Mesmerised

The Courier-Mail reports that Jacob Reichman has pleaded guilty in the Brisbane Magistrates Court to engaging in legal practice when he wasn’t entitled and wrongly representing himself as being a lawyer.

Reichman is reported to have

made himself out to be a lawyer working at a Gold Coast firm when he fronted three different magistrates in a criminal matter before the Beenleigh Magistrates Court between January and July, 2013 [and reportedly] sent an email to the registry seeking an adjournment of the case where his signature block wrongly claimed he was a solicitor.

The prosecutor appears to have indicated that

Reichman was employed as a legal clerk for barrister Christopher Rosser at the time, not Michelle Porcheron Lawyers as he claimed in court. ...

Reichman’s story came undone when Mr Rosser advised Magistrate Trevor Morgan his young protégé was not an Australian legal practitioner but his clerk. The court was told Magistrate Morgan asked both Mr Rosser and Reichman to front his court the following day, but the young clerk was absent because he was sitting his final law exam. ... 

Reichman’s social media accounts were examined during the investigation, revealing he had posted screen-grabs of himself acting in a legal capacity on Channel 9 News on Facebook and Linked In. ... Instagram images posted by Reichman were accompanied with the hashtags: #lawyer, #younglawyer and #criminallawyers. Barrister Patricia Kirknan-Scroope, for Reichman, said her client was just 20 at the time and had moved up to the Gold Coast from Melbourne to accept a scholarship at Bond University in 2011. She said he was deeply ashamed and remorseful.

Ms Kirknan-Scroope said Reichman initially undertook work experience with Mr Rosser before he was hired as a legal clerk in 2012. He said Reichman “aspired” to be like his legal mentor and became “mesmerised” by the thought of owning his own practice one day. She said he graduated in September and still hoped to work as a lawyer, although he was not yet admitted.

Ms Kirknan-Scroope said Reichman still worked with Mr Rosser. She said his social media accounts were driven by an intense desire to impress his family in Melbourne. She said Reichman’s behaviour took place in the context of him failing to take his medication for Attention Deficit Disorder. 

The Courier-Mail reports the magistrate as commenting

“I can comprehend that you got swept away in the excitement of commencing what you believed was going to be your career at an earlier point than what you were permitted to do so.” But she said Reichman was very young and perhaps “mesmerised at the prospect of eagerness to join the legal fraternity”. She ordered he pay costs and did not record a conviction.

Infringement and Identification

'Infringement Risk in Copyright-Intensive Industries' by Jonathan Band and Jonathan Gerafi states 

We have reviewed equity research reports issued in 2013 for eight leading companies in copyright-intensive industries: two software firms (Microsoft and Adobe); two publishers (Pearson and Reed Elsevier); the owners of two major motion picture studios (Disney and Viacom, owner of Paramount); and the owners of two major record labels (Sony, owner of Sony Music Entertainment, and Vivendi, owner of Universal Music Group).

We found that the overwhelming majority of the equity research reports did not mention copyright infringement as a possible risk factor. None of the 14 reports for Reed Elsevier and 18 reports for Pearson identified copyright infringement as a risk factor. Only 13% of the 15 reports for Sony and 22% of the 23 reports for Vivendi mentioned copyright infringement as a potential risk. Just 8% of the 26 reports for Viacom and 27% of the 26 reports for Disney referred to copyright infringement as a risk factor. 26% of the 19 reports concerning Adobe and 41% of the 27 reports concerning Microsoft identified copyright infringement as a risk factor. Cumulatively, only 19% (32) of the 168 reports referred to copyright infringement as a possible risk; 81% did not.

The vast majority of the reports written by sophisticated analysts simply do not consider copyright infringement a significant enough threat to the subject companies’ financial health to merit mention to potential investors. If the analysts with expertise in these industries are not concerned about the possible impact of copyright infringement, perhaps policymakers should not be either.

The Inquiry into the impact of social media on Victorian elections and Victoria’s electoral administration discussion paper by the Victorian Parliament's Electoral Matters Committee deals with the authorisation of electoral content on Twitter, Facebook and weblogs; the use of Google AdWords for online electoral advertising, and; how Victoria’s electoral authorities use social media to encourage engagement with electoral processes.

