X. CAUSES OF ACTION
A. FIRST CAUSE OF ACTION – Fraud Upon the Court
297. I repeat and reallege the allegations contained above as if fully stated herein.
298. I incorporate by reference my Declaration in Support of Motion for Order to Show Cause, previously filed in my lawsuit and dated June 23, 2005, and the Exhibits attached thereto and except as to any facts stated therein that may be amended in this Complaint, I repeat and reallege all allegations therein as if fully set forth herein.
1. First, Boies Schiller Admits in its Letter Its Simultaneous Representation.
299. In Boies Schiller’s Letter the firm admits that, at the time of Trans World’s settlement in the CD antitrust litigation, on September 25, 2002, Boies Schiller simultaneously represented both Trans World and my interests, because Boies Schiller admits that: (1) “this firm represented Trans World [in the CD antitrust litigation]” and (2) “this firm’s representation of Mr. Deep, or entities related to Mr. Deep, ended in November 2002.”
2. Second, Boies Schiller Deliberately Conceals in its Letter its Conflict of Interest.
300. I have previously provided evidence to the Court in documents signed by Boies Schiller that show that Boies Schiller knew, at the time of the settlement in September 2002, that Plaintiff’s interests were adverse to the interests of defendant Trans World, specifically:
a. In my motion in the bankruptcy court, dated August 16, 2002, and served on Boies Schiller no later than September 2002, I declared:
“Various parties may have a claim, lien or interest upon the property of the estate which I seek to transfer by license agreement. Interests claimed may be as follows.
... AbovePeer Inc. ... may claim an interest in ... Digital Download Technology ...
Trans World Entertainment may claim an exclusive interest in Digital Download Technology. A copy of the TransWorld Consulting Agreement which includes exclusive license is attached hereto and made a part hereof as Exhibit ‘C’.”
Deep Decl. 105, Exh. 25. at 6.
b. In the bankruptcy motion, I thus described the substantively similar interests of AbovePeer and Trans World and declared that both interests were adverse to mine.
c. After having been served with the bankruptcy motion and having had discussions with me about the adverse interests, Boies Schiller then moved to withdraw its representation of me twice, first in September 2002 and again in November 2002, Deep Decl. 106-112;
d. Specifically, in Boies Schiller’s motion to withdraw in November 2002, Boies Schiller attorney George Carpinello admitted in a sworn declaration that he knew that “Mr. Deep and I have had further discussions concerning a potential conflict of interest that might arise from this Firm’s continued representation of Mr. Deep personally and AbovePeer Inc.” Deep Decl. 112, Exh. 27 at 8. [Emphasis added.]
e. Thus, Boies Schiller knew that such conflict of interest arose from the continued representation of my interests and AbovePeer Inc’s.
f. Moreover, Boies Schiller had a duty of care and judgment, under the Maine Code § 3.6(a), to know that such conflict of interest similarly arose from the firm’s continued representation of my interests as a related party and Trans World’s as a defendant, since:
i. Boies Schiller admits knowing that Above Peer Inc.’s interests were adverse to mine; and
ii. Boies Schiller had duty to know from the bankruptcy motion that Above Peer Inc.’s interests were substantively similar to Trans World’s.
301. In spite of Mr. Carpinello’s sworn admission, Boies Schiller now continues, in Boies Schiller’s Letter to this Court, deliberately to conceal its conflict of interest, in violation of the Maine Code § 3.4(c), by misrepresenting to this Court that my “contentions of improper conduct are completely without merit.” Boies Schiller Letter at 1.
302. Boies Schiller thus knowingly makes a false statement, in violation of Maine Code 3.7(b), that seeks to mislead the Court and that the firm knows will not be supported by evidence, in violation of the Maine Code §§ 3.7(e)(1)(i) and 3.7(e)(2)(ii).
3. Third, Boies Schiller in its Letter Does Not Assert that I Consented to Any Waiver of the Conflict – and I Did Not Consent to Any Waiver.
303. I swear that I did not consent to any waiver of the conflict of interest, Deep Decl. 93, and Boies Schiller does not deny this fact in its Letter.
4. Fourth, Boies Schiller’s Fraud Caused Direct Harm to Me
304. I am harmed as a joint venturer of defendant Trans World and, therefore, as a related party to the settlement in the CD antitrust litigation.
305. Boies Schiller knew and deliberately concealed from this Court that I am a joint venturer of the settling defendant Trans World and that, as a joint venturer:
a. I am a partner, principal and/or agent of Trans World;
b. I was therefore a related party to Trans World’s settlement in the CD antitrust litigation, because the terms of the settlement define “related party” to include joint venture, partner, principal or agent.
306. As a result of Boies Schiller’s knowledge that I was a related party to the settlement, Boies Schiller also knew and deliberately concealed from this Court that Boies Schiller simultaneously represented in the CD antitrust litigation the interests of both Trans World as a defendant and, within the scope of the same agency, my interests as a related party of Trans World.
307. Such simultaneous representation in the CD antitrust litigation of both Trans World as a defendant and myself as a related party was prohibited under provisions of the Maine Code § 3.4(c), and Boies Schiller’s concealment of the conflict violated the Maine Code § 3.4(a).
308. As a result of such prohibited simultaneous representation and Boies Schiller’s deliberate concealment and fraud perpetrated upon this Court, I was directly harmed when I was:
a. fraudulently made a related party to the settlement in the CD antitrust litigation and to an injunction (as Trans World’s agent with the scope of the enjoined activity) without my knowledge or consent;
b. fraudulently excluded from any portion of the settlement proceeds without my knowledge or consent; and
c. fraudulently deprived of my right of contribution or indemnity from defendant Trans World or its related parties, or from other distributor defendants or their related parties, including labels and attorneys involved in Plaintiff’s Lawsuit, and even from defendant Trans World’s attorneys – Boies Schiller itself.
309. I am further harmed as a party to an injunction issued in the Northern District of Illinois, in Case No. 01-8933, In re Aimster Copyright Litigation, entered on October 30, 2002, as a direct result of related fraud perpetrated upon that court by my Lawyers and as a result of the inducement of or conspiracy in my Lawyers’ fraud by Trans World and the Labels and Studios.
310. I am further harmed as a party to an injunction issued in the Eastern District of Virginia, AOL v. John Deep, et. al, entered on December 14, 2001, as a direct result of related fraud perpetrated upon that court by my Lawyers and as a result of the inducement of or conspiracy in my Lawyers’ fraud by Trans World and the Labels and Studios.
311. As a direct and proximate result of fraud upon the Court perpetrated by my Lawyers, and as a result of the inducement of or conspiracy in the fraud by Trans World and the Labels and Studios, I have been damaged in an amount that far exceeds the amounts Boies, Trans World or the Labels and Studios directly misappropriated for themselves. Boies, Trans World and the Labels and Studios are therefore liable to me for all damages proximately caused by the fraud upon the court, in an amount that can only be determined at trial.
