Other Court Reporting

reFX Audio Software Inc. files suit against other university network users

Dan Bauman
The Journal at Webster University

The Canadian audio software company, reFX Audio Software Inc., has filed copyright infringement suits against four university network users at colleges across the nation.

In November, the company filed suit against a Webster University network user as well as a user at University of Central Missouri for illegally sharing the company’s software.

Three users at the University of Colorado and one user at Colorado State University have been sued as recently as Feb. 7, 2013, by the company. reFX Software has also filed suit against more than 600 commercial network users in Colorado, Illinois, Connecticut and Missouri.

Much like the case in November, because the company was unable to identify the true names of the individuals it is suing, reFX Software assigned a number to each accused perpetrator. In the Missouri lawsuit, the individual who allegedly used Webster’s network is listed as John Doe 31.

The Missouri complaint accused John Doe 31 (out of 180 in the suit) of illegally sharing reFX Software’s Nexus program on Aug. 27, 2012 at 9:23 a.m.

reFX Software references three specific products and prices in its complaint as well as the total costs:

—Nexus 2 with 1,000 factory presets and all 45 expansion packs: $2,589.
—Nexus 2 with 1,000 factory presets: $299.
—For each individual expansion pack: $65.

On Nov. 28, 2012, United States Magistrate Judge Terry I. Adelman ordered that reFX Software could serve subpoenas to the Internet service providers (ISP) involved in the case.

The subpoena will seek “documents that identify each Doe defendant, including the name, current (and permanent) addresses, e-mail addresses … for each defendant.”

Court documents reference the Cable Service Privacy Act, which provides:

“Cable operator may disclose (personally identifiable) information if the disclose is subject to subsection (h) of the section, made pursuant to a court order authorizing such disclosure, if the subscriber is notified of such order by the person to whom the order is directed.”

Furthermore, the order states that third party ISPs (i.e. Webster University) must serve a copy of the subpoena and copy of the court’s order to the alleged illegal sharer. The ISP must have served this copy, “using any reasonable means

including written notice sent to his or her last known address,” no later than Jan. 25, 2013.

The order also states the individuals being sued by reFX Software (aka John Does) may file motions in court contesting the subpoena or litigate anomalously with reFX Software before Mar. 15, 2013.

No personal information shall be turned over to reFX Software before Mar. 15, 2013. Furthermore, if a John Doe challenges the subpoena, an ISP may not turn over any documents or information until the challenge is resolved.

“The ISPs shall have to and including March 25, 2013, by which to produce to plaintiff reFX Audio Software Inc. the information responsive to the subpoena as to any non-moving Doe defendant(s) only,” court documents state.

The order states that any information disclosed to the plaintiff by the ISP may be used only for the purpose of protecting its rights under the Copyright Act.

Concerned about privacy, one of the 180 individuals sent a letter with no return address to the Eastern District Court in Missouri objecting to the release of any personal information relating to him or her.

On Feb. 7, 2013, the case was reassigned to Judge Henry E. Autrey.

Webster IP address included in copyright infringement lawsuit

Dan Bauman
The Journal at Webster University

A Canadian audio software company, reFX Audio Software Inc., filed two copyright infringement complaints in federal court against 180 people, one of which used Webster University’s Internet network to illegally share music. The company filed the complaint on Nov. 8.

Because it was unable to identify the true names of the 180 individuals at the time of filing, reFX Software assigned a number to each accused perpetrator. The individual who allegedly used Webster’s network is listed as John Doe 31.

While it does not have the true names of the individuals, reFX Software said it had obtained the Internet Protocol (IP) address of each individual and the Internet service provider (ISP) used to illegally share the software. The company also said it had obtained the time and date of the alleged act.

The complaint accused John Doe 31 of illegally sharing reFX Software’s Nexus program on Aug. 27, 2012 at 9:23 a.m.

Furthermore, reFX Software said in the complaint it was aware of the file each defendant had copied and distributed. The complaint also identified the BitTorrent application used to download the software.