The Committee states

Victorian legislation 

In Victoria all electoral content must be authorised at all times, not just during an election cycle or campaign. The Electoral Act 2002 (Vic) refers to electoral content as ‘electoral matter’. According to the VEC’s submission ‘electoral matter is generally defined as matter which is intended or likely to affect voting in an election. This can include (but is not limited to) express or implicit reference to or comment upon the election; the Government or Opposition; members of Parliament; a political party or candidate; or an election-related issue’. 

The Electoral Act 2002 (Vic) provides for several offences related to electoral matters. Section 84(1) makes it an offence to publish material that is considered to be misleading in relation to the casting of a vote by an elector.  Section 84(2) makes it an offence to publish material that is likely to induce an elector to mark their vote otherwise than in accordance with the direction of the ballot paper, or in other words, to vote informally.  In addition, Sections 83, 85 and 86 make it an offence to not properly authorise electoral matter. 

In addition, ‘electoral matter’ published in Victoria must also comply with Commonwealth legislation. As noted by the VEC’s submission, the publication  of electoral matter must comply with Commonwealth defamation law and legislation making it an offence to use the internet to harass or offend (Commonwealth Criminal Code Act 1995) (Cwth).   

Material to be authorised 

In Victoria authorisation requirements apply to all forms of electoral advertisements, handbills, pamphlets or notices that are printed, published or distributed. 

In 2010 the Electoral Act 2002 (Vic) was amended to extend the definition of ‘publish’ to materials published on the internet. This means that effectively, all electoral matter, including electoral content on social media and weblogs, must be authorised. 

The Committee also notes that there are often discrepancies between the print and online versions of newspapers when newspapers have issued a correction regarding an incorrect report. It is the Committee’s view that the online versions of some newspapers do not record the redaction. Authorisation of electoral matter in other Australian jurisdictions 

All Australian jurisdictions require the authorisation of electoral matter. Queensland, Tasmania, the Northern Territory and the Australian Capital Territory (ACT) have similar authorisation requirements to Victoria, with the exception that the provisions only apply during the election period. NSW also has similar regulations to Victoria through amendments to the Local Government Act 1993 (NSW) regarding paid internet advertising. 

Some jurisdictions have removed the requirement for electoral matter published on the internet to be authorised if it formed part of general commentary on a weblog, survey or internet forum. One example of such a forum is ABC Election Analyst Antony Green’s weblog, which attracts a high level of public comment and posts. In Western Australia, the Electoral Act 1907 (WA) was amended in 2006 to remove the requirement for electoral matter published on the internet to be authorised if it formed part of a general commentary on an internet website.  In South Australia, the Electoral Act 1985 (SA) and the Electoral Regulations 2009 (SA) were amended in 2010 so that authorisation is not required for material in a public forum within a journal published in electronic form on the internet. Public forum in this context includes a weblog, survey or other form in which members of the public may post comments. 

For Commonwealth elections, the Electoral Act 1918 (Cwth) requires authorisation for paid electoral advertisements on the internet but not for electoral matter on the internet that forms part of a general commentary on a website.  The ACT is also currently considering easing authorisation requirements for electoral matter.

Issues arising from submissions and public hearings 

Relevance of current Victorian legislation: One of the key issues discussed during the inquiry was the relevance of current Victorian legislation regarding the authorisation of electoral matter. Broadly speaking, inquiry participants supported the provisions relating to the authorisation of ‘traditional’ electoral matter, such as pamphlets and newspaper advertisements, seeing them as appropriate. However, there was some concern that current legislation may not have kept pace with changes in internet technology, or the increasing use of social media as a communication tool and platform for political and electoral advertisements. 

The VEC’s submission discussed the context and background to the amendments to the Electoral Act 2002 (Vic) expanding the definition of ‘publish’ to include electoral matter published on the internet. At the time the legislation was drafted, the VEC suggests, it is possible that the internet was thought of as a medium consisting predominantly of websites and forums and that social media was only used to a limited extent in Victoria for the purposes of electoral advertising. Because of this, the VEC notes the ‘[drafting]...did not contemplate some of the issues associated with social media and its almost constant evolution’. 

