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« The Entrepreneur | Main | Not fake, no, not really - Josh 149 »
Sunday
Feb192012

Heartland issues legal notices

The Heartland Institute has issued legal notices to at least two of those who have been engaging in dubious tactics after the faking of the strategy memo became clear.

Firstly there is DeSmog and secondly there is Greg Laden, the blogger who was the subject of considerable interest among Tallbloke's legal team a few weeks back.

...we respectfully demand: (1) that you remove both the Fake Memo and the Alleged Heartland Documents from your web site; (2) that you remove from your web site all posts that refer or relate in any manner to the Fake Memo and the Alleged Heartland Documents; (3) that you remove from your web site any and all quotations from the Fake Memo and the Alleged Heartland Documents; (4) that you publish retractions on your web site of prior postings; and (5) that you remove all such documents from your server.

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Reader Comments (201)

@Russell, and precisely what does that have to do with the issue at hand?

Or in your eyes, are not all equal in the eyes of the law?

Some are more equal than others? People like yourself perhaps?

That is just a rant, fortunately the legal system is not run by people like yourself.

Feb 20, 2012 at 7:32 AM | Unregistered CommenterJiminy Cricket

Russell, that last para was just sensational!
C'mon, come clean, you're Prof Sokal aren't you?
If not, have a gold star for effort.

Feb 20, 2012 at 8:04 AM | Unregistered CommenterGrantB

Agree on Russell's magnificent paragraph. I'd like to borrow most of it.

At once over-lawyered and scientifically outclassed, the AGW Project has provided a very poor return on cultural capital for the corporate rent seekers and globalists that subsidize it. One has a positive duty to warn Intellectually serious people to subject its offerings to fiduciary fact checking as a matter of due course, as they tend to implode on even cursory scientific examination.

Feb 20, 2012 at 8:40 AM | Unregistered Commenteredward getty

"At once over-lawyered and scientifically outclassed, it has provided a very poor return on cultural capital for the corporate rent seekers and Dominionist religious zealots that subsidize it. One has a positive duty to warn Intellectually serious Conservatives to subject its offerings to fiduciary fact checking as a matter of due course, as they tend to implode on even cursory scientific examination."

Que?

Feb 20, 2012 at 8:45 AM | Unregistered CommentersHx

"inquisitional barratry", "Dominionist religious zealots". Using Zipf's law, or some corrollary thereof, I think we can conclude that 'Russell' is indeed Russell Seitz, he of the eternal purple prose that so enlivened this blog a few months ago, especially on this thread. I keep a very fond memory of his phrases such as "the semiotic comedy of manners that renders sites like this and WUWT so perversely enjoyable".

Feb 20, 2012 at 8:53 AM | Unregistered CommenterJeremy Harvey

@Jeremy Harvey

I missed that thread at the time but found this bit:

"Instead of a scientific counterestablishment orchestrating its own interdisciplinary case, this site , like WUWT is a bibliographic wasteland, an intellectual cottage industry catering to the politically incensed and science hobbyists ill equipped to fathom or sort out the good the bad and the ugly in the voluminous literature this subject produces."

Yep, it's him.

Feb 20, 2012 at 9:08 AM | Unregistered CommentersHx

And this:

"As to your last charge, conservative Bishops imputing climatological expertise to Horace-spouting viscounts are in no position to criticize ordinary bits of scholarly apparatus, i.e. the vide supra seen above.As a fellow tory I hope your pseudoepiscopal snit subsides, lest it pass peer review at Private Eye, and earn a tenner for Mann's defense fund, which really wouldn't do."

Maybe he's joking with us.

Feb 20, 2012 at 9:11 AM | Unregistered CommentersHx

First, after reviewing that previous thread from Russell, I would like to apologise. It wasn't a rant, but his unique style. Sorry.

My meagre business derived, "one idea to a sentence", pales in insignificance. I am humbled.

Feb 20, 2012 at 9:13 AM | Unregistered CommenterJiminy Cricket

I agree with edward getty’s comment at 9:35 PM (yesterday) and pointman’s at 12:47 AM. And, as some here don’t seem to understand what’s going on, I’ll repeat a few things I said yesterday on the Josh post - mentioned by Don Pablo above.

