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June 17, 2009

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"How often has he appeared here?"

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

From Antony Cooke:

Would [it] also be OK if Levine were to choose to shut down the blog? I wouldn't blame him if he did.

I wouldn't, either. That said, Robert provides a very valuable service in trying to inform a broader membership about the inner workings of the AFM - for too long known only by far too few. "Knowledge is power."

RL: "And it doesn't strike you as the least bit odd that the president of an international labor union spends his time responding, in great detail, and to all those who vote for him, to blog posts?"

Under the circumstances, no. First, he doesn't spend a lot of time doing it. How often has he appeared here? Second, the cyber age has made blogs into significant vehicles of communication and information -- they are more relevant than ever.

RL: "And why should a another non-lawyer's analysis that the case was "doomed from the start" count for anything? Tom has a political interest in making this lawsuit appear "baseless."

I'm not sure what you mean but that statement was verbatim Tom's opinion. Does he have a political interest? Of course he does.

The two sides of this are dug in. It seems all the arguments have been made. There can only be a few options remaining. Further litigation is one. What happens when the appeal fails, which seems likely? Another option is an evolutionary reformation and resolution over time, which I advocate. Another is the RMA leaving the AFM which would ultimately hurt the current RMA position more than the AFM I believe

From a legal site:

The purpose and effect of the words without prejudice in a judgment, order, or decree dismissing a suit are to prohibit the defendant from using the doctrine of res judicata in any later action by the same plaintiff on the subject matter. The doctrine of res judicata (from the Latin, "a thing decided") is based on the importance of finality in the law. If a court decides a case, the subject of that case is firmly and finally decided between the persons involved in the suit, so no new lawsuit on the same subject may be brought by the persons involved. Therefore, the words without prejudice protect the plaintiff from a defendant's res judicata defense.

A court may also enter judgment with prejudice, however. This signifies that the court has made an adjudication on the merits of the case and a final disposition, barring the plaintiff from bringing a new lawsuit based on the same subject. If a new lawsuit is brought, a defendant can properly invoke res judicata as a defense, because a court will not relitigate a matter that has been fully heard before. Often a court will enter a judgment with prejudice if the plaintiff has shown bad faith, misled the court, or persisted in filing frivolous lawsuits.

The judgment of 'with prejudice' in this case would seem to indicate the plaintiffs will be required to bring new material to the court or make a compelling case as to how and why the case was wrongly decided, putting the blame for the wrongful decision not on what was adjudicated but on the court itself. That will not be easy.

I would think that a true leader would want to unite his people instead of continuing on a political purge , that by my count, has been going on for six years. At some point they will hit a wall.

You can parse these words but if a case is "doomed from the start" as he asserts baseless is not an unreasonable characterization.

And why should a another non-lawyer's analysis that the case was "doomed from the start" count for anything? Tom has a political interest in making this lawsuit appear "baseless." To put it simply, it's to defend himself against criticism for promulgating the underlying agreements against the will of those who work in the relevant field. So of course he will try to conflate winning the lawsuit with his being correct on the underlying issues.

...but the court found against the plaintiffs with prejudice. That means something.

My understanding is that "with prejudice" is a legal term of art meaning that the suit can't be re-filed, and nothing more. Perhaps a real lawyer could weigh in and enlighten us layfolk.

RL: "But does the AFM have an obligation to respond to criticism, by its members (of which you aren't one), of its officers? I don't think so."

Obligation maybe, maybe not but why shouldn't he? These are not trivial matters.

And it doesn't strike you as the least bit odd that the president of an international labor union spends his time responding, in great detail, and to all those who vote for him, to blog posts?

Propaganda professionals excel at changing the subject, and trying to set a new agenda.

Lee doesn't respond to the failure of his adventures in Videogames, won't respond to the degree to which AFM Videogame scoring has nosedived, won't respond to the ways in which his administration's efforts to undermine musician protections in this field have harmed players in other areas. Never mind that jingles wages and sessions have sunk to historic lows as well, just as we warned.

He has not responded to the call from working musicians across the continent for simple democracy; the right to vote on their contracts.

He plays a shell game; change the subject. Let's all talk about how Robert Levine characterized a lawsuit. Now that's really important! (Sorry, Robert..)

The right to vote on our contracts is at the heart of the Parmeter lawsuit. Like it or not, the drive for basic rights doesn't just go away. That is why an appeal is now before the U.S. Ninth Circuit Court of Appeals - despite Lee's words, the legal case is not over.

And what will never end is the determination of working musicians to have a real say about their own workplace, and their own contracts.

You know, the issue here is not about Robert Levine, who has provided this forum for members to air their opinions and ideas. However, those who seem unwilling to face what is really going on in the AFM would rather divert attention away from it, and instead demonize this good man. They see nothing incongruous in biting the hand that feeds them - or perhaps better said, pays and works for this space from his own pocket and time. Would also be OK if Levine were to choose to shut down the blog? I wouldn't blame him if he did.

RL: "But does the AFM have an obligation to respond to criticism, by its members (of which you aren't one), of its officers? I don't think so."

Obligation maybe, maybe not but why shouldn't he? These are not trivial matters.

RL: "What I understand is that there's a difference between "baseless" and "didn't meet a legal standard." Is the losing side of every court proceeding making a "baseless" argument by definition? Is every losing side of a Supreme Court decision making a "baseless" argument? I don't think so."

Tom wrote: "And because the AFM’s interpretation “was not patently unreasonable,” the plaintiffs’ case was doomed from the start; or, put another way, baseless."

You can parse these words but if a case is "doomed from the start" as he asserts baseless is not an unreasonable characterization.

RL: "The intent of calling the lawsuit "baseless" was to imply that it had no merit at all and was frivolous. That's most certainly not what the court found."

