Response to MorfeoKnight's Website Litigation Summary

MorfeoKnight has posted a page describing the USCF litigation. I have some comments on his site, which I will make. I invite him, or anyone else to contribute to the discussion.

USCF Belongs to the Members
We Deserve and Should Demand the Truth, the Whole Truth and Nothing But the Truth, so Help the USCF

The inappropriate use of Chess Life and the USCF website to provide a one-sided account of the lawsuits, USCF v. Polgar, and vice-versa, has troubled me. Yesterday, when checking on the progress of the Chicago Open I noticed that site also being used to give an inaccurate and incomplete account of the facts.

Accordingly, I will use this space to provide as accurate and complete account of the facts. I trust and expect all visitors will review the complete record before drawing any conclusions.

In the words of the late Paul Harvey..."and now, for the rest of the story".

I must say that I found the invective regarding Bill Hall's litigation summaries in Chess Life to be puzzling. While Chess Life's publication schedule does not allow these updates to be as timely as one would like, I have thought Mr. Hall's statements in the magazine to be remarkably measured.

Obviously, the fine folks at chess discussion.com disagree with me, feeling that the account is somehow one sided and unfair. Unfortunately, my requests for the fine folks at Chess Discussion to explain specifically why the statements by Mr. Hall were unfair or misleading were ignored.

Mr. Hall's statements are still available on the web, and can be found here and here.  Can someone, anyone, explain to me what specific language in this statement is inaccurtate, incomplete, or unfair?  I just don't see it.  I am willing to have my mind changed, but I just don't see it.

As far as the publicity on the Chicago Open website, the Chicago tournament is a CCA tournament, not USCF's tournament, and Bill can put whatever he wants to on his website.  While his writing was obviously advocacy, not a dispassionate summary, I did not see anything that was inaccurate.  

Incidently, I visited the Chicago Open on Sunday afternoon.  Bill also included campaign statements regarding the litigation on flyers distributed at the event.  Mike Nietman was also in attendance and had flyers available in the tournament hall.  Despite being a Chicago resident, Korenman had no presence at the event, which I found surprising, although consistent with the lack of energy which has permeated his last two campaigns.

Back to MorfeoKnight's website.

The following is a short list of allegations and corresponding facts.

It is alleged Susan Polgar "sued" the USCF.

Fact: The USCF first filed suit against Polgar on June 25, 2008, alleging hacking into email accounts and impersonating someone (see Pleading 1). Polgar filed suit on August 7, 2008 (see Pleading 2) and later amended her complaint on March 16, 2009 (see Pleading 3 ).

Unfortunately, this summary is neither complete nor accurate. What actually happened was:

1. On June 25, 2008, USCF filed a lawsuit against 10 John Does alleging that persons unknown had hacked into the email of Berry, Hough and/or Goichberg.

2. On August 7, 2008, Susan Polgar sues USCF.

3. On October 24, 2008, USCF amends its complaint in the California action to claim that Gregory Alexander and Susan Polgar conspired together to break into Randy Hough's email account.  Until this time, USCF had not sued Ms. Polgar, therefore, Ms. Polgar did, in fact, sue USCF, before USCF sued Ms. Polgar.

Now, in order to present the complete picture, it should be noted that Ms. Polgar has alleged, in response to the Amended Complaint in California that the John Doe action was a pretext and that USCF filed the lawsuit intending to sue Ms. Polgar the entire time.  I haven't found the evidence cited by her attorneys thus far to be particularly convincing; however, the litigation is still in its early stages.

Finally, and most importantly, it should be noted that it really doesn't matter a rat's ass who sued who first.  What matters is whether the underlying actions have merit.  

Returning now to MorfeoKnight's website, his next comment is as follows:

It is alleged Polgar wishes to bankrupt the USCF.

Fact: Polgar offered to settle for One ($1.00) Dollar even though she suffered personally and professionally from her opponents vicious attacks. She did so, with the best interest of the USCF and its members at heart, however, the settlement proposal was rejected. (I am unable to find the pleading for the proposed settlement so I am linking a copy of the announcement posted on Chess Discussion Blog [see 4].)