The Victorian Local Governance Association (VLGA) also discussed the implications of increasing use of social media for Victorian local government elections. The VLGA’s submission considered how local government bodies have readily adopted social media as a tool to improve municipal governance and communication with ratepayers.  The submission also summarised the results of a survey completed by the VLGA at the time of the 2012 Victorian local government elections, and assessed data about how candidates used social media to communicate with electors. 

Further to this, the VEC’s evidence highlighted a pertinent example of how the development of certain social media technologies has outpaced Victorian legislation regarding the authorisation of electoral matter. As noted in Chapter Two, one of the distinct features of Twitter is that tweets are limited to 140 characters or less. The character limit of Twitter therefore makes it difficult to include authorisation messages in the actual body of the message. As a solution, the VEC proposed ‘including a link to an authorised website in the tweet itself’.  Broadly, the Committee notes this would require clarification of authorisation requirements where word limit restrictions apply generally. 

Incidence of breaches of Victorian legislation regarding the authorisation of electoral matter: The incidence of breaches of the authorisation provisions in the Electoral Act 2002 (Vic) has been low. As noted by the VEC, until the 2010 Victorian state election there had been no complaints about social media/lack of authorisation on social media, most ‘likely due to the fact that most of the current platforms were only created in the latter half of the previous decade’. 

The VEC’s submission summarised the complaints received by the VEC regarding the authorisation of electoral matter, for the following Victorian elections:

• 2006 Victorian state election: No complaints were received about social media. Six complaints regarding unauthorised websites. 

• 2008 Victorian local government elections: Four complaints about social media were received, but they were in relation to defamatory/offensive comments on blogs rather than a lack of authorisation (one complaint regarding an unauthorised website). 

• 2010 Victorian state election: Two complaints were received about the one issue at the 2010 Victorian state election. Four unauthorised (anonymous) Google advertisements (AdWords) appeared with potentially defamatory comments about an independent candidate. 

• 2012 Victorian local government elections: Five complaints were received about unauthorised Twitter and Facebook comments, three complaints about an unauthorised website and four relating to misleading/defamatory comments on a website. 

Discussion about the authorisation of electoral matter on social media in Victoria: At the public hearings on 18 June 2014, the Committee and some inquiry participants considered how electoral matter is authorised on social media in Victoria, and whether the current level of regulation was appropriate. 

Some inquiry participants suggested that Victoria was sufficiently regulated. The VEC, represented at the public hearings by Mr Warwick Gately, Victorian Electoral Commissioner, and Ms Liz Williams, Deputy Electoral Commissioner, viewed current levels of regulation as appropriate and proportionate to the number of offences received by the VEC:

Mr GATELY— I guess it gets into the whole issue now of regulation. We have heard other commentators on that as well and other submissions. Is regulation necessary? One of the principles under which we operate is the guiding principle to avoid anonymous, mischievous conduct. We have had legislation for that Australia-wide. It still has not prevented anonymous letterbox drops; it is not necessarily preventing use of social media in that context as well. Victorian Electoral Commission,  But it comes back to that balance between regulating — overregulating — political communication and allowing the elector to make their own determination as to what is truthful, what is not truthful and what is the issue or the matter. You asked me whether it is necessary to regulate. I would say, in accordance with my opening statement, that I think we are sufficiently regulated at this point in time. We have not seen an explosion in this that I would be cautious about regulating — overregulating — and cautious about who becomes the regulator.

Mr Gately also suggested the Committee consider whether it was appropriate for the VEC to have increased responsibilities to investigate complaints regarding the authorisation of electoral matter on social media. Mr Gately said the VEC is primarily a ‘service provision office’ and lacks the resources to pursue cases or breaches of legislation in the same way that other agencies, such as the Independent Broad-based Anti-Corruption Commission, might do. 

On the theme of regulation, Mr Gately reiterated a proposal from the VEC’s submission that the Committee consider recommending the Victorian Government remove regulations on ‘private’ political commentary on some social media platforms, as in Western Australia and South Australia. Mr Gately noted: I am suggesting that you could consider some changes to the Electoral Act, particularly, say, in relation to Twitter. Liz [Williams, Deputy Electoral Commissioner] mentioned where there might be a link to another site you go to where the authorising officer resides. I think the previous team spoke about putting a name on it as well. I suggest perhaps giving some wording, as other states have done, in relation to that whole idea of a general commentary — for example, blog matter — that that does not need to be authorised because it is fast moving, it is flowing. 

