Arbortext Accounting Fraud #43: The Sprinkling Inkling of Stinky Winky

Chapter Forty-Three

The Sprinkling Inkling of Stinky Winky

 

Mark Robinson mailed us his Working Papers.  Part of them, that is. After some delays caused by Palizzi dragging his feet over what Robinson could send us.

Palizzi presumed himself into the Arbitrator’s chair and decided that Robinson couldn’t send any privileged communications with Arbortext that were in his possession. Not without Palizzi going over them to decide if they could or could not be released. Sort of like a criminal’s attorney getting to decide what evidence against his client the prosecutor could look at.

Robinson dutifully followed these “orders.”

Mary and I briefly considered ratting on Palizzi to Humphrey, but decided it wasn’t worth the effort. Our experience with Judge Jensen had taught us that judges didn’t like being reminded of their orders and asked to please enforce them. It sometimes made them feel like adversely changing their orders out of spite.

It wasn’t really necessary, either. What Robinson did send contained the Smoking Gun Mary was hoping would be there. Not one Gun, but several. I won’t interrupt the action packed, death defying, throat clutching narrative at this point to pore over this evidence, however. It will all be discussed a bit later when we sit down to compose our response to Palizzi’s Motion To Dismiss.

In the meantime, inkles began to lightly sprinkle down upon us that indicated the barometer was falling and fair weather might not be tomorrow’s forecast.

The conference call with Humphrey occurred on February 6^th, 2007. A Tuesday. On the following Monday, February 12^th, we received an email from Hannah Cook which passed along to us a PDF letter from Humphrey which summarized the phone call. See Exhibit T.

The letter also informed us that we could amend our original filing claim if we wanted to. Apparently this was to make sure we got the same privilege as she had given Palizzi when he amended his own filing during the conference call. Getting the old fair and square deal. Due to Palizzi’s delays, however, we had not yet received Robinson’s Working Papers, so there was nothing new that we could add to our claim.

And there was a problem with the dates.

Humphrey’s letter was dated February 7^th. Which meant it was written by Humphrey, but not sent for five days. Or Hannah Cook didn’t pass it along to us for five days. A mystery that would be no big deal were it not for the fact that we were given only until Tuesday February 13^th to file this amended claim – the very next day. Giving us only five business days to make this filing was as fast as I had ever seen the court system work, but having only one day to effectively do it was beyond speedy and off into the realm of stinky winky.

Mary pointed out this sleight-of-hand to me and we sat down to ruefully examine our paranoia about whether we were dealing with a marked deck of cards or was this just the standard ineptitude that one could expect of the document processing sectors of American life.

“What difference does it make?” I asked. “You don’t have to list your whole case in your filing anyway. Didn’t you reserve the right to amend your complaint along the way depending on what we discovered?”

“I said it on the phone to Humphrey. She said she understood.”

“So this is just a formality type thing.”

“I’m not so sure. I didn’t have the heart to tell you some of the things I’ve learned about Humphrey.”

“Oh great. It can’t be good then.”

“I read an article she wrote advising companies of the difficulty in getting Summary Judgments in Arbitration to hold up on appeal. She advised that businesses put it directly into their contracts that both parties allow the arbitrator to wield this sort of power. It’s a very aggressive pro-business stance.”

“Not vendor friendly.”

“And here she is, contemplating doing the very thing she says normally would likely get overturned on appeal. Of course, it takes money to file appeals and attorney knowledge to argue them. In her own attorney life at Dykema Gossett, she’s had great success in reducing or eliminating huge liability claims against big corporate clients. Let me read you a short blurb on her work.

Mary did some Google magic and read:

 She has successfully defended product liability claims concerning chemicals, natural gas, automobiles, trucks, general aviation aircraft, airline, executive jet and cargo aircraft, paper-making machinery and materials handling equipment.”

 Mary looked at me. “Pretty pro-corporate girl. Not consumer or environment friendly. And let me show you the article I just told you about. It’s called “Eight Tips For Drafting Better Arbitration Clauses.”

Mary Googled forward again and showed me the article. It is contained at the following link:

http://www.lorman.com/newsletters/article.php?article_id=268&newsletter_id=55&category_id=8&topic=LIT

I will quote here section number two of her article:

2. How should dispositive legal questions be resolved? The arbitrators could be authorized to determine the equivalent of motions for summary judgment, but the award could be overturned because of the failure of the arbitrators to hear evidence that otherwise would be relevant to the claim or defense. If you believe that the ability to bring a dispositive motion would be useful, despite this risk, include in your arbitration agreement a sentence indicating that, for example, “the arbitrators may hear and determine any preliminary issue of law asserted by a party as dispositive, to the same extent that a court could hear and determine a motion for summary disposition.”