This is accurate as far as it goes, but is so incomplete that it would be misleading to one that reads it. To be fair, the incompleteness of the statements is not at all obvious to someone without legal training or a lawyer's advice, so I don't wish to indicate in anyway that MorfeoKnight intended to be misleading.

First of all it should be noted that I am sure that Ms. Polgar does not "want" to bankrupt USCF. Nonetheless, she has sued USCF and its ED and board members for absurd sums of money, and, in the unlikely event she is awarded what she is asking for, then USCF would be driven to bankruptcy.

GM Polgar offered to release USCF for $1 and an apology and a promise not to slander her in the future. That sounds nice until you think through the implications of the offer.

The major problem with the offer from USCF's perspective is that the offer is only to USCF, not it's board members or executive director. Because the USCF has a duty to defend and indemnify Goichberg, Berry, Bauer, Hough and Hall, the USCF could accept this offer and still go broke if a jury were to award a large judgment against Goichberg, Berry, Bauer, Hough or Hall. As such the settlement offer to USCF only is illusory.

Actually, it is worse than that. With the demand of an apology, USCF, by apology, would probably implicate the other defendants that USCF has the duty to indemnify. In short, while superficially attractive, accepting the offer would probably cost USCF in the long run.

Turning to MorfeoKnight's next point:

It is alleged Gregory Alexander hacked and impersonated others.

Fact: Alexander's pleading filed on January 12, 2009, implicate the USCF attorney, Karl Kronenberger, of concealing crucial exculpatory evidence and misleading the court (see Pleading 5 , page 4). On page 3 of said pleading, it asserts: "Exhibit G has been electronically doctored by Kronenberger to intentionally conceal crucial exculpatory evidence and to mislead the court. Exhibit G contains two large black boxes that obscure language hidden beneath. Mr. Kronenberger forgot to flatten the file, and anyone who uses Adobe Acrobat Professional can remove the black box which he wanted to hide from the court, and read what is underneath".

Sorry, but this is half-assed and sloppy.

In the first place, the describing the evidence as "exculpatory" is a bit of a stretch. The redacted evidence indicates that Ms. Polgar does not have an anonymizer account, although Mr. Alexander does. I will fall back on an earlier Chess Discussion post I made back in March:

With all due respect, I think the claim that the redacted material "clears the name of Ms. Polgar" is overstated.

The redacted material shows that Ms. Polgar does not have an anonymizer account. While that is useful information, it does not exonerate her.

1. Per USCF's complaint, not all the attempts to hack the email went through the anonymizer.
2. It does not eliminate the possibility that Ms. Polgar used an anonymizer account registered to another person.
3. It does not eliminate the possibility that another person did the hacking at Ms. Polgar's request or direction. USCF's attorney apparently claimed in open court that they have direct evidence to that effect. As yet, we do not have any knowledge what this purported direct evidence may be.

As fun as it is to comment on the internet, no one commenting on the web has access to all the evidence.

Secondly, the person allegedly exonerated by the redacted document was Ms. Polgar, not Mr. Alexander. Nothing in the redacted material helped Mr. Alexander's case in any way.

MorfeoKnight's Final point, although he promises more at a later date:

It is alleged Paul Truong was the "FSS" and the August 2008 Annual Delegates Meeting was used to try to remove him from the Executive Board.
Fact: Truong's "USCF trial" not only caught him and Polgar by surprise but they were not informed of Kronenberger's presentation. The four motions brought against Truong failed to remove him from the EB despite an alleged bribery. Pleading 3, pages 14 and 15, assert arrangements and other offers were made for two individuals in exchange for their vote to remove Troung. Page 15 reads, "Despite attending the meeting with the purpose of voting for Truong's removal, they changed their votes after hearing facts Truong presented in his defense and which facts were suppressed by Defendants Kronenberger, Goichberg, Hall, Hough, Hanken, and Berry." Internet discussion groups have reported a well respected individual in chess, and others, can testify and provide documentation to substantiate this assertion.

The allegation and the response don't really go together real well.

Whether Paul Troung was the FSS will be established by the technical evidence, which includes, but is by no means limited to, the Mottershead report. (Frankly, if I were representing USCF, I would be handing the data, but not Mottershead's analysis, to an expert and seeing if he draws the same conclusions that Mottershead does.) What happened at the August 2008 director's meeting has any real bearing on the core issue as to whether Mr. Truong was the FSS.

