14.5.14

Appeals Court Ruling in its Entirety

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us




08 P 2132 Appeals Court
MT. IVY PRESS, LP, & another1 vs. MISHA DEFONSECA2
& another.3

No. 08 P 2132.

Middlesex. November 9, 2009.   November 24, 2010.

Present: Kafker, Wolohojian, & Milkey, JJ.


Judgment, Relief from judgment. Practice, Civil, Relief from judgment, Motion to dismiss, Fraud, Party pro se. Fraud.


Civil action commenced in the Superior Court Department on April 8, 2008.

A motion to dismiss was heard by Timothy Q. Feeley, J.


Brian S. McCormick for the plaintiffs.
Frank J. Frisoli, Jr., for Vera Lee.
Misha Defonseca, pro se.


WOLOHOJIAN, J. After a jury trial in 2002, Misha Defonseca and Vera Lee were awarded more than $30 million in compensatory and multiple damages on claims arising from breaches of contract and violations of G. L. c. 93A by Jane Daniel and Mt. Ivy Press, L.P. (Mt. Ivy).4 At issue was the publication, distribution, and marketing of Defonseca's life story, Misha: A Memoir of the Holocaust Years.5 The judgment was affirmed by this court in all respects. Lee v. Mt. Ivy Press, L.P., 63 Mass. App. Ct. 538, 562 (2005). Nearly six years after the judgment, Daniel and Mt. Ivy brought an independent action for relief from the judgment under Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974) (rule 60[b]), alleging, in essence, that when confronted with evidence unearthed by Daniel and others, Defonseca admitted that her Holocaust memoir was a hoax. Defonseca and Lee successfully moved to dismiss the complaint under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974) (rule 12[b][6]), and this appeal followed. We reverse in part and affirm in part.
Background.6 a. Prior proceedings. At all material times during the prior trial and appeal, Defonseca held out her story as a true and authentic account of her childhood in Europe during World War II. Broadly sketched, she claimed that as a seven year old child in 1941 she witnessed the Nazis seize her parents. By her account, she fled and managed to avoid capture by the Nazis for more than four years, wandering alone through forests and villages across Europe. She encountered various hardships, including being trapped for a time within the besieged Warsaw Ghetto. Defonseca attributed her survival to her strong will and guile, as well as to the food and protection she received from a wolf pack. Lee, 63 Mass. App. Ct. at 539.
Much later, in 1985, Defonseca emigrated to the United States, settling in the Boston area. On occasion she spoke of her experiences during the war to different groups in Boston and elsewhere. During a speaking engagement in New York in 1994, Defonseca first met Daniel, who offered to publish Defonseca's autobiography.7 This offer took hold, and the parties thereafter reduced their agreement to writing.
Since Defonseca's native language was French, Daniel engaged an experienced, professional writer, Lee, a long-standing acquaintance who was fluent in French, to assist (as co-author) on an American edition of Defonseca's memoir.8 Lee timely provided drafts, including one she believed was approximately eighty percent complete. However, Lee made explicitly clear to Daniel that many facts, including historical facts, would have to be checked. Daniel thereupon removed Lee from the project, falsely telling her that her work was inadequate and the book required rewriting. Daniel also threatened and intimidated Lee so that she would not communicate with Defonseca, and pressured Lee to sign agreements that reduced her share of the proceeds from the book. Litigation ensued, with Lee suing Daniel, Mt. Ivy, and Defonseca.9 Cross claims and counterclaims followed. Defonseca and Lee brought a number of claims against Daniel and Mt. Ivy, including breach of contract and violation of G. L. c. 93A.10 In essence, they alleged Daniel (personally and through Mt. Ivy) had wrongfully denied them certain royalties and other payments in breach of their respective agreements. Daniel and Mt. Ivy counterclaimed, alleging breach of contract, defamation, and trade disparagement. After a three-week trial, a jury awarded $7.5 million to Defonseca and $3.3 million to Lee.
Reserving the c. 93A portion of the case to herself for decision, the judge found that Daniel and Mt. Ivy had wilfully and knowingly engaged in conduct designed to deprive Defonseca and Lee of royalties and other compensation. In a detailed decision, and drawing from a comprehensive set of findings linked to the evidence at trial, the judge concluded that Daniel and Mt. Ivy had engaged in unfair and deceptive business practices in violation of c. 93A. The judge trebled the jury's award and assessed attorney's fees and costs.
Daniel and Mt. Ivy appealed from the judgment to this court. After oral argument, but before our decision in that appeal issued, some of the parties settled their claims. In exchange for some sum (unspecified in the record before us), Defonseca relinquished any claim to the judgment in her favor, unless Daniel or Mt. Ivy pursued any claim against her. In a separate agreement, Lee released Daniel, but not Mt. Ivy, in exchange for an assignment of $250,000 from a settlement between Daniel and her counsel and an assignment of the proceeds from the future sale of Daniel's house, subject to certain adjustments.11,12
Also while the first appeal was pending, Daniel came to learn of information she believed cast doubt on aspects of Defonseca's memoir. Specifically, a bank record that had been produced posttrial showed Defonseca's birth date, birth place, and mother's maiden name, all of which she claimed in her book to have no knowledge of. With this newly discovered material, Daniel tried to access vital family records in Belgium, only to be frustrated by that country's privacy laws. Search was made of ships' passenger lists in our local archives, the Yad Vashem database of the names of more than three million Holocaust victims, and various genealogical Internet Web sites. Not until a forensic genealogist, Sharon Sergeant, became involved did the search for Defonseca's background yield critical information. Sergeant, having noticed the many Catholic references in the French and United Kingdom editions of Defonseca's memoir, undertook a search of Catholic baptismal records in Belgium, and discovered there was a maternity ward in a hospital in Etterbeek, the district of Brussels that had been identified on Defonseca's bank record.
Ultimately, Defonseca's true identity was uncovered. Piece by piece, with aid from Sergeant, Daniel was able to learn that Defonseca had been born Monica Ernestine Josephine De Wael on May 12, 1937, in Etterbeek, Belgium. Her family's residence was in the Schaerbeek district of Brussels, and she was registered as a student in an elementary school located there for the fall term of 1943 -- the very same time period that she claimed to be in the midst of a journey across Nazi-controlled Europe. With this new information about Defonseca, especially her original surname "De Wael," the Belgian press reported more proof of Defonseca's fraud,13 which completely unraveled in or about late 2007 or the early part of 2008.14
b. Current proceedings. In April, 2008, Daniel and Mt. Ivy commenced an independent action, pursuant to rule 60(b), in the Superior Court against Defonseca and Lee, seeking to set aside the $33 million judgment. In relevant part, the complaint asserted two counts against Defonseca (a claim under rule 60[b] for fraud on the court and a claim under rule 60[b][6]) and two parallel counts against Lee. The complaint alleged that the judgment was the product of a deliberate and cleverly concealed fraud, purposefully carried out by Defonseca with the aid of her counsel.15 Daniel and Mt. Ivy alleged that perjured testimony, false court pleadings and discovery responses, as well as fraudulent exhibits, all had a hand in misleading the jury and the court. Among other things, they pointed to the fact that Defonseca's trial counsel stressed in closing argument that the authenticity of Defonseca's book was not disputed:
"And what was [Defonseca] trying to defend herself about? Her life story. The tragedy has already been visited on Misha, that's not in dispute. She lost her parents at 7 years old, and wandered through Europe unprotected for four years. That's not in dispute. That happened to her."
The complaint contained no allegations suggesting that Lee had any knowledge of the fraud, or that she had any reason to know that Defonseca's story was not true.
The defendants moved to dismiss the complaint under rule 12(b)(6). Notably, Defonseca did not dispute Daniel's allegations of fraud, or the related media reports discrediting Defonseca's book and trial testimony. Nor did Defonseca dispute a February 28, 2008, Boston Globe article that reported Defonseca candidly "acknowledged" that "every essential element of her autobiography [was] false, that her trial testimony was perjured and that every document she filed with the [Superior] Court when acting as her own counsel, was intended to mislead the Court and the jury."16
The judge allowed the motion to dismiss. As to the rule 60(b)(6) claim, the judge concluded that the allegations of the complaint fell within the parameters of rule 60(b)(3), which applies in cases of fraud, and that the complaint alleged no "extraordinary circumstances" that might warrant relief under rule 60(b)(6). See Paternity of Cheryl, 434 Mass. 23, 34-35 (2001); Owens v. Mukendi, 448 Mass. 66, 71 (2006). As a result, the judge concluded that the plaintiffs' action was barred by the one-year limitations period of rule 60(b)(3). See Winthrop Corp. v. Lowenthal, 29 Mass. App. Ct. 180, 182-183 (1990). With respect to the plaintiffs' claim of fraud on the court, the judge concluded that the allegations, as a matter of law, did not make out such a claim.
Daniel and Mt. Ivy have timely appealed from the judgment of dismissal.
Discussion. "Rule 60 sets forth a comprehensive framework for obtaining relief from a final judgment or order, balancing the competing needs for finality and flexibility to be certain that justice is done in light of all the facts." Sahin v. Sahin, 435 Mass. 396, 399-400 (2001). Rule 60(b) has two parts. The first part sets out six numbered circumstances under which a party may move for relief from a judgment. The second part (an unnumbered provision) permits a party to seek relief by way of an independent action. Here, the plaintiffs seek relief by way of an independent action. We discuss the plaintiffs' claims as they apply to each defendant.
a. Defonseca. i. Rule 60(b)(6). In relevant part, rule 60(b) provides:
"On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment . . . for the following reasons: . . . (3) fraud . . ., misrepresentation, or other misconduct of an adverse party; . . . or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment . . . was entered . . . . This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment . . . or to set aside a judgment for fraud upon the court . . . and the procedure for obtaining any relief from a judgment shall be by motion . . . or by an independent action."