In the complaint, reFX Software stated it intended to subpoena all ISPs used by the defendants to obtain the names of the account holders connected to IP addresses. In relation to John Doe 31, Webster University is the ISP.

“Plaintiff believes that information obtained in discovery will lead to the identification of each John Doe Defendant’s true name and permit the plaintiff to amend this complaint to state the same,” reFX Software’s court documents read.

The documents also said information discovered through the subpoena and discovery process may lead more alleged infringers to be added to the complaint. The judge has yet to issue the subpoenas.

The complaint said an investigator for reFX Software was able to download the Nexus software from each of the defendants. This confirmed the defendants had downloaded the software illegally.

ReFX Software’s complaint asked the court to rule that the 180 defendants pay damages to reFX Software. It also asked defendants to pay for costs associated with the company’s complaint and attorney fees. Furthermore, the complaint asked the court to order each defendant to destroy the illegally shared Nexus software.

ReFX Software references three specific products and prices in its complaint:

­—Nexus 2 with 1,000 factory presets and all 45 expansion packs: $2,589.
—Nexus 2 with 1,000 factory presets: $299.
—For each individual expansion pack: $65.

On its website, Webster University does not address illegal file sharing of software. However, when the university receives an infringement notification from a music or film industry body, the Office of Information Technology will make a copy of its network connection log. This enables activity to be traced back to a specific Internet user.

“Once the person has been identified, the information is turned over to the governing body for that individual (such as the dean or associate dean of students if the person lives on campus) for disciplinary actions,” the Web page reads.

The university also said any illegal downloading taking place on a personally owned computer is governed by the university’s Computer Technologies Acceptable Use Policy. The policy states, “No Webster system is to be used for any illegal or criminal purpose.” The policy can only be put to use if downloading occurs while the computer is connected to the Webster network.

McCarthy case documents reveal turbulent pretrial process

Dan Bauman
The Journal at Webster University

As of Tuesday, Oct. 2, Tracey McCarthy is without a lawyer in her lawsuit against Webster University. McCarthy, an associate professor of legal studies at Webster, fired her former attorney, Donnell Smith of Donnell Smith and Associates, on July 10 for his alleged failure to represent her best interest.

Besides Smith, McCarthy has accused Provost Julian Schuster, Webster attorney Travis Kearbey, case mediator Karen Tokarz and others of unprofessionalism and/or abusive behavior.

McCarthy sued the university in August 2011 in St. Louis County Circuit Court on four counts: race discrimination, sex discrimination, disability discrimination and retaliation. According to court documents, McCarthy is an African-American and suffers from cardiopulmonary disorder.

In September 2011, the case was moved to Missouri Eastern Federal District Court. McCarthy alleged damages of at least $25,000 on each count.

In a letter to Kearbey, McCarthy alleged Webster representatives had used the threat of employment termination and other methods in an attempt to force McCarthy to agree to a settlement and reach a case dismissal. McCarthy claimed Schuster, Tokarz and her own counsel had exercised these threats in some form.

In documents filed Tuesday, Oct. 2, McCarthy said Webster threatened to terminate her for the 2012-2013 academic year if she refused to drop her lawsuit and resign from her position. It is Webster media policy not to comment on cases in litigation.

Furthermore, McCarthy accused Tokarz of poor conduct during the mediation process and asked her to withdraw from the role. In a letter to Tokarz, McCarthy listed 17 alleged instances of “patently objectionable” behavior.

In her letter to Tokarz sent by email, McCarthy wrote: “You were not, however, selected (as mediator) to terrorize, scream, threaten, badger, impair, legally extort or cause detriment to me as an individual or to my case against Webster University. Your actions during the course of what you termed mediation were inexcusable and beyond logical comprehension.”

When Tokarz received McCarthy’s email, it appears she believed it to have been forwarded from Kearbey. Tokarz wrote in her response email, addressed to Kearbey, that none of the allegations cited in McCarthy’s email had occurred. Tokarz said she and Smith had urged McCarthy to respond to the university’s offer.

