Archive/File: holocaust/usa/ihr thompson.suit Last-Modified: 1995/04/30 STATE OF INDIANA I

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Archive/File: holocaust/usa/ihr thompson.suit Last-Modified: 1995/04/30 STATE OF INDIANA IN THE MARION COUNTY ________ COURT CIVIL DIVISION COUNTY OF MARION CAUSE NO. LINDA THOMPSON and AMERICAN JUSTICE FEDERATION, Plaintiffs, v. WILLIS CARTO, ANN CRONIN, LIBERTY LOBBY, INC. and PAGE DESIGN CORP. Defendants. COMPLAINT [As amended] COME NOW THE Plaintiffs, Linda Thompson and American Justice Federation, and for their cause of action against the defendants states: 1. The Plaintiff is a resident of the State of Indiana; 2. The Defendants, Willis Carto, Ann Cronin, and Liberty Lobby, have conducted business by telephone and mail with the plaintiff in the State of Indiana, soliciting business with the plaintiff, establishing contacts sufficient to subject them to the jurisdiction of the State of Indiana; 3. LIBERTY LOBBY is a corporation that publishes a newspaper known as "The Spotlight," which is distributed throughout the United States by mail, including within the state of Indiana and has a circulation of approximately 100,000; 4. LIBERTY LOBBY has also placed advertisements in an Indiana magazine, Media Bypass, owned by defendant Page Design Corp. 5. Plaintiff Linda Thompson is the producer of two videotapes, "Waco the Big Lie," and "Waco II, the Big Lie Continues." American Justice Federation is the copyright holder on both productions, and Linda Thompson is the joint copyright holder. 6. On or about February, 1994, Defendant Liberty Lobby ordered 300 copies of the videotape, "Waco, the Big Lie Continues" (hereinafter "Waco II") at wholesale prices. 7. On or about April, 1994, Plaintiff learned that Liberty Lobby was advertising these Waco tapes for sale on its radio programs, which reach a worldwide audience several times a day, and in various magazines and with a certainty, had sold copies of the tape far in excess of the 300 copies purchased, based upon comparable advertising and sales of others in same or similar markets. 8. On or about April, 1994, Plaintiff learned that Liberty Lobby was also advertising and selling "Waco II, the Big Lie Continues" and had never ordered any copies of this tape whatsoever. 9. There is no authorized distributor from which Liberty Lobby could have purchased "Waco II, the big Lie Continues" other than the American Justice Federation. 10. In February, 1994, Willis Carto sent a letter to American Justice Federation offering to pay a token amount for the Waco tapes that were produced by Liberty Lobby, which offer was immediately rejected; Linda Thompson contacted Willis Carto and Ann Cronin and demand was made for payment of $8.00 per tape, based upon the ordinary wholesale price of $10.00, less the cost of the raw materials (tape cassette and labels), which would be the ordinary amount received had Liberty Lobby purchased tapes from Linda Thompson or American Justice Federation, which Liberty Lobby knew from its original purchase of 300 tapes. Liberty Lobby failed and refused to pay this demand. In subsequent discussions, Linda Thompson agreed to accept $6.00 per tape; however, no payment has been forthcoming and Liberty Lobby has failed and refused to pay for even the 4,000 copies it admitted it had sold as of February of 1994. 11. Ann Cronin at Liberty Lobby was contacted by telephone by Linda Thompson in March, 1994, about these advertisements and sales; she advised the Plaintiff that Liberty Lobby was producing its own copies of the tapes and had "sold about 4,000" Waco II's as a result of advertising Waco I and several thousand Waco I tapes. Ann Cronin admitted that she knew Liberty Lobby did not have permission to reproduce these tapes but claimed Liberty Lobby was reproducing the tapes because delivery was "too slow," from American Justice Federation. 12. Plaintiff advised Ann Cronin that Liberty Lobby did not have the right nor permission to produce either of these tapes and to cease and desist. 13. Subsequently, Plaintiff learned that throughout the year and as late as August of this year, Liberty Lobby continued to advertise the sale of the Waco tapes on not only its own radio programs and in its 100,000 person-circulation newspaper, the Spotlight, but in magazines throughout the country, including Media By Pass Magazine. 14. Prior to the publication of the June issue of Media Bypass Magazine, in which an advertisement by Liberty Lobby for the sale of Plaintiff's tapes appeared, the owners of Media Bypass Magazine, representatives of Page Design Corp., had personally visited the offices of Linda Thompson and American Justice Federation and during the visit, discussed potential advertising by American Justice Federation for the Waco tapes in Media Bypass magazine. 15. The owners of Page Design Corp. and Media Bypass magazine knew with a certainty that Liberty Lobby did not own the tapes it was advertising; however, Media By-Pass Magazine ran the advertisements for Liberty Lobby, selling the Plaintiff's tapes, anyway. Media By-Pass Magazine was distributed throughout Indiana the month of June. This was only one advertisement of several that were run by Liberty Lobby, as "Liberty Library," from January through June of 1994. 16. Based upon average sales and upon the amount admitted sold by the Defendants in less than 30 days, Plaintiff believes Liberty Lobby has now sold in excess of 40,000 copies of Waco II, the Big Lie Continues and in excess of 40,000 copies of Waco, the Big Lie. 17. The only way in which the Defendants could reproduce copies of the Waco tapes was to copy them from a retail VHS copy they obtained from some source other than directly from the Plaintiff or through subterfuge. 18. All copies of Waco I and II were plainly marked on the outside labelling and at the beginning and end of the tapes themselves as copyrighted; 19. All retail VHS copies of Waco II also had a special copy protection put on these tapes to defeat copying which would require an intentional and knowing use of a device to override and defeat the copy protection, in order to make a copy. 20. No Defendant ever requested nor received a master 3/4" (non-VHS) "master" tape from which to reproduce copies of these tapes and at no time did the Defendants Liberty Lobby have permission to reproduce these tapes. 21. Adding insult to injury, Liberty Lobby wrongfully appropriated the names of the Plaintiffs and telephone number of American Justice Federation in association with its advertisements, without permission, thereby subjecting Linda Thompson and the American Justice Federation to scorn and ridicule by this association, and resulting in the Plaintiffs being labelled as an "anti-Semitic" group as a result of the association with Liberty Lobby, which has caused the Plaintiff, Linda Thompson, much personal humiliation, pain and suffering and damage to her reputation in the community and damage to the reputation of the American Justice Federation. 22. The appropriation of the names of the Plaintiffs was for the commercial purposes of the defendants and also to confuse the name and reputation of the American Justice Federation throughout the world by association with Liberty Lobby. COUNTS I and II - Theft 23. The Plaintiffs incorporate paragraphs 1 through 22 of the complaint as if fully set forth herein; 24. The copying of the tape Waco I constituted a knowing and willful theft of the work and work product of Linda Thompson and American Justice Federation. 25. The copying of the Waco II tape constituted a knowing and willful theft of the work and work product of Linda Thompson and American Justice Federation. 27. The Plaintiff sues the Defendants Liberty Lobby, Willis Carto, and Ann Cronin, jointly and severally, in the amount of $ 240,000,00 for Waco I and $240,000,00 for Waco II, all totalling, $480,000.00, based upon $6.00 per tape for the sale of an estimated 40,000 copies of each these tapes (80,000 copies total). COUNT III - CONVERSION/TREBLE DAMAGES 28. The Plaintiffs incorporate paragraphs 1 through 27 of the complaint as if fully set forth herein; 29. The copying of the Waco tapes constituted a knowing, willful, and intentional conversion of the work and work product of the plaintiffs to the commercial use and advantage of the Defendants and pursuant to I.C.  34-4-30-1, the Plaintiff sues the Defendants Liberty Lobby, Willis Carto, and Ann Cronin, jointly and severally, for treble damages, in the amount of $1,440,000.00 (One-million-four-hundred-forty-thousand dollars), plus attorney fees and costs of this action. COUNT IV - APPROPRIATION OF NAME FOR COMMERCIAL ADVANTAGE 30. The Plaintiff incorporates paragraphs 1 through 27 of the complaint as if fully set forth herein; 31. The Defendants LIBERTY LOBBY, Ann Cronin, Willis Carto, and Page Design Corp., used the name of the Plaintiffs to their commercial advantages, without permission of the Plaintiffs, in advertising, and for which the Plaintiffs sue the defendants, LIBERTY LOBBY, Ann Cronin, Willis Carto, and Page Design Corp. jointly and severally, in the amount of $1,000,000.00 (one-million dollars). WHEREFORE Plaintiffs pray this honorable court for judgment against the defendants A. Count I - Theft - $ 240,000.00 (two-hundred-forty-thousand dollars) for the theft of the work and work product of the Plaintiffs, specifically, the Waco I tapes, as against Liberty Lobby, Willis Carto, and Ann Cronin, jointly and severally; B. Count II - Theft - $240,000.00 (two-hundred-forty-thousand dollars) for the theft of the work and work product of the Plaintiffs, specifically, the Waco II tapes, as against Liberty Lobby, Willis Carto, and Ann Cronin, jointly and severally; C. Count III - Conversion/Treble Damages - Pursuant to I.C.  34-4-30-1, the Plaintiff sues the Defendants Liberty Lobby, Willis Carto, and Ann Cronin, jointly and severally, for treble damages, in the amount of $1,440,000.00 (One-million-four-hundred-forty-thousand dollars), plus attorney fees and costs of this action. D. Count IV - Appropriation of name and reputation for commercial advantage, as against LIBERTY LOBBY, Ann Cronin, Willis Carto, and Page Design Corp. Communications, jointly and severally, in the amount of $1,000,000.00 (one-million dollars). All totalling $2,920,000.00 (two-million-nine-hundred-twenty thousand dollars), attorney fees and costs of this action, and all other relief just or equitable in the premises. Respectfully submitted this 24th day of October, 1994, ___________________________________________ Linda D. Thompson Attorney at Law Indiana Bar #16533-49 LINDA D. THOMPSON Attorney at Law 3850 S. Emerson Avenue, Suite E Indianapolis, IN 46203 (317) 780-5202 STATE OF INDIANA IN THE MARION COUNTY SUPERIOR COURT CIVIL DIVISION COUNTY OF MARION CAUSE NO. 49D019410 CT 1178 LINDA THOMPSON and AMERICAN JUSTICE FEDERATION, Plaintiffs, v. WILLIS CARTO, ANNE CRONIN, LIBERTY LOBBY, INC., PAGE DESIGN CORPORATION Defendants. RESPONSE AND MEMORANDUM OF LAW TO DEFENDANTS' MOTION TO DISMISS COME NOW the Plaintiffs and file their response to the Motion to Dismiss of the Defendants Willis Carto, Anne Cronin, and Liberty Lobby and in support, show the court: I. FACTS Defendants Willis Carto and Anne Cronin are officers of Liberty Lobby, a company that publishes a newspaper, the Spotlight, which is distributed on newsstands throughout Indiana and by subscription in Indiana, and throughout the United States. Liberty Lobby also sponsors a radio program, the Tom Valentine Show, which is heard world wide, and Spotlight's Bureau Chief, Mike Blair, hosts a weekly radio station program in Greenwood, Indiana. Plaintiffs are the producers and owners of several news documentary videotapes, including one program entitled, Waco, the Big Lie. In the summer of 1993, Tom Valentine invited Linda Thompson to be a guest on his radio program in August, 1994. This invitation was extended when Tom Valentine called by telephone from his home in Minnesota to the Plaintiffs' business in Indianapolis. The interview was conducted by telephone. Valentine also called Thompson from his home in Minnesota to the Plaintiffs' business in Indiana for purposes of the interview. Linda Thompson did not solicit the interview and she was not paid for the interview but she was provided air time during which to discuss her videotape and how people could obtain it from the American Justice Federation. After the first radio broadcast on the Tom Valentine show, Defendant Anne Cronin telephoned Plaintiffs' office, American Justice Federation, to inquire about purchasing copies of the video tapes at wholesale, and faxed an order to the Plaintiffs for 200 tapes for re-sale, at the re-seller's price of $12.00. The defendants promoted the sales of the videotapes by advertising them in the Spotlight and on the Tom Valentine radio