covid-19 – Dennis C Merritt

Business Attitudes

I most confess that probably a lot of my anger in this case has to do with my interactions with Connexin’s new employees. That is, people who joined the company after the founders, Fred and Edna Pytlak, had sold their interest and Pamlico had made a major investment.

It took two months for Connexin to schedule a meeting between myself, and some of their staff, to explain to them what the annual ARulesXL invoice was about. There were a number of people in the Zoom-like meeting (my first one) but it seems Bethany Williams was in charge. I presented a bit of the history of VacLogic and ARulesXL’s role in it.

Bethany Williams

After the explanations, Bethany Williams said she had discovered this Memorandum of Understanding (MoU) from 2003, and said it gave them the right to use the software without paying. I was surprised. I explained that I wrote it, that it didn’t, and it had nothing to do with ARulesXL.

She then said, besides, ARulesXL is Open Source. I asked if they had downloaded sources. They hadn’t, but seemed to imply that Open Source was the same as Public Domain. It isn’t. Open Source ARulesXL.

She then added, and this might be the key moment in all of this, that new management of Connexin had paid the annual license fees for the last four years, but that didn’t mean they needed to, and that those payments were enough. I can still hear the scorn in her voice as she said “Don’t you think you’ve been paid enough.” (Who talks to people like that in a business meeting?)

Now, Fred Pytlak thought my contribution to Office Practicum (OP), giving them a competitive advantage in handling vaccines for a pediatric office, was a critical component in the success of the company. And that it helped make OP so valuable that Pamlico wanted to invest in it. Which led to what I presume are excellent salaries being paid to Bethany and other Connexin management. And she treats me as if I’m ripping them off?

Marc Abercrombie

So the meeting ended. Marc Abercrombie then sent me an email telling me they decided the MoU gave them the right to use the software, that they weren’t going to pay for an annual license, that they were going to use the software anyway, and get this, he hoped I had a good weekend. Nice touch.

I sent him one more email, asking him to show me the license they were running ARuleXL under. He emailed me a copy of the MoU.

Stacy Kilgore

A little time passes. I’m still trying to sort this out, and Marc says I should talk to the new CFO, Stacy Kilgore, who I’m told is willing to work things out. So we talk on the phone, and I patiently explain to him rule-based technology and the history of VacLogic. He is very polite, and listens patiently to my explanation of ARulesXL and it’s role in VacLogic, and the understandings I had with Fred Pytlak. He said he had no idea who Fred was.

I suggested that they should purchase a perpetual license for ARulesXL, so that this issue doesn’t come up each year, and quoted them a figure of $28,000 for it. At which point, this individual who was going to work things out, said “that will never happen.” Now here’s what you can’t capture in a text medium, such as this one. It was how he delivered that. He scoffed as he said it.

I asked why? He said the MoU. I said “BULL SHIT!” (I hope that captures my emotion.) He was offended that I lost my temper.

40+ Years of Good Faith Business

I have never in my 40+ years in the commercial software business been treated with such scorn and disrespect. By people who I had absolutely no history with, who were meeting me for the first time, and who were profiting from my software through a past relationship with the founders of the company.

In those 40+ years (I moved from aerospace into commercial software in 1979) I’ve worked for big companies and small, dealt with customers big and small, and been involved in all aspects of the business.

I have never, in those 40+ years, ever had a hostile relationship with a customer. There were issues, negotiations, etc., but always handled in good-faith, and always in mutually satisfactory ways. Such as my dealing with Fred and Edna Pytlak, and the low prices I charged them which reflected the environment I met them in, which was running a start-up from their kitchen table in Brooklyn.

I think it’s the contrast between the relationship I had with the founders, and the new Pamlico era management that is so bothersome to me. I’ve had absolutely no experience with such a hostile business environment, and I must admit, as these blog posts might indicate, I’m struggling with it.

I did try one last time to make a reasonable offer in that meeting.

My Last Offer

There was more to that meeting. Greg Anderson said there were some issues with VacLogic. The maintenance was still done on Windows 7, and it was taking two seconds to display results on customer machines. Valid concerns.

I’m pretty sure I knew where the delay was coming from, and how to fix it. I also thought it would be easy to migrate to Windows 10. So here was my last offer to them. I would help them migrate to an Open Source version of the software, migrate it to Windows 10, and look at the two second delay. All they had to do was pay the $7,000 one year license fee for one last year.

They told me, I’m paraphrasing here, to fuck off. That the MoU meant they didn’t have to pay me anything.

The Lawsuit

So now I’m suing, working through lawyers instead of talking directly to them. I’m asking for disgorgement (I didn’t know that was a word) of profits made distributing my software for profit without a license (a violation of Federal copyright law), and for them to stop using ARulesXL without a license.

We’ve each now spent (I’m guessing maybe more for them) around $100,000+ on the lawsuit, with no end in sight. See the Trump-like strategy they’re pursuing.

VacLogic Lawsuit

Trump-like Legal Strategy

This lawsuit has been quite an education for me. I’ve heard that Trump’s standard business strategy was to stiff his subcontractors, and then, when they sued, bury them in legal costs. I now find myself in exactly that scenario going up against the new management of Office Practicum, with its backing of the $3+ billion dollar investment company, Pamlico.

I am the individual who wrote the immunization module, VacLogic, that set them apart from other pediatric practice vendors. It is built on top of my software tool, ARulesXL, which is used to make updates to VacLogic as new vaccines, such as Covid-19, appear, and which is used to distribute VacLogic to their pediatric practice customers.

Step one of the Trump strategy: stiff the subcontractor. That’s what they did. They informed me that, despite paying an annual license fee for ARulesXL for the past ten years, they would no longer pay that annual license fee. That would be OK, except they also informed me that they would continue to use it.