“I am happy to withdraw, and it seems that I should given her misgivings, but that will surely prolong matters — which may well be her goal,” wrote Tokarz in her email addressed to Kearbey.

Tokarz’s response email was sent to McCarthy instead. Tokarz apologized and said she had thought McCarthy’s letter had been forwarded from Kearbey.

Tokarz reported to Judge Charles Shaw that no settlement had been reached. She also reported that McCarthy had requested to reschedule mediation with a new mediator.

In a letter to Smith, McCarthy said Smith had not represented her best interest during the mediation process with Webster. Furthermore, McCarthy said Smith had repeatedly expressed a desire to withdraw if the case was not settled before trial.

Shaw granted Smith’s dismissal on July 10, 2012. Shaw also granted McCarthy leave to obtain a new lawyer. As of Oct. 2, McCarthy is acting as her own legal counsel.

A jury trial has been scheduled for May 5, 2013.

Shaw ordered McCarthy on Thursday, Sept. 27 to provide Webster with documentation of her allegations by Monday, Oct. 8. Shaw also ordered McCarthy to disclose whether she would seek to continue mediation with Webster.

Settlement conference scheduled for Neustaedter lawsuit in September 2013

Dan Bauman
The Journal at Webster University

A settlement conference to resolve a former nursing anesthesia student’s lawsuit against Webster University is scheduled for Sept. 4, 2013.

Former Webster student Tiffany Ann Neustaedter sued the university in March 2012 for a total of $100,000 on four counts and $2 million in punitive damages. The counts are breach of contract, fraudulent misrepresentation, negligent misrepresentation and breach of the duty of good faith and fair dealing.

Along with the university, Neustaedter sued three members of the College of Arts and Sciences: Dean David Carl Wilson, Nurse Anesthesia Program Director Jill Stulce and former nurse anesthesia professor Gary Clark. Clark retired at the end of the 2011-2012 academic year, according to a post on Webster Today, the university’s blog. His retirement was announced in December 2011 on the site.

The university dismissed Neustaedter from the nurse anesthesia program in 2011 when she was nine weeks and one-credit hour from completion. She started the program in 2008. At the time, she had been a registered nurse for 14 years.

Neustaeder’s lawsuit claims a personal relationship between her and Garrett Bergfeld, a biological sciences professor, led to her dismissal. Their relationship began in summer 2009.

Represented by Webster’s legal team, Wilson, Stulce and Clark denied most of Neustaedter’s allegations in response to her suit.

In the suit, Neustaedter said it was the defendant’s fiduciary and legal duty “to provide competent instruction and supervision, and to protect her from unfair, arbitrary, discriminatory or retaliatory enforcement of school policies.”

According to West’s Encyclopedia of American Law, 2nd Edition, a fiduciary relationship is one in which “one person has an obligation to act for another’s benefit.”

West’s Encyclopedia also stated, “A fiduciary relationship extends to every possible case in which one side places confidence in the other and such confidence is accepted; this causes dependence by the one individual and influence by the other.”

The university denied it has a fiduciary duty to Neustaedter or any student. The university said it is legally obligated to protect students in all curricula. It denied that Neustaedter received any negative treatment. The response was filed on May 21, 2012.

The suit alleged Neustaedter’s damages result from “delayed income, lost tuition, expenses, attorneys’ fees to attempt to remedy the defendants’ breaches of contract, damage to reputation, mental anguish and emotional harms.”

In response to the alleged losses and damages to Neustaedter, Webster asserted these amounts are speculative. No contract existed which entitled Neustaedter to payment, Webster said. The university also said there was no guarantee when Neustaedter enrolled that she would complete the program.

Attorneys for Neustaedter and Webster entered a joint motion for a protective order, which Circuit Judge Kristine Kerr granted. The protective order forbids the disclosure of documents that pertain to the university and individuals involved in the case. The suit outlined these documents and topics. The order was filed on Aug. 6, 2012.