program, however, the Defendants continued to advertise and promote the videos for several months and sold far more of the tapes than they ordered from the Plaintiffs. Plaintiffs later learned the Defendants were reproducing these tapes themselves, from one of the copies they had ordered and that they were running newspaper articles about Linda Thompson and her investigations, as well as newspaper advertisements, to promote the sale of these bootlegged tapes The Defendants ran two and three page stories in the Spotlight newspaper that consisted of a copy of the transcript of Plaintiffs' radio broadcast with Tom Valentine in its newspaper on at least two separate occasions, without Plaintiffs' knowledge or permission. The Defendants also ran printed advertisements for these bootlegged tapes in their newspaper for several months. The Defendants also advertised these bootlegged tapes in other media, including in Media By Pass Magazine in Indiana and on the Tom Valentine radio program. Because the Defendants were making their bootlegged copies from a VHS copy, rather than a master tape, the resulting bootlegged tapes were very poor quality copies. People who bought the poor quality tapes began complaining and returning their tapes to the Plaintiffs. Plaintiffs replaced hundreds of tapes due to complaints of poor quality before learning the source of the tapes. Shipping good tapes to people who complained of poor tapes drained the Plaintiffs' financial resources and backlogged the Plaintiffs' shipping procedure and slowed down Plaintiffs' own ability to fill orders. Plaintiffs' reputation was seriously damaged by the poor quality videotapes produced by the Defendants which led people to question the validity of the findings presented in the documentary that could not be seen due to the poor video quality. The Plaintiffs' reputation was further damaged by stories touting the Plaintiff in the Spotlight, because the Spotlight is well known as an anti-Semitic and racist publication. The Defendants also obtained access to the Plaintiffs' computer news network during this time and advertised this connection as belonging to the Spotlight. On learning that the Defendants were bootlegging the tapes, in February, 1994, Plaintiff called the Defendants and confronted them with the bootlegging. Defendant Anne Cronin admitted that 4,000 tapes had been sold the first two weeks after ads first came out in August 1993 in the Spotlight. Confronted with the fact that even those first two weeks of initial orders would have far exceeded the total number of tapes that were ever ordered from the Plaintiffs, the Defendants then offered to pay what they termed a "royalty" of $1.00 per tape produced. The defendants have subsequently claimed that they had a verbal agreement with the Plaintiffs to produce these tapes and pay a royalty to the Plaintiffs, but they also have produced a sworn statement that proves no such agreement ever existed. The Plaintiffs also deny that any such verbal agreement ever existed. The defendants have never paid any royalty in fulfillment of this alleged-but-self-contradicted claim of a verbal agreement in more than 18 months, either. Subsequent to this lawsuit being filed, they now also claim to have made only 1900 bootlegged tapes, total. After the Plaintiffs' demanded that the Defendants stop bootlegging their tapes and pay for what they had stolen, the Defendants began to run false, defamatory and inflammatory newspaper stories about the Plaintiffs in the Spotlight newspaper. II. PROCEDURAL HISTORY: Plaintiffs Linda Thompson and American Justice Federation, both of Indiana, on October 24th, 1994, sued the Defendants, Willis Carto, Anne Cronin and Liberty Lobby for theft and conversion for unauthorized videotape reproductions ("bootlegging") and sales of the bootlegged videotapes, for misappropriation of the Plaintiffs' names in articles and advertisements in newspapers, magazines, and radio broadcasts and for treble damages, punitive damages and attorney fees in accordance with the Indiana treble damages statute. Defendants, all of whom reside outside the state of Indiana, obtained two extensions of time to answer and now file a Rule 12(B)(2) Motion to Dismiss for lack of personal jurisdiction on the basis of insufficient contacts with the State of Indiana pursuant to Trial Rule 4.4. III. BASES FOR JURISDICTION The provisions of Indiana Trial Rule 4.4 which govern jurisdiction over nonresident defendants which are relevant to these proceedings provide that: "Any person or organization that is a nonresident of this state . . . submits to the jurisdiction of the courts of this state as to any action arising from the following acts committed by him or his agent: (1) Doing any business in this state; (2) Causing personal injury or property damage by an act or omission done within this state; (3) Causing personal injury or property damage in this state by an occurrence, act or omission done outside this state if he regularly does or solicits business or engages in any other persistent course of conduct, or derives substantial revenue or benefit from goods, materials, or services used, consumed or rendered in this state;" TR 4.4 See, generally, Tietloff v. Lift A Loft Corp., 441 N.E.2d 986 (Ind.App. 1982); Ogden Eng'g Corp. v. St. Louis Ship, 568 F.Supp. 49 (N.D. Ind. 1983), for a discussion of "minimum contacts" necessary to exercise jurisdiction over nonresident defendants. IV. ARGUMENT: 1. This Court has jurisdiction over the Defendants pursuant to any or all of the above three bases for jurisdiction. As set forth below and pursuant to TR 4.4: "[a]ny person or organization that is a nonresident of this state . . . submits to the jurisdiction of the courts of this state as to any action arising from the following acts committed by him or his agent: (A) Arising from doing business in this state by the Defendants. TR 4.4(A)(1). (1) This action arises directly out of multiple harms (theft, conversion, misappropriation of name, damage to goodwill and reputation) to the Plaintiffs that were directly caused by the Defendants doing business in this state through several methods ~ Selling their newspapers on newsstands and by mail subscriptions within Indiana; ~ By telephonic voice solicitations of business; ~ By telephonic fax solicitation of business; ~ By telephonic computer polling to obtain Plaintiffs' news products; ~ By the sale through the mail of bootlegged videotapes within Indiana. (2) Attached at Plaintiffs' Exhibit A, and incorporated by reference herein, is the affidavit of Lawrence Hornocker, attesting that he regularly purchases the Defendants' newspaper, the Spotlight, and purchased the editions of August 30, 1993 to October 25, 1993 that are appended at Exhibits B-H, at Dady's Grocery at 4301 West Washington Street in Indianapolis, Indiana. (3) Attached at Plaintiffs' Exhibit Q is a West Side Community News newspaper advertisement for Dady's grocery showing that Dady's grocery promotes the Spotlight in its advertisements in Indiana. [Note to Defense Counsel: The original newspapers are filed with the court. Only the front page and relevant articles from those newspapers are reproduced for Defense Counsel.] (4) Each of the Spotlight newspapers appended as an exhibit contains an article about the Plaintiffs, published without the Plaintiffs' knowledge or consent, which sensationalizes and exploits the Plaintiffs' name and work to promote sales of the Defendants' bootlegged video tapes, or they contain advertisements for the bootlegged copies of the Plaintiffs' videotapes, or both: Exhibit B Spotlight newspaper, August 30, 1993, Pages 12,13,15 - 3/4 of each page is a transcript of Plaintiffs' radio interview and 1/4 of each page are advertisement for Plaintiffs' videos and a review of Plaintiffs' video to promote the sale, by the Defendants of bootlegged videos. Exhibit C Spotlight newspaper, September 6, 1993, Page 10 - 1/4 page advertisement for the bootlegged videotapes Exhibit D Spotlight newspaper, October 4, 1993, Page 7 - Full page advertisement for the bootlegged tapes Exhibit E Spotlight newspaper, October 11, 1993, Page 18 - 1/4 page advertisement for the bootlegged video tapes Exhibit F Spotlight newspaper, October 18, 1993, Page 22 - 1/4 page advertisement for the bootlegged videotapes Exhibit G Spotlight newspaper, October 25, 1993, page 11 - 1/4 page advertisement for the bootlegged videotapes Exhibit H Spotlight newspaper, October 25, 1993, Pages 12,13, and 21 - Three half pages of stories - Another transcript of the Plaintiffs' August radio interview (5) Page 6 of the October 25, 1993 Spotlight [Exhibit H] contains an advertisement for a computer bulletin board service ("BBS") that is touted as belonging to Spotlight. This computer BBS was set up to obtain the Plaintiffs' computer news network feed, AEN News, daily from Indianapolis. The Spotlight computer received its feed for AEN News from Indianapolis, which could only be obtained by the Spotlight Computer calling by telephone daily to download the information from the AEN Network in Indianapolis, as set forth in the affidavit of the News Network director, Al Thompson, at Plaintiffs' Exhibit I. Thompson further details how Spotlight was only able to obtain this feed at all through deception and misrepresentation. Plaintiffs allowed the hookup of the Defendants' BBS computer to the network because the Plaintiffs did not know the person running the BBS had any association with the Defendants and the Defendants' operator did not reveal this information. The Plaintiffs had no idea this computer BBS was being advertised as belonging to Spotlight, nor that the computer picking up the AEN News feed belonged to Spotlight. Plaintiffs learned that Spotlight was accessing the news system when documents and news stories available only from AEN News later appeared in the Spotlight. Plaintiffs were also unaware that Spotlight claimed an ownership or any association with the news network until the preparation of this pleading lead to the discovery of the advertisement. The resulting perception by the public was that the Plaintiffs' news network was somehow owned by or associated with Spotlight, which caused great harm to the Plaintiffs' work and reputation, as detailed more fully below. (2) At Plaintiffs' Exhibit J, incorporated by reference as if fully set forth herein, is a purchase order for Plaintiffs' video tapes on the Defendants' Letterhead, signed by Defendant Anne Cronin. Defendant Anne Cronin initiated this order to American Justice Federation in Indianapolis by telephone from the Defendants' business in Washington, D.C., as reflected by the fax information at the top of the purchase order. At Plaintiffs' Exhibit K are the shipping documents showing that these video tapes were shipped from Indiana to the Defendants. (3) At Plaintiffs' Exhibit L, incorporated by reference as if fully set forth herein, is a copy of an article which ran in the Defendants' newspaper, the Spotlight, on December 19, 1994, purporting to give "the facts" about this present lawsuit, in which the Defendants make the following admissions of material fact (relevant portions are underlined): ~ Defendant Liberty Lobby admits that it publishes the Spotlight Newspaper. ["Attorney Linda Thompson . . .has filed. . . [a] lawsuit against Liberty Lobby, the Washington-based institution that publishes The SPOTLIGHT."] ~ Defendant Liberty Lobby admits that it knew the videotape, Waco, the Big Lie, belonged to Thompson "Thompson became an overnight celebrity in some circles by claiming that her video, compiled from tape shot during the Waco holocaust. . . ."] ~ Defendant Liberty Lobby admits that Tom Valentine could not have made an offer to the Plaintiffs to reproduce the video tape during his radio show and thereby admits that no negotiations took place in Minnesota by stating "After Thompson appeared on Tom Valentine's Radio Free America program, sponsored by the SPOTLIGHT, many SPOTLIGHT readers expressed interest in obtaining the video, which quickly sold out. Because Thompson was unable to fulfill continuing orders with the speed necessary to service the demands of The SPOTLIGHT's readers, Valentine asked Thompson if it would be possible for Liberty Library to reproduce the video on its own to fill the orders and pay her royalties therefrom." This is an admission because the stated sequence of events directly contradicts the Defendants' sworn statements [Affidavits of Willis Carto, Liberty Lobby, and Anne Cronin, paragraph 3 in each) attached in support of their Motion to Dismiss, in which the Defendants claim: "3. The initial contract negotiations regarding the transaction in question between Defendant Liberty Lobby and Plaintiffs Thompson and the American Justice Federation took place in Minnesota, while Plaintiff Thompson appeared on a radio