Shofar FTP Archive File: people/c/carto.willis//thompson-vrs-carto
Archive/File: holocaust/usa/ihr thompson.suit
Last-Modified: 1995/04/30
STATE OF INDIANA IN THE MARION COUNTY ________ COURT
CIVIL DIVISION
COUNTY OF MARION CAUSE NO.
LINDA THOMPSON and
AMERICAN JUSTICE FEDERATION,
Plaintiffs,
v.
WILLIS CARTO, ANN CRONIN,
LIBERTY LOBBY, INC. and
PAGE DESIGN CORP.
Defendants.
COMPLAINT
[As amended]
COME NOW THE Plaintiffs, Linda Thompson and American Justice
Federation, and for their cause of action against the defendants
states:
1. The Plaintiff is a resident of the State of Indiana;
2. The Defendants, Willis Carto, Ann Cronin, and Liberty Lobby,
have conducted business by telephone and mail with the plaintiff in
the State of Indiana, soliciting business with the plaintiff,
establishing contacts sufficient to subject them to the jurisdiction
of the State of Indiana;
3. LIBERTY LOBBY is a corporation that publishes a newspaper
known as "The Spotlight," which is distributed throughout the United
States by mail, including within the state of Indiana and has a
circulation of approximately 100,000;
4. LIBERTY LOBBY has also placed advertisements in an Indiana
magazine, Media Bypass, owned by defendant Page Design Corp.
5. Plaintiff Linda Thompson is the producer of two videotapes,
"Waco the Big Lie," and "Waco II, the Big Lie Continues." American
Justice Federation is the copyright holder on both productions, and
Linda Thompson is the joint copyright holder.
6. On or about February, 1994, Defendant Liberty Lobby ordered
300 copies of the videotape, "Waco, the Big Lie Continues"
(hereinafter "Waco II") at wholesale prices.
7. On or about April, 1994, Plaintiff learned that Liberty Lobby
was advertising these Waco tapes for sale on its radio programs, which
reach a worldwide audience several times a day, and in various
magazines and with a certainty, had sold copies of the tape far in
excess of the 300 copies purchased, based upon comparable advertising
and sales of others in same or similar markets.
8. On or about April, 1994, Plaintiff learned that Liberty Lobby
was also advertising and selling "Waco II, the Big Lie Continues" and
had never ordered any copies of this tape whatsoever.
9. There is no authorized distributor from which Liberty Lobby
could have purchased "Waco II, the big Lie Continues" other than the
American Justice Federation.
10. In February, 1994, Willis Carto sent a letter to American
Justice Federation offering to pay a token amount for the Waco tapes
that were produced by Liberty Lobby, which offer was immediately
rejected; Linda Thompson contacted Willis Carto and Ann Cronin and
demand was made for payment of $8.00 per tape, based upon the ordinary
wholesale price of $10.00, less the cost of the raw materials (tape
cassette and labels), which would be the ordinary amount received had
Liberty Lobby purchased tapes from Linda Thompson or American Justice
Federation, which Liberty Lobby knew from its original purchase of 300
tapes. Liberty Lobby failed and refused to pay this demand. In
subsequent discussions, Linda Thompson agreed to accept $6.00 per
tape; however, no payment has been forthcoming and Liberty Lobby has
failed and refused to pay for even the 4,000 copies it admitted it had
sold as of February of 1994.
11. Ann Cronin at Liberty Lobby was contacted by telephone by
Linda Thompson in March, 1994, about these advertisements and sales;
she advised the Plaintiff that Liberty Lobby was producing its own
copies of the tapes and had "sold about 4,000" Waco II's as a result
of advertising Waco I and several thousand Waco I tapes. Ann Cronin
admitted that she knew Liberty Lobby did not have permission to
reproduce these tapes but claimed Liberty Lobby was reproducing the
tapes because delivery was "too slow," from American Justice
Federation.
12. Plaintiff advised Ann Cronin that Liberty Lobby did not have
the right nor permission to produce either of these tapes and to cease
and desist.
13. Subsequently, Plaintiff learned that throughout the year and
as late as August of this year, Liberty Lobby continued to advertise
the sale of the Waco tapes on not only its own radio programs and in
its 100,000 person-circulation newspaper, the Spotlight, but in
magazines throughout the country, including Media By Pass Magazine.
14. Prior to the publication of the June issue of Media Bypass
Magazine, in which an advertisement by Liberty Lobby for the sale of
Plaintiff's tapes appeared, the owners of Media Bypass Magazine,
representatives of Page Design Corp., had personally visited the
offices of Linda Thompson and American Justice Federation and during
the visit, discussed potential advertising by American Justice
Federation for the Waco tapes in Media Bypass magazine.
15. The owners of Page Design Corp. and Media Bypass magazine
knew with a certainty that Liberty Lobby did not own the tapes it was
advertising; however, Media By-Pass Magazine ran the advertisements
for Liberty Lobby, selling the Plaintiff's tapes, anyway. Media
By-Pass Magazine was distributed throughout Indiana the month of June.
This was only one advertisement of several that were run by Liberty
Lobby, as "Liberty Library," from January through June of 1994.
16. Based upon average sales and upon the amount admitted sold
by the Defendants in less than 30 days, Plaintiff believes Liberty
Lobby has now sold in excess of 40,000 copies of Waco II, the Big Lie
Continues and in excess of 40,000 copies of Waco, the Big Lie.
17. The only way in which the Defendants could reproduce copies
of the Waco tapes was to copy them from a retail VHS copy they
obtained from some source other than directly from the Plaintiff or
through subterfuge.
18. All copies of Waco I and II were plainly marked on the
outside labelling and at the beginning and end of the tapes themselves
as copyrighted;
19. All retail VHS copies of Waco II also had a special copy
protection put on these tapes to defeat copying which would require an
intentional and knowing use of a device to override and defeat the
copy protection, in order to make a copy.
20. No Defendant ever requested nor received a master 3/4"
(non-VHS) "master" tape from which to reproduce copies of these tapes
and at no time did the Defendants Liberty Lobby have permission to
reproduce these tapes.
21. Adding insult to injury, Liberty Lobby wrongfully
appropriated the names of the Plaintiffs and telephone number of
American Justice Federation in association with its advertisements,
without permission, thereby subjecting Linda Thompson and the American
Justice Federation to scorn and ridicule by this association, and
resulting in the Plaintiffs being labelled as an "anti-Semitic" group
as a result of the association with Liberty Lobby, which has caused
the Plaintiff, Linda Thompson, much personal humiliation, pain and
suffering and damage to her reputation in the community and damage to
the reputation of the American Justice Federation.
22. The appropriation of the names of the Plaintiffs was for the
commercial purposes of the defendants and also to confuse the name and
reputation of the American Justice Federation throughout the world by
association with Liberty Lobby.
COUNTS I and II - Theft
23. The Plaintiffs incorporate paragraphs 1 through 22 of the
complaint as if fully set forth herein;
24. The copying of the tape Waco I constituted a knowing and
willful theft of the work and work product of Linda Thompson and
American Justice Federation.
25. The copying of the Waco II tape constituted a knowing and
willful theft of the work and work product of Linda Thompson and
American Justice Federation.
27. The Plaintiff sues the Defendants Liberty Lobby, Willis
Carto, and Ann Cronin, jointly and severally, in the amount of $
240,000,00 for Waco I and $240,000,00 for Waco II, all totalling,
$480,000.00, based upon $6.00 per tape for the sale of an estimated
40,000 copies of each these tapes (80,000 copies total).
COUNT III - CONVERSION/TREBLE DAMAGES
28. The Plaintiffs incorporate paragraphs 1 through 27 of the
complaint as if fully set forth herein;
29. The copying of the Waco tapes constituted a knowing,
willful, and intentional conversion of the work and work product of
the plaintiffs to the commercial use and advantage of the Defendants
and pursuant to I.C. 34-4-30-1, the Plaintiff sues the Defendants
Liberty Lobby, Willis Carto, and Ann Cronin, jointly and severally,
for treble damages, in the amount of $1,440,000.00
(One-million-four-hundred-forty-thousand dollars), plus attorney fees
and costs of this action.
COUNT IV - APPROPRIATION OF NAME FOR COMMERCIAL ADVANTAGE
30. The Plaintiff incorporates paragraphs 1 through 27 of the
complaint as if fully set forth herein;
31. The Defendants LIBERTY LOBBY, Ann Cronin, Willis Carto, and
Page Design Corp., used the name of the Plaintiffs to their commercial
advantages, without permission of the Plaintiffs, in advertising, and
for which the Plaintiffs sue the defendants, LIBERTY LOBBY, Ann
Cronin, Willis Carto, and Page Design Corp. jointly and severally, in
the amount of $1,000,000.00 (one-million dollars).
WHEREFORE Plaintiffs pray this honorable court for judgment
against the defendants
A. Count I - Theft - $ 240,000.00 (two-hundred-forty-thousand
dollars) for the theft of the work and work product of the Plaintiffs,
specifically, the Waco I tapes, as against Liberty Lobby, Willis
Carto, and Ann Cronin, jointly and severally;
B. Count II - Theft - $240,000.00 (two-hundred-forty-thousand
dollars) for the theft of the work and work product of the Plaintiffs,
specifically, the Waco II tapes, as against Liberty Lobby, Willis
Carto, and Ann Cronin, jointly and severally;
C. Count III - Conversion/Treble Damages - Pursuant to I.C.
34-4-30-1, the Plaintiff sues the Defendants Liberty Lobby, Willis
Carto, and Ann Cronin, jointly and severally, for treble damages, in
the amount of $1,440,000.00 (One-million-four-hundred-forty-thousand
dollars), plus attorney fees and costs of this action.
D. Count IV - Appropriation of name and reputation for
commercial advantage, as against LIBERTY LOBBY, Ann Cronin, Willis
Carto, and Page Design Corp. Communications, jointly and severally,
in the amount of $1,000,000.00 (one-million dollars).
All totalling $2,920,000.00 (two-million-nine-hundred-twenty
thousand dollars), attorney fees and costs of this action, and all
other relief just or equitable in the premises. Respectfully
submitted this 24th day of October, 1994,
___________________________________________
Linda D. Thompson
Attorney at Law
Indiana Bar #16533-49
LINDA D. THOMPSON
Attorney at Law
3850 S. Emerson Avenue, Suite E
Indianapolis, IN 46203
(317) 780-5202
STATE OF INDIANA IN THE MARION COUNTY SUPERIOR COURT
CIVIL DIVISION
COUNTY OF MARION CAUSE NO. 49D019410 CT 1178
LINDA THOMPSON and
AMERICAN JUSTICE FEDERATION,
Plaintiffs,
v.
WILLIS CARTO, ANNE CRONIN,
LIBERTY LOBBY, INC.,
PAGE DESIGN CORPORATION
Defendants.
RESPONSE AND MEMORANDUM OF LAW
TO DEFENDANTS' MOTION TO DISMISS
COME NOW the Plaintiffs and file their response to the Motion to
Dismiss of the Defendants Willis Carto, Anne Cronin, and Liberty Lobby
and in support, show the court:
I. FACTS
Defendants Willis Carto and Anne Cronin are officers of Liberty
Lobby, a company that publishes a newspaper, the Spotlight, which is
distributed on newsstands throughout Indiana and by subscription in
Indiana, and throughout the United States. Liberty Lobby also
sponsors a radio program, the Tom Valentine Show, which is heard world
wide, and Spotlight's Bureau Chief, Mike Blair, hosts a weekly radio
station program in Greenwood, Indiana.
Plaintiffs are the producers and owners of several news
documentary videotapes, including one program entitled, Waco, the Big
Lie.
