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Motion For Order Enforcing SANCTIONS 3.20.13
Motion For Order Enforcing SANCTIONS 3.20.13
Motion For Order Enforcing SANCTIONS 3.20.13
NO. 12-CIV-8006
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through its undersigned counsel, hereby seeks an Order enforcing the Court's January 18, 2013 Order finding Plaintiff Albert Whitehead in contempt and imposing additional sanctions against Mr. Whitehead for his continuing violation of that Order and, in support thereof, states the following:
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preliminarily enjoined Mr. Whitehead from further breaches of the contractual obligations owed to Sundance Vacations under the parties' Settlement Agreement
and directed Mr. Whitehead to remove the "Boycott Sundance Vacations" page (referred to hereinafter as "the Boycott page") that he admittedly administered on
Facebook using the false name "John Flannagan." (A true and correct copy of the October 23, 2012 Amended Order is attached hereto as Exhibit "A.")
3.
injunction, Mr. Whitehead flagrantly and willfully continued to violate the terms
of the Settlement Agreement as well as the October 23, 2012 Amended Order. Specifically, Mr. Whitehead administered the "Boycott" page using another false
name, "Mary Smith 4158," beginning on October 17, 2012 and continuing through at least November 16, 2012 (the date that Facebook produced records identifying the "Boycott" page administrators). (See Tr. of Proceedings on January 18, 2013 at 20, 1.9 to 2 1 , 1. 1 1 .) (A true and correct copy of the transcript of the January 1 8, 2013 hearing is attached hereto as Exhibit "B.")
4.
name "Mary Smith 4158," Sundance Vacations filed an Emergency Petition for
Contempt Sanctions and for Order Compelling Compliance With October 23, 20 1 2 Amended Order on December 21,2012.
on January 18, 2013.
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that Mr. Whitehead continued to administer the "Boycott" page after October 23, 2012 using his Verizon internet account and the false name "Mary Smith 4158"
and that he had the ability to but did not discontinue the "Boycott" page despite the October 23, 2012 Amended Order compelling him to do so.
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January 18, 2013 finding Mr. Whitehead in contempt of the October 23, 2012
Amended Order. The January 18, 2013 Order directed Mr. Whitehead to send a
letter to Facebook within five (5) days of the date of the Order requesting that the
"Boycott" page be removed and also that Mr. Whitehead "undertake efforts to personally remove" the "Boycott" page from Facebook within three (3) days of the date of the Order. The Order further directed that failure by Mr. Whitehead to
comply with the Order "will result in a sanction of $250 per day thereafter" and
that Mr. Whitehead "shall reimburse [Sundance Vacations] for counsel fees and filing costs associated with [its] emergency petition and hearing" on January 18, 2013. (A true and correct copy of the January 18, 2013 Order is attached hereto as
Exhibit "C.")1
7.
Order, Mr. Whitehead sent a letter to Facebook on or about January 30, 2013. Mr.
Whitehead made no reference in his letter to the finding of contempt or his use of the false name "Mary Smith 4158," but rather stated that he was "reluctantly compelled" to request removal of the page based on a purported "oversight" (rather than a knowing breach of his contractual obligations). While Mr. Whitehead acknowledged his use of the name "John Flannagan" in the letter, he
did not make clear that he used the false name to administer and post messages on
the "Boycott" page or that he continued to do so using a second false name, "Mary
Smith 4158," after the Court preliminarily enjoined him from doing so. Moreover,
Mr. Whitehead sabotaged any effort to have the "Boycott" page removed by
claiming that he lacked "standing and/or authority to personally remove" the page
and by characterizing his request that Facebook remove the page as an "ineligible
1 Sundance Vacations is filing under separate cover an itemization of the counsel fees
and expenses required to be reimbursed by Mr. Whitehead.
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request." (A true and correct copy of the January 30, 2013 letter is attached hereto
as Exhibit "D.")2 Given the equivocal nature of Mr. Whitehead's letter and his
refusal to take down the page himself, Facebook has refused to remove the
"Boycott" page. (A true and correct copy of the March 15, 2013 letter to Facebook' s counsel confirming this position is attached as Exhibit "E.")
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"Boycott" page himself, (see Tr. of Proceedings on January 18, 2013 at 27, 1.21 to
29, 1.9), he has willfully failed and refused to do so. Importantly, counsel for
Sundance Vacations arranged for a video conference on Friday, February 22, 2013
with Mr. Whitehead and his counsel to assist Mr. Whitehead in performing the few keystrokes necessary to remove the "Boycott" page. (A true and correct copy of
the letter dated February 20, 2013 arranging for the video conference is attached
hereto as Exhibit "F.") Mr. Whitehead, however, refused to participate in the
video conference and has made no effort to remove the page himself.
9.
2 Mr. Whitehead also copied Facebook' s counsel on a letter which he sent to this Court on or about January 23, 2013. That letter conveys no request to remove the "Boycott" page but rather suggests (without justification) that there is no basis for the Court's January 18, 2013
Order and that he is unable to comply with the Order.
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1.14 to 35, 1.3.) Those posts remain viewable by the public on the internet as of the
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page and other disparaging posts is willful, flagrant and contemptuous and warrants imposition of the most severe sanction both to coerce compliance with
the Court's Orders and to protect and preserve the authority of this Court.