Relief under 60(b)(6) is available only when justified "by some reason other than those stated in subdivisions (1) through (5)." Chavoor v. Lewis, 383 Mass. 801, 806 (1981). When examining whether 60(b)(6) relief is warranted, we consider "whether the moving party has a meritorious claim or defense . . . whether extraordinary circumstances warrant relief . . . and whether the substantial rights of the parties in the matter in controversy will be affected by granting the motion." Owens, 448 Mass. at 72 (citations and internal quotation marks omitted).
Unlike motions pursuant to rule 60(b)(1) through (b)(3), which must be brought within a reasonable time, but no later than one year after judgment, id. at 73 n.9, and motions pursuant to rule 60(b)(6), which must be brought within a reasonable time after judgment, Kennedy v. Beth Israel Deaconess Med. Center, Inc., 73 Mass. App. Ct. 459, 467 (2009),17 there is no specified time limit for bringing an independent action for relief from judgment.18 Sahin, 435 Mass. at 400-401. "That said, however, 'a party should not be able to avoid the one-year or "reasonable time" limits of Rule 60(b) simply by commencing an independent action seeking the same relief.'" Id. at 401, quoting from Smith & Zobel, Rules Practice § 60.16, at 488 (1977 & supp. 2001). "Many of the principles covering fraud, fraud upon the court, void judgments, mistake, or even newly-discovered evidence, control an independent action seeking the same kind of relief." Smith & Zobel, Rules Practice § 60.16, at 395 (2007) (footnotes omitted). "To the extent that the claims raised by a party's independent action appear to fall within those provisions of rule 60(b) that mandate a specific time limitation, but materialized too late to file in a motion to the court which rendered the judgment, the party must raise some additional ground or reason justifying relief after the expiration of the time limitation." Sahin, supra at 401. The party seeking relief must show that allowing the judgment to stand would be "manifestly unconscionable," id. at 402, quoting from Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244-245 (1944) (independent action proper "to prevent unconscionable retention or enforcement of a judgment"), or a "grave miscarriage of justice." Sahin, supra at 402, citing United States v. Beggerly, 524 U.S. 38, 46-47 (1998). We consider this standard to have been met here, at least for purposes of surviving a motion to dismiss.
The plaintiffs have alleged an extraordinary fraud that touched every part of Defonseca's case against them and resulted in a huge verdict. It is true, as the defendants point out, that the book's authenticity was not the central issue at trial. Despite this, it is difficult to imagine that this information, had it been known to Daniel and Mt. Ivy, would not have provided a meritorious defense to at least some of the claims, especially those claims based on the contract.19 See, e.g., Quintin Vespa Co. v. Construction Serv. Co., 343 Mass. 547, 554 (1962) (material breach excuses other party from further performance). It is equally implausible to suggest that the information, if it had been presented to the jury, would not have affected the "substantial rights of the parties." Owens, 448 Mass. at 72, quoting from Parrell v. Keenan, 389 Mass. 809, 815 (1983).
The size of the award is also a circumstance to be considered. Defonseca obtained a judgment that, once trebled, exceeded $20 million. Much of that amount consisted of multiple damages under c. 93A. Multiple damages are awarded only for wilful, culpable conduct, that results in a "grievous violation of societal interests." International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 856 n.21 (1983) (citation omitted). See Kapp v. Arbella Mut. Ins. Co., 426 Mass. 683, 686 (1998). The jury and judge, of course, were unaware that the book was a hoax, rather than a heart-rending story of Holocaust survival.
We also consider Defonseca's conduct as a pro se litigant. Although it is true that perjury, standing alone, generally does not support relief under rule 60(b)(6), Defonseca's alleged conduct goes well beyond that. Defonseca's entire case, and the manner in which she procured the judgment, was buttressed on what is now admitted to be a lie. The pleadings she filed were false and based on false information. The affidavits she submitted were premised on her phony life story. Her testimony at trial reiterated, and reinforced, her sympathetic but ultimately false tale.
We are satisfied that the allegations of the complaint, considered under the appropriate standard, are sufficient to state an independent action based on rule 60(b)(6).
ii. Fraud on the court. Rule 60(b) permits "an independent action . . . to set aside a judgment for fraud upon the court." In our jurisprudence, "fraud on the Court" is a term of art with a stringent definition. Matter of the Trusts Under the Will of Crabtree, 449 Mass. 128, 148 (2007). "A 'fraud on the court' occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense." Rockdale Mgmt. Co. v. Shawmut Bank, N.A., 418 Mass. 596, 598 (1994), quoting from Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989). "Examples of 'fraud on the Court' include 'bribery of judges, employment of counsel to "influence" the court, [and] involvement of an attorney (an officer of the court) in the perpetration of fraud.'" Will of Crabtree, supra at 149, quoting from MacDonald v. MacDonald, 407 Mass. 196, 202 (1990). "A party's nondisclosure to an adverse party . . . or to the court . . . of facts pertinent to a controversy before the court, without more, does not amount to 'fraud on the court' for purposes of vacating a judgment under rule 60(b)." Paternity of Cheryl, 434 Mass. at 36. "The doctrine embraces 'only that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.'" Id. at 35-36, quoting from Pina v. McGill Dev. Corp., 388 Mass. 159, 165 (1983).
There are some falsehoods that are so emotionally inflammatory that they impede the jury's ability impartially to evaluate facts and adjudicate a case. Falsely claiming to be a victim (and survivor) of the Holocaust is such a one, particularly where -- as here -- the claim is the foundation of a book that the publication, distribution, and marketing of were the subjects of the suit. Defonseca perpetrated this falsehood, and it lay at the center of the case.
As noted above, Defonseca proceeded in part pro se, and she now argues that only an officer of the court can commit fraud on the court. Although fraud on the court typically involves officers of the court, we are unprepared to say that pro se litigants are in all circumstances insulated from committing fraud on the court. Pro se litigants are generally required to comply with the same rules as represented parties and their attorneys, see, e.g., Pandey v. Roulston, 419 Mass. 1010, 1011 (1995); Kyler v. Everson, 442 F.3d 1251, 1253-1254 (10th Cir. 2006), and there is no reason to immunize them from the consequences of the most egregious forms of misconduct. Cf. Pumphrey v. K.W. Thompson Tool Co., 62 F.3d 1128, 1130-1131 (9th Cir. 1995) (attorney's involvement in the discovery process, which included the holding and withholding of key information, was "sufficient to render him an officer of the court" for purposes of the fraud on the court doctrine even though he did not represent party); Herring v. United States, 424 F.3d 384, 390-391 (3d Cir. 2005) (attorneys who did not represent United States, but asserted claim of privilege on behalf of United States, were "officers of the court" for fraud on the court purposes).
We are satisfied that, accepting the allegations of the complaint as true and viewing Defonseca's misconduct as a whole, which included not just one or two instances of false testimony, but an entire case buttressed by falsehoods, the plaintiffs have sufficiently stated a claim of fraud on the court.
b. Lee. The plaintiffs' case against Lee stands in a much different posture. The complaint does not allege that Lee knew, or had reason to know that Defonseca's memoir was fraudulent. The complaint's silence in this regard is consistent with the trial judge's conclusion that the allegations indicated Lee alerted Daniels to the fact that the book had not been fact-checked and that many historical facts needed to be verified. Moreover, the allegations indicate that Lee was removed from the project before its completion. There is also no allegation that Lee made any false statements in the course of the litigation, whether during discovery or trial. Instead, the plaintiffs allege Lee "rode the coattails of Defonseca's fraudulent conduct" and that Defonseca's misconduct tainted the entire proceeding. Conceding at oral argument that they have not stated a claim of fraud on the court against Lee, the plaintiffs nonetheless continue to argue that they have stated a claim under rule 60(b)(6) against her. We disagree. The plaintiffs have not cited any authority, nor have we found any, for the proposition that a party may be stripped of a judgment where she herself is not alleged to have done anything wrong. Rule 60(b)(6) strikes a balance between "the competing needs for finality and flexibility to be certain that justice is done in light of all the facts." Sahin, 435 Mass. at 399 400. Although Lee may have benefited from the sympathy of Defonseca's supposed life story, this alone does not tip the scale in favor of abandoning our institutional interest in finality. The plaintiffs have not alleged that Lee has committed any fraud or misconduct, let alone the kind of extraordinary fraud that could justify setting aside an eight year old judgment under rule 60(b)(6).
Conclusion. Because the plaintiffs have not stated a claim for rule 60(b)(6) relief against Lee, and because they conceded at oral argument they are not pursuing a fraud on the court claim against Lee, that portion of the judgment which dismisses the plaintiffs' claims against Lee is affirmed. However, for the reasons set out above, we reverse that portion of the judgment which dismisses the plaintiffs' claims against Defonseca.
So ordered.
1 Jane Daniel.
2 The underlying complaint indicates that Misha Defonseca is also known as Monique De Wael.
3 Vera Lee.
4 A total of $22.5 million was awarded to Defonseca and $9.9 million to Lee.
5 This published work was introduced into evidence at trial and made available to the jurors for their inspection and review.
6 The facts are drawn from the plaintiffs' complaint and the proceedings from the prior litigation. See Jarosz v. Palmer, 436 Mass. 526, 530 (2002). In reviewing the allowance of a rule 12(b)(6) motion to dismiss, we accept as true the fact-based allegations contained in the complaint as well as any favorable inferences reasonably drawn therefrom. Sullivan v. Chief Justice for Admin. & Mgmt. of the Trial Court, 448 Mass. 15, 20-21 (2006).
7 Daniel had formed Mt. Ivy in 1993 as a limited partnership. She was the only employee and the business operated out of the basement of her Newton home.

Mt. Ivy signed separate (but nearly identical) publishing agreements with Lee and Defonseca in August of 1995. The parties also made provisions for a French edition for distribution in Europe, where advance publicity had stirred interest among book dealers.
8 An American edition was published in 1997. Book endorsements were received from several quarters, including the New England chapter of the Anti-Defamation League. Soon thereafter, a French edition, Survivre avec les Loups (Survival with Wolves), was published by a Parisian publishing house, with Defonseca's oversight; other foreign editions followed. Unlike the American edition, the French edition had no photographs of
Defonseca and identified her as "Monique Valle" (not De Wael).
9 Lee named as "reach and apply defendants" Mt. Ivy's literary agent, Palmer & Dodge, LLP, and Publishers Group West, Inc., a West Coast firm that allegedly did business in the Commonwealth; the reach and apply defendants are not implicated in this appeal.
10 The other claims were: interference with contractual relations, fraud, quantum meruit, unjust enrichment, conversion, and intentional infliction of emotional distress.
11 There is nothing to suggest that the instant appeal or the underlying case is moot as a result of the settlements, and no party so contends.
12 The terms of the settlement agreements are not part of our (or the motion judge's) consideration for purposes of the motion to dismiss. However, the terms of those agreements may factor into the analysis as the case proceeds after remand. What effect, if any, they might have going forward will benefit from further factual development below.
13 Notably, in March of 2008, Le Soir, a prominent newspaper in Belgium, published a report disclosing that Defonseca's father had collaborated with the Gestapo, providing information about members of the Belgium resistance movement.
14 Daniel's search was successful largely because of technological advances, including the Internet, which allowed her to correspond with others on a world-wide scale not previously possible or practicable.
15 Daniel and Mt. Ivy no longer rely on action by Defonseca's attorneys to support their claims.
16 Nor has Defonseca offered anything to counter her statement to the foreign press (republished in the local newspapers) confessing to the fraud.
17 A reasonable time may be more or less than one year. Kennedy, supra.
18 Although rule 60(b) states that relief may be sought by way of a motion, it also states that relief may be invoked in an independent action. Had the plaintiffs sought rule 60(b)(6) relief by way of a motion filed in the original underlying action, we would review for abuse of discretion. Gath v. M/A-Com, Inc., 440 Mass. 482, 497 (2003). However, we review de novo a rule 12(b)(6) dismissal of a rule 60 claim that is raised in an independent action. See Sahin, supra at 399-407 (sub silentio applying de novo review in procedural posture identical to the present case). Accord Herring v. United States, 424 F.3d 384, 389-390 (3rd Cir. 2005) (review of district court grant of Fed. R. Civ. P. 12[b][6] motion to dismiss independent rule 60 action is subject to de novo review). In other words, we employ the standard of review for appeals from the allowance of a rule 12(b)(6) motion. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008). "We review the allowance of a motion to dismiss to determine whether facts alleged in the complaint raise a right to relief above the speculative level, on the assumption that all the allegations of the complaint are true." Largo Realty, Inc. v. Purcell, 77 Mass. App. Ct. 162, 163 (2010).

19 The contract with Defonseca contained a warranty in which she represented that "all statements of fact are true or based on reasonable belief."

13.5.14

Court Ruling Vacating the Judgement Against Mount Ivy

Click here to download a PDF of the June 29, 2912 Court Order VACATING the judgment against Mount Ivy Press.

18.12.10

Statement from Jane Daniel's Lawyer

Comment by Joseph M. Orlando:

The Quest for Justice

"There are some falsehoods that are so emotionally inflammatory that they
impede the jury's ability impartially to evaluate facts and adjudicate a
case."

With these words the Massachusetts Court of Appeals struck down a $22.5
million judgement levied against Mt. Ivy Press and Jane Daniel. Yet,
inexplicably, the Court allowed the judgement for Vera Lee to stand. "Where
a jury is determined to be unable to dispassionately and impartially
evaluate the evidence offered, then any verdict from that jury, for or
against any party, is fatally flawed," stated Mt. Ivy's attorney, Joseph M.
Orlando. On that basis, Orlando & Associates will seek direct Appellate
Review from The Supreme Judicial Court.
_________________________________________________

From Media Law Blog

WEDNESDAY, NOVEMBER 24, 2010

Gloucester Publisher May See Reversal of $30M Judgment

When I was writing for Law.com's Legal Blog Watch, I wrote several posts (here is one) about the case of Jane Daniel, a Gloucester, Mass., woman who was hit with a $33 million verdict against her and her small publishing company, Mt. Ivy Press. The 2001 verdict was awarded to Misha Defonseca and her ghostwriter Vera Lee as the result of disputes over copyright and promotion of Defonseca's memoir, Misha: A Memoire of the Holocaust Years. The book told the story of how Defonseca survived the Holocaust on her own as a young girl, in part through her "adoption" by a pack of wolves. The book was a bestseller in Europe and was the basis for a film.

Several years later, through the detective work of Daniel and genealogical researcher Sharon Sergeant, documents were unearthed showing Defonseca's tale to be as tall as it seemed. Based on these new revelations, Daniel and Mt. Ivy filed a new lawsuit in 2008 seeking to set aside the $33 million judgment, alleging that Defonseca and ghostwriter Lee had perpetrated a fraud on the court. The trial court judge dismissed the case, concluding that it alleged no "extraordinary circumstances" that would warrant relief.

Today, the Massachusetts Appeals Court reinstated the case, but only against Defonseca. It concluded that, if Daniel is able to prove her allegations at trial, then they constitute "extraordinary fraud."
"The plaintiffs have alleged an extraordinary fraud that touched every part of Defonseca's case against them and resulted in a huge verdict. It is true, as the defendants point out, that the book's authenticity was not the central issue at trial. Despite this, it is difficult to imagine that this information, had it been known to Daniel and Mt. Ivy, would not have provided a meritorious defense to at least some of the claims, especially those claims based on the contract.
"Defonseca's entire case, and the manner in which she procured the judgment, was buttressed on what is now admitted to be a lie. The pleadings she filed were false and based on false information. The affidavits she submitted were premised on her phony life story. Her testimony at trial reiterated, and reinforced, her sympathetic but ultimately false tale."
These allegations entitle Daniel to seek relief from the judgment, the Appeals Court said. In addition, the allegations, if true, constitute fraud on the court:
"There are some falsehoods that are so emotionally inflammatory that they impede the jury's ability impartially to evaluate facts and adjudicate a case. Falsely claiming to be a victim (and survivor) of the Holocaust is such a one, particularly where--as here--the claim is the foundation of a book that the publication, distribution, and marketing of were the subjects of the suit. Defonseca perpetrated this falsehood, and it lay at the center of the case."
As for Lee, the ghostwriter, the Appeals Court said that there is no indication that she knew or had reason to know that Defonseca's memoir was fraudulent. Because there is no evidence that she did anything wrong, there is no basis to lift the judgment in her favor.

The ruling is not the end of the case. Daniel will still have to prove her case in court. Today's decision sends the case back to the trial court and allows it to move forward.

Here is today's full opinion: Mt. Ivy Press v. Defonseca.

A New Twist in the Misha Defonseca Story

Tall tale takes a new twist in court

Publisher will not have to pay author for sham memoir

By David Abel
Globe Staff / November 25, 2010
When Misha Defonseca admitted that her best-selling memoir about surviving the Holocaust with the help of wolves was a sham, her publisher thought she could avoid paying the author and her ghost writer a disputed $32.5 million for allegedly concealing profits from sales.

Yesterday, after a decade of litigation, a panel of judges in the state Appeals Court ruled that the publisher does not have to pay Defonseca the $22.5 million awarded to her by a jury but still owes $10 million to the ghost writer, who was unaware of the hoax.


In a decision written by Judge Gabrielle R. Wolohojian, the panel found that Jane Daniel, sole proprietor of Mt. Ivy Press in Gloucester, should not have to pay Defonseca, because the jury’s verdict was based on the false story that she was Jewish, that she survived the Holocaust as a child by roaming through Europe on foot, and that she received protection and food from a pack of wolves.
It was later learned that Defonseca, who now lives in Dudley, is not Jewish, that she was safely attending school in Brussels during the period she said she was a refugee, and that her father reportedly provided Nazis with information about the Belgian resistance movement.
“There are some falsehoods that are so emotionally inflammatory that they impede the jury’s ability impartially to evaluate facts and adjudicate a case,’’ Wolohojian wrote in the ruling. “Falsely claiming to be a victim (and survivor) of the Holocaust is such a one, particularly where — as here — the claim is the foundation of a book.’’
The case has a tortured history that began before Daniel published “Misha: A Memoire of the Holocaust Years,’’ in 1997. The book, eventually translated into 18 languages, became a bestseller in Europe and the basis for a hit French movie. It also received the attention of The Walt Disney Co., which signed an option for a movie, and Oprah Winfrey’s program, which filmed Defonseca with wolves at Wolf Hollow in Ipswich. Both dropped out as tensions among the author, ghost writer, and publisher crested into what became a long court fight.
Defonseca, originally from Brussels, moved to Massachusetts in 1988 and became known for giving talks about her World War II experiences to local Jewish organizations. Based on those talks, Daniel offered Defonseca a book contract and hired Vera Lee, her French-speaking former friend and neighbor, to serve as coauthor.
Lee and Daniel squabbled about the manuscript when Lee said it needed more fact-checking, and Daniel eventually removed Lee’s name from the cover and put it on the copyright page. A year after the book was published — with a blurb from Nobel laureate Elie Wiesel, author of the Holocaust memoir “Night’’ — Lee sued Daniel, arguing that her rights as coauthor had been violated. Defonseca also sued Daniel, asserting that the publisher broke promises to publicize the book and hid profits in offshore corporate accounts.

Daniel denied the allegations, but in 2001 a Middlesex Superior Court jury awarded $7.5 million in damages to Defonseca and $3.3 million to Lee. The judge tripled the damages, to nearly $10 million for Lee and $22.5 million for Defonseca, because of the allegedly egregious conduct. The jury also awarded rights to the book to Defonseca, who sold it to publishers in Europe.



To collect on their awards, Defonseca’s lawyer sought a $425,000 inheritance held by Daniel’s father, who signed it over to Defonseca, and Lee’s lawyer demanded that Daniel pay $2,000 a month. When Daniel said she did not have the money, a judge jailed her for contempt, and she spent a night in MCI-Framingham, until a friend raised the money.
Under threat of being sent back to jail, Daniel signed a settlement with Lee’s lawyer, Frank Frisoli of Cambridge, ultimately allowing him the right to sell her house.
But in 2008, documents emerged in the Belgian press discrediting Defonseca’s account, and she admitted her story was a lie. In her statement at the time, Defonseca admitted she had made up the story of trekking thousands of miles through Europe and blamed Daniel for prodding her to put it in the book.
“There are times when I find it difficult to differentiate between reality and my inner world,’’ she said. “The story in the book is mine. It is not the actual reality; it was my reality, my way of surviving.’’
Soon afterward, Daniel appealed the rulings in Middlesex Superior Court, arguing that the awards against her were the result of perjured testimony, false court pleadings, and fraudulent exhibits, which misled the jury. A Superior Court judge dismissed the appeal, saying it was not filed within the one-year period required.
But yesterday, the state Appeals Court ruled there were “extraordinary circumstances’’ to justify Daniel’s appeal.
“It is true, as the defendants point out, that the book’s authenticity was not the central issue at trial,’’ Wolohojian wrote. “Despite this, it is difficult to imagine that this information, had it been known to Daniel and Mt. Ivy, would not have provided a meritorious defense to at least some of the claims.’’
In sustaining the award for Lee, the judge wrote: “The complaint does not allege that Lee knew, or had reason to know, that Defonseca’s memoir was fraudulent. The complaint’s silence in this regard is consistent with the trial judge’s conclusion that the allegations indicated Lee alerted Daniel to the fact that the book had not been fact-checked, and that many historical facts needed to be verified.’’
Daniel did not return calls yesterday, but Brian McCormick, a Gloucester lawyer representing her, said it was a fair ruling.
“I’m very pleased the court didn’t allow Defonseca to profit from her hoax and use the judicial system as a pawn in the process of obtaining such profit,’’ he said. “As far as Vera Lee goes, we believe you can’t really separate one from the other. We think Defonseca’s conduct tainted the entire trial, but the fact is that when you look at it, Jane Daniel could not have had a fair trial.’’
He said he intends to appeal that portion of the decision to the Supreme Judicial Court.
Reached at home, Defonseca, now 73, said she had long ago written off receiving money from Daniel.
“I never wanted to make this book; Jane Daniel pushed me to do this,’’ she said. “Now, I want my life back. I want peace. This has been very painful.’’

There is a good commentary on this story on Robert J. Ambrogi's Media Law Blog.

5.3.09

Daniel Appeal Brief

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, SS SUPERIOR COURT
MT IVY PRESS, )
JANE DANIEL, )
Appellants, )
) Appeals Court
) No. 2008-P2132
vs. )
)
MONIQUE DE WAEL, a/k/a, )
MISHA DEFONSECA, )
VERA LEE, )
Appellees )
)

PLAINTIFF’S APPEAL BRIEF

I. Statement of Issues Presented for Review

1. Did the Court err in granting the motion brought by the defendant, Misha Defonseca to dismiss Counts I and II of Plaintiff’s Complaint, pursuant to Mass.R.Civ.P. 12(b);
2. Did the Court err in granting the motion brought by the defendant, Vera Lee, to dismiss Counts III and IV of Plaintiff’s Complaint, pursuant to Mass.R.Civ.P. 12(b);
3. With all the facts examined in the light most favorable to the plaintiffs; did the Court err in finding, as a threshold matter, that the plaintiffs could prove no set of facts entitling them to relief from judgment, under Mass.R.Civ.P. 60(b).

II. Statement of Case

This appeal, and the underlying litigation stem from disputes regarding an “autobiography” authored by appellee Monique De Wael, a/k/a Misha Defonseca(hereinafter “Defonseca”) entitled “Misha, A Memoir of the Holocaust Years,”(hereinafter, “the book”). The book, purportedly an account of Defonseca’s childhood years in Nazi Germany, was ghostwritten by apellee, Vera Lee(hereinafter, “Lee”), and published by appellants Jane Daniel(hereinafter, “Daniel”), and Mount Ivy Press(hereinafter “Mt Ivy”).
In 1997, Lee instituted suit in Middlesex Superior Court, C.A. No. 98-2456, against Daniel/Mt Ivy, and Defonseca, alleging, among other things, violations of M.G.L. c. 93A, breach of contract, and other torts related to their respective involvement in the publication of Defonseca’s autobiography. As the litigation unfolded, each of these three parties, Mt Ivy/Daniel, Defonseca, and Lee, presented separate claims against each other by way of cross claim and/or counter claim(hereinafter, “underlying litigation”).
A trial was undertaken in the Middlesex Superior Court, the Honorable Elizabeth M. Fahey, Justice, presiding, from August 6, 2001-August 20, 2001. At the conclusion of the trial, the jury entered verdicts against Mt Ivy and Daniel in the amount of 3.3 million dollars for all claims brought by Lee, and the amount of 7.5 million dollars for all claims brought by Defonseca. Subsequently, the trial court trebled these verdict amounts, and awarded attorney’s fees to both Defonseca and Lee, based on the finding that Mt Ivy and Daniel had violated M.G.L. c. 93A. The resulting verdict against Mt Ivy and Daniel, exceeded 32 million dollars. The court also stripped Mt Ivy/Daniel of any legal interest which Daniel/Mt Ivy had in profits generated by the book thereafter.
Post-judgment, Daniel, by virtue of exhaustive research, and technological advancement, was able to establish that the book, Misha: A Memoir of the Holocaust Years, was a hoax. When confronted with such irrefutable evidence, Defonseca acknowledged publicly in January 2008 that the book was indeed fraudulent. Within thirty-nine days of this disclosure, Daniel and Mt Ivy filed suit in Middlesex Superior Court, C.A. No. 08-1432, seeking to vacate the judgment entered in the underlying litigation, pursuant to Mass.R.Civ.P. 60(b)(6)(hereinafter referred to as the “current litigation”). In response, Defonseca and Lee filed motions to dismiss, pursuant to Mass.R.Civ.P. 12(b)(6). After a hearing, occurring on August 28, 2008, the trial Court allowed the motions brought by Defonseca and Lee to dismiss. Mt Ivy and Daniel appeal therefrom.
III. Statement of Facts
In 1993, Daniel founded Mt Ivy Press, a small publishing company. Shortly thereafter, Daniel met with Defonseca in order to hear her remarkable story about her experiences as Jewish child during World War II (App. P. 0002). Among other things, Defonseca related that:
a. As a Jewish child, age 7, she was living in Belgium, when her parents were arrested by the Nazis in 1941;
b. She was placed in a foster home, and was given a false identity, Monique DeWael, age four. Such identity was assumed for the purposes of protecting herself from the Nazis;
c. Defonseca was befriended by a man, who she referred to as "grandfather," whose name was Ernest DeWael, who gave her a tiny compass, and showed her a map of Europe;
d. When Ernest DeWael expressed to Defonseca concern that the Nazis would come for her, Defonseca set out on a journey "to the East" in search of her parents;
e. Over the next four years, Defonseca walked three thousand miles across the European theater of war, hiding in forests where twice she was befriended by wolves.
(App. P. 0003).
Defonseca told Daniel that she had been telling her story, and receiving contributions for speaking engagements, since approximately 1989, and had been warmly embraced by the Jewish community in the Boston area and elsewhere. Daniel offered to publish Defonseca’s autobiography (App. P. 0003).
Daniel enlisted Lee, a French speaking writer, to ghostwrite Defonseca’s story, as Defonseca’s command of the English language was limited. To memorialize their understanding, Defonseca signed a collaboration agreement with Lee, intended to set forth the respective rights and obligations of the parties. Additionally, both Defonseca and Lee signed publishing agreements with Mt Ivy, in August of 1995 (App. P. 0003). Both publishing agreements contained provisions warranting, to the publisher, the truthfulness of the account(App. P. 0003-0004).
Following the execution of the various contractual agreements, Defonseca and Lee set about the business of drafting a manuscript. Over time, disagreements emerged between Lee and Defonseca regarding the scheduling of time to work together on the manuscript(App. P. 0004). During the same time frame, disagreements began to arise between Lee, Daniel, and Defonseca, regarding Daniel’s editorial dissatisfaction relative to the form, substance, and production of the manuscript(App. P. 0004). To ready the manuscript for publication, Daniel attempted to undertake fact checking, including verifying historical and descriptive details, researching historical events, studying the flora and fauna of geographical locations and investigating behavior of wolves in the wild, etc. The plaintiff also sent the manuscript to wolf experts, and to Jewish scholars and Holocaust experts for review(App. P. 0005).
Enthusiastic endorsements were returned from several luminaries, including the chaplain of Brandeis University, Rabbi Albert Axelrod, Noble Laureate and renowned Holocaust survivor, Eli Wiesel, Leonard Zakim, director of the New England region of the Anti-Defamation League, and the North American Wolf Foundation(App. P. 0005).
Defonseca’s account of her experience could not be subjected to standard verification and fact checking techniques, however, due to the absence of certain critical information, including, but not limited to the following:
a. To protect her from the Nazis, Defonseca reported that she did not know, and had never been told, her Jewish surname;
b. She had simply been called “Mishke,” and had never known her parents by any names other than "Gerusha,"(her mother, a Russian Jew), and "Reuven,"(her father, a German Jew);
c. Her parents were immigrants to Belgium, hiding out from the Nazis;
d. She did not know her place of birth, but represented that she suspected it may have been Poland.
(App. P. 0004)
In the course of her research, Daniel learned that, at times, Jewish children of the Holocaust lost their identities when their parents were taken away. Without the names, date, and place of birth of "Mischke," it was not possible for Daniel to check the personal aspects of the story(App. P. 0005).
The American book was published in April 1997, under the title, Misha: A Memoir of the Holocaust Years. The American edition, was followed shortly thereafter by a French version, published by Editions Laffont, under the title, Surivre avec les loups, (Survival with Wolves), the rights to which were reserved exclusively to Defonseca and Lee under their respective publishing agreements. Neither Mt Ivy, nor Daniel, had any input with respect to the French edition, other than to make several specific minor corrections requested by Laffont. Other foreign editions followed(App. P. 0005).
Two significant changes were made in the Laffont editions, and subsequent editions, the rights to which were controlled by Defonseca and Lee. Identifying photographs from Defonseca’s earlier life were removed, and the "false identity" of "Mischke" was changed from Monique DeWael, to Monique Valle(App. P. 0005).
Following the inception of the underlying litigation in May of 1998, until March of 1999, Defonseca represented herself(App. P. 0005). In the course of her self-representation, Defonseca filed a counter claim against Lee, contending that Lee had breached her collaboration agreement with Defonseca, and had engaged in other tortious conduct(App. P. 0005).
The counter-claim filed by Defonseca against Lee represented that Defonseca had complied with all of the terms of the collaboration agreement, including that the book was, "based on the author's life experience, accomplishments, and impact upon society"(App. P. 0006).
Additionally, Defonseca, acting pro se, filed a cross claim against Daniel/Mt Ivy, alleging, among other things, breach of contract(App. P. 0006). In the course of her self-representation, Defonseca intentionally, and systematically, filed pleadings with the Court that were materially false(App. P. 0007).
Even after the appearance of counsel on her behalf, on or about March 11, 1999, Defonseca continued to fuel a continuous and unconscionable scheme calculated to interfere with the judicial system's ability to impartially adjudicate the matter. This included perjured testimony at her deposition, and at trial(App. P. 0008-0009).
At the trial in the underlying litigation, the myth of Defonseca's persona as a Holocaust survivor was a central building block founded on Defonseca's perjured testimony, and propagated by her counsel(App. P. 0009).
Indeed, the book itself was introduced into evidence at trial, and was at the disposal of the jury to peruse, read, and contemplate during deliberation.Examples of Defonseca's calculated, perjurious, testimony, included:
a. That, as a Holocaust survivor, Defonseca was extremely sensitive to threats or false representations;
b. She was paid $2,000-4,000 for speeches given regarding her status as a Holocaust survivor;
c. That Defonseca is, "not very good at fighting people. I used to be with animals";
d. That Defonseca had to steal in order to eat during the war;
e. That Defonseca, during the war, had to kill to survive;
f. Regarding her parents, reported to have been taken by the Nazis and taken to a concentration camp:
"For me, having a movie, it is a memory as to my parents. And I hope that somebody in the world would say I have known them";
"Because a lot of survivors are old now. That is not so much left. And if it continues, I am going to have a lesser opportunity to find somebody, somewhere";
g. Regarding her encounter with wolves in a promotional event sponsored by Mt Ivy at Wolf Hollow in Ipswich, MA, "Those wolves are not the wolves I knew 50 years ago when I was a kid, innocent in the woods."
(App. P. 0008-0009).
The impact that Defonseca's status as a Holocaust survivor would have on the jury was not lost on Defonseca's counsel, Ramona Hamlin. In closing argument, she hammered home the point, arguing to the jury:
a. "And what was she trying to defend herself about? Her life story. The tragedy has already been visited on Misha, that's not in dispute. She lost her parents at 7 years old, and wandered through Europe unprotected for four years. That's not in dispute. That happened to her."
b. "All along the reason that Misha got involved in this project was that Misha wanted to write a book to make a memory for her parents. Misha wrote to Jane in December of 1997, 'Remember you said repeatedly that you wanted to make a businesswoman of me, and I didn't want to. I wanted this book as a memory.'"
(App. P. 0009).
Her false claims of writing her book to locate anyone who knew her parents in the Nazi Concentration camp were geared towards eliciting jury sympathy. The perjurious evidence, presented by Defonseca at trial, in concert with her counsel's propagation of same, yielded the desired result, a massive award in favor of Defonseca against Mt Ivy and Daniel(App. P. 0010).
In a twenty-four page, special verdict form, dated August 20, 2001, the jury found, among other things:
a. That Mt Ivy Press breached its publishing agreement with Lee;
b. That Mt Ivy Press breached its publishing agreement with Defonseca;
c. That Lee had performed her obligations under the publishing agreement with Mt Ivy Press;
d. That Defonseca had performed her obligations under the publishing agreement with Mt Ivy Press;
e. That Mt Ivy Press had breached M.G.L. c. 93A with respect to its business dealings with Defonseca;
f. That Mt Ivy Press had breached M.G.L. c. 93A with respect to its business dealings with Lee.
(App. P. 0304-0326).
An appeal was taken to the Appeals Court of Massachusetts, resting predominantly on the theory that the state law claims, involved in the underlying action, were pre-empted by Federal copyright law (17 U.S.C. Sec. 101 et. seq.). On May 17, 2005, the Court of Appeals, focusing solely on the pre-emption issue, affirmed(App. P. 0011).
At the time of trial, in August of 2001, there was no affirmative evidence available to Daniel that Defonseca's account was, in any way, shape, or form, false(App. P. 0011). During the pendency of the appeal, however, Daniel began to suspect, for the first time, that there may have been certain aspects of Defonseca's account that may not have been the literal truth(App. P. 0011).
Daniel began to look for concrete evidence, one way or another, regarding the truthfulness of the Defonseca account. Towards this end, Daniel contacted several genealogists, who informed her that, based upon the limited information available, they could offer no assistance in researching Defonseca's family history(App. P. 0011).
On or about June 2006, Daniel, in reviewing cartons of documents turned over to her by Mt Ivy's literary agency, post-trial, came upon a photocopy of a signature card for two of Defonseca's bank accounts. A Middlesex Savings bank account form contained the following information: name: Monique(Misha) Defonseca; date of birth 5/12/37; birthplace: Etterbeek, Belgium; mother's maiden name: Donville(App. P. 0012).
For the first time, Daniel had a hint that there may have been inconsistencies in Defonseca's autobiography, to wit, that Defonseca had claimed that she knew neither the place nor date of her birth, nor her family name. Utilizing the information, Daniel attempted to access vital records in Belgium. However, Belgium has a privacy law which seals all vital records, birth, death, and marriage, for 100 years(App. P. 0012).
Daniel also contacted two private detectives, in order to trace Defonseca's path of immigration to the United States in 1985. However, again, the subject records were sealed and unavailable(App. P. 0012). Daniel then went to the Federal archives in Waltham, MA to search the ships' passengers lists, without success. Daniel also ran the names Donville and Dewael through the database of Yad Vashem, a world-wide repository of names of more than three million Holocaust victims, without a match. Daniel also posted queries, to no avail, on various Belgium genealogical websites(App. P. 0012).
In July, 2007, Daniel began writing a book on the subject of the ten years of litigation associated with the Book and posting chapters as they were completed on the World Wide Web as a blog. Daniel introduced her Book by saying that the end of the story had not yet occurred and asked that anyone with knowledge of the missing pieces of the account contact her. In December, 2007, Daniel engaged the services of a private detective firm with operatives in Belgium, but was still unable to attain any further information regarding Defonseca's origins(App. P. 0012). In January of 2008, Daniel was contacted by Sharon Sergeant, a forensic genealogist, who had come upon her blog on the Internet. Ms. Sergeant offered to assist Daniel in her quest to garner information regarding Defonseca's genealogy and background. Sergeant learned that the book had been translated into 18 languages and made into a full-length feature film in French billed as a “true story.” Sergeant initially compared various editions of the book, particularly the French translation and observed two key differences: the “false identity” given to the orphaned “Mischke” by her “adoptive” family was changed from Monique DeWael in the Mt Ivy edition to “Monique Valle” in the French and U.K. editions, and the photographs of Defonseca’s childhood in the Mt Ivy edition had been removed from foreign editions(App. P. 0012).
Sergeant then searched various databases, including the Avotaynu database of seven million Jewish names, without a match on the names Valle, Donville and DeWael. She searched Jewish deportation records for a married couple with the first names Gerusha and Reuven and found nothing. Next, Sergeant, observing that there were many references to Catholicism in the book, as well as references to comic strips that had appeared in periodicals circulated in Catholic schools, decided to research Catholic baptismal records in Belgium. In the course of such research, Sergeant discovered that there was a maternity ward in a hospital in Etterbeek, the district in Brussels identified on Defonseca's bank record as her place of birth. Correspondingly, Sergeant obtained the services of a Belgian researcher who visited the Catholic parishes located in this district(App. P. 0012-0013).
Finally, the Belgian researcher located proof of Defonseca's true identity. A baptismal record for Monica Ernestine Josephine DeWael disclosed that she was born on May 12, 1937 in Etterbeek, daughter of Robert Henri Ernest DeWael, and Josephine Germaine Barbe Donville. The family's address on the baptismal certificate was in another district of Brussels, Schaerbeek. Subsequently, an elementary school was located in the same neighborhood as the DeWael family home in Schaerbeek. A week later, the school produced a record indicating that Monique DeWael had been a student at the elementary school in September 1943, right in the middle of her reported 3,000 mile journey(App. P. 0013). At long last, Daniel learned that the name “Monique De Wael,” the purported “false identity” given to Mischke in the Mt Ivy book was, in fact, Defonseca’s real name.
Daniel posted the two documents on her blog and contacted an outspoken skeptic of Defonseca’s story who had been posting his opinions on a Belgian blog, who then notified the Belgian press of the newly-discovered evidence. With the correct name, (DeWael, not Valle, as had been published in the French edition) the Belgian press was able to uncover even more evidence of Defonseca’s fraud(App. P. 0013).
On or about March 3, 2008, Le Soir, the leading newspaper in Belgium, published an account in which it was revealed that Defonseca's real father, Robert DeWael, had collaborated with the Nazis and turned over to them members of the Belgium resistance. Confronted with the irrefutable evidence, Defonseca acknowledged, for the first time, in a statement dated 2/28/08, that the memoir was a hoax. In her statement, approximately translated from the French, and reported in the Boston Globe on February 28, 2008, Defonseca acknowledged that every essential element of her autobiography was false(App. P. 0013).
Daniel spent several years working to ascertain whether or not Defonseca's memoir was truthful. It was only with the advancement of the internet, and the corresponding availability of worldwide networking and information access that the truth regarding Defonseca's true identity, and the corresponding magnitude of the hoax perpetrated by her in her memoir came to light(App. P. 0013).
Once again, once the hoax was identified, Daniel/Mt Ivy retained counsel and commenced suit, seeking relief from judgment, in accordance with Mass.R.Civ.P. 60(b), within thirty-nine days(App. P. 0024).
IV. Argument
A. Standard of Review
When evaluating the sufficiency of a Complaint, pursuant to Mass.R.Civ.P. 12(b)(6), the Court must accept as true the well proven factual allegations of the Complaint, as well as any inference which can be drawn therefrom, in the plaintiff’s favor. Eyal v. Helen Broadcasting Corp., 511 Mass. 426, 429, 583 N.E.2d. 228 (1991). The Complaint should not be dismissed for failure to state a claim, unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Nader v. Citron, 372 Mass. 96, 98, 360 N.E.2d. 870 (1976). A Complaint is not subject to dismissal if it could support relief under any theory of law. Whitinistille Plaza Inc., v. Kotseas, 378 Mass. 85, 89, 390 N.E.2d. 243 (1979).
B. Reviewing the evidence in the light most favorable to Daniel/Mt Ivy and resolving all reasonable inferences in their favor, the trial court erred in determining that the plaintiffs could establish no set of facts that would entitle them to relief from judgment, pursuant to Mass.R.Civ.P. 60(b)(6).

In its opinion, the Court concluded that the plaintiff’s allegations of fraud, misrepresentation, and misconduct, on the part of Defonseca, fell within the parameters of Rule 60(b)(3), and, correspondingly, did not meet the criteria required for relief under 60(b)(6). Because Rule 60(b)(3) has a one year statute of limitations, the court determined that the claim brought by Mt Ivy/Daniel, was untimely, and, correspondingly, subject to dismissal. It is the position of the appellant, herein, however, that, if ever there was a case in which relief under Mass.R.Civ.P. 60(b)(6) must be permitted, this is it.
It is established law in Massachusetts that relief under Rule 60(b)(6) is limited to instances, “when the vacating of judgment is justified by some reason other than those stated in subdivisions (1)-(5),” Parrell v. Keenan, 389 Mass.809, 814, 452 N.E. 2d 506(1983). Here, the facts of this case clearly demonstrate that there is “something more” at issue than a simple fraud, misrepresentation, or misconduct of an adverse party, and, correspondingly, Rule 60(b)(6) relief is appropriate, and the one year limitation rule of 60(b)(1)-(3) does not apply. 11C.A.Wright, AR Miller & M.K. Kane Federal Practice and Procedure 2864 @350-351(2d ed. 1995)(Wright), “A judge, considering a Rule 60(b)(6) motion, may consider whether the moving party has a meritorious...defense...whether extraordinary circumstances warrant relief...and whether the substantial rights of the parties...will be affected by granting the motion.” Owens v. Mukendi, 448 Mass.66,72, 858 N.E.2d 734 (2006). In substance, Rule 60(b)(6) vests, “power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice.” Klapprott v. United States, 335 U.S. 601, 615 (1949). Allowance or denial of motions brought pursuant to Rule 60(b) are committed to the sound discretion of th trial court. Teamsters, Chauffers, Warehousemen, & Helpers Union, Local 59 v. Superline Trans.Co., 953 F.2d 17, 19 (1st Cir. 1992).
Each of the three factors to be considered by the Court, in Owens vs. Mukendi, supra, clearly line up in favor of allowance of the appellant’s motion. First, the appellant has a myriad of meritorious defenses that she was not able to advance at trial. Not only was the defense meritorious, but would have required either a ruling in favor of the plaintiff, as a matter of law, with respect to the breach of contract count, either by means of Summary Judgment or directed verdict. Specifically, both Defonseca and Lee warranted, in their contracts with Daniel/Mount Ivy Press, that the accounts given by Defonseca were entirely truthful. The specific language of the warranty provisions contained in the contract were as follows:
A. The Author represents and warrants to the Publisher that, with respect to the Work as submitted by Author, excluding revisions or additions by Publisher (i) the Work is not in the public domain; (ii) the Author and her collaborator are the sole and exclusive owners of the Work and have full power, free of any rights of any nature whatsoever in any one that might interfere therewith, to enter into this Agreement and to grant the rights hereby conveyed to the Publisher, (iii) the Work has not heretofore been published in whole or in part; (iv) the Work is original except for material in the public domain and such excerpts from other works as may be included with the written permission of the owners thereof; (v) the Work does not, and if published will not, infringe upon any proprietary right at common law; or any statutory copyright, or trade names, or patent, or trademark rights, or any other right whatsoever, (vi) the Work contains no matter whatsoever that is obscene, libelous, in violation of any right of privacy, or otherwise in contravention of law or the right of any third party; (vii) all statements of fact are true or based upon reasonable belief, except for facts and identities deliberately misstated to preserve confidentiality or for other valid reasons, provided the Author notifies the Publisher thereof (viii) the Work, if biographical or “as told to” the Author, is authentic, and (ix) the Author will not hereafter enter into any agreement or understanding with any person, firm, or corporation that might conflict with the rights herein granted to the Publisher (App. P. 0297)(Emphasis Added).

As the Court is well aware, a warranty provision in a contract is effective and enforceable, regardless of the state of mind of the parties at the time that the contract was consummated. Certainly, at this juncture, it is beyond dispute that Defonseca knew that she was violating the provision at the time that she executed the contract. It is not clear, without further discovery, whether Lee had similar knowledge. However, whether or not Lee knew of the falsity of the account at the time that the contract was effectuated, is of no consequence. Whether Lee knew, or didn’t know, the contract was nonetheless violated by Lee. Correspondingly, both Lee and Defonseca violated their respective contracts with Mt Ivy by providing a false autobiographical account to Mt Ivy.
Had the fact of the hoax been known at the time of this trial, the plaintiffs would have filed a motion for summary judgment with respect to the issue of contractual breach by Defonseca and Lee, and would have won that motion. The jury would have been instructed that, as a matter of law, it must find that Defonseca and Lee violated the warranty provision of the contract. Instead, the jury entered findings, at the conclusion of the trial, that Defonseca and Lee had, at all relevant times, complied with their respective obligations to Daniel/Mt Ivy under the two publishing agreements(App. P. 0010).
As such, Daniel not only had a meritorious defense, but an ironclad one against Defonseca and Lee alike, that would have guaranteed a different result at trial, had this information been known.
This is to say nothing of the effect that evidence of the hoax would have had on the remainder of the issues that played out at the trial of this matter. Without question, the entire testimony of Defonseca and of Lee with respect to their contractual rights and obligations regarding them would have been nullified had it been known that the fundamental premise of the case, i.e. the truthfulness of the account, was invalid. Certainly every piece of testimony that Defonseca and Lee offered at trial would have been negated.
This is not speculation. When one imagines a scenario in which the plaintiffs are caused to admit, at the outset of a trial, that the book which they submitted to Daniel/Mt Ivy Press was sheer fabrication, presented as fact, no reasonable person could believe that it would not entirely undermine their credibility and effectiveness as witnesses in other, collateral issues.
Moreover, the fact of the hoax would have fit like a puzzle piece into the defenses advanced by Daniel at trial. For instance, Daniel, who had a vested financial interest in promoting the book, contended that she met with resistance on the part of Defonseca to a multitude of efforts to promote the book, including, but not limited to, an appearance on the “Oprah” program(App. P. 0018). Given that “Oprah” is aired in Europe as well as the U.S.,it is easy to see, in retrospect, that the reason why Defonseca resisted many of Daniel’s efforts to heighten the profile of the book was that increased notoriety would have undoubtedly lead to greater scrutiny of the name change. It also explains Defonseca’s insistence of control of the French language edition of the book, wherein Defonseca changed the name De Wael to Valle, and identifying photographs were removed. Defonseca had a vested interest in limiting the information released in the European market, as she faced a substantially greater risk of being “outed” in that forum. In short, the more Daniel tried to push the book, the more reluctance she observed in Defonseca. The fact of the hoax would have bolstered Daniel’s testimony that many of the roadblocks encountered in the promotion of the book were laid by Defonseca herself and that, despite Daniel’s best efforts, those roadblocks, to a large extent, proved insurmountable.
The court must further ask itself, in addition to hard evidentiary matters, whether or not the underlying story, as related by Defonseca, and her counsel at the trial, impacted the sympathies of the jury, the trial court, and even the Court of Appeals. Defonseca’s account, contained in the book, which was provided as an exhibit to the jury, told a story of Jewish child whose parents were taken from her by the Nazis, set adrift in war-torn Europe. Hers was a story of tremendous suffering, but also of perseverance and triumph in the face of seemingly insurmountable odds.
How could any fact-finder not empathize with such a victim? How could any aspect of this trial proceed with any level of impartiality, given the fact that the centerpiece of plaintiff’s case was this victimized, yet heroic, woman? The reality is that no reasonable fact finder could conclude, looking back on this trial, that this did not play a substantial role in the jury’s filtering of the facts and evidence. We know that the story held sway with the Court of Appeals which commenced its opinion by stating:
"Shortly after the Nazis seized her parents, seven year old Misha Levy fled alone to the forests and villages of Europe, where she wandered for four years. Along the way, she witnessed atrocities, found herself trapped in the Warsaw ghetto, and killed a Nazi soldier in self-defense. Miraculously, she survived her ordeal, thanks to her strong will and guile, as well as, incredibly, the aid of a pack of wolves, who "adopted" and protected her, providing food, companionship, and affection. Needless to say, her story was compelling" (App. P. 0011).

If her story was compelling to the Court of Appeals, it surely was compelling to the jury in the underlying trial. Conversely, had the jury known that Defonseca had fabricated this hoax, trading on the horrific victimization of the Jewish people by the Nazis in the 1940s, their view, assessment, and evaluation of this witness would have undoubtedly swung in the opposite direction.
In summary, Daniel had not only strong, but unshakeable, legal defenses at the underlying trial that she was unable to advance. Again, these defenses apply equally to Defonseca and Lee. Lee, like Defonseca, as a matter of law, breached her contract with Daniel/Mt Ivy. A finding that Daniel failed to adequately promote the book would, in the eyes of the jury, have damaged not only Defonseca, but Lee. Moreover, the canonization of Defonseca, and demonization of Daniel, led to the inevitable conclusion that Daniel trampled not only Defonseca, but the purportedly innocent ghost-writer as well. Correspondingly, the first of the Owens’ factors is met.
The Court must now consider the second Owens’ factor, i.e., whether, “extraordinary circumstances warrant relief.” If ever there has been a case, in the history of Massachusetts jurisprudence, in which extraordinary circumstances exist, warranting the vacating of a judgment, it is this case. To be sure, there has been a grave miscarriage of justice visited upon Daniel as a result of the fraudulent conduct of Defonseca at trial. Defonseca fabricated a false Holocaust survivor story, ensnarled Daniel in its’ web, sued Daniel for failing to actively promote the hoax, and recovered a 32.4 million dollar verdict against Daniel, thereby financially ruining her. In effect, Defonseca utilized the Massachusetts court system as an instrument in a plot to profit from her deceit and duplicity, to the grave and irreversible detriment of Daniel. The impact upon Daniel can not be overstated. The judgment obtained by Defonseca and Lee was one of the largest jury verdicts in the history of the Massachusetts court system. A thirty-three million dollar verdict would be devastating to a large corporation, much less to an individual such as Daniel, and a small corporation, such as Mt Ivy. The harm which has come to Daniel, as a result of Defonseca’s actions, cannot be permitted to stand.
The extraordinary nature of this situation extends far beyond the impact which Defonseca’s hoax has had on this court system, and the underlying litigants, however. Should this Court place its imprimatur upon the judgment in this case, it will serve to diminish and corrode the legacy of Holocaust victims and survivors across the world. One cannot ignore the subject matter of Defonseca’s hoax. Put bluntly, Defonseca traded and profiteered upon one of the greatest human tragedies in recorded history, the Nazi persecution and victimization of the European Jewish population during the 1930s and 1940s. Defonseca, knowing that stories of Holocaust survivors are of great public interest and empathy, and, correspondingly, profitable and marketable, decided to proclaim herself such a victim. She and Lee made money on the backs of the true victims of the Holocaust, and then utilized this court system as a means to further capitalize upon her devious scheme. Furthermore, Defonseca’s memoir, subsequently revealed as fabrication, plays directly into the hands of those who would deny that the Holocaust occurred at all. As noted by Chuck Lane, a member of the Editorial Board of the Washington Post, and a teacher of a class on journalist fraud at Princeton University, in an interview with NPR on March 5, 2008: “There is a real harm though...when you have people faking documents about the Holocaust. Unfortunately, there are Holocaust deniers in this world, and that sort of fabrication...can really feed very pernicious views about the underlying truth about actual historical events.”1 Commenting on another false Holocaust memoir, “Angel at the Fence” Ken Waltzer, Director of Jewish Studies at Michigan State University stated, “Holocaust experience is not heart-warming, it is heart-rending. All this shows something about the broad unwillingness in our culture to confront the difficult knowledge of the Holocaust... All the more important then to have real memoirs, that tell of real experience in the camps.”
Never has this issue been more topical, given the recent statement of Bishop Richard Williams, denying the Holocaust generally, and the use of gas chambers specifically. This remains, sixty years after WWII, an issue of critical social importance.
Should this Court allow the judgment to stand, it would constitute an endorsement of Defonseca’s activities, heretofore described. Unquestionably, there will be far-reaching social and historical ramifications should this Court signal that Defonseca’s conduct, in some respect, was, and is, tolerable, or otherwise acceptable. This Court should not be complicit in the ratification and perpetuation of Defonseca’s scheme, which, ipso facto, cheapens and diminishes the legacy of Holocaust victims and survivors alike. On the other hand, should the Court decide to take the appropriate action, and revoke the underlying judgment, a clear message would be sent to the world at large, that the Massachusetts court system will not tolerate this abject affront to the historical and sociological legacy of the Holocaust.
Further, the ramifications of this case also implicate the interests of the publishing industry as a whole. As the Court is aware, there has been a proliferation of profitable hoax memoirs in recent years. In each of those cases, publishers, such as Mt Ivy, have been victimized by unscrupulous “authors” who warrant the truthfulness of their stories, but then produce a product which is created from whole cloth. As a matter of public policy, publishers and readers alike should be able to rely upon the representations of authors with respect to the truthfulness of the materials introduced into the stream of commerce. The integrity of the publishing institution is weakened and watered down each time a fabricated autobiography finds its way into a reader’s hands. Once again, should this Court allow Defonseca’s fraud to stand, it would undermine the legitimacy of the publishing houses which, across the world, invest money and take financial risk in introducing to the marketplace important autobiographical literature. The message that this Court would send, if it allowed Defonseca’s conduct to stand, would be that the Courts will endorse and embrace such falsity, so long as it is sufficiently well-concealed, that it is undiscoverable for years after the book has been introduced and the money made by the author. This represents yet another extraordinary aspect of the case, which must be considered by the Court, in determining whether or not equitable relief is due under these facts.
The third Owens’ factor is also met. The substantial rights of the parties will be affected by the granting of this motion. There will be substantial changes in the positions of the parties, as they now stand, as a result of the Court’s ruling in favor of the plaintiff on this matter. Indeed, this is entirely the point. As the Court in Klapprott, supra, observed, “in simple English, the language of the ‘other reason’ clause, for all reasons except the five particularly specified, vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice.” Indeed, the positions of the parties must change for justice to be served. The respective duties and obligations of the parties must be evaluated by a fact finder in full light of the truth. Only then can the appropriate liabilities be fairly assessed.
In summary, the Court of Appeals must ask itself, is there something more here? Respectfully, the appellant would submit that the facts and circumstances of this case extend far beyond what the trial court characterized as a “fascinating factual background”(App. P. 0397). The implications of allowing this judgment to stand have a wide reaching public policy impact that affects not only the party litigants, but the very core of the Massachusetts judicial system itself. It is easy to be swept away with the mechanical aspects of our justice system, and miss the forest for the trees. Generally, in the interest of finality, application of the rule should have meager scope. But, courts should keep in mind that the purpose of the rule is to accomplish justice. For that purpose, Courts may construe the rule liberally. Freitas v. Freitas, 26 Mass.App.Ct. 196, 198, 525 N.E.2d. 438 (1988). When the Court of Appeals looks at itself in the mirror, it cannot be satisfied that substantial justice has been accomplished in this case. Can justice truly be said to have been done, when Daniel was saddled with a 33 million dollar verdict in a trial in which the truth of the memoir was accepted fully by all: judge, jury, defendants? Can the Court of Appeals tell itself that it has served justice, when the writer of a fabricated Holocaust memoir prospered by virtue of a trial, using the mechanism of the Massachusetts judicial system, riding the falsity of those memoirs to the finish line? Can this Court of Appeals feel that it has done its job when the Massachusetts judicial system has been used as a pawn in an unconscionable scheme, to prosper on the backs of Holocaust victims, and on the manipulation of trusting readers? If this Court hesitates in answering yes to these questions, then it must look deeper in its analysis of whether this case truly presents, “something more” than garden variety fraud; implicating societal concerns that span far beyond the relationship of the underlying litigants. This court has the power, created by the legislature, to ensure that the right thing is done in this case. It is not the easy route. It is not the expedient route. It is, however, the step that the Massachusetts judicial system must take to wash its hands of the misdeeds that were perpetuated by the appellees, leading to an erroneous and unconscionable judicial outcome.
Indeed, Massachusetts courts have allowed relief from judgment in circumstances far less egregious than those that apply in this case. For instance, in Harvey & Sons v. North Works Properties Inc.,19 Mass. Law Rep. 82; 2005 Mass. Super. Lexis 59 (2005). The Superior Court, sitting in Worcester, vacated a judgment, utilizing 60(b)(6) because the amount of the underlying judgment bore no accurate relationship to the true damages sustained by the plaintiff. The Court, in that case, determined that it simply could not allow such an inappropriate judgment to stand, even though the conduct of the defendant in that case was a precipitating factor in the creation of the erroneous underlying judgment. The court, nevertheless, deemed it imperative to have an accurate measure of damages. The judgment was vacated.
Similarly, the Suffolk County Superior Court in Suffolk County Sheriff v. Afscme, 16 Mass. Law Rep. 511 2003; Mass. Sup. Lexis 223 (2003) vacated an arbitration award, because false testimony was given at an arbitration hearing. Based upon public policy concerns, the Superior Court vacated, utilizing Mass.R.Civ.P. 60(b)(6).
The same is true, also, of the Court of Appeals, which has affirmed Relief from Judgment entered by the trial court on some occasions, and imposed it on others. For instance, in Bowers v. Fordham Appeals of Marshfield & Others, 16 Mass. App. Ct. 29, 448 N.E.2d. 1293 (1983), the Court of Appeals overruled the trial court’s refusal to apply 60(b)(6) to vacate a judgment, in a case where the Court determined that a selectman for the town of Marshfield had entered into a consent agreement, with respect to which he lacked authority to bind the town. So too did the Appellate Division of the District Court reverse a trial court for failing to vacate a judgment, pursuant to Mass.R.Civ.P. 60(b)(6), in a situation where the record reflected that a consent judgment was improperly derived. See Duco Enterprises Inc., v. Apdelnour, 1994 Mass. App. Div. 103; 1994 Mass. App. Div. Lexis, 45 (1994). Similarly, the Appellate division of the District Court affirmed a trial court determination, to vacate, under Mass.R.Civ.P. 60(b)(6), a judgment that had arisen out of a respective transfer of a case, noting that extraordinary circumstances existed, because, “the award of damages exceeded the amount sought in the statement of damages...” See Nixon v. Petrell, 1993 Mass. App. Div. 1; 1993 Mass. App. Div. Lexis 1 (1993).
Additionally, in the case of Kniskern v. Melkonain, 68 Mass. App. Ct. 461, 862, N.E.2d. 440 (2007), the Court of Appeals upheld a trial court’s determination that a judgment needed to be vacated, under Mass.R.Civ.P. 60(b)(6), notwithstanding the lack of any effort, whatsoever, on the part of the individual against whom the judgment had been entered, thereby leading to such judgment, because the judgment, if allowed to stand, would be contrary to the exclusivity provisions of the Worker’s Compensation Act. Similarly, the appellate court in Winthrop Corp., v. Lawenthal, 29 Mass. App. Ct. 180 (1990), reversed a trial court decision, refusing to vacate a judgment, pursuant to Rule 60(b)(6), because an arbitrator was not armed with full information at the time that the underlying arbitration was undertaken. The Court held that it could not allow the judgment to stand, because it was, “left with the abiding conviction that justice has not been done with respect to the issue of legal fees, a matter of particular concern to the Court.” Here again, read fully, at the core of this decision, is the financial outcome to one of the litigants, that simply did not correlate to actual damages. If the unjust imposition of a few thousand dollars in attorney’s fees in the Winthrop case, can justify a vacating of the judgment in the Mass.R.Civ.P. 60(b)(6), what of a 33 million dollar judgment against Daniel here?
Thus, it is clear, that trial courts, and appellate courts, under appropriate circumstances, will vacate judgments, utilizing Mass.R.Civ.P. 60(b)(6), after one year, where justice so requires. When contrasted with these situations, in which it was determined that “something more” existed, because an inappropriate damage award was entered, or because the judgment conflicted with procedure, the case at hand has to be considered “something more, than something more.” Again, in addition to the social policy issues, the appellant herein has a 33 million dollar judgment against her, arising directly out of the fraud and malfeasance of Defonseca, the rewards for which were similarly visited upon Lee, whose financial interests were aligned with Defonseca’s throughout the trial. Thirty-three million dollars is a life destroying award. Daniel’s life has literally been decimated by virtue of this verdict. If other Appellate panels can determine when awards should be vacated, because, in essence, they do not correlate to the true amount of damages that should have resulted, then certainly this case must fall into this category.
C. The Trial Court failed to construe the evidence, and related inferences, in the light most favorable to the Appellants, when it concluded that the fact of the hoax had little or no impact on the outcome of the trial in the underlying litigation.

At the outset of its opinion, the Court acknowledges its obligation to construe the evidence in the light most favorable to the plaintiff, and to accept those allegations made by the plaintiff, in its Complaint, as true. Should not the trial court, in its analysis, have accepted the reasonable inference that the fact that the book, which was at the center of the trial, was a hoax, would have profoundly, and across the board, affected every aspect of the trial? Just as jurors are instructed not to discard common sense at the courtroom’s door, neither should the courts. No reasonable person could conclude that this information, if known to the jury, would not have profoundly affected the outcome of this trial. The entire event was colored by the notion that Daniel breached her contracts with Defonseca and Lee, a fact which, if the hoax were known, would have been an impossible conclusion for the jury to reach. The entire process was infected with the ill-begotten notion that Defonseca, victimized during World War II, was victimized again by an unscrupulous publisher. For the purposes of the motions brought by the defendant, and, in fact, in a real world analysis, the Court was required to accept the inescapable fact that the masquerade of deception as truth at trial not only impacted the trial, but drove the outcome thereof.
Further, the trial court’s presumption that the underlying trial was really all about the conduct of Daniel, within the framework of everybody’s belief that the memoir was truthful, is entirely misplaced. What we now know is that all the evidence against Daniel/Mt ivy on which the court predicated its findings of “egregious conduct”(App. P. 0066) was proffered by a de facto perjurer and a second party who stood to gain immensely from that perjury. Further, how can Daniel be culpable for failing to market a product that was, in truth, valueless? A memoir known to be false will generate no interest in the buying public, and thus has no market value. In fact, history has shown that a responsible publisher, upon learning of the falsity of a memoir, should take affirmative steps to ensure that the work is not marketed or sold at all. And so it was in the latest of false Holocaust memoirs, offered by Herman Rosenblat, “Angel at the Fence.” When Rosenblat’s account of his time in a concentration camp was proven false, the publisher, Berkeley Books, immediately cancelled publication of the book and demanded that the author and the author’s agent return all money that they received for the work. Daniel would have taken the same course, had she discovered the fraud at an earlier time. How can the underlying judgment be fundamentally sound as the trial court states in its opinion, when the building block of the financial losses claimed by the plaintiff in the underlying litigation was a memoir that, at its core, had no market value? Indeed, all would agree that the appropriate course for the publisher to have undertaken, once the fraud was discovered, was to immediately cease to market the book, and, most probably, as the publisher in the Rosenblat case did, demand restitution from the writer. There would have, and should have been, no profits from this book, so how can 33 million dollars in damages awarded Lee and Defonseca arise from a book which, had the facts been known, would not have made dollar one?
Further, it is clear that the jury, and later the trial court in its 93A decision, blinded with empathy, were willing to take huge leaps of faith, relative to the evidence in the underlying case. Without the benefit of any expert accountant testimony, judge and jury accepted without specificity that “monies” had been “misappropriated,” or “pilfered” by Daniel(App. P. 0060) without identifying the dollar amount of the monies, their source, the manner of pilfering and misappropriating(check, cash, other), any supporting paper trail, or any monies that were unaccounted for by Mt Ivy(App. P. 0060).
In short, both the jury, and, more distressingly, the trial court, blissfully accepted wildly speculative claims of loss, based upon entirely incompetent evidence, all in the name of doing “justice.” The proof is in the pudding, absent court/jury infatuation with the romance of Defonseca’s story, the staggering verdict in this case would be inconceivable.
D. The plaintiff is entitled to relief pursuant to Mass.R.Civ.P. 60(b)(6) because a fraud occurred on the court at an underlying trial.