In the summer of 1993, Tom Valentine invited Linda Thompson to be
a guest on his radio program in August, 1994. This invitation was
extended when Tom Valentine called by telephone from his home in
Minnesota to the Plaintiffs' business in Indianapolis. The interview
was conducted by telephone. Valentine also called Thompson from his
home in Minnesota to the Plaintiffs' business in Indiana for purposes
of the interview. Linda Thompson did not solicit the interview and
she was not paid for the interview but she was provided air time
during which to discuss her videotape and how people could obtain it
from the American Justice Federation.
After the first radio broadcast on the Tom Valentine show,
Defendant Anne Cronin telephoned Plaintiffs' office, American Justice
Federation, to inquire about purchasing copies of the video tapes at
wholesale, and faxed an order to the Plaintiffs for 200 tapes for
re-sale, at the re-seller's price of $12.00. The defendants promoted
the sales of the videotapes by advertising them in the Spotlight and
on the Tom Valentine radio program, however, the Defendants continued
to advertise and promote the videos for several months and sold far
more of the tapes than they ordered from the Plaintiffs. Plaintiffs
later learned the Defendants were reproducing these tapes themselves,
from one of the copies they had ordered and that they were running
newspaper articles about Linda Thompson and her investigations, as
well as newspaper advertisements, to promote the sale of these
bootlegged tapes
The Defendants ran two and three page stories in the Spotlight
newspaper that consisted of a copy of the transcript of Plaintiffs'
radio broadcast with Tom Valentine in its newspaper on at least two
separate occasions, without Plaintiffs' knowledge or permission. The
Defendants also ran printed advertisements for these bootlegged tapes
in their newspaper for several months. The Defendants also advertised
these bootlegged tapes in other media, including in Media By Pass
Magazine in Indiana and on the Tom Valentine radio program.
Because the Defendants were making their bootlegged copies from a
VHS copy, rather than a master tape, the resulting bootlegged tapes
were very poor quality copies. People who bought the poor quality
tapes began complaining and returning their tapes to the Plaintiffs.
Plaintiffs replaced hundreds of tapes due to complaints of poor
quality before learning the source of the tapes. Shipping good tapes
to people who complained of poor tapes drained the Plaintiffs'
financial resources and backlogged the Plaintiffs' shipping procedure
and slowed down Plaintiffs' own ability to fill orders. Plaintiffs'
reputation was seriously damaged by the poor quality videotapes
produced by the Defendants which led people to question the validity
of the findings presented in the documentary that could not be seen
due to the poor video quality. The Plaintiffs' reputation was further
damaged by stories touting the Plaintiff in the Spotlight, because the
Spotlight is well known as an anti-Semitic and racist publication.
The Defendants also obtained access to the Plaintiffs' computer news
network during this time and advertised this connection as belonging
to the Spotlight.
On learning that the Defendants were bootlegging the tapes, in
February, 1994, Plaintiff called the Defendants and confronted them
with the bootlegging. Defendant Anne Cronin admitted that 4,000 tapes
had been sold the first two weeks after ads first came out in August
1993 in the Spotlight. Confronted with the fact that even those first
two weeks of initial orders would have far exceeded the total number
of tapes that were ever ordered from the Plaintiffs, the Defendants
then offered to pay what they termed a "royalty" of $1.00 per tape
produced.
The defendants have subsequently claimed that they had a verbal
agreement with the Plaintiffs to produce these tapes and pay a royalty
to the Plaintiffs, but they also have produced a sworn statement that
proves no such agreement ever existed. The Plaintiffs also deny that
any such verbal agreement ever existed. The defendants have never
paid any royalty in fulfillment of this alleged-but-self-contradicted
claim of a verbal agreement in more than 18 months, either.
Subsequent to this lawsuit being filed, they now also claim to have
made only 1900 bootlegged tapes, total.
After the Plaintiffs' demanded that the Defendants stop
bootlegging their tapes and pay for what they had stolen, the
Defendants began to run false, defamatory and inflammatory newspaper
stories about the Plaintiffs in the Spotlight newspaper.
II. PROCEDURAL HISTORY:
Plaintiffs Linda Thompson and American Justice Federation, both
of Indiana, on October 24th, 1994, sued the Defendants, Willis Carto,
Anne Cronin and Liberty Lobby for theft and conversion for
unauthorized videotape reproductions ("bootlegging") and sales of the
bootlegged videotapes, for misappropriation of the Plaintiffs' names
in articles and advertisements in newspapers, magazines, and radio
broadcasts and for treble damages, punitive damages and attorney fees
in accordance with the Indiana treble damages statute.
Defendants, all of whom reside outside the state of Indiana,
obtained two extensions of time to answer and now file a Rule 12(B)(2)
Motion to Dismiss for lack of personal jurisdiction on the basis of
insufficient contacts with the State of Indiana pursuant to Trial Rule
4.4.
III. BASES FOR JURISDICTION
The provisions of Indiana Trial Rule 4.4 which govern jurisdiction
over nonresident defendants which are relevant to these proceedings
provide that:
"Any person or organization that is a nonresident of this
state . . . submits to the jurisdiction of the courts of
this state as to any action arising from the following acts
committed by him or his agent:
(1) Doing any business in this state;
(2) Causing personal injury or property damage by an act or
omission done within this state;
(3) Causing personal injury or property damage in this state
by an occurrence, act or omission done outside this state if
he regularly does or solicits business or engages in any
other persistent course of conduct, or derives substantial
revenue or benefit from goods, materials, or services used,
consumed or rendered in this state;"
TR 4.4
See, generally, Tietloff v. Lift A Loft Corp., 441 N.E.2d 986
(Ind.App. 1982); Ogden Eng'g Corp. v. St. Louis Ship, 568 F.Supp.
49 (N.D. Ind. 1983), for a discussion of "minimum contacts"
necessary to exercise jurisdiction over nonresident defendants.
IV. ARGUMENT:
1. This Court has jurisdiction over the Defendants pursuant to
any or all of the above three bases for jurisdiction. As set forth
below and pursuant to TR 4.4:
"[a]ny person or organization that is a nonresident of this state . . . submits
to the jurisdiction of the courts of this state as to any action arising from
the following acts committed by him or his agent:
(A) Arising from doing business in this state by the Defendants. TR
4.4(A)(1).
(1) This action arises directly out of multiple harms (theft,
conversion, misappropriation of name, damage to goodwill and
reputation) to the Plaintiffs that were directly caused by the
Defendants doing business in this state through several methods
~ Selling their newspapers on newsstands and by mail subscriptions within Indiana;
~ By telephonic voice solicitations of business;
~ By telephonic fax solicitation of business;
~ By telephonic computer polling to obtain Plaintiffs' news products;
~ By the sale through the mail of bootlegged videotapes within Indiana.
(2) Attached at Plaintiffs' Exhibit A, and incorporated by
reference herein, is the affidavit of Lawrence Hornocker, attesting
that he regularly purchases the Defendants' newspaper, the Spotlight,
and purchased the editions of August 30, 1993 to October 25, 1993 that
are appended at Exhibits B-H, at Dady's Grocery at 4301 West
Washington Street in Indianapolis, Indiana.
(3) Attached at Plaintiffs' Exhibit Q is a West Side Community
News newspaper advertisement for Dady's grocery showing that Dady's
grocery promotes the Spotlight in its advertisements in Indiana.
[Note to Defense Counsel: The original newspapers are filed with
the court. Only the front page and relevant articles from those
newspapers are reproduced for Defense Counsel.]
(4) Each of the Spotlight newspapers appended as an exhibit
contains an article about the Plaintiffs, published without the
Plaintiffs' knowledge or consent, which sensationalizes and exploits
the Plaintiffs' name and work to promote sales of the Defendants'
bootlegged video tapes, or they contain advertisements for the
bootlegged copies of the Plaintiffs' videotapes, or both:
Exhibit B Spotlight newspaper, August 30, 1993, Pages 12,13,15 - 3/4
of each page is a transcript of Plaintiffs' radio
interview and 1/4 of each page are advertisement for
Plaintiffs' videos and a review of Plaintiffs' video to
promote the sale, by the Defendants of bootlegged
videos.
Exhibit C Spotlight newspaper, September 6, 1993, Page 10 - 1/4 page
advertisement for the bootlegged videotapes
Exhibit D Spotlight newspaper, October 4, 1993, Page 7 - Full page
advertisement for the bootlegged tapes
Exhibit E Spotlight newspaper, October 11, 1993, Page 18 - 1/4 page
advertisement for the bootlegged video tapes
Exhibit F Spotlight newspaper, October 18, 1993, Page 22 - 1/4 page
advertisement for the bootlegged videotapes
Exhibit G Spotlight newspaper, October 25, 1993, page 11 - 1/4 page
advertisement for the bootlegged videotapes
Exhibit H Spotlight newspaper, October 25, 1993, Pages 12,13, and 21
- Three half pages of stories - Another transcript of
the Plaintiffs' August radio interview
(5) Page 6 of the October 25, 1993 Spotlight [Exhibit H] contains
an advertisement for a computer bulletin board service ("BBS") that is
touted as belonging to Spotlight. This computer BBS was set up to
obtain the Plaintiffs' computer news network feed, AEN News, daily
from Indianapolis. The Spotlight computer received its feed for AEN
News from Indianapolis, which could only be obtained by the Spotlight
Computer calling by telephone daily to download the information from
the AEN Network in Indianapolis, as set forth in the affidavit of the
News Network director, Al Thompson, at Plaintiffs' Exhibit I.
Thompson further details how Spotlight was only able to obtain this
feed at all through deception and misrepresentation. Plaintiffs
allowed the hookup of the Defendants' BBS computer to the network
because the Plaintiffs did not know the person running the BBS had any
association with the Defendants and the Defendants' operator did not
reveal this information. The Plaintiffs had no idea this computer BBS
was being advertised as belonging to Spotlight, nor that the computer
picking up the AEN News feed belonged to Spotlight. Plaintiffs
learned that Spotlight was accessing the news system when documents
and news stories available only from AEN News later appeared in the
Spotlight. Plaintiffs were also unaware that Spotlight claimed an
ownership or any association with the news network until the
preparation of this pleading lead to the discovery of the
advertisement. The resulting perception by the public was that the
Plaintiffs' news network was somehow owned by or associated with
Spotlight, which caused great harm to the Plaintiffs' work and
reputation, as detailed more fully below.
(2) At Plaintiffs' Exhibit J, incorporated by reference as if
fully set forth herein, is a purchase order for Plaintiffs' video
tapes on the Defendants' Letterhead, signed by Defendant Anne Cronin.
Defendant Anne Cronin initiated this order to American Justice
Federation in Indianapolis by telephone from the Defendants' business
in Washington, D.C., as reflected by the fax information at the top of
the purchase order. At Plaintiffs' Exhibit K are the shipping
documents showing that these video tapes were shipped from Indiana to
the Defendants.
(3) At Plaintiffs' Exhibit L, incorporated by reference as if
fully set forth herein, is a copy of an article which ran in the
Defendants' newspaper, the Spotlight, on December 19, 1994, purporting
to give "the facts" about this present lawsuit, in which the
Defendants make the following admissions of material fact (relevant
portions are underlined):
~ Defendant Liberty Lobby admits that it publishes the Spotlight
Newspaper. ["Attorney Linda Thompson . . .has filed. . . [a]
lawsuit against Liberty Lobby, the Washington-based institution that
publishes The SPOTLIGHT."]
~ Defendant Liberty Lobby admits that it knew the videotape,
Waco, the Big Lie, belonged to Thompson "Thompson became an overnight
celebrity in some circles by claiming that her video, compiled from
tape shot during the Waco holocaust. . . ."]
~ Defendant Liberty Lobby admits that Tom Valentine could not
have made an offer to the Plaintiffs to reproduce the video tape
during his radio show and thereby admits that no negotiations took
place in Minnesota by stating "After Thompson appeared on Tom
Valentine's Radio Free America program, sponsored by the SPOTLIGHT,
many SPOTLIGHT readers expressed interest in obtaining the video,
which quickly sold out. Because Thompson was unable to fulfill
continuing orders with the speed necessary to service the demands of
The SPOTLIGHT's readers, Valentine asked Thompson if it would be
possible for Liberty Library to reproduce the video on its own to fill
the orders and pay her royalties therefrom."