I don't know if that was the intent, but the court found against the plaintiffs with prejudice. That means something.

RL: "And, as the history of legal decisions demonstrates, such decisions are not based on morality or even right and wrong."

I don't think history in demonstrates that at all. Decisions are based on facts and law.

RL: "Most AFM presidents have not communicated with local officers on official time and using AFM resources simply and solely to rebut critics of their performance."

Maybe most AFM haven't had to, and haven't faced this kind of assault. Anyway he's President and certainly has the authority to use a certain amount of discretion.

RL: "If it had "much point," then why did the court even bother to entertain it to the extent of escrowing lots and lots of money?"

I don't know but I suspect escrow doesn't deviate from standard operating procedure in matters of this nature.

RL: "Yup; democracy is very dangerous for unions, as is labor law - especially ones that behave badly towards their members."

So far democracy and labor law have inured to the benefit of the AFM not the RMA, making it appear more dangerous to the RMA. And it continues to be more dangerous to the RMA which is why the RMA has to centralize and consolidate power - also undemocratically if it must - or lose. And losing looks like what is going to happen. The longer this goes on the higher the likelihood the RMA will also lose whatever popular support it may enjoy at the moment.

What makes you think Tom is "obsessed" with what you write?

Because he keeps sending emails to every Local officer about everything I write about him?

And it's further crazy; he is being pulled away from other work because he has a duty to defend the AFM against attack, legal or otherwise.

There's a difference between an attack on the AFM and criticism of the AFM president. Obviously the AFM has an obligation to defend itself against legal actions (although it also has an obligation not to act in ways that are likely to get it sued in the first place). But does the AFM have an obligation to respond to criticism, by its members (of which you aren't one), of its officers? I don't think so.

It was baseless because it could not meet a legal standard. That's how it works Robert. Courts use different standards (of proof) in determining different kinds of issues. A legal action must meet the requisite standard or it dies. I'm sure you must understand that.

What I understand is that there's a difference between "baseless" and "didn't meet a legal standard." Is the losing side of every court proceeding making a "baseless" argument by definition? Is every losing side of a Supreme Court decision making a "baseless" argument? I don't think so.

The intent of calling the lawsuit "baseless" was to imply that it had no merit at all and was frivolous. That's most certainly not what the court found.

Legal decisions are (thankfully) not based on subjective good guy/bad guy standards.

And, as the history of legal decisions demonstrates, such decisions are not based on morality or even right and wrong. That may be a good thing or not. But Tom is using the court's decision to paint the opposition's position as wrong. The decision simply doesn't support that interpretation.

Robert continues: "To send a letter like this to all Local officers seems more likely to raise doubts about Tom’s temperament and give what I wrote more credibility than it does to put this issue to bed."

Nonsense. He's President of the AFM and communicates with AFM officers.

Most AFM presidents have not communicated with local officers on official time and using AFM resources simply and solely to rebut critics of their performance.

You seem to be attempting to superimpose a level of subjective morality that should somehow influence the court in applying the law. This case didn't seem to have much going for it from the beginning and that was Tom's point. And he's right.

If it had "much point," then why did the court even bother to entertain it to the extent of escrowing lots and lots of money? Is that something that courts do on a whim? If I sued the AFM alleging that they were stealing my money, would that automatically lead to the court escrowing all AFM dues from members? Or even mine?

It seems to me that sometimes unions have to protect their members from themselves. The union in this case also has to protect itself and the rest of the rank-and-file from an internal insurgency.

Yup; democracy is very dangerous for unions, as is labor law - especially ones that behave badly towards their members.

Whoa. For a man without "a lot of energy or time to deal with Tom’s email at the moment", that was quite a retort. Robert, me thinks the gentleman doth protest too much...

We all have our hobbies; writing is mine. That doesn't mean I want to spend the time re-reading the legal opinion to be able to respond to Tom point-by-point.

Robert writes: "wondering why Tom appears obsessed with what I write. And I can’t be the only AFM member wondering why Tom isn’t spending his time doing real union work –"

That is crazy. What makes you think Tom is "obsessed" with what you write?
And it's further crazy; he is being pulled away from other work because he has a duty to defend the AFM against attack, legal or otherwise.

Levine goes on: "In other words, the suit was baseless because... they lost."

No. It was baseless because it could not meet a legal standard. That's how it works Robert. Courts use different standards (of proof) in determining different kinds of issues. A legal action must meet the requisite standard or it dies. I'm sure you must understand that.

Levine continues: "Tom isn’t a lawyer either, or he would know that the good guys don’t always win or the bad guys always lose in court or anywhere else."

One needn't be a lawyer to know that. Relevance? Legal decisions are (thankfully) not based on subjective good guy/bad guy standards.

Robert continues: "To send a letter like this to all Local officers seems more likely to raise doubts about Tom’s temperament and give what I wrote more credibility than it does to put this issue to bed."

Nonsense. He's President of the AFM and communicates with AFM officers.

Levine continues: "Winning or losing doesn’t necessarily prove much beyond that one side won or lost."

Again, relevance? Winning or losing demonstrates whether or not the court determined the action met the legal standard required to prevail. That's it. You seem to be attempting to superimpose a level of subjective morality that should somehow influence the court in applying the law. This case didn't seem to have much going for it from the beginning and that was Tom's point. And he's right.

It seems to me that sometimes unions have to protect their members from themselves. The union in this case also has to protect itself and the rest of the rank-and-file from an internal insurgency. How far will the RMA take this? Has it no sense of restraint? Has it no shame?

Whoa. For a man without "a lot of energy or time to deal with Tom’s email at the moment", that was quite a retort. Robert, me thinks the gentleman doth protest too much...

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