Heartland has every reason for taking it nice and slow – no rush, no threats. It is issuing (I suspect to everyone who published and commented on the “Fake Memo” etc. – including therefore the Guardian and BBC) carefully worded letters obviously written following sound legal advice. They’re specifically intended to support, if necessary, an eventual legal argument that Heartland had acted courteously, consistently and reasonably in unpleasant and trying circumstances and, despite provocation (e.g. continuing publication of and comment on the documents), had done everything possible to get redress without having to resort to litigation - all of which would weigh heavily in its favour in court. Heartland doesn’t have to prove anything at this stage. And BTW, if eventually it sues for defamation (a civil not criminal action), the burden of proof would be on any defendant that posted and commented on the “Fake Memo” to show that it was in fact genuine: IMO that would be a very heavy burden in this case.

Heartland is playing what may be a long game where care and patience usually prevails. It seems to me that it’s playing it well and that DeSmog will find it's fallen into a trap and was unwise to continue publication. We’ll see.

Feb 20, 2012 at 9:15 AM | Unregistered CommenterRobin Guenier

Lovely, isn't it, sHx?

Feb 20, 2012 at 9:22 AM | Unregistered CommenterJeremy Harvey

When I read the words of Russell Seitz I hear the voice of Kenneth Williams. Is that just me?

Carry On Blogging.

Feb 20, 2012 at 9:35 AM | Unregistered CommenterGixxerboy

Russell actually reminds me of the compere of the Good Old Days, Leonard Sachs.

All together now...

Come, come, come and make eyes at me
down at the Old Bull and Bush,
Laa la la la la

Feb 20, 2012 at 9:42 AM | Unregistered CommenterJiminy Cricket

I'm loving Fakegate and the contributions of Russel and other earnest apologists. It's all funnier than a barrel full of monkeys.

Feb 20, 2012 at 9:53 AM | Unregistered CommenterGrantB

Jiminy Cricket

Leonard Sachs. Bang on!

Feb 20, 2012 at 9:56 AM | Unregistered CommenterGixxerboy

Jiminy Cricket
I had fingers poised to say exactly the same till I realised you'd got there first!
My first reaction to that 7.26AM post was that Russell subscribes to a higher branch of Troll Central than the average visitor from outer space. Obviously they only work Mondays to Fridays which explains why he's simply been treading water all weekend.

Feb 20, 2012 at 10:25 AM | Unregistered CommenterMike Jackson

I take it we have consensus that Russell could not have authored the fake strategy document.

Feb 20, 2012 at 10:44 AM | Unregistered CommentersHx

Bast and Taylor? I like that.

There are literally hundreds, if not thousands, who say the things Taylor says on his Forbes blog, perhaps even better. But that doesn't bother the warmies. What always gets them is the saying of the same thing at the all-important *prestige venue* Who knew that Forbes.com was one? These propagandists worship the prestige venue, and prostrate at its power. They don't care that you or I know - they only care, that those who don't know, do not come to know.

What more proof can be had, than the faker's fake memo itself?

Efforts at places such as Forbes are especially important now that they have begun to allow highprofile climate scientists (such as Gleick) to post warmist science essays that counter our own. This influential audience has usually been reliably anti-climate and it is important to keep
opposing voices out.

If I were Heartland, I would hope the string of Gleick vs Taylor posts go on and on, rather than 'keep opposing voices out'. The faker appears to have simply transplanted his thinking onto Heartland.

"Stupidity is always astounding; no matter how often one encounters it"
-Jean Cocteau

Feb 20, 2012 at 11:29 AM | Unregistered CommenterShub

Well, it looks as if DeSmogblog is up for a fight, even on the allegedly "fake" Climate Strategy document. Their rationale is that, although the Heartland Institute claim that the document contains "obvious and gross misstatements" of fact, they cannot find any, and HI has not indicated any.

As has been pointed out here, the onus will be on DeSmogblog to prove the authenticity of the document should this end in the civil courts. I doubt that the fact that the document contains some verifiable material will weigh as heavily with the courts as it does, apparently, with the bloggers.

Feb 20, 2012 at 11:42 AM | Unregistered CommenterNicholas Hallam

Feb 20, 2012 at 9:15 AM | Robin Guenier
I agree!

Good lawyers are good, not because of what they do, but because of what they avoid doing.

And it is the timing of what they do that is most the difficult, doing it before the event.