This is an admission because the stated sequence of events
directly contradicts the Defendants' sworn statements [Affidavits of
Willis Carto, Liberty Lobby, and Anne Cronin, paragraph 3 in each)
attached in support of their Motion to Dismiss, in which the
Defendants claim: "3. The initial contract negotiations regarding the
transaction in question between Defendant Liberty Lobby and Plaintiffs
Thompson and the American Justice Federation took place in Minnesota,
while Plaintiff Thompson appeared on a radio talk show hosted by Tom
Valentine." [emphasis added.]
The newspaper story admits that it was only after Plaintiff
appeared on the radio show and only after people began calling Liberty
Lobby to inquire about the tapes, did it occur to the Defendants to
sell the tapes, and at that time, the Defendants did not try to
negotiate any agreement to reproduce the tapes, they just ordered
tapes at the wholesale price to sell for themselves. Tom Valentine,
in his sworn statement, paragraph 3, says he "was not involved in any
way with the negotiation of any terms or the execution of any
contracts involving this transaction," further demonstrating that the
newspaper story is an admission that no agreement to reproduce the
tapes was ever negotiated and publicly contradicting the Defendants'
sworn statements.
Attached at Plaintiffs' Exhibit R is an affidavit from Ben
Moore who answered the telephone for the radio interview when Tom
Valentine called Linda Thompson in Indianapolis, which is also
supported by the Affidavit of Linda Thompson at Plaintiffs' Exhibit M.
The same statement, taken only at face value, "Valentine
asked Thompson if it would be possible for Liberty Library to
reproduce the video on its own to fill the orders and pay her
royalties therefrom," at a minimum, is yet another admission that
Liberty Lobby solicited the Plaintiffs in Indianapolis, which
contradicts the Defendants' claims in their sworn affidavits at
paragraph 4 that "4. Any telephone communications between Defendants
Liberty Lobby and myself with Plaintiffs Thompson and the American
Justice Federation were initiated by Plaintiff Thompson."
Another contradiction of these sworn statements is provided
at Plaintiffs' Exhibit J which is a purchase order for the 400 videos
that plainly demonstrates on its face:
Telephone contact with the Plaintiff by the Defendant Anne Cronin,
contrary to paragraph 4 of her sworn statement;
Telephone contact initiated by the Defendant Anne Cronin;
Ongoing business transactions between the Plaintiff and Defendants;
It is signed by the Defendant Anne Cronin herself.
Amiee Lopez received several calls from Ann Cronin, contrary
to the above quoted statements in the affidavit of Ann Cronin (which
are also contradicted by Ann Cronin's own signature on the fax to
American Justice at Exhibit J), as set forth in the Affidavit of Amiee
Lopez at Plaintiffs'
Exhibit S.
It is plain that whether "initial negotiations" in the Affidavits
of Carto, Cronin and Liberty Lobby at paragraph 3, means contact
between Tom Valentine and the Plaintiffs or contact between Liberty
Lobby and the Plaintiffs, in either case, the contact was intiated by
the Defendants who called the Plaintiffs in Indianapolis, contrary to
their sworn claims in their paragraphs 4, and all of which is "doing
business in Indiana" (which the defendants know or they wouldn't have
gone to such lengths to try to deceive the Court on this particular
point with false statements of fact and omissions of material facts,
as illustrated herein.)
~ Liberty Lobby admits business transactions within Indiana of an
on-going nature. ["Because Thompson was unable to fulfill
continuing orders with the speed necessary to service the demands
of The SPOTLIGHT's readers . . ."].
~ Defendants admit that they knew they had no legal right or
authority to reproduce the videotapes. ["no specific royalty was
agreed upon." and "No answer was ever received." (to the alleged
written "offer" to the Plaintiffs to pay a "royalty" of $1.00 per
tape after the Defendants had been caught red-handed unlawfully
bootlegging the tapes for five months before this "offer" was
made.) (See also the Defendants' Affidavit of Tom Valentine,
admitting that he actually did not participate in any such
negotiation at all, at paragraph 3.)]
~ Defendants again admit that they solicited the Plaintiffs in
Indiana. ["Liberty Lobby wrote to Thompson and proposed a
royalty figure."] Defendant Willis Carto was the author of this
letter to Linda Thompson in February, 1994, long after the
Defendants had been steadily bootlegging the Plaintiffs' work and
after the Defendants had been caught red-handed, as set forth in
the Affidavit of Linda Thompson at Plaintiffs' Exhibit M.
~ Liberty Lobby admits that, despite knowing Linda Thompson owned
the videotapes and despite knowing the Defendants had no legal
right to reproduce the videotapes, the Defendants reproduced the
videos and sold them. ["Within the next several weeks, Liberty
Library reproduced and sold precisely 1,900 additional copies"].
(Plaintiffs dispute this figure).
~ Defendants admit they publicized transcripts of the Plaintiffs'
radio interviews with Tom Valentine. ["(A transcript of the
interview was subsequently published in the Spotlight giving
Thompson greater and more widespread national publicity than she
had ever received before.)"], which is one of the bases for
Plaintiffs' claims of misappropriation of name.
(8) For the foregoing reasons, this action arises directly from
the Defendants "doing business in the state of Indiana," through
~ Selling its newspaper, Spotlight, on newsstands in Indiana and
by mail order subscriptions in Indiana;
~ Soliciting the Plaintiffs' business on numerous occasions
directly relevant to this action (soliciting the Plaintiff to
appear on radio, calling Plaintiff for the radio interviews,
calling and faxing orders for videotapes to the Plaintiffs in
Indiana).
~ Polling daily by computer (via telephone lines) for information
and news services from the Plaintiffs' Computer News Network feed
in Indianapolis, which were then rebroadcast in Washington, D.C.
by the Defendants.
~ Selling videotapes through their newspaper and magazine
advertisements in Indiana and making delivery of those videotapes
to people in Indiana who ordered them.
This Court therefore clearly has personal jurisdiction over each
of the Defendants for this action which arises directly from the
Defendants doing business in Indiana pursuant to TR 4.4(A)(1).
(B) "Causing personal injury or property damage
by an act or omission done within this state."
TR 4.4(A)(2).
(1) This Court has jurisdiction over the Defendants pursuant to
TR 4.4(A)(2) because the Defendants have caused personal injury and
property damage to the Plaintiffs, to wit:
~ Theft of Plaintiffs' videotape work product, obtained from Indiana.
~ Conversion of Plaintiffs' videotapes, obtained from Indiana.
~ Misappropriation of Plaintiffs' name in newspapers sold in
Indiana on newsstands and by mail.
All of which were directly and indirectly caused by acts of the
Defendants done in this state, to wit:
~ Selling its newspaper, Spotlight, on newsstands in Indiana and
by mail order subscriptions in Indiana;
~ Soliciting the Plaintiffs' business on numerous occasions
directly relevant to this action (soliciting the Plaintiff to appear
on radio, twice, calling Plaintiff for the radio interviews, and
faxing orders for videotapes to the Plaintiffs in Indiana);
~ Polling daily by computer (via telephone lines) for information
and news services from the Plaintiffs' Computer News Network feed in
Indianapolis, which were then re- broadcast in Washington, D.C. by
the Defendants);
~ Selling videotapes through their newspaper and magazine
advertisements in Indiana and making delivery of those videotapes to
people in Indiana who ordered them;
Plaintiffs incorporate the facts and allegations set forth above
on these issues from the preceding paragraphs rather than reiterate
the points.
(2) Additionally, it is an injury in itself for the Plaintiffs'
names to be a topic in the Spotlight newspaper because the Spotlight
has an established reputation as an anti-Semitic and racist newspaper;
its founder, Defendant Willis Carto, is also the founder of a Nazi
revisionist organization, the Institute for Historic Review, that
purports to "prove" that millions of Jews were not exterminated during
World War II. As a direct result of the Defendants publishing the
radio transcript of Plaintiff Linda Thompson's interview with Tom
Valentine in the Spotlight, Plaintiffs have been subjected to scorn
and derision throughout the country and in Indiana. As a direct
result of the publication of the radio transcripts in the Spotlight,
the Southern Poverty Law Center put American Justice Federation's name
on a "Klan Watch" bulletin [See Plaintiffs' Exhibit N] which was sent
to 600 law enforcement agencies throughout the country, which in turn
resulted in numerous persons disassociating themselves from the
Plaintiffs and in heightened scrutiny by and harassment from law
enforcement agencies, and in the Plaintiffs being hounded by media
stories claiming the Plaintiff was associated with the "Ku Klux Klan
and nazis," with which the Plaintiffs have no association whatsoever.
The publication of the radio interview, twice, in the Defendants'
newspaper was an unauthorized use of the Plaintiffs' name and research
because it was used without the Plaintiffs' knowledge or authority, to
promote video tapes that were produced by the Defendants without the
Plaintiffs' knowledge or consent, and sold solely for the commercial
advantage of the Defendants. These publications about the Plaintiffs
were of no benefit to the Plaintiffs whatsoever, but brought
notoriety, condemnation, and ridicule upon the Plaintiffs by the
unwanted association of their names in the Spotlight newspaper.
(3) Because of the Defendants' misrepresentation in
advertisements that Plaintiffs' computer network, AEN News, was
affiliated with or in some way owned by the Spotlight by implication
[Plaintiffs' Exhibit H, page 6], Southern Poverty Law Center, which
purports to be a political enemy of the Spotlight, used this
misrepresentation by Spotlight that AEN News, the Plaintiffs' network,
was owned by or affiliated with Spotlight, as the basis for an
orchestrated campaign of negative publicity directed at the
Plaintiffs. Southern Poverty Law Center paid Richard Bottoms to
publicize a negative article in a local Indianapolis tabloid, Nuvo,
about Plaintiffs' computer news network in Indianapolis, claiming AEN
News was the "jumping off point" for nazis and racists. A copy of
that article is attached at Plaintiffs' Exhibit O. Even though
Plaintiffs' computer network has no known association whatsoever with
racists or nazis, the Spotlight, which itself has such a reputation,
gained access to the Plaintiffs' news network by deception and
misrpresented its association in its advertising. This prompted the
inquiry by Southern Poverty Law Center, and the resulting article
published by Nuvo. Richard Bottoms next directed his crusade against
the Plaintiffs to the radio on WIBC and on NBC Nightly news, and
participated in the preparation of a slam article about the Plaintiff
on local Channel 6. The company that owns the radio station with
which Bottoms is now affiliated also owns Indianapolis Monthly
magazine, and they, in turn, published a "Heros and Zeros" article
that labels Richard Bottoms a "hero" and Linda Thompson a "zero," and
which contains wholly false, defamatory statements about Linda
Thompson. Although none of these statements mentions the Spotlight, a
media vendetta against the Plaintiffs was begun because of the
Spotlight's publication of Plaintiffs' radio interview and Spotlight's
advertising its "BBS" network and other acts by Spotlight that falsely
misrepresented the Plaintiffs as politically allied with or associated
with Spotlight. Even the most recent article in Spotlight, December
22, 1994, at Exhibit L, speaking of the Plaintiff, says "never before
known within the Populist movement, Thompson became an overnight
celebrity" which, by implication means the Plaintiff is now known
within the populist movement, when in fact, Plaintiff is not now,
never has been, never claimed to be and does not wish to be known as a
"populist." The misrepresentations by Spotlight that imply the
Plaintiffs' are allied with Spotlight triggered a massive retaliatory,
politically motivated campaign of negative publicity directed at the
Plaintiffs on a local and national level, discredited the Plaintiffs'
work and reputation and caused the Plaintiffs considerable humiliation
and damage to their business associations.
In fact, it now appears that Spotlight, rather than being a
target of this publicity, is itself a vehicle to target others and
that the intent, from the beginning, was to destroy the Plaintiffs and
the Plaintiffs' work.
