C. Dec. 2001 – In the Eastern District of Virginia and the Northern District of Illinois
186. Certain parties moved to include actions filed against me in Section 1407 proceedings. Boies-Schiller in response failed to disclose that Boies-Schiller was simultaneously representing my interests and the interests of Trans World. Unaware of Boies-Schiler’s conflict, the Judicial Panel issued an order transferring the proceedings to the Northern District of Illinois.
187. On or around the same time, a related trademark dispute arose involving the intended use of the Aimster mark and domain. Trans World, still acting through Bill Duker, refused to authorize payment of the trademark attorney who had represented me, Alexandre Montagu, who was then forced to withdraw.
188. Boies-Schiller then acknowledged to me that it could not represent me in the trademark dispute because it had a conflict of interest, but the firm did not disclose the specific conflict. Instead, Boies-Schiller appointed the law firm of Straus and Boies to represent me, whose partner is David Boies’s son David Boies III. The appointment occurred before I had any opportunity to seek the advice of independent counsel, or even to communicate with Straus & Boies.
189. Straus and Boies performed no legal services other than to act as liaison counsel in Virginia, never communicated directly with me, and submitted no invoices.
190. Instead, Boies-Schiller continued to represent me, in spite of its acknowledged conflict. Concealing its representation from the court in Virginia, Boies-Schiller also controlled the litigation, ignoring my disclosure that the evidence needed to show my intended use of the mark Aimster for “targeting” of discounted prices was controlled by Trans World, and failing to issue any subpoenas for discovery of Trans World or to conduct any depositions of Trans World employees.
191. Unable to defend the Aimster mark without the needed evidence that Trans World controlled, and rendered insolvent, I was then called to a meeting at the Steuben Club in December, 2001, with Bill Duker. Bill Duker advised me and admitted that he had spoken with David Boies and that “David Boies wants you to know” that time had run out for discovery, that there was no time to seek independent counsel, and that I was now forced to consent immediately to surrender the mark.
192. During our meeting, I saw and heard Bill Duker call my lawyers at Boies-Schiller and direct them that David Boies had decided they should go at once that evening to meet at the hotel of the adversary’s lawyers (who had traveled to Albany to conduct my deposition).
193. The next day, Boies-Schiller advised me that, as a result of the meeting the previous evening with the adversary’s lawyers, I was now forced to consent immediately to a broad permanent injunction, which I believed was impossible to comply with, and that my 16 year old daughter Madeline Deep was also forced to consent immediately to the same broad injunction, even though my daughter had no opportunity to seek the advice of independent counsel, and was not a party to the litigation. Unaware of Boies-Schiller’s simultaneous representation of my interests and Trans World’s, the court entered a permanent injunction.
194. Later in December, 2001, during a party in Troy, New York, at the offices of a company called ProductivityNet, in which Robert Higgins and Bill Duker held an interest, Robert Higgins admitted to me, in response to my questions, that the music and movie distributors who were his vendors had exerted coercive financial pressure on TransWorld, and further admitted that “fighting all of them is too expensive”; and that, moreover, as a direct result of the coercive pressure TransWorld had consented not to perform its promised obligations to me, and specifically, had consented not to provide any evidence in its control necessary for my case, and finally promising and admitting that “We have a deal with them. We’ll take care of you if you don’t say anything about what goes on, like Media Logic does.”
195. I attempted to ask David Boies for advice about Robert Higgins’ promise, by calling David Boies’ office myself, but I was told David Boies was unavailable to speak with me and he did not call me back.
196. Then, on December 24, 2001, the recording companies served notice of their motion for preliminary injunction in the Northern District of Illinois, having delayed seventeen months, and knowing by now full well that I was insolvent and unable to afford to replace Boies-Schiller as counsel, as a result of Trans World directing my employer to fire me and shutting down my business in return for recording companies’ promise of increased payments of kickbacks to Trans World.
197. Boies-Schiller now informed me that David Boies was on vacation and would be unavailable to advise me. In his absence, my lawyers at Boies-Schiller advised me and admitted that Trans World would not consent to providing any evidence that Trans World controlled. Boies-Schiller also refused to follow my instructions to request discovery or issue subpoenas to obtain the evidence controlled by Trans World.
198. Unable to rely any longer on Boies-Schiller as counsel but also insolvent and unable to afford to hire new counsel, I made several more attempts to speak directly with David Boies.
199. David Boies appeared in a teleconference call with me in January of 2002, which Bill Duker attended. I described to David Boies the needed evidence that Trans World controlled and Trans World’s refusal to provide the evidence.
200. David Boies advised me that Boies-Schiller would draft an affidavit for me to sign describing the antitrust conspiracy involving Trans World.
201. David Boies further advised me to file for bankruptcy.
202. However, David Boies still did not disclose that Boies-Schiller was simultaneously representing Trans World as a defendant in an antitrust action, and I did not consent to any such simultaneous representation by Boies-Schiller.
203. I was forced to consent to David Boies’ advice. First, I submitted the affidavit that Boies-Schiller drafted on January 21, 2002, which referred to Trans World in but one paragraph only, saying “a senior executive for Transworld (sic) Entertainment Corp., a retailer of musical recordings, contacted Edgar Bronfman of Vivendi/ Universal about the possibility of Transworld selling musical recordings through Aimster under a license from the major record companies.”
204. Although the affidavit lacked detail or corroborating evidence, I had no choice but to submit it, since Boies-Schiller called me to its offices to review the affidavit only hours before the deadline for its submission, and advised me that unless I signed the affidavit immediately we would miss our deadline and forfeit our right to answer.