To read the full text of the suit, click here.

Garafola case put under a protective order

Dan Bauman
The Journal at Webster University

Attorneys for Webster University and former Vice President of Finance and Administration David Garafola will be meeting soon to discuss the possibility of settling Garafola’s employment discrimination suit. A settlement conference has been scheduled for Jan. 18, 2012, at the St. Louis County Court Building. The event comes after both parties neglected to attend an earlier settlement conference in October.

Following the October conference, attorneys representing Garafola and Webster entered a joint motion for a protective order, which the judge granted. This protective order will prevent certain documents and processes of the university from being disclosed, except to lawyers and members of the court.

The order protects the following: “student records or information, personnel records or information pertaining to Plaintiff and/or individuals who are not parties to this action, third party documents or information, and documents or information pertaining to bidding processes where competitive or proprietary information of third parties maybe implicated, and any documents which pertain to the historical or actual results of or to the future strategic, geographic, fiscal, or academic planning of the university.”

“What is very likely to happen now is the parties will start discovery. That is why they got a protective order,” Charles Sullivan, professor of Law at Seton Hall University, explained. “A protective order will keep either side from leaking the information to the public. They will exchange documents, they will ask interrogatories, which are written questions, and they will depose each other’s witnesses.”

Sullivan also said, “If they’re both motioning for a protective order, then both of them think there is a public relations problem and they both want to keep that to a minimum.”

Depending on the evidence cultivated in discovery, Sullivan said the case may be thrown out or sent to trial. He also noted Webster and Garafola could settle at anytime.

Webster also amended its answer to Garafola’s most recent claims against the university. The update came after Garafola submitted a motion to strike Webster’s affirmative defenses against Garafola’s accusations. Garafola said the Webster defenses failed to meet the standards of Missouri court law, which states an affirmative defense must contain, “a short and plain statement of the facts show the pleader is entitled to the defense or avoidance.”

Among the amended defenses, Webster alleges Garafola was not let go because of anything the university or its Board of Trustees (BOT) did. Rather, Garafola was terminated because he performed poorly as the vicepresident of finance and administration. The university claims Garafola cannot sue for employment discrimination because he was a contracted employee for one year and the decision to renew his contract rested with Webster University.

In previous court documents, Garafola claimed he was terminated because he reported several incidences of bias and backroom dealing among the BOT. He also alleges he was let go because he pressed the university to take action against Michelle Owens when she committed financial aid fraud against the university. However, Webster claims Garafola played a significant leadership role in many of these matters.

Garafola alleged Webster fired him, among other reasons, because he complained about unethical practices when the building contract for the New Academic Building was awarded to Paric Corporation. When Paric submitted its bid for the contract, it also provided a letter announcing a $100,000 donation to the university. Paric’s president also sits on the BOT.

In the university’s answer, Webster claims word of the award only came to the attention of the BOT after Garafola was “pressed for relevant information and an explanation of certain accounting questions for which he had ultimate responsibility.”

In regards to the Michelle Owens case, Webster said Garafola was leading the investigation into her financial aid fraud. The university also claims it fulfilled its obligations to report the crime to the various authorities.

Counseling student files suit, alleges Webster dismissed him for lacking empathy

Dan Bauman
The Journal at Webster University

Read full text of Schwartz’s lawsuit against Webster University.

Former Webster University student David Schwartz has filed a lawsuit against Webster University, seeking up to $1 million in damages after the university dismissed him from the Master of Arts (MA) in Counseling degree program in March 2011. Schwartz alleges he was dismissed because he was perceived to lack empathy and is asking for at least $2 million in punitive damages on four of the five counts in the lawsuit. The suit was filed Aug. 24 in St. Louis Circuit County Court.

According to Missouri case.net, President Elizabeth Stroble was served the suit summons on Aug. 26.

Schwartz’s attorney Albert Watkins said in a news release Aug. 31 his client would hold a empathy workshop at the St. Louis Zoo on Sept. 1 in front of the vacant polar bear exhibit. Zoo officials wouldn’t allow Schwartz to hold his event “because these activities interfere with the zoo visitor experience.”

