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It is those stricken allegations, which were thrown out of the lawsuit, which you obviously intend to recklessly repeat in the Story. In addition to striking “John Doe’s” gratuitous and inflammatory allegations, the Court also dismissed all nineteen of his causes of action against my client, and threw the whole case out. The Court also specifically held that the agreement at issue, which “John Doe” had challenged, was valid and enforceable. Note also that in addition to the Court striking out numerous wild allegations which had improperly been included in “John Doe’s” lawsuit, many of the documents filed in that action were placed under seal by the Court.

As to the other specious lawsuit, which was filed by two other “Doe” plaintiffs unwilling to sue in their own names, their allegations of purported lecherous conduct were the very allegations that the Court struck from the security guard’s “Doe” lawsuit. The case by the two “Doe” plaintiffs was subsequently dismissed. You can confirm that in the Court’s records.

As you should be aware, Platinum Equity is a large organization, with over 140 employees. As such, it is not unexpected for employment disputes to arise from time to time. When properly viewed in context, the “Doe” lawsuits are of little significance. Yet, it is evident that the Story’s intended angle is to falsely state or imply that the allegations in those lawsuits are indicative of Platinum. If that were true, with 140 employees, one would expect to see literally dozens of such lawsuits. The fact that the inflammatory allegations appeared in lawsuits filed by just three “Doe” individuals should suffice to put you on notice that it would be extremely reckless to extrapolate from the isolated “Doe” allegations that they somehow indicative of Platinum and its conduct.

It is the Reader’s obvious intention to falsely make it appear either directly or by implication that the allegations of inappropriate behavior and sexual wrongdoing in the “Doe” lawsuits had merit, when the opposite is true. It is apparent that the Reader’s reporters have been on the hunt for inflammatory negative information to publish about Platinum Equity ever since it acquired the Union-Tribune. The San Diego Reader has a brief but already well-established pattern of taking swipes at my client. The Reader had a history of attacking its perceived competitor the Union-Tribune before Platinum acquired that paper, and since its acquisition earlier this year, the Reader has transparently shifted its criticism to Platinum. For example, last month, the Reader published an extremely negative article about Tom Gores and his family which contained numerous inaccuracies. Your paper subsequently published lengthy “Just For the Record” statements from Tom Gores and Alec Gores to correct its errors. In addition, the Reader’s “Scam Diego” blog page authored primarily by Don Bauder has been filled with numerous negative articles about Platinum, Tom Gores, and/or the Union-Tribune since May 1st. For example, after CNBC broadcast the negative and inaccurate piece about Platinum last week which obviously inspired your Story, the Reader posted a story about the CNBC segment on its “Scam Diego” blog. The Readers’ negative bias against my client is evident as it relishes highlighting disparaging aspects of the CNBC story, gleefully noting that “Gores got the worst of it.” Referring to Mr. Gores in this derisive manner reveals the Reader’s preordained negative point of view.

The Story which is now being prepared transparently continues the San Diego Reader’s pre-conceived agenda to attack, disparage and defame my client. Be advised that Constitutional malice can be shown through the calculated use of the journalistic devices of pre-conceived storylines, themes, or angles. Gertz v. Robert Welch, Inc., 680 F.2d 527, 539 (7th Cir. 1982), cert denied, 103 S.Ct. 1233 (1983). That is what is occurring here. In the event that the defamatory Story is published and this matter proceeds to litigation, we are confident that the Reader’s pattern of publishing negative stories about my client, culminating in the upcoming Story, would establish the Reader’s use of these journalistic devices, and would supply ample evidence of malice.

The Reader’s Constitutional malice will also be revealed through examination of its financial motives for publishing a Story such as this, attacking the owner of what it perceives as its primary competitor. As the Ninth Circuit explained in Suzuki Motor Corp. v. Consumers Union of United States, Inc., 330 F.3d 1110, 1136 (9th Cir. 2003), circumstantial evidence of financial motives can support a finding of actual malice, holding: “There is sufficient circumstantial evidence of a financial motive to support the ultimate conclusion of actual malice. While [defendant] is correct that financial motive cannot, by itself, prove actual malice, it nonetheless is a relevant factor bearing on the actual malice inquiry.”

Even that is hardly the only evidence of the Reader’s Constitutional malice, however. The fact that you attempted to provide my client with an absurdly short window in which to provide comment to the Story (initially insisting on comment within just a few hours after informing my client of the Story) although you will not go to press until Wednesday of next week suggests an intention to deprive my client of an opportunity to provide a meaningful response. This purposeful avoidance of the truth evidences Constitutional malice. Harte-Hanks, Inc. v. Connaughton, 491 U.S. 657 (1989).