Feb 20, 2012 at 12:33 PM | Unregistered CommenterRobert Christopher

Nicholas Hallam:

Yes, DeSmog seems determined to tough it out. I think that’s likely to be a mistake – maybe a big one. You’re right: if it came to court, the onus would be on DeSmog to show that the alleged fake was genuine (at least that’s my understanding of UK law and I think it’s the same in the US). In my view, that could prove very difficult – arguably impossible. And, of course, if it fails, the fact that it consistently and egregiously ignored Heartland’s attempts to give it a way out, would count heavily against it when it came to damages.

Interesting.

Feb 20, 2012 at 12:47 PM | Unregistered CommenterRobin Guenier

@Russell:

"Copner, the reader stats for all articles including Michaels', Taylor's and Gleick's , are posted by Forbes daily."

Thank you. I was not aware of that.

I am sure it would be fascinating to read. Where do I find this information?

Feb 20, 2012 at 12:53 PM | Unregistered CommenterCopner

Then again, this may represent the start of the death throes of the movement. Apparently the California Academy of Sciences just shut down their global warming display because no one was coming to see it:

http://wattsupwiththat.com/2012/02/19/california-academy-of-sciences-pulls-the-plug-on-their-climate-change-exhibit/

Feb 20, 2012 at 1:01 PM | Unregistered Commenterneill

@neill... maybe HI had some bouncers on the entrance discouraging people from entering? The failure of any green enterprise just has to be due to them and their nefarious ((c) Warmists) connections.

Why else would it fail?

Feb 20, 2012 at 1:10 PM | Unregistered CommenterJiminy Cricket

Neill,

Clearly all they need is more alarmism....and cow bell!

Regards

Mailman

Feb 20, 2012 at 1:11 PM | Unregistered CommenterMailman

sHx

"Maybe he's joking with us"

Too earnest for that, I think, but he could still make Pseuds Corner.

Feb 20, 2012 at 1:12 PM | Unregistered CommenterJames P

Feb 20, 2012 at 9:42 AM | Jiminy Cricket

Russell actually reminds me of the compere of the Good Old Days, Leonard Sachs.

=========

But after several overblown and florid sentences describing the next act, Leonard Sachs always summed it up in a few words, "The Amazing Waldo is a juggler" or sometimes one word, "Juggling".

Feb 20, 2012 at 1:18 PM | Unregistered Commentercosmic

Why do I get the feeling that some bullies who has been terrorising the pupils and staff has been sent to the headmaster's office.

Feb 20, 2012 at 1:30 PM | Unregistered CommenterMike Haseler

Russell. Scrub my question. I see the views now. Needed to turn the contrast on my screen up (or get better eyes)

Feb 20, 2012 at 1:32 PM | Unregistered CommenterCopner

In response to GrantB---Here is where Heartland alleges a crime, but maybe Mr. Bast just sent it by accident to the wrong address. He should show the email that was send from the heartland. It will show what documents were attached and to whom they were sent.

Heartland (2-15-12) claims:

The stolen documents were obtained by an unknown person who fraudulently assumed the identity of a Heartland board member and persuaded a staff member here to “re-send” board materials to a new email address. Identity theft and computer fraud are criminal offenses subject to imprisonment. We intend to find this person and see him or her put in prison for these crimes.

http://heartland.org/press-releases/2012/02/15/heartland-institute-responds-stolen-and-fake-documents

Feb 20, 2012 at 1:52 PM | Unregistered CommenterSnapple

Further to my observations above, here (from Jo Nova’s site) is some advice from “memoryvault” to Greg Laden (another recipient of Heartland’s “comply and desist” (C&D) message):

Hello Greg,

As an old timer who has been both the instigator and the recipient in so many defamation cases I’ve lost count, please let me offer you some friendly advice:

Ignore the so-called “advice” above from your fans, immediately comply with the C&D, and go get yourself some proper legal counsel.

Please understand, Greg, that in cases like this, the court will not be interested “moral stances” or “ethical grounds”, it will only be interested in the facts. And is this case the facts are:


ONE

All save one of the documents are the private and confidential property of the Heartland Institute, a private organisation.

They do not reveal any illegal act by the Institute (and even if they did, the correct course of action would be to alert the authorities). They were clearly obtained by deception.

As such, any and all use of the documents for whatever purpose is illegal on multiple counts. I repeat; the court will not be interested in your moral or ethical assessment of the Institute’s plans or actions, ONLY in the above, legally establishable facts.


TWO

The additional document is clearly defamatory, and has been used by yourself and others to further that defamation. The Institute claims it is a fake.

In court, your only defense against a charge of defamation will be to prove the authenticity of the document. In reality, only the Institute can do that, so you have no defense there.

For a time, you MAY have had a defense on the basis that you could claim you honestly and sincerely believed the document to be authentic. However that defense, if it ever existed, was extinguished the moment you were advised by the Institute that it was a forgery EVEN IF IT IS NOT.

Remember, since the document is defamatory and has been used to defame the Institute, the onus of proof of authenticity lies with you.


THREE

Laws on the serving of something like a C&D vary from country to country, so I cannot say whether the notice you have received CURRENTLY carries any weight.

However, it would seem both reasonable and prudent to assume a copy is on its way to you via Federal Express, which complies with whatever the legal requirements are to make it admissible in court.

Once you have been served with that copy, the plaintiff’s lawyers will almost certainly provide evidence of BOTH means of advising you, and press the court to adopt the EARLIER notice as the time of you being served.

Your only two defenses against the court adopting the earlier date of email delivery, are to A) claim you never got it; or B) claim you genuinely believed it was not authentic (e.g. that it was not from the Institute).

You have extinguished any defense at A) by reproducing the contents of the email in your above article.

You have extinguished any defense at B) with your bolded article heading declaring to the world at large that you “just got an email from the Heartland Institute”.

I am a well-known “skeptic” commentator, and I will probably cop a lot of flak for even attempting to help you by providing this advice. But, and trust me on this son, you are already in a whole pain of trouble and as a fellow human being I could not just sit idly by and watch you make it even worse for yourself.


memoryvault attempted to post this excellent advice on Greg Laden’s website. But it wasn’t published – it seems memoryvault is seen there (as he puts it) as “part of some organised extreme right wing conspiracy aimed at intimidating young Greg Laden into backing down to the Heartland Institute’s demands”.

Well, he tried – these people seem determined to get deeper into the mire.

Feb 20, 2012 at 2:28 PM | Unregistered CommenterRobin Guenier

Er, Your Grace ... I think your post above may be on the wrong thread.

[BH adds: thanks - fixed]

Feb 20, 2012 at 2:29 PM | Unregistered CommenterRobin Guenier

I was ready to feel sorry for the guy as I agree ... "as a fellow human being I could not just sit idly by and watch you make it even worse for yourself. "

But when I heard that they wouldn't put it on the website ...

... they were offered good advice, freely given.

Now they will have to take the advice they can afford, at the cost they can afford with a penalty I doubt they will be able to afford.

They're going down!

Feb 20, 2012 at 2:42 PM | Unregistered CommenterMike Haseler

I wonder...does HI really want to get into legal wrangles? I mean, after salaries and stationery, plus electricity bills, how many lawyers do they want to pay really with 6M$ a year? That would explain why they have opted for "polite notices".

Am afraid the warmists can outgun HI in that respect, many many times.

Feb 20, 2012 at 2:54 PM | Unregistered CommenterMaurizio Morabito

Robin Guenier

if it came to court, the onus would be on DeSmog to show that the alleged fake was genuine (at least that’s my understanding of UK law and I think it’s the same in the US).

You clearly have a sound foundation in not only the law, but the practice of law. I was a paralegal in contract law but did witness enough law suits to know what you are saying is absolutely true.

As you probably know, the US has much weaker libel/slander laws, and in addition, the US copyright laws are weak as well when compared to the UK. Still, what you say is the pretty much in line with US law and practice.

I, for one, do not see much coming out of the theft of the HI documents. There are far too many "whistle blower" cases wrapped up in the First Amendment -- which the SCOUS defends vigorously -- for that to go forward.

The fake document, on the other hand, is defamation, and as it clearly was an attempt to reduce contributions to HI, there is economic impact -- i.e. there is harm.

Now, given the weak attempt to hide the author of the fake document by first printing it and then scanning it back in to remove the XMP information embedded in it, it appears likely that Desmog thought that they could get away with it because they are located in Canada and therefore outside of US civil jurisdiction. That should be the case except that Brendan DeMelle, who is the Executive Director and Managing Editor of DeSmogBlog, lives in Seattle. He can be served with a subpena. With that discovery can be imposed on him to show where that document came from. Failure to comply can be costly.

