Editor’s note: this week we commemorate the 2-year anniversary of the lawsuit that almost killed Mojo Supreme back in May 2006. See Part 1, 2 and 3 or read on for Part 4, below:
Litigation is a Racket
I’ve frequently quoted former U.S. Marine Major General Smedley Darlington Butler who said “War is a Racket” but let me add, litigation is too. In fact, litigation is the biggest scam purpotrated on corporations. But, lawyers get a bad rap, that’s right: blaming lawyers is easy for a lawyer is as bad as his client’s worst habits, but bad lawyers do indeed bring out the ugly in people.
Blitzkrieg Can Backfire, Too
When Adolf Hitler launched Blitzkrieg in 1939 against France’s Maginot Line, he managed to annhilate the French defense line because a) his forces were superior and represented the greatest army of his era and b) the French Maginot line was a joke.
The point is: a lightning strike works admirably when the stars are aligned in your favor, but if your offense is weak and the opposition is no schlep, the opposition can use the tactics against you.
From my estimates, the lawyers for IGN, Fasken Martineau, had been planning their onslaught since February. In March they sent me a letter and by April had gathered most of their ammo. In May they crossed the t’s and dotted the i’s and unleashed their Operation: Douchebag.
Anyone I asked seemed to agree: I was not violating my non-competition and the non-competition would be hard to enforce, hence the injunction: get me to spend myself into losing.
But what triggered the massive action of seeking a motion to shut me down and prevent me from doing anything was one of two things, in my opinion: either a series we did on Men with Mojo OR some fashion segments such as How to Tie a Tie. Frankly, in my opinion, there is a very big difference between an article on men’s fashion tips and a video showing how to tie a tie - especially when my non-compete stated “no men’s magazine” and not “no video for men”. In fact, we were doing a lot more content for women at the time.
Moreover, for my former employer to publish some sort of Men We Love profile (to go along with their Maxim-inspired Hot Women list) would be queer. Incidentally, they proceeded to swerve towards heterosexually-challenged territory by copying WatchMojo with their own Top Men’s list, which was gay. No, there’s nothing wrong with that, but I digress.
Meeting with Destiny at 9am
As you can imagine, I welcome this kind of nonsense. It’s fun. If you want to argue or debate me, be careful what you ask for. I had prepared a long series of more intelligent arguments and counter points… but stepping into the courtroom, that was the problem, I had largely prepared for a Merits case, and not a defense to a motion for an injunction.
While I did have a series of points challenging their assertion that my operating WatchMojo.com :
- was an urgent matter
- posed irreparable unmeasurable harm to them
- was more hurtful to them than stopping it was to me
- was not a frivolous matter
I had, in all honesty, gone about my defense the wrong way. Had I presented that day, I would have certainly spent too much time arguing the merits and not challenging their injunction motion enough.
This, of course, was to be moot, but not for the reasons you might think.
The Right to Represent Myself
In our earlier piece, we explained that I was being sued personally and my company was being sued professionally. In Canada, an individual can represent himself but a company must be represented by a member of the bar. It’s common sense: shareholders would lose their marbles if an executive risked their investment and did not hire a lawyer. Technically I was the lone shareholder, but the Code of Civil Procedure was seemingly clear on this point.
At 9am I stepped into the Court and I really had very little idea where to go. I was growing worried about not knowing all of the little steps involved.
We entered a room where lawyers congregate; a Judge calls the case number, the lawyers for the two sides go up and are assigned a presiding Judge and a room number.
When I entered this room, I was so clueless that I thought, “maybe we argue in this room”. I’m telling you, think Mr. Bean.
Anyway, when the Judge called our case number, I saw not one but two lawyers from Fasken step up. I got up and walked to the front, presented myself and whispered “My name is Ashkan Karbasfrooshan and I am representing myself”.
The lead Fasken lawyer added: “My Lady, we are suing his company, he cannot represent his company”. Regardless, we were assigned a time and a room. It was now 9:30am or so, and our case was set for 1:30pm.
Hurry Up and Wait
You have to understand, I wanted to drop the gloves and go then and there. But that was not to be. We were given a rendez vous time and their lawyers handed off the brick of papers to the bailiff. I was about to hand the bailiff my stack when I swear their lawyers were caught off guard.
There was no way anyone would have had the time to digest all of the garbage and venom my erstwhile partners had spewed, let alone prepare a defense. But while the form was incorrect and incomplete, I had, what I think to this day, a solid case.