If you publish a Story reporting on the unproven specious allegations of bawdy behavior, we caution you that omitting key information, misleadingly characterizing events, or otherwise implying or stating that my client engaged in wrongdoing, would result in a false and defamatory portrayal which would lend credence to the unproven, stricken and dismissed allegations of the “Doe” lawsuits. Publication of incomplete and hence misleading information may give rise to liability for defamation since the incomplete presentation of facts may imply an actionable false assertion of fact. Ringler Associates Inc. v. Maryland Cas. Co., 80 Cal.App.4th 1165, 1180, 96 Cal.Rptr.2d 136, 149 (2002); see also, Milkovich v. Lorain Journal Co., 497 U.S. 1, 19, 110 S.Ct. 2695, 2706, 111 L. Ed. 2d 1,18 (1990) (incomplete facts may still imply false assertion of fact). “Although the truth of an alleged libel may be proven as a complete defense it is not a defense to show that a statement contained in a publication, if taken alone, is literally true, when other facts are omitted which plainly refute the false impression of the partial statement. A statement is not true or even substantially true if, by implication, an entirely untrue impression is made by omission of part of the facts.” Express Publishing Co. v. Gonzalez, 350 S.W.2d 589, 592 (Tex. 1961); see also Toney v. WCCO Television, Midwest Cable and Satellite, 85 F.3d 383, 392 (8th Cir. 1996) (recognizing cause of action for implied defamation where defendant omits important facts).

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Comments

Visduh July 15, 2009 @ 3:47 p.m.

Appears to be another attorney who gets paid by the word. But a letter like that one, which is probably loaded up with the firm's usual boilerplate, could easily intimidate plenty of people, or at least scare them into watering down a story. In the days of the old wild west, there were hired guns. Now we have hired mouths, or at least hired word processors.

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SurfPuppy619 July 15, 2009 @ 3:58 p.m.

LOL...Marty Singger just got OWNED!

Hey Marty, you rolled the dice, and lost.

You just got called on your bluff.

My advice to Marty- don't bluff, if you're going to go around threatening someone you better be ready to follow through, or else you become just a little chicken hawk getting punked out.

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SurfPuppy619 July 15, 2009 @ 4:08 p.m.

Hey Marty, you're a joke.

I dare you to come after me.

Two words for you Marty: Anti SLAPP.

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Don Bauder July 15, 2009 @ 4:56 p.m.

Response to post #1: In the process of researching this column, I found several Singer letters that had been posted online. Yes, they used the same words and the same threats. Best, Don Bauder

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Don Bauder July 15, 2009 @ 4:58 p.m.

Response to post #2: You'll be the next to get a Singer letter, SurfPuppy, if he can find out your identity. Best, Don Bauder

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Don Bauder July 15, 2009 @ 4:59 p.m.

Response to post #3: I'm sure he doesn't think of himself as a joke. Best, Don Bauder

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SurfPuppy619 July 15, 2009 @ 5:26 p.m.

You'll be the next to get a Singer letter, SurfPuppy, if he can find out your identity.

Marty can send me all the letters he wants. Wait until he tries to sue me.

And if he wants to find out my name he is just two subpoena’s away-not real hard. . . . . . I'm sure he doesn't think of himself as a joke. =================================== I'm sure Marty doesn’t, but everyone else does.

You simply cannot go around making these types of merit less threats to silence free speech issues, especially when it is opinion or satire, and not expect to be called a joke when you get called on your bluff. (Note to Marty, look up NY Times v. Sullivan and Huslter v. Falwell).

Guys like Singer-who try to use their legal expertise and knowledge of the law to silence other view points by baseless threats- are a threat to our way of life and our free speech.

Anti SLAPP laws were designed with guys like Singer in mind.

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Don Bauder July 15, 2009 @ 6:14 p.m.

Response to post #7: What is most important here is that Platinum, the owner of a metropolitan daily newspaper, hired such a lawyer. Best, Don Bauder

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David Dodd July 15, 2009 @ 6:18 p.m.

I started to review the court cases cited in the letter, but the court decisions cited are nebulous and irrelevant to what is going on here. The letter smells like some cookie-cutter horsecrap sent off to try and scare anyone without a spine. Goodbye, U-T. Consider me another rat jumping off of your sinking ship.