Some delegates tried to remove Mr. Truong at the 2008 meeting. The attempt failed. I'm not sure it's useful to try and divine why the delegates voted the way they did.

As far as the bribery allegation, the allegation seems to lack the essential element of bribery, the quid pro quo. Essentially bribery is offering inducement X to Y so that Y will do act Z. Because the alleged recipients of the bribe did not, in fact, vote the way that the Hanken allegedly wanted them to vote, tends to prove that there was no bribe. Furthermore, an allegedly incriminating email was posted on chessdiscussion, which said.

"If Bill says "yes", you wouldn't owe anything to him." If you don't owe anything to him, then there would be no quid pro quo.

Please note, this is a snippet of a snippet from an email exchange. Seeing the whole exchange in context would be more helpful.

Well those are my thoughts on MorfeoKnight's post. I think when it comes to presenting the whole truth, I think MorfeoKnight has a bit of work to do.

Decisions are made by those who show up.

After the St. Louis EB meeting, Randy Bauer posted the following at the USCF forums:

"It should be noted that only four members of the Executive Board attended the meeting: Bill Goichberg, Jim Berry, Randy Hough and Randy Bauer. Susan Polgar and Paul Truong did not attend - even though they had been in St. Louis earlier in the week for activities around the US Championship. While that is their choice, I find it incredibly galling that Polgar and Truong indicated to Pat Knight that they would participate by phone, and arrangements were made for that participation. Not only did they not participate, they didn't respond to repeated phone calls and emails - and as a result, the USCF wasted $293 on a conference call phone line in the meeting room at the hotel. Personally, I find that extremely poor behavior on both their part."

Ya think?

The USCF board meets four times per year.  Actually attending the meetings, either in person or by telephone, does not seem to be too much to ask.

I have already stated my opinion that Ms. Polgar and Mr. Truong should resign their positions due to the conflicts of interest.  Mr Truong is either the FSS, or he has, despite his innocence, failed to cooperate with USCF in proving his innocence, which is a gross violation of his fiduciary duties as a board member.  Ms. Polgar is suing the corporation and her fellow directors for laughable sums of money based on the absurd premise that statements about her husband's conduct somehow defame her.   (Earth to Polgar:  in order to defame someone, one need to be talking about the person allegedly defamed, not her husband, kids, or housepets.)

Judge Patel, in the recent hearing in San Francisco, bluntly stated as follows:

THE COURT: We're not going to go --we're not going to visit these issues now. I'm trying to see if there is some way of salvaging --first of all, I'm going to tell you one thing also.  Doesn't this organization have an anti-nepotism rule? I mean, it's one of the worst ideas in the world to have spouses on the same board.

MR. KRONENBERGER: Absolutely. That was not disclosed when they ran for the board is the problem.

 
THE COURT: No organization would generally allow that  to happen.

MR. LEIGH: Your Honor, if I could speak to a couple of points.   First of all, Mr. Kronenberger indicated that their marital relationship was not known. There's not true.

THE COURT: Well, even if it was . . .

MR. LEIGH: I understand the Court's point.

 
THE COURT: I mean, one of them ought to give up their position.

MR. LEIGH: Yes.  (Then changes subject.)

  

When a judge makes such a remark on the record, a litigant ignores the suggestion at their peril. My wife used to refer to such judicial suggestions as hitting someone upside the head with a clue-by-four.  

Despite all that, there has been no resignation.

If you don't want to resign fine. But if you won't resign, the least you can do is show up for the freaking meetings. If you don't have the decency to do that, an RSVP is the least you can do.

One of These Things is Not Like the Other . . .

From USCF's Complaint v. Polgar in San Francisco:

After viewing and copying USCF’s confidential communications, 
Defendants created a blog with the Google-owned service, Blogspot.com. 
Google, Inc. is located in the District. Defendants’ blog was entitled, USCFSaid.
Blogspot.com (the “Blog”). Defendants published some of the 
confidential communications taken from Hough’s email account on this Blog 
for third parties to view. At various times, Defendants have described the 
Blog as their source of the confidential emails in an effort to hide the fact 
that Defendants themselves stole and distributed these emails.