As luck would have it, the more senior lawyer objected to the fact that they had no copies of my papers… so this move inadvertantly saved my butt to some extent. Let me explain:
If I would have submitted that initial line of defense that I had prepared on May 9th on May 10th, the lawyers could have singled out a sentence or exhibit and turned it against me. This is what law is all about: picking one thing a witness or defendant says and dissecting it. In law, indeed, loose lips sink ships. In PR, any PR is good PR. Both are cliches are both are largely true.
So between 10am and 11am I headed off to the photocopy shop to make copies, plenty of copies. I think I went through about 5,000 sheets of paper between May 9th and May 16th.
Good Lawyers are as Bad as their Clients’ Worst Traits; But Bad Lawyers Bring out the Ugly in People
By 11am I was finished with my photocopies and got back to the courthouse. Litigation is a lot of hurrying up and waiting. Lawyers bill clients for all of that time, so they don’t care. They email clients and friends back and forth, all on their clients’ time. If you start to do the math, from May 9th until that moment, if I would have had repesentation, my legal bill would already had been in the thousands. That Wednesday alone, between 9am and 1pm, we would have waited several more hours, all billable no less, without even talking to the Judge. This was Fasken’s strategy, I think, though they were sure they had a slam dunk case, or so had pitched IGN, who was footing this increasingly large legal bill.
The Staredown
In one of the most bizarre moments of my life, I spent much of that late morning in a staredown with their lawyers as we just waited. I think they were a bit dumb-founded as to why and how I was representing myself.
For one thing, I could not represent myself legally. At one time, the senior lawyer came to me and asked point blank: “where’s your lawyer?”
“I don’t have one” was my answer. “What happened to Blakes?” he replied, referring to the expensive law firm that I had reply to Fasken’s initial letter.
“They weren’t my lawyer, they just helped me with the reply. I don’t want to fight you guys… but if I have to I will” I answered…
“Listen, I’m the President of the Bar association… there’s no way I will go in a courtroom with a commoner”.
Now, I need to interject, that is my translation. Montreal being a bilingual city, lawyers can change back and forth between French and English. The lawyers taking me on were French Canadians and “President of the Bar Association” is translated to “batonnier” - my French is pretty good but I did not even know what he meant by that. In some ways, I guess it was a good thing for me not to know who this big shot lawyer was… because believe it or not, I was trying to psyche them out by staring them down and trying to intimidate them.
I know that sounds very crazy… but at that time, it made no sense to show weakness…
He obviousy did not care about my preferences or my personal life, he was a paid hitman and was paid handsomely to take me out.
Remember however that part of their case, I believe, was to force me into expensive litigation. Representing myself ran counter to that and the mere notion that this big shot lawyer would take on a commoner was beneath him… so I was essentially frustrating him without even knowing it.
Secondly, why would I even want to represent myself? The truth is I actually like those kind of things. I want the ball. I want to be in pressure spots. That’s why I started a company. I want to be go-to guy - and while you can do that in a VP role - I did not want to work for a douche bag, which I was doing at my old job.
The Parade of Stooges
Speaking of douchebags… by noon the parade of stooges began and one by one my former partners and colleagues began to show up. I was wondering where they were at first. But seeing them finally rear their faces did two things: it signaled that we were getting close to the main event, but it also proved who was behind this unfair and malicious attack.
Not seeing them in the morning initially made me think that maybe this was all IGN’s doing and the Askmen guys were actually against this, and not showing up was their way to let me know that they were against it.
Yeah right!
Like a pack of hyenas, one by one they began to show their ugly mugs. First it was president Ric Poupada. Then the VPs Luis Rodrigues, Chris Rovny. Those three guys walked away with $7M dollars in the sale to IGN; they then pushed me out of the company and here they were getting ready to dance on my grave. If it was not enough, Armando Gomez (the other small shareholder) showed up too. And to add insult to injury, two more members of the “brain trust”, James Bassel and Alex Lefebvre showed up for added effect.
So there you had it, in one corner, me; in the other: no less than 6 back-stabbers from Askmen and these two lawyers, one of which was the President of the Bar Association.
