MIDDLESEX, SS SUPERIOR COURT
MT IVY PRESS, )
JANE DANIEL, )
) Appeals Court
) No. 2008-P2132
MONIQUE DE WAEL, a/k/a, )
MISHA DEFONSECA, )
VERA LEE, )
PLAINTIFF’S APPEAL BRIEF
I. Statement of Issues Presented for Review
1. Did the Court err in granting the motion brought by the defendant, Misha Defonseca to dismiss Counts I and II of Plaintiff’s Complaint, pursuant to Mass.R.Civ.P. 12(b);
2. Did the Court err in granting the motion brought by the defendant, Vera Lee, to dismiss Counts III and IV of Plaintiff’s Complaint, pursuant to Mass.R.Civ.P. 12(b);
3. With all the facts examined in the light most favorable to the plaintiffs; did the Court err in finding, as a threshold matter, that the plaintiffs could prove no set of facts entitling them to relief from judgment, under Mass.R.Civ.P. 60(b).
II. Statement of Case
This appeal, and the underlying litigation stem from disputes regarding an “autobiography” authored by appellee Monique De Wael, a/k/a Misha Defonseca(hereinafter “Defonseca”) entitled “Misha, A Memoir of the Holocaust Years,”(hereinafter, “the book”). The book, purportedly an account of Defonseca’s childhood years in Nazi Germany, was ghostwritten by apellee, Vera Lee(hereinafter, “Lee”), and published by appellants Jane Daniel(hereinafter, “Daniel”), and Mount Ivy Press(hereinafter “Mt Ivy”).
In 1997, Lee instituted suit in Middlesex Superior Court, C.A. No. 98-2456, against Daniel/Mt Ivy, and Defonseca, alleging, among other things, violations of M.G.L. c. 93A, breach of contract, and other torts related to their respective involvement in the publication of Defonseca’s autobiography. As the litigation unfolded, each of these three parties, Mt Ivy/Daniel, Defonseca, and Lee, presented separate claims against each other by way of cross claim and/or counter claim(hereinafter, “underlying litigation”).
A trial was undertaken in the Middlesex Superior Court, the Honorable Elizabeth M. Fahey, Justice, presiding, from August 6, 2001-August 20, 2001. At the conclusion of the trial, the jury entered verdicts against Mt Ivy and Daniel in the amount of 3.3 million dollars for all claims brought by Lee, and the amount of 7.5 million dollars for all claims brought by Defonseca. Subsequently, the trial court trebled these verdict amounts, and awarded attorney’s fees to both Defonseca and Lee, based on the finding that Mt Ivy and Daniel had violated M.G.L. c. 93A. The resulting verdict against Mt Ivy and Daniel, exceeded 32 million dollars. The court also stripped Mt Ivy/Daniel of any legal interest which Daniel/Mt Ivy had in profits generated by the book thereafter.
Post-judgment, Daniel, by virtue of exhaustive research, and technological advancement, was able to establish that the book, Misha: A Memoir of the Holocaust Years, was a hoax. When confronted with such irrefutable evidence, Defonseca acknowledged publicly in January 2008 that the book was indeed fraudulent. Within thirty-nine days of this disclosure, Daniel and Mt Ivy filed suit in Middlesex Superior Court, C.A. No. 08-1432, seeking to vacate the judgment entered in the underlying litigation, pursuant to Mass.R.Civ.P. 60(b)(6)(hereinafter referred to as the “current litigation”). In response, Defonseca and Lee filed motions to dismiss, pursuant to Mass.R.Civ.P. 12(b)(6). After a hearing, occurring on August 28, 2008, the trial Court allowed the motions brought by Defonseca and Lee to dismiss. Mt Ivy and Daniel appeal therefrom.
III. Statement of Facts
In 1993, Daniel founded Mt Ivy Press, a small publishing company. Shortly thereafter, Daniel met with Defonseca in order to hear her remarkable story about her experiences as Jewish child during World War II (App. P. 0002). Among other things, Defonseca related that:
a. As a Jewish child, age 7, she was living in Belgium, when her parents were arrested by the Nazis in 1941;
b. She was placed in a foster home, and was given a false identity, Monique DeWael, age four. Such identity was assumed for the purposes of protecting herself from the Nazis;
c. Defonseca was befriended by a man, who she referred to as "grandfather," whose name was Ernest DeWael, who gave her a tiny compass, and showed her a map of Europe;
d. When Ernest DeWael expressed to Defonseca concern that the Nazis would come for her, Defonseca set out on a journey "to the East" in search of her parents;
e. Over the next four years, Defonseca walked three thousand miles across the European theater of war, hiding in forests where twice she was befriended by wolves.
(App. P. 0003).
Defonseca told Daniel that she had been telling her story, and receiving contributions for speaking engagements, since approximately 1989, and had been warmly embraced by the Jewish community in the Boston area and elsewhere. Daniel offered to publish Defonseca’s autobiography (App. P. 0003).
Daniel enlisted Lee, a French speaking writer, to ghostwrite Defonseca’s story, as Defonseca’s command of the English language was limited. To memorialize their understanding, Defonseca signed a collaboration agreement with Lee, intended to set forth the respective rights and obligations of the parties. Additionally, both Defonseca and Lee signed publishing agreements with Mt Ivy, in August of 1995 (App. P. 0003). Both publishing agreements contained provisions warranting, to the publisher, the truthfulness of the account(App. P. 0003-0004).
Following the execution of the various contractual agreements, Defonseca and Lee set about the business of drafting a manuscript. Over time, disagreements emerged between Lee and Defonseca regarding the scheduling of time to work together on the manuscript(App. P. 0004). During the same time frame, disagreements began to arise between Lee, Daniel, and Defonseca, regarding Daniel’s editorial dissatisfaction relative to the form, substance, and production of the manuscript(App. P. 0004). To ready the manuscript for publication, Daniel attempted to undertake fact checking, including verifying historical and descriptive details, researching historical events, studying the flora and fauna of geographical locations and investigating behavior of wolves in the wild, etc. The plaintiff also sent the manuscript to wolf experts, and to Jewish scholars and Holocaust experts for review(App. P. 0005).
Enthusiastic endorsements were returned from several luminaries, including the chaplain of Brandeis University, Rabbi Albert Axelrod, Noble Laureate and renowned Holocaust survivor, Eli Wiesel, Leonard Zakim, director of the New England region of the Anti-Defamation League, and the North American Wolf Foundation(App. P. 0005).
Defonseca’s account of her experience could not be subjected to standard verification and fact checking techniques, however, due to the absence of certain critical information, including, but not limited to the following:
a. To protect her from the Nazis, Defonseca reported that she did not know, and had never been told, her Jewish surname;
b. She had simply been called “Mishke,” and had never known her parents by any names other than "Gerusha,"(her mother, a Russian Jew), and "Reuven,"(her father, a German Jew);
c. Her parents were immigrants to Belgium, hiding out from the Nazis;
d. She did not know her place of birth, but represented that she suspected it may have been Poland.
(App. P. 0004)
In the course of her research, Daniel learned that, at times, Jewish children of the Holocaust lost their identities when their parents were taken away. Without the names, date, and place of birth of "Mischke," it was not possible for Daniel to check the personal aspects of the story(App. P. 0005).
The American book was published in April 1997, under the title, Misha: A Memoir of the Holocaust Years. The American edition, was followed shortly thereafter by a French version, published by Editions Laffont, under the title, Surivre avec les loups, (Survival with Wolves), the rights to which were reserved exclusively to Defonseca and Lee under their respective publishing agreements. Neither Mt Ivy, nor Daniel, had any input with respect to the French edition, other than to make several specific minor corrections requested by Laffont. Other foreign editions followed(App. P. 0005).
Two significant changes were made in the Laffont editions, and subsequent editions, the rights to which were controlled by Defonseca and Lee. Identifying photographs from Defonseca’s earlier life were removed, and the "false identity" of "Mischke" was changed from Monique DeWael, to Monique Valle(App. P. 0005).
Following the inception of the underlying litigation in May of 1998, until March of 1999, Defonseca represented herself(App. P. 0005). In the course of her self-representation, Defonseca filed a counter claim against Lee, contending that Lee had breached her collaboration agreement with Defonseca, and had engaged in other tortious conduct(App. P. 0005).
The counter-claim filed by Defonseca against Lee represented that Defonseca had complied with all of the terms of the collaboration agreement, including that the book was, "based on the author's life experience, accomplishments, and impact upon society"(App. P. 0006).
Additionally, Defonseca, acting pro se, filed a cross claim against Daniel/Mt Ivy, alleging, among other things, breach of contract(App. P. 0006). In the course of her self-representation, Defonseca intentionally, and systematically, filed pleadings with the Court that were materially false(App. P. 0007).
Even after the appearance of counsel on her behalf, on or about March 11, 1999, Defonseca continued to fuel a continuous and unconscionable scheme calculated to interfere with the judicial system's ability to impartially adjudicate the matter. This included perjured testimony at her deposition, and at trial(App. P. 0008-0009).