The suit claims because of Schwartz’s termination from the program he has “incurred significant losses in the form of delayed pursuit of education,” “delayed [his] ability to earn income” and “incurred extensive attorneys’ fees, court costs, tuition, book expenses, study expenses, and related ancillary expenses.”

In the lawsuit, Schwartz contends he began to receive poor reviews after he wrote an anonymous letter to David Wilson, dean of the College of Arts and Sciences, and Stroble in Feb. 2011. According to the suit, the letter referenced an affair Schwartz believed was taking place between one of his professors and program director involved in the MA in Counseling program. According to the suit, “Both individuals involved in the affair were directly involved with the Masters Program being pursued by the Plaintiff.” In the letter, Schwartz also criticized the poor quality of teaching in his practicum class, Techniques of Crisis Intervention.

The lawsuit states on March 3, Schwartz met with Stacy Henning, director of Counseling Worldwide, to discuss Schwartz’s practicum performance using three taped therapy sessions Schwartz had done with his wife’s friend. The suit alleges Henning told Schwartz he lacked empathy in the tapes and would not make a good counselor. Henning also told Schwartz he would be dismissed from the master’s program. According to the lawsuit, Schwartz received a “No Credit” grade for the practicum and on March 14, received a letter terminating him from the program.

This is the third lawsuit served to Webster in 2011. In January, David Garafola, the former chief financial officer of the university, sued the university, claiming he was unfairly forced to vacate the office. And on Aug. 19, Associate Professor Tracy McCarthy served a lawsuit to Stroble, alleging discrimination based on her race, sex, and disability.

The suit alleges Webster did not provide academic support to Schwartz when it learned of his shortcomings as required by The American Counseling Association Code of Ethics, which is posted on the counseling department’s website. The code of ethics requires counselor education programs to provide corrective aid to students.

Count 1: Negligent Misrepresentation

The lawsuit claims Henning failed to provide one-on-one counseling sessions or other support, which she offered through “representations” to Schwartz, “to assist [him] in improving his counseling skills.” The lawsuit also claims Webster University misrepresented the purpose of the Counseling Advisory Committee (CAC) when, in a letter to Schwartz, the university said the CAC was in “unusual cases.” The lawsuit claims no such requirement for CAC intervention is listed in the 2010 – 2011 Graduate Professional Counseling Degree Program Student Handbook and that CAC is open to all students in the program.

Count 2: Fraudulent Misrepresentation

The text of the lawsuit claims Henning told Schwartz she would provide one-on-one counseling and authorize additional training for Schwartz to improve his counseling skills. However, the suit alleges, no such aids were provided, and Henning never intended to provide such aids.

Count 3: Breach of Contract

The lawsuit alleges Schwartz and Webster University “entered into a binding contract between a student and an educational institution” when he paid tuition to Webster in return for educational services. By dismissing Schwartz from the MA in Counseling program, the university has not “complied” with the terms and conditions of its contract.” The lawsuit also claims Webster acted in bad faith by dismissing Schwartz when he held a 3.78 GPA and had paid tuition in full for the semester. The suit claims Schwartz deserved an explanation for his dismissal. It should be noted that this count is not asking for any reparations for damages.

Count 4: Intentional Interference with Business Expectancy

The suit states Schwartz satisfied all requirements in the MA in Counseling program, both under the contract between Schwartz and Webster and within the student handbook. The text of the lawsuit states because of Schwartz’s high academic achievement and Webster’s failure to follow the policies outlined in the student handbook, Webster had no grounds to dismiss Schwartz from the program.

Count 5: Violation of Due Process 42 U.S.C.A. § 1983

The text of the lawsuit claims because of his dismissal by Webster University, Schwartz prospects of returning to a higher education institution to pursue a counseling degree and of securing a job within the counseling field have been “severely damaged.” The suit also alleges Webster wronged Schwartz by failing to follow due process.