The VEC’s submission suggests that Section 86(2) of the Electoral Act 2002 (VIC), which exempts newspapers from authorisation requirements where they publish comments made by speakers at a meeting, could be extended to cover comments posted in an online forum or comments posted on online news articles. 

Other inquiry participants favoured further clarification of the authorisation of electoral matter on social media in Victoria. The VLGA’s submission called for amendments to the Electoral Act 2002 (VIC) to include reference to social media tools and platforms. According to the VLGA’s submission, candidates are unclear about the regulations pertaining to the authorisation of social media because social media is not explicitly mentioned in either the Electoral Act 2002 (VIC) or the Local Government Act 1989 (VIC). Greater clarity, suggest the VLGA, around what is required by legislation may reduce non-compliance. 

The VLGA also called for the VEC to develop manuals and reference materials for candidates for local government and state elections on how to use social media. 

The Committee also received a submission from Joel Silver, on behalf of the Law Institute of Victoria’s Young Lawyers Section, Law Reform Committee. Mr Silver’s submission called for a cautious approach to regulation, particularly in relation to the delineation between ‘private’ and ‘public’ communication: Our view is that, if further regulation is perceived as necessary, it should be on a “legacy” basis, that is, for communications analogous to those already regulated rather than to encompass more varieties. That a view is expressed publicly (for example, because a person does not set their social media account to “private”) does not mean it is a political communication worthy of regulation. What are now public communications have previously been expressed in private forums, such as over the dinner table, or at the local pub. Such private editorialising should remain unregulated. 

Use of Google AdWords for online electoral advertising 

As noted in Chapter Two, Google AdWords is an advertising platform by Google, an internet search engine company, for businesses wanting to display advertisements on Google and its advertising network. The AdWords program allows businesses to set a budget for advertising and only pay when people click on particular advertisements. 

In Victoria, all online political and electoral advertising, including Google AdWords, is covered by the provisions in the Electoral Act 2002 (VIC) relating to misleading and deceptive matter. Section 84 provides that a person must not print, publish or distribute any matter or thing that is likely to mislead or deceive an elector in relation to the casting of their vote. Section 86 provides that the author of an electoral advertisement must be identified. 2010 Victorian state election 

The Committee has followed the use of Google Adwords as a form of online electoral advertising in Victoria since late 2010, following a complaint to the VEC about an unauthorised electoral advertisement published using Google AdWords during the 2010 Victorian state election period. 

As noted in the VEC’s report to Parliament on the 2010 Victorian state election, the Google AdWords in question purported to be advertisements for the Victorian Greens and contained a link to the Victorian Greens’ website. In reality the advertisement mentioned Cr Serge Thomann, a candidate for Albert Park District in the 2010 Victorian state election. According to the VEC, the advertisements were withdrawn before Google Australia received a complaint  about them. Subsequently, the VEC sought the assistance of Google Australia to provide information regarding those responsible for placing the advertisements. 

The VEC’s report to Parliament noted: After investigation, Google Australia advised that although it held the information requested in accordance with ‘commercial confidentiality practices’, since Google Adwords was not conducted by Google Australia, the VEC should direct its request to Google Inc., of California, through an email to its Legal Investigations Support Team. This process appears largely automated. The Victorian Government Solicitor’s Office (VGSO), acting for the VEC, received a response advising that ‘valid legal process’ was required for Google Inc. to make such disclosure, and indicating that it may accept ‘an order signed by a judge or magistrate’ served by registered mail. 

Issues arising from submissions and public hearings 

Anonymous online electoral advertisements and enforcement: Much of the evidence received by the Committee about Google AdWords focused on the complexities of enforcing anonymous online electoral advertising. 