talk show hosted by Tom Valentine." [emphasis added.] The newspaper story admits that it was only after Plaintiff appeared on the radio show and only after people began calling Liberty Lobby to inquire about the tapes, did it occur to the Defendants to sell the tapes, and at that time, the Defendants did not try to negotiate any agreement to reproduce the tapes, they just ordered tapes at the wholesale price to sell for themselves. Tom Valentine, in his sworn statement, paragraph 3, says he "was not involved in any way with the negotiation of any terms or the execution of any contracts involving this transaction," further demonstrating that the newspaper story is an admission that no agreement to reproduce the tapes was ever negotiated and publicly contradicting the Defendants' sworn statements. Attached at Plaintiffs' Exhibit R is an affidavit from Ben Moore who answered the telephone for the radio interview when Tom Valentine called Linda Thompson in Indianapolis, which is also supported by the Affidavit of Linda Thompson at Plaintiffs' Exhibit M. The same statement, taken only at face value, "Valentine asked Thompson if it would be possible for Liberty Library to reproduce the video on its own to fill the orders and pay her royalties therefrom," at a minimum, is yet another admission that Liberty Lobby solicited the Plaintiffs in Indianapolis, which contradicts the Defendants' claims in their sworn affidavits at paragraph 4 that "4. Any telephone communications between Defendants Liberty Lobby and myself with Plaintiffs Thompson and the American Justice Federation were initiated by Plaintiff Thompson." Another contradiction of these sworn statements is provided at Plaintiffs' Exhibit J which is a purchase order for the 400 videos that plainly demonstrates on its face: Telephone contact with the Plaintiff by the Defendant Anne Cronin, contrary to paragraph 4 of her sworn statement; Telephone contact initiated by the Defendant Anne Cronin; Ongoing business transactions between the Plaintiff and Defendants; It is signed by the Defendant Anne Cronin herself. Amiee Lopez received several calls from Ann Cronin, contrary to the above quoted statements in the affidavit of Ann Cronin (which are also contradicted by Ann Cronin's own signature on the fax to American Justice at Exhibit J), as set forth in the Affidavit of Amiee Lopez at Plaintiffs' Exhibit S. It is plain that whether "initial negotiations" in the Affidavits of Carto, Cronin and Liberty Lobby at paragraph 3, means contact between Tom Valentine and the Plaintiffs or contact between Liberty Lobby and the Plaintiffs, in either case, the contact was intiated by the Defendants who called the Plaintiffs in Indianapolis, contrary to their sworn claims in their paragraphs 4, and all of which is "doing business in Indiana" (which the defendants know or they wouldn't have gone to such lengths to try to deceive the Court on this particular point with false statements of fact and omissions of material facts, as illustrated herein.) ~ Liberty Lobby admits business transactions within Indiana of an on-going nature. ["Because Thompson was unable to fulfill continuing orders with the speed necessary to service the demands of The SPOTLIGHT's readers . . ."]. ~ Defendants admit that they knew they had no legal right or authority to reproduce the videotapes. ["no specific royalty was agreed upon." and "No answer was ever received." (to the alleged written "offer" to the Plaintiffs to pay a "royalty" of $1.00 per tape after the Defendants had been caught red-handed unlawfully bootlegging the tapes for five months before this "offer" was made.) (See also the Defendants' Affidavit of Tom Valentine, admitting that he actually did not participate in any such negotiation at all, at paragraph 3.)] ~ Defendants again admit that they solicited the Plaintiffs in Indiana. ["Liberty Lobby wrote to Thompson and proposed a royalty figure."] Defendant Willis Carto was the author of this letter to Linda Thompson in February, 1994, long after the Defendants had been steadily bootlegging the Plaintiffs' work and after the Defendants had been caught red-handed, as set forth in the Affidavit of Linda Thompson at Plaintiffs' Exhibit M. ~ Liberty Lobby admits that, despite knowing Linda Thompson owned the videotapes and despite knowing the Defendants had no legal right to reproduce the videotapes, the Defendants reproduced the videos and sold them. ["Within the next several weeks, Liberty Library reproduced and sold precisely 1,900 additional copies"]. (Plaintiffs dispute this figure). ~ Defendants admit they publicized transcripts of the Plaintiffs' radio interviews with Tom Valentine. ["(A transcript of the interview was subsequently published in the Spotlight giving Thompson greater and more widespread national publicity than she had ever received before.)"], which is one of the bases for Plaintiffs' claims of misappropriation of name. (8) For the foregoing reasons, this action arises directly from the Defendants "doing business in the state of Indiana," through ~ Selling its newspaper, Spotlight, on newsstands in Indiana and by mail order subscriptions in Indiana; ~ Soliciting the Plaintiffs' business on numerous occasions directly relevant to this action (soliciting the Plaintiff to appear on radio, calling Plaintiff for the radio interviews, calling and faxing orders for videotapes to the Plaintiffs in Indiana). ~ Polling daily by computer (via telephone lines) for information and news services from the Plaintiffs' Computer News Network feed in Indianapolis, which were then rebroadcast in Washington, D.C. by the Defendants. ~ Selling videotapes through their newspaper and magazine advertisements in Indiana and making delivery of those videotapes to people in Indiana who ordered them. This Court therefore clearly has personal jurisdiction over each of the Defendants for this action which arises directly from the Defendants doing business in Indiana pursuant to TR 4.4(A)(1). (B) "Causing personal injury or property damage by an act or omission done within this state." TR 4.4(A)(2). (1) This Court has jurisdiction over the Defendants pursuant to TR 4.4(A)(2) because the Defendants have caused personal injury and property damage to the Plaintiffs, to wit: ~ Theft of Plaintiffs' videotape work product, obtained from Indiana. ~ Conversion of Plaintiffs' videotapes, obtained from Indiana. ~ Misappropriation of Plaintiffs' name in newspapers sold in Indiana on newsstands and by mail. All of which were directly and indirectly caused by acts of the Defendants done in this state, to wit: ~ Selling its newspaper, Spotlight, on newsstands in Indiana and by mail order subscriptions in Indiana; ~ Soliciting the Plaintiffs' business on numerous occasions directly relevant to this action (soliciting the Plaintiff to appear on radio, twice, calling Plaintiff for the radio interviews, and faxing orders for videotapes to the Plaintiffs in Indiana); ~ Polling daily by computer (via telephone lines) for information and news services from the Plaintiffs' Computer News Network feed in Indianapolis, which were then re- broadcast in Washington, D.C. by the Defendants); ~ Selling videotapes through their newspaper and magazine advertisements in Indiana and making delivery of those videotapes to people in Indiana who ordered them; Plaintiffs incorporate the facts and allegations set forth above on these issues from the preceding paragraphs rather than reiterate the points. (2) Additionally, it is an injury in itself for the Plaintiffs' names to be a topic in the Spotlight newspaper because the Spotlight has an established reputation as an anti-Semitic and racist newspaper; its founder, Defendant Willis Carto, is also the founder of a Nazi revisionist organization, the Institute for Historic Review, that purports to "prove" that millions of Jews were not exterminated during World War II. As a direct result of the Defendants publishing the radio transcript of Plaintiff Linda Thompson's interview with Tom Valentine in the Spotlight, Plaintiffs have been subjected to scorn and derision throughout the country and in Indiana. As a direct result of the publication of the radio transcripts in the Spotlight, the Southern Poverty Law Center put American Justice Federation's name on a "Klan Watch" bulletin [See Plaintiffs' Exhibit N] which was sent to 600 law enforcement agencies throughout the country, which in turn resulted in numerous persons disassociating themselves from the Plaintiffs and in heightened scrutiny by and harassment from law enforcement agencies, and in the Plaintiffs being hounded by media stories claiming the Plaintiff was associated with the "Ku Klux Klan and nazis," with which the Plaintiffs have no association whatsoever. The publication of the radio interview, twice, in the Defendants' newspaper was an unauthorized use of the Plaintiffs' name and research because it was used without the Plaintiffs' knowledge or authority, to promote video tapes that were produced by the Defendants without the Plaintiffs' knowledge or consent, and sold solely for the commercial advantage of the Defendants. These publications about the Plaintiffs were of no benefit to the Plaintiffs whatsoever, but brought notoriety, condemnation, and ridicule upon the Plaintiffs by the unwanted association of their names in the Spotlight newspaper. (3) Because of the Defendants' misrepresentation in advertisements that Plaintiffs' computer network, AEN News, was affiliated with or in some way owned by the Spotlight by implication [Plaintiffs' Exhibit H, page 6], Southern Poverty Law Center, which purports to be a political enemy of the Spotlight, used this misrepresentation by Spotlight that AEN News, the Plaintiffs' network, was owned by or affiliated with Spotlight, as the basis for an orchestrated campaign of negative publicity directed at the Plaintiffs. Southern Poverty Law Center paid Richard Bottoms to publicize a negative article in a local Indianapolis tabloid, Nuvo, about Plaintiffs' computer news network in Indianapolis, claiming AEN News was the "jumping off point" for nazis and racists. A copy of that article is attached at Plaintiffs' Exhibit O. Even though Plaintiffs' computer network has no known association whatsoever with racists or nazis, the Spotlight, which itself has such a reputation, gained access to the Plaintiffs' news network by deception and misrpresented its association in its advertising. This prompted the inquiry by Southern Poverty Law Center, and the resulting article published by Nuvo. Richard Bottoms next directed his crusade against the Plaintiffs to the radio on WIBC and on NBC Nightly news, and participated in the preparation of a slam article about the Plaintiff on local Channel 6. The company that owns the radio station with which Bottoms is now affiliated also owns Indianapolis Monthly magazine, and they, in turn, published a "Heros and Zeros" article that labels Richard Bottoms a "hero" and Linda Thompson a "zero," and which contains wholly false, defamatory statements about Linda Thompson. Although none of these statements mentions the Spotlight, a media vendetta against the Plaintiffs was begun because of the Spotlight's publication of Plaintiffs' radio interview and Spotlight's advertising its "BBS" network and other acts by Spotlight that falsely misrepresented the Plaintiffs as politically allied with or associated with Spotlight. Even the most recent article in Spotlight, December 22, 1994, at Exhibit L, speaking of the Plaintiff, says "never before known within the Populist movement, Thompson became an overnight celebrity" which, by implication means the Plaintiff is now known within the populist movement, when in fact, Plaintiff is not now, never has been, never claimed to be and does not wish to be known as a "populist." The misrepresentations by Spotlight that imply the Plaintiffs' are allied with Spotlight triggered a massive retaliatory, politically motivated campaign of negative publicity directed at the Plaintiffs on a local and national level, discredited the Plaintiffs' work and reputation and caused the Plaintiffs considerable humiliation and damage to their business associations. In fact, it now appears that Spotlight, rather than being a target of this publicity, is itself a vehicle to target others and that the intent, from the beginning, was to destroy the Plaintiffs and the Plaintiffs' work. (4) Any tape actually sold in Indiana by the Defendants was an additional personal injury to the Plaintiffs within Indiana by the appropriation of the Plaintiffs' names because the Plaintiffs' names and identities appear in several places within the video tape contents, identifying Linda Thompson and American Justice Federation as the producers and source of these tapes, as shown at Plaintiffs' Exhibit T, a copy of Waco, the Big Lie. This would lead