Robert Novak v. APD List Members
(PetsWarehouse Lawsuit)
Stipulation of Settlement and Dismissal with Prejudice
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HILARY B. MILLER (HM4041) IN THE UNITED STATES DISTRICT COURT
STIPULATION OF SETTLEMENT AND DISMISSAL WITH PREJUDICE WHEREAS, plaintiff commenced this action on May 30, 2001; and WHEREAS, plaintiff and Settling Defendants desire by this Stipulation of Settle-ment and Dismissal with Prejudice, fully, finally and forever, to resolve, discharge and settle all claims of any nature arising between or among them prior to the date hereof, upon and subject to the terms and conditions hereof; and WHEREAS, each of the parties hereto has considered the benefits to him or her that will be received as a result of this settlement, and the potential benefits, costs, uncertainties, and risks of further litigating this matter, and has concluded that this settlement is fair, reasonable, adequate, and in the best interest of each of the parties, subject to the terms and conditions set forth herein; and WHEREAS, no party is an infant or incompetent; NOW, THEREFORE, in consideration of the premises and of the mutual promises herein contained, the parties hereto do hereby agree that all claims, counter-claims and cross-claims of the parties that were or could have been asserted herein be, and the same hereby are, settled, compromised, dismissed and discontinued with prejudice and without costs, counsel fees or sanctions to any settling party, upon and subject to the terms and conditions of this Stipulation, as follows: 1. Certain Definitions. For purposes of this Stipulation of Settlement, certain capitalized terms having the meanings ascribed to them in this Section 1: 1.1. “Banner Ad” means an Internet web banner advertisement with respect to Petswarehouse.com to be supplied by plaintiff that is no more than 468x60 pixels in size that complies with industry standards and with no more than 12,500 bytes of content, including a clickable link solely to an Internet web site maintained by plaintiff. The Banner Ad shall refer to the sale of pets and pet supplies sold by the petswarehouse.com web site and shall not refer to this litigation, to the claims asserted herein, or to any of the Settling Defendants. 1.2. “Posting Guidelines” means that there shall be a factual basis for any statement of fact made by the parties to this Stipulation in any Internet-based bulletin board, chat room or other posting system. 1.3. “Joint Statement” means the following text: Robert Novak d/b/a Petswarehouse.com, R. Daniel Resler, Jared Weinberger, Sean Carney, Mark Barnett and JoAnn VanDersarl have settled all claims asserted in a lawsuit filed in the United States District Court for the Eastern Dis-trict of New York entitled Novak v. Active Window Productions, Inc. et al., Docket No. 01 Civ. 3566 (DRH), on terms that are mutually acceptable to the parties and without the admission of liability by any of the settling defendants. 1.4. “Settling Defendants” means named defendants R. Daniel Resler (sued herein as “Dan Resler”), Jared Weinberger and Sean Carney, and proposed defendants Mark Barnett and JoAnn VanDersarl. 2. Agreement to Joint Statement. Each of the parties hereby adopts the Joint Statement and agrees that the same may be publicized in any medium by plaintiff or by any other party to this Stipulation. 3. Removal of Posts by Settling Defendants. Each of the Settling Defendants who has heretofore posted, on any Internet-based bulletin board, chat room, message group or similar medium, any publicly available message concerning or referring to plaintiff (each such message is hereinafter referred to as a “Defendant Post”), shall use his or her respective reasonable efforts to cause the Defendant Posts made by him or her respectively to be removed or deleted. Notwithstanding the foregoing, the following terms shall apply to such Defendant Posts: (a) no Defendant Post shall be required to be removed, deleted or hidden from public view unless the same is posted in a medium which permits the respective Settling Defendant to remove his or her own Defendant Posts and such removal is practical and possible; (b) the sole liability of any Settling Defendant for failure to remove any Defendant Post which is required to be removed hereunder shall be an injunction requiring such removal by the respective Settling Defendant, and no such Settling Defendant shall under any circumstances be liable to plaintiff or to any person claiming under plaintiff for damages, costs or any other monetary award; and (c) no Settling Defendant shall be required to expend any money or to commence any action or proceeding in order to comply with the provisions of this paragraph. If the respective Settling Defendant is unable to obtain such removal of Defendant Posts, plaintiff may act on his or her behalf to obtain such removal. 4. Removal of Posts by Plaintiff. Plaintiff (including plaintiff’s employees and agents) has heretofore posted, on various Internet-based bulletin boards, chat rooms, message groups and similar media, publicly available messages concerning or referring to certain of the Settling Defendants (each such message is hereinafter referred to as a “Plaintiff Post”). Plaintiff shall use his reasonable efforts to cause the Plaintiff Posts to be removed, deleted or otherwise hidden from public view. Notwithstanding the foregoing, the following terms shall apply to such Plaintiff Posts: (a) no Plaintiff Post shall be required to be removed, deleted or hidden from public view unless the same is posted in a medium which permits plaintiff or his agents or employees to remove his or her own Plaintiff Posts and such removal is practical and possible; (b) the sole liability of plaintiff for failure to remove any Plaintiff Post which is required to be removed hereunder shall be an injunction requiring such removal by plaintiff, and plaintiff shall not under any circumstances be liable to any Settling Defendant or to any person claiming under any Settling Defendant for damages, costs or any other monetary award; and (c) plaintiff shall not be required to expend any money or to commence any action or proceeding in order to comply with the provisions of this paragraph. If plaintiff is unable to obtain such re-moval of Plaintiff Posts, the respective Settling Defendant may act on his behalf to obtain such removal. 