Mass.R.Civ.P. 60(b)(6) specifically preserves to a litigant, a right to file an independent action in order to vacate a judgment based upon fraud upon the Court. “A fraud on the Court occurs where it can be demonstrated clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial systems’ ability impartially to adjudicate a matter by improperly influencing the trial or unfairly hampering the presentation of the opposing party’s claim for a defense.” Paternity of Cheryl, 434 Mass. 23, 35, 746 N.E.2d. 488 (2001). The doctrine embraces, “only that species of fraud which does, or attempts to, defile the Court itself, or is a fraud perpetuated by officers of the Court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.” Pena v. McGill Dev. Corp., 388 Mass. 159, 165, 445 N.E.2d. 1059 (1983).
It is axiomatic that there was rampant and unhindered perjury at the trial of this matter, offered by Defonseca. Indeed, the introduction of the book itself into evidence constituted the admission of perjurious evidence. Beyond the actions of Defonseca as a witness, however, the Court must consider her conduct while acting as her own counsel, pro se, in this action. From the inception of the underlying litigation in May 1998, until March 1999, Defonseca represented herself, filing pleadings, propounding and responding to discovery, and interacting with the judicial system as pro se counsel(App. P. 007). During this time frame, Defonseca filed numerous pleadings with the Court, which were patently false. While representing herself, Defonseca engaged in a pattern of filing false and fraudulent pleadings with the Court. For instance, in her Verified Answer, Cross Claim, and Counter Claim, filed by Defonseca, acting pro se, on 7/20/98, Defonseca affirmatively represented, in addition to other matters:
a. "...the work, Misha...is Defonseca's story.";
b. "Defonseca, who is a Holocaust survivor, is not only deprived of a well-deserved quiet and comfortable enjoyment of a job well done...";
c. "...that the defendant has fully performed all duties with respect to the relevant contracts...";
d. "...all actions undertaken by the defendant were undertaken in good faith, and any representations that may have been made by the defendant were true";
e. That Defonseca and Lee were to write and prepare a manuscript about the life of defendant, Defonseca, "during the Holocaust years...";
f. That the conduct of plaintiffs herein, Daniel, and Mt Ivy, "caused heightened stress, emotional distress, and pain on Defonseca, who is a survivor and, as such, is very sensitive to threats of misrepresentation, and to any tendency to downplay or sugar coat the events that happened during the Holocaust.";
g. That Defonseca had experienced, "emotional pain of reliving her story.";
h. That each of the foregoing paragraphs were personally reviewed by Defonseca and that, "said statements are true and accurate to the best of her knowledge and belief."
(App. P. 0006-0007).
The representations made by Defonseca were made under notary seal. In other pleadings, filed pro-se, she represented:
a. "all actions undertaken by Defendant in Cross Claim, Defonseca, while acting as her own counsel, and any representations that may have been made by the defendant in cross claim to the plaintiff in cross claim were true";
b. "to the extent that the Defendant in Cross Claim, Defonseca, owes any duties to Mt Ivy and Daniel, Defonseca has fully performed and fulfilled such duties or obligations."
(App. P. 0007).
Furthermore, Defonseca repeatedly filed pleadings with the Court wherein she represented, pro se, that she had, at all relevant times, complied with her obligations under the publishing agreement with Mt Ivy, a fact now known to be entirely false. She further filed sworn affidavits with the Court, prior to retaining counsel, indicating the following:
a. That she felt that she had been taken advantage of by Lee, and Daniel/Mt Ivy, with respect to her, "story...without any consideration or respect for what I went through, not only in my earlier life, but during this whole, grueling, and unnecessarily lengthy exercise of reliving my experience, to make the book in English...";
b. that "my story, and my image belong to me. It is my life. Nobody has the right to exploit or make money from it without informing me and paying my share of the revenues";
c. That Defonseca was "terribly stressed to have to go over it again";
d. That Daniel had failed to, "gracefully accept" that Defonseca's parents were taken in 1941, as reported;
e. That, due to the alleged failure of Lee, Daniel, and Mt Ivy, to live up to their contractual obligations, she was, "reduced to ask for the help of the Jewish Family & Children's Services for food, assistance";
f. That "Misha's story is not 'Sleeping Beauty's' it is war, a child in the middle of war, and inhumanity at this time";
g. “This interference caused heightened stress, emotional distress and pain on Defonseca who is a survivor and, as such, is very sensitive to threats of misrepresentation, and to any tendency to downplay or to sugar coat the events that happened during the Holocaust.”
(App. P. 0007-0008).
It is now irrefutable that these representations, made by Defonseca, while acting as her own counsel, were knowingly and intentionally false, and intended to inflict disease upon the judicial process and machinery itself. The trial court herein sets unsupported and dangerous precedent by concluding that pro se litigants do not have to follow any ethical protocols and, further, do not become part of the judicial machinery itself. Public policy objectives, and prior holdings, dictate otherwise. Massachusetts law maintains that, “while pro se parties are not subject to the specific professional canons of ethics, which bind members of the bar, they are, as obligated, at the very least, to refrain from any action which, ‘obstructs or degrades the administration of justice, or derogates from the authority and the dignity of the court...’” Reznik v. Friswell, 2003 Mass.App.Div. 42, 44, citing Avelino-Wright v. Wright, 51 Mass. App. Ct. 1,5, 742 N.E.2d.578 (2001). It is clear that Defonseca, acting as pro se counsel, in her own case, undertook steps which obstructed or degraded the administration of justice, and derogated from the authority and dignity of the underlying trial court. In effect, she had stepped into the shoes of the lawyer who would have otherwise been representing her, thereby incurring corollary ethical obligations. Just as would be the case if an attorney intentionally and systematically filed fraudulent and false pleadings with the Court, Defonseca undertook an attack, not only upon the opposing litigant, but upon the very machinery of the judicial system itself. This is a classic example of fraud upon the Court itself. Indeed, the Courts have not even required that the party initiating such deception be acting as his/her own counsel, but have found fraud upon the Courts based upon the conduct of the underlying parties themselves. The seminal case in Massachusetts with respect to the issue of fraud upon the Court, is Rockdale Management Co., v. Shawmut Bank, 418 Mass. 596, 638 N.E.2d. 29, citing Aoude v. Mobil Oil Corp., 892 F.2d. 1115 (1st Cir. 1989). The Court in that case found that the conduct of the litigant constituted fraud upon the Court. Specifically, the Court found, “Rockdale, in proffering a forged document, providing misleading answers to interrogatories, and giving false deposition testimony, to use the words of Aoude, ‘has sentiently set in motion an unconscionable scheme, calculated to interfere with the judicial system’s ability impartially to adjudicate the matter.’” The Courts have similarly found that the conduct of a litigant, acting in concert with his lawyer to undermine the judicial process, can also constitute fraud upon the Court. Britt v. Rosenberg, 40 Mass.App.Ct. 552, 554, 665 N.E.2d. 1022 (1996). Correspondingly, the Court should have concluded that Defonseca committed a fraud upon the Court while wearing many hats, and utilizing many procedural mechanisms. The icing on the cake, however, is that for many months, Defonseca undertook this fraudulent and deceptive conduct, designed to undermine and defile the judicial machinery itself, while acting as her own legal representative.
This court must determine whether it is prepared to make law that a pro se litigant has none of the ethical obligations to the trial court, as has an attorney. In other words, is this court prepared to say that, a person representing his or herself, inclusive of filing pleadings, and engaging in discovery has no ethical obligation to act, as an attorney would, in an ethical manner? Are we prepared to give a pass to a pro se litigant? The trial court is happy to do so. “Defonseca’s role as a pro se litigant did not vest her with some special court sanctioned position which would rendered her fraud ‘fraud on the court’”(App. P. 0407). When a litigant puts on the hat of an advocate for the trial court, he/she becomes part of the machinery of the judicial system. He/She is no longer just a party, but part of the very fabric of the system itself. To find otherwise is to undermine the sanctity of the judicial system. We cannot have a situation in which non-lawyer advocates and attorneys play by a different set of rules. Those individuals who act as a lawyer, interacting with the opposing counsel, filing pleadings, undertaking depositions and discovery, must have a concurrent obligation to do so in an ethical manner. When a pro se litigant makes a decision to represent him/herself, thereby becoming entwined with the machine of the justice system, that individual must be required to follow the same rules and ethics to which attorneys are bound. In this case, Defonseca, while acting as her own counsel, knew that the pleadings she was filing were patently false and that the positions that she was taking were unmeritorious. Under such circumstances, it is axiomatic that the machinery of the judicial system has been defiled. When advocates, lawyers, non-lawyer representatives, or pro-se litigants lie and cheat they poison our judicial system, such that the system can not properly function.
Further, the fraud which Defonseca perpetrated on the Court tainted the entire judicial process. As such, none of the resulting findings of the jury were trustworthy, be they related to findings for Defonseca or Lee. While the degree of Lee’s complicity is unknown, nevertheless, her own financial interests and the subsequent award against Daniel was inextricably tied to the fraudulent evidence introduced by Defonseca. This was one trial. If the machinery was defiled by Defonseca, so too was it flawed with respect to claims and defenses of Lee.
V. Conclusion
The appellant can not emphasize enough the importance which this Court plays in achieving the goal of this justice system, to ensure that the judicial machinery is utilized to advance justice, and not to inflict injustice on the parties. The appellees herein have argued that the passage of time has made the interest of finality paramount, and the disposition of justice subsidiary thereto. In fact, in this case, the opposite analysis is required. It is the passage of time, and the unjust enrichment enjoyed by the appellees herein, which compels judicial action to reverse this wrong. In this society, it is our goal to correct wrongs and injustices once discovered. Hence, when the publisher in the Rosenblat case discovered the falsity of the memoir which it has published, it promptly pulled the book from the shelves, such that further damage might not stem therefrom. So too must this judicial system not reward the misconduct of Defonseca, unjustly enrich Lee, and punish Daniel, in the name of judicial finality, because Defonseca was clever enough to conceal her duplicity for a substantial period of time. The trial court acknowledges that the implications of this case stem beyond the litigants. As such, the public policy message which this court will send in its decision is paramount. This is not an isolated incident of fraud by a party, but an issue which is having ever increasing ripple effects throughout our society. There are no two ways about it. If this court says, in the interest of judicial finality, that it will not correct a baseless 33 million dollar judgment, imposed upon Daniel, ethereby rewarding Defonseca and, potentially, Lee, for their malfeasance, and for trading on the Holocaust, then more of the same can be expected. On the other hand, if this Court puts its foot down, and fixes a wrong, so grievous and with such widespread impact, it will similarly send a message to the world that, the Massachusetts judicial system will stand up for what is right and just, whether it is seven years, or seventy years, after judgment.









Plaintiffs/Appellants,
By their attorneys,




________________________
JOSEPH M. ORLANDO, ESQ.
BBO #380215
BRIAN S. MCCORMICK, ESQ.
BBO #550533
Orlando & Associates
1 Western Ave.
Gloucester, MA 01930
978-283-8100



CERTIFICATE OF COMPLIANCE
IN ACCORDANCE WITH M.R.A.P. 16(K)

I, Joseph M. Orlando, Esq., counsel for the Appellant herein, certify that the within Brief complies with all pertinent rules of Court, pertaining to the filing of such briefs.


______________________
JOSEPH M. ORLANDO, ESQ.