Manage Your Emotions
A part of me wanted to tear into these douchebags and give them hell. And you know what, that is what they probably expected. But I just looked at them: disappointed, disgusted, somewhat dejected, too. I won’t rip them here. I am pretty over all of that. Writing this is more about what - and who - entrepreneurs should avoid. I don’t regret many things in life but the one thing I do is my association with all of them. Karma on their judgment day will take care of them.
Please Rise
By 1:30pm… the Judge had arrived, we were told… and it was time for us to step into the ring.
The judge walked in, and frankly, it was an eerie silence. Imagine two sides lining up and getting ready to go to war: on one side, the President of the Bar Assocation and his second in command, and on the other side, Mr. Bean posing as a lawyer.
I was, without a doubt, a deer caught in headlights.
“Who are those men” - opened the Judge, pointing at the stooges in the bleachers in the rear.
“They are my clients, my Lordship” answered the lawyer.
“All of them?”
A small detail indeed… but this reiterated the theme of excess: excessive force in the tactics, excessive stretching of the truth in the affidavits, excessive affidavits (seven!) and an excessive amount of douchery from these clowns in the back.
It would be one more example of just how personal, meritless and frivolous this case was… though at the time, this was premature to even think of.
I had to think about getting through this round: a sudden death stage where technically, the Judge could shut me down until the next phase of the injunction phase, a period which they would have surely stretched out… meaning that a decision against me was in fact a mortal blow, and that, I believe, was the Blitzkrieg they were planning for and counting on.
Substantive vs. Procedural
The only thing I knew was that as the defendant I had to sit to the right side of the courtroom - God bless Law & Order. Unlike Law & Order, however, this being a Canadian court, it was not “my Honor” but rather “My Lordship” (or “My Lady” in the case of a female Judge).
Other than that, no clue. Not even close. Don’t get me wrong, in a normal debate and dialog, I would walk away the winner. That’s not being over confident, no sense in false modesty on this issue: there was no way a lawyer - no matter how experienced - would debate the substantive on all things Web and media. I have not met anyone that knows as much useless crap than yours truly (no, this is not a compliment).
But when it came to everything procedural, I was clueless and this was causing me much worry and anxiety. After all, you can scare someone down but if your hands are tied behind your back and your eyes are covered, a beatdown is a certainty
Because of that, I guess I fully expected a beatdown, what I wanted to avoid was destruction.
Think Global, Act Local
Their lawyers were quick to point out that I was in default because I did not have a lawyer (and my company needed to be represented by a member of the Bar). But since they were suing me, I guess I could go on personally and this would create procedural problems down the road (Ash and the company were largely one and the same in the eyes of the court, so how could one party be in default but not the other?)
Regardless, I am pontificating there. Technically, the Judge could have found me in default and handed them a victory, but I think some Judges don’t want to do that because - while I did not know it then - injunctions are actually hard to obtain and shutting down a small company and even smaller entrepreneur in favor of the mighty News Corp., Fox Interactive, IGN and Askmen combo was probably not something a Montreal Judge wanted to do without knowing the facts and hearing the arguments.
Hey there’s no business like show business and no bigger name than News Corp. and FOX.
As I knew then and say now, I never really viewed News Corp. or even Fox Interactive as the enemy, not even close.
I always viewed:
- IGN’s Mark Jung (mainly) and Dale Strang (less so) as the ego-tripping, free-spending madmen who were keen to make an example out of me, and
- AskMen’s Poupada as the main drivers of this crusade. He and I had disagreements but he showed his lack of tact on a world scale for all to see. The harm he caused me is considerable and as I said, karma is a bitch.
Regardless, I believe they mishandled a lot of things during the proceedings. One of those mistakes, frankly, was including the corporate FOX name on the legal paperwork. Let me explain:
- To entertainment and sports fans, let’s face it: FOX is an amazing brand we love (think football, The Simpsons).
- To news consumers, it’s a more controversial brand, but a powerful one nonetheless. It can take down Presidents, move markets and in fact strikes fear in the hearts of corporations worldwide.
In Montreal - and fiercely independent and proud province of Quebec - seeing “FOX” stroll into the courtroom and try to shut down a local entrepreneur was probably not the smartest thing to do. I think they should have left this as “IGN and Askmen” vs. “Ashkan Karbasfrooshan” - I can only imagine IGN/Askmen and their lawyers figured that emphasizing News Corp. and FOX would freak me out more, which I guess it did… but to the eyes of the Judge, it would no doubt cast this as a David vs. Goliath case which let’s face it, scores sympathy marks for David.