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Orders issued by this Court as well as his contractual obligations and therefore
additional, more severe sanctions are necessary and appropriate.
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enforcing the January 18, 2013 Order of Court by imposing additional sanctions both to punish Mr. Whitehead for his intransigence and to coerce compliance with
the Court's Orders.
WHEREFORE, Sundance Vacations, Inc. respectfully requests that the Court impose additional sanctions to enforce the October 23, 2012 Amended Order and the January 18, 2013 Order of Court by, inter alia:
(a)
Vacations the amount of $14,000.00, which represents the $250.00 fine for each
day from January 1 8, 2013 to the present that Mr. Whitehead was in violation of the Court's January 18, 2013 Order (with the assessment of the daily fine continuing due to Mr. Whitehead's ongoing contempt);
(b)
that Mr. Whitehead continues to refuse to comply with the terms of the January 18,
2013 Order;
(c)
Mr. Whitehead to the Luzerne County Jail unless and until he removes the "Boycott" page and all posts that he made on other online platforms concerning
Sundance Vacations; and
(d)
Respectfully submitted,
Daniel T. Brier Donna A. Walsh Attorneys for Plaintiff, Sundance Vacations, Inc. MYERS, BRIER & KELLY, L.L.P. Suite 200, 425 Spruce Street Scranton, PA 18503 (570)342-6100 Date: March 20, 2013
VERmCATIQlS
hereby certify that the facts contained in the foregoing Petition To Enforce
Contempt Order and for Additional Sanctions are true and correct and are made subject to the penalties of 18 Pa. C.S.A. 4904 relating to unsworn falsification to
authorities.
John Dowd
Date: 3 ' ( ^ ^ 3
Exhibit A
r-iso
AMENDED ORDER
fea'/-'
jr
February 6, from existing and future breaches uf the Settlement Agreement dated
activity concerning 2007 pending further Order of Court. Further, all posts and
Albert Whitehead Sundance Vacations, Inc. in any manner made by Defendant on Facehook or any posing as "John Fionnagan" or using any other pseudonym
Further, Defendant Albert Whitehead shall not interfere with the efforts of Sundance Vacations Inc. to remove the posts and shall cooperate with Sundance
s" Vacations Inc. in directing Facchookto remove the ''Boycott Sundance Vacation
page.
Security shall be entered in the amount of $100.00 (one hundred dollars) in accordance with Pa.R-Civ. P. 1531(b)
BY THE Q
DERANTONI
Exhibit B
OF LUZERNE COUNTY
PENNSYLVANIA
CIVIL ACTION
ALBERT WHITEHEAD,
Defendant
NO. 8006
of
2012
TRANSCRIPT OF PROCEEDINGS
BEFORE:
The Honorable Fred W. Pierantoni, III, J. Courtroom No. 5 Luzerne County Court House 200 North River Street Wilkes-Barre, Pennsylvania 18711-1001
COPY
INDEX TO WITNESSES
PLAINTIFF'S WITNESSES
DIRECT
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CROSS
REDIRECT
RECROSS
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John Dowd
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We sent a draft letter to Mr. Whitehead's counsel asking that he send that letter to Facebook
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order compelling compliance with October 23rd, 2012 amended order. Correct?
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MS. WALSH: Thafs right, Your Honor. THE COURT: Let me just have the introduction of counsel for the record. MS. WALSH: Donna Walsh for Sundance
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MS. WALSH: There were two letters, Your Honor, October 24th and November 1st. THE COURT: They were prepared by your office
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By way of background. Judge, there was an employment discrimination case that began in 2004
that resulted in a settlement agreement in February of 2007. Pursuant to that agreement Mr. Whitehead promised he would never again post In any fashion
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17th, 2012 continuing thereafter. We have witnesses here today that I would like
to present that will verify and confirm that Mr.
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We filed this lawsuit in April of 2012 contending that he breached his obligations by administering a page on Facebook called Boycott
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Whitehead is, in feet, Mary Smith; that he administered the Facebook page Boycott Sundance Vacations after October 23rd, and that he continued
to post messages on that page after that date in
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discovery we were able to confirm that Mr. Whitehead had administered the page using the false name John Flannagan, and that prompted us to move
for a preliminary Injunction before Your Honor, and
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Your Honor entered, with the consent of Mr. Whitehead, the injunction on October 23rd again preventing him from posting -- prohibiting him from
posting in any online forum and also requiring him
to cooperate with us in removing the Boycott
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Sundance Vacations page that he actively administered under the false name John Flannagan.
Subsequent to that date, Your Honor, we discovered three things. First, Mr. Whitehead refuses and continues to refuse to cooperate with Sundance in removing the page. Your Honor clearly
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the Court's order. These are the printouts of those blogs. As you could see, those blogs are March of '09, August of '09, and March of 2010, two
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directed him on October 23rd that he is required to cooperate with Sundance to get the page down and he
has refused.
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MR. CARMODY: Correct. And those were by Dolores who, discovery has shown, has been a display name that my client has used In the past.
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this down. Frankly, he would have been out of line. THE COURT: Out of an abundance of caution,
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Exhibit F of Plaintiff's motion shows that Dolores was a display name for JohnF712@hotmail.com, and
for trubbiinparadise@aol.coni. And if you look at
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THE COURT:
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put a blog on the Internet, and subsequent to that you delete that email address, you can't go back and remove something from cyberspace. It's there
permanently. So my client has no ability to go
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THE COURT:
Continue.