Several inquiry participants discussed whether the VEC was sufficiently empowered under Victorian legislation to investigate complaints regarding anonymous online electoral advertising. In the case mentioned, Google Inc. worked with the VEC to investigate the matter up to a point, before requesting a legal order from a Victorian court before disclosing the identity of the party who placed the Google AdWord advertisement. Some inquiry participants viewed this response in ‘black and white’ terms; according to a submission from Peter Holland, Cr Serge Thomann’s campaign manager for the 2010 Victorian state election campaign, multinational companies such as Google should comply with Victorian electoral legislation whenever a breach is reported to the VEC.  Relatedly, Mr Holland’s submission also suggested that in the absence of effective regulation, the Committee should consider recommending making it an offence for Victorians to place online electoral advertisements with Google. 

In contrast, other inquiry participants offered a more nuanced position. The VEC’s submission discussed some of the challenges associated with effective enforcement, including the administrative and legal issues associated with working with companies, such as Google, who are incorporated outside Australia: ... internet service providers may refuse to provide details of account holders /registrants to electoral administrators, and the challenges of effective enforcement of activities that take place outside Victoria may come into play. Where malicious  breaches occur and the author can’t be identified, candidates/parties/complainants may consider if the malicious action had an impact on the result of the election, and if so to petition the Court of Disputed Returns to consider the matter. 

Lastly, attempts to investigate breaches by anonymous identities, particularly where the internet service provider/social networking services are headquartered outside of Victoria, can be time consuming and may extend well beyond the election period. Options to address the challenge of timely enforcement are not clear. This is further complicated by the fact that electoral administrators have no power to compel the provision of information regarding the identity of a person publishing electoral matter online. Public interest considerations quickly come into play where investigations become elongated and involve cross jurisdictional legal processes.

The Committee concludes

In general, the Committee supports the VEC’s conclusion that the impact of social media on the Victorian electoral process to date has been ‘negligible’. This conclusion is logical given the relatively low number of reported breaches of the Electoral Act 2002 (Vic) in relation to unauthorised electoral content on social media. 

The Committee also supports the VEC’s comments about how Victorian legislation will always struggle to keep pace with technology and how social media is used for political and electoral purposes. Placing firm guidelines around a constantly evolving communication tool may be impractical. In this context the Committee remains undecided as to whether the evidence received during the inquiry points to a need for less, or more, prescription regarding the authorisation of electoral matter on social media. In the absence of direct advice from the VEC, the Committee favours maintaining the existing provisions in the Electoral Act 2002 (Vic), and the VEC’s current enforcement initiatives. 

Notwithstanding these comments, the Committee is conscious of the rapid pace of change in internet technology. It is likely that social media will play an increasingly important role in Victoria’s election campaigns, and feature prominently in efforts by the VEC to promote elections. Accordingly the Committee will continue to monitor the issues raised in this discussion paper, focusing on:

• How social media is used in the lead up to and during the 2014 Victorian state election; 

• Whether the VEC requires additional resources and responsibilities to pursue breaches of the Electoral Act 2002 (Vic) in relation to unauthorised electoral content on social media and online advertising spaces like Google AdWords, particularly if the number of complaints received by the VEC increases markedly following the 2014 Victorian state election. This issue is related to the Committee’s previous deliberations, as part of its inquiry into the future of Victoria’s electoral administration, about the VEC’s roles and responsibilities in Victoria’s electoral administration; and 

• Should the Victorian Government consider amending the Electoral Act 2002 (Vic) to include references to specific social media technologies, as suggested by the VLGA? Could too much prescription – i.e, by specifically naming particular social media platforms like Facebook and Twitter in Victorian legislation – limit the effectiveness of regulations preventing the publication of unauthorised electoral matter on social media? What impact would removing authorisation requirements for private comments on social media and related internet forums, such as blogs, have on the Victorian electoral process? 

• In addition, the Committee encourages the VEC to conduct a survey of how political candidates use social media during the 2014 Victorian state election. The Committee believes the results of this survey will provide additional insights into the use of social media for electoral purposes in Victoria.

Wolves and survivor fraud

The Massachusetts Court of Appeals has ordered Misha Defonseca - famous for the deeply implausible 1997 Holocaust memoir - to forfeit her share of a US$32.4 million judgment that she won from her publisher Mt Ivy Press and the publisher's principal, Jane Daniel, in 2005.

