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, 3, 4, 5, 6, 7, 8, or read on for Part 9, below:
In Eve of Destruction I, we talked about the angst and worry I faced over a potential defeat when I had to show up to court less than 18 hours after being served with injunction papers.
But just a few days later, the tide had turned; though certainly, my aggressors did not know it from their launching pad.
In Eve of Destruction II, we looked at how I had become confident of defeating my enemies by turning their weapons against them.
Through a combination of luck, extensive studying of the law and, well, not actually having done anything illegal, I went to bed Sunday night confident of victory the next day.
The Right to Self-Representation
As we outlined in The Final Countdown, I did have a particular concern to worry about, but this was a procedural one. Since the petitioners were suing both me personally and my company, the company had to be represented by a member of the Bar. In fact, part of the reason the presiding Judge on the preceding Wednesday told me to go home and come back on Monday was to find one.
Frankly, I could have argued that suing my company was not called for a few reasons. If we were to get all procedural, then:
- For one: All of the URLs that I had registered were registered with my personal credit card. However, since I’d initially used the domain registration service to register websites for my books, the default name was Granicus, and, indeed 6059350 Canada Inc.’s operating name is/was Granicus. However, Granicus itself was nothing more than my publishing company, the unit that had published Course To Success: Everything You Need To Succeed Beyond School and The Confessions of Alexander the Great: 33 Lessons in Greatness.
- Second, and more importantly: in typical Ashkan fashion, I had forgotten to pay our annual registration fees back in 2005 (when I was still a VP at AskMen and had no intention of doing all of this), so technically, as at May 2006, 6059350 Canada Inc. was still listed as a corporation in state of dissolution. They were suing a non-entity.
Of course, while I was more than willing to fight a conservative tactical fight instead of a risky and flamboyant one, I was not at all interested to waste the Court’s time by arguing that.
Lastly, the injunction specialist and I had on Friday found a passage in the court of civil procedure that stated could be interpreted in a way that suggested that a non-member of the Bar could in fact represent oneself (Editor’s note: I will post separately on this down the road, since I need to dig in to my “archives” of the case, but a few people have emailed in asking about this, so I will certainly follow up - and thanks for the interest in this chapter of my life).
While I welcome a good debate, let’s face it: had I even touched on these points, my counterparts would have accused me of wasting the court’s time and the Judge would have surely scolded me and forced me to hire a litigator (if not outright found me in contempt of court).
That’s something an actual lawyer would resort to. Not me. Not on this day. No way. I wanted a fair fight where I could destroy my enemy. I was not interested in a TKO. It would be a knockout and a bloody messy one. One for the ages.
I stopped getting into fistfights in high school when I wised up and realized that people actually got hurt… But sheltered with their parent company’s billions, I swayed myself to fight back knowing that in a worst case scenario, they would feel the stinging humiliation of defeat and leave me alone.
Either way, whatever the reason, I chose not to worry too much about this risk, for the simple reason that it was out of my control.
That is a good lesson if of itself: don’t sweat over what you don’t control but focus on what you can.
A Tactical Dismantling of Their Entire Strategy and Annihilation of their Forces
Having already been assigned a presiding Judge along with her Chamber room number, Monday morning I went straight to her floor and once again surprised my adversaries by showing up alone, unrepresented.
Unlike last time, when a parade of stooges showed up to dance on my grave, only my former boss showed up this time.
He stood inches away from me, showing pictures of his recent trip to the lawyers, armed with a battalion of legal briefs and suitcases.
It was a hollow display of false confidence; a manifestation of hubris one short stop before their downfall.
I gazed their way and smiled, confidently knowing that I would soon be dealing them a fatal blow in the courtroom that stood opposite of the Judge’s chambers.
Start of Hostilities
The Judge came out of her Chambers and told us to follow her in the more spacious courtroom.
We took our positions… and were asked if we wanted to proceedings to be recorded.
The Petitioners declined, I asked for the matter to be recorded. I did this because I wanted a record of this frivolous and arrogant attack on me, but expecting a positive outcome, I no doubt wanted a record of the carnage that we were about to witness.
Matter-of-factly, being a pretty paranoid person, I also wanted a recording in the event the subsequent verdict was surprising and counter to what I was expecting, in the event some behind-the-scenes strings would be pulled in favor of the President of the Bar Association. Recall how the friendly exchange between the Judge on Wednesday and the Petitioners’ lead attorney raised my suspicions? I would not leave this to chance.
Only the perpetrators of injustice burn history books and seek to rewrite it, I had nothing to hide, nothing to lose. I had everything to gain and I knew that with a victory today, the War could be won.
The Petitioners Speak
And so, the dance began.
Speaking in French, their lawyers opened up by painting me as an ungrateful, dishonest and arrogant thug who had crossed a handful of well-intentioned and benevolent managers. I, on the other hand, was a disgraceful troublemaker; a beast who could single-handedly take down a colossal of a company that spanned the globe’s oceans and rose to the skies.
I considered for a second asking the Judge to ask the lawyers to speak in English. Having studied in French, their choice of language was not problematic for me, but when it comes to business terms, naturally I am more at ease in English.