At the trial in the underlying litigation, the myth of Defonseca's persona as a Holocaust survivor was a central building block founded on Defonseca's perjured testimony, and propagated by her counsel(App. P. 0009).
Indeed, the book itself was introduced into evidence at trial, and was at the disposal of the jury to peruse, read, and contemplate during deliberation.Examples of Defonseca's calculated, perjurious, testimony, included:
a. That, as a Holocaust survivor, Defonseca was extremely sensitive to threats or false representations;
b. She was paid $2,000-4,000 for speeches given regarding her status as a Holocaust survivor;
c. That Defonseca is, "not very good at fighting people. I used to be with animals";
d. That Defonseca had to steal in order to eat during the war;
e. That Defonseca, during the war, had to kill to survive;
f. Regarding her parents, reported to have been taken by the Nazis and taken to a concentration camp:
"For me, having a movie, it is a memory as to my parents. And I hope that somebody in the world would say I have known them";
"Because a lot of survivors are old now. That is not so much left. And if it continues, I am going to have a lesser opportunity to find somebody, somewhere";
g. Regarding her encounter with wolves in a promotional event sponsored by Mt Ivy at Wolf Hollow in Ipswich, MA, "Those wolves are not the wolves I knew 50 years ago when I was a kid, innocent in the woods."
(App. P. 0008-0009).
The impact that Defonseca's status as a Holocaust survivor would have on the jury was not lost on Defonseca's counsel, Ramona Hamlin. In closing argument, she hammered home the point, arguing to the jury:
a. "And what was she trying to defend herself about? Her life story. The tragedy has already been visited on Misha, that's not in dispute. She lost her parents at 7 years old, and wandered through Europe unprotected for four years. That's not in dispute. That happened to her."
b. "All along the reason that Misha got involved in this project was that Misha wanted to write a book to make a memory for her parents. Misha wrote to Jane in December of 1997, 'Remember you said repeatedly that you wanted to make a businesswoman of me, and I didn't want to. I wanted this book as a memory.'"
(App. P. 0009).
Her false claims of writing her book to locate anyone who knew her parents in the Nazi Concentration camp were geared towards eliciting jury sympathy. The perjurious evidence, presented by Defonseca at trial, in concert with her counsel's propagation of same, yielded the desired result, a massive award in favor of Defonseca against Mt Ivy and Daniel(App. P. 0010).
In a twenty-four page, special verdict form, dated August 20, 2001, the jury found, among other things:
a. That Mt Ivy Press breached its publishing agreement with Lee;
b. That Mt Ivy Press breached its publishing agreement with Defonseca;
c. That Lee had performed her obligations under the publishing agreement with Mt Ivy Press;
d. That Defonseca had performed her obligations under the publishing agreement with Mt Ivy Press;
e. That Mt Ivy Press had breached M.G.L. c. 93A with respect to its business dealings with Defonseca;
f. That Mt Ivy Press had breached M.G.L. c. 93A with respect to its business dealings with Lee.
(App. P. 0304-0326).
An appeal was taken to the Appeals Court of Massachusetts, resting predominantly on the theory that the state law claims, involved in the underlying action, were pre-empted by Federal copyright law (17 U.S.C. Sec. 101 et. seq.). On May 17, 2005, the Court of Appeals, focusing solely on the pre-emption issue, affirmed(App. P. 0011).
At the time of trial, in August of 2001, there was no affirmative evidence available to Daniel that Defonseca's account was, in any way, shape, or form, false(App. P. 0011). During the pendency of the appeal, however, Daniel began to suspect, for the first time, that there may have been certain aspects of Defonseca's account that may not have been the literal truth(App. P. 0011).
Daniel began to look for concrete evidence, one way or another, regarding the truthfulness of the Defonseca account. Towards this end, Daniel contacted several genealogists, who informed her that, based upon the limited information available, they could offer no assistance in researching Defonseca's family history(App. P. 0011).
On or about June 2006, Daniel, in reviewing cartons of documents turned over to her by Mt Ivy's literary agency, post-trial, came upon a photocopy of a signature card for two of Defonseca's bank accounts. A Middlesex Savings bank account form contained the following information: name: Monique(Misha) Defonseca; date of birth 5/12/37; birthplace: Etterbeek, Belgium; mother's maiden name: Donville(App. P. 0012).
For the first time, Daniel had a hint that there may have been inconsistencies in Defonseca's autobiography, to wit, that Defonseca had claimed that she knew neither the place nor date of her birth, nor her family name. Utilizing the information, Daniel attempted to access vital records in Belgium. However, Belgium has a privacy law which seals all vital records, birth, death, and marriage, for 100 years(App. P. 0012).
Daniel also contacted two private detectives, in order to trace Defonseca's path of immigration to the United States in 1985. However, again, the subject records were sealed and unavailable(App. P. 0012). Daniel then went to the Federal archives in Waltham, MA to search the ships' passengers lists, without success. Daniel also ran the names Donville and Dewael through the database of Yad Vashem, a world-wide repository of names of more than three million Holocaust victims, without a match. Daniel also posted queries, to no avail, on various Belgium genealogical websites(App. P. 0012).
In July, 2007, Daniel began writing a book on the subject of the ten years of litigation associated with the Book and posting chapters as they were completed on the World Wide Web as a blog. Daniel introduced her Book by saying that the end of the story had not yet occurred and asked that anyone with knowledge of the missing pieces of the account contact her. In December, 2007, Daniel engaged the services of a private detective firm with operatives in Belgium, but was still unable to attain any further information regarding Defonseca's origins(App. P. 0012). In January of 2008, Daniel was contacted by Sharon Sergeant, a forensic genealogist, who had come upon her blog on the Internet. Ms. Sergeant offered to assist Daniel in her quest to garner information regarding Defonseca's genealogy and background. Sergeant learned that the book had been translated into 18 languages and made into a full-length feature film in French billed as a “true story.” Sergeant initially compared various editions of the book, particularly the French translation and observed two key differences: the “false identity” given to the orphaned “Mischke” by her “adoptive” family was changed from Monique DeWael in the Mt Ivy edition to “Monique Valle” in the French and U.K. editions, and the photographs of Defonseca’s childhood in the Mt Ivy edition had been removed from foreign editions(App. P. 0012).
Sergeant then searched various databases, including the Avotaynu database of seven million Jewish names, without a match on the names Valle, Donville and DeWael. She searched Jewish deportation records for a married couple with the first names Gerusha and Reuven and found nothing. Next, Sergeant, observing that there were many references to Catholicism in the book, as well as references to comic strips that had appeared in periodicals circulated in Catholic schools, decided to research Catholic baptismal records in Belgium. In the course of such research, Sergeant discovered that there was a maternity ward in a hospital in Etterbeek, the district in Brussels identified on Defonseca's bank record as her place of birth. Correspondingly, Sergeant obtained the services of a Belgian researcher who visited the Catholic parishes located in this district(App. P. 0012-0013).
Finally, the Belgian researcher located proof of Defonseca's true identity. A baptismal record for Monica Ernestine Josephine DeWael disclosed that she was born on May 12, 1937 in Etterbeek, daughter of Robert Henri Ernest DeWael, and Josephine Germaine Barbe Donville. The family's address on the baptismal certificate was in another district of Brussels, Schaerbeek. Subsequently, an elementary school was located in the same neighborhood as the DeWael family home in Schaerbeek. A week later, the school produced a record indicating that Monique DeWael had been a student at the elementary school in September 1943, right in the middle of her reported 3,000 mile journey(App. P. 0013). At long last, Daniel learned that the name “Monique De Wael,” the purported “false identity” given to Mischke in the Mt Ivy book was, in fact, Defonseca’s real name.
Daniel posted the two documents on her blog and contacted an outspoken skeptic of Defonseca’s story who had been posting his opinions on a Belgian blog, who then notified the Belgian press of the newly-discovered evidence. With the correct name, (DeWael, not Valle, as had been published in the French edition) the Belgian press was able to uncover even more evidence of Defonseca’s fraud(App. P. 0013).
On or about March 3, 2008, Le Soir, the leading newspaper in Belgium, published an account in which it was revealed that Defonseca's real father, Robert DeWael, had collaborated with the Nazis and turned over to them members of the Belgium resistance. Confronted with the irrefutable evidence, Defonseca acknowledged, for the first time, in a statement dated 2/28/08, that the memoir was a hoax. In her statement, approximately translated from the French, and reported in the Boston Globe on February 28, 2008, Defonseca acknowledged that every essential element of her autobiography was false(App. P. 0013).
Daniel spent several years working to ascertain whether or not Defonseca's memoir was truthful. It was only with the advancement of the internet, and the corresponding availability of worldwide networking and information access that the truth regarding Defonseca's true identity, and the corresponding magnitude of the hoax perpetrated by her in her memoir came to light(App. P. 0013).