5. Settlement by Barnett. Proposed defendant Mark Barnett, severally, shall hereafter: (a) cause a Banner Ad to be displayed, at each of the following web sites maintained by him: FishLinkCentral.com, AquaBid.com, FishForums.com, AquaRank.com, FishLinkExchange.com, AquaBoards.com and AquaChat.com, for 120 days, in substantially the same manner in which a former advertisement was displayed for the defense fund for this action; and (b) implement a Posting Guidelines System at any web site main-tained by him that permits third-party posting. 6. Settlement by Resler. Defendant R. Daniel Resler, severally, shall pay plaintiff the sum of $4,150 on or before the thirtieth day following execution of this Stipulation by all parties. 7. Settlement by VanDersarl. Proposed defendant JoAnn VanDersarl, severally, shall, not later than the thirtieth day following execution of this Stipulation by all parties, execute, acknowledge and deliver to plaintiff documents sufficient to transfer to plaintiff all of her right, title and interest in and to the domain name plantedtank.com. 8. Settlement by Weinberger. Defendant Jared Weinberger, severally, shall hereafter: (a) cause a Banner Ad to be displayed at his web site for 145 days; and (b) reinstate a link from his web site to plaintiff’s site in form and substance similar to those maintained for other similar vendors for not less than the same time period. 9. Liability of Defendants. The respective liability of each of the Settling Defendants hereunder shall be several and not joint. Under no circumstance shall any of the Settling Defendants be liable for any act or omission of any other Settling Defendant committed or omitted at any time. 10. Limitation of Liability re Posting Guidelines and System. No party who adopts the Posting Guidelines System shall have any liability to any other party for fail-ure to enforce such Posting Guidelines System, nor shall any such party be required to edit, censor, restrict or limit any content posted by any third party on any Internet web site or facility. The performance on any one or more occasions of any act which is stated not to be required under the preceding sentence shall not under any circumstances give rise to any obligation to perform such act on any other occasion. It is expressly under-stood and agreed that the Posting Guidelines and Posting Guidelines System are for the sole and exclusive benefit of plaintiff, and no provisions of this Stipulation with respect thereto shall inure to the benefit of any third party. 11. Exhaustion of defense fund. The Settling Defendants severally represent and warrant to plaintiff that the defense fund previously raised by them and others in re-spect of this matter has been substantially exhausted with respect to the Settling Defendants as of the date of this Stipulation. 12. Warranties of the parties. Each party severally represents and warrants to the other parties that he or it, as the case may be, has the right, power and authority to enter into this Stipulation and that this Stipulation does not and will not with the lapse of time violate, contravene or result in a breach of any certificate, contract or agreement to which such party is a party. 13. Release by plaintiff. Save and except for Settling Defendants’ obligations arising under this Stipulation, plaintiff (individually and on behalf of any corporation or other entity of which he is an officer, director, agent, member, partner or controlling stockholder) does hereby remise, release, acquit and forever discharge each of Settling Defendants and their respective affiliates, agents and insurers, and the respective officers, directors, attorneys and stockholders of each of the foregoing, from all manner of action, causes of action, suits, claims or demands in law or in equity which plaintiff has had, now has, or may hereafter have, known or unknown, choate or inchoate, against any of such released parties, from the beginning of the world to the day of the date of this Stipulation, including without limitation all claims that were or could have been asserted in this action. 14. Release by Settling Defendants. Save and except for plaintiff’s obligations arising under this Stipulation, Settling Defendants (individually and on behalf of any corporation or other entity of which any of them is an officer, director, agent, member, partner or controlling stockholder) do hereby remise, release, acquit and forever discharge plaintiff, his agents and insurers and the respective officers, directors, agents, attorneys and stockholders of each of the foregoing, from all manner of action, causes of action, suits, claims or demands in law or in equity which Settling Defendants or either of them has had, now has, or may hereafter have, known or unknown, choate or inchoate, against any of such released parties, from the beginning of the world to the day of the date of this Stipulation, including without limitation all counterclaims, cross-claims and third-party claims that were or could have been asserted in this action. 15. Covenant not to sue. Each party (individually, derivatively and representatively) agrees not to sue or initiate any proceedings against any other party released hereby with respect to any of the claims released pursuant to this Stipulation, and each party agrees to indemnify each other party released hereby against all damages and expenses (including reasonable attorneys’ fees and other litigation expenses) incurred by any released parties in the defense of any such lawsuit or proceeding. Plaintiff shall cause to be discontinued all investigations and proceedings before any other tribunal or government agency (including without limitation with the Federal Bureau of Investigation) with respect to the allegations of the complaint or any other matter against any of the Settling Defendants and shall indemnify the Settling Defendants against all damages and expenses (including reasonable attorneys’ fees and other litigation expenses) incurred by any Settling Defendant in the defense or resolution of any such investigