Edward Detwiler et al

Would you tolerate your attorney doing this?
(Neither do we.)

Last updated 12/15/2009 5:42 PM

Columbus, Ohio (December 13, 2009) — The former attorneys for Leader Technologies submitted individual sworn affidavits in their 1,236-page defamation lawsuit Motion for Summary Judgment (MSJ) on December 2, 2009, which Leader has now had an opportunity to review. All commentary is Leader's opinion.

Legal experts consulted are mystified by the MSJ´s sheer volume and timing. MSJ´s at this stage are normally filed by the defendants – the ones being sued – not by the plaintiffs. Leader believes the volume represents an attempt to overcome lack of evidence with volume. In any event, Zacks et al demanded a jury trial. Filing a summary judgment before discovery in their lawsuit raises serious Rules questions. Defamation cases swing on the facts (or lack thereof) surrounding the alleged defamation. The fact-finding, including depositions and subpoenaed testimony, has yet to occur. Here´s just one example of the lack of facts in the plaintiffs´ Affidavits (Aff.):

"McKibben regularly posts false statements about the Plaintiffs that defame them, and specifically me and/or place them or me, in a false light, knowing the statements to be untrue or with reckless disregard to their truth or falsity." (Zacks Aff. § 8, Dunn Aff. § 4, Steiger § 7, Detwiler § 4).

These are identical statements in the Zacks Dunn, Detwiler, and Steiger Affidavits and beg the question: Why are they making exactly the same word-for-word complaints? Since they are making identical complaints, is it not appropriate to extrapolate that they acted in concert, as McKibben and Leader allege? Otherwise, identical allegations are nonsensical. Their affidavits include numerous identical statements.

Plaintiffs say repeatedly that Leader and McKibben made false statements and knew they were false. However, these assertions are conclusory and unsupported. MSJ´s must prove "beyond reasonable doubt" that no disputes of fact exist before they can be granted.[1] The discovery to determine the facts has just begun in this case.[2] A repeatedly copied accusation of wrongdoing and self-serving personal affidavits are conclusory assertions and not permitted in a motion for summary judgment (see Footnote 1). Such legal writing as this is indicative of the plaintiffs' level of legal care and illustrates why Leader sought new counsel.

"Mr. Zacks did not attempt a takeover of the Company" (MSJ, page 8, para. 2)

Plaintiffs paint a picture of benevolence, veracity and righteous indignation. They represent themselves as holding only the shareholder's highest interests and say repeatedly that they did not conspire to take over the company. Detwiler Aff. § 2 ("My reputation for professionalism, integrity, and honesty is impeccable" ), 3, 19, 20, 41; Zacks Aff. § 2, 3, 4, 6 ("I attempted to assist..." and "I was drawn back in" and "suggested all debts be paid" and "commiserate with other shareholders" ), 15 ("forced to submit malpractice coverage claims" ), 16 ("[Leader and McKibben] injure[d] me" and "alienated from the community" ), 17 ("wholeheartedly encouraged McKibben to make the company successful" ); Steiger Aff. § 3 ("Mr. Zacks… act[ed] solely as a scribe" and "[I] contribute[d]… to move the company forward" ), 4 ("I tried to get McKibben to honor his commitments" and "I was forced to hire collections counsel" ), 9, 13 ("I have been damaged" ), 14 ("ridiculed in my occupation" ), 15; Dunn Aff. § 3, 4, 8, ("All these statements are false" ), 11 ("shamed and ridiculed in my profession" ), 12; Wittenberg Aff. § 2 ("protecting my reputation from slanderous attacks" ), 8 ("nothing I have done… is even remotely unethical" ), 12 ("lies spread by McKibben" ), 13).

Plaintiffs´ characterizations of due care and innocence stand in stark contrast to other elements of their testimony, which we believe anyone of ordinary skill in business knows are highly disruptive activities. For example:

