APEX vs John Does

APEX vs John Does

Date: Monday, January 04, 2010 12:41 AM


<<<<< JOB DESTRUCTION NEWSLETTER No. 2067 -- 1/03/2009 >>>>>

This is an update with new information about the case of "Tunnel Rat" vs.
APEX. It s assumed you have read the first and second story that I wrote on
this issue so I don t have to repeat stuff about what is going on.

NOTE: All links follow commentary, including a web version of this newsletter.
The web version is easier to follow but I will continue with a text version.

John Doe #1: Goes by the name "Tunnel Rat". He runs two websites that were
shut down (ITGrunt and endh1b) as a result of the court order. The trouble
began when an H-1B visa holder working at APEX posted a link to an employee
contract at ITGrunt s web site. APEX decided to take ITGrunt down merely for
having the link to the document on his blogs. ITGrunt s caustic commentary
about APEX was never mentioned in the complaint although it s rather obvious
that he provoked APEX and the desi community. Doe #1 is a top level
programmer/consultant who has a good paying job at a major company. He doesn t
want his identity revealed because he fears that he will be put on employer
black lists, and says that death threats make him worry about the safety of
him and his family if he loses his anonymity.

John Doe #2: His email name is mmillere2006@yahoo.com. Doe #2 is active
replying in blogs. He was outraged when the law firm Herten, Burstein,
Sheridan, Cevasco, Bottinelli, Litt & Harz filed a complaint to a New Jersey
Surpreme Court to shut down Doe #1 s websites. He sent an angry email to the
law firm. From his email the law firm got his IP address, and then ordered
Yahoo and Comcast to reveal his identity. Doe #2 is an unemployed programmer
in Detroit. He is a victim of the ethnic cleansing of Americans in the auto
industry in general and Ford in particular. Doe #2 has a Master s in
programming but couldn t find a job after being laid off by Ford so he went
back to school and is nearing completion of an MBA.
He is close to living in the cold streets of Detroit and believes that losing
his anonymity will push him over the curb.

John Doe #3: He runs the website guestworkerfraud.com. He ran afoul of APEX
because he picked up a lot of Tunnel Rat s info and added his own inflammatory
commentary. His website is still working even though the court ordered it to
be shut down. Like ITGrunt, he feels that public exposure will hurt his
career. He is a top level Apple computer programmer that has been unemployed
for several months.

John Doe #4: A disgruntled H-1B visa holder going by the pen name Panjak Jain
was angry that APEX required him to sign a contract that indentured him to the
company. He posted his contract document on some desi sites such as
desicrunch, and then put a link to the document on one of the sites run by
ITGrunt. APEX claims they already know who he is, and if true he may be in big
trouble. APEX has offices in India so going there probably won t serve as a
refuge from retribution. He hasn t been heard from since APEX went on their
rampage.


*** Status of court orders ***

Facebook -- conditional compliance with court order Network Solutions -- no
response yet Comcast -- agreed to comply with court order Yahoo -- agreed to
comply with court order discountASP -- agreed to comply with court order
Godaddy -- agreed to comply with court order

Facebook sent the following email to Tunnel Rat. They may appear to be giving
Tunnel Rat a way out, but there is a catch: A Motion to Quash takes a court
order, and of course expensive lawyers. Facebook doesn t give a deadline so
there is no telling how long they will wait before obeying Judge Hurley.


<<<<< Beginning of Facebook Email >>>>>


Hi,

Facebook has been recently issued a civil action court order regarding Docket
No. MID-L-7879-09, which has been issued by the Honorable James P.
Hurley. Please note that unless Facebook is issued a Motion to Quash, we might
be legally obligated in responding to the judge s order. We strongly suggest
that you contact your local legal representative regarding this matter as soon
as possible due to the time sensitivity of this matter.
Your legal representative may contact us at [page]
http://www.facebook.com/help/contact.php?show_form=legal_inquiries if they
wish to further correspond with a Facebook representative.

Thank you for your understanding,

Peter
User Operations
Facebook


<<<<< End of Facebook Email >>>>>


Judge James P. Hurley of The Superior Court of New Jersey initiated what is
called a Strategic Lawsuit Against Public Participation (SLAPPs), in this case
a cyberSLAPP.

Lawsuits targeting individuals who post anonymously on the Internet,
usually because their posted messages criticize the actions of
public figures or corporations, are sometimes called cyberSLAPPs.
Like a regular SLAPP, a cyberSLAPP aims at chilling free speech by
intimidating critics with the prospect of defending an expensive
lawsuit. But it also often aims at uncovering the identity of the
anonymous critic.

In the year 2000 Hurley was nominated for "Worst Family Court Judge in New
Jersey" by FACE. It seems that things haven t gotten much better since then.

So, APEX is using the document posted by an angry Indian employee as an excuse
to go after the John Does. The John Does got caught in the middle of a labor
struggle between a bodyshop and one of their H-1B workers. Without doubt
ideology is playing a major role also. The Indians that run APEX just plain
don t like what those Americans had to say about APEX and H-1B.
Computerwold reported the following (remember that the term "racist" is used
to label anybody that wants to control immigration):

Patrick Papalia, an attorney representing Apex, said that the
company has already identified an employee who left the initial
comment. But he said the issue goes well beyond the agreement and
involves threatening and racist comments against company officials,
as well as ongoing allegations that it is engaging in illegal
activities. "Apex has an outstanding reputation in the information
technology field," he said.

For those that feel that Judge Hurley is overstepping, the state of New Jersey
has a form called: How to File Complaint About a Judge.