Defonseca and ghostwriter Vera Lee were awarded the money in a 2001 Middlesex Superior Court judgment regarding rights: the ghostwriter sued Daniel (arguing that her rights as coauthor had been violated) and Defonseca alleged that the publisher hid profits in offshore corporate accounts and broke promises to publicise the book. The jury in that case awarded US$7.5m in damages to Defonseca and US$3.3m to Lee. The judge tripled the damages, to nearly US$10m for Lee and US$22.5m for Defonseca, because of the allegedly egregious conduct. The jury also awarded rights in the book to Defonseca, who sold it to several European publishers. It became a film in France.

Daniel responded by research into the truth of Defonseca's tale. As I've discussed elsewhere in talking about identity crime, the egregious exploitation by Defonseca of the Holocaust was bizarre and deeply repugnant. Adoption by and long-distance travel with a pack of wolves?

Daniel determined that Monica Ernestine Josephine De Wael (Defonseca's real name) was enrolled in a Brussels school in 1943 instead of traipsing around Europe with her furry friends. She wasn't Jewish. There were no wolves. There were no 3,000km journeys through the snow.

On the basis of the research Daniel and Mt. Ivy sought to have Defonseca's judgment vacated. They were initially unsuccessful, with the Court noting that action was out of time. In 2010 the Massachusetts Court of Appeals decided that the publishers had a case, commenting that the plaintiffs "have alleged an extraordinary fraud that touched every part of Defonseca's case against them and resulted in a huge verdict".

Defonseca appealed, arguing that even though her story had been proven false, she believed it was true during the book-publication process. Belief, it appears, is everything. "This story is mine. It is not actually reality, but my reality, my way of surviving". The same might also have been said by Mortenson, Frey, Wilkomirski, Armstrong and other memoirists.

In affirming the 2010 judgment the Massachusetts Court of Appeals commented that

Here, we express no opinion as to whether Defonseca's belief in the veracity of her story was reasonable. However, we agree with the second motion judge that, whether Defonseca's belief was reasonable or not, the introduction in evidence of the actual facts of her history at the trial underlying Mt. Ivy I could have made a significant difference in the jury's deliberations.

In Mt. Ivy Press, L.P., & another vs. Misha Defonseca the Court stated

This is the third, and hopefully the last, of a trilogy of cases that have played out before us. [FN3] Having twice before considered issues relating to the publication of the defendant's memoir of survival during the Holocaust (the details of which have now been revealed as false), we are now asked to decide whether it was proper for the court below to vacate a substantial judgment against the plaintiffs. We conclude that it was.

Facts.

In 1995, Misha Defonseca entered into an agreement with plaintiff Jane Daniel and her company, Mt. Ivy Press, L.P. (Mt. Ivy), to publish a memoir of her experiences in Europe during the Holocaust. Entitled Misha: A Mémoire of the Holocaust Years, the work told the harrowing story of Defonseca's survival as a young girl during the Holocaust "thanks to her strong will and guile as well as, incredibly, the aid of a pack of wolves, who 'adopted' and protected her, providing food, companionship, and affection." The story even included her killing a Nazi soldier.  Mt. Ivy I, 63 Mass.App.Ct. at 539. Since English was not Defonseca's native language, she was paired with a ghostwriter, Vera Lee, to assist in the writing of the book. See id. at 540.

Throughout the publication process, Mt. Ivy and its principal, Jane Daniel, engaged in many highly improper representations and activities which need not be detailed here. See Mt. Ivy I. Suffice it to say that the improprieties resulted in a jury verdict against Daniel and Mt. Ivy in favor of Defonseca in the amount of $7.5 million, and for Lee in the amount of $3.3 million. The trial judge found for Lee and Defonseca on their G.L. c. 93A claims, and trebled the damages, resulting in judgments of $9.9 million for Lee and $22.5 million for Defonseca. See Mt. Ivy I, 63 Mass.App.Ct. at 546. This court affirmed the judgments. Id. at 562.

Following our decision in Mt. Ivy I, in a saga also worthy of a book or movie, Daniel doggedly pursued the question whether, in fact, Defonseca's tale was true.  Defonseca had claimed to have no knowledge of her true name, believing that she was the daughter of a Jewish couple named Reuven and Gerusha (she did not know their surname), and that she had been assigned the identity of Monique De Wael to protect her from the Nazis. Against this backdrop, Daniel pursued her inquiries. 