1. Cancelling meetings whose purpose was to resolve differences, and instead filing this defamation lawsuit (e.g., Wittenberg Email, May 7, 2009; see blog citation and evidence below);
2. Chronically failing to bring concerns to the Leader Board of Directors (e.g., Detwiler Aff. § 19, 27, 28, 32);
3. Encouraging former programmer employees, including Betsy Foote, to file lawsuits; telegraphing a new strategy to drive Leader into involuntary bankruptcy by organizing three creditors — three dubious lawsuits were forthcoming over the next 18 months (e.g., Detwiler Aff. § 20, 22, 30, 36 [asserts bankruptcy statements untrue, PDF p. 52]; click here to read July 9, 2004 Detwiler email to Betsy Foote [not produced in discovery by the plaintiffs in this case, but produced by Rampelt/Detwiler in their lawsuit]);
4. Misleading representations of truthfulness based upon legal procedural errors and not on the merits (e.g., Steiger Aff. §
   8, 9; Leader appeal of partial summary judgment);
5. Harassing Leader and McKibben with "$1.5MM" damages number concocted by attorney Wittenberg "appropriate to punish" (e.g., Steiger Answers to Interrogatories §10, page 6, May 8, 2006, linked here);
6. Filing lawsuits with dubious claims (e.g., MSJ, page 12, para. 2 ; Detwiler Aff. § 29; Def. St. No. 89, page 51; Def. St. Nos. 119, 120, 121, 122, 123, 124, 125, 126, 127 & 128, pages 59-62; MSJ, pages 678-681; Discovery Abuse - Institute for Legal Reform);
7. Refusing to be bought out after making assertions that the company is "worthless" (e.g., Steiger Answers to Interrogatories §4, page 3, May 8, 2006, linked here);
8. Interfering in the SpartaCom business transaction (e.g., Zacks Aff. § 2; Steiger Aff. § 4,5; Dunn Aff. § 1; MSJ page 994,1001, — pages 1004-1005 — [see Zacks Aug. 6, 2003 email, page 1004, para. 2 – "Objectives... (1) Stopping the SpartaCom deal" — (linked here)]; MSJ, pages 640-641);
9. Disparaging management to third parties as current and former legal counsel. (e.g., Zacks Aff. § 6; MSJ page 973-974, page 979-983; see also "Interfering in the SpartaCom business transaction"; False Light St. No. 5, para. 1);
10. Breaching attorney-client privilege. Evidence of such breaches are included in MSJ, pages 1004-1010 and 1016, then in a different location, pages 637-641 show the related Zacks email and attachment where he breaches Leader´s and McKibben´s attorney-client privilege. (MSJ, pages 637-639; Def. St. No. 22, para. 2; MSJ, page 7);
11. Zacks states multiple times not to be subject to attorney-client privilege professional rules for present and former clients (e.g., MSJ, Def. St. No. 5, 20, 45, 92, 93, 94, 129, 130, 131, 132, 133, 134 & 135; Zacks Aff. § 11,12; False Light St. 5).

    Neither Leader or McKibben have ever agreed to absolve Zacks et al of their fiduciary or professional duties. Such an assertion runs counter to everything Leader and McKibben believe and stand for regarding professional ethics, fiduciary duty and accountability. In fact, the Business Judgment Rule duties of diligence, loyalty, obedience (to laws and organizing documents), accountability, disinterestedness, due care, good faith and non-abuse of discretion were specifically signed on to by Zacks, Steiger and Detwiler. Click here to read Detwiler's Business Judgment Rule commitments May 23, 2000. (Such highly relevant ethics agreements were noticeably absent from Plaintiffs´ 1,236-page MSJ while some 130-pages of Clerk of Court Civil Case Detail were included.);

12. Acting without Board of Directors approval. Relying upon a secretly agreed absolution by a newly-appointed Leader officer acting without Board authority or knowledge (MSJ, p. 1039-1040 — Jerry Scott to Judson Scheaf [Zacks et al's attorney] "I will never discuss the contents of the call without your approval" (emphasis added); MSJ, p. 1042; (click here to read Scott-Scheaf Oct. 28, 2003 secret agreement just provided by plaintiffs and seen by Leader and McKibben for the first time);
13. Failing to comply with the governance and ethical commitments. (MSJ, pages 696-705); Director Services Agreement - Business Judgment Rule, see Detwiler affirmation [linked here])
14. Misappropriating trade secrets, even in the MSJ filing (MSJ, pages 950-1066);
15. Making false statements to Leader (See Wittenberg May 30, 2009 Email [linked here] claiming no previous association with Zacks, then see Wittenberg May 27, 2005 Letter [linked here] representing Zacks four years earlier.);
16. Circulating misleading legal concepts among unsuspecting third parties like "alter ego" and "minority shareholder rights" and "piercing the corporate veil", thus damning Leader and McKibben by innuendo using legal jargon and form over substance. Oh. R. Prof. Conduct. Responsibilities [5]; False Light St. No. 5; Def. Stat. No. 3, 58, 59, 60, 61, 92, 93, 94; MSJ, Conclusion, para.1; MSJ, page 475);
17. Inciting former employees and shareholders to assert dubious claims (Detwiler Aff. § 22,24,26; MSJ, pages 90-91; MSJ, pages 1056-1058);
18. Writing disruptive letters to government agencies (Detwiler Aff. § 28, 31, 32). Detwiler conveniently omits over twenty (20) email and letter exchanges with Ohio Department of Development officials. (Taken down prior to this lawsuit. Example of Detwiler documents linked here) Additional Detwiler documents linked below:

    2005-01-17 — 2006-01-13 — 2006-05-11 — 2006-09-22 — 2006-10-02 — 2006-11-08 — 2006-11-15 — 2006-12-04 — 2007-01-03 — 2007-02-12 — 2007-05-25 — 2007-08-01 — 2007-11-28 — 2007-12-19 — 2008-01-30 — 2008-02-20 — 2008-06-04 — Leader and ODOD eventually settled after The American Thinker and other national watchdog organizations picked up the story;