From a Motion for Protective Order filed by Susan Polgar in Texas yesterday:

For example, 
on a number of occasions, Defendants Kronenberger, Kronenberger Burgoyne, L.L.P., and their 
clients/co-defendants published privileged statements, strategy, and investigatory results in public 
fora, including on a website and blog owned or operated by the Defendants who are now invoking 
the privilege. A publicly viewable blog, http://uscf-said.blogspot.com, is a blog on which USCF 
board members regularly posted messages to each other regarding the state of affairs of the USCF. 
Posted on this blog for all the world to see were communications written by Karl Kronenberger to 
board members of the USCF. A true and correct copy of http://uscf-said.blogspot.com is attached 
hereto as Exhibit “A.”

Well isn't that special? Each side is accusing the other of creating the blog.

Hopefully, Google records will make the identity of the blog creator clear. Frankly, the allegations that USCF directors would post this material on a publicly viewable blog doesn't make a whole lot of sense to me. Also, all the messages were posted from the same account, which does not seem consistent with the allegations that "board members posted messages to each other." Further the account is named, "to fall on the ground from the sky", which seems to denote leaked material rather than a spot for board deliberation.

Brian Lafferty Needs a Muzzle

As an attorney, I cordially despise the vast majority of legal thrillers or dramas.  The utter lack or realism really drives me bats.   One of the few exceptions was the first season of show Murder One. In the pilot, the lead character attorney tells his client, "What you don't understand, Richard, is that in what you are involved in now, facts are weapons.  I can be the best lawyer in the world, but if I go into court unarmed, I'll get my ass kicked."

I am reminded of this every time I see Brian Lafferty publish yet another internet post on Ms. Polgar.  Frankly, I don't see Lafferty's comments as defamatory, which is not to say that they aren't childish, pointless, and reckless.  Already, his post lawsuit comments have been cited in court filings as evidence against him.  

Brian seems confident that his postings are within the bounds of the law.  Fine, but, others might disagree, and, ultimately, his fate may come down to whether 6 folks in Lubbock think he stayed on the right side of the line.  Polgar's best chance of winning this lawsuit, IMHO, is to portray Lafferty as a cyber-stalker.  Which every post, he is helping her paint that picture.  

Now, Brian holds no position with USCF, and I don't think his words can or should be attributed to USCF.  If he were paying his own legal fees, I would say fine, but USCF is paying his legal fees. He is, thus, wasting the membership's money by needlessly complicating his case.

When your opponent is drowning, don't throw them a rope; throw them an anvil.  Brian is throwing ropes, lots of them.  Those ropes may not be enough to save Ms. Polgar's case, but it is a foolish risk to take.

Frankly, USCF's attorneys should order him to stop posting or discussing the case with anyone. If he won't follow their advice, they should withdraw, and let him pay for his own damn defense. If he wants to play with fire, let him do it on his own dime. 

Further Update

The Judge in Texas dismissed Chess Magnet Schools, but denied the motions to dismiss as to the other defendants.

As to the other defendants, it is game on.

Still more adventures in the bizarro world of USCF litigation

There have been additional developments in the various trees of the current outbreak of USCF litigation.  Let's get the easy stuff out of the way first.

First, the obligatory disclaimer.  This is a work of opinion based on examination of publicly available information.  I do not represent any party to the litigation -- thank god.

In the Illinois action, Ms. Polgar and Mr. Truong have filed an objection to remand.  I wasn't particularly impressed with their brief, but we'll see what the court does with it.

In Texas, there was a brief discovery tiff about the documents that USCF had previously obtained in California.  Polgar moved for a protective order which was denied, so USCF in Texas now has access to all the data in the possession of USCF in California.  (Yeah, that's just a bit wierd.)