Third, the Plaintiff presents
MR. CARMODY:
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Exhibits G, H and I, and she claims that - the Plaintiff claims that these exhibits identify my client, the Defendant, as the current administrator of the Facebook page.
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he was not the creator of that page, and because he is not the creator of that page, he doesn't have
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not an administrator. It says nothing. It just shows that this was a Facebook name and he was
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factually, based upon my client's representations, for me to send a letter to Facebook stating facts or allegations that I knew not to be true and based upon my client's representations I knew not to be
true. Nothing in your court order ~ THE COURT: Part of the order from October
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23rd contains an entry that your client would cooperate with Sundance in directing Facebook to remove the Boycott Sundance Vacations page. Did
you undertake any attempt to contact Facebook by
your own letter?
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THE COURT: I could understand Mr. Canmody's concern about sending a letter to Facebook that may
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to get a sworn affidavit from our client saying that, Your Honor, I understand you made this part
of your order, but the fact is that he didn't
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THE COURT:
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We have discussed, not In great
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MR. CARMODY:
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THE COURT:
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A.
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THE COURT:
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computer technology?
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submitting the letter to Face book and requesting them to take the page down, he Is In agreement that
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THE COURT:
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enforcement?
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MR. CARMODY:
Okay.
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A.
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THE COURT:
Attorney Walsh.
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Q.
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Correct.
What is the business of Two By Two Solutions? Two By Two Solutions provides consulting
.....
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BY MS. WALSH;
DIRECT EXAMINATION
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A.
Full-time since 1995. MS. WALSH: Your Honor, I'd offer Dennis Cheng
as an expert in the area of information technology. infrastructure and networking, as well as computer
forensics.
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A. Q.
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VOIR DIRE EXAMINATION
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It is.
Can you tell the Court about your educational
BY MR. CftRMPPY?
Q. Mr. Cheng, we're here today -- a large basis
of the daims here today are dealing with the Facebook
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background, please.
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for my undergraduate studying, among other things, computer science and advanced mathematics. Graduated Johns Hopkins
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In practice, yes.
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We'll recognize you as an expert,
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enrollment to create another account^ although it's expressly forbidden in the Terms of Use.
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PY MSi WfttiSH'
Q. Dennis, have you had an opportunity to examine
a page on Facebook called Boycott Sundance Vacations?
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I have.
What Is that, please. It is a Facebook page apparently devoted to
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a little bit.
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Philadelphia area.
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the binder In front of you. As the certificate suggests. these are records that were produced to Sundance Vacations
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though.
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on that page so that they can post, delete, manage, and otherwise manipulate the operations of the page.
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the page?
from Verizon, and cross-referring that IP address it was Indeed the IP address of Albert Whitehead.
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Q,
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Is this common with Facebook that more than one person can
serve as an administrator?
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location.
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account?
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A,
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Correct.
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use or registration?
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address that the person claiming to be Mary Smith used to logon to Facebook?
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16th, 2012.
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that was allocated to Albert Whitehead. Q. Can you identify for the record the number of
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last logon.
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that IP address?
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It Is 72.78.191.60.
I'm going to ask you to turn to Exhibit I in
It should be, and It Is, October 17th, 2012. My apologies. Q. So the first logon for Mary Smith is October
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THE COURT:
BY MS. WALSH!
Continue.
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THE COURT: It stopped on that date? THE WITNESS: The records were generated obviously they couldn't go into the future, so it was current as of generation. THE COURT: Was there any check to see if
they're current today?
Q. Turn please to Exhibit I. MS. WALSH: I will represent to the Court these are records that were subpoenaed from Verizon with regard to IP addresses associated with Mr.
Whitehead's residence.
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THE COURT:
Go ahead.
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whether marysm(th4158 posted messages on the Boycott page during this period of time from October 17, 2012 to November
16, 2012.
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Yes, I did.
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And what did you conclude? I concluded that there were a number of times
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login and logout event, and eliminating periods of dme where there were multiple parties logged In concurrently, we
could Identify periods of time where only Mr. Whitehead was logged on.
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represents, N as In Nancy?
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response.
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It does.
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conversion?
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correct?
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I did.
First, can you tell the Court how you can
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Correct.
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I do.
What can you tell us about the Identity of the
with a cross through it? A. Q. Uh-hum. Is that the sign that this post Is from an
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logs and, this is sorted by date and time, identified a window of time from November 9th at 1:34 p.m. -- I'm sorry.
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Yes, It is.
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Q. You were telling us about the investigative work that you did to determine whether any particular administrator post was made by marysmith4158 or one of the
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other administrators. I wonder If you could walk us through what you did to make that determination?
A. Okay. Should we speak to a specific post
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Correct.
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administrator had rights to take down the page with Immediate effect.
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or more than one administrator for the Boycott page was logged In on that date at that time?
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from the page, and then under one of the settings pages for
the page there Is a quick link to delete the page, Ifs a one dick deal and two confirmations.
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In Exhibit N?
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Q. Can you explain that? A. Forgive me, this Is difficult to parse. There
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During that time unti the 30th there was one Mark Adomo
logged out on the 29th, but then we have the post on the
Facebook page?