anyone who ordered the poor-quality bootlegged tapes to believe the tapes originated with the Plaintiffs. Because the Defendants were making their bootlegged copies from a VHS copy, rather than a master tape, the quality of the bootlegged tapes was extremely poor and many details in the photographic images were lost. There would be no way for a person receiving such a tape to realize that details in the photographic images that would be there in a better copy, were simply not visible in the poor copy. People who bought these poor quality bootlegged tapes from the Defendants then questioned the validity of key information presented in the video tapes because they could not see many details due to the poor quality reproduction. This, in turn, caused people to publicly scorn the Plaintiffs and disparage the Plaintiffs' presentation of facts, which were based upon the photographic contents of the videotape, which the people buying these poor quality tapes could not see. (5) The Defendants' mass sales of poor quality bootleggd copies of the Plaintiffs tapes also resulted in hundreds of people sending "defective" and "blurry" tapes to the Plaintiffs for replacements. This effect was extensive and was one thing that led the Plaintiffs to uncover the bootlegging. (6) Adding insult to injury, the Defendants used the public scorn, ridicule and "controversy" the Defendants had created by these poor quality tapes as the basis for a defamatory claim in a recent Spotlight article that people "questioned the validity of some of the claims made by Thompson in the video." A copy of this article is attached as Plaintiffs' Exhibit L. This most recent article is yet another example of the Defendants appropriating the Plaintiffs' name to generate controversy to their own commercial advantage in their newspaper, the Spotlight. (7) For the foregoing reasons, this Court has jurisdiction over the defendants on the basis that they have caused personal injuries and property damage to the Plaintiffs in this state by acts in this state. (C) Causing personal injury or property damage in this state by an occurrence, act or omission done outside this state if he regularly does or solicits business or engages in any other persistent course of conduct, or derives substantial revenue or benefit from goods, materials, or services used, consumed or rendered in this state." TR 4.4(A)(3) (1) The Plaintiffs' personal injuries and property damages are set out in the above paragraphs and are incorporated by reference herein as if fully set forth. (2) Defendants Willis Carto and Anne Cronin are both officers of the Liberty Lobby Corporation and were directly and personally involved in the decision to bootleg the Plaintiffs' tapes and to advertise those bootlegged tapes in the Spotlight throughout the United States. (3) Willis Carto, in the affidavit of Liberty Lobby, asserts that he is the Corporate Treasurer for Liberty Lobby. He is the person referred to in the Defendants' newspaper article at Plaintiffs' Exhibit L in the statement "Liberty Lobby wrote to Thompson and proposed a royalty figure." The referenced letter was a solicitation to the Plaintiff by Willis Carto, written by Willis Carto, as set forth in the Affidavit of Linda Thompson at Plaintiffs' Exhibit M. Willis Carto is also directly responsible for the content of the Spotlight newspaper articles by which injury was caused to the Plaintiffs. (4) Anne Cronin is the Treasurer for Liberty Lobby and she personally placed the orders for 200 video tapes with the Plaintiffs as shown by her signature on the purchase order at Plaintiffs' Exhibit J and it was Anne Cronin who admitted that 4000 of these tapes had been sold within the first two weeks of advertising, as set forth in the Affidavit of Linda Thompson at Plaintiffs' Exhibit M. (5) The Spotlight newspaper, published by the Defendants, is regularly distributed throughout Indiana on newsstands [Plaintiffs' Exhibit A] and by mail subscriptions so that the Defendants regularly derive substantial revenue or benefit from goods, materials, or services used and consumed in Indiana. At the times relevant to this action, and as shown at Plaintiffs' Exhibit H, page 6, and in the Affidavit of Al Thompson at Plaintiffs' Exhibit I, the Defendants were also directly and regularly polling by telephone to obtain news and information from the Plaintiffs' news network and were themselves deriving benefit from the reputation gained by republishing this information on the Defendants' computer service in Virginia. (6) At Plaintiffs' Exhibit P is a newspaper article which ran in the Defendants' Newspaper, the Spotlight, this past week, in which the Defendants admit that Spotlight newspaper Bureau Chief Mike Blair regularly co-hosts a radio broadcast in Indianapolis each Tuesday on a radio station originating in Greenwood, Indiana and broadcast in Indiana on the following stations: WXLW Indianapolis AM 950 WGGR Greenwood, IN FM 106.7 WHON Richmond, IN AM 930 WSLM Salem, IN AM 1220 WDHM Salem, IN FM 98.9 WGL Ft. Wayne, IN FM 94.1 WCVL Crawfordsville, IN AM 1550 WHSW Frankfurt, KY FM 99.7 (7) As set forth above, the Defendants regularly solicit business in this state via a radio station in Greenwood, Indiana, the Defendants regularly distribute their newspapers in this state each week on newsstands and by mail subscriptions, and derive substantial benefits and revenue therefrom, and have derived benefits and revenue from the use of the Plaintiffs' name and from the sale of the Plaintiffs' research and videotapes, in acts done both inside and outside the state that have caused injury to the Plaintiffs, all of which renders the Defendants subject to the jurisdiction of this Court pursuant to TR 4.4(A)(3). 3. This Court very clearly has jurisdiction over these defendants, not just under one possible jurisdictional basis, but upon three bases, as set forth above, and the Defendants' Motion to Dismiss for lack of minimum contacts with this state should be dismissed. WHEREFORE the Plaintiffs pray this Court deny the Defendants' Motion to Dismiss and for all other relief just or equitable in the premises. Respectfully submitted this 20th day of January, 1995, ___________________________________________ Linda D. Thompson Attorney at Law Indiana Bar #16533-49 LINDA D. THOMPSON Attorney at Law 3850 S. Emerson Avenue, Suite E Indianapolis, IN 46203 (317) 780-5203 Certificate of Service I certify that a copy of the foregoing, with exhibits as described, has been sent by First- Class U.S. Mail, Postage Pre-paid this date to: Mr. J. Edward Sandifer, Graber and Sandifer, P.C., 7351 Shadeland Station, Suite 201, Indianapolis, IN 46256, and to Eric J. Neese, Tree Top Communications, RR 1 Ob 368, Richland, IN 47634. ________________________________________ Linda D. Thompson INDEX OF PLAINTIFFS' EXHIBITS SUBMITTED IN SUPPORT OF PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO DISMISS, PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND PLAINTIFFS' MOTION FOR SANCTIONS Page 1 of 2 pages Exhibit A Affidavit of Lawrence Hornacker, attesting that he purchased the Spotlight newspapers, appended at Exhibits B-H at a local Indianapolis grocery store over several months. Exhibit B Spotlight newspaper, August 30, 1993, Pages 12,13,15 - 3/4 of each page is a transcript of Plaintiffs' radio interview and 1/4 of each page are advertisement for Plaintiffs' videos and a review of Plaintiffs' video to promote the sale, by the Defendants of bootlegged videos. Exhibit C Spotlight newspaper, September 6, 1993, Page 10 - 1/4 page advertisement for the bootlegged videotapes Exhibit D Spotlight newspaper, October 4, 1993, Page 7 - Full page advertisement for the bootlegged tapes Exhibit E Spotlight newspaper, October 11, 1993, Page 18 - 1/4 page advertisement for the bootlegged video tapes Exhibit F Spotlight newspaper, October 18, 1993, Page 22 - 1/4 page advertisement for the bootlegged videotapes Exhibit G Spotlight newspaper, October 25, 1993, page 11 - 1/4 page advertisement for the bootlegged videotapes Exhibit H Spotlight newspaper, October 25, 1993, Pages 12,13, and 21 - Three half pages of stories - Another transcript of the Plaintiffs' August radio interview Exhibit I Affidavit of Al Thompson, News Network Director for AEN News in Indianapolis, detailing how the Spotlight computer in Virginia could only have obtained its news feed by calling by telephone daily to download the information from the AEN Network in Indianapolis and how this feed was obtained deceptively. Exhibit J A purchase order for Plaintiffs' video tapes on the Defendants' Letterhead, signed by Defendant Anne Cronin. Defendant Anne Cronin initiated this order to American Justice Federation as shown by the fax information at the top of the order showing that it was placed from Defendants' office in Washington, D.C. to Plaintiffs in Indianapolis. Exhibit K Shipping documents showing that videotapes were shipped from Indianapolis to the Defendants the next day, to fulfill the purchase order from the Defendants (shown at Exhibit J.). Exhibit L Spotlight newspaper article, December 19, 1994, purporting to give "the facts" about this present lawsuit, and making several admissions of material fact. Exhibit M Affidavit of Linda Thompson attesting that a letter was received in February, 1994, from Willis Carto, in which he offers to pay $1.00 for the tapes (which by that time, Defendants had been bootlegging for five months), phrasing this as an offer to reproduce the tapes and pay a "royalty" payment. Exhibit N "Klan Watch" bulletin distributed by Southern Poverty Law Center, adding Plaintiffs'name as a racist organization, one result of the Defendants publishing Plaintiffs' radio interview in the Spotlight. Exhibit O Nuvo article by Richard Bottoms claiming Plaintiffs' computer network, AEN News, was the "jumping off point" for nazis and racists. Exhibit P Spotlight newspaper article from January, 1995, showing that Spotlight Bureau Chief, Mike Blair, regularly hosts a radio program from Indianapolis. Exhibit Q Indianapolis West Side Community News newspaper advertisement for Dady's Grocery that advertises a free Spotlight newspaper with a $20.00 grocery purchase. Exhibit R Affidavit of Ben Moore attesting that Tom Valentine called the Plaintiff in Indianapolis to conduct the first radio interview in August, 1993. Exhibit S Affidavit of Amiee Lopez attesting to Ann Cronin calling American Justice Federation. Exhibit T Plaintiff's videotape, "Waco, the Big Lie." STATE OF INDIANA IN THE MARION COUNTY SUPERIOR COURT CIVIL DIVISION COUNTY OF MARION CAUSE NO. 49D019410 CT 1178 LINDA THOMPSON and AMERICAN JUSTICE FEDERATION, Plaintiffs, v. WILLIS CARTO, ANNE CRONIN, LIBERTY LOBBY, INC., PAGE DESIGN CORPORATION Defendants. AFFIDAVIT OF LAWRENCE HORNOCKER COMES NOW LAWRENCE HORNOCKER and after being duly sworn upon his oath and under penalty for perjury affirms: 1. The statements contained herein are based on my personal knowledge and are true and correct to the best of my knowledge and belief; 2. I am over the age of 21 years, I am not in military service, and I am not suffering from any legal disabilities. 3. I regularly purchase copies of the Spotlight newspaper, published by Liberty Lobby, at Dady's Grocery at 4301 West Washington Street in Indianapolis, Indiana. 4. I purchased the copies of the Spotlight newspaper that are appended as Plaintiffs' Exhibits B through H at Dady's Grocery at 4301 West Washington Street in Indianapolis, Indiana, during the week that these papers were for sale in August through October of 1993. FURTHER AFFIANT SAYETH NOT, this 19th day of January, 1995. ___________________________________________ LAWRENCE HORNOCKER Subscribed before me, a notary public in and for the state of Indiana, County of Marion this 19th day of January 1995. __________________________________ Notary Public My commission expires: STATE OF INDIANA IN THE MARION COUNTY SUPERIOR COURT CIVIL DIVISION COUNTY OF MARION CAUSE NO. 49D019410 CT 1178 LINDA THOMPSON and AMERICAN JUSTICE FEDERATION, Plaintiffs, v. WILLIS CARTO, ANNE CRONIN, LIBERTY LOBBY, INC., PAGE DESIGN CORPORATION Defendants. AFFIDAVIT OF AL THOMPSON COMES NOW AL THOMPSON and after being duly sworn upon his oath and under penalty for perjury affirms: 1. The statements contained herein are based on my personal knowledge and are true and correct to the best of my knowledge and belief; 2. I am over the age of 21 years, I am not in military service, and I am not suffering from any legal disabilities. 3. I am the network administrator for AEN News, a news wire service and messaging center located in Indianapolis. 4. AEN News has 300 nodes nationwide. Nodes must apply to subscribe to the network and membership is not open to those who advocate racial or religious discrimination, nor to those who advocate a one world government. Nodes must poll by telephone daily to our main computer in Indianapolis to obtain news and exchange message traffic. 