There has been further briefing in some defendant's renewed motions to dismiss.  In support of the attempt to keep Hal Bogner in the case, Paul Truong submitted an affidavit stating the following:

“I ran into Hal Bogner in Houston, Texas in December 2007 when I attended the National K-12 Chess Championship. While I was in Houston, Mr. Bogner approached me to discuss the “Fake Sam Sloan” issue, and I categorically told him that I had nothing to do with it.
Although I cannot remember the exact words used, Bogner told me that it does not matter if I had nothing to do with the Fake Sam Sloan because Bill Hall and Bill Goichberg are out to get me and my wife, Susan Polgar. He communicated that unless my wife and I resign from the Executive Board of the USCF and leave chess, our lives would be permanently ruined. He said that because the USCF controls the USCF forums, website and database, nothing I say will matter.
I asked him what that statement meant. Bogner replied that because he and Brian Mottershead have been authorized by Bill Hall and Bill Goichberg to launch the Fake Sam Sloan investigation, Bogner and Mottershead have produced a lot of evidence to “nail” my wife and me, and unless my wife and I resign from the Executive Board, this information will be slowly leaked to the NY Times, to other mainstream media, and to Texas Tech University. By the time they (Bogner, Mottershead, Hall and Goichberg) are done, Texas Tech University would want nothing to do with my wife or me anymore.  Bogner also told me that he was authorized by Bill Hall and Bill Goichberg to gain access to the Moderator and Forum Oversight Committee (“FOC”) private discussion areas, which are private and restricted areas. Even though Bogner had no standing to have access to these private and confidential chat areas, Bogner said that Bill Hall wanted him (Bogner) to find out what goes on so they (Hall and Goichberg) can keep all the moderators and FOC members in check.
Bogner said that because of his access, he knows quite a bit about what goes on behind the scene. Bogner said that he, Bill Hall, and Bill Goichberg would fight back if Susan or I challenged their actions. He added that Goichberg will not ever allow Susan to serve as President of the USCF because Susan is Hungarian and she has no idea how things work within the USCF.  Bogner also said that they have the trusted legal advice of Brian Lafferty and that Lafferty knows how to make our lives a living #### with the US Attorneys, District Attorneys, Attorney General, IRS, and the like. He implied that Lafferty will contact every state and federal agency he could until Susan and I resign.
The encounter ended with Bogner saying the following: “Don’t be stupid.  You can’t fight the system. Resign now and you can still salvage your chess business and positions at Texas Tech University. Susan can make a few extra dollars by being the spokesperson for Chess Magnet. It’s useless trying to fight this. The longer you drag this out, the worse it will be for you. You’ll end up being sorry if you don’t.’ ”

OMG.

I wasn't there.  I can't say for sure what was said that day.  What follows is only my opinion. Opinions expressed by me are purely my opinions, and not those of Blogspot, USCF, or any other person or entitity.  Now, with all that out of the way:

What a crock!

This reads like dialog in a movie script so bad that Roger Corman would reject it.  People just don't talk that way in the real world.  In my 20 plus years of practicing law, I have never seen a less credible statement under oath, and the competition for that award is pretty freaking fierce.

As a reality check, I had my wife, who is also an attorney read the affidavit.  She found it sufficiently incredible that she was literally chuckling as she read it.

We are currently awaiting the judge's decision on the second rounds of motions to dismiss.

Most of the action, however, is  in San Francisco.  In the supplemental briefing, USCF revealed their much anticipated direct evidence of Polgar's involvement in the email hacking.  The anticipation of this "smoking gun" revelation on USCF forums verged on the hilarious.  Brian Lafferty was hyperventilating so much that I was begining to think he had gone directly to his computer after running a marathon.  I felt compelled to note that I had heard a lot of attorneys talk about a "smoking gun."  Sometimes it's a smoking gun; sometimes it's smoke and mirrors.  

When the evidence emerged, it was a ChessDiscussion PM from GM Polgar to Gregory Alexander.

"Thu, Apr 10, 2008, 5:58 am

BTW, I sent to the board a confidential letter about Hanken yesterday. Can you check whether Randy H forwarded to Hanken? Thanks!"

USCF has submitted a list of dates of purported unauthorized access to Randy Hough's email.   Per that list, there had not been any unauthorized access to Hough's email account since March 12, 2008.  Two days after the post, the allegedly unauthorized access happened again, and there were several more alleged hacks in the next week.

Ms. Polgar has submitted an explanation to the Court.  She claims that, because she did not access to USCF forums, she was asking Mr. Alexander to check on USCF forums and see if Hanken posted on there about her letter.