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bottom that says, save changes, and Immediately before that there Is a section that says, delete page. One just has to dick the link and then confirm the choice. MS. WALSH: I will represent to the Court the information blacked out is the personal Information of the Facebook user that formed the basis for
on October 30 at 7:51 a.m. other than marysmith4158? A. Q. Correct. Lefs go through one last example for October
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turn to the 19th page, which I apologize, the pages are not appropriately numbered, but the 19th page of Exhibit M. I
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BY MS. WAkSH:
Q. How long would It take an administrator to
ask If you can see a post there dated October 19, 2012 at
9:53 a.m. on the bottom of the page?
Yes, I do.
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whether one or more than one of the administrators was logged on to Facebook on that date at that time? A. My determination was that only marysmlth4158
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other examples that would show us that marysmith4158, which is associated with Mr. Whitehead, was the only administrator
logged on making posts during the period covered by the
Facebook records?
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you?
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believe the title of It Is the Sundance Vacations Sweepstakes versus Do Not Call.
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Correct.
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Q. And R?
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R Is ~
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Q. I apologize, Exhibit 0?
A. 0 is Sundance Vacations Complaints and
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Exhibit E and tell us what are the screen names that appear
on Exhibit 6?
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Yes. After my analysis, yes. Can you tell the Court briefly what you did In
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in here that identifies the true owner of these biogs. Q. A, I ask you please to turn to Exhibit F? Yes. MS. WALSH; I will represent to the Court that
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include the term Beware Sundance and Sundance Vac. Do you see that?
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I do, yes.
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Prior to the order. So noted. I
Move on to another area.
THE COURT:
have them here.
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yes.
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it's tnjbbilnparadlse@aol.com.
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Yes.
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Yes.
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those posts?
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I believe he does.
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I do.
MS. WALSH: No further questions.
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THE COURT: Thank you. Cross. MR. CARMODY: Your Honor, without my dlent
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received last month, and additional documents that we received today, I don't believe I would have any appropriate cross-examination questions for Mr.
Cheng, and with that -- so I have no
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Q.
They are.
Viewable by the public?
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THE COURT:
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They are.
Do you have an opinion as to whether Mr.
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and If they still have that login and password they could login and destroy the page. Lefs Just say that that Information is no longer available. I
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this period?
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Yes.
Do those posts remain viewable by the public?
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They do.
Do you have an opinion as to whether Mr.
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THE COURT:
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I do.
What Is your opinion? My opinion Is that he does have that ability.
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her sister when she was 16 years of age and she had a daughter by Mr. Whitehead.
DIRECT EXAMINATION
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BY MS. WALSH:
Q. Can you please state your full name for the
record.
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of Pennsylvania.
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Pennsylvania, and that his wife is Ruth Martin with a maiden name of Adomo. It was my understanding that the Facebook
page was registered to a Mark Adomo, which Is his wife's
maiden name.
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person as
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2nd by telephone --
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hearsay.
MS. WALSH:
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Q.
witness' investigative steps were. I intend to ask him about family and reputationai information which
falls within an exception to the Hearsay Rule, and
I plan to ask about the witness' expression of her
state of mind.
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individuals whose names are associated with the Facebook page Boycott Sundance Vacations, or did your investigation
show something else?
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Q. A.
What did you determine from Mr. Harris? That he was not
MR. CARMODY: Objection.
THE WITNESS: -did not give permission to
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THE COURT:
questions?
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No, Your Honor. Mr. Carmody, any questions? No, Your Honor.
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CROSS EXAMINATION
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JOHN DOWD. called as a witness on behalf of
BY MR. CARMODY;
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of Sundance Vacations?
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Yes.
PIRECT EXAMIWAHQN
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business locations?
BY MS. WALSH:
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Vacations?
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Where are they located? One In New Jersey, one In King of Prussia,
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Vacations?
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Since 1991. Just briefly, can you tel the Court the
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Sundance Vacations, in your position as president, have you become aware of complaints about Sundance Vacations?
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whether the persons who are identified as Facebook administrators, whether they were ever customers of Sundance Vacations or affiliated with the company In any way?
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sir.
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of the page have never had any contact with our company,
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BY MR. CARMOPY:
Q. In your role as president of Sundance ever the
never received any marketing calls, have never visited any of our locations, never purchased any of our products.
Q. How has the Boycott page affected the business
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of Sundance Vacations?
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our business since we started it. Ifs cost us millions of dollars over the past few years. We laid off over a hundred people as a result of problems caused by this page. People believe what they see on the Internet. They think that
stuff is credible.
Q.
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I am not.
Q,
Court for?
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that fields calls for anybody that might have any Issues
regarding any contact with our company. They could have a
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Whitehead Is In contempt of
THE COURT ;
testimony, sir? MR. CARMODY: No, Your Honor. As I
Q.
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complaint Many complaints are handled by the people who do that everyday.
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I am not.
And you're not aware of any newspaper ads that
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that story?
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MS. WALSH; We'd ask Your Honor for a finding that Mr. Whitehead is In contempt of Your Honor's
October 23rd, 2012 order by, first of all.
their Interactions with the business and published what they found. I don't recall the specifics. Q. Did that article involve complaints about
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I don't recall.
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the entry of the October 23rd order. We'd also ask for a finding that Mr. Whitehead
Is In contempt of this Oourt's order by refusing to
cooperate with Sundance Vacations In asking Facebook to take down the Boycott Sundance
Vacations page.