More importantly, had I urged them to speak in English, this would have put the two French-Canadian lawyers at a considerable disadvantage. I thought of doing that but once again, I wanted a resounding victory that left no doubt and more importantly, no excuses. This would be a rout, come heaven or high water I would embarrass them out of Court even if they spoke Swahili.
While it might have been more prudent tactically to urge them to speak in English, strategically, it might have offended the presiding Judge who, while perfectly bilingual, did have a French name. As such, I did not say a word.
Their lawyers spoke for about 33 minutes… hurling countless criticisms and trying to make the case that I was violating my non-competition, and that in fact, an online magazine publisher was no different whatsoever than an online video producer.
I made one mistake, which was more rude than catastrophic, when at one point I tried to add in a comment.
The judge, who was taking notes and shaking her head as the barrage of accusations and insults piled on, told me to keep quiet and that I would get my chance to speak.
Choice of Jurisprudence
They went on, and on, and on. The main case they submitted, in essence, was a case where a managing director of Vivendi Games left to go run Ubisoft (or vice versa). Cover your heads folks, we have a smoking gun. For one, there’s a major difference between a chap leaving one company for a competitor. Second, it’s different when a CEO leaves for a competitor; and quite another when a guy is pushed out and starts a non-factor startup.
I knew this, they knew this… and judging by the Judge’s body language and facial expressions, the Judge knew it, too. I did not even worry much about countering this, frankly, and the choice of jurisprudence was a bit of a joke.
Assuming you care, the reason why this was laughable, irrelevant and moot, was that IGN’s concern was me leaving for CNET or Maxim, and not starting my own magazine. On the day I agreed to sign the non-compete agreement as is, it was because the VP who orchestrated the deal with AskMen (Richard Jalichandra, Technorati’s current CEO) told me so. He called me on my cell, we spoke for 21 minutes. I have the proof of the call.
Maybe that is why Richard did not join the lynch mob (along with IGN CEO Mark Jung, VP Dale Strang and unknown counsel Todd Murtha). Or, maybe Richard had cashed in his chips after IGN’s sale to News Corp. and already thinking about his next gig, which was at Tribal Fusion parent Exponential, before a stop at Battery Ventures, and now, Technorati.
Anyway… I sat there listening and actually learning. The lawyers continued and before I knew it, it was over.
Thirty-three minutes into their vitriol, they stopped talking.
I was expecting more, far more.
A Diplomatic Gesture
I recall getting up and taking off my watch (?) and in French, I thanked My Lady and the Honorable Court for allowing me the opportunity to speak and defend my case, I then apologized for switching to English mode, only so that I could better convey my case and relay the appropriate terms.
And then, it began.
Having since listened to the recording of the case (who wants me to post that? just let me know people…) at first there surely was a nervousness in my voice… but, despite fearing that I would jump out of the gates and rush my case: I launched into my defense:
“My Lady, I am here to prove that the Petitioners have not passed the four tests required to obtain this Provisional Injunction…”
Then and there, it was over.
Their lawyers leaned back, their eyes opened wide, knowing full well that this was not the deer that was caught in those headlights last Wednesday, but a worthy opponent who had shown up to play Game 5 and tilt the playing field the other way.
For the next 101 minutes (a whopping 1 hour and 41 minutes!) I honed in on 24 paragraphs out of their 134-paragraph, 27-page Amended Motion and used 11 exhibits out of their hundreds of pages of supporting evidence to destroy their arguments and crush their spirits.
It was fun, well worth the pain I went through the previous week… even though I knew it was not over… could it?
I went ballistic, emptying rounds of artillery and shelling all of their positions.
Bear in mind: they had alleged so many things, that it was not like I could defend one or two points and walk away victorious.
I had to unleash a lot of ammo to even the score. And as much as I wanted to level their house or cards in its entirety by attacking and assassinating their character, I did not.
Considering how personal their attacks were, I considered going nuclear. But, while it’s quite easy to make war, it’s very hard to make peace.
But more importantly, I could not introduce new evidence.
While I did want to intimidate them and scare them from continuing to pick on me, I thought: “maybe an amicable resolution or settlement would be in the sights?”
In such a scenario, I could not unleash unrestricted warfare and burn all bridges because a path to peace would prove impossible.
So while I occasionally hinted at personal rife of a frivolous nature, I kept the focus on the affidavits and evidence that was on the face of the record. I did not attack their clients, even though they were using the lawyers as proxy forces to take me out.
Those bastards.
The Bigger they Are, the Harder They Fall…
I was a lone pilot flying into a storm taking on a big, bad beast.
One hour into my defense, I had flown 24 sorties, choosing two dozen weaknesses and plugging away at their argument. Unable to introduce new pieces of evidence, I could not unleash an atomic bomb and wipe out my aggressors.
I had to chip away - shift by shift, period by period - at their game plan and turn the tide to force Game 6, the Interlocutory Injunction.
Of course, throughout it all, I was setting the stage for a pre-emptive victory in Game 6 and 7 too.
Why not?
Think of countless movie scenes where an otherwise unassuming plane circles around a giant, tying up the giant’s legs… and then, suddenly, an opening to fly high and strike down when the enemy’s defenses are weak.
