,
and was simply a revenue projection used in the negotiation of Fontaine’s Net Revenue
Share baseline -
45. CCT Appellate Brief (p38) quotes 1.3(b) (iii) of the P&S “Net Revenue . . . Shall not include revenue from line and display ads ported from Cape Cod Times print products....”. Again, Counsel is off target. The listings from the “Real Estate Book Bundle” that were placed on CapeCodRealEstate.com after the sale were placed in the “Directory listings” NOT Line or Display ads. The Listings from Bundles placed on the Real Estate Website EXPLICITLY included revenue PER THE nrs.
Further, the Court should appreciate that Bundles and the 90/10 policy were indeed conceived prior to the sale, yet not disclosed to Fontaine, and ALSO that “But Not Limited” was reinserted into the P&S without so much as “notice” to Fontaine. CCT’s trickery, and that of it’s counsel, fails again. The P&S did NOT represent Fontaine’s “final expression”. This lawyer was nowhere NEAR this deal when it took place, having appeared almost a decade later... yet speaks of as fact that which they have no basis or attribution to claimed fact.
46. “RE Merger Analysis, attachment c” was PICTURED at the very start of Fontaine’s
3/29/13 Reply Brief. On 4/8/13, obviously understanding for the 1st time the ramifications
of “RE Merger”, and the discrepancy in their own assertions, CCT attempted to file
a Sur-
CCT writes (non numbered pages) “Fontaine’s new assertion that CCTimes has intentionally mischaracterized the content of the Real Estate Merger Analysis is contradicted by the clear record evidence”. The only contradiction is theirs. Fontaine’s assertion was hardly “new”.
47. Fontaine’s Reply Brief notified the Court that Fontaine had already warned, notified
counsel they were deceiving the Barnstable Court:
“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.”
48. CCT Sur-
Counsel calls these claims “ad hominem attacks” meant to confuse the record. Fontaine’s “allegation” could not be more pertinent, relevant, factual or accurate. Howland & Knight has a lot of nerve telling ANY court that either of those two claims is “immaterial”.
Counsel should save that ridiculous answer for the Massachusetts Bar. THAT is an ad hominem attack!
49. CCT Sur-
Seven Years OF Denials that 2002 Bundles existed, and NOW Counsel wants to inform us all about 2002 Bundles? Since counsel is on record both confirming and denying 2002 bundles perhaps they might quit...?
50. CCTimes is getting confused as to their own false statements, suggesting that 70 days AFTER the sale they conceived of a bundle and named it “Cape At Home”, when RE Merger clearly shows a 4 year Real Estate Book Bundle plan, including year 2002. Meyer affidavit "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...”. (Meyer affidavit JA @ 25).
Fontaine could care less what they “named” the bundle, his concern is that it was conceived prior to the sale and was deliberately and intentionally withheld from him, as it is now being withheld from the Court. It IS a $3,000,000 lie!
51. CCT Wants the Court to Ignore the Evidence and Listen To Counsel Instead. Sur-
52. CCT Sur-
CCT had JUST prevailed on appeal swearing that the document didn’t even reference bundles. “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”.
And then CCTimes attempts to backtrack. On page 2 of their Sur-
“In other
words, even if the CCTimes conceived of the print and internet bundling strategy
prior to the execution of the Purchase and Sale, Fontaine’s claims of fraud are without
force because that CCTimes made any false promise or statement that it would abstain
from such a strategy during the negotiations of the Purchase and Sale Agreement”.
”EVEN IF”?
THAT POSITION is insulting. If CCT had conceived of bundles prior to the sale, then they have committed fraud upon this court! Repeatedly. This Court ruled bundles began in 2003 because the company filed affidavits and Counsel filed Motions attesting to it. This Court Ruled ”CCT could not have misrepresented to Plaintiff, an advertising program that did not exist during the 2002 negotiations”.
CCT Sur-
The court should look again at the October 16, 2002 exchange, where CCT agrees to remove “but not limited to” instead of disclosing bundles, when ONLY CCT KNEW OF BUNDLES AND THE 90% POLICY. Only to secret the term back in the P&S.
53. On 12/23/13 in it’s MEMORANDUM AND ORDER PURSUANT TO RULE 1:28, The Mass Appeal Court Panel wrote BUNDLES CAME “AFTER”:
“After the agreement was executed, CCTimes began to sell Internet advertising in a "bundle" with print advertising, charging a discounted price for the Internet advertising. This bundle offer was one of several ways to purchase Internet advertising and services. Because of the associated costs for print, ninety percent of the income from bundle sales was thereafter allocated to print and ten percent was allocated to Internet. A portion of the plaintiff's net Internet revenue share was derived from the ten percent attributed to Internet advertising”.
Cape Cod Times would suggest it doesn’t matter if they deceived the Appeals Court
because -
54. The Appeals Court noted in it’s decision that “The plaintiff has failed to provide a complete record, omitting both the motion for summary judgment of which he seeks review and the memoranda in support of and in opposition to the motion. In addition, other than sporadic pages, he has failed to provide CCTime's statement of facts or his response to it. Consequently, for purposes of this appeal, we accept the statement of facts as set out by the judge, supplemented where necessary by undisputed portions of the appendices.”
Fair Enough. However, the fact that ANY Pro se Litigant would not understand which portions of the lower Court record were transferred during the appeal should not surprise the Court. The Clerks office instructs the pro se to send to the court only that which it wishes the Court to see. It is unfortunate that such an important aspect of a case does not allow those unfamiliar with the process to correct the error in advance.
Fontaine’s errors are ones of omission, Cape Cod Times’ misstatements are intentional.
55. CCTime’s manufactured defense of claiming Bundles began “AFTER” the P&S caused the Court to misconstrue the other aspects of the negotiation in CCT’s favor. The Appeals Court Decision, blinded by false assertions of CCTimes, misconstrues the equation:
(FN3)“The plaintiff's focus on when CCTimes conceived of the bundling idea and his insistence that CCTimes knew of and failed to tell him of its plan to bundle services is misplaced. In a July 18, 2002, letter from the plaintiff to CCTimes, he specifically questions how commissions on customers opting for both online and print advertising would be credited, indicating that if CCTimes "sells them "print" and "gives" them internet, I would never have much chance to earn a commission or count that money towards the sale price, which would in turn defeat my ability to make money from helping you build a rental portal. . . . I will need some clarification on this." Thus relatively early in negotiations, the plaintiff was aware that bundle sales were a possibility.”
If the Court had understood, CCT denials aside, that CCT Did have a bundles plan
and a 90% allocation plan in place in 2002, which the Court DIDN’T, this would have
been seen for what it was, Fontaine asking CCTimes to simply identify the elements
so we could have a fair deal. The question here should be, why, AGAIN, didn’t CCTimes
disclose the bundle plan to Fontaine?
The answer is that CCTime’s fraudulent scheme
required that they invent bundles AFTER the P&S was signed.
56. Cape Cod Times convinced the Appeals Court bundles began “AFTER” the P&S too! In MT. IVY PRESS v DEFONSECA, The Honorable Appeals Court Justice Wolohojian wrote that even a Pro Se litigant is not insulated from committing fraud on the court.
“Although fraud on the court typically involves officers of the court, we are unprepared
to say that pro se litigants are in all circumstances insulated from committing fraud
on the court. Pro se litigants are generally required to comply with the same rules
as represented parties and their attorneys, see, e.g., Pandey v. Roulston, 419 Mass.
1010 , 1011 (1995); Kyler v. Everson, 442 F.3d 1251, 1253-
Justice Wolohojian was on the 3 member Appeals Court Panel that ruled in it’s December 23, 2013 decision AFFIRMING the Barnstable ruling “After the agreement was executed, CCTimes began to sell Internet advertising in a "bundle" with print advertising, charging a discounted price for the Internet advertising.”
Cape Cod Times DIDN’T “BEGIN” to sell Internet Advertising in a “bundle” “AFTER the agreement was executed. That is simply what the corporation and it’s counsel allowed the Court to believe. And counsel is surely an officers of the court.. And in Judge’s words “there is no reason to immunize them from the consequences of the most egregious forms of misconduct.”!
Therefore, For these reason and others yet to be discovered, Fontaine respectfully asks the Court to Reverse and find in Fontaine’s favor, to Rescind the original “agreement” and to award any and all fees, damages, sanctions, costs, interest and remedies available to it. That this foreign corporation would allow such a frivolous defense is insulting to the institution itself.
Respectfully Submitted:
________________________
Robert Fontaine, pro se