Q.
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posts that he made on other pages using pseudonyms containing messages disparaging of Sundance
Vacations.
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No, because there have been none. Did they reference any newspaper ads
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Vacations page pursuant to the method that was outlined In evidence here today, and we ask that Your Honor give a date certain to do that or face a certain consequence, which would be a term of
conditional Imprisonment until he complies, or In
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THE COURT; Anything else. Attorney Walsh? MS. WALSH; Just to summarize. Judge. We'd ask the Court to enter an order finding that Mr.
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back to this Court repeatedly for relief. Respectfully, Judge, we had an agreement in 2007 and Mr. Whitehead has continually failed to
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complaints of Plaintiff.
THE COURT: Anything else, counsel?
MS. WALSH: Very briefly, Your Honor.
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live up to It. When we found out that he was posing as John Flannagan we came to the Court and
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produced by Facebook and Yahoo and Google for weeks now. There was nothing new presented today from
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any of those entities. With regard to the order, we respectfully disagree. We need a finding of contempt by this Court and an appropriate entry of an order of
sanctions Just to enforce the agreement, to enforce
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enter an order with appropriate sanctions and appropriate teeth just to prevent us from having to come back here again.
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Your Honor's order, and to prevent us from having to come back here today. THE COURT:
say?
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were certain documents that were not provided to me until 10:00 this morning, so I did not have the
appropriate amount of time to review it or consult
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The last half of Ms. Walsh's argument, we have agreed at the outset before testimony was taken
today that the Defendant was going to submit a
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this whole case is this Facebook page, the Boycott page. This letter that you've already ordered my
client to submit within five days should clean up any issues that the Plaintiff has, assuming their
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compelling compliance with the October 23rd, 2012 amended order, and after evidentiary hearing on same along with counsel, the order will be as
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follows:
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found in contempt of court, the order dated October 23rd, 2012. Number two. Defendant shall send a
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here today, a lot of these exhibits, specifically the exhibits regarding at what time a person made a
post, one of the administrators, these are
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defendant shall undertake efforts to personally remove the Boycott page from Facebook and/or any other platforms within three days of the date of this order. Number four, failure of Defendant to
comply with the above-stated will result in a sanction of $250 per day thereafter. Number five,
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that certain testimony was not correct, or in the event he Is willing to spend money on an expert of
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CERTIFICATION
accurately in the notes of testimony taken by me on the proceedings of the above matter, and that this is a true and correct transcript of the same.
isitDanklfl. @oJi
Daniel J. Coll, Official Court Reporter
Exhibit C
P. 002
CIVIL ACTION
ALBERT WHITEHEAD.
Defendant.
% VU*'
NO. 8006 of ^ 20liA" A*
* A
mMMM
3, in accordance with the AND, NOW, this 18th day of Januaiy, 201
pt Plaintiffs emergency petition for contem nce sanctions and order compelling complia
e er, and after evidentiary hearing on the sam ord ed end am 2 201 , 23'* r obe Oct the with
the order will be as follows: along with opposing counsel,
Faoebook within five days requesting No. 2. Defendant shall send a letter to
P. 003
No. 6, Defbntant shall reimburae Plaintiff for counsel fees and filing costs
associated with Plaintiffs emergency petition and hearing this date. No. 6, Defendant shall comply with this and aii previous court orders.
BY THE
THE PROTHONOTARY OF LUZERNE COUNTY. PENNSYLVANIA SHALL GIVE NOTICE OF THIS ORDER TO ALL
-2-
Exhibit D
Albert Whitehead
Re: Sundance Vacations v. Albert Whitehead Luzerne County, Pennsylvania - Civil Action No. 2012-08006
Dear Mr, Ullyot:
Under court order in the above captioned matter, I am reluctantly compelled to request that Facebook remove the "Boycott Sundance Vacations" page from its' platform.
During the spring of 2012, 1 was one of many administrators solicited as a "Content Creator" using the pen name of "John Flannagan" and, consequently, put in a position of inadvertently disregarding a 6 year old settlement agreement that I believed was revoked, only to find out that it was not. Nonetheless, that Facebook account (John Flannagan) has been permanently deleted as a means of making an effort to rectify the aforementioned oversight.
Obviously, I completely understand that I have no standing and/or authority to personally remove the "Boycott Sundance Vacations" Facebook page, now totaling 1,125 members, but I am reluctantly compelled by Court Order to submit this ineligible request that the "Boycott" page be removed.
Sincerely yours,
Albert Whitehead
AW/aw
Exhibit E
m b k
This will confirm our discussion yesterday. Specifically, you advised that Facebook is unwilling to remove the "Boycott Sundance Vacations" page from its platform. You
offered two reasons for your client's refusal: (1) it is not clear from Albert Whitehead's January 30, 2013 letter that he admits administering the "Boycott" page; and (2) it is not clear why Mr. Whitehead refuses to take down the page himself. You also noted that Facebook is not the subject of any court order directing the removal of the page.
