Saturday, November 8, 2008

Legislative Recommendation: Time for Indiana General Assembly to Slap Down SLAPP lawsuits

Nothing makes my blood boil more than a private company doing business with government, i.e. you and me, suing a private citizen who dares speak out about possible violations of the law by the company.

Not a fan of Wikipedia, but it has an excellent definition of what a SLAPP suit is all about:

"A Strategic Lawsuit Against Public Participation ("SLAPP") is a lawsuit or a threat of lawsuit that is intended to intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. Winning the lawsuit is not necessarily the intent of the person filing the SLAPP. The plaintiff's goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. A SLAPP may also intimidate others from participating in the debate."

SLAPP suits are about a big company using their limitless financial resources to intimidate and silence private citizens who dare speak out about legal violations big company might be committing. This legal strategy is made possible by the American system of awarding attorney's fees which basically says that, with very few exceptions, both sides have to pay their own attorney in a lawsuit, regardless of the result. Big company knows that private citizen doesn't have the resources to pay an attorney and thus the company will bleed the person to death or until he or she agrees to stop criticizing big company.

Well Diana Vice, private citizen extraordinaire, spoke out about Tremco's inflated roofing charges to public school corporations and the failure of Tremco to go through the bidding process. She talked to everyone who would listen about the taxpayer rip-off, including legislators, members of the Daniels' administration and the Attorney General's Office. How did Tremco respond? By hiring a big law firm to sue her to shut her up. Well it didn't work and the other day the Indiana Attorney General's Office issued an opinion concluding that Diana Vice was correct that Tremco violated the law.

While the legislature has enacted a chapter, IC 34-7-7 et seq., dealing with protections for people confronted with SLAPP lawsuits, which includes making big company pay the little person's legal fees, the fact is judges remain instinctively reluctant to go against the American tradition of the litigants paying for their own attorney, win or lose.

There is a very simple way the legislature can put real meat onto the anti-SLAPP law. Public work contracts are already legally required to contain wage and anti-discrimination provisions. The legislature could simply pass a law that public works contracts must include a provision that says if a company is found to have filed a SLAPP lawsuit under IC 34-7-7 et seq., the contract is void. Problem solved. No private company is going to want to risk using the legal process to intimidate a private citizen if the company is potentially going to lose the contract because of filing the lawsuit. To those companies, it is all about the green.

As a lawyer, I find nothing more despicable than a big company using a big law firm to intimidate a private citizen who does not have the resources to fight back. Personally I would not only pull Tremco's ticket from ever having a public works projects in Indiana again, I would also make an example of the big law firms which have aided Tremco in going after little ole' Diana Vice. Maybe that's overkill, but hey I'm an SOB on such matters. I do not think we lawyers should put aside our ethics and integrity because there is a big corporate client willing to pay us a lot of money.

On a more positive note, Melyssa over at Hoosiers For Fair Taxation has suggested the nomination of Diana, who runs the Welcome to My Tea Party blog, for the 2008 Sam Adams Alliance "Sunshine" Prize. I second that nomination. Here is a link that describes the award and what you need to do to vote. I would advise voting for Diana because of her courageous sacrifice on behalf of taxpayers. I'm sure the monetary prize would also come into use due to the tens of thousands of dollars in attorney's fees I'm sure she's on the hook for as a result of defending herself (and our rights) against Tremco's SLAPP lawsuit. Hopefully the judge in Diana's case will eventually slap down Tremco. In the meantime, let's make Diana a winner of the "Sunshine" Prize.


Diana Vice said...

To say that I am left speechless would be an understatement. Thank you times ten!!! [as she wipes a tear away]

Paul K. Ogden said...


You are the one who is desrving of thanks for all you have done. Me, I spent a half hour writing this. You've spent a year or more battling this on behalf of the people.

By the way, you're in charging of promoting this legislative proposal to the legislators who supported you in your efforts. It's such a small, simple change, but it would stop in its tracks these SLAPP lawsuits.

Diana Vice said...

Thanks, Paul. Your legislative idea is my next big project. I'll be looking for two bi-partisan co-sponsors real soon.

Anonymous said...

Diana deserves the award. And more.

I can tell you that Tremco's harrassment of Diana is just part of their pattern of conduct - a cog in the wheel of what they have done in the major part of the scam, the actual bidding processes usually employed in construction.

The Purchasing Association scam is very recent, within the past ten years. It is very important to have that part of the scam stopped...and Diana has been able to do so, with investigators and lawmakers who appear to be honest, as opposed to the whole of California's system (save one State Auditor) - who have refused to do the right thing.

The construction contract bidding scam began in the early 60's, from what roof consultants have told me in California.