Among other efforts, Daniel secured the discovery assembled by her former attorneys. While sifting through the various documents, she came upon what appeared to be an innocent bank record. Startlingly, the document contained information, provided by Defonseca to the bank, indicating her date of birth, place of birth, and her mother's maiden name.

Armed with this information, Daniel expanded her search, seeking Defonseca's official records in Belgium. Stymied by the country's privacy regulations, Daniel contacted a genealogist in Belgium who investigated Catholic baptismal records in Etterbeek. Information was discovered corroborating that found in the bank record.

With smoking gun in hand, Daniel returned to court to right what she perceived to be Defonseca's wrong. Daniel and Mt. Ivy filed an independent action under rule 60(b), arguing that the hefty judgments be vacated. The plaintiffs met with defeat. In the trial court, the motion judge (first motion judge) dismissed the claim for failure to show "extraordinary circumstances" that might warrant relief under rule 60(b)(6).  See Mt. Ivy II, 78 Mass.App.Ct. at 345, and cases cited. The plaintiffs appealed, and the case returned to our court, where their fortunes partially turned.

In Mt. Ivy II, we reversed the judgment insofar as it dismissed the claim against Defonseca, observing that "[Daniel and Mt. Ivy] have alleged an extraordinary fraud that touched every part of Defonseca's case against them and resulted in a huge verdict. It is true, as [Defonseca] point[s] out, that the book's authenticity was not the central issue at trial. Despite this, it is difficult to imagine that this information, had it been known to Daniel and Mt. Ivy, would not have provided a meritorious defense to at least some of the claims, especially those claims based on the contract.... It is equally implausible to suggest that the information, if it had been presented to the jury, would not have affected the substantial rights of the parties." Mt. Ivy II, 78 Mass.App.Ct. at 348 (internal quotation marks and citations omitted). 

Thereafter, Daniel and Defonseca engaged in discovery proceedings in Superior Court, and in July, 2012, a judge of that court (second motion judge) allowed the plaintiffs' motion for summary judgment on their complaint for rule 60(b) relief, vacating the underlying judgment for Defonseca.  Before us, Defonseca appeals, claiming that the second motion judge erred in allowing the plaintiffs' motion for summary judgment on their independent action for rule 60(b) relief. ....

The present case is unique. The falsity of the story is undisputed. The summary judgment materials in the record appendix establish that Defonseca was born Monica Ernestine Josephine De Wael, on May 12, 1937, in Etterbeek, Belgium, and was baptized on May 19, 1937. See note 8, supra.

Under oath, Defonseca averred that, notwithstanding her present understanding that her story was false, she believed throughout the book production process and trial underlying Mt. Ivy I that her story was true; her parents were in fact taken away when she was four years old and murdered in Nazi concentration camps;  and, last, she believed herself to be a Jew, and in fact joined a temple and was bat mizvahed after she emigrated to the United States.

The book contract between Defonseca and Mt. Ivy provided: "The Author [Defonseca] represents and warrants ... that ... with respect to the Work as submitted by the Author, ... (vii) all statements of fact are true or based upon reasonable belief." Here, we express no opinion as to whether Defonseca's belief in the veracity of her story was "reasonable."  We also acknowledge the findings of the first motion judge in his memorandum on the rule 12(b)(6) motion, that the plaintiffs' conduct "is not made any less egregious because of what we now know." See note 9, supra. However, we agree with the second motion judge that, whether Defonseca's belief was reasonable or not, the introduction in evidence of the actual facts of her history at the trial underlying Mt. Ivy I could have made a significant difference in the jury's deliberations. See Mt. Ivy II, 78 Mass.App.Ct. at 348. The underlying judgment in Mt. Ivy I must therefore be vacated. 

Conclusion.

This case has had a legal life of over fifteen years.  All involved have been bloodied. Defonseca's story has been shown to be false. As for Daniel, she also has been shown to have acted highly inappropriately, as evidenced by the still valid multi-million dollar judgment against her in favor of Vera Lee, the one least blameworthy person in the entire affair. Hopefully the saga has now come to an end.