Predictably, I sued, asking to be compensated for the months they distributed my software without a license, and for the court to issue an injunction forcing them to stop distributing it.

Step two: bury them in legal costs. They countered with a variety of irrelevant arguments that are also right out of the Trump playbook.

The arguments repeat a big lie, over and over, saying that a 2003 Memorandum of Understanding, that has absolutely nothing to do with ARulesXL, is a license for them to use the software forever, without paying.

Change of Venue

But they also made sure none of those arguments will get heard anytime soon because they moved for a change of venue.

My daughter went to law school, and she told me one of the situations they studied was the hypothetical case where your client gets a DUI, and he was drunk as a skunk when it happened. Step one — move for a change of venue.

It is amazing how much it is costing in legal fees to deal with the change of venue motion, and how it delays the court proceedings so that the judge doesn’t rule on the injunction and they merrily continue to use and profit from my software.

I would recommend anyone studying at the Trump school of law study this case.

A Small Example

Let me give you a little blow-by-blow up to this point, showing exactly how they work on gumming up the works.

The judge decides to rule on venue, before looking at anything else. That makes sense. To that end he gives us a couple of months to gather documents from them that demonstrate they can be sued in Massachusetts.

OK, so we start that process, issuing interrogatories to that effect. There is a court ordered deadline for them to produce the documents.

But they don’t produce any. Instead, on the last day of the deadline, they come up with a list of objections as to why they won’t answer any of the requests for documents.

Let me bore you with the incredible details of this procedure. Its mind-boggling in its absurdity, and yet, awesome in its effectiveness of making it impractical for an individual to get justice in a court of law against a well funded company.

The objections are all legalese boiler plate. Some are objections to definitions of words. For example, since the judge asked us to gather information, we asked them to “identify” customers in Massachusetts. Simple? No.

They objected to the word “identify.” Now, understand, that my lawyer had already actually defined “identify.” Here was our definition:

9. The terms “identify,” “identity,” and “identification” with respect to a person that is not an individual mean to state its: full name, legal form, date of organization, state of incorporation or organization or other business or license authority, present or last known address and telephone number, and the identity of its chief executive officer, partners, owners, or persons in equivalent positions.

Here was their objection (and the same as all their other objections):

Connexin’s Objection to Definition #9:

Defendant objects to this definition as it is broader than that allowed by Local Rule 26.5. Defendant further objects on the grounds that it is overly broad, vague, ambiguous, lacking in specificity, confusing, calls for legal conclusions, asserts further terms that are not readily defined, and render the interrogatories and/or document requests in which it is used overly broad, confusing, ambiguous, and lacking in specificity. Defendant further objects to the definition to the extent it seeks to impose an obligation on Defendant to provide information or documents that are not within Defendant’s possession, custody and/or control. Defendant further objects to the extent the definition purports to seek information and/or documents that are protected by the attorney-client privilege, work product doctrine or any other applicable privilege. Defendant also objects to this definition to the extent it seeks the production of irrelevant information and/or documents and/or information and documents not proportional to the needs of the case. Defendant objects to the definition to the extent it impermissibly attempts to alter the plain meaning of the interrogatories and/or document requests in which it is used and impose duties not required under the Federal Rules of Civil Procedure, the Local Rules for the District of Massachusetts, any applicable Standing Orders or Court Orders, and/or any other applicable rules and/or law.

My lawyer had to answer this, explain why it was absurd, and justify our definition and ask them to agree to it. Time and expense incurred.

They likewise filed the exact same boiler plate objection about the terms:

defendant
AmziLogic, LLC (are they kidding? it’s the name of my company defined as such)
concerning
communication
date
describe
document
identify (in two other contexts than the one above)
person
relationship
reseller
customer

And then they object to each interrogatory, such as “identify your customers” with different boiler plate, complaining, among other things, that “your” is not clearly defined.

They stopped paying license fees on July 1, 2021, and now, over a year later my lawyer is busy responding to all this minutia, running up my legal bills, just to answer the question of venue. Meanwhile, Connexin continued to distribute and profit from the sale of my software between July 2021 and June 2022.

Litigation Funding

What’s amazing is that this scenario, of a large company effectively stealing intellectual property from a small entity, and burying it in legal costs when they sue, is so common that an entire field of investment has grown up around it.

It’s called litigation funding. There are so many of these cases that could easily be won, if the plaintiff had enough money, that there are companies that have now sprung up who invest in exactly this sort of suit. They provide the funding for the lawsuit in exchange for a good payout if there is a favorable outcome.

VacLogic Lawsuit

Covid-19 and Anger

Various healers through the ages have looked at the links between underlying emotions, or maybe Karma, or maybe God, and the trials people suffer.

It’s in the Old Testament, Eastern religions, 1800s authors (See the Scarlet Letter or Moby Dick) etc. I don’t want to make a case for or against the idea here, but rather, just for a moment, look at what seems a Twilight Zone moment happening right now.

One aspect of the idea is that symptoms of a disease express the emotions underlying the disease. I’ve heard of a number of these links but the one that rattles around in my head is this:

Anger manifests itself as a cough.

And here is Covid-19 spreading through the world, and all the news for the years leading up to that have been about how angry and divided people are. In this country, but in the world as well.

Populist leaders rising to power riding the anger of people who feel they have been ignored and betrayed by those traditionally in power.

And then a backlash of anger from those who hate the populist, often authoritarian, leaders.

Judging by my FaceBook feed, there are a lot of people just boiling over with anger at Trump. Who continues to be popular amongst all those who are furious at the liberals ruining our country with their hypocritical self-serving policies.

Maybe Anger is the Pandemic, and Covid-19 the symptom. Maybe, yes we need to wash our hands, but also, maybe start to try to figure out how to dial back the divisive anger pervading our country and the world as well.