Once again, once the hoax was identified, Daniel/Mt Ivy retained counsel and commenced suit, seeking relief from judgment, in accordance with Mass.R.Civ.P. 60(b), within thirty-nine days(App. P. 0024).
A. Standard of Review
When evaluating the sufficiency of a Complaint, pursuant to Mass.R.Civ.P. 12(b)(6), the Court must accept as true the well proven factual allegations of the Complaint, as well as any inference which can be drawn therefrom, in the plaintiff’s favor. Eyal v. Helen Broadcasting Corp., 511 Mass. 426, 429, 583 N.E.2d. 228 (1991). The Complaint should not be dismissed for failure to state a claim, unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Nader v. Citron, 372 Mass. 96, 98, 360 N.E.2d. 870 (1976). A Complaint is not subject to dismissal if it could support relief under any theory of law. Whitinistille Plaza Inc., v. Kotseas, 378 Mass. 85, 89, 390 N.E.2d. 243 (1979).
B. Reviewing the evidence in the light most favorable to Daniel/Mt Ivy and resolving all reasonable inferences in their favor, the trial court erred in determining that the plaintiffs could establish no set of facts that would entitle them to relief from judgment, pursuant to Mass.R.Civ.P. 60(b)(6).
In its opinion, the Court concluded that the plaintiff’s allegations of fraud, misrepresentation, and misconduct, on the part of Defonseca, fell within the parameters of Rule 60(b)(3), and, correspondingly, did not meet the criteria required for relief under 60(b)(6). Because Rule 60(b)(3) has a one year statute of limitations, the court determined that the claim brought by Mt Ivy/Daniel, was untimely, and, correspondingly, subject to dismissal. It is the position of the appellant, herein, however, that, if ever there was a case in which relief under Mass.R.Civ.P. 60(b)(6) must be permitted, this is it.
It is established law in Massachusetts that relief under Rule 60(b)(6) is limited to instances, “when the vacating of judgment is justified by some reason other than those stated in subdivisions (1)-(5),” Parrell v. Keenan, 389 Mass.809, 814, 452 N.E. 2d 506(1983). Here, the facts of this case clearly demonstrate that there is “something more” at issue than a simple fraud, misrepresentation, or misconduct of an adverse party, and, correspondingly, Rule 60(b)(6) relief is appropriate, and the one year limitation rule of 60(b)(1)-(3) does not apply. 11C.A.Wright, AR Miller & M.K. Kane Federal Practice and Procedure 2864 @350-351(2d ed. 1995)(Wright), “A judge, considering a Rule 60(b)(6) motion, may consider whether the moving party has a meritorious...defense...whether extraordinary circumstances warrant relief...and whether the substantial rights of the parties...will be affected by granting the motion.” Owens v. Mukendi, 448 Mass.66,72, 858 N.E.2d 734 (2006). In substance, Rule 60(b)(6) vests, “power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice.” Klapprott v. United States, 335 U.S. 601, 615 (1949). Allowance or denial of motions brought pursuant to Rule 60(b) are committed to the sound discretion of th trial court. Teamsters, Chauffers, Warehousemen, & Helpers Union, Local 59 v. Superline Trans.Co., 953 F.2d 17, 19 (1st Cir. 1992).
Each of the three factors to be considered by the Court, in Owens vs. Mukendi, supra, clearly line up in favor of allowance of the appellant’s motion. First, the appellant has a myriad of meritorious defenses that she was not able to advance at trial. Not only was the defense meritorious, but would have required either a ruling in favor of the plaintiff, as a matter of law, with respect to the breach of contract count, either by means of Summary Judgment or directed verdict. Specifically, both Defonseca and Lee warranted, in their contracts with Daniel/Mount Ivy Press, that the accounts given by Defonseca were entirely truthful. The specific language of the warranty provisions contained in the contract were as follows:
A. The Author represents and warrants to the Publisher that, with respect to the Work as submitted by Author, excluding revisions or additions by Publisher (i) the Work is not in the public domain; (ii) the Author and her collaborator are the sole and exclusive owners of the Work and have full power, free of any rights of any nature whatsoever in any one that might interfere therewith, to enter into this Agreement and to grant the rights hereby conveyed to the Publisher, (iii) the Work has not heretofore been published in whole or in part; (iv) the Work is original except for material in the public domain and such excerpts from other works as may be included with the written permission of the owners thereof; (v) the Work does not, and if published will not, infringe upon any proprietary right at common law; or any statutory copyright, or trade names, or patent, or trademark rights, or any other right whatsoever, (vi) the Work contains no matter whatsoever that is obscene, libelous, in violation of any right of privacy, or otherwise in contravention of law or the right of any third party; (vii) all statements of fact are true or based upon reasonable belief, except for facts and identities deliberately misstated to preserve confidentiality or for other valid reasons, provided the Author notifies the Publisher thereof (viii) the Work, if biographical or “as told to” the Author, is authentic, and (ix) the Author will not hereafter enter into any agreement or understanding with any person, firm, or corporation that might conflict with the rights herein granted to the Publisher (App. P. 0297)(Emphasis Added).
As the Court is well aware, a warranty provision in a contract is effective and enforceable, regardless of the state of mind of the parties at the time that the contract was consummated. Certainly, at this juncture, it is beyond dispute that Defonseca knew that she was violating the provision at the time that she executed the contract. It is not clear, without further discovery, whether Lee had similar knowledge. However, whether or not Lee knew of the falsity of the account at the time that the contract was effectuated, is of no consequence. Whether Lee knew, or didn’t know, the contract was nonetheless violated by Lee. Correspondingly, both Lee and Defonseca violated their respective contracts with Mt Ivy by providing a false autobiographical account to Mt Ivy.
Had the fact of the hoax been known at the time of this trial, the plaintiffs would have filed a motion for summary judgment with respect to the issue of contractual breach by Defonseca and Lee, and would have won that motion. The jury would have been instructed that, as a matter of law, it must find that Defonseca and Lee violated the warranty provision of the contract. Instead, the jury entered findings, at the conclusion of the trial, that Defonseca and Lee had, at all relevant times, complied with their respective obligations to Daniel/Mt Ivy under the two publishing agreements(App. P. 0010).
As such, Daniel not only had a meritorious defense, but an ironclad one against Defonseca and Lee alike, that would have guaranteed a different result at trial, had this information been known.
This is to say nothing of the effect that evidence of the hoax would have had on the remainder of the issues that played out at the trial of this matter. Without question, the entire testimony of Defonseca and of Lee with respect to their contractual rights and obligations regarding them would have been nullified had it been known that the fundamental premise of the case, i.e. the truthfulness of the account, was invalid. Certainly every piece of testimony that Defonseca and Lee offered at trial would have been negated.
This is not speculation. When one imagines a scenario in which the plaintiffs are caused to admit, at the outset of a trial, that the book which they submitted to Daniel/Mt Ivy Press was sheer fabrication, presented as fact, no reasonable person could believe that it would not entirely undermine their credibility and effectiveness as witnesses in other, collateral issues.
Moreover, the fact of the hoax would have fit like a puzzle piece into the defenses advanced by Daniel at trial. For instance, Daniel, who had a vested financial interest in promoting the book, contended that she met with resistance on the part of Defonseca to a multitude of efforts to promote the book, including, but not limited to, an appearance on the “Oprah” program(App. P. 0018). Given that “Oprah” is aired in Europe as well as the U.S.,it is easy to see, in retrospect, that the reason why Defonseca resisted many of Daniel’s efforts to heighten the profile of the book was that increased notoriety would have undoubtedly lead to greater scrutiny of the name change. It also explains Defonseca’s insistence of control of the French language edition of the book, wherein Defonseca changed the name De Wael to Valle, and identifying photographs were removed. Defonseca had a vested interest in limiting the information released in the European market, as she faced a substantially greater risk of being “outed” in that forum. In short, the more Daniel tried to push the book, the more reluctance she observed in Defonseca. The fact of the hoax would have bolstered Daniel’s testimony that many of the roadblocks encountered in the promotion of the book were laid by Defonseca herself and that, despite Daniel’s best efforts, those roadblocks, to a large extent, proved insurmountable.
The court must further ask itself, in addition to hard evidentiary matters, whether or not the underlying story, as related by Defonseca, and her counsel at the trial, impacted the sympathies of the jury, the trial court, and even the Court of Appeals. Defonseca’s account, contained in the book, which was provided as an exhibit to the jury, told a story of Jewish child whose parents were taken from her by the Nazis, set adrift in war-torn Europe. Hers was a story of tremendous suffering, but also of perseverance and triumph in the face of seemingly insurmountable odds.
How could any fact-finder not empathize with such a victim? How could any aspect of this trial proceed with any level of impartiality, given the fact that the centerpiece of plaintiff’s case was this victimized, yet heroic, woman? The reality is that no reasonable fact finder could conclude, looking back on this trial, that this did not play a substantial role in the jury’s filtering of the facts and evidence. We know that the story held sway with the Court of Appeals which commenced its opinion by stating:
"Shortly after the Nazis seized her parents, seven year old Misha Levy fled alone to the forests and villages of Europe, where she wandered for four years. Along the way, she witnessed atrocities, found herself trapped in the Warsaw ghetto, and killed a Nazi soldier in self-defense. Miraculously, she survived her ordeal, thanks to her strong will and guile, as well as, incredibly, the aid of a pack of wolves, who "adopted" and protected her, providing food, companionship, and affection. Needless to say, her story was compelling" (App. P. 0011).