If this is incorrect in any way, please advise me in writing immediately. Sincerely,
Donna A. Walsh
DAW:rcs
425 Spruce Street 1 Suite 200 | P.O. Box 551 j Scranton, PA 18501-0551 | p (570) 342-6)00 | f (570) 342-6147 | www.mbklaw.com
Exhibit F
m b k
my/,sob/6i,r&kelly-
Matthew J. Carmody, Esquire Elliott Greenleaf & Dean 39 Public Square, Suite 1000
Wilkes-Barre, Pennsylvania 18701
Re:
Dear Matt:
Albert Whitehead continues to disregard the Court Orders dated October 23, 2012 and January 18, 2013. On January 18, Judge Pierantoni questioned why you had not communicated with Facebook personally after entry of the October 23 Order. (See Transcript of Hearing (January 18, 2013) pp. 6:24 to 8:13). Judge Pierantoni then directed you - and you agreed - to write Facebook on behalf of your client to ensure the Boycott Sundance Vacations page was taken down, (See Transcript of Hearing (January 18, 2013) pp. 8:5 to 8:12, and 10:20
to lO^S).1 Yesterday you advised that you had not taken this critical step. This is particularly
troubling because Albert Whitehead's contempt is irreparably harmful to Sundance Vacations
and his communications with the Court and Facebook are disingenuous and misleading. Albert Whitehead's January 23 letter to Judge Pierantoni (copy to Facebook) states "contrary to [Sundance Vacation's] arguments, there are no comments of any nature posted [on the Boycott Sundance Vacations page] by Mary Smith and I challenge the Plaintiff to produce any such comments." A true and correct copy of the January 23 letter is attached as
Exhibit "A."
Albert Whitehead's letter is disingenuous. He does not tell Judge Pierantoni that
1 Later in the hearing you stipulated that Albert Whitehead authored three Google Blogspots that
remain accessible to the public at httD://sundancevacationsccD.blogspot.coin/. httD://naskiewicz2.blogspot.com/. http://siindancevacationsmanipulation.blogspot.com/. (See Transcript of Hearing (January 18, 2013) p. 31:10 to 31:13).
425 Spruce Street | Suite 200 : P.O. Box 551 [ Scranton, PA 18S0 1-0551 i p (570) 342-6100 [ f (570) 342-6147 ] www.mbklow.com
On behalf of Sundance Vacations, I request that you please clarify these issues with the Court. Albert Whitehead's January 30 letter to Facebook's General Counsel (copy to the Prothonotary) is also misleading. A true and correct copy of this letter is attached hereto as
Exhibit "B." In this letter, Albert Whitehead states that Facebook solicited him in the spring of 2012 as a "Content Creator using the pen name of John Flanagan." Purporting to have "rectified]" his "inadvertent disregard[ ] of a 6 year old settlement," Albert Whitehead told Facebook that he "permanently deleted" the "John Flanagan" Facebook account. Albert Whitehead then told Facebook he has "no standing and/or authority to personally remove the Boycott Sundance Vacations Facebook page," but that he is "reluctantly compelled by Court Order to submit this ineligible request that the Boycott page be removed." The unrebutted expert testimony and documentary evidence confirms that Albert Whitehead administers Boycott Sundance Vacations as "Marysmith4 1 58," that he posted as an administrator after October 23, and that he has authority to take down this site. (See Transcript of Hearing (January 1 8, 2013) pp. 22:15 to 27:22). By omitting reference to "Mary Smith," Albert Whitehead suggests falsely to Facebook and the Court that he no longer has any involvement with Boycott Sundance Vacations. This must also be clarified with Facebook and
the Court.
accounts for Albert Whitehead's purported health limitations, I have made arrangements for a
WebEx Conference Call on Friday February 22, 2013 at 1 p.m. I will participate in the call with
Mr. Dennis Cheng on behalf of Sundance Vacations, and I request that you and Albert
Whitehead also participate. The object of the conference call will be to lend Mr. Cheng's
expertise to Albert Whitehead in taking down the Google Blogspots and Boycott Sundance
Vacations. At the time of the meeting, Mr. Whitehead will need to have access to a telephone
and a computer with internet connection. He will need his Facebook administrator's credentials
for Boycott Sundance Vacations and the password for the Google Blogspot accounts.
2 Citing an unattached verification and pledging oaths on family members, Albert Whitehead's
letter to Judge Pierantoni denies having conceived, designed, composed, or published Boycott Sundance Vacations. Conspicuously absent is any mention whether Albert Whitehead is an administrator of Boycott Sundance Vacations.
If the preceding arrangements do not result in the sites being taken down on Friday February 22, 2013, Sundance Vacations expects you will act in accordance with Judge Pierantoni's direction and make a personal request - on behalf of your client - that the offending sites be taken down. Judge Pierantoni clearly assumes that our offices will cooperate to achieve compliance with the Court's Orders. If we have not achieved compliance by Wednesday
February 27, Sundance Vacations will seek an emergency conference with Judge Pierantoni to
(s John B. Dempsey
JBDxak
Enclosures
cc:
EXHIBIT A
VIA FArsiMTT p. and ppbttptt^d mah, no. lopg 1410 QQQi 4770 21
200 North River Street Wilkes-Barre, PA. 18711 TEL 570-830-5144; FAX 570-825-1518
Albert Whitehead
Dear Judge Pierantoni: I submit this correspondence, wjth a i t. due respect, as I am the defendant in the above captioned case and a 72 year old a cancer survivor with various other health problems consequently, I am virtually homebound. I do not seek sympathy, I merely wish to inform the Court as to why I could not attend the last "Show Cause" hearing (1/18/13) to offer my personal testimony, which
now seems to put me in the unfortunate position of having to prove a negative, but I will try!