5. LogoPlex BBS in Virginia did not dislose that it had any affiliation with the Spotlight when it applied to become a node of AEN News. 6. It was brought to my attention by other subscribers who would send me copies of various newspaper articles, that news articles, photographs and reference files appearing in AEN News were being published by the Spotlight. 7. Sometime in September, a person who posted as "Editor" of "the Spotlight," left messages on the system, from the LogoPlex network, that were derisive and abusive; these messages were automatically processed by the network and sent out nationwide, subjecting the network to this public derision and appearing to have come from the network itself as a result. It was at this time I realized that the articles that appeared in the Spotlight that had appeared to have come from our network had in fact come from our network. I originally sent a directive to LogoPlex to disconnect the user known as the "Editor" of the Spotlight, because I did not realize that the entire network, LogoPlex, was actually run by Spotlight, and I believed it was merely a situation in which an editor from Spotlight was accessing one of the AEN Nodes in Virginia at the time. When the "Editor" again left messages in the network, I disconnected LogoPlex bbs altogether. 8. Our network is a serious news network and has no association with persons who purport to be racists or anti-Jewish, nor do we in any manner condone or endorse such agendas; this false association by the Spotlight with our network discredited AEN News in journalistic circles and subjected the network to a massive media campaign directed against us. It also attracted at least one very anti-semitic person to our network who left an anti-Jewish post and which has caused us to have to use great caution in allowing access to the network. FURTHER AFFIANT SAYETH NOT, this 19th day of January, 1995. ___________________________________________ AL THOMPSON Subscribed before me, a notary public in and for the state of Indiana, County of Marion this 19th day of January 1995. __________________________________ Notary Public My commission expires: STATE OF INDIANA IN THE MARION COUNTY SUPERIOR COURT CIVIL DIVISION COUNTY OF MARION CAUSE NO. 49D019410 CT 1178 LINDA THOMPSON and AMERICAN JUSTICE FEDERATION, Plaintiffs, v. WILLIS CARTO, ANNE CRONIN, LIBERTY LOBBY, INC., PAGE DESIGN CORPORATION Defendants. AFFIDAVIT OF BENJAMIN MOORE COMES NOW BENJAMIN MOORE and after being duly sworn upon his oath and under penalty for perjury affirms: 1. The statements contained herein are based on my personal knowledge and are true and correct to the best of my knowledge and belief; 2. I am over the age of 21 years, I am not in military service, and I am not suffering from any legal disabilities. 3. At the time Tom Valentine called in August, 1993 to conduct an interview with Linda Thompson, I was working in the office and answered the telephone when Tom Valentine called. I personally spoke to a man who identified himself as Tom Valentine. No one in the American Justice Federation placed a call to Tom Valentine or anyone outside the office. I remember this call because I do not ordinarily answer the phones at the office. FURTHER AFFIANT SAYETH NOT, this 19th day of January, 1995. ___________________________________________ BENJAMIN MOORE Subscribed before me, a notary public in and for the state of Indiana, County of Marion this 19th day of January 1995. __________________________________ Notary Public My commission expires: STATE OF INDIANA IN THE MARION COUNTY SUPERIOR COURT CIVIL DIVISION COUNTY OF MARION CAUSE NO. 49D019410 CT 1178 LINDA THOMPSON and AMERICAN JUSTICE FEDERATION, Plaintiffs, v. WILLIS CARTO, ANNE CRONIN, LIBERTY LOBBY, INC., PAGE DESIGN CORPORATION Defendants. AFFIDAVIT OF LINDA THOMPSON COMES NOW Linda Thompson and after being duly sworn upon her oath and under penalty for perjury states: 1. The statements contained herein are based on my personal knowledge and are true and correct to the best of my knowledge and belief; 2. I am over the age of 21 years, I am not in military service, and I am not suffering from any legal disabilities. 3. I am the producer and joint lawful owner, together with the American Justice Federation, of the original video, "Waco, the Big Lie." 4. I have never been in Minnesota and I have never initiated any telephone calls to Minnesota or to the Defendants to solicit any business to sell or distribute "Waco, the Big Lie" to any Defendant in this cause, nor to Tom Valentine. Tom Valentine called me, on the telephone, to ask me to be on his program. At the time I was asked to be on Tom Valentine's show, my video was being widely circulated, sent to Congress, the media and people all over the country, by thousands of people. I was receiving as many as a dozen media calls for interviews every day and Tom Valentine was just another name in a pile of hundreds at the time he called and asked me to be on his program. His office had called my office to set up the first interview, which was to discuss my tape, "Waco, the Big Lie." He called me on the telephone for the interviews he scheduled. 5. When I appeared on Tom Valentine, I was discussing my work and offered our tapes for sale, directly from the American Justice Federation, not on behalf of Spotlight or anyone associated with Spotlight. 6. American Justice Federation received a telephone order for video tapes from someone at Liberty Lobby, but none of us at American Justice knew Liberty Lobby had any connection with Tom Valentine's program. At that time, we received hundreds of calls a day, many about ordering tapes. The only tape we had available then was "Waco, the Big Lie" so every tape order was for this tape, and every media interview was about this tape. 7. I was not directly involved in answering the phones or taking or filling orders except when an organization asked for a quantity discount. In this case, Amiee Lopez had taken a call from Ann Cronin and Amiee told me that this organization called Liberty Lobby wanted a quantity discount. I authorized Amiee to sell them to the group at $12.00 each. I did not know at that time that Liberty Lobby was associated with Spotlight or Tom Valentine, and it wouldn't have mattered if I did because I didn't know anything about Liberty Lobby or Tom Valentine then, either. I had never heard of Willis Carto or Anne Cronin. I do not remember speaking to anyone who called about this, but customarily, I will get on the phone with such a caller and confirm their information; however, the person has always called here to order and if they want a quantity discount, one of the secretaries will put them on hold to ask me; I merely pick up the phone to talk to them. 8. I remember that Amiee was distressed one day because she had received a call from a woman at Spotlight, claiming they had not received a large quantity of tapes they had ordered. Searching our records, we had no record of Spotlight having ordered anything. We learned at some point in several phone calls between Amiee and someone at Spotlight that "Spotlight" was the same organization as "Liberty Lobby" and at that point, we were able to tell them where their order was. 9. I learned while I was a guest on Tom Valentine's program that he promoted Spotlight on his radio station, and I had been told by several people (whom I do not know to be either racists or nazis or of that ilk) that "Spotlight was a newspaper," and that "it was a good newpaper." In fact, we have a Spotlight newspaper that is published in Indianapolis and originally, I thought that was the paper they were talking about. However, Valentine promotes a lot of other things, too, so it did not register with me that Tom Valentine worked for either Liberty Lobby or Spotlight, and I did not know Liberty Lobby and Spotlight were the same organization, either, until much later and it wasn't important then and it isn't particularly important now, but for the fact that had I known these connections, I would not have appeared on Valentine's program, nor sold any tapes to Liberty Lobby or Spotlight, because I have learned that they are anti-semitic and racist and that Willis Carto, the head of these organizations, was heavily involved with the Nazi party and founded a Nazi revisionist history organization. It is also the reason why I would never have consented to Spotlight duplicating our tapes had I been asked, but I was not asked. 10. I found out the Spotlight was a racist and anti-semitic publication when someone sent me a copy of an article by Morris Dees in the Southern Poverty Law Center "Klan Watch" bulletin that had been sent to law enforcement all over the country. Our organization, American Justice Federaton, was listed in the "Klan Watch" warning column! I just about fell over with shock. I am an attorney, as is Morris Dees, who is one of the founders of Southern Poverty Law Center. I have met Morris Dees and in fact, I was inspired to start American Justice Federation by a movie shown at a lawyer's seminar about Morris Dee's civil rights organization and what I believed was the good work in civil rights that Morris Dees claimed to have accomplished. I met Morris Dees at this seminar. I was absolutely astounded that he had not realized he was talking about me or my organization and I had no idea how on earth he came to the conclusion our organization had anything to do with racists, because we do not. I called Southern Poverty Law Center immediately, thinking this had to be a terrible case of mistaken identity and I spoke with the editor there. I asked her how my organization came to be listed in this magazine, and she asked me if I had ever been on the Tom Valentine program. Of course I had, and I told her so, but I asked her why that was an issue. She replied that a transcript of my appearance was published in the Spotlight and that both Valentine and the Spotlight were racist and anti-semitic and that Spotlight paid for his program. She told me that Spotlight's founder, Willis Carto, was the founder of a revisionist history group that claimed Jews were not killed by Hitler, and that he was anti-semitic. She basically gave me an earful on this. I was appalled. At that point, Spotlight could not have even purchased tapes from us if they had bothered to ask. This was in late August. 11. I noticed that someone using the alias "Editor" from "the Spotlight" was leaving messages on our computer news service from the LogoPlex BBS in Virginia. Information available from our service, sometimes information only available from our service, appeared in copies of articles sent to us by followers who found the information in the Spotlight, and I began to suspect that Spotlight was somehow obtaining our research. 12. It was around this time that someone sent me a copy of the article that Spotlight ran which was anothre transcript of a radio interview I had done with Tom Valentine. I was surprised that Spotlight had blatently run that article without permission. I did not know then that Spotlight was using this article to promote the sale of our tapes, because all I had received was a xerox copy of the article about me, not the entire paper. I also did not yet know that Spotlight was anti-semitic or racist. I did not at any time give Spotlight permission to run this radio transcript. 13. Several people called us and told us they were seeing ads for our tapes in various publications that I did not recognize as being authorized to sell our tapes and I began to realize our tapes were being bootlegged and started trying to track down the bootleggers. 14. In the fall, we suddenly began to get a lot of calls and complaints about the tape quality. Before we realized there were so many bootleggers out there, we would simply send anyone who complained a new tape because initially, the calls were few and far between and they were about tapes that had production problems, rather than tapes that were "blurry" or "poor quality." The first 100 or so calls we had about "blurry" tapes we chalked up to a bad run of tapes, but we started making a point of having people prove they had ordered their tapes from us. That's when we discovered that most of the people complaining about "blurry tapes" had actually ordered their tapes from Spotlight. 15. At one point, we had to hire two additional staff just to handle the complaints about bad tapes that all turned out to have originated with the bootlegged tapes from Spotlight. 