“Shit,” I said. “The fix is in. Remember I said the only ringer left would be the Arbitrator?”

“Don’t remind me. I hate it when your pessimistic ideas come true. I’m not giving up on her just yet. She’s an Arbitrator now, not an advocate for big business. She knows the difference between federal court rules and arbitration rules. I’m praying she’ll just be fair. That’s all I ask.”

Fair. What a laugh. There was no such thing as “fair” in the legal dictionary. Fair was for the world of sports. And marriage. Playgrounds. Normal life. Probably Heaven. De minimus in the hallowed halls of justice. More like hollowed halls.

In the past seven years, we had seen Fair take a hellava beating. My ex-partner Dwan had started the slaughter seven years ago this very month. An eternity ago. Along the way we had seen our Blueberry business virtually destroyed, we had lost our home and were living in an RV, and all because we had resolutely and continuously insisted on Fair Play. Fair Play from Dwan – nada. Fair Play from Dick Blair – nada. Fair Play from Jim Sterken – nada. Fair Play from Dave Peralta – nada. Fair Play from Mark Robinson and Plante Moran – nada. And now, at the cost of everything we owned in life, one last attempt at Fair Play from Kathryn J. Humphrey. And right off the bat another NADA looming in our faces.

I looked across the room at Mary, who was back on the computer doing her dogged research. Man, what a trooper! She had been whipping the scoundrels at Arbortext and the scoundrels of Dwan/Bernheim/Blair for FIVE years now. Almost single handedly. And the more she whipped them, the dirtier they had to play to beat her. And they were probably going to beat her again. Because they could. They owned the casino and the dice were loaded, the table rigged, and the cards marked.

Well, old trooper girl, let’s just whip them again anyway. One last time. Because we can.

Palizzi duly filed his Motion to Dismiss (see Exhibit U). It was seven pages long and made no real effort to dispute Blueberry’s claims of Arbortext wrong doing. Its sole focus was that whether Blueberry had been cheated for seven years or not didn’t matter, because Blueberry had waited too long to bring the dispute to Arbitration. The twelve month statute of limitations in the contract had expired on any and all of our complaints and our case was no longer arbitrable. In addition, Parametric requested reimbursement of costs and fees incurred in responding to our claims.

Pikers.

Waited too long. What a laugh. It wasn’t waiting, Palizzi, it was being prevented from. By an endless procession of dirty tricks, lies, denials, and cover ups. In fact, both Paul Cimino and Palizzi pointed to Robinson’s Plante Moran audit as a key component of repudiating Blueberry’s claims. The audit that was an out and out Cover Up. One more Fraud in an ongoing stream of them.

Before we made our response to Palizzi’s Motion, we needed to pay the Arbitration Association another $4,600. We had paid them $6,000 back in September of 2006 for the Initial Administation Fee. Now we had to come up with another $2,500 for a Case Service Fee, plus $2,100 for our portion of the Neutral Compensation Deposit – the Arbitrator’s fee covering 15 hours of Study.

Arbitration was touted to be less expensive than filing a law suit and going to Court, but initially that was entirely a false tout. It cost less than $500 to file a law suit. Sometimes, that’s all it took to grease the Settlement gears. That had, in fact, occurred for us in our Copyright Infringement suit against Corel, which I did not include here in this particular Rape of Blueberry tale. As I mentioned earlier, one rape at a time.

So, at least initially, this less expensive toutedness was out-and-out bullshit. It was costing us $10,600 just to start the Arbitration case!

Mary and I had come to the conclusion that any contracts we signed with companies in the future would not under any circumstances contain the innocuous Binding Arbitration feature. What a rip-off! Got a complaint about the contract? No problemo. Cough up a mere $10,000 and you can get it discussed. All contractual complaints with a value of less than $10,000 are more cost effective to just eat it with spoons. Nice little buffer for cheating companies like Arbortext to work with.

At any rate, $4,600 due and payable. Our bank balance indicated we were about $4,252.39 shy. Roughly speaking.

To get this far, we had already borrowed money from virtually every known member of either of our Family Trees, even an ex-member of the Tree. We had paid them all back, true, but asking to borrow yet again was not exactly thrilling the hell out of either Mary or me.

Humble Pie was growing quite stale as a constant menu item in our lives. From whence would come the next stale slice?

To be continued . . .