Although to date represented by highly ethical and competent counsel, albeit financially restrained, I am now rnMPPT i.F.n to write the Court directly for two reasons:
(1) I can no longer afford extended representation, beyond this instant issue, because my children used part of their inheritance to defend me, but those limited funds are exhausted. (2) I am literally stunned because the Court has issued an extensive order, to perform a task that is virtually impossible for me to accomplish and I will elaborate as briefly as is possible, while attempting to offer the Court a clear picture of this litigation without all the legal
gobbledygook. I'm an articulate, but indigent old man appealing to the essence of American
justice - this Court. And, in this case, this unbiased jurist (Hie Honorable Fred A. Pierantoni, m) who represents justice for all, even die indigent insignificant old man being persecuted hv the youthful and powerful millionaire!
The foundation of this litigation is based on a "settlement agreement" signed on February 6th, 2007 and, as was my sincere belief, revoked on February 7th, 2007. Be that as it may, the plaintiff is now
suing me for inadvertently violating that agreement by virtue of the fact that I posted comments
about the plaintiff, Sundance Vacations, in violation of that agreement. The plaintiff further avers that those comments were made on a Facebook page entitled "Boycott Sundance Vacations." The essence of the litigation against me is that I, under the pen name of "John Flannagan" and others, have caused economic damage to Sundance Vacations, and to their reputation, in violation
of that settlement agreement of February 6th, 2007. Fair enough, so let's first look at the
"reputation" of Sundance Vacations, considering the following irrefutable facts. (1) July, 2005, "Sundance Vacations was investigated by the state of New Jersey for failure to comply with Federal and state minimum wage laws. The investigation resulted in 32 employees
being paid a total of $19,762.62 in back wages. The company also paid administrative fees of $1,976.26 and penalties of $3,000." (Quoted from the New Jersey Department of Labor and
Workforce Development, as publicly posted on the Internet.)
(2) November 6, 2006, a consumer fraud civil law suit was filed against Sundance Vacations, Inc. and Sundance Vacations Network, Inc. The fraudulent misrepresentation claim was filed in the
Superior Court of New Jersey, Bra-gen County, docket number L-8256-06. The civil suit detailed
numerous violations of NJ.S.A. 56:8 et seq. of the New Jersey Consumer Fraud Act, by utilizing "false pretenses through the use of unconscionable commercial practices." (As pubhshed on the Internet)
(3) August 9th, 2009, in the Sunday Philadelphia Inquirer, consumer reporter Jeff Gelles exposed Sundance Vacations' questionable marketing and sales practices, in conjunction with the fact that Sundance Vacations' ignores The Pennsylvania Unfair Trade Practices And Consumer Protection Law (201-7. Contracts: Effect Of Rescission)
(4) May 20th, 2010, the state of New Jersey published, on the internet, the results of an investigation into Sundance Vacations' questionable marketing and sales practices. Incidentally,
many civil law suits have been filed against Sundance Vacations, in Bergen County, New Jersey {Thomas vs. Sundance Vacations, Inc.) and there are approximately three other plaintiffs, all
alleging the same "unconscionable commercial practices."
(5) July 6th, 2010, Ohio consumer reporter, Mike Bowersock, (NBC 4) aired a TV expose of
Sundance Vacations* questionable marketing and sales practices. The two Ohio two sales offices have subsequently closed.
(6) November 1st, 2010, that "Boycott" page was first published. (That information is publicly
available on that "Boycott" page, that now numbers 1,120 members.)
(7) May 17th, 2012, "Boycott" page member Kara Kenney, who also happened to be an Indiana
Consumer Reporter (RTV6), reads all the horror stories on the "Boycott" page. She also conducted a 3-month undercover investigation of Sundance Vacations' affiliates in Indiana (Dowd
Marketing/SmarTravel/TAN) and then, on 5/17/2012, she airs 7 minutes of the undercover video
exposing the questionable marketing and sales practices from A to Z. That particular sales office subsequently closed.
(8) January 3rd, 2013. As of that date there were approximately 7 civil law suits filed against
Sundance Vacations for "unconscionable" marketing and sales practices, in New Jersey and Wisconsin. The Wisconsin attorney, DeVonna Joy, publicly commented on that "Boycott" page and
2
was subsequently threatened in writine. personally, by the Sundance Vacations' CEO, John Dowd, Imagine threatening an attorney for doing their job! That type of thinking is insane, literally! Ms. Joy publicly responded and also notified her associates. Consequently, over 100 members of the
legal community rallied around Ms, Joy, became members of that "Boycott" page, and some attorneys publicly commented on that "Boycott" page while offering pro bono legal advice.
The point being Your Honor, the plaintiff is not as innocent as portrayed to this Court during the
testimony offered on January IS0*, 2013. Moreover, their "reputation" preceded that "Boycott"
page. All that "Boycott" page did was offer the consumers a public platform and support network. A public platform and support network that Sundance Vacations is attempting to shut-down by
devious means. It is frightening when private enterprise attempts to suppress the I81 Amendment!