16. In January, 1994, I discovered that Spotlight was a prolific bootlegger of our tapes. They had taken out advertisements for our tapes in other publications and advertised our tapes for sale in their 100,000 circulation weekly newspaper. By that time, we knew that Liberty Lobby and Spotlight were the same people and we knew Liberty Lobby had ordered and received 400 tapes, but had only paid for 200 tapes. Based on our sales and the sales of others, and the calls we had received, we knew Spotlight, with its circulation of 100,000 and a world-wide radio show to promote the sales, had very likely sold in excess of 25,000 of our tapes. 17. I called the Spotlight and was transferred to Anne Cronin. Anne Cronin told me that they had sold 4,000 of our tapes the first two weeks their ads were out. I told her that they had not ordered 4,000 of our tapes and asked how they had sold that many. She said that they hadn't been able to get tapes from us and they had so many orders they had decided to go on and make them themselves. By that time we had a second Waco tape and I asked her if they were duplicating those tapes, too and she said they were. I was furious about this and told her so. She told us she would pay us for these tapes but we never received any payment and she avoided my calls from that point on. 18. I next received a letter from Willis Carto offering to pay us a whopping $1.00 per tape they had sold as a "royalty." I called Willis Carto at this time and chewed him out. I told him bootlegging our tapes was totally unacceptable. Willis Carto claimed that they intended to pay me a royalty and asked me to name a figure and I told him we only made such arrangements with a very few trusted people because we would have no control over the quality or quantity of the tapes, nor, realistically, anyway to know if the amount reported as "sold" would be correct or not. I told him all of them paid between $8 and $10 per tape, which he scoffed at. I did not trust or know anyone at Spotlight well enough to make such an arrangement and told him so. I especially didn't trust them when this offer came only after they had been caught red-handed, bootlegging our tapes. I made no agreement with Spotlight allowing them to reproduce our tapes. I did not agree to accept $1.00 or $2.00 per tape, nor agree to allow the Spotlight to duplicate our tapes at any time. 19. I and American Justice Federation have been the targets of a media onslaught directed against us that has been personally humiliating and exhausting, and which has cost us countless lost time and money, all due to Spotlight bootlegging our work and falsely claiming to be associated with us. 20. In preparing the documents for these pleadings, I discovered in copies of the Spotlight that the Spotlight had twice run transcripts of my radio broadcasts, but in conjunction with ads to sell their bootlegged copies of our tapes. I did not give any permission for any article to be run to promote the sales of these tapes for Spotlight. FURTHER AFFIANT SAYETH NOT THIS 19th day of January, 1995. _______________________________________ Linda Thompson Subscribed before me, a notary public in and for the state of Indiana, County of Marion this 19th day of January 1995. __________________________________ Notary Public My commission expires: STATE OF INDIANA IN THE MARION COUNTY SUPERIOR COURT CIVIL DIVISION COUNTY OF MARION CAUSE NO. 49D019410 CT 1178 LINDA THOMPSON and AMERICAN JUSTICE FEDERATION, Plaintiffs, v. WILLIS CARTO, ANNE CRONIN, LIBERTY LOBBY, INC., PAGE DESIGN CORPORATION Defendants. AFFIDAVIT OF AMIEE LOPEZ COMES NOW AMIEE LOPEZ and after being duly sworn upon his oath and under penalty for perjury affirms: 1. The statements contained herein are based on my personal knowledge and are true and correct to the best of my knowledge and belief; 2. I am over the age of 21 years, I am not in military service, and I am not suffering from any legal disabilities. 3. I began working at American Justice Federation the third week of August, 1993, and at that time, I took several calls from Ann Cronin. Ann Cronin complained about the price of our tapes and complained about not receiving tapes, however, there was no order from Spotlight at that time, only an order from Liberty Lobby. I did not know then that Liberty Lobby and Spotlight were the same organization. We ended up sending 200 tapes to Liberty Lobby, based on the purchase order we received from them by fax and 200 tapes C.O.D. to Spotlight because of Ann Cronin's telephone calls, complaining she had not received her tapes. 4. I have also answered the phone when Tom Valentine called to set up interviews with Linda Thompson and when Tom Valentine called to interview Linda Thompson. 5. I was primarily responsible for scheduling Linda Thompson's interviews during this time. It was never a practice at American Justice Federation to solicit any interviews because we didn't need to solicit interviews. Linda Thompson had more requests for interviews than we could keep up with. FURTHER AFFIANT SAYETH NOT, this 19th day of January, 1995. ___________________________________________ AMIEE LOPEZ Subscribed before me, a notary public in and for the state of Indiana, County of Marion this 19th day of January 1995. __________________________________ Notary Public My commission expires: STATE OF INDIANA IN THE MARION COUNTY SUPERIOR COURT CIVIL DIVISION COUNTY OF MARION CAUSE NO. 49D019410 CT 1178 LINDA THOMPSON and AMERICAN JUSTICE FEDERATION, Plaintiffs, v. WILLIS CARTO, ANNE CRONIN, LIBERTY LOBBY, INC., PAGE DESIGN CORPORATION Defendants. MOTION FOR SANCTIONS AND REFERRAL TO THE U.S. ATTORNEY FOR PERJURY COME NOW the Plaintiffs and file their motion for Sanctions pursuant to Trial Rule 11 and move the Court to refer this matter to the U.S. Attorney's consideration for prosecution of perjury and obstruction of justice. Plaintiffs incorporate by reference and in support show: 1. The Defendants are attempting a fraud upon the Court in an effort to defeat the Court's jurisdiction derived from minimum contacts with this state by offering perjured statements in sworn affidavits in support of the allegations in the Motion to Dismiss filed by Attorney J. Edward Sandifer. The Defendants have also made the affirmative representation that they have had no such minimal contacts, while omitting material facts well known them that would clearly establish minimal contacts. 2. Each of the sworn affidavits of Defendants Anne Cronin, Willis Carto, and Liberty Lobby, contains the identically worded paragraph #3. These sworn affidavits were submitted in support of the Defendants' claim in their motion at paragraph 5 that "Defendants have not initiated sufficient minimum contacts with the Plaintiffs in the State of Indiana so as avail themselves to personal jurisdiction in the State of Indiana under Trial Rule 4.4." The Defendants claim: "3. The initial contract negotiations regarding the transaction in question between Defendant Liberty Lobby and Plaintiffs Thompson and the American Justice Federation took place in Minnesota, while Plaintiff Thompson appeared on a radio talk show hosted by Tom Valentine." It is not this paragraph which is itself readily determinable to be perjury, but it leads to the perjured statements and demonstrates the purposefulness of the Defendants' misrepresentations. The Defendants made the affirmative statement that the very first thing to occur, the "initial" contract negotiations, "took place in Minnesota." "In Minnesota" can either mean the Plaintiff was in Minnesota in person, or that the Plaintiff initiated contact with someone in Minnesota. By either interpretation, this statement is false and the Defendants knew it to be false when they made it. The Plaintiff Linda Thompson, lives in Indianapolis and has never been to Minnesota; she has "appeared" on the Tom Valentine radio program several times and every time she "appeared" on the Tom Valentine radio program, she was in Indianapolis, participating in the radio interview by telephone, which the Defendants knew when they made their sworn statements. [Plaintiffs' Exhibit M, Affidavit of Linda Thompson and Plaintiff's Exhibit R, Affidavit of Ben Moore.] So, by "took place in Minnesota," the Defendants can only have meant the alleged negotiations took place by phone. For a phone call to be considered "in Minnesota," means that the Plaintiff initiated a phone call to Minnesota. Thomas Valentine, in his affidavit submitted by the Defendants, admits at paragraph 2, that, "Linda Thompson appeared on the show via telephone as a guest." He has admitted that Linda Thompson was not physically in his studio in Minnesota, but was interviewed by phone, and that she was a "guest," which implies an invitation. This is further confirmed in the Plaintiff's Affidavit at Plaintiffs' Exhibit M and in the Affidavit of Ben Moore at Plaintiffs' Exhibit R. Linda Thompson was called by Tom Valentine. Tom Valentine solicited Linda Thompson to be on his program, by calling her in Indianapolis, and when Linda Thompson "appeared" on his program, he called her by telephone in Indianapolis, all of which the Defendants knew because they sponsor Tom Valentine's program. But by the language of the Defendants affirmative representation in their affidavits at paragraph 3, the reader was also lead to believe that the "initial negotiations" between Plaintiffs and the Defendants occurred between the Plaintiff and Tom Valentine. However, Tom Valentine, does not work directly for any of the Defendants, so even if that were true, it would have no bearing on any dealings between Plaintiffs and the Defendants and secondly, in Valentine's sworn statement, paragraph 3, he admits he "was not involved in any way with the negotiation of any terms or the execution of any contracts involving this transaction." So now there is nothing of substance left at all of the representations in paragraph 3 of the Defendants' affidavits: "3. The initial contract negotiations regarding the transaction in question between Defendant Liberty Lobby and Plaintiffs Thompson and the American Justice Federation took place in Minnesota, while Plaintiff Thompson appeared on a radio talk show hosted by Tom Valentine." But the question remains: What was the intent of the statement, worded as it was, when the facts were known to the Defendants? The Defendats knew when they filed their affidavits that their paragraphs 3 were nothing but intentionally misleading statements, that without dissection, would mislead the Court to the conclusion that the Defendants were asserting that Plaintiff negotiated a contract in Minnesota with Tom Valentine, when Plaintiff has never been to Minnesota and Tom Valentine has never engaged in any negotiations. Even by ferretting out the fact that Defendants were talking about a phone call, the Defendants lead the Court to believe it was Plaintiff who made the phone call, when Plaintiff had not, and that the phone call involved some sort of negotiations, when it did not. The Defendants' bolster the impression that Plaintiff was initiating phone calls to do business with the Defendants by the totally perjured statements by Defendants Carto, Liberty Lobby and Cronin at paragraph 4 of each of their affidavits, in which they claim that "any telephone communications between Defendant Liberty Lobby and Plaintiffs Thompson and the American Justice Federation, of which there were several, were initiated by Plaintiff Thompson." [Willis Carto prefaces his statement with the disclaimer, "With one exception,"] and by the perjured statements at each of the Defendants' affidavits at paragraph 6, "There have never been any prior business dealings between Defendants Liberty Lobby and myself with Plaintiffs Thompson and the American Justice Federation." Proof that the Defendants' statements about telephonic contact at paragraphs 4 of their affidavits and that the Defendants' statements about no prior business dealings at paragraphs 6 of their affidavits, are totally perjured is provided at Plaintiffs' Exhibit J which is a purchase order for videos that plainly demonstrates on its face: Telephone contact with the Plaintiff by the Defendants; Telephone contact initiated personally by Defendant Anne Cronin; Ongoing business transactions between the Plaintiff and Defendants; It is signed by the Defendant Anne Cronin herself. A more clear example of perjury, demonstrated in the Defendants' own hand, cannot be found than in the Defendants' affidavits at paragraphs 4 and 6. In addition to this damning bit of evidence of telephonic contact and ongoing business transactions initiated by the defendants, Amiee Lopez of American Justice Federation received several calls from Ann Cronin relative to Defendants' orders for tapes. Lopez's affidavit on this point also directly contradicts the affirmative, sworn statements by the Defendants that they have never initiated any telephone contact with the Plaintiffs nor engaged in business transactions. [Affidavit of Amiee Lopez at Plaintiffs' Exhibit S.] At Plaintiffs' Exhibit L, is a newspaper article from the Spotlight Newspaper, which