19. Misleading shareholders with false numbers and unauthorized use of shareholder names from Plaintiffs' position of privilege. (Def. St. No. 38);
20. Misleading courts. For example, McKibben has never expressed an opinion in any form whatsoever about U.S. Fed. District Court Judge Frost. Judges are public officials and subject to public scrutiny by virtue of their positions of public trust in any event. (Def. St. No.39, para. 7);
21. Making unfounded statements with no knowledge of the facts (Def. St. No. 42). The Ohio Department of Commerce conducted an investigation after receiving Detwiler´s complaints and found them meritless (Dept. of Commerce Email, July 12, 2007 [linked here] – Detwiler was identified as the complainant);
22. Stretching the veracity of Zacks´ testimony past the breaking point in asserting that his and Detwiler's actions have been unconnected (Def. St. Nos. 40-43);
23. Refusing to admit Plaintiffs´ Ohio Department of Development criticisms of Leader were unfounded following Leader´s discovery and Q1 2009 publication of unilateral alterations of its financing application by ODOD officials on about April 23, 2003 (linked here). These changes were never communicated to Leader, yet used in reports to the Ohio legislature a year later; and
24. Including nonsensical discovery documents in the MSJ, like a current lease dispute with Leaders´ former landlord; irrelevant to this present case. (MSJ, pages 564-605).

Leader asserts that Zacks et al´s disruptive actions highlighted above were self-fulfilling prophecies. Namely, create a problem, complain about it, attack McKibben for not fixing it, offer to be the white knight to fix it, stir up trouble to ensure that the "problem" will not go away, file dubious lawsuits in support of your concocted causes, then use your knowlege of the weaknesses of the court system to string out expensive lawsuits until Leader´s lawyers slip up or get litigation fatigue (Zacks Aff. § 6,10; Detwiler Aff. § 14, 15, 19, 24, 26, 27, 28, 29, 30, 31, 32, 33, 34, 36; Steiger Aff. § 4,5; Dunn Aff. § 5; Wittenberg Aff. § 5, 6, 7).

Plaintiff´s MSJ venom is focused on Leader´s Founder and Chairman Michael T. McKibben, and yet they have also sued a dozen others, most of whom do not even know them. Attorneys are not permitted to sue people merely to harass them (Oh. R. Prof. Conduct. Responsibilities [5).

"Stop interfering in Leader´s business"
(Steiger Aff. § 8)

Steiger´s Affidavit itself clearly identifies Leader´s sole purpose in resisting the Plaintiffs actions: "Stop interfering in Leader´s business". (Steiger Aff. § 8) This unambiguous statement by Leader stands in stark contrast to Plaintiffs´ accusations, largely centered on McKibben, that he has engaged in a campaign to discredit the Plaintiffs. The fact is that McKibben and Leader have no interest in the Plaintiffs and simply wish them to stop their dubious lawsuits and legal activity and leave the company alone to pursue business instead of consuming pointless hours resisiting plaintiffs´ actions. (Detwiler stated to Jeremy Float earlier in 2009 that his intention was to "punish Leader for what they have done", link affidavit here, contrary to Plaintiff's numerous assertions of constructive intent in the MSJ - linked here).

Plaintiffs´ testimony denying attempts
to take over the company

Plaintiffs sworn statements in their Motion for Summary Judgment regarding Leader´s allegations of having been involved in attempts to take over the company as its former legal counsels and fiduciaries include the following.

• "there was never any conspiracy, business interference, or attempt to ´take over the company.´" (MSJ, page 20, para. 2)
• "…the minority stockholders could not and did not take over the Company and had no ambition to do so." (MSJ page 7, para. 1)
• "Zacks never desired to ´take over´ the company´ [sic] and essentially sat on the sidelines for over two years before he was made the subject matter of the McKibben conspiracy theory." (MSJ. Def. St. 37, page 22, para. 1)
• "Mr. Zacks did not attempt a takeover of the Company"
  (MSJ, page 8, para. 2)
• "I have been damaged … for [being accused of] allegedly doing these things and trying to take over the company." Steiger implies he did not participate in a takeover attempt, but does not say so explicitly. (Steiger Aff. § 13)
• "I was not, never was, and still am not, any part of any conspiracy to put the company out of business or take over the company." (Detwiler Aff. § 29)
• "None of the Plaintiffs desire to "take over the company".
  (Def. Stat. No. 3, pages 2-3)

 

Stay tuned.

The MSJ is 1,236 pages long. The citations initially gleaned from it and shown above may contain inadvertent citation errors and will be corrected as they are identified, if any.

Footnotes:

[1] "A trial court may not enter a summary judgment if it appears a material fact is genuinely disputed. The party moving for summary judgment bears the initial burden of informing the trial court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. The moving party may not make a conclusory assertion that the non-moving party has no evidence to prove its case. The moving party must specifically point to some evidence which demonstrates the non-moving party cannot support its claim." Mason v. Allstate Ins. Co., 2009-Ohio-6204.

[2] "On summary judgment the moving party has the burden to establish the absence of a genuine, that is, disputed, issue as to any material fact. On summary judgment the court does not decide the issue of fact; it decides whether there is a genuine issue of fact. A summary judgment should not be granted unless the moving party demonstrates a right to a judgment with such clarity as to leave no room for controversy." Muggli, Christine Bremer. Motion For Summary Judgment — A Change is in the Air. Wisconsin Bar Association. Last accessed December 13, 2009.