Well, it's an explanation, but there are some problems with it.

a.  The email was sent to many people, not just Hough.  Why was she asking about Hough in particular?

b.  Furthermore, how would she know if the email were forwarded?  For all she knows, Hough (or Goichberg or whoever) called Hanken on the phone, talked to him in person, or whatever.

c.  If she was asking for Gregory to check USCF forums, you would expect her

1  to say  "someone" rather than identify Hough specifically.

2  to say "leaked" instead of forwarded  

3. to specifically direct Gregory to USCF forums.

d.  Why ask Gregory to check USCF forums.  Ms Polgar may no longer have had an account, but her husband did.  Why ask Gregory?

e.  Hanken doesn't post on USCF forums all that much.

The evidence isn't a smoking gun, but it is powerful circumstantial evidence.  In my opinion, Ms. Polgar's explanation doesn't help her case at all.

A hearing was held in the SF action.  The upshot:

-- Gregory Alexander's motion to dismiss for lack of jurisdiction will be denied.

--The case has been ordered to mediation with an experienced mediator.

--USCF has been ordered to produce documentation regarding the authorization of the filing of the lawsuit.

--The court indicated, but did not rule, that the motion to dismiss would probably be denied, but that she was inclined to transfer the case to Texas.

I think the mediation order is the most important thing to flow from that hearing.  Mediation is, in essence a settlement conference conducted by an experienced attorney trained as being a mediator.  The mediator plays devil's advocate to both sides, in an attempt to look at both the strengths and weaknesses of their case.  I'm a big fan of mediation, and, if both sides come to the table with an open mind, it is quite successful in achieving settlements.

The folks over at ChessDiscussion are all atwitter over the corporate authorization issue, having convinced themselves that USCF's attorney mislead the court.  They seem to be reading things into the transcript that I don't see, but I don't think this argument will be successful (or, as we say in Indiana, "That dog won't hunt.")  Multiple reasons:

1.  USCF has in the past, initiated major litigation solely on the ED's authority -- without board approval.

2.  The delegates ratified all acts after the lawsuit was filed against John Does in California, so the initial filing is covered.

3.  The act was subsequently ratified by formal motion of the litigation subcommittee and by EB.

We'll see.  

Adventures at ChessDiscussion.com

I've begun posting at ChessDiscussion.com's USCF/FIDE forum.  It has been quite the experience.

I was under no delusion that my opinions would be popular there.  I was under no illusions that I would "convert the pagans" as one poster charmingly put it.  I was hopeful that we could discuss some of the issues politely and, perhaps, cut back on some of the hyperbole that is so prevalent there.   I've tried to be polite and respectful -- to obey the hostess's exhortation to "be nice."

It's been a challenge.  A few observations.

1.  The exhortation to "be nice" seems to be regularly ignored.  For a bunch of people who complain about dirty politics, they are sure liberal in the use of words like "corrupt", "vicious", and "goon". They seem to be imitating the behavior that they attribute to "the enemy."

2.  They get oddly offended when asked to back up their claims.  For example, one poster referred to Randy Bauer as attacking Susan Polgar viciously.  I politely disagreed, and asked him to provide an example.  I was roundly ignored.  The claim was also been made that Bill Hall's Chess Life statement was defamatory.  Having read the statement, and having thought it was remarkably measured, I took issue with this and challenged them to point to a single false statement in the report.   Multiple folks claimed it was defamatory, but not a single poster could cite a single false word.  

Now if Mr. Hall's statement were really all that heinous, you would think they would be eager to point me to all the false statements.  Nada.  Squat.  Bubkis.  Lots of sound and fury, but no actual proof was cited.

It got worse.  The claim has been made, repeatedly, on chessdiscussion, that that Ms. Polgar was sued by USCF before she sued USCF.  This statement is factually incorrect.  They attempt to rely on statements by attorney Kronenberger.   When I went to the document that Kronenberger actually filed and posted the actual words that Kronenberger said, the post got pulled, and the thread was locked.  If people have different opinions than I do, I can live with that, but I have to confess I find it very annoying when people make incorrect statements of fact, and I am not allowed to make the record clear.

3.  For all the whining about the moderation on the USCF forums, ChessDiscussion is much more heavily moderated than the forums.

4.  My favorite chessdiscussion moment came courtesy of Albert:

"I come here to be with people who share my opinion. "

Kinda says it all, right there.