is published by the Defendants themselves. It purports to give "the facts" about this present lawsuit, and makes several admissions of material fact that contradict the sworn statements of the Defendants. ~ Defendant Liberty Lobby admits that the conclusions reached, above, that the Defendants' affidavits at paragraph 3 were false and misleading, by the statement: "After Thompson appeared on Tom Valentine's Radio Free America program, sponsored by the SPOTLIGHT, many SPOTLIGHT readers expressed interest in obtaining the video, which quickly sold out. Because Thompson was unable to fulfill continuing orders with the speed necessary to service the demands of The SPOTLIGHT's readers, Valentine asked Thompson if it would be possible for Liberty Library to reproduce the video on its own to fill the orders and pay her royalties therefrom." This is an important admission because, it is a public admission by the Defendants that directly contradicts the Defendants' sworn statements [Affidavits of Willis Carto, Liberty Lobby, and Anne Cronin, paragraph 3 in each) attached in support of their Motion to Dismiss, in which the Defendants claim: "3. The initial contract negotiations regarding the transaction in question between Defendant Liberty Lobby and Plaintiffs Thompson and the American Justice Federation took place in Minnesota, while Plaintiff Thompson appeared on a radio talk show hosted by Tom Valentine." [emphasis added.] The public admission in the newspaper story admits that it was only after Plaintiff appeared on the radio show and only after people began calling Liberty Lobby to inquire about the tapes, did it even occur to the Defendants to sell the tapes, and at that time, the Defendants did not try to negotiate any agreement to reproduce the tapes, they just placed orders for the tapes from the Plaintiffs at the wholesale price to sell for themselves. This portion of this version of the Defendants' story is supported by Tom Valentine's affidavit, where he admits he "was not involved in any way with the negotiation of any terms or the execution of any contracts involving this transaction." Not to mention that Thomas Valentine's affidavit further demonstrates that the Defendants' can't get their stories straight, even in their own affidavits. This fact alone illustrates that Counsel for the Defendants did not satisfy the requirements of Rule 11 in that he had an affirmative duty to ask questions about the self-contradictory issues facially presented in the Defendants' own affidavits. Taken with the public admissions of the Defendants from the news story, it is obvious no "initial negotiations" took place "during his radio show," nor "in Minnesota," for that matter. It is plain from the Defendants' own admissions that whether "initial negotiations" in the Affidavits of Carto, Cronin and Liberty Lobby at paragraph 3, means contact between Tom Valentine and the Plaintiffs or contact between Liberty Lobby (or Willis Carto or Anne Cronin), and the Plaintiffs, in either case, every initial contact was initiated by the Defendants who called the Plaintiffs in Indianapolis to schedule radio interviews, to conduct radio interviws and to order tapes, contrary to their sworn claims in their paragraphs 4, claiming that they did not initiate any telephone calls to plaintiffs and that all such contact was initiated by plaintiffs, and also showing that the Defendants made continuing orders for tapes, contrary to their sworn statements in paragraphs 6 of their affidavits that they had no prior business contacts with the Plaintiffs. It is also clear that all of these statements were for the purpose of avoiding a determination that the Defendants were "doing business in Indiana" or "deriving any benefit" in Indiana (TR 4.4) The defendants obviously know these definitions or they wouldn't have gone to such lengths to try to deceive the Court on these points with false statements of fact and omissions of material facts in their sworn affidavits. Paragraphs 3, 4 and 6 of the affidavits of Defendants Cronin, Carto, and Liberty Lobby are knowingly and willfully false statements of material fact. These affidavits and the motion to dismiss based upon these affidavits, and the allegations contained in the motion at paragraphs 2, 4 and 5, are an unmitigated fraud on the Court. The Defendants' also make the affirmative assertion in their Motion to Dismiss that "Defendants have not initiated sufficient minimum contacts with the Plaintiffs in the State of Indiana" to be subject to jurisdiction. This is an omission of material facts and an misrepresentation of material facts, which were well known to the Defendants. The Defendants know full well that they have the following minimum contacts in this state: ~ At Plaintiffs' Exhibit P is a newspaper article which ran in the Defendants' Newspaper, the Spotlight, this past week, in which the Defendants admit that Spotlight newspaper Bureau Chief Mike Blair regularly co-hosts a radio broadcast in Indianapolis each Tuesday on a radio station originating in Greenwood, Indiana and broadcast in Indiana on the following stations: WXLW Indianapolis AM 950 WGGR Greenwood, IN FM 106.7 WHON Richmond, IN AM 930 WSLM Salem, IN AM 1220 WDHM Salem, IN FM 98.9 WGL Ft. Wayne, IN FM 94.1 WCVL Crawfordsville, IN AM 1550 WHSW Frankfurt, KY FM 99.7 ~ Selling its newspaper, Spotlight, on newsstands in Indiana and by mail order subscriptions in Indiana; at Plaintiffs' Exhibit A is the affidavit of Lawrence Hornacker, attesting to having purchased the Spotlight at a local grocery, at Plaintiffs' Exhibit Q is a West Side Indianapolis Newspaper from the grocery advertising the Spotlight as a premium; from this it may be presumed that the Spotlight regularly sells its newspapers to newsstands within Indiana, in addition to its mail order subscriptions. ~ Soliciting the Plaintiffs' business on numerous occasions directly relevant to this action (soliciting the Plaintiff to appear on radio, twice, calling Plaintiff for the radio interviews, and faxing orders for videotapes to the Plaintiffs in Indiana); in fact, the Defendants have not merely omitted this fact, but have intentionally misrepresented it, above, in perjured statements. ~ Polling daily by computer (via telephone lines) for information and news services from the Plaintiffs' Computer News Network feed in Indianapolis, which were then re- broadcast in Washington, D.C. by the Defendants) [Plaintiff's Exhibits I and J]. ~ Selling videotapes through their newspaper and magazine advertisements in Indiana and making delivery of those videotapes to people in Indiana who ordered them; All of which is more particularly set forth in Plaintiffs' Response to the Defendants' Motion to Dismiss and incorporated by reference as if fully set forth herein. 20. The Defendants have made statements that are readily demonstrated to be materially false and perjured statements in their affidavits. The Defendants have omitted material facts known to them. These fraudulent acts were intended to mislead the Court to accept the allegations in their Motion to Dismiss that the Defendants have had no minimum contacts with this state. This is well beyond "frivolous," it is a clear fraud upon the Court, and it has subjected the Plaintiff to unnecessary litigation and expense. 21. The plaintiffs are entitled to sanctions against the Defendants pursuant to Rule 11, for subjecting the Plaintiffs to unnecessary litigation by these wholly fraudulent pleadings, and to an award of attorney fees and costs of defending these fraudulent claims. 22. The Plaintiffs move this Honorable Court for an additional monetary sanction against each of the Defendants and their counsel for the outrageous nature of this particular filing which was submitted with knowingly and willfully perjured statements, in an amount sufficient to punish the Defendants for their conduct and to deter such conduct in the defendants and in like-minded individuals in the future. 23. The Plaintiffs further move the Court for an additional specific sanction against the Defendants' counsel for failing to make a reasonable inquiry into the truth of the affidavits he submitted, as readily evidenced by the fact that the Defendants' own affidavits contradict one another. If the Defendants' counsel had even read what he himself submitted, this much should have been obvious. SUPPORTING LAW: 1. The Court's personal jurisdiction over the Defendants is without question. The minimum contacts in this state necessary for jurisdiction over these Defendants are satisfied several times over, pursuant to Indiana Rules of Trial Procedure, Rule 4.4, which include: "4.4.(A)(1) Doing any business in this state." See, generally, Tietloff v. Lift A Loft Corp., 441 N.E.2d 986 (Ind.App. 1982); Ogden Eng'g Corp. v. St. Louis Ship, 568 F.Supp. 49 (N.D. Ind. 1983), for a discussion of "minimum contacts" necessary to exercise jurisdiction over nonresident defendants. The Defendants have each submitted an affidavit which contains perjured statements of material fact and omissions of material fact, intended to defraud the court of Personal jurisdiction in this case by representing that the Defendants have had virtually no contact with the State, despite extensive contacts within the State, contacts that directly injured the Plaintiff in the State, and contacts outside the State which caused injuries to the Plaintiff inside the State. Indiana Rule of Trial Procedure, Rule 11, requires that: "Every pleading or motion of a party represented by an attorney shall be signed by at least one [1] attorney of record in his individual name . . .The signature of an attorney constitutes a certificate by him that he has read the pleadings; that to the best of his knowledge, information, and belief . . . there is good ground to support it;" IRTP 11 and "Any person who falsifies an affirmation or representation of fact shall be subject to the same penalties as are prescribed by law for the making of a false affidavit." IRTP 11 Pursuant to I.C.  35-44-2-1, Perjury, any person who makes a false, material statement under oath or affirmation knowing the statement to be false or not believing it to be true or has knowingly made two (2) or more material statements in a proceeding before a court or grand jury, which are inconsistent to the degree that one of them is necessarily false, commits perjury, a Class D felony in the State of Indiana. See Pollard v. State, 29 N.E.2d 956, 218 Ind. 56 (1940); State v. Wilson, 59 N.E. 932, 156 Ind. 343 (1900). Pursuant to I.C.  35-44-3-4, Obstruction of Justice, a person who makes, presents, or uses a false record, document, or thing with intent that the record, document, or thing, material to the point in question, appear in evidence in an official proceeding or investigation to mislead a public servant commits obstruction of justice, a Class D felony in the State of Indiana. Pursuant to the Rules of Professional Conduct, Rule 8.4: "It is professional misconduct for a lawyer to (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) [engage] in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; IRTP 8.4 Pursuant to the Rules of Professional Conduct, rule 3.3(a)(1)(2)(4): "(1) A lawyer shall not knowingly make a false statement of material fact or law to a tribunal; (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act against a tribunal by the client; or (4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures. (b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6" IRPC 3.3(a)(1)(2)(4) See, generally, State Board of Dental Examiners v. Judd, 554 N.E.2d 829 (Ind.App. 1990); Mechanics Laundry & Supply, Inc. v. Wilder Oil Co., 596 N.E.2d 248 (Ind.App. 1992); Austin v. Sanders, 492 N.E.2d 8 (Ind.App. 1987); U.S. v. U.S. Currency, 863 F.2d 555 (7th Cir. 1988); Eggers v. Phillips, 710 F.2d 292 (7th Cir.), cert. denied, 464 U.S. 918, 104 S.Ct. 284 (1983); In Re Cook, 526 N.E.2d 703 (Ind. 1988), cert. denied, 493 U.S. 1023, 110 S.Ct. 727, 107 L.Ed. 2d 746 (1990). WHEREFORE the Plaintiffs pray this Honorable Court to award to the Plaintiff attorney fees of defending this motion and to assess substantial additional Rule 11 sanctions against the Defendants and their counsel, and to refer the Defendants' affidavits to the U.S. Attorney for investigation of perjury, fraud, and obstruction of justice, and for all other relief just or equitable in the premises. Respectfully submitted this 20th day of January, 1995, ___________________________________________ Linda D. Thompson Attorney at Law Indiana Bar #16533-49 LINDA D. THOMPSON Attorney at Law 3850 S. Emerson Avenue, Suite E Indianapolis, IN 46203 (317) 780-5203 Certificate of Service I certify that a copy of the foregoing has been sent by First-Class U.S. Mail, Postage Pre-paid this date to: Mr. J. Edward Sandifer, Graber and Sandifer, P.C., 7351 Shadeland