I am also aware of the fact that the plaintiff has retained "Keystone Intelligence Network, Inc." in Philadelphia, PA. (Private Investigators) The individual PI (Joseph M. Downs) has picked-up my trash, (which is admittedly legal) followed me and others while also showing up at their homes unannounced, repeatedly called and harassed innocent people, some of whom I have not seen in
literally 50 years and have absolutely nothing to do with this litigation, absolutely nothing!
I now address the issue of that "Boycott" page, which this Court has ordered ME to facilitate its removal and that is the essence of my dismay! In addition to the "Verification" attached, I take an oath on the souls of my deceased mother and deceased sister that I did not conceive of that "Boycott" page, I did not design that "Boycott" page, I did not compose that "Boycott" page and, most importantly, I did not publish that "Boycott" page, period! So what does the plaintiff want of me? I cannot perform impossibilities*. And, again, WITH ALL DUE RESPECT, it is unfair for this Court to order me to accomplish those impossibilitiesl I may be old and sick, but I'm not senile or stupid! I'll comply with gnx Court Order, but it must be appropriate and within my human capabilities! I ask you, is that so unreasonable Your Honor? ..
Let me offer the Court a profound and accurate analogy. I write and publish a tell-all book, in violation of a non-disclosure "settlement agreement." That book is then placed on the book store shelves for sale. Now comes the plaintiff demanding not only that the published book be removed from the shelves, but that the entire book store be closed down! That is, in effect, what the plaintiff is demanding. A demand that is beyond the purview of this litigation, and a demand that I personally cannot accomplish! What abilities, power or authority do / possess to shut-down the entire book store? Notwithstanding the obvious question as to why should I?
My attorney submitted a Motion For Judgment On Liability and the Court granted that motion. So how does a Facebook "Boycott" page suddenly become the issue, as opposed to damages and injunctive relief? It's painfully obvious that the plaintiff is using this litigation as a means of attempting to remove a public forum that the Facebook authorities have declined to remove because there was no slander, libel or defamatory comments that would violate their Terms Of Service (TOS), so the "Boycott" page survived despite the plaintiff's constant attacks. I chose my words carefully Your Honor and when I say "attack" that's precisely what I mean. The plaintiff has attacked anyone and everyone who has dared to exercise their protected speech and share their experiences on a public forum. A public forum the plaintiff seems obsessed with shutting down by any means necessary! Why do they fear a public discussion forum while attempting to use me as a fall-guy to accomplish that which they have failed to accomplish by every legal means, including
appeals to Facebook authorities! I simply do not have the ability to do anvthins to that "Boycott"
page! The plaintiff argues that I logged-on to Facebook using the name of "Mary Smith" and maije disparaging comments. Nevertheless, contrary to the plaintiffs arguments, there are no comments of any nature posted by Mary Smith and I challenge the plaintiff to produce any such comments. I
reiterate, there are no disparaging, or any other type of comments, posted on that "Boycott" page by "Mary Smith" at any time since its inception, and I again challenge the plaintiff to produce those
alleged comments! Hie plaintiff has submitted pounds of Exhibits that they allege support their allegations. Those Exhibits are esoteric, but / fully understand their significance, or lack thereof. Those Exhibits, in conjunction with specious, albeit somewhat persuasive testimony, was not disputed because it was
detrimental to my physical well-being to travel to Wilkes-Barre, from Philadelphia, a trip that takes
about 2V2 hours one-way, requiring the use of seat belts. Since I have a prosthetic mesh screen stapled inside my abdomen, to repair an incisional hernia resulting from cancer surgery, the extended use of seat belts is painful, (driver or passenger). But now I have no other choice because I did not expect the plaintiff to offer mendacious testimony with distorted Exhibits, that / clearly understand and emphatically dispute the plaintiffs' offered interpretation of those "Exhibits."
In conclusion, I beseech the Court to reconsider the orders dated October 23Td, 2012 and January 18th, 2013 simply because it is not possible for me to honestly comply. In the alternative I ask the
Court to stay the orders with an opportunity to appear before this Court and offer my own sworn testimony in rebuttal of all the unchallenged allegations, despite the inevitable physical pain and burden of traveling to Wilkes-Barre, from Philadelphia. I assure Your Honor, the Court's time will not be wasted and my rebuttal testimony will be irrefutably documented and persuasive. This Court has heardfrom everyone but me, and I implore the Court to grant me that opportunity considering the extensive sanctions imposed!
In the final analysis, I submit this litigation is tantamount to the abuse of process, plain and simple!
Thanking you, in advance, for your time and consideration, while anxiously awaiting your reply.
Respectfully submitted,
ALBERT WHITEHEAD
AW/aw
Cc: Matthew Carmody, Esquire - Elliot Greenleaf & Dean Theodore W. Ullyot, Esquire - VP, General Counsel - Facebook, Inc.
file
EXHIBIT B
Albert Whitehead
Dear Mr. Ullyot: Under court order in the above captioned matter, I am reluctantly compelled to request that Facebook
Sincerely yours,
Albert Whitehead
AW/aw
3-
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CERTIFICATE OF SERVICE
I, Donna A. Walsh, hereby certify that a true and correct copy of the
foregoing Petition to Enforce Contempt Order and for Additional Sanctions was
served upon the following counsel of record via first class mail, postage prepaid,
on this 20th day of March, 2013:
Matthew J. Carmody, Esquire Elliott Greenleaf & Dean
39 Public Square Suite 1000
Wilkes-Barre, PA 18701
Donna A. Walsh