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Don Bauder July 15, 2009 @ 7:53 p.m.

Response to post #9: Several Singer letters have been posted online, including in the Wall Street Journal. Yes, they are quite similar -- boilerplate with some localizing. A publication named Smoking Gun regularly prints his letters when received. Best, Don Bauder

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Visduh July 15, 2009 @ 8:47 p.m.

Response to post #8. Don is right. Let the significance of this all sink in. The owners of the U-T hired this "intimidator" to try to muzzle the Reader. A few years ago--heck, a few WEEKS ago--the U-T tried to pretend that the Reader didn't exist. No recognition of the upstart (which has been around for, what, four decades?) paper that was constantly sticking things into the ears, eyes and other orifices of the U-T.

Yeah, the U-T, the paper of the high road, is trying to scare the little Reader into silence. How the mighty have fallen!

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Don Bauder July 15, 2009 @ 9:41 p.m.

Response to post #11: Well, I would say that if you have an asset worth $1 billion, and five years later you sell it for $50 million (for significantly less than the value of the real estate), you have fallen by definition. Best, Don Bauder

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Fred Williams July 16, 2009 @ 3:04 a.m.

NOT FOR PUBLICATION OR OTHER USE

Gentlemen,

We are writing as the litigation counselor for Fred_Williams, a frequent poster on the Scam Diego Blog.

We have become aware that you may potentially one day possibly consider the thought of maybe considering writing a response to a blog post he may or may not be contemplating writing in the unforeseeable future.

Publishing this blog posting will result in the immediate and irrevocable release of a squadron of winged-monkey lawyers who shall swoop down upon the India Street offices of the Reader, file lawsuits, fling excrement, and howl at passers by on the sidewalk.

If you procede to publish said blog posting, which shall be preceded by the words "NOT FOR PUBLICATION OR OTHER USE", the aforementioned flying monkey lawyers intend to sue for astronoical...nay...intergalactic damages up to and including the entire net worth of the known universe.

You proceed at your peril.

This does not constitute a complete or exhaustive statement of all of my client’s rights or claims. In fact, the winged primate advocates at our disposal may indeed determine that only the forced public humiliation of the entire Bauder clan, including any and all forebears, ancestors, and offspring, now or in the unforeseeable future, can suffice to compensate our client, Fred_Williams, in the event this blog post is published in print, online, or in any other format whatsoever.

Sincerely,

Hugh G. Rection Partner Bicker, Back, and Forth, Attorneys at Law

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David Dodd July 16, 2009 @ 3:32 a.m.

"flying monkey lawyers?"

NOOOOOOOOOOOOOOOOOOOOOO!!!!!!!!!!!!!

(Great response, Fred. The Reader should print this.)

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Fred Williams July 16, 2009 @ 4:32 a.m.

If they print it, or even display it on the website as a comment, I'm suing!

:-)

Thanks, Refried. I enjoyed writing it. Flew off the keyboard. It's so easy to mock a pompous dorkwad like Singer, even Fumber could do it.

Fred (aka Hugh G. Rection, Esq.)

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Duhbya July 16, 2009 @ 6:40 a.m.

"You proceed at your peril."

Words whispered to his spouse on the wedding day?

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Don Bauder July 16, 2009 @ 7:30 a.m.

Response to post #13: Great satire. My favorite law firm is Dewey Cheatum & Howe. Best, Don Bauder

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Don Bauder July 16, 2009 @ 7:37 a.m.

Response to post #14: Why wouldn't the Reader print it? Fred is a great satirist. Best, Don Bauder

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Don Bauder July 16, 2009 @ 7:39 a.m.

Response to post #15: We haven't heard from fumber for quite awhile. Best, Don Bauder

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Don Bauder July 16, 2009 @ 7:42 a.m.

Response to post #16: Marriage was one of Pauline's lesser perils. Best, Don Bauder

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SurfPuppy619 July 16, 2009 @ 8:12 a.m.

Fred brings the funny....I think Im going to have to email Marty a link to this thread.

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Don Bauder July 16, 2009 @ 9:17 a.m.

Response to post #21: My guess is he already knows it. The focus has shifted to the owner of the U-T hiring Marty. The sex part of the story -- which has not gone to court, so can't be proved now -- has faded into the background. Best, Don Bauder

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paul July 16, 2009 @ 9:57 a.m.