(4) Any tape actually sold in Indiana by the Defendants was an
additional personal injury to the Plaintiffs within Indiana by the
appropriation of the Plaintiffs' names because the Plaintiffs' names
and identities appear in several places within the video tape
contents, identifying Linda Thompson and American Justice Federation
as the producers and source of these tapes, as shown at Plaintiffs'
Exhibit T, a copy of Waco, the Big Lie. This would lead anyone who
ordered the poor-quality bootlegged tapes to believe the tapes
originated with the Plaintiffs. Because the Defendants were making
their bootlegged copies from a VHS copy, rather than a master tape,
the quality of the bootlegged tapes was extremely poor and many
details in the photographic images were lost. There would be no way
for a person receiving such a tape to realize that details in the
photographic images that would be there in a better copy, were simply
not visible in the poor copy. People who bought these poor quality
bootlegged tapes from the Defendants then questioned the validity of
key information presented in the video tapes because they could not
see many details due to the poor quality reproduction. This, in turn,
caused people to publicly scorn the Plaintiffs and disparage the
Plaintiffs' presentation of facts, which were based upon the
photographic contents of the videotape, which the people buying these
poor quality tapes could not see.
(5) The Defendants' mass sales of poor quality bootleggd copies
of the Plaintiffs tapes also resulted in hundreds of people sending
"defective" and "blurry" tapes to the Plaintiffs for replacements.
This effect was extensive and was one thing that led the Plaintiffs to
uncover the bootlegging.
(6) Adding insult to injury, the Defendants used the public
scorn, ridicule and "controversy" the Defendants had created by these
poor quality tapes as the basis for a defamatory claim in a recent
Spotlight article that people "questioned the validity of some of the
claims made by Thompson in the video." A copy of this article is
attached as Plaintiffs' Exhibit L. This most recent article is yet
another example of the Defendants appropriating the Plaintiffs' name
to generate controversy to their own commercial advantage in their
newspaper, the Spotlight.
(7) For the foregoing reasons, this Court has jurisdiction over
the defendants on the basis that they have caused personal injuries
and property damage to the Plaintiffs in this state by acts in this
state.
(C) Causing personal injury or property damage in this state
by an occurrence, act or omission done outside this state
if he regularly does or solicits business
or engages in any other persistent course of conduct,
or derives substantial revenue or benefit
from goods, materials, or services
used, consumed or rendered in this state." TR 4.4(A)(3)
(1) The Plaintiffs' personal injuries and property damages are
set out in the above paragraphs and are incorporated by reference
herein as if fully set forth.
(2) Defendants Willis Carto and Anne Cronin are both officers of
the Liberty Lobby Corporation and were directly and personally
involved in the decision to bootleg the Plaintiffs' tapes and to
advertise those bootlegged tapes in the Spotlight throughout the
United States.
(3) Willis Carto, in the affidavit of Liberty Lobby, asserts that
he is the Corporate Treasurer for Liberty Lobby. He is the person
referred to in the Defendants' newspaper article at Plaintiffs'
Exhibit L in the statement "Liberty Lobby wrote to Thompson and
proposed a royalty figure." The referenced letter was a solicitation
to the Plaintiff by Willis Carto, written by Willis Carto, as set
forth in the Affidavit of Linda Thompson at Plaintiffs' Exhibit M.
Willis Carto is also directly responsible for the content of the
Spotlight newspaper articles by which injury was caused to the
Plaintiffs.
(4) Anne Cronin is the Treasurer for Liberty Lobby and she
personally placed the orders for 200 video tapes with the Plaintiffs
as shown by her signature on the purchase order at Plaintiffs' Exhibit
J and it was Anne Cronin who admitted that 4000 of these tapes had
been sold within the first two weeks of advertising, as set forth in
the Affidavit of Linda Thompson at Plaintiffs' Exhibit M.
(5) The Spotlight newspaper, published by the Defendants, is
regularly distributed throughout Indiana on newsstands [Plaintiffs'
Exhibit A] and by mail subscriptions so that the Defendants regularly
derive substantial revenue or benefit from goods, materials, or
services used and consumed in Indiana. At the times relevant to this
action, and as shown at Plaintiffs' Exhibit H, page 6, and in the
Affidavit of Al Thompson at Plaintiffs' Exhibit I, the Defendants were
also directly and regularly polling by telephone to obtain news and
information from the Plaintiffs' news network and were themselves
deriving benefit from the reputation gained by republishing this
information on the Defendants' computer service in Virginia.
(6) At Plaintiffs' Exhibit P is a newspaper article which ran in
the Defendants' Newspaper, the Spotlight, this past week, in which the
Defendants admit that Spotlight newspaper Bureau Chief Mike Blair
regularly co-hosts a radio broadcast in Indianapolis each Tuesday on a
radio station originating in Greenwood, Indiana and broadcast in
Indiana on the following stations:
WXLW Indianapolis AM 950
WGGR Greenwood, IN FM 106.7
WHON Richmond, IN AM 930
WSLM Salem, IN AM 1220
WDHM Salem, IN FM 98.9
WGL Ft. Wayne, IN FM 94.1
WCVL Crawfordsville, IN AM 1550
WHSW Frankfurt, KY FM 99.7
(7) As set forth above, the Defendants regularly solicit business
in this state via a radio station in Greenwood, Indiana, the
Defendants regularly distribute their newspapers in this state each
week on newsstands and by mail subscriptions, and derive substantial
benefits and revenue therefrom, and have derived benefits and revenue
from the use of the Plaintiffs' name and from the sale of the
Plaintiffs' research and videotapes, in acts done both inside and
outside the state that have caused injury to the Plaintiffs, all of
which renders the Defendants subject to the jurisdiction of this Court
pursuant to TR 4.4(A)(3).
3. This Court very clearly has jurisdiction over these
defendants, not just under one possible jurisdictional basis, but upon
three bases, as set forth above, and the Defendants' Motion to Dismiss
for lack of minimum contacts with this state should be dismissed.
WHEREFORE the Plaintiffs pray this Court deny the Defendants'
Motion to Dismiss and for all other relief just or equitable in the
premises. Respectfully submitted this 20th day of January, 1995,
___________________________________________
Linda D. Thompson
Attorney at Law
Indiana Bar #16533-49
LINDA D. THOMPSON
Attorney at Law
3850 S. Emerson Avenue, Suite E
Indianapolis, IN 46203
(317) 780-5203
Certificate of Service
I certify that a copy of the foregoing, with exhibits as
described, has been sent by First- Class U.S. Mail, Postage Pre-paid
this date to:
Mr. J. Edward Sandifer, Graber and Sandifer, P.C., 7351
Shadeland Station, Suite 201, Indianapolis, IN 46256, and to Eric J.
Neese, Tree Top Communications, RR 1 Ob 368, Richland, IN 47634.
________________________________________
Linda D. Thompson
INDEX OF PLAINTIFFS' EXHIBITS SUBMITTED IN SUPPORT OF
PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO
DISMISS, PLAINTIFFS' MOTION FOR PARTIAL SUMMARY
JUDGMENT AND PLAINTIFFS' MOTION FOR SANCTIONS
Page 1 of 2 pages
Exhibit A Affidavit of Lawrence Hornacker, attesting that he
purchased the Spotlight newspapers, appended at
Exhibits B-H at a local Indianapolis grocery store over
several months.
Exhibit B Spotlight newspaper, August 30, 1993, Pages 12,13,15 - 3/4
of each page is a transcript of Plaintiffs' radio
interview and 1/4 of each page are advertisement for
Plaintiffs' videos and a review of Plaintiffs' video to
promote the sale, by the Defendants of bootlegged
videos.
Exhibit C Spotlight newspaper, September 6, 1993, Page 10 - 1/4 page
advertisement for the bootlegged videotapes
Exhibit D Spotlight newspaper, October 4, 1993, Page 7 - Full page
advertisement for the bootlegged tapes
Exhibit E Spotlight newspaper, October 11, 1993, Page 18 - 1/4 page
advertisement for the bootlegged video tapes
Exhibit F Spotlight newspaper, October 18, 1993, Page 22 - 1/4 page
advertisement for the bootlegged videotapes
Exhibit G Spotlight newspaper, October 25, 1993, page 11 - 1/4 page
advertisement for the bootlegged videotapes
Exhibit H Spotlight newspaper, October 25, 1993, Pages 12,13, and 21 -
Three half pages of stories - Another transcript of the Plaintiffs'
August radio interview
Exhibit I Affidavit of Al Thompson, News Network Director for AEN
News in Indianapolis, detailing how the Spotlight computer in
Virginia could only have obtained its news feed by calling by
telephone daily to download the information from the AEN
Network in Indianapolis and how this feed was obtained
deceptively.
Exhibit J A purchase order for Plaintiffs' video tapes on the Defendants'
Letterhead, signed by Defendant Anne Cronin. Defendant Anne
Cronin initiated this order to American Justice Federation as
shown by the fax information at the top of the order showing that
it was placed from Defendants' office in Washington, D.C. to
Plaintiffs in Indianapolis.
Exhibit K Shipping documents showing that videotapes were shipped from
Indianapolis to the Defendants the next day, to fulfill the
purchase order from the Defendants (shown at Exhibit J.).
Exhibit L Spotlight newspaper article, December 19, 1994, purporting to
give "the facts" about this present lawsuit, and making several
admissions of material fact.
Exhibit M Affidavit of Linda Thompson attesting that a letter was received
in February, 1994, from Willis Carto, in which he offers to pay
$1.00 for the tapes (which by that time, Defendants had been
bootlegging for five months), phrasing this as an offer to
reproduce the tapes and pay a "royalty" payment.
Exhibit N "Klan Watch" bulletin distributed by Southern Poverty Law
Center, adding Plaintiffs'name as a racist
organization, one result of the Defendants publishing
Plaintiffs' radio interview in the Spotlight.
Exhibit O Nuvo article by Richard Bottoms claiming Plaintiffs' computer
network, AEN News, was the "jumping off point" for nazis and
racists.
Exhibit P Spotlight newspaper article from January, 1995, showing that
Spotlight Bureau Chief, Mike Blair, regularly hosts a radio
program from Indianapolis.
Exhibit Q Indianapolis West Side Community News newspaper advertisement
for Dady's Grocery that advertises a free Spotlight newspaper
with a $20.00 grocery purchase.
Exhibit R Affidavit of Ben Moore attesting that Tom Valentine called the
Plaintiff in Indianapolis to conduct the first radio interview in
August, 1993.
Exhibit S Affidavit of Amiee Lopez attesting to Ann Cronin calling
American Justice Federation.
Exhibit T Plaintiff's videotape, "Waco, the Big Lie."
STATE OF INDIANA IN THE MARION COUNTY SUPERIOR COURT
CIVIL DIVISION
COUNTY OF MARION CAUSE NO. 49D019410 CT 1178
LINDA THOMPSON and
AMERICAN JUSTICE FEDERATION,
Plaintiffs,
v.
WILLIS CARTO, ANNE CRONIN,
LIBERTY LOBBY, INC.,
PAGE DESIGN CORPORATION
Defendants.
AFFIDAVIT OF LAWRENCE HORNOCKER
COMES NOW LAWRENCE HORNOCKER and after being duly sworn upon his oath
and under penalty for perjury affirms:
1. The statements contained herein are based on my personal
knowledge and are true and correct to the best of my knowledge
and belief;
2. I am over the age of 21 years, I am not in military service,
and I am not suffering from any legal disabilities.
3. I regularly purchase copies of the Spotlight newspaper,
published by Liberty Lobby, at Dady's Grocery at 4301 West
Washington Street in Indianapolis, Indiana.
4. I purchased the copies of the Spotlight newspaper that are
appended as Plaintiffs' Exhibits B through H at Dady's Grocery at
4301 West Washington Street in Indianapolis, Indiana, during the
week that these papers were for sale in August through October of
1993.