These people are not anywhere as smart at they think they are.

So, Robin, shall we retire to the pub, have a pint and watch the Kabuki Dance that will be the civil suit unfold? You are right that it will be expensive, but the Kock brothers probably will contribute to HI's legal fund. I am sure Soros is already writing a check for Desmog, so the battle will probably occur.

Feb 20, 2012 at 3:06 PM | Unregistered CommenterDon Pablo de la Sierra

Memoryvault is 100% correct. Thank you for posting it, Robin. Perhaps our resident trolls will understand why we are all smiling at them.

Feb 20, 2012 at 3:19 PM | Unregistered CommenterDon Pablo de la Sierra

Don Pablo de la Sierra, from a moral viewpoint, it is probably as well that people are able to publish material ... and even if not law, if you genuinely believed the "public had a right to know", that might be enough for me to let them get away with it.

But, if you are going to publish illegally obtained information, the onus is then on you to protect the people who you stole it from from any mistake frauds etc.

By the sound of it, this is not some two bit school boy who doesn't know better. This is a well funded site with access to lawyers who could check and double check and had the time to cross-check what was in it.

From a moral point of view, when you publish private material, you deny people the ability to protect themselves. Therefore the only person who can protect them is the person publishing.

So there is a moral duty on those publishing private material against the wishes of others to protect them in a way that they themselves would protect themselves from false allegations.

in other words, they took away the responsibility of protecting the Heartland Institutes reputation from them and then failed completely utterly and with total disregard to protect that reputation from forgery.

So, no matter the law, the morality is that even if the forged document was "in the public interest", those releasing it would have to prove that it was unreasonable for them to have known it was forged.

From what I can see, that seems unlikely.

Feb 20, 2012 at 3:28 PM | Unregistered CommenterMike Haseler

MM:

At first that was my view. As I said on the “Josh” thread, I thought Heartland’s threats were “little more than potentially embarrassing bluster”. But now I’m sure they’re serious: they’ve opted for “polite notices” precisely because that’s, by far, their best legal strategy (see above for an explanation).

Yes, overall the warmists can outgun them. Or at least they have far greater resource - although it may be that a Heartland backer sees an important opportunity here. But, in any case, I suspect the more substantial warmists are being advised that they’re not going to win this one – leaving the more naïve and less well-heeled such as DeSmog and Greg Laden swinging in the wind.

Don Pablo:

I agree about the importance of the “Fake Memo” – anyone continuing to publish (and, worse, to comment on) that is on a hiding to nothing. I think any court where the principles of English Law apply (e.g. both the USA and Canada) would be seriously unimpressed by a defendant who – after clear warning – had continued to publish a defamatory document not knowing (or apparently caring) whether or not it was authentic.

Watching this develop from the pub is an excellent idea. Except for one thing: this is going to take months and I'm not sure I can handle that much beer.

Feb 20, 2012 at 3:31 PM | Unregistered CommenterRobin Guenier

Robin Guenier
We should look for a pub with a clean loo, for sure.

Feb 20, 2012 at 3:40 PM | Unregistered CommenterDon Pablo de la Sierra

Don Pablo:

I live next door to a pretty good pub. They do B&B - I could book you a room for a month or two.

Feb 20, 2012 at 3:47 PM | Unregistered CommenterRobin Guenier

Robin Guenier

While your points to MM are correct in my view, I suspect that HI will find a legal white knight because it is an excellent opportunity to give the warmists a bloody nose. As it is, Fakegate may be the worst thing to happen to them. It will be a cause célèbre that will brandish the banner of "Fraud" all over the movement.

It was a VERY dumb move on their part.

Feb 20, 2012 at 3:47 PM | Unregistered CommenterDon Pablo de la Sierra

Don Pablo:

I agree.

Feb 20, 2012 at 3:49 PM | Unregistered CommenterRobin Guenier

Something it's easy to overlook in considering the HI response is that the USA is a very litigious society and people tend to think more in terms of legal remedies than shrugging things off.

Feb 20, 2012 at 4:06 PM | Unregistered Commentercosmic

Smogblog have put out a 'put up or shut up' response to the Heartland letter.