"Response to post #15: We haven't heard from fumber for quite awhile. Best, Don Bauder"

Haven't we? Based on this rambling and repetitive threat letter I am left wondering whether we have discovered Fumber's day job.

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MURPHYJUNK July 16, 2009 @ 11:28 a.m.

a lot of good a letter will do marty when someone decides to feed him his teeth

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Duhbya July 16, 2009 @ 12:05 p.m.

Response to #17:

Sue Innocent and Bill Overly, Attorneys at Law

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MURPHYJUNK July 16, 2009 @ 12:29 p.m.

why not put a picture of Martin Singer in the media, I would guess he would not want to be out in public if he was a "public figure"

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SurfPuppy619 July 16, 2009 @ 1:31 p.m.

Marty looks a little like Tom Arnold here;

http://www.blogcdn.com/www.tmz.com/media/2006/06/lavely_singer_revised.jpg

Suit Alleges Defendant is "an A**hole" Posted Jun 22nd 2006 9:39AM by TMZ Staff

Celebrity lawsuits have become a brutal business. The fictitious headline of this item is only a slight overstatement. The things the stars want to say about the people they hate but never could are now surfacing in suits.

Let me introduce you to the kings of the legal rant -- Marty Singer and his law partner, Jay Lavely have brilliantly become the go-to lawyers when celebs believe they've been wronged.

Jay is the guy who filed the Reese Witherspoon lawsuit, claiming Star Mag violated her privacy by falsely stating/implying that she was pregnant. Most lawsuits I read are so boring it reminds me why I'm glad I'm not practicing law anymore. But the lawsuits Marty and Jay file, well, you want to read them while munching on popcorn. Jay trashes Star, alleging the article on Reese was a "tall tale brazenly published" to turn around "sagging sales." And with all due respect to Jay, no one is as deliciously brutal as Marty.

The fact is, these days, the stars are turning to Marty and Jay rather than publicists. First of all, it feels good to get things off your chest -- things that publicists just won't say for you out loud. Second, Marty and Jay can say pretty much anything they want about anyone in a lawsuit because it's all considered "protected speech," which means no one can sue for defamation. Searing language in legal documents gets favored nation status.

Jay and Marty are feared. I remember when I started "Celebrity Justice" I did a story Marty didn't much like, and I felt his wrath and I must say, he kinda scared the crap out of me. These days, I "get" Marty. He's not to be messed with, but I think I now know the game. It's not always about getting a verdict -- it's about getting people to cry uncle.

And there's something else about Jay and Marty -- they're actually really nice guys, and funny! They will probably sue me for that. After all, they have an image to protect.

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MURPHYJUNK July 16, 2009 @ 2:41 p.m.

I bet if some ( if not most) lawyers had to face the ppl they are suing face to face and not hide behind the law they would wet themselves and run away

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SurfPuppy619 July 16, 2009 @ 3:56 p.m.

Hey Don, any word from Marty over this piece yet?

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Don Bauder July 16, 2009 @ 9:19 p.m.

Response to post #23: I don't remember fumber ever citing alleged legal precedents. Best, Don Bauder

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Don Bauder July 16, 2009 @ 9:21 p.m.

Response to post #24: Marty has the Governator to back him up. Best, Don Bauder

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Don Bauder July 16, 2009 @ 9:22 p.m.

Response to post #25: Wonderful. Haven't heard of that law firm before. Best, Don Bauder

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Don Bauder July 16, 2009 @ 9:24 p.m.

Response to post #26: His clients are public figures. He isn't. Best, Don Bauder

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Don Bauder July 16, 2009 @ 9:29 p.m.

Response to post #27: One of the tightropes Singer has to walk is that when they are on the rise, Hollywood actors and actresses want all the publicity they can get -- good or bad. When they get really big, they only want the good publicity, but even Singer admits that his star clients need the media. Best, Don Bauder

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Don Bauder July 16, 2009 @ 9:32 p.m.

Response to post #28: There's an old saying that bluster is 9/10ths of the law -- something like that, anyway. Best, Don Bauder

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Don Bauder July 16, 2009 @ 9:34 p.m.

Response to post #29: I haven't heard from him. I don't know if the Reader has. If it has, no one has told me. Best, Don bauder

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realnews July 17, 2009 @ 10:31 a.m.

I love Slapp suits. My attorneys has won many. But that's not the only reason I like him.

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Don Bauder July 17, 2009 @ 11:05 a.m.

Response to post #37: Good for him. What else has he done for you? Best, Don Bauder

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