FURTHER AFFIANT SAYETH NOT, this 19th day of January, 1995.
___________________________________________
LAWRENCE HORNOCKER
Subscribed before me, a notary public in and for the state of
Indiana, County of Marion this 19th day of January 1995.
__________________________________
Notary Public
My commission expires:
STATE OF INDIANA IN THE MARION COUNTY SUPERIOR COURT
CIVIL DIVISION
COUNTY OF MARION CAUSE NO. 49D019410 CT 1178
LINDA THOMPSON and
AMERICAN JUSTICE FEDERATION,
Plaintiffs,
v.
WILLIS CARTO, ANNE CRONIN,
LIBERTY LOBBY, INC.,
PAGE DESIGN CORPORATION
Defendants.
AFFIDAVIT OF AL THOMPSON
COMES NOW AL THOMPSON and after being duly sworn upon his oath
and under penalty for perjury affirms:
1. The statements contained herein are based on my personal
knowledge and are true and correct to the best of my knowledge
and belief;
2. I am over the age of 21 years, I am not in military service,
and I am not suffering from any legal disabilities.
3. I am the network administrator for AEN News, a news wire
service and messaging center located in Indianapolis.
4. AEN News has 300 nodes nationwide. Nodes must apply to
subscribe to the network and membership is not open to those who
advocate racial or religious discrimination, nor to those who
advocate a one world government. Nodes must poll by telephone
daily to our main computer in Indianapolis to obtain news and
exchange message traffic.
5. LogoPlex BBS in Virginia did not dislose that it had any
affiliation with the Spotlight when it applied to become a node
of AEN News.
6. It was brought to my attention by other subscribers who would
send me copies of various newspaper articles, that news articles,
photographs and reference files appearing in AEN News were being
published by the Spotlight.
7. Sometime in September, a person who posted as "Editor" of
"the Spotlight," left messages on the system, from the LogoPlex
network, that were derisive and abusive; these messages were
automatically processed by the network and sent out nationwide,
subjecting the network to this public derision and appearing to
have come from the network itself as a result. It was at this
time I realized that the articles that appeared in the Spotlight
that had appeared to have come from our network had in fact come
from our network. I originally sent a directive to LogoPlex to
disconnect the user known as the "Editor" of the Spotlight,
because I did not realize that the entire network, LogoPlex, was
actually run by Spotlight, and I believed it was merely a
situation in which an editor from Spotlight was accessing one of
the AEN Nodes in Virginia at the time. When the "Editor" again
left messages in the network, I disconnected LogoPlex bbs
altogether.
8. Our network is a serious news network and has no association
with persons who purport to be racists or anti-Jewish, nor do we
in any manner condone or endorse such agendas; this false
association by the Spotlight with our network discredited AEN
News in journalistic circles and subjected the network to a
massive media campaign directed against us. It also attracted at
least one very anti-semitic person to our network who left an
anti-Jewish post and which has caused us to have to use great
caution in allowing access to the network.
FURTHER AFFIANT SAYETH NOT, this 19th day of January, 1995.
___________________________________________
AL THOMPSON
Subscribed before me, a notary public in and for the state of
Indiana, County of Marion this 19th day of January 1995.
__________________________________
Notary Public
My commission expires:
STATE OF INDIANA IN THE MARION COUNTY SUPERIOR COURT
CIVIL DIVISION
COUNTY OF MARION CAUSE NO. 49D019410 CT 1178
LINDA THOMPSON and
AMERICAN JUSTICE FEDERATION,
Plaintiffs,
v.
WILLIS CARTO, ANNE CRONIN,
LIBERTY LOBBY, INC.,
PAGE DESIGN CORPORATION
Defendants.
AFFIDAVIT OF BENJAMIN MOORE
COMES NOW BENJAMIN MOORE and after being duly sworn upon his oath
and under penalty for perjury affirms:
1. The statements contained herein are based on my personal
knowledge and are true and correct to the best of my knowledge
and belief;
2. I am over the age of 21 years, I am not in military service,
and I am not suffering from any legal disabilities.
3. At the time Tom Valentine called in August, 1993 to conduct
an interview with Linda Thompson, I was working in the office and
answered the telephone when Tom Valentine called. I personally
spoke to a man who identified himself as Tom Valentine. No one
in the American Justice Federation placed a call to Tom Valentine
or anyone outside the office. I remember this call because I do
not ordinarily answer the phones at the office.
FURTHER AFFIANT SAYETH NOT, this 19th day of January, 1995.
___________________________________________
BENJAMIN MOORE
Subscribed before me, a notary public in and for the state of
Indiana, County of Marion this 19th day of January 1995.
__________________________________
Notary Public
My commission expires:
STATE OF INDIANA IN THE MARION COUNTY SUPERIOR COURT
CIVIL DIVISION
COUNTY OF MARION CAUSE NO. 49D019410 CT 1178
LINDA THOMPSON and
AMERICAN JUSTICE FEDERATION,
Plaintiffs,
v.
WILLIS CARTO, ANNE CRONIN,
LIBERTY LOBBY, INC.,
PAGE DESIGN CORPORATION
Defendants.
AFFIDAVIT OF LINDA THOMPSON
COMES NOW Linda Thompson and after being duly sworn upon her oath
and under penalty for perjury states:
1. The statements contained herein are based on my personal
knowledge and are true and correct to the best of my knowledge
and belief;
2. I am over the age of 21 years, I am not in military service,
and I am not suffering from any legal disabilities.
3. I am the producer and joint lawful owner, together with the
American Justice Federation, of the original video, "Waco, the
Big Lie."
4. I have never been in Minnesota and I have never initiated any
telephone calls to Minnesota or to the Defendants to solicit any
business to sell or distribute "Waco, the Big Lie" to any
Defendant in this cause, nor to Tom Valentine. Tom Valentine
called me, on the telephone, to ask me to be on his program. At
the time I was asked to be on Tom Valentine's show, my video was
being widely circulated, sent to Congress, the media and people
all over the country, by thousands of people. I was receiving as
many as a dozen media calls for interviews every day and Tom
Valentine was just another name in a pile of hundreds at the time
he called and asked me to be on his program. His office had
called my office to set up the first interview, which was to
discuss my tape, "Waco, the Big Lie." He called me on the
telephone for the interviews he scheduled.
5. When I appeared on Tom Valentine, I was discussing my work
and offered our tapes for sale, directly from the American
Justice Federation, not on behalf of Spotlight or anyone
associated with Spotlight.
6. American Justice Federation received a telephone order for
video tapes from someone at Liberty Lobby, but none of us at
American Justice knew Liberty Lobby had any connection with Tom
Valentine's program. At that time, we received hundreds of calls
a day, many about ordering tapes. The only tape we had available
then was "Waco, the Big Lie" so every tape order was for this
tape, and every media interview was about this tape.
7. I was not directly involved in answering the phones or taking or
filling orders except when an organization asked for a quantity
discount. In this case, Amiee Lopez had taken a call from Ann
Cronin and Amiee told me that this organization called Liberty
Lobby wanted a quantity discount. I authorized Amiee to sell
them to the group at $12.00 each. I did not know at that time
that Liberty Lobby was associated with Spotlight or Tom
Valentine, and it wouldn't have mattered if I did because I
didn't know anything about Liberty Lobby or Tom Valentine then,
either. I had never heard of Willis Carto or Anne Cronin. I do
not remember speaking to anyone who called about this, but
customarily, I will get on the phone with such a caller and
confirm their information; however, the person has always called
here to order and if they want a quantity discount, one of the
secretaries will put them on hold to ask me; I merely pick up the
phone to talk to them.
8. I remember that Amiee was distressed one day because she had
received a call from a woman at Spotlight, claiming they had not
received a large quantity of tapes they had ordered. Searching
our records, we had no record of Spotlight having ordered
anything. We learned at some point in several phone calls
between Amiee and someone at Spotlight that "Spotlight" was the
same organization as "Liberty Lobby" and at that point, we were
able to tell them where their order was.
9. I learned while I was a guest on Tom Valentine's program that
he promoted Spotlight on his radio station, and I had been told
by several people (whom I do not know to be either racists or
nazis or of that ilk) that "Spotlight was a newspaper," and that
"it was a good newpaper." In fact, we have a Spotlight newspaper
that is published in Indianapolis and originally, I thought that
was the paper they were talking about. However, Valentine
promotes a lot of other things, too, so it did not register with
me that Tom Valentine worked for either Liberty Lobby or
Spotlight, and I did not know Liberty Lobby and Spotlight were
the same organization, either, until much later and it wasn't
important then and it isn't particularly important now, but for
the fact that had I known these connections, I would not have
appeared on Valentine's program, nor sold any tapes to Liberty
Lobby or Spotlight, because I have learned that they are
anti-semitic and racist and that Willis Carto, the head of these
organizations, was heavily involved with the Nazi party and
founded a Nazi revisionist history organization. It is also the
reason why I would never have consented to Spotlight duplicating
our tapes had I been asked, but I was not asked.
10. I found out the Spotlight was a racist and anti-semitic
publication when someone sent me a copy of an article by Morris
Dees in the Southern Poverty Law Center "Klan Watch" bulletin
that had been sent to law enforcement all over the country. Our
organization, American Justice Federaton, was listed in the "Klan
Watch" warning column! I just about fell over with shock. I am
an attorney, as is Morris Dees, who is one of the founders of
Southern Poverty Law Center. I have met Morris Dees and in fact,
I was inspired to start American Justice Federation by a movie
shown at a lawyer's seminar about Morris Dee's civil rights
organization and what I believed was the good work in civil
rights that Morris Dees claimed to have accomplished. I met
Morris Dees at this seminar. I was absolutely astounded that he
had not realized he was talking about me or my organization and I
had no idea how on earth he came to the conclusion our
organization had anything to do with racists, because we do not.
I called Southern Poverty Law Center immediately, thinking this
had to be a terrible case of mistaken identity and I spoke with
the editor there. I asked her how my organization came to be
listed in this magazine, and she asked me if I had ever been on
the Tom Valentine program. Of course I had, and I told her so,
but I asked her why that was an issue. She replied that a
transcript of my appearance was published in the Spotlight and
that both Valentine and the Spotlight were racist and
anti-semitic and that Spotlight paid for his program. She told
me that Spotlight's founder, Willis Carto, was the founder of a
revisionist history group that claimed Jews were not killed by
Hitler, and that he was anti-semitic. She basically gave me an
earful on this. I was appalled. At that point, Spotlight could
not have even purchased tapes from us if they had bothered to
ask. This was in late August.
11. I noticed that someone using the alias "Editor" from "the
Spotlight" was leaving messages on our computer news service from
the LogoPlex BBS in Virginia. Information available from our
service, sometimes information only available from our service,
appeared in copies of articles sent to us by followers who found
the information in the Spotlight, and I began to suspect that
Spotlight was somehow obtaining our research.
12. It was around this time that someone sent me a copy of the
article that Spotlight ran which was anothre transcript of a
radio interview I had done with Tom Valentine. I was surprised
that Spotlight had blatently run that article without permission.
I did not know then that Spotlight was using this article to
promote the sale of our tapes, because all I had received was a
xerox copy of the article about me, not the entire paper. I also
did not yet know that Spotlight was anti-semitic or racist. I
did not at any time give Spotlight permission to run this radio
transcript.
13. Several people called us and told us they were seeing ads
for our tapes in various publications that I did not recognize as
being authorized to sell our tapes and I began to realize our
tapes were being bootlegged and started trying to track down the
bootleggers.
14. In the fall, we suddenly began to get a lot of calls and
complaints about the tape quality. Before we realized there were
so many bootleggers out there, we would simply send anyone who
complained a new tape because initially, the calls were few and
far between and they were about tapes that had production
problems, rather than tapes that were "blurry" or "poor quality."