If her story was compelling to the Court of Appeals, it surely was compelling to the jury in the underlying trial. Conversely, had the jury known that Defonseca had fabricated this hoax, trading on the horrific victimization of the Jewish people by the Nazis in the 1940s, their view, assessment, and evaluation of this witness would have undoubtedly swung in the opposite direction.
In summary, Daniel had not only strong, but unshakeable, legal defenses at the underlying trial that she was unable to advance. Again, these defenses apply equally to Defonseca and Lee. Lee, like Defonseca, as a matter of law, breached her contract with Daniel/Mt Ivy. A finding that Daniel failed to adequately promote the book would, in the eyes of the jury, have damaged not only Defonseca, but Lee. Moreover, the canonization of Defonseca, and demonization of Daniel, led to the inevitable conclusion that Daniel trampled not only Defonseca, but the purportedly innocent ghost-writer as well. Correspondingly, the first of the Owens’ factors is met.
The Court must now consider the second Owens’ factor, i.e., whether, “extraordinary circumstances warrant relief.” If ever there has been a case, in the history of Massachusetts jurisprudence, in which extraordinary circumstances exist, warranting the vacating of a judgment, it is this case. To be sure, there has been a grave miscarriage of justice visited upon Daniel as a result of the fraudulent conduct of Defonseca at trial. Defonseca fabricated a false Holocaust survivor story, ensnarled Daniel in its’ web, sued Daniel for failing to actively promote the hoax, and recovered a 32.4 million dollar verdict against Daniel, thereby financially ruining her. In effect, Defonseca utilized the Massachusetts court system as an instrument in a plot to profit from her deceit and duplicity, to the grave and irreversible detriment of Daniel. The impact upon Daniel can not be overstated. The judgment obtained by Defonseca and Lee was one of the largest jury verdicts in the history of the Massachusetts court system. A thirty-three million dollar verdict would be devastating to a large corporation, much less to an individual such as Daniel, and a small corporation, such as Mt Ivy. The harm which has come to Daniel, as a result of Defonseca’s actions, cannot be permitted to stand.
The extraordinary nature of this situation extends far beyond the impact which Defonseca’s hoax has had on this court system, and the underlying litigants, however. Should this Court place its imprimatur upon the judgment in this case, it will serve to diminish and corrode the legacy of Holocaust victims and survivors across the world. One cannot ignore the subject matter of Defonseca’s hoax. Put bluntly, Defonseca traded and profiteered upon one of the greatest human tragedies in recorded history, the Nazi persecution and victimization of the European Jewish population during the 1930s and 1940s. Defonseca, knowing that stories of Holocaust survivors are of great public interest and empathy, and, correspondingly, profitable and marketable, decided to proclaim herself such a victim. She and Lee made money on the backs of the true victims of the Holocaust, and then utilized this court system as a means to further capitalize upon her devious scheme. Furthermore, Defonseca’s memoir, subsequently revealed as fabrication, plays directly into the hands of those who would deny that the Holocaust occurred at all. As noted by Chuck Lane, a member of the Editorial Board of the Washington Post, and a teacher of a class on journalist fraud at Princeton University, in an interview with NPR on March 5, 2008: “There is a real harm though...when you have people faking documents about the Holocaust. Unfortunately, there are Holocaust deniers in this world, and that sort of fabrication...can really feed very pernicious views about the underlying truth about actual historical events.”1 Commenting on another false Holocaust memoir, “Angel at the Fence” Ken Waltzer, Director of Jewish Studies at Michigan State University stated, “Holocaust experience is not heart-warming, it is heart-rending. All this shows something about the broad unwillingness in our culture to confront the difficult knowledge of the Holocaust... All the more important then to have real memoirs, that tell of real experience in the camps.”
Never has this issue been more topical, given the recent statement of Bishop Richard Williams, denying the Holocaust generally, and the use of gas chambers specifically. This remains, sixty years after WWII, an issue of critical social importance.
Should this Court allow the judgment to stand, it would constitute an endorsement of Defonseca’s activities, heretofore described. Unquestionably, there will be far-reaching social and historical ramifications should this Court signal that Defonseca’s conduct, in some respect, was, and is, tolerable, or otherwise acceptable. This Court should not be complicit in the ratification and perpetuation of Defonseca’s scheme, which, ipso facto, cheapens and diminishes the legacy of Holocaust victims and survivors alike. On the other hand, should the Court decide to take the appropriate action, and revoke the underlying judgment, a clear message would be sent to the world at large, that the Massachusetts court system will not tolerate this abject affront to the historical and sociological legacy of the Holocaust.
Further, the ramifications of this case also implicate the interests of the publishing industry as a whole. As the Court is aware, there has been a proliferation of profitable hoax memoirs in recent years. In each of those cases, publishers, such as Mt Ivy, have been victimized by unscrupulous “authors” who warrant the truthfulness of their stories, but then produce a product which is created from whole cloth. As a matter of public policy, publishers and readers alike should be able to rely upon the representations of authors with respect to the truthfulness of the materials introduced into the stream of commerce. The integrity of the publishing institution is weakened and watered down each time a fabricated autobiography finds its way into a reader’s hands. Once again, should this Court allow Defonseca’s fraud to stand, it would undermine the legitimacy of the publishing houses which, across the world, invest money and take financial risk in introducing to the marketplace important autobiographical literature. The message that this Court would send, if it allowed Defonseca’s conduct to stand, would be that the Courts will endorse and embrace such falsity, so long as it is sufficiently well-concealed, that it is undiscoverable for years after the book has been introduced and the money made by the author. This represents yet another extraordinary aspect of the case, which must be considered by the Court, in determining whether or not equitable relief is due under these facts.
The third Owens’ factor is also met. The substantial rights of the parties will be affected by the granting of this motion. There will be substantial changes in the positions of the parties, as they now stand, as a result of the Court’s ruling in favor of the plaintiff on this matter. Indeed, this is entirely the point. As the Court in Klapprott, supra, observed, “in simple English, the language of the ‘other reason’ clause, for all reasons except the five particularly specified, vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice.” Indeed, the positions of the parties must change for justice to be served. The respective duties and obligations of the parties must be evaluated by a fact finder in full light of the truth. Only then can the appropriate liabilities be fairly assessed.
In summary, the Court of Appeals must ask itself, is there something more here? Respectfully, the appellant would submit that the facts and circumstances of this case extend far beyond what the trial court characterized as a “fascinating factual background”(App. P. 0397). The implications of allowing this judgment to stand have a wide reaching public policy impact that affects not only the party litigants, but the very core of the Massachusetts judicial system itself. It is easy to be swept away with the mechanical aspects of our justice system, and miss the forest for the trees. Generally, in the interest of finality, application of the rule should have meager scope. But, courts should keep in mind that the purpose of the rule is to accomplish justice. For that purpose, Courts may construe the rule liberally. Freitas v. Freitas, 26 Mass.App.Ct. 196, 198, 525 N.E.2d. 438 (1988). When the Court of Appeals looks at itself in the mirror, it cannot be satisfied that substantial justice has been accomplished in this case. Can justice truly be said to have been done, when Daniel was saddled with a 33 million dollar verdict in a trial in which the truth of the memoir was accepted fully by all: judge, jury, defendants? Can the Court of Appeals tell itself that it has served justice, when the writer of a fabricated Holocaust memoir prospered by virtue of a trial, using the mechanism of the Massachusetts judicial system, riding the falsity of those memoirs to the finish line? Can this Court of Appeals feel that it has done its job when the Massachusetts judicial system has been used as a pawn in an unconscionable scheme, to prosper on the backs of Holocaust victims, and on the manipulation of trusting readers? If this Court hesitates in answering yes to these questions, then it must look deeper in its analysis of whether this case truly presents, “something more” than garden variety fraud; implicating societal concerns that span far beyond the relationship of the underlying litigants. This court has the power, created by the legislature, to ensure that the right thing is done in this case. It is not the easy route. It is not the expedient route. It is, however, the step that the Massachusetts judicial system must take to wash its hands of the misdeeds that were perpetuated by the appellees, leading to an erroneous and unconscionable judicial outcome.
Indeed, Massachusetts courts have allowed relief from judgment in circumstances far less egregious than those that apply in this case. For instance, in Harvey & Sons v. North Works Properties Inc.,19 Mass. Law Rep. 82; 2005 Mass. Super. Lexis 59 (2005). The Superior Court, sitting in Worcester, vacated a judgment, utilizing 60(b)(6) because the amount of the underlying judgment bore no accurate relationship to the true damages sustained by the plaintiff. The Court, in that case, determined that it simply could not allow such an inappropriate judgment to stand, even though the conduct of the defendant in that case was a precipitating factor in the creation of the erroneous underlying judgment. The court, nevertheless, deemed it imperative to have an accurate measure of damages. The judgment was vacated.