And then, the defenses opened up and a vulnerability was exposed.
At one point, the Judge asked me to explain, in greater detail, why the businesses were not competitive.
WatchMojo.com was carefully conceived as not to violate the non-competition definition of scope of business.
AskMen was a men’s online magazine - one I proudly help build - that catered to adult men; WatchMojo.com was a producer of video content for people of all ages.
The Judge herself added:
“I visited the sites…”
A silence took over the room.
“I saw a woman talking about covering her hips…”
I breathed a sigh of relief.
But she could have landed on a video on men’s fashion tips. So fucking what? The non-competition agreement said “don’t operate a men’s online magazine for 2 years after your tenure anywhere in the world”.
As a result of this trial, when that 2-year term expired, I added “Web Video Magazine” under the WatchMojo.com logo as an inside joke (I thought of sending them flowers this week, but didn’t)… but a magazine is not a video site. It’s a different universe. I could write an 80,000 post on that.
But beyond all of this, researching jurisprudence that weekend, I realized that in fact, governments encourage competition; the courts are only concerned with unfair competition where a clear and unambiguous case exists.
My former employer might not have liked my doing video, but the non-competition clause said nothing of video. Furthermore, while I did not argue this point, the non-compete was not valid. It was vague. Courts don’t want to interpret and clarify non-competes. When employers get greedy and push the envelope with them, courts strike down non-competition agreements.
The Smoking Guns That Remained Outside the Courtroom
That weekend, I had unearthed a lot of proofs which I was to present at the merits stage of the trial, if it ever got there.
A couple of the gems included:
- A revised version of a non-competition agreement that my boss tried to get me to sign in 2004 that all of a sudden included video (as well as radio, etc.). If the existing non-competition agreement included video projects, why suddenly table a new agreement for me to sign?
But, I could not introduce this piece of evidence. A second one was even more damning:
- An email I had kept proved that I had in fact asked for permission to promote one of my books off my articles, even though they had sworn that I had done so without their permission. This stone killed two birds at once: this was frivolous, it also proved that they had committed purgery, a criminal offense.
Speaking of Stones…
By now, the inevitable David vs. Goliath comparisons were par for the course, but while David won by introducing a new weapon into the struggle - by striking Goliath with a stone from his sling - I had to win by limiting myself to the weapons my adversaries had submitted to the court.
As my injunction guru had advised me to do, to begin the conclusion and wrap up, I pleaded with My Lady:
“Let us move forward to the merit stage of this trial, where I could introduce evidence and prove that I am not in violation of the non-competition agreement and that in fact, the Petitioners knew full well that the scope of the business in the non-competition agreement did not even include video…”
Ultimately, to keep things simple, I gave examples within the context of the scope of the business in my non-compete. I could sense that the Judge was siding with me… at one point, she added:
“I’m not sure, frankly, if a video site is the same thing as a magazine site…”
The tide had turned, you could tell. I looked once at Ric, who was the lone man from AskMen in attendance.
Then, as I was wrapping up, in a theatrical move befitting the trial, the injunction guru who had helped me form my defense that Friday night walked into the court…
“Hello My Lady, I am Mr. Karbasfrooshan’s advisor and am here to represent the company as its counsel,”
As she glided into the seat next to me… where the defendant usually sits. I looked at her and smiled, at which point, the Judge paused, and added:
“That’s right, Monsieur is not allowed to represent the company.”
Nope, Monsieur Ashkan is not… The big worry that I stopped worrying about was moot.
The petitioners’ lawyers, lead by the outgoing President of the Bar Association threw up his arms, having already given up, and murmured something to the effect of “he would not listen to our request to be represented…”
Welcome to my home turf. This series was going to Game 6… maybe.
By now, I had spoken for 100 minutes… at some point, the injunction guru got up and simply added the few things that I could not say:
“My Lady,
The petitioners are trying to fool the court by misrepresenting the facts, walking into court with dirty hands, trying to get the Court to do their dirty work”.
I never did get the chance to threw out a “you can’t handle the truth” - but by then, at that point, I picked up my watch from the table… put it on… leaned forward, rested my hands on the table, stared at my adversaries across the aisle… looked back at my advisor… then looked at the Judge and simply said:
“My Lady, thank you for your time, the defense rests.”
The Judge looked at the Petitioners and asked if they had anything to add. By then, Ric, my erstwhile partner and former partner-in-crime had scribbled some notes and relayed them to his lawyers, who added in broken English:
“My Lady, my client also has videos”,
Referring to the videos they snag from around the Web and publish on their site.
By then, I began to wonder, who is trying to copy who?
But before getting the chance to add much, I saw their lawyers turn back to my old boss… signal that the time was nigh to signal defeat in said battle and retreat.
“We rest our case, My Lady.”
Having started at 9:30am… it was now almost noon… the Judge looked at the time… she was exhausted… like my audience usually is.
She thanked us all and told us to return tomorrow to render her verdict.
The snakes slimed their way out of the scene… and as I walked out… they were out of sight.
The stage was set for the next day. The Judge renders her verdict.
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Posted By: Ashkan Karbasfrooshan | May 14th
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