The first 100 or so calls we had about "blurry" tapes we chalked
up to a bad run of tapes, but we started making a point of having
people prove they had ordered their tapes from us. That's when
we discovered that most of the people complaining about "blurry
tapes" had actually ordered their tapes from Spotlight.
15. At one point, we had to hire two additional staff just to
handle the complaints about bad tapes that all turned out to have
originated with the bootlegged tapes from Spotlight.
16. In January, 1994, I discovered that Spotlight was a prolific
bootlegger of our tapes. They had taken out advertisements for
our tapes in other publications and advertised our tapes for sale
in their 100,000 circulation weekly newspaper. By that time, we
knew that Liberty Lobby and Spotlight were the same people and we
knew Liberty Lobby had ordered and received 400 tapes, but had
only paid for 200 tapes. Based on our sales and the sales of
others, and the calls we had received, we knew Spotlight, with
its circulation of 100,000 and a world-wide radio show to promote
the sales, had very likely sold in excess of 25,000 of our tapes.
17. I called the Spotlight and was transferred to Anne Cronin.
Anne Cronin told me that they had sold 4,000 of our tapes the
first two weeks their ads were out. I told her that they had not
ordered 4,000 of our tapes and asked how they had sold that many.
She said that they hadn't been able to get tapes from us and they
had so many orders they had decided to go on and make them
themselves. By that time we had a second Waco tape and I asked
her if they were duplicating those tapes, too and she said they
were. I was furious about this and told her so. She told us she
would pay us for these tapes but we never received any payment
and she avoided my calls from that point on.
18. I next received a letter from Willis Carto offering to pay
us a whopping $1.00 per tape they had sold as a "royalty." I
called Willis Carto at this time and chewed him out. I told him
bootlegging our tapes was totally unacceptable. Willis Carto
claimed that they intended to pay me a royalty and asked me to
name a figure and I told him we only made such arrangements with
a very few trusted people because we would have no control over
the quality or quantity of the tapes, nor, realistically, anyway
to know if the amount reported as "sold" would be correct or not.
I told him all of them paid between $8 and $10 per tape, which he
scoffed at. I did not trust or know anyone at Spotlight well
enough to make such an arrangement and told him so. I especially
didn't trust them when this offer came only after they had been
caught red-handed, bootlegging our tapes. I made no agreement
with Spotlight allowing them to reproduce our tapes. I did not
agree to accept $1.00 or $2.00 per tape, nor agree to allow the
Spotlight to duplicate our tapes at any time.
19. I and American Justice Federation have been the targets of a
media onslaught directed against us that has been personally
humiliating and exhausting, and which has cost us countless lost
time and money, all due to Spotlight bootlegging our work and
falsely claiming to be associated with us.
20. In preparing the documents for these pleadings, I discovered
in copies of the Spotlight that the Spotlight had twice run
transcripts of my radio broadcasts, but in conjunction with ads
to sell their bootlegged copies of our tapes. I did not give any
permission for any article to be run to promote the sales of
these tapes for Spotlight.
FURTHER AFFIANT SAYETH NOT THIS 19th day of January, 1995.
_______________________________________
Linda Thompson
Subscribed before me, a notary public in and for the state of
Indiana, County of Marion this 19th day of January 1995.
__________________________________
Notary Public
My commission expires:
STATE OF INDIANA IN THE MARION COUNTY SUPERIOR COURT
CIVIL DIVISION
COUNTY OF MARION CAUSE NO. 49D019410 CT 1178
LINDA THOMPSON and
AMERICAN JUSTICE FEDERATION,
Plaintiffs,
v.
WILLIS CARTO, ANNE CRONIN,
LIBERTY LOBBY, INC.,
PAGE DESIGN CORPORATION
Defendants.
AFFIDAVIT OF AMIEE LOPEZ
COMES NOW AMIEE LOPEZ and after being duly sworn upon his oath and under
penalty for perjury affirms:
1. The statements contained herein are based on my personal
knowledge and are true and correct to the best of my knowledge
and belief;
2. I am over the age of 21 years, I am not in military service,
and I am not suffering from any legal disabilities.
3. I began working at American Justice Federation the third week
of August, 1993, and at that time, I took several calls from Ann
Cronin. Ann Cronin complained about the price of our tapes and
complained about not receiving tapes, however, there was no order
from Spotlight at that time, only an order from Liberty Lobby. I
did not know then that Liberty Lobby and Spotlight were the same
organization. We ended up sending 200 tapes to Liberty Lobby,
based on the purchase order we received from them by fax and 200
tapes C.O.D. to Spotlight because of Ann Cronin's telephone
calls, complaining she had not received her tapes.
4. I have also answered the phone when Tom Valentine called to
set up interviews with Linda Thompson and when Tom Valentine
called to interview Linda Thompson.
5. I was primarily responsible for scheduling Linda Thompson's
interviews during this time. It was never a practice at American
Justice Federation to solicit any interviews because we didn't
need to solicit interviews. Linda Thompson had more requests for
interviews than we could keep up with.
FURTHER AFFIANT SAYETH NOT, this 19th day of January, 1995.
___________________________________________
AMIEE LOPEZ
Subscribed before me, a notary public in and for the state of
Indiana, County of Marion this 19th day of January 1995.
__________________________________
Notary Public
My commission expires:
STATE OF INDIANA IN THE MARION COUNTY SUPERIOR COURT
CIVIL DIVISION
COUNTY OF MARION CAUSE NO. 49D019410 CT 1178
LINDA THOMPSON and
AMERICAN JUSTICE FEDERATION,
Plaintiffs,
v.
WILLIS CARTO, ANNE CRONIN,
LIBERTY LOBBY, INC.,
PAGE DESIGN CORPORATION
Defendants.
MOTION FOR SANCTIONS AND REFERRAL TO THE U.S.
ATTORNEY FOR PERJURY
COME NOW the Plaintiffs and file their motion for Sanctions
pursuant to Trial Rule 11 and move the Court to refer this matter to
the U.S. Attorney's consideration for prosecution of perjury and
obstruction of justice. Plaintiffs incorporate by reference and in
support show:
1. The Defendants are attempting a fraud upon the Court in an
effort to defeat the Court's jurisdiction derived from minimum
contacts with this state by offering perjured statements in sworn
affidavits in support of the allegations in the Motion to Dismiss
filed by Attorney J. Edward Sandifer. The Defendants have also made
the affirmative representation that they have had no such minimal
contacts, while omitting material facts well known them that would
clearly establish minimal contacts.
2. Each of the sworn affidavits of Defendants Anne Cronin,
Willis Carto, and Liberty Lobby, contains the identically worded
paragraph #3. These sworn affidavits were submitted in support of the
Defendants' claim in their motion at paragraph 5 that "Defendants have
not initiated sufficient minimum contacts with the Plaintiffs in the
State of Indiana so as avail themselves to personal jurisdiction in
the State of Indiana under Trial Rule 4.4." The Defendants claim:
"3. The initial contract negotiations regarding the transaction
in question between Defendant Liberty Lobby and Plaintiffs Thompson
and the American Justice Federation took place in Minnesota, while
Plaintiff Thompson appeared on a radio talk show hosted by Tom
Valentine."
It is not this paragraph which is itself readily determinable to
be perjury, but it leads to the perjured statements and demonstrates
the purposefulness of the Defendants' misrepresentations.
The Defendants made the affirmative statement that the very first
thing to occur, the "initial" contract negotiations, "took place in
Minnesota." "In Minnesota" can either mean the Plaintiff was in
Minnesota in person, or that the Plaintiff initiated contact with
someone in Minnesota. By either interpretation, this statement is
false and the Defendants knew it to be false when they made it.
The Plaintiff Linda Thompson, lives in Indianapolis and has never
been to Minnesota; she has "appeared" on the Tom Valentine radio
program several times and every time she "appeared" on the Tom
Valentine radio program, she was in Indianapolis, participating in the
radio interview by telephone, which the Defendants knew when they made
their sworn statements. [Plaintiffs' Exhibit M, Affidavit of Linda
Thompson and Plaintiff's Exhibit R, Affidavit of Ben Moore.]
So, by "took place in Minnesota," the Defendants can only have
meant the alleged negotiations took place by phone. For a phone call
to be considered "in Minnesota," means that the Plaintiff initiated a
phone call to Minnesota.
Thomas Valentine, in his affidavit submitted by the Defendants,
admits at paragraph 2, that, "Linda Thompson appeared on the show via
telephone as a guest." He has admitted that Linda Thompson was not
physically in his studio in Minnesota, but was interviewed by phone,
and that she was a "guest," which implies an invitation. This is
further confirmed in the Plaintiff's Affidavit at Plaintiffs' Exhibit
M and in the Affidavit of Ben Moore at Plaintiffs' Exhibit R. Linda
Thompson was called by Tom Valentine. Tom Valentine solicited Linda
Thompson to be on his program, by calling her in Indianapolis, and
when Linda Thompson "appeared" on his program, he called her by
telephone in Indianapolis, all of which the Defendants knew because
they sponsor Tom Valentine's program.
But by the language of the Defendants affirmative representation
in their affidavits at paragraph 3, the reader was also lead to
believe that the "initial negotiations" between Plaintiffs and the
Defendants occurred between the Plaintiff and Tom Valentine. However,
Tom Valentine, does not work directly for any of the Defendants, so
even if that were true, it would have no bearing on any dealings
between Plaintiffs and the Defendants and secondly, in Valentine's
sworn statement, paragraph 3, he admits he "was not involved in any
way with the negotiation of any terms or the execution of any
contracts involving this transaction."
So now there is nothing of substance left at all of the
representations in paragraph 3 of the Defendants' affidavits:
"3. The initial contract negotiations regarding the transaction
in question between Defendant Liberty Lobby and Plaintiffs Thompson
and the American Justice Federation took place in Minnesota, while
Plaintiff Thompson appeared on a radio talk show hosted by Tom
Valentine."
But the question remains: What was the intent of the statement,
worded as it was, when the facts were known to the Defendants?
The Defendats knew when they filed their affidavits that their
paragraphs 3 were nothing but intentionally misleading statements,
that without dissection, would mislead the Court to the conclusion
that the Defendants were asserting that Plaintiff negotiated a
contract in Minnesota with Tom Valentine, when Plaintiff has never
been to Minnesota and Tom Valentine has never engaged in any
negotiations. Even by ferretting out the fact that Defendants were
talking about a phone call, the Defendants lead the Court to believe
it was Plaintiff who made the phone call, when Plaintiff had not, and
that the phone call involved some sort of negotiations, when it did
not.
The Defendants' bolster the impression that Plaintiff was
initiating phone calls to do business with the Defendants by the
totally perjured statements by Defendants Carto, Liberty Lobby and
Cronin at paragraph 4 of each of their affidavits, in which they claim
that
"any telephone communications between Defendant Liberty Lobby
and Plaintiffs Thompson and the American Justice Federation, of which
there were several, were initiated by Plaintiff Thompson."
[Willis Carto prefaces his statement with the disclaimer, "With
one exception,"] and by the perjured statements at each of the
Defendants' affidavits at paragraph 6,
"There have never been any prior business dealings between Defendants
Liberty Lobby and myself with Plaintiffs Thompson and the American
Justice Federation."
Proof that the Defendants' statements about telephonic contact at
paragraphs 4 of their affidavits and that the Defendants' statements
about no prior business dealings at paragraphs 6 of their affidavits,
are totally perjured is provided at Plaintiffs' Exhibit J which is a
purchase order for videos that plainly demonstrates on its face:
Telephone contact with the Plaintiff by the Defendants;
Telephone contact initiated personally by Defendant Anne Cronin;
Ongoing business transactions between the Plaintiff and Defendants;
It is signed by the Defendant Anne Cronin herself.
A more clear example of perjury, demonstrated in the Defendants'
own hand, cannot be found than in the Defendants' affidavits at
paragraphs 4 and 6.