I can’t say at that at the time I gave this “branding strategy” much thought… but when the Judge turned to me and asked me why I did not have a lawyer on hand, I responded:
“My Lord, they are a very large corporation, we pose them no threat and don’t compete with them… ”
The Judge promptly cut me off and told me “Stand up young man”.
My joy of remembering to call the Judge My Lord turned to anxiety when I had forgotten to stand up. This was not going as well as I thought.
The Judge continued:
“Obviously you want to compete in the big leagues,” he said, pointing to the paperwork and focusing on the names of the company taking me on… “and to compete in the big leagues, you need counsel young man.”
Litigation is a racket, I tell ya…
Injunctions: Interlocutory vs. Provisional
He then turned to the lawyers and asked: “Why have you filed a motion for an interlocutory injunction?”
The room was silent. I looked at the lawyers, then to the stooges in the bleacher seats… then at the Judge.
The lawyers whispered something to the effect that they were seeking a motion for injunction against me because there was an urgent matter at hand.
The Judge cut them off and continued: “exactly, if the matter is urgent… you would not be seeking an interlocutory injunction, but rather… ”
I was standing there wondering why the Judge was giving tips to the President of the Bar Association… I am not certain if the Judge finished the sentence for the lawyer or if the lawyer managed to guess what kind of injunction he should have filed for… but the gist was the same: ’twas not an interlocutory injunction they should have sought, but a provisional one, because the former did not imply an urgent matter but the latter did.
In hindsight, I do not know if the venerable Judge helped me or hurt me, or for that matter was trying to help or hurt me then. All I know is that the Judge urged the lawyers to go back and draft the right kind of injunction and told me to get a lawyer.
Their lawyers were eager to get a date for the next day. But that was not to me, the soonest we can get a date was Monday May 15th at 9am.
I can’t say I was happy. I wanted to get this over with. One way or another I wanted an end to this…
The judge made a mention to how he might not be the presiding Judge that next Monday, to which the President of the Bar mentioned “oh yes, you will be at the Montebello golf tournament,” I thought it was odd for such a chummy exchange.. and I guess the Judge agreed:
“Right now I am a Judge and you a lawyer and where I will be this weekend is none of your business”. I don’t know if this was acting on the Judge’s part but it was clear that behind-the-walls relationships would, or should I say might play a part.
At that point, the Judge told us to go home… and return Monday.
An Anti-Climactic Showdown
I headed back to the office. My employees were expecting an answer. The entire thing was surreal and anti-climactic.
In some ways, had my former colleagues not shown up, I think I would have considered going to the lawyers and saying “let’s settle”. Later on I found out this was not the goal. Jung and Poupada wanted me to do nothing: no WatchMojo.com videos, no BloggerMojo.com blogs (imagine a world without HipMojo?), no MetaMojo.com search engine, no StreetMojo.com application. They really sought destruction and annhilation. This is why, I think, they are lucky that apart from this 2-year look back, I pretty much leave them alone. But if they ever even dare: I will go crazy on them, and they know it.
The point remains: seeing those baffoons show up, I channelled my anger and resentment into finding a way to win. There was no guarantee I would win, in fact, for all intents and purposes it was more sure than ever that I would lose on the procedural. In fact, I was 100% convinced that I would lose. I had already began to think about contingency plans for what to do with my staff? I could not lay them all off… so I thought how can I change WatchMojo.com and start from scratch. At the time I had spent $100,000 at most on the company but it was still a sizable amount and the time alone (6 months) was considerable.
That night, my back was on the wall. I realized I could not possibly fight this alone, I would need someone to help me manage through the procedural. In an ideal world, I would craft the substantive strategy but defer to them on procedural stuff.
The problem? For one, that would lead me right into their trap with an expensive fight. A second problem, it was not Wednesday end of day. Technically, I had Thursday and Friday to both find someone and ramp them up on Web media and competition (to explain why we were not competing with them). We could always ask for a delay, but again, this would have played right into their hand. I wanted a swift end to the hostilities.
How could I get there? Back at the office, I went into planning mode.
Not an hour went by when the door knocked again, it was the bailiff, this time with an amended motion for a provisional injunction.
The bastards. I guess a part of was hoping this would go away. That was not to be. They were relentless, shameless… I had to go nuclear, but how?
See Part 5 here.
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