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Dear Bill,

Let me introduce myself. I am "Doe #2", a.k.a. "LA_Broker," one of the eleven named in the CSFB suit.

Please check your e-mail. Shortly after you published your article regarding the CSFB suit, I sent you an e-mail explaining some facts and issues. From your post on this forum, it appears that you have still not looked into the details of what you earlier wrote about.

Before you write anymore, I respectfully ask that you do some research. Read two things:

1.) the posts cited in the suit as being defamatory. I provided you with the links to the two Yahoo posts I made that were cited as defamatory by CS First Boston. You will see that I am being sued for referring to CS First Boston's David Maris as "a goof," and "a loser." The fact that this lawsuit was filed backs up my claim--"goof" and "loser" properly describe a Wall Street analyst who would claim $1 million in damages because someone referred to him as such.

2.) Just as important, you need to pull up ALL of David Maris' "reiterate hold" reports on Elan. Mr Maris made some highly subjective and very questionable statements in these reports--most of which have since played out to prove his assertions untrue.

Most of the posts in question were nothing more than razzing the guy about having been so wrong on the stock. Bill, you can bet your last dollar that, had Maris been right in his claims about Elan, he'd be on CNBC today touting himself as some kind of genius. Because he was wrong, he deserved to be called on the carpet. As an investor myself, it is important to me to ascertain which analysts consistently make great calls, and which analysts frequently "drop the ball." Since Elan has gone from 22 to 50 in the last 6 months, DESPITE Mr. Maris' negative tone on the stock, it is safe to say he dropped the ball. He has reiterated hold ratings on a stock that turned out to be the hottest stock in the sector he follows.

Just as David Maris has the right to publish his opinions--right or wrong--on Elan, I have that same right to post my opinions on Mr. Maris' ability (or lack thereof) to make calls on Elan.

You have painted me (and my co-defendants) as some sort of rogue, when in fact, you (by your own admission) have yet to see what we posted that we are being sued for. That my friend, is highly irresponsible journalism.

LA_Broker
a.k.a. "Doe #2"
E-mail me at: elan_eleven@hotmail.com
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<< I provided you with the links to the two Yahoo posts I made that were cited as defamatory by CS First Boston. You will see that I am being sued for referring to CS First Boston's David Maris as "a goof," and "a loser." The fact that this lawsuit was filed backs up my claim--"goof" and "loser" properly describe a Wall Street analyst who would claim $1 million in damages because someone referred to him as such.>>

Doe #2,

I agree with part of what you say. I would say "goof" and "loser" aren't a problem. Here is something that strikes me differently:

"What makes the stock behave even more "goosy" is the fact that goofs like Maris and Maverick are continually spreading mistruths and half-truths. "

And

"Unfortunately, we don't have subpoena power, so there is no way to prove whether ELN is or is not being manipulated. However, from watching the tape, I would bet my last dollar that it has been. "

To my untrained eye, the first one is much more problematic than the second because there's no hint that it is being offered as an opinion. But, whatever -- my opinion doesn't really count for anything. However, those are public accusations -- at least in the mind of Maris/CSFB -- of criminal misconduct. The "fact" of spreading mistruths as you put it -- that's a pretty bold statement. Certainly something the SEC would want to made aware of. Certainly something that Maris would lose his job and career for if true -- correct?

You've got your reasons for making the statements that you did, and CSFB disagrees that those reasons are sufficient to excuse a statement such as the one made under the laws of defamation.

Look, as I said in the article, I think those at CSFB have lost perspective by filing this. I certainly wouldn't have chosen to do so if I were them. But if you're asking me whether there are statements in there that give rise to a winnable action under the applicable law of defamation as I understand it? I think there's a possible case there. (Disclaimer: nothing at all contained herein should in any way be construed as legal advice of any stripe. These are no more than the musings of a layman.)

This case might be winnable, it might not be -- but if stating as fact that somebody is a liar, and has engaged in manipulation of a security (a criminal act) isn't defamation, I'm scratching my head as to what exactly would be.

Are there lots of shades of gray to all the statements posted? Sure. There are lots and lots and lots of defenses that I can think of for a defendant in an action such as this, but if you're asking me where the problem was in those posts -- please don't try to re-configure this to have been no more than just calling the guy a goof and a loser and having a difference of opinion with him. Read through the posts again, and decide for yourself where the biggest problem might be.

In any event, best of luck,

Bill Barker
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"This case might be winnable, it might not be -- but if stating as fact that somebody is a liar, and has engaged in manipulation of a security (a criminal act) isn't defamation, I'm scratching my head as to what exactly would be."

If it could be shown that several of Maris' statements in his research reports were, in fact, false, wouldn't that show the statements to be nondefamatory? That statement also does not indicate that Maris *knowingly* made false statements. Moreover, if I recall correctly, I thought that it is reasonable to assert that someone is a liar since everybody is assumed to have lied at least once in their lives.

Also, Maris is a public figure.
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Hi Bill,

Thanks for your reply.

As far as the "mistruths and half-truths" statements, what if an analyst had earlier published reports saying that his/her sources at Elan led him/her to believe that earnings would come in short of the Street estimates, then a few weeks later Elan came out with earnings that beat the Street estimate. Surely that would qualify as "spreading mistruths and half-truths," correct?

As far as your second citing, my manipulation questions were not, nor ever were aimed at or connected with CS First Boston. If you took the time to go back through the previous posts, you will see there is an ongoing dialogue between several posters speculating why the stock has been acting so, for a lack of better words, "weird." As you can see by the post, I did not speculate on *who* might be manipulating it, just that in my opinion from watching the tape, that it had been manipulated.

Bill, I do appreciate you looking at my posts and providing your thoughts on this matter.

LA_Broker
elan_eleven@hotmail.com
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<<As far as the "mistruths and half-truths" statements, what if an analyst had earlier published reports saying that his/her sources at Elan led him/her to believe that earnings would come in short of the Street estimates, then a few weeks later Elan came out with earnings that beat the Street estimate. Surely that would qualify as "spreading mistruths and half-truths," correct?

As far as your second citing, my manipulation questions were not, nor ever were aimed at or connected with CS First Boston. If you took the time to go back through the previous posts, you will see there is an ongoing dialogue between several posters speculating why the stock has been acting so, for a lack of better words, "weird." As you can see by the post, I did not speculate on *who* might be manipulating it, just that in my opinion from watching the tape, that it had been manipulated.

Bill, I do appreciate you looking at my posts and providing your thoughts on this matter.>>

LA Broker,

Well, I'm glad we can be friends about it. :) I'm not the enemy here, at least that isn't my intention.

You've noted that there are potential defenses. Great. I've got no dog in this fight. I wish you the best, and I sincerely hope and expect that everybody who has done nothing at all wrong will find themselves out of the lawsuit in due course and with minimal difficulty.

I'll return to this issue with a longer piece some time in the near future, but not tonight.

Regards,

Bill Barker
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Dear LA
With regard to your situation (and mine), I have read the "offending" posts on which the defamation suit against you are based. Perhaps you have read the one post that is the basis for the action against me (Oliverhomes, 1 of 11). I want to compliment you on your precise and measured language in the posts that are being held against you: There is no way on God's good green earth that these messages comprise slander, defamation, or libel. They are valid expressions of opinion.
In the end, this case is about free speech, but it is also about abuse of process, plaintiffs bringing groundless charges to obtain subpoenas and thereby force disclosure of poster identities.
R
(1 of 11)
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