In addition to this damning bit of evidence of telephonic contact
and ongoing business transactions initiated by the defendants, Amiee
Lopez of American Justice Federation received several calls from Ann
Cronin relative to Defendants' orders for tapes. Lopez's affidavit on
this point also directly contradicts the affirmative, sworn statements
by the Defendants that they have never initiated any telephone contact
with the Plaintiffs nor engaged in business transactions. [Affidavit
of Amiee Lopez at Plaintiffs' Exhibit S.]
At Plaintiffs' Exhibit L, is a newspaper article from the
Spotlight Newspaper, which is published by the Defendants themselves.
It purports to give "the facts" about this present lawsuit, and makes
several admissions of material fact that contradict the sworn
statements of the Defendants.
~ Defendant Liberty Lobby admits that the conclusions reached,
above, that the Defendants' affidavits at paragraph 3 were false and
misleading, by the statement:
"After Thompson appeared on Tom Valentine's Radio Free America
program, sponsored by the SPOTLIGHT, many SPOTLIGHT readers expressed
interest in obtaining the video, which quickly sold out. Because
Thompson was unable to fulfill continuing orders with the speed
necessary to service the demands of The SPOTLIGHT's readers, Valentine
asked Thompson if it would be possible for Liberty Library to
reproduce the video on its own to fill the orders and pay her
royalties therefrom."
This is an important admission because, it is a public admission
by the Defendants that directly contradicts the Defendants' sworn
statements [Affidavits of Willis Carto, Liberty Lobby, and Anne
Cronin, paragraph 3 in each) attached in support of their Motion to
Dismiss, in which the Defendants claim:
"3. The initial contract negotiations regarding the
transaction in question between Defendant Liberty Lobby and Plaintiffs
Thompson and the American Justice Federation took place in Minnesota,
while Plaintiff Thompson appeared on a radio talk show hosted by Tom
Valentine." [emphasis added.]
The public admission in the newspaper story admits that it was
only after Plaintiff appeared on the radio show and only after people
began calling Liberty Lobby to inquire about the tapes, did it even
occur to the Defendants to sell the tapes, and at that time, the
Defendants did not try to negotiate any agreement to reproduce the
tapes, they just placed orders for the tapes from the Plaintiffs at
the wholesale price to sell for themselves. This portion of this
version of the Defendants' story is supported by Tom Valentine's
affidavit, where he admits he "was not involved in any way with the
negotiation of any terms or the execution of any contracts involving
this transaction." Not to mention that Thomas Valentine's affidavit
further demonstrates that the Defendants' can't get their stories
straight, even in their own affidavits. This fact alone illustrates
that Counsel for the Defendants did not satisfy the requirements of
Rule 11 in that he had an affirmative duty to ask questions about the
self-contradictory issues facially presented in the Defendants' own
affidavits.
Taken with the public admissions of the Defendants from the news
story, it is obvious no "initial negotiations" took place "during his
radio show," nor "in Minnesota," for that matter.
It is plain from the Defendants' own admissions that whether
"initial negotiations" in the Affidavits of Carto, Cronin and Liberty
Lobby at paragraph 3, means contact between Tom Valentine and the
Plaintiffs or contact between Liberty Lobby (or Willis Carto or Anne
Cronin), and the Plaintiffs, in either case, every initial contact was
initiated by the Defendants who called the Plaintiffs in Indianapolis
to schedule radio interviews, to conduct radio interviws and to order
tapes, contrary to their sworn claims in their paragraphs 4, claiming
that they did not initiate any telephone calls to plaintiffs and that
all such contact was initiated by plaintiffs, and also showing that
the Defendants made continuing orders for tapes, contrary to their
sworn statements in paragraphs 6 of their affidavits that they had no
prior business contacts with the Plaintiffs. It is also clear that
all of these statements were for the purpose of avoiding a
determination that the Defendants were "doing business in Indiana" or
"deriving any benefit" in Indiana (TR 4.4) The defendants obviously
know these definitions or they wouldn't have gone to such lengths to
try to deceive the Court on these points with false statements of fact
and omissions of material facts in their sworn affidavits.
Paragraphs 3, 4 and 6 of the affidavits of Defendants Cronin,
Carto, and Liberty Lobby are knowingly and willfully false statements
of material fact. These affidavits and the motion to dismiss based
upon these affidavits, and the allegations contained in the motion at
paragraphs 2, 4 and 5, are an unmitigated fraud on the Court.
The Defendants' also make the affirmative assertion in their
Motion to Dismiss that "Defendants have not initiated sufficient
minimum contacts with the Plaintiffs in the State of Indiana" to be
subject to jurisdiction. This is an omission of material facts and an
misrepresentation of material facts, which were well known to the
Defendants. The Defendants know full well that they have the
following minimum contacts in this state:
~ At Plaintiffs' Exhibit P is a newspaper article which ran in
the Defendants' Newspaper, the Spotlight, this past week, in which the
Defendants admit that Spotlight newspaper Bureau Chief Mike Blair
regularly co-hosts a radio broadcast in Indianapolis each Tuesday on a
radio station originating in Greenwood, Indiana and broadcast in
Indiana on the following stations:
WXLW Indianapolis AM 950
WGGR Greenwood, IN FM 106.7
WHON Richmond, IN AM 930
WSLM Salem, IN AM 1220
WDHM Salem, IN FM 98.9
WGL Ft. Wayne, IN FM 94.1
WCVL Crawfordsville, IN AM 1550
WHSW Frankfurt, KY FM 99.7
~ Selling its newspaper, Spotlight, on newsstands in Indiana and
by mail order subscriptions in Indiana; at Plaintiffs' Exhibit A is
the affidavit of Lawrence Hornacker, attesting to having purchased the
Spotlight at a local grocery, at Plaintiffs' Exhibit Q is a West Side
Indianapolis Newspaper from the grocery advertising the Spotlight as a
premium; from this it may be presumed that the Spotlight regularly
sells its newspapers to newsstands within Indiana, in addition to its
mail order subscriptions.
~ Soliciting the Plaintiffs' business on numerous occasions
directly relevant to this action (soliciting the Plaintiff to appear
on radio, twice, calling Plaintiff for the radio interviews, and
faxing orders for videotapes to the Plaintiffs in Indiana); in fact,
the Defendants have not merely omitted this fact, but have
intentionally misrepresented it, above, in perjured statements.
~ Polling daily by computer (via telephone lines) for information
and news services from the Plaintiffs' Computer News Network feed in
Indianapolis, which were then re- broadcast in Washington, D.C. by
the Defendants) [Plaintiff's Exhibits I and J].
~ Selling videotapes through their newspaper and magazine
advertisements in Indiana and making delivery of those videotapes to
people in Indiana who ordered them;
All of which is more particularly set forth in Plaintiffs'
Response to the Defendants' Motion to Dismiss and incorporated by
reference as if fully set forth herein.
20. The Defendants have made statements that are readily
demonstrated to be materially false and perjured statements in their
affidavits. The Defendants have omitted material facts known to them.
These fraudulent acts were intended to mislead the Court to accept the
allegations in their Motion to Dismiss that the Defendants have had no
minimum contacts with this state. This is well beyond "frivolous," it
is a clear fraud upon the Court, and it has subjected the Plaintiff to
unnecessary litigation and expense.
21. The plaintiffs are entitled to sanctions against the
Defendants pursuant to Rule 11, for subjecting the Plaintiffs to
unnecessary litigation by these wholly fraudulent pleadings, and to an
award of attorney fees and costs of defending these fraudulent claims.
22. The Plaintiffs move this Honorable Court for an additional
monetary sanction against each of the Defendants and their counsel for
the outrageous nature of this particular filing which was submitted
with knowingly and willfully perjured statements, in an amount
sufficient to punish the Defendants for their conduct and to deter
such conduct in the defendants and in like-minded individuals in the
future.
23. The Plaintiffs further move the Court for an additional
specific sanction against the Defendants' counsel for failing to make
a reasonable inquiry into the truth of the affidavits he submitted, as
readily evidenced by the fact that the Defendants' own affidavits
contradict one another. If the Defendants' counsel had even read what
he himself submitted, this much should have been obvious.
SUPPORTING LAW:
1. The Court's personal jurisdiction over
the Defendants is without question.
The minimum contacts in this state necessary for jurisdiction
over these Defendants are satisfied several times over, pursuant to
Indiana Rules of Trial Procedure, Rule 4.4, which include:
"4.4.(A)(1) Doing any business in this state."
See, generally, Tietloff v. Lift A Loft Corp., 441 N.E.2d 986
(Ind.App. 1982); Ogden Eng'g Corp. v. St. Louis Ship, 568 F.Supp.
49 (N.D. Ind. 1983), for a discussion of "minimum contacts"
necessary to exercise jurisdiction over nonresident defendants.
The Defendants have each submitted an affidavit which contains
perjured statements of material fact and omissions of material fact,
intended to defraud the court of Personal jurisdiction in this case by
representing that the Defendants have had virtually no contact with
the State, despite extensive contacts within the State, contacts that
directly injured the Plaintiff in the State, and contacts outside the
State which caused injuries to the Plaintiff inside the State.
Indiana Rule of Trial Procedure, Rule 11, requires that:
"Every pleading or motion of a party represented by an
attorney shall be signed by at least one [1] attorney of record in his
individual name . . .The signature of an attorney constitutes a
certificate by him that he has read the pleadings; that to the best of
his knowledge, information, and belief . . . there is good ground
to support it;"
IRTP 11
and
"Any person who falsifies an affirmation or representation
of fact shall be subject to the same penalties as are prescribed by
law for the making of a false affidavit."
IRTP 11
Pursuant to I.C. 35-44-2-1, Perjury, any person who makes a
false, material statement under oath or affirmation knowing the
statement to be false or not believing it to be true or has knowingly
made two (2) or more material statements in a proceeding before a
court or grand jury, which are inconsistent to the degree that one of
them is necessarily false, commits perjury, a Class D felony in the
State of Indiana. See Pollard v. State, 29 N.E.2d 956, 218 Ind. 56
(1940); State v. Wilson, 59 N.E. 932, 156 Ind. 343 (1900).
Pursuant to I.C. 35-44-3-4, Obstruction of Justice, a person
who makes, presents, or uses a false record, document, or thing with
intent that the record, document, or thing, material to the point in
question, appear in evidence in an official proceeding or
investigation to mislead a public servant commits obstruction of
justice, a Class D felony in the State of Indiana.
Pursuant to the Rules of Professional Conduct, Rule 8.4:
"It is professional misconduct for a lawyer to (a) violate
or attempt to violate the Rules of Professional Conduct, knowingly
assist or induce another to do so, or do so through the acts of
another; (b) commit a criminal act that reflects adversely on the
lawyer's honesty, trustworthiness or fitness as a lawyer in other
respects; (c) [engage] in conduct involving dishonesty, fraud, deceit
or misrepresentation; (d) engage in conduct that is prejudicial to the
administration of justice;
IRTP 8.4
Pursuant to the Rules of Professional Conduct, rule 3.3(a)(1)(2)(4):
"(1) A lawyer shall not knowingly make a false statement of
material fact or law to a tribunal; (2) fail to disclose a material
fact to a tribunal when disclosure is necessary to avoid assisting a
criminal or fraudulent act against a tribunal by the client; or (4)
offer evidence that the lawyer knows to be false. If a lawyer has
offered material evidence and comes to know of its falsity, the lawyer
shall take reasonable remedial measures. (b) The duties stated in
paragraph (a) continue to the conclusion of the proceeding, and apply
even if compliance requires disclosure of information otherwise
protected by Rule 1.6"
IRPC 3.3(a)(1)(2)(4)
See, generally, State Board of Dental Examiners v. Judd, 554
N.E.2d 829 (Ind.App. 1990); Mechanics Laundry & Supply, Inc. v.