So far, none of the John Does have lost their anonymity so at least the news
isn t all bad. At this point in time it s not clear what else is going to
happen. Hopefully APEX and the NJ court will get so much negative publicity
they will offer to drop the case.


REFERENCE LINKS:

web version of this newsletter:
http://blog.vdare.com/archives/2010/01/04/apex-vs-john-does/

http://www.hertenburstein.com/
Herten, Burstein, Sheridan, Cevasco, Bottinelli, Litt & Harz

http://www.vdare.com/francis/outsourcing.htm
Outsourcing -- The Economic Equivalent Of Ethnic Cleansing

http://guestworkerfraud.com/
John Doe #3 registered with Network Solutions

http://legal-dictionary.thefreedictionary.com/quash
definition of quash

http://www.citmedialaw.org/legal-guide/responding-strategic-lawsuits-against-public-participation-slapps
Responding to Strategic Lawsuits Against Public Participation (SLAPPs)

http://www.facenj.org/aboutface/00q2/worstjud.html
Judge Hurley: Worst Family Court Judge in New Jersey


http://www.computerworld.com/s/article/9142806/Court_orders_three_H_1B_sites_disabled
Court orders three H-1B sites disabled

http://www.judiciary.state.nj.us/acjc/how_to_file_complaint.htm
How to File Complaint About a Judge

+++++++++++++++++++++++++++++++++++++++++++++++++++

http://www.computerworld.com/s/article/9142806/Court_orders_three_H_1B_sites_disabled

Court orders three H-1B sites disabled
Judge's ruling to shut down three opposition sites is part of Apex libel
lawsuit Patrick Thibodeau December 28, 2009 (Computerworld) A New Jersey
judge has ordered the shutdown of three H-1B opposition Web sites and seeks
information about the identity of anonymous posters.

On Dec. 23, Middlesex County Superior Court Judge James Hurley ordered firms
that register domains and provide hosting services -- GoDaddy Inc., Network
Solutions, Comcast Cable Communications Inc. and DiscountASP.Net, to disable
the three sites, ITgrunt.com, Endh1b.com, and Guestworkerfraud.com. Facebook
Inc. was also ordered to disable ITgrunt's Facebook page.

DiscountASP.Net said it has disabled Endh1b.com after it received the order
from the New Jersey Superior Court. The order did not request any account
information, only that the company "...immediately shut down and disable the
website www.endh1b.com until further order of this court..," a spokesman said
in an email. Facebook said it received the document Monday.

GoDaddy is complying with the order and has suspended the web hosting for
ITgrunt.com, said Laurie Anderson. GoDaddy disputes manager, domain services.

The web site Endh1b.com is registered but not hosted at Go Daddy, Anderson
added in an e-mail. "Both domain names have been placed on registrar lock due
to the pending litigation. When Go Daddy receives a court order, it is
standard procedure to comply," she said.

Hurley's order was made in response to a libel lawsuit filed by IT services
and consulting firm Apex Technology Group Inc., based in Edison, N.J.
against the three Web sites opposing the H-1B visa program.

The issue is creating a stir among H-1B opponents working in IT-related jobs
who fear their posts could result in the loss of their jobs.

Two of the sites, itgrunt.com and endh1b.com, were offline this morning, but
guestworkerfraud.com remained operating.

The company is seeking the identity of a person who posted an Apex employment
agreement on Docstoc.com, that has since been removed. A link to the document
and comments critical of it has been posted on a variety of Web sites,
including at least one in India, on Desicrunch.com. The comment broadly
alleges that employees will find it difficult to leave Apex because of its
contract terms.

Apex, in one legal filing, said the allegations by the anonymous posters are
false and defamatory, and were hurting the company. In the filing, Apex said
it "has had three consultants refuse to report for employment" as a result
postings, according to legal documents.

Apex said it is also seeking "contact details of the individual who posted
this legal agreement without permission since we are the copyright owner of
the legal document."

Accoring to court documents, a writer responding to admin@endh1b.com wrote
that the site has "not posted a legal agreement and don't have the contact
details of anyone of our contributors. We will also protect the privacy of any
members of our community."

Patrick Papalia, an attorney representing Apex, said that the company has
already identified an employee who left the initial comment. But he said the
issue goes well beyond the agreement and involves threatening and racist
comments against company officials, as well as ongoing allegations that it is
engaging in illegal activities. "Apex has an outstanding reputation in the
information technology field," he said.

John Miano, who heads the Programmers Guild and is also an attorney, and who
one represented one the parties involved in the dispute, said it is "rather
chilling" to have a court in New Jersey ordering the shutdown of Web sites
operated by people with no connection to New Jersey.

The operator of ITgrunt.com deferred questions to Donna Conroy, who heads
Bright Future Jobs, an activist organization on the H-1B issue, who detailed
her concerns about it in a post on her site.

In an email, she said, "I'm astonished that an American judge would force
American web sites to rat on American workers who wouldn't snitch on an Indian
H-1B. If this order stands, it will rob the security every American expects
when they post complaints anonymously or express their opinions on-line. It
will create a credible threat that Americans could face retaliation from any
current or former employer."

The operator of Guestworkerfraud.com linked to ITgrunt.com's blog entry and
said he added some comments of his own. He doesn't allow comments on this
site. He has since removed the entry concerning Apex. He says he won't let the
New Jersey judge "run the Internet and silence free speech by shutting down
the whole site. Hence, my site is still up." He asked that his name not be
used, in response to an email.

The ISPs and registrars were contacted. ITgrunt operates a page on Facebook. A
company spokesman said it has not been formally served. The other companies
didn't respond by press time.


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