And it appears it started on the West Coast - with Tremco.

Tremco harrasses in the following manner:

1. They have sued former employees ad infinitum who leave them;

2. Sent a letter to the state attorney general in Missouri asking for a criminal investigation of a school administrator that dared to question Tremco's specification and then allowed another product (the Administrator won by producing a letter where Tremco stated that the test the Administrator relied on to allow the equal was equal to the test they performed - while stating otherwise in the letter to the State Attorney General;

3. They have made false accusations towards a roofing contractor in a letter to a Federal Attorney General's Offices - for daring to step out of the round-robin small pool of roofing contractors and bidding another product - at half the cost.
Tremco accused him of making the product bad and applying it on that air force base's two other roofs (only one of which he had done) when only an extremely expensive high-speed mixer made in Austria can mix the product. The tests were made on product overage sold to the contractor on other projects. The tests proved that Tremco had shipped him bad product - and apparently knew it.

4. Assured that in my whistleblowing case that I would lose it, and that almost all investigations were stopped, save one State Auditor whose offices were stopped for six years from making the damning report they were finally allowed to make.
I went to the FBI in January 1997 and reported that my bosses at the University of California, San Francisco told me that they were getting kickbacks for illegally sole-sourcing construction products, the most obvious being Tremco roofing products.
A former Tremco rep told my boss I had gone to the FBI, after one of the agents gave him my name (the former Tremco rep was working for Firestone at the time). I was put in Archives for months...then after the "firing", the grievance was bifurcated (illegally and against all procedures in other University of California cases). The "hearings" were held by the Manager of Purchasing, one of the involved employees, and against all other codes requiring state employees to give testimony under oath, no testimony on the part of any individual at UCSF was taken under oath. Then it got much we went from court to court, every normal law that should have applied was ruled not, and I was receiving daily or more hang on/hang up calls, death threats and goons following me one week before the lower courts/ rulings (the date of the rulings coming out unknown to my attorneys, whom I would call with each incident and who were as baffled as I)....and then the horrific blackballing and loss of a livable income, destroying one's finances. Oh yes, they tried to stop me from going up at each level. But they had help from those in the Administration at the University of California, who did not want their lifestyle-enhancing goodies stopped, and that's putting it mildly. So the California Supreme Court ruled that the University of California was a "fourth branch of government that did not have to obey any laws" in March 2005 (oh yes, it took 8 years), against the University of California's own charter. You see, the Administrators had pulled out from under the Academic Senate (illegally) and taken - get this - the freedoms of academia into their business operations!

So as you can see, if I had been successful in my 8 year quest to get something done by 2005, 14 years after I started that job and immediately began protesting the illegal specs - then Diana Vice might not have had to go through what she has. And so many others I know of....

When Judges, Legislators, and State and federal Attorney Generals - all politicians - give in to "pressure" or take that great job, etc.....
we all lose. I have lost 17 years of my career, my well-being and life to it.

So Tremco, simply put, is a real danger to our communities, our schools, and professional's health, safety and welfare if you do the right thing....not to mention a monopoly created through incredible corruption.

As the former San Francisco School Board President told me she told a Grand Jury looking into the all-too familiar (to me, since the late 90's) theft of school funding by facilities guys, "Everybody does it!" she told the Grand Jury. Then proceeded to threaten my life....she had brought me to the former Mayor/leader of the California State Legislature - who also showed me his great disdain.

It's a hard fight, but when you have people who do the right thing, and not a one-party state, you can win. You can't in California, it's too far gone. This state is cooked, in every respect.

At least and thank heaven at least - Diana's had a good chance of stopping the Purchasing Agency part of the scam!

Anonymous said...

The law was amended I thought after a school board member in Muncie had a one week trial over whether words taken out of context were slanderous. It needs further amending and it would be nice to know just which Indianapolis Law Firms have been taking money to persecute taxpayers

Anonymous said...

Interesting enough the Toth Ervine firm of Indianapolis sued the Muncie guy and then found out that all their business with Indiana schools had dried up. I think they later went bankrupt or ceased doing business for some other reason

Diana Vice said...

The law firms representing Tremco, the multi-million dollar roofing company that sued taxpayers, are as Krieg Devault, Barnes & Thornburg, and Ice Miller.

M Theory said...

TREMCO and Ice Miller spent about an hour visiting the HOOSIERS FOR FAIR TAXATION nomination of Diana Vice.

That just gives me even more fire to help Diana win this national prize. I'm going to nominate her for the $10,000 prize as well as the $5,000.

Thanks, Paul for coming in to confirm she is a good recommendation. Of all the activists I know in Indiana right now, I can't think of one that has endured or achieved as much.