Similarly, the Suffolk County Superior Court in Suffolk County Sheriff v. Afscme, 16 Mass. Law Rep. 511 2003; Mass. Sup. Lexis 223 (2003) vacated an arbitration award, because false testimony was given at an arbitration hearing. Based upon public policy concerns, the Superior Court vacated, utilizing Mass.R.Civ.P. 60(b)(6).
The same is true, also, of the Court of Appeals, which has affirmed Relief from Judgment entered by the trial court on some occasions, and imposed it on others. For instance, in Bowers v. Fordham Appeals of Marshfield & Others, 16 Mass. App. Ct. 29, 448 N.E.2d. 1293 (1983), the Court of Appeals overruled the trial court’s refusal to apply 60(b)(6) to vacate a judgment, in a case where the Court determined that a selectman for the town of Marshfield had entered into a consent agreement, with respect to which he lacked authority to bind the town. So too did the Appellate Division of the District Court reverse a trial court for failing to vacate a judgment, pursuant to Mass.R.Civ.P. 60(b)(6), in a situation where the record reflected that a consent judgment was improperly derived. See Duco Enterprises Inc., v. Apdelnour, 1994 Mass. App. Div. 103; 1994 Mass. App. Div. Lexis, 45 (1994). Similarly, the Appellate division of the District Court affirmed a trial court determination, to vacate, under Mass.R.Civ.P. 60(b)(6), a judgment that had arisen out of a respective transfer of a case, noting that extraordinary circumstances existed, because, “the award of damages exceeded the amount sought in the statement of damages...” See Nixon v. Petrell, 1993 Mass. App. Div. 1; 1993 Mass. App. Div. Lexis 1 (1993).
Additionally, in the case of Kniskern v. Melkonain, 68 Mass. App. Ct. 461, 862, N.E.2d. 440 (2007), the Court of Appeals upheld a trial court’s determination that a judgment needed to be vacated, under Mass.R.Civ.P. 60(b)(6), notwithstanding the lack of any effort, whatsoever, on the part of the individual against whom the judgment had been entered, thereby leading to such judgment, because the judgment, if allowed to stand, would be contrary to the exclusivity provisions of the Worker’s Compensation Act. Similarly, the appellate court in Winthrop Corp., v. Lawenthal, 29 Mass. App. Ct. 180 (1990), reversed a trial court decision, refusing to vacate a judgment, pursuant to Rule 60(b)(6), because an arbitrator was not armed with full information at the time that the underlying arbitration was undertaken. The Court held that it could not allow the judgment to stand, because it was, “left with the abiding conviction that justice has not been done with respect to the issue of legal fees, a matter of particular concern to the Court.” Here again, read fully, at the core of this decision, is the financial outcome to one of the litigants, that simply did not correlate to actual damages. If the unjust imposition of a few thousand dollars in attorney’s fees in the Winthrop case, can justify a vacating of the judgment in the Mass.R.Civ.P. 60(b)(6), what of a 33 million dollar judgment against Daniel here?
Thus, it is clear, that trial courts, and appellate courts, under appropriate circumstances, will vacate judgments, utilizing Mass.R.Civ.P. 60(b)(6), after one year, where justice so requires. When contrasted with these situations, in which it was determined that “something more” existed, because an inappropriate damage award was entered, or because the judgment conflicted with procedure, the case at hand has to be considered “something more, than something more.” Again, in addition to the social policy issues, the appellant herein has a 33 million dollar judgment against her, arising directly out of the fraud and malfeasance of Defonseca, the rewards for which were similarly visited upon Lee, whose financial interests were aligned with Defonseca’s throughout the trial. Thirty-three million dollars is a life destroying award. Daniel’s life has literally been decimated by virtue of this verdict. If other Appellate panels can determine when awards should be vacated, because, in essence, they do not correlate to the true amount of damages that should have resulted, then certainly this case must fall into this category.
C. The Trial Court failed to construe the evidence, and related inferences, in the light most favorable to the Appellants, when it concluded that the fact of the hoax had little or no impact on the outcome of the trial in the underlying litigation.
At the outset of its opinion, the Court acknowledges its obligation to construe the evidence in the light most favorable to the plaintiff, and to accept those allegations made by the plaintiff, in its Complaint, as true. Should not the trial court, in its analysis, have accepted the reasonable inference that the fact that the book, which was at the center of the trial, was a hoax, would have profoundly, and across the board, affected every aspect of the trial? Just as jurors are instructed not to discard common sense at the courtroom’s door, neither should the courts. No reasonable person could conclude that this information, if known to the jury, would not have profoundly affected the outcome of this trial. The entire event was colored by the notion that Daniel breached her contracts with Defonseca and Lee, a fact which, if the hoax were known, would have been an impossible conclusion for the jury to reach. The entire process was infected with the ill-begotten notion that Defonseca, victimized during World War II, was victimized again by an unscrupulous publisher. For the purposes of the motions brought by the defendant, and, in fact, in a real world analysis, the Court was required to accept the inescapable fact that the masquerade of deception as truth at trial not only impacted the trial, but drove the outcome thereof.
Further, the trial court’s presumption that the underlying trial was really all about the conduct of Daniel, within the framework of everybody’s belief that the memoir was truthful, is entirely misplaced. What we now know is that all the evidence against Daniel/Mt ivy on which the court predicated its findings of “egregious conduct”(App. P. 0066) was proffered by a de facto perjurer and a second party who stood to gain immensely from that perjury. Further, how can Daniel be culpable for failing to market a product that was, in truth, valueless? A memoir known to be false will generate no interest in the buying public, and thus has no market value. In fact, history has shown that a responsible publisher, upon learning of the falsity of a memoir, should take affirmative steps to ensure that the work is not marketed or sold at all. And so it was in the latest of false Holocaust memoirs, offered by Herman Rosenblat, “Angel at the Fence.” When Rosenblat’s account of his time in a concentration camp was proven false, the publisher, Berkeley Books, immediately cancelled publication of the book and demanded that the author and the author’s agent return all money that they received for the work. Daniel would have taken the same course, had she discovered the fraud at an earlier time. How can the underlying judgment be fundamentally sound as the trial court states in its opinion, when the building block of the financial losses claimed by the plaintiff in the underlying litigation was a memoir that, at its core, had no market value? Indeed, all would agree that the appropriate course for the publisher to have undertaken, once the fraud was discovered, was to immediately cease to market the book, and, most probably, as the publisher in the Rosenblat case did, demand restitution from the writer. There would have, and should have been, no profits from this book, so how can 33 million dollars in damages awarded Lee and Defonseca arise from a book which, had the facts been known, would not have made dollar one?
Further, it is clear that the jury, and later the trial court in its 93A decision, blinded with empathy, were willing to take huge leaps of faith, relative to the evidence in the underlying case. Without the benefit of any expert accountant testimony, judge and jury accepted without specificity that “monies” had been “misappropriated,” or “pilfered” by Daniel(App. P. 0060) without identifying the dollar amount of the monies, their source, the manner of pilfering and misappropriating(check, cash, other), any supporting paper trail, or any monies that were unaccounted for by Mt Ivy(App. P. 0060).
In short, both the jury, and, more distressingly, the trial court, blissfully accepted wildly speculative claims of loss, based upon entirely incompetent evidence, all in the name of doing “justice.” The proof is in the pudding, absent court/jury infatuation with the romance of Defonseca’s story, the staggering verdict in this case would be inconceivable.
D. The plaintiff is entitled to relief pursuant to Mass.R.Civ.P. 60(b)(6) because a fraud occurred on the court at an underlying trial.
Mass.R.Civ.P. 60(b)(6) specifically preserves to a litigant, a right to file an independent action in order to vacate a judgment based upon fraud upon the Court. “A fraud on the Court occurs where it can be demonstrated clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial systems’ ability impartially to adjudicate a matter by improperly influencing the trial or unfairly hampering the presentation of the opposing party’s claim for a defense.” Paternity of Cheryl, 434 Mass. 23, 35, 746 N.E.2d. 488 (2001). The doctrine embraces, “only that species of fraud which does, or attempts to, defile the Court itself, or is a fraud perpetuated by officers of the Court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.” Pena v. McGill Dev. Corp., 388 Mass. 159, 165, 445 N.E.2d. 1059 (1983).
