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Act 11: I Refuse the New Conditions

On August 24, 2001, I replied to Ms. Greenberg's "agreement" via email. Here's what I said.

In regards to the fax you sent me yesterday: I have not agreed, I do not agree, and I will not agree to sections 1d and 1e. Specifically:

  • I shall NOT refrain from making any public comments, on the Internet or otherwise, about TCI or its principals, agents, or property, and...

  • I shall NOT keep the terms of our agreement confidential, and I shall NOT refrain from disclosing the terms of our agreement to third parties.

More to the point, I can't tell you how surprised and disappointed I am by your attempt to modify the terms of our agreement, which YOU proposed, and to which we both agreed. You sent me an offer on August 16, I sent you an acceptance, the agreement contained consideration on both sides - we had (and have) a contract. I will not engage in post-agreement negotiations. Under no circumstances will I agree to any conditions other than those which you originally stipulated and to which we both agreed.

Furthermore, because I now have no confidence that you intend to honor our agreement, I will not remove the website, nor will I release the domain names to you, nor will I process any paperwork, until you pay me $1,000, the sum upon which we have already agreed. I am insisting on this procedural change because, once I release the domain names to you, I have no reason to believe that you will pay me without first insisting on even more new conditions - and at that point, I will have absolutely no leverage with which to motivate you to honor the commitment which you have already made.

Also: I take exception to the wording of your first "whereas," which might be construed as an admission on my part that I have violated your trademark rights. I make no such admission. I would like to see that paragraph amended along the lines of "...which allegedly incorporate..." or "...which, TCI maintains, incorporate..."

So, here's where we stand:

  • I will sign an amended agreement that (1) excludes the sections you added, (2) states that I am not expected to take any action whatsoever until after I am paid, and (3) amends the paragraph that implies an admission of trademark violation on my part.

  • Once I receive your check, I will remove the website as quickly as possible, and I will expeditiously process any paperwork that you send me to effect the domain transfer processes.

I insist that you honor our original agreement. If you do not intend to do so, then I look forward to seeing you in court.

After she received my email, Ms. Greenberg called me, and we had a pleasant but totally unproductive discussion. She insisted that we did not have an agreement, while I insisted that we did have an agreement. She claimed that the new material in the "agreement" she sent me simply represented details that had to be worked out; she told me that she had been in many situations like this, and that "the devil is in the details." I maintained that the new material introduced brand-new conditions that we had not previously discussed, and as such could hardly be classified as "details" – which would be clarifications of existing material, not the introduction of entirely new conditions. (I remember saying that, under Ms. Greenberg's definition of "details," I could claim that I wanted them to buy me a condo in Vail as part of our settlement – and that it wasn't a new condition, it was just part of the process of working out the details. I keep checking the mail for the deed to the condo, but it hasn't shown up yet, so I guess that Ms. Greenberg didn't go for it.)

Ms. Greenberg also maintained that a "confidentiality" clause is pretty standard in cases like this (which it well may be) – and that at any rate, it was so important to Taubman that no settlement was possible without it. I would have to say that, if this issue is so critically important to her client, she wasn't representing her client very well by making me an offer that didn't even touch on this issue. But the way I look at it is that it's not my problem, it's an issue between her and her client. I'm not a mind reader, all I knew about her offer at the time I accepted it was what she wrote down in black and white. It's unfortunate if she left out something important, but again: That's not my problem!

While she had me on the phone, Ms. Greenberg asked if I would agree that I had been "served" by the copy of the Complaint that she had sent me on August 7, 2001. She said that if I didn't agree, she would have to hire a process server, and that I would have to pay for the service. It seemed pointless to argue, so I agreed. Now I wonder if I was suckered. Is it true that the "servee" has to pay for the service, or would Ms. Greenberg and her client have had to pay the process server?

I have no idea what the implications of "accepting service" are, but it must be important, because she followed up our phone conversation with this letter.

Dear Hank:

This confirms our telephone conversation today in which we confirmed that you have accepted service of the complaint filed in the above-referenced action, and that you are not represented by counsel in this matter.

Please have your attorney contact me if you do retain counsel.

Very truly yours,
Julie A. Greenberg

View the Original Letter (in a separate window)

In addition to the "service" issue, Ms. Greenberg also seemed to be very interested in the subject of my legal representation (or my lack thereof). I don't know if she (like every other lawyer to whom I've spoken) was simply warning me that I'm foolish for representing myself, or if it's just that dealing with an unrepresented party (or, perhaps, with me personally) is a real pain. (I suspect that lawyers like to deal with other lawyers, who know what they're doing, rather than with people like me, who don't.)

A few days after my conversation with Ms. Greenberg, I received a call from Ari Charlip, an attorney who works for the Taubman Company. As was the case with my earlier conversation with Ms. Greenberg, this discussion was pleasant, but not fruitful. Mr. Charlip seemed a little miffed toward the end of the conversation – I got the feeling that he had expected that, as two reasonable people, we should be able to come to terms, and that he felt that I was simply being stubborn. "We'll see you in court," were his last words. (I didn't know lawyers really talked like that, I thought that was just on TV...)

By the way, a curious issue came up during my conversation with one of the lawyers, I don't remember which one (it may have been both). I was told that the reason that Taubman was so insistent that I could not reveal the terms of our settlement was because they were afraid that, if word got out that they had paid $1,000 to recover a trademark-infringing domain name, droves of extortionists would line up to register similar domain names in hopes of ending up with some of Mr. Taubman's hard-earned cash. I remember saying that I thought their fears in this regard were way overblown. And the fact is, since they knew that I was going to use the "sucks.com" websites to publicize this story if they proceeded with litigation, they must have realized that the best way to ensure that the most people knew that they had offered me $1,000 was not to pay me. So, now you know. If this knowledge inspires you to attempt to extort money from the Taubman Company, please let me know how it works out. (That's a joke!!)

Next: Taubman Moves for an Injunction

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