I can envisage some form of injunction being served within 14 - 21 days.

Feb 20, 2012 at 4:39 PM | Unregistered Commenterspence

I see that our "friend" Hengist has commented on Laden's post on this subject, with his usual lack of reading comprehension skills. If he is deranged enough to take advice from Hengist, we all know what will happen to Greg Laden. Whatever we might feel about the justice system, it is never wise to ignore legal letters unless you have some understanding of what might be coming down the rifle in your direction.

Feb 20, 2012 at 4:57 PM | Unregistered Commenterdiogenes

spence:

That sounds interesting ... but have you got a link? All I can see is its post dated yesterday

Feb 20, 2012 at 5:01 PM | Unregistered CommenterRobin Guenier

Following the diogenes reference to the Hengist post on the Greg Laden blog, I thought it might be interesting to have a look. It was. A lot of commentators are advising GL to back off – and BTW the memoryvault advice was posted (seems it was caught in moderation). Here’s the best:

Imo, you have to decide whether it's more important to cover your butt or score a few more points with your buddies on this Climate blog. Me? I would cover my butt.

Feb 20, 2012 at 5:31 PM | Unregistered CommenterRobin Guenier

Robin Guenier, that's the one, the latest post. dated 19th Feb is a 'put up or shut up' declaration.

(DeSmogBlog will leave them in place - in the public interest)

Feb 20, 2012 at 5:37 PM | Unregistered Commenterspence

Just back from reading the main page of Desmog.com. They wrapped themselves in the Green Flag of Truth and Morality. Not smart. I think they really need to read memoryvault's posting that Robin Guenier reproduced above.

It just may come to pass that participants in the legal suit Kabuki Dance that Robin Guenier and I were settling in to watch might exchange those dainty little fans the dancers love to wave about for Samurai swords.

This could be a epic battle. Gonna be interesting.

My bet -- both Greg and Desmog suddenly back down once the power elite of the warmists realize just how badly they can be hurt in this. They could end up with the "FRAUDULENT" label plastered all over them.

Better for them to cut their losses and let the idiots who caused it hang in the wind.

Gotta run to the store for more pop corn, that's for sure.

Feb 20, 2012 at 5:45 PM | Unregistered CommenterDon Pablo de la Sierra

Robin - I imagine thaqt laden is small fry, do you think that Heartland would go afrter him or after the "publisher" eg the webhost?

Feb 20, 2012 at 5:47 PM | Unregistered Commenterdiogenes

Went to Greg's blog and found a second memory vault post which is really worth reading if you wish to understand the legal aspects of this.

A necessary additional post to counter the ravings of "Matthew" above at 8.25pm, who has obviously spent far too much time watching American detective shows.

"Discovery" in no way provides carte blanche to rifle through all the documents and other materials of an individual or organisation (unless of course, you're the tax man).

"Discovery" can only be used to establish the "facts" of the particular case before the court, and the case is NOT to establish the moral or ethical worth or intent of the Institute, but rather, the unauthorised use of confidential information obtained by deception, and the use of an alleged forged document to allegedly defame the Institute.


That's it. End of story. The matters open to Discovery are:

1) - With the exception of the alleged forgery, are the documents the confidential property of the Institute?

2) - Were they obtained by deception?

3) - Was the subsequent use of the documents authorised by the Institute?

4) - Was the defendant requested to cease and desist the unauthorised use of the confidential documents obtained by deception?

5) - Did the defendant comply with the above request?

6) - Is the alleged forgery in fact, real?

7) - Was the use of the alleged forgery defamatory?

8) - Was the use of the alleged forgery DELIBERATELY defamatory with intent (criminal defamation)?

9) - Was the defendant advised of the forged nature of the document and the defamatory nature of its use?

10) - Was the defendant requested to cease and desist using the alleged forgery to continue to defame and/or criminally defame the plaintiff?

11) - Did the defendant comply with the request? If so, when?

12) - Has the Institute suffered material and/or reputation loss as a result of the continuing defamation and/or criminal defamation?

Posted by: memoryvault | February 19, 2012 9:28 PM


Either he is a lawyer with some experience, or a litigant with a lot of experience. In either case, he is absolutely correct. It is the way things work.

Feb 20, 2012 at 6:03 PM | Unregistered CommenterDon Pablo de la Sierra

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