It is axiomatic that there was rampant and unhindered perjury at the trial of this matter, offered by Defonseca. Indeed, the introduction of the book itself into evidence constituted the admission of perjurious evidence. Beyond the actions of Defonseca as a witness, however, the Court must consider her conduct while acting as her own counsel, pro se, in this action. From the inception of the underlying litigation in May 1998, until March 1999, Defonseca represented herself, filing pleadings, propounding and responding to discovery, and interacting with the judicial system as pro se counsel(App. P. 007). During this time frame, Defonseca filed numerous pleadings with the Court, which were patently false. While representing herself, Defonseca engaged in a pattern of filing false and fraudulent pleadings with the Court. For instance, in her Verified Answer, Cross Claim, and Counter Claim, filed by Defonseca, acting pro se, on 7/20/98, Defonseca affirmatively represented, in addition to other matters:
a. "...the work, Misha...is Defonseca's story.";
b. "Defonseca, who is a Holocaust survivor, is not only deprived of a well-deserved quiet and comfortable enjoyment of a job well done...";
c. "...that the defendant has fully performed all duties with respect to the relevant contracts...";
d. "...all actions undertaken by the defendant were undertaken in good faith, and any representations that may have been made by the defendant were true";
e. That Defonseca and Lee were to write and prepare a manuscript about the life of defendant, Defonseca, "during the Holocaust years...";
f. That the conduct of plaintiffs herein, Daniel, and Mt Ivy, "caused heightened stress, emotional distress, and pain on Defonseca, who is a survivor and, as such, is very sensitive to threats of misrepresentation, and to any tendency to downplay or sugar coat the events that happened during the Holocaust.";
g. That Defonseca had experienced, "emotional pain of reliving her story.";
h. That each of the foregoing paragraphs were personally reviewed by Defonseca and that, "said statements are true and accurate to the best of her knowledge and belief."
(App. P. 0006-0007).
The representations made by Defonseca were made under notary seal. In other pleadings, filed pro-se, she represented:
a. "all actions undertaken by Defendant in Cross Claim, Defonseca, while acting as her own counsel, and any representations that may have been made by the defendant in cross claim to the plaintiff in cross claim were true";
b. "to the extent that the Defendant in Cross Claim, Defonseca, owes any duties to Mt Ivy and Daniel, Defonseca has fully performed and fulfilled such duties or obligations."
(App. P. 0007).
Furthermore, Defonseca repeatedly filed pleadings with the Court wherein she represented, pro se, that she had, at all relevant times, complied with her obligations under the publishing agreement with Mt Ivy, a fact now known to be entirely false. She further filed sworn affidavits with the Court, prior to retaining counsel, indicating the following:
a. That she felt that she had been taken advantage of by Lee, and Daniel/Mt Ivy, with respect to her, "story...without any consideration or respect for what I went through, not only in my earlier life, but during this whole, grueling, and unnecessarily lengthy exercise of reliving my experience, to make the book in English...";
b. that "my story, and my image belong to me. It is my life. Nobody has the right to exploit or make money from it without informing me and paying my share of the revenues";
c. That Defonseca was "terribly stressed to have to go over it again";
d. That Daniel had failed to, "gracefully accept" that Defonseca's parents were taken in 1941, as reported;
e. That, due to the alleged failure of Lee, Daniel, and Mt Ivy, to live up to their contractual obligations, she was, "reduced to ask for the help of the Jewish Family & Children's Services for food, assistance";
f. That "Misha's story is not 'Sleeping Beauty's' it is war, a child in the middle of war, and inhumanity at this time";
g. “This interference caused heightened stress, emotional distress and pain on Defonseca who is a survivor and, as such, is very sensitive to threats of misrepresentation, and to any tendency to downplay or to sugar coat the events that happened during the Holocaust.”
(App. P. 0007-0008).
It is now irrefutable that these representations, made by Defonseca, while acting as her own counsel, were knowingly and intentionally false, and intended to inflict disease upon the judicial process and machinery itself. The trial court herein sets unsupported and dangerous precedent by concluding that pro se litigants do not have to follow any ethical protocols and, further, do not become part of the judicial machinery itself. Public policy objectives, and prior holdings, dictate otherwise. Massachusetts law maintains that, “while pro se parties are not subject to the specific professional canons of ethics, which bind members of the bar, they are, as obligated, at the very least, to refrain from any action which, ‘obstructs or degrades the administration of justice, or derogates from the authority and the dignity of the court...’” Reznik v. Friswell, 2003 Mass.App.Div. 42, 44, citing Avelino-Wright v. Wright, 51 Mass. App. Ct. 1,5, 742 N.E.2d.578 (2001). It is clear that Defonseca, acting as pro se counsel, in her own case, undertook steps which obstructed or degraded the administration of justice, and derogated from the authority and dignity of the underlying trial court. In effect, she had stepped into the shoes of the lawyer who would have otherwise been representing her, thereby incurring corollary ethical obligations. Just as would be the case if an attorney intentionally and systematically filed fraudulent and false pleadings with the Court, Defonseca undertook an attack, not only upon the opposing litigant, but upon the very machinery of the judicial system itself. This is a classic example of fraud upon the Court itself. Indeed, the Courts have not even required that the party initiating such deception be acting as his/her own counsel, but have found fraud upon the Courts based upon the conduct of the underlying parties themselves. The seminal case in Massachusetts with respect to the issue of fraud upon the Court, is Rockdale Management Co., v. Shawmut Bank, 418 Mass. 596, 638 N.E.2d. 29, citing Aoude v. Mobil Oil Corp., 892 F.2d. 1115 (1st Cir. 1989). The Court in that case found that the conduct of the litigant constituted fraud upon the Court. Specifically, the Court found, “Rockdale, in proffering a forged document, providing misleading answers to interrogatories, and giving false deposition testimony, to use the words of Aoude, ‘has sentiently set in motion an unconscionable scheme, calculated to interfere with the judicial system’s ability impartially to adjudicate the matter.’” The Courts have similarly found that the conduct of a litigant, acting in concert with his lawyer to undermine the judicial process, can also constitute fraud upon the Court. Britt v. Rosenberg, 40 Mass.App.Ct. 552, 554, 665 N.E.2d. 1022 (1996). Correspondingly, the Court should have concluded that Defonseca committed a fraud upon the Court while wearing many hats, and utilizing many procedural mechanisms. The icing on the cake, however, is that for many months, Defonseca undertook this fraudulent and deceptive conduct, designed to undermine and defile the judicial machinery itself, while acting as her own legal representative.
This court must determine whether it is prepared to make law that a pro se litigant has none of the ethical obligations to the trial court, as has an attorney. In other words, is this court prepared to say that, a person representing his or herself, inclusive of filing pleadings, and engaging in discovery has no ethical obligation to act, as an attorney would, in an ethical manner? Are we prepared to give a pass to a pro se litigant? The trial court is happy to do so. “Defonseca’s role as a pro se litigant did not vest her with some special court sanctioned position which would rendered her fraud ‘fraud on the court’”(App. P. 0407). When a litigant puts on the hat of an advocate for the trial court, he/she becomes part of the machinery of the judicial system. He/She is no longer just a party, but part of the very fabric of the system itself. To find otherwise is to undermine the sanctity of the judicial system. We cannot have a situation in which non-lawyer advocates and attorneys play by a different set of rules. Those individuals who act as a lawyer, interacting with the opposing counsel, filing pleadings, undertaking depositions and discovery, must have a concurrent obligation to do so in an ethical manner. When a pro se litigant makes a decision to represent him/herself, thereby becoming entwined with the machine of the justice system, that individual must be required to follow the same rules and ethics to which attorneys are bound. In this case, Defonseca, while acting as her own counsel, knew that the pleadings she was filing were patently false and that the positions that she was taking were unmeritorious. Under such circumstances, it is axiomatic that the machinery of the judicial system has been defiled. When advocates, lawyers, non-lawyer representatives, or pro-se litigants lie and cheat they poison our judicial system, such that the system can not properly function.
Further, the fraud which Defonseca perpetrated on the Court tainted the entire judicial process. As such, none of the resulting findings of the jury were trustworthy, be they related to findings for Defonseca or Lee. While the degree of Lee’s complicity is unknown, nevertheless, her own financial interests and the subsequent award against Daniel was inextricably tied to the fraudulent evidence introduced by Defonseca. This was one trial. If the machinery was defiled by Defonseca, so too was it flawed with respect to claims and defenses of Lee.
The appellant can not emphasize enough the importance which this Court plays in achieving the goal of this justice system, to ensure that the judicial machinery is utilized to advance justice, and not to inflict injustice on the parties. The appellees herein have argued that the passage of time has made the interest of finality paramount, and the disposition of justice subsidiary thereto. In fact, in this case, the opposite analysis is required. It is the passage of time, and the unjust enrichment enjoyed by the appellees herein, which compels judicial action to reverse this wrong. In this society, it is our goal to correct wrongs and injustices once discovered. Hence, when the publisher in the Rosenblat case discovered the falsity of the memoir which it has published, it promptly pulled the book from the shelves, such that further damage might not stem therefrom. So too must this judicial system not reward the misconduct of Defonseca, unjustly enrich Lee, and punish Daniel, in the name of judicial finality, because Defonseca was clever enough to conceal her duplicity for a substantial period of time. The trial court acknowledges that the implications of this case stem beyond the litigants. As such, the public policy message which this court will send in its decision is paramount. This is not an isolated incident of fraud by a party, but an issue which is having ever increasing ripple effects throughout our society. There are no two ways about it. If this court says, in the interest of judicial finality, that it will not correct a baseless 33 million dollar judgment, imposed upon Daniel, ethereby rewarding Defonseca and, potentially, Lee, for their malfeasance, and for trading on the Holocaust, then more of the same can be expected. On the other hand, if this Court puts its foot down, and fixes a wrong, so grievous and with such widespread impact, it will similarly send a message to the world that, the Massachusetts judicial system will stand up for what is right and just, whether it is seven years, or seventy years, after judgment.