Wilder Oil Co., 596 N.E.2d 248 (Ind.App. 1992); Austin v. Sanders,
492 N.E.2d 8 (Ind.App. 1987); U.S. v. U.S. Currency, 863 F.2d 555
(7th Cir. 1988); Eggers v. Phillips, 710 F.2d 292 (7th Cir.), cert.
denied, 464 U.S. 918, 104 S.Ct. 284 (1983); In Re Cook, 526 N.E.2d
703 (Ind. 1988), cert. denied, 493 U.S. 1023, 110 S.Ct. 727, 107
L.Ed. 2d 746 (1990).
WHEREFORE the Plaintiffs pray this Honorable Court to award to
the Plaintiff attorney fees of defending this motion and to assess
substantial additional Rule 11 sanctions against the Defendants and
their counsel, and to refer the Defendants' affidavits to the U.S.
Attorney for investigation of perjury, fraud, and obstruction of
justice, and for all other relief just or equitable in the premises.
Respectfully submitted this 20th day of January, 1995,
___________________________________________
Linda D. Thompson
Attorney at Law
Indiana Bar #16533-49
LINDA D. THOMPSON
Attorney at Law
3850 S. Emerson Avenue, Suite E
Indianapolis, IN 46203
(317) 780-5203
Certificate of Service
I certify that a copy of the foregoing has been sent by
First-Class U.S. Mail, Postage Pre-paid this date to:
Mr. J. Edward Sandifer, Graber and Sandifer, P.C., 7351
Shadeland Station, Suite 201, Indianapolis, IN 46256, and to Eric
J. Neese, Tree Top Communications, RR 1 Ob 368, Richland, IN
47634.
________________________________________
Linda D. Thompson
January 20, 1995
BY CERTIFIED MAIL, #____________________________________
Mr. Willis Carto
300 Independence Avenue, S.E.
Washington, D.C. 20003
Dear Mr. Carto:
I am attaching a copy of an article from your newspaper,
Spotlight, of December 19, 1994, entitled "Hostile Action
Unwarranted," which contains false and intentionally malicious
and defamatory matter about me. In fact, the entire article is
malicious and intended to defame me. I demand an immediate
retraction and a full apology. This retraction and apology
should be made in a position at least as prominent and large as
the original and appear at least twice in your publication and
repeatedly on Tom Valentine's and Mike Blair's radio broadcasts.
Specifically, this article contains the following false and
defamatory statements:
"Attorney Linda Thompson, best known as the promoter of the
controversial video, "Waco: The Big Lie, has filed an unwarranted
and totally baseless $2,920,000 lawsuit against Liberty Lobby. .
. ."
In the above defamatory statement, you have impugned my
professional reputation as an attorney, by identifying me as an
attorney, but then claiming that I am best known as a promoter of
video tapes, and that the suit filed against Liberty Lobby is
"unwarranted and totally baseless." This conveys the image of a
carnival hawker and ambulance chaser, as you intended, and holds
me up to ridicule in the community.
The statement that I am "best known as the promoter of the
controversial video tape, 'Waco: The Big Lie,'" is false, in that
I am not well known, and where I am known, I am not best known as
"the promoter of the controversial video tape." In fact, but for
your having produced poor quality bootlegged copies of my tapes,
there was also no genuine "controversy" over my tapes at all.
The statement that the suit against Liberty Lobby is "unwarranted
and baseless" is patently false and you know it. I am suing you
for theft of my work, conversion of my work, and appropriation of
my name to your commercial advantage. You admit every element
essential to this lawsuit in the rest of the article. So to
claim my lawsuit is "unwarranted and baseless" is a knowingly
false. It also alleges that I have committed a crime by filing a
baseless and unwarranted suit, so your claim is libellous per se.
You next state, "This is at least the second lawsuit that
Thompson has filed against a populist organizations (sic) that
she perceives to be hostile to her agenda -- whatever that agenda
may be."
This statement is wholly false and malicious in that the lawsuit
against you has nothing to do with "populists" nor with any
"perception of hostility to any agenda;" the suit is based upon
your outright fraud and theft.
I gave you plenty of time to make good on what you had stolen
from us, without having to make this public and you didn't make
the slightest effort to resolve this. So who has an agenda here?
If anything, your theft and fraud were motivated by your own
agenda, which was to undermine my company. Your deliberate
mischaracterization of this suit as "part of an agenda" is an
intentional attack upon my character intended to damage my
standing in the public eye.
Caught red-handed stealing from us, you now attack me, to use my
name and reputation for yet another article, again for your
commercial purposes.
You've stolen from us, used your paper to advertise our tapes
that you bootlegged, you ruined our documentary and the public's
perception of it by producing such poor quality copies that
people could not see the flames in the flame-throwing tank
portion, we ended up having to replace hundreds of tapes because
of you and we had to hire extra staff as the result of the
hundreds of tapes we had to replace. You then have the gall to
use my name in your paper yet again to churn up a controversy and
sell your papers by bad mouthing me, Worse, in order to bad mouth
me, you point to the very problems that you caused with your poor
quality bootlegged copies, as proof of my tapes having been
"called into question."
The statement that "Suspicions about Thompson's agenda began to
emerge in the wake of her sudden injection of herself into the
controversy over the Branch Davidian holocaust in Waco" is false;
further, it is a direct contradiction of your own paper's
continuous use and endorsement of my findings -- until you were
caught bootlegging, that is. No one questioned my "sudden
injection" at the time I began investigating Waco, and least of
all, you. Secondly, how dare you question and mischaracterize my
investigation as if it were some sinister plot, particularly when
you failed to do anything at all about the atrocities committed
in Waco, other than steal my work and the work of others?
You refer to my investigation as my "agenda" to cast me in a
light of innuendo, framed by the word "suspicions," further
impugning my character.
Next you claim, "Never before known in the populist movement,
Thompson became an overnight celebrity in some circles."
I am not now, nor have I ever been, nor do I wish to be a member
of the "populist" movement, as your statement implies. Worse, it
implies that it is somehow deficient for me to be "never before
known in the populist movement." I consider your association of
me with the populist movement at all to be defamatory. Did you
happen to notice that your own story is self-contradictory? I
thought not. First you claim it is me who is the sudden
celebrity in populist circles, but then you claim I am attacking
populists, giving people their choice of the slam-du-jure, I
suppose. Both claims are unequivocably false.
After attacking my character as suspicious, you impugn my video,
"Waco, the Big Lie" by beginning the sentence with the word
"Although" followed by the generally opposing words, "then" and
"but." This structuring leads the reader to believe that my tapes
do not document evidence of FBI-BATF criminal wrongdoing in Waco,
in the statement "Although there is very strong documented
evidence of FBI-BATF misdeeds throughout the course of the Waco
affair --thoroughly reported on in The Spotlight -- Thompson's
allegations were particularly explosive but quickly became the
subject of much controversy -- even within the patriotic circles
that were enraged by what had happened in Waco."
Your statement that in my lawsuit against Liberty Lobby, I have
"made the false claim that Liberty Lobby illegally reproduced and
distributed copies of (my) video, 'Waco: The Big Lie' without
(my) permission" is false and defamatory per se in that it
alleges I have committed the crime of perjury or false swearing,
by implication, and it impugns my reputation as an attorney. It
also implies that you did not do the things I have alleged, which
you did in fact do.
You portray yourself in a good light through your knowingly false
statements and wholly denigrate me and my character, making it
appear that I have filed a frivolous suit, when in fact, you are
lying, both in sworn statements to the court, and in this
article, evidencing the malicious intent of your article, and
this, after stealing from me.
You claim that "many people" began "questioning the validity of
some of the claims made by Thompson in the video," and to bolster
that, you add that "What's more, at least one attorney for
members of the Branch Davidian families, Kirk Lyons of the Cause
Foundation, expressed concern that Thompson's activities were
harmful to his case. Similar concerns were raised by others
throughout this time frame."
This statement is irrelevant to your assertion that my claim for
your theft of my product is baseless and is added solely to
portray me in as negative a light as possible.
Further, you are quoting and promoting a self-professed racist
and member of the KKK, who himself has no credibility on that
basis alone, in order to put his name before the public eye --
thereby promoting a self-professed racist, in keeping with your
agenda -- while simultaneously denigrating me. This is
insulting, degrading and humiliating.
You claim that "at this juncture, Liberty Lobby determined that
it would be best to cease distributing Thompson's video." And in
that statement, you reveal that all of this negative, false, and
defamatory prattle is nothing but a poorly crafted pile of lies
to explain why you stopped bootlegging my tapes.
Noticeably, you do not mention that "at this juncture" was months
later, after you had promoted our tapes for your own advantage
for months and after we had caught you red- handed and demanded
payment. Then, when you could suck no more from the sales, you
turned to attacking me in your paper, instead, using my name for
your commercial advantage yet again. You simply have no shame.
You ridicule my claim for misappropriation of my name, claiming
that I "willing appeared on the Tom Valentine" program. When I
appeared on the Tom Valentine radio program, I was promoting the
videos for my company, American Justice Federation, which you
well know.
When you stole my tapes and began promoting them for your own
advantage, you ran a printed copy of my interview with Tom
Valentine, to promote sales for your company, not mine, and
without my knowledge or my permission, and you were promoting
bootlegged copies of our work! To claim that I "willingly
appeared on Tom Valentine" as if this is some justification for
using a transcript of that broadcast to promote your bootlegging
is outrageous. You also act as if I should be delighted by all
this, bragging that you gave me "greater and more widespread
national publicity than she had ever received before."
Notoriety is not something anyone strives to achieve and I
certainly never once asked to appear publicly anywhere to promote
myself at all. All I have ever tried to do is make the public
aware of what happened at Waco. I am not the issue, nor have I
ever sought to be the issue and for you to characterize this as
giving "me" publicity implies that I sought it, when I did not.
By even having my name mentioned by your paper, my credibility
was instantly shot because your publication is such a disgusting
hodge podge of yellow journalism with a well established
reputation as a racist and anti-Jewish rag.
I was subjected to an onslaught of vicious media attacks and
public humiliation for having been associated, unwittingly and
unwillingly, with your racist and anti-Jewish publication, by
your appropriation of my good name.
You have made false and wholly fabricated statements in an effort
to cover your tracks, but your own sworn affidavits submitted to
the court prove your lies in this article. Every false statement
in the article, when the article in its entirety is intended to
defame me, is a malicious, defamatory, statement.
At the time you went to press, Mark Lane had bailed out of this
lawsuit, since apparently even he recognizes a dog when he sees
it, so your representation that Mark Lane was preparing your
defense was yet another false statement by you.
Your own statements, in sworn affidavits now filed with the
court, show you to be an unmitigated liar, in that those
statements, submitted under oath, flatly contradict what is
represented in this story. I attach your sworn statements and my
pleadings relevant thereto and incorporate them by reference as
if fully set forth herein, for your reference.
You say I made the "false claim" that you illegally reproduced
and distributed copies of my video, Waco, the Big Lie," and admit
in your own article there was never any agreement for a royalty
figure. You claim to have had Tom Valentine negotiate an
agreement with me, when Tom Valentine himself filed a sworn
affidavit denying this; you admit that you ordered video tapes
from us as a result of customer demand for the tapes after I
appeared on Tom Valentine's show, but in sworn affidavits to the
court, you claim a deal was negotiated during Tom Valentine's
show to allow you to market my tapes. You claim you ordered
tapes from us and we couldn't keep up with the continuing demand
and you claim to have written me with an offer to pay a royalty,
yet both you and Ann Cronin filed sworn affidavits with the court
that you never had any contact with Indiana and that any
solicitations originated with me;
You can disavow the sworn statements and face perjury charges or
you can admit that the sworn statements in court are true, which
then admits that the statements in this article are false and you
knew them to be false when you published them. That is libel per
se and fraud. Take your choice.
This is your notice of my intent to sue you for libel and false
light invasion of privacy, pursuant to Indiana Law. Please be
governed accordingly.
Very truly yours,
Linda Thompson
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