Station, Suite 201, Indianapolis, IN 46256, and to Eric J. Neese, Tree Top Communications, RR 1 Ob 368, Richland, IN 47634. ________________________________________ Linda D. Thompson January 20, 1995 BY CERTIFIED MAIL, #____________________________________ Mr. Willis Carto 300 Independence Avenue, S.E. Washington, D.C. 20003 Dear Mr. Carto: I am attaching a copy of an article from your newspaper, Spotlight, of December 19, 1994, entitled "Hostile Action Unwarranted," which contains false and intentionally malicious and defamatory matter about me. In fact, the entire article is malicious and intended to defame me. I demand an immediate retraction and a full apology. This retraction and apology should be made in a position at least as prominent and large as the original and appear at least twice in your publication and repeatedly on Tom Valentine's and Mike Blair's radio broadcasts. Specifically, this article contains the following false and defamatory statements: "Attorney Linda Thompson, best known as the promoter of the controversial video, "Waco: The Big Lie, has filed an unwarranted and totally baseless $2,920,000 lawsuit against Liberty Lobby. . . ." In the above defamatory statement, you have impugned my professional reputation as an attorney, by identifying me as an attorney, but then claiming that I am best known as a promoter of video tapes, and that the suit filed against Liberty Lobby is "unwarranted and totally baseless." This conveys the image of a carnival hawker and ambulance chaser, as you intended, and holds me up to ridicule in the community. The statement that I am "best known as the promoter of the controversial video tape, 'Waco: The Big Lie,'" is false, in that I am not well known, and where I am known, I am not best known as "the promoter of the controversial video tape." In fact, but for your having produced poor quality bootlegged copies of my tapes, there was also no genuine "controversy" over my tapes at all. The statement that the suit against Liberty Lobby is "unwarranted and baseless" is patently false and you know it. I am suing you for theft of my work, conversion of my work, and appropriation of my name to your commercial advantage. You admit every element essential to this lawsuit in the rest of the article. So to claim my lawsuit is "unwarranted and baseless" is a knowingly false. It also alleges that I have committed a crime by filing a baseless and unwarranted suit, so your claim is libellous per se. You next state, "This is at least the second lawsuit that Thompson has filed against a populist organizations (sic) that she perceives to be hostile to her agenda -- whatever that agenda may be." This statement is wholly false and malicious in that the lawsuit against you has nothing to do with "populists" nor with any "perception of hostility to any agenda;" the suit is based upon your outright fraud and theft. I gave you plenty of time to make good on what you had stolen from us, without having to make this public and you didn't make the slightest effort to resolve this. So who has an agenda here? If anything, your theft and fraud were motivated by your own agenda, which was to undermine my company. Your deliberate mischaracterization of this suit as "part of an agenda" is an intentional attack upon my character intended to damage my standing in the public eye. Caught red-handed stealing from us, you now attack me, to use my name and reputation for yet another article, again for your commercial purposes. You've stolen from us, used your paper to advertise our tapes that you bootlegged, you ruined our documentary and the public's perception of it by producing such poor quality copies that people could not see the flames in the flame-throwing tank portion, we ended up having to replace hundreds of tapes because of you and we had to hire extra staff as the result of the hundreds of tapes we had to replace. You then have the gall to use my name in your paper yet again to churn up a controversy and sell your papers by bad mouthing me, Worse, in order to bad mouth me, you point to the very problems that you caused with your poor quality bootlegged copies, as proof of my tapes having been "called into question." The statement that "Suspicions about Thompson's agenda began to emerge in the wake of her sudden injection of herself into the controversy over the Branch Davidian holocaust in Waco" is false; further, it is a direct contradiction of your own paper's continuous use and endorsement of my findings -- until you were caught bootlegging, that is. No one questioned my "sudden injection" at the time I began investigating Waco, and least of all, you. Secondly, how dare you question and mischaracterize my investigation as if it were some sinister plot, particularly when you failed to do anything at all about the atrocities committed in Waco, other than steal my work and the work of others? You refer to my investigation as my "agenda" to cast me in a light of innuendo, framed by the word "suspicions," further impugning my character. Next you claim, "Never before known in the populist movement, Thompson became an overnight celebrity in some circles." I am not now, nor have I ever been, nor do I wish to be a member of the "populist" movement, as your statement implies. Worse, it implies that it is somehow deficient for me to be "never before known in the populist movement." I consider your association of me with the populist movement at all to be defamatory. Did you happen to notice that your own story is self-contradictory? I thought not. First you claim it is me who is the sudden celebrity in populist circles, but then you claim I am attacking populists, giving people their choice of the slam-du-jure, I suppose. Both claims are unequivocably false. After attacking my character as suspicious, you impugn my video, "Waco, the Big Lie" by beginning the sentence with the word "Although" followed by the generally opposing words, "then" and "but." This structuring leads the reader to believe that my tapes do not document evidence of FBI-BATF criminal wrongdoing in Waco, in the statement "Although there is very strong documented evidence of FBI-BATF misdeeds throughout the course of the Waco affair --thoroughly reported on in The Spotlight -- Thompson's allegations were particularly explosive but quickly became the subject of much controversy -- even within the patriotic circles that were enraged by what had happened in Waco." Your statement that in my lawsuit against Liberty Lobby, I have "made the false claim that Liberty Lobby illegally reproduced and distributed copies of (my) video, 'Waco: The Big Lie' without (my) permission" is false and defamatory per se in that it alleges I have committed the crime of perjury or false swearing, by implication, and it impugns my reputation as an attorney. It also implies that you did not do the things I have alleged, which you did in fact do. You portray yourself in a good light through your knowingly false statements and wholly denigrate me and my character, making it appear that I have filed a frivolous suit, when in fact, you are lying, both in sworn statements to the court, and in this article, evidencing the malicious intent of your article, and this, after stealing from me. You claim that "many people" began "questioning the validity of some of the claims made by Thompson in the video," and to bolster that, you add that "What's more, at least one attorney for members of the Branch Davidian families, Kirk Lyons of the Cause Foundation, expressed concern that Thompson's activities were harmful to his case. Similar concerns were raised by others throughout this time frame." This statement is irrelevant to your assertion that my claim for your theft of my product is baseless and is added solely to portray me in as negative a light as possible. Further, you are quoting and promoting a self-professed racist and member of the KKK, who himself has no credibility on that basis alone, in order to put his name before the public eye -- thereby promoting a self-professed racist, in keeping with your agenda -- while simultaneously denigrating me. This is insulting, degrading and humiliating. You claim that "at this juncture, Liberty Lobby determined that it would be best to cease distributing Thompson's video." And in that statement, you reveal that all of this negative, false, and defamatory prattle is nothing but a poorly crafted pile of lies to explain why you stopped bootlegging my tapes. Noticeably, you do not mention that "at this juncture" was months later, after you had promoted our tapes for your own advantage for months and after we had caught you red- handed and demanded payment. Then, when you could suck no more from the sales, you turned to attacking me in your paper, instead, using my name for your commercial advantage yet again. You simply have no shame. You ridicule my claim for misappropriation of my name, claiming that I "willing appeared on the Tom Valentine" program. When I appeared on the Tom Valentine radio program, I was promoting the videos for my company, American Justice Federation, which you well know. When you stole my tapes and began promoting them for your own advantage, you ran a printed copy of my interview with Tom Valentine, to promote sales for your company, not mine, and without my knowledge or my permission, and you were promoting bootlegged copies of our work! To claim that I "willingly appeared on Tom Valentine" as if this is some justification for using a transcript of that broadcast to promote your bootlegging is outrageous. You also act as if I should be delighted by all this, bragging that you gave me "greater and more widespread national publicity than she had ever received before." Notoriety is not something anyone strives to achieve and I certainly never once asked to appear publicly anywhere to promote myself at all. All I have ever tried to do is make the public aware of what happened at Waco. I am not the issue, nor have I ever sought to be the issue and for you to characterize this as giving "me" publicity implies that I sought it, when I did not. By even having my name mentioned by your paper, my credibility was instantly shot because your publication is such a disgusting hodge podge of yellow journalism with a well established reputation as a racist and anti-Jewish rag. I was subjected to an onslaught of vicious media attacks and public humiliation for having been associated, unwittingly and unwillingly, with your racist and anti-Jewish publication, by your appropriation of my good name. You have made false and wholly fabricated statements in an effort to cover your tracks, but your own sworn affidavits submitted to the court prove your lies in this article. Every false statement in the article, when the article in its entirety is intended to defame me, is a malicious, defamatory, statement. At the time you went to press, Mark Lane had bailed out of this lawsuit, since apparently even he recognizes a dog when he sees it, so your representation that Mark Lane was preparing your defense was yet another false statement by you. Your own statements, in sworn affidavits now filed with the court, show you to be an unmitigated liar, in that those statements, submitted under oath, flatly contradict what is represented in this story. I attach your sworn statements and my pleadings relevant thereto and incorporate them by reference as if fully set forth herein, for your reference. You say I made the "false claim" that you illegally reproduced and distributed copies of my video, Waco, the Big Lie," and admit in your own article there was never any agreement for a royalty figure. You claim to have had Tom Valentine negotiate an agreement with me, when Tom Valentine himself filed a sworn affidavit denying this; you admit that you ordered video tapes from us as a result of customer demand for the tapes after I appeared on Tom Valentine's show, but in sworn affidavits to the court, you claim a deal was negotiated during Tom Valentine's show to allow you to market my tapes. You claim you ordered tapes from us and we couldn't keep up with the continuing demand and you claim to have written me with an offer to pay a royalty, yet both you and Ann Cronin filed sworn affidavits with the court that you never had any contact with Indiana and that any solicitations originated with me; You can disavow the sworn statements and face perjury charges or you can admit that the sworn statements in court are true, which then admits that the statements in this article are false and you knew them to be false when you published them. That is libel per se and fraud. Take your choice. This is your notice of my intent to sue you for libel and false light invasion of privacy, pursuant to Indiana Law. Please be governed accordingly. Very truly yours, Linda Thompson

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