By their attorneys,
JOSEPH M. ORLANDO, ESQ.
BRIAN S. MCCORMICK, ESQ.
Orlando & Associates
1 Western Ave.
Gloucester, MA 01930
CERTIFICATE OF COMPLIANCE
IN ACCORDANCE WITH M.R.A.P. 16(K)
I, Joseph M. Orlando, Esq., counsel for the Appellant herein, certify that the within Brief complies with all pertinent rules of Court, pertaining to the filing of such briefs.
JOSEPH M. ORLANDO, ESQ.
In a March 1999 article in The Boston Globe, “Holocaust victim” Misha Defonseca was quoted as saying that because of me (her publisher) she was so destitute she was reduced to eating dog food. Subpoenaed bank records later revealed that, just days before, she had withdrawn $10,000 in cash. That’s a lot of Alpo.
But the damage was done. That article, and similar others, will live in perpetuity on the Internet and to an unknown extent in people’s dim memories. “Oh, isn’t she the publisher that cheated those authors?” people say when they hear my name.
I have been living under a barrage of slime for more than a decade, and it’s extremely painful. The Defonseca/Lee slime machine lately has stepped up broadcasting their deliberate misinformation in an attempt to shore up the crumbling justification for their grotesquely huge verdict.
Just how grotesquely huge? Let’s look at the damages in my case compared with some other lawsuits.
My tiny publishing company and I were sued by two unknown authors for various breaches of contract. The two were awarded over $33 million in damages, plus all rights to a book that went on to become an international bestseller.
A couple of comparisons:
Thirty-three million dollars is the same amount as that awarded to the families of the deceased in the wrongful death suit against OJ Simpson for the brutal killings of his wife and her friend.
In a typical personal injury suit, a 39-year-old New Jersey psychiatrist and father of two died as a result of infection following a botched gall bladder operation. That suit settled for $4.6 million.
The huge damages in my case are a sure indication of what really influenced the proceedings: A tremendous outpouring of sympathy for two plaintiffs who played their parts very well. Misha Defonseca was an emotionally and physically crippled Holocaust victim. She appeared in court with an ankle-to-hip leg brace and a cane. Her fellow plaintiff was ghostwriter Vera Lee, a sweet little old lady. Both claimed they were cheated and exploited by their unscrupulous publisher. Together they presented a very touching, and very false, picture.
Their book, “Misha A Memoire of the Holocaust Years” was admitted into evidence and the judge and jury had an opportunity read it. Many people, including Elie Wiesel, described the story as “very moving” and certainly it had its effect on the outcome of the trial. The tone of righteous outrage that bristles from the 25 pages of the trial court’s Findings of Fact is worthy of the Nuremberg Trials.
And outrage about what, exactly? Money? Let’s look at the money.
Vera Lee’s lawyer admitted in his opening statement that I never took a salary; my compensation was to be the sweat equity I built up in the company. I worked on the Misha project from 1995 to 2001, five years with no pay.
In summer 1998, Vera Lee’s lawyer obtained a court ruling to have Mt Ivy’s earnings escrowed by the court. (At the end of the trial the court paid Mt Ivy’s escrowed earnings to Defonseca and Lee.) Just a year after publication of the book, with its income frozen, Mt Ivy was sinking under the weight of legal bills.
The court consistently twisted the financial evidence against Mt Ivy and me. For instance, the court acknowledged in its Findings that I had loaned the company money. I testified that I had loaned $17,000 more than I was reimbursed. Defonseca and Lee offered no rebuttal. Yet the court found that my loans to cover legal fees (incurred because of Defonseca’s and Lee’s lawsuits) were an indication that Mt Ivy was an under-funded, “sham” company.
All earnings, including foreign earnings held in a foreign account, were duly reported in the royalty statements that were admitted as trial exhibits. Back-up records of all earnings, including the foreign income, were attached to the royalty statements. Yet the righteously indignant trial court dismissed it all, saying Mt Ivy “refused to provide accountings.”
The royalty statements speak for themselves. You’ll notice, if you check his public statements, Lee’s attorney never says he discovered unreported earnings, although that is what he clearly implies. “She diverted revenues to an offshore bank account which we did locate,” Mr. Frisoli says in an interview for WCVB’s Chronicle.
The truth is, what he located was the foreign bank where the foreign earnings (which he knew about from the royalty statements) were deposited. Having all but killed Mt Ivy, Mr. Frisoli was frustrated that he couldn’t finish the job by attaching those remaining funds, thereby destroying our ability to mount a legal defense.
Today, the Defonseca/Lee camps continue to beat the drum of moral outrage by citing other incongruous findings from the trial court. Vera Lee’s lawyer has told the media that Misha and his client were never paid. “She [Jane] didn’t pay royalties,” he says, over and over.
What he doesn’t say is that before the trial, a different judge three times upheld Mt Ivy’s contractual right to withhold royalties pending determination of whether the co-authors failed to meet their obligations. (The trial court, in its ire, simply disregarded the previous court’s repeated rulings and found that Mt Ivy had “no legal or legitimate basis for withholding royalty payments.”)
Mr. Frisoli also has publicly stated that Mt Ivy’s foreign bank account held funds from the sale of movie rights. This is pure fabrication, and he knows it. “Daniel placed ‘hundreds of thousands of dollars’ from book and movie sales in a [foreign company,]” he told a reporter for the Milford Daily News.
As a matter of fact, the only reference to hundreds of thousands of dollars in the Findings of Fact is the money discovered in Defonseca’s bank accounts. (See below.) Apparently, Mr. Frisoli is not satisfied with the trial court’s damning (though unsupported) findings against Mt Ivy; he is now manufacturing his set own set of findings and attributing them to the court.
Another example: Contrary to Mr. Frisoli’s statements that the court found I had “stolen” money, nowhere in the Findings of Fact does the word “steal, stole or stolen” appear. (Note to the next reporter to cover this story: Please ask Mr. Frisloli to show you where in the Findings of Fact the court says what he says it says.)
Mr. Frisoli’s casual attitude toward the truth is not limited to financial matters. During last summer’s hearing, when my lawyer explained to the court that Defonseca had publicly confessed that her story was false, Mr. Frisoli sprang to his feet to defend her. “She didn’t say she lied,” he protested. He then explained that she suffered from recovered memory syndrome, like a child who was sexually abused.
There’s no question that the language of the trial court’s findings was scathing. But if you look for the substance behind the rhetoric, it’s not there. For instance, the trial court found that Mt Ivy and I “used breaches of contract as a lever to misappropriate funds” and “fraudulently pilfered monies” [owed to Defonseca and Lee.]
The vagueness of this language evades the fact that a prior court three times held that NO royalties were due to Defonseca and Lee pending resolution of the lawsuit. We acted in accordance with multiple rulings of a prior court, and were slammed by the trial court for doing so. As for “fraudulently pilfered”, “pilfer” is not a term of law. (The dictionary says it means to “filch a small amount.”)
Here’s my point: The trial court offered no details to support a finding of fraudulent pilfering or misappropriating. This is what the trial court did:
THE TRIAL COURT DID SAY I MISAPPROPRIATED “FUNDS” OR “MONIES.” THE TRIAL COURT DID IMPOSE A $33 MILLION VERDICT.
One would think a judgment of that impressive size would require a proportionally thorough explanation of the evidence and the facts that supported it. It didn’t happen. This is what the trial court didn’t do:
THE TRIAL COURT DID NOT IDENTIFY WHICH “MONIES” WERE MISAPPROPRIATED, HOW MANY DOLLARS THAT REPRESENTED, THE SOURCE OF THOSE MONIES, WHEN THEY WERE TAKEN, ANY SUPPORTING PAPER TRAIL, OR THE FORM (CASH? CHECKS?) IN WHICH THE MONIES WERE MISAPPROPRIATED. THE TRIAL COURT DID NOT IDENTIFY ANY MISSING MONEY.
The reason for these critical omissions in the trial court’s findings is this:
THERE WAS NO MISSING MONEY.
All earnings were accounted for. No money went to me except for repayments of loans.
(Note to the next reporter to cover this story: Please do your fact checking. Ask Mr. Frisloli to supply documentation for all his statements. As for me, I would be more than happy to provide back-up for everything I’ve written here.)
Misha Defonseca testified at trial that she was impoverished because of her publisher, causing her to lose her home. The trial court found that Defonseca’s home was foreclosed.
