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March 22, 2001



By Facsimile and Email

Philip R. Olenick, Esq.
101 Tremont Street, Suite 801
Boston, MA 02108

Re:Silverstein v. Microsystems Software, Inc. et al.,
Civ. No. 00-3893 (Middlesex Super. Ct.)

Dear Phil:

I am truly sorry that Bill Silverstein was not in the courtroom yesterday to witness Judge Zobel thoroughly spank almost every aspect the above-referenced case as well as your appeal of Judge Sosman's decision in the previous case. I lost count of the number of times Judge Zobel bluntly said that your client's position was "wrong" or "not the law". I can't fathom the humiliation of over and over having to admit that you know of no case that supports your positions.


More particularly, Judge Zobel demolished the mainstay of your summary judgment motion in the prior action by correctly telling you Mr. Silverstein's web-published statements that my corporate clients broke the law are actionable as fact. Judge Sosman would have reached the same result if she had bothered to rule on that weak summary judgment motion. As Judge Zobel correctly explained to you, Near v. Minnesota, the only case you cited all day, does not protect Mr. Silverstein and, in case you didn't know it, Judge Zobel is intimately familiar with that case. Indeed, he was a noted Constitutional scholar before being appointed to the bench. Also, Judge Zobel noted that the communications between you and Tracy Spruce in settlement were nothing out of the ordinary and that it was reasonable for my clients to ask that Mr. Silverstein stop libeling them.


Phil, there is just nothing actionable about any of this other than the fact that Mr. Silverstein has appealed Judge Sosman's order and then filed this action. In my opinion, both of those things make him liable under G.L. c.231, §6(f) and, perhaps, Mass. R. Civ. P. 11. If you haven't thought about that you should. Indeed, I believe that Mr. Silverstein is a deeply troubled person, who is better off spending his money on counseling than on your pursuit of these frivolous theories. It is your ethical duty to tell him so and, if you haven't, shame on you.

All that being said, Phil, I believe that I can convince my clients to agree to full and complete mutual releases, including dismissals of the appeal and superior court action, if Mr. Silverstein agrees to apologize to my clients and their officers for his misrepresentations about them and prominently post that apology on his website for at least one year. Please contact me at your earliest convenience to discuss this possible settlement. I am providing this to you by email so you can forward it to Mr. Silverstein.


Very truly yours,

 

Irwin B. Schwartz