Public records, however, prove the Defonsecas sold their home for a profit shortly before the trial. And although Defonseca bypassed the usual reporting mechanisms by having royalties from the French translation direct-wired into her bank accounts, subpoenaed bank records told even more of the story. From the Findings of Fact:
“The Defonseca’s three bank accounts reveal deposits between December 1996 and February of 2000 of over $243,700. The evidence never made clear how, notwithstanding that amount of deposits, the Defonsecas were claiming financial hardship, such that their home was foreclosed upon in 2001.”
The evidence WAS clear: Misha was NOT impoverished. Maurice Defonseca himself testified that Misha earned over $150,000 directly from publication of the American book. The finders of fact, however, were so intent upon reaching their pre-determined destination that they galloped over a mountain of irrefutable evidence that was right in front of them.
In his opening statement of the trial, Mr. Frisoli told the jury, “Follow the money.” He dropped that line from his closing, but let’s take his advice anyway:
The trial court found that “Mt Ivy declined to promote the Work on the Oprah Winfrey Show…in a wrongful attempt to gain all rights to Defonseca’s story.” Further it found that, had Mt Ivy properly promoted the book, Defonseca would have earned $1 million, and Lee half a million dollars, in royalties.
Thus, according to the royalty schedule in the Publishing Agreement, Mt Ivy’s share of the total earnings would have been over $8 million. In other words, the trial court found that Mt Ivy intentionally walked away from $8 million for — WHAT REASON!?! The court never explains how an appearance on the Oprah Winfrey Show could have had any effect on the rights to Misha’s story.
Today, we know for sure why the Oprah show never happened, and it had to do with Misha’s hidden agenda, not Mt Ivy’s. The real reason Misha didn’t go on Oprah was tied to her need to kill the American book. (More on that coming soon.)
There’s one more money issue I want to address: People often ask, What happened to the $33 million?
The answer is: There WAS NO $33 million.
That amount is what was determined to be the VALUE of the DAMAGES (monetary and otherwise) incurred by Defonseca and Lee because of their publishers’ “extremely egregious” conduct. The jury imposed $11 million and the court trebled it to over $33 million — a number that, we now know, was awarded for a pack of lies.
STAY TUNED …
For eleven years, my reputation has been dragged through the mud by people who practice Lee Atwater-style slime-slinging for their own financial gain. I will have much to say on this subject in the coming weeks, but I’ll start here.
In time, certain truths become self-evident. With the exposure in 2008 of the Defonseca/Lee Holocaust memoire hoax, the $33 million judgment the co-authors obtained against their publishing company and me appears even more bizarre, and all kinds of questions remain unanswered.
Three prominent memoire hoaxes were exposed last year, the Misha Defonseca/Vera Lee hoax “Misha A Memoire of the Holocaust Years” (a.k.a. “Survival with Wolves”), the Margaret Seltzer/Jones hoax, “Love and Consequences,” and the most recent to come to light, “Angel at the Fence” by Herman Rosenblat. All were successful before they were debunked.
Two of the three were set against the background of the Holocaust, and for a reason. More than sixty years after it ended, the Holocaust lingers on as a highly charged emotional current in our collective consciousness. Thus, to a storyteller, the Holocaust is a powerful dramatic device. Misha’s tale of a child searching for her lost parents and living with wolves in the forest would have been far less compelling had it been set in uneventful times and billed as a work of fiction.
Rosenblat’s account of a little girl who threw him apples over the concentration camp wall, whom he met up with years later and married, would have been humdrum if the setting had been peacetime and the wall had been that of a tough boarding school.
The Holocaust is a lens through which ordinary events, silhouetted against incomprehensible human suffering, rise to the kind of high drama that illuminates the heart of darkness. So powerful is the Holocaust to deeply move us that Oprah called Rosenblat’s the “most beautiful love story” she had ever presented in her 22 years on television.
Last summer I was back in court on a complaint, based on Misha Defonseca’s fraud on the court, to overturn the $33 million judgment against me. The outcome was yet another shocking moment for me. Judge Feeley ruled that the fact that Misha Defonseca lied to the court in representing herself as a Holocaust survivor did not prevent me from receiving a fair trial.
For many observers, this notion flies in the face of what is intuitively obvious. For me, it flies in the face of reality; I was there: At trial, I was depicted as the publisher who heartlessly exploited a Holocaust victim by, among other things, causing her to be so impoverished she lost her house to foreclosure. In fact, public records indicate she sold her house for a profit shortly before the trial.
But that was just one lie; the trial was built on a mountain of lies. In the same week that she told The Boston Globe she was eating dog food because of her publisher, subpoenaed records indicate Defonseca withdrew $10,000 in cash from one of three bank accounts. At the time of trial she had earned over $150,000 directly from publication of the American book.
This information was presented; the jury simply disregarded it. The immense sympathy and credibility afforded Misha as a Holocaust victim supported the characterization of me as a Nazi-like villain. Every lie Misha told was accepted as absolute truth — and Misha lied about EVERYTHING, especially the money. (I’ll deal more with the money issue in a later post.)
Vera Lee (the self-described ghostwriter) benefited from the reflected pathos of Misha’s victimhood. Despite the absence of any such requirement in any contract, the jury affirmed Lee’s claim that she was entitled to have her name on the cover of the book. (Huh? you say. Isn’t a ghostwriter supposed to be invisible? Yep, that’s what the dictionary says, too.) The jury awarded Lee $2 million for not getting her name on the cover (though she was given attribution inside the book); the judge trebled it to $6 million!
There were other similarly incomprehensible findings that resulted in more huge monetary awards, totaling over $33 million. I have no doubt that the jury and the court, in handing down that judgment against me, believed they were driving a stake into the heart of darkness and righting sixty-year-old crimes.
During the hearing last summer on my action to overturn the judgment, Judge Feeley, discussing the enormous monetary awards to Lee and Defonseca, questioned whether the memoire’s value was diminished by its being a hoax. Lee’s attorney argued that the value was unaffected and thus the damages were appropriate and should stand.
There’s no need for speculation here; there’s a track record of the fate of recent hoax memoires. The fact is: A hoax has no value to a publisher. For instance:
° Binjamin Wilkomirski’s Holocaust memoire “Fragments,” winner of the 1997 National Jewish Book Award, was recalled by its prestigious Jewish publisher, Shoken Books.
° Penguin (twice burned by hoaxes) recalled Seltzer’s book and canceled publication plans for Rosenblat’s book.
° Random House recalled James Frey’s hoax, “A Million Little Pieces,” and offered purchasers a refund.
° The French feature film “Survivre avec les loups,” based on Defonseca’s scam memoire, was canceled all over Europe.
It’s not clear what, if anything, Vera Lee contributed to the actual manufacture of the hoax from which she profited so immensely. The question was not raised in the lawsuit because the book was not then known to be a fake. Lee was the first to record Misha’s “memories” and organize them into a narrative. What can be said is that, in her role as ghostwriter, she had the means and the opportunity to be complicit. Here is an excerpt from the trial transcript of Lee being questioned by her own attorney:
Question: Were there any gaps in Misha’s memory?
Vera Lee: Oh, yes.
Question: Are there gaps in the book?
Vera Lee: I don’t think so. No.
Question: So you listened to Misha and filled in the gaps yourself and said to Misha, Does this sound accurate?
Vera Lee: Yes.
Vera Lee has made contradictory statements to the press regarding her role in the creation of the book. In 2001, soon after the trial ended, she told The Boston Globe, “There were doubts, but so much seemed credible that I couldn’t just throw doubt on the whole thing.”
In March 2008, after the hoax was revealed, she said, “Misha always said that this was the truth as she recalled it, and I trusted that that was the case.”
In several interviews she says that she was so “worried” by Misha’s story that she consulted someone (whose name, she says, she can’t remember) at Facing History and Ourselves, the nonprofit that develops Holocaust curricula for schools. She has said she informed me of her concerns, but I brushed them aside.
Disney optioned the dramatic rights with the understanding that the book was based on a true story. Questions about authenticity, however, likely would have led to the demise of the project, along with prospects of fame and fortune for the authors. So there’s an issue around Vera Lee’s motives: Would she have done whatever it took to get her name on the cover of a book that was associated with Disney?
In legal matters; there are records of everything. In this case, there are four, 4-inch-thick binders of trial exhibits containing several hundred pages of documents, including dozens of pages of correspondence between Vera and me.
I’ve been through all of those documents in the course of writing “Bestseller! There is no record of Vera Lee alerting me to her concerns about Misha’s truthfulness. But don’t take my word for it; I suggest the next reporter who interviews her might ask for concrete evidence, such as one of those stamped trial exhibits, of her oft-repeated concern for the truth.
At the moment, Vera Lee continues her relentless efforts to collect money awarded to her for a hoax book. She has said “it’s not about the money,” and recently, she offered her altruistic reason for continuing to pursue me in court. “I’d like Daniel to be stopped. I wouldn’t like to see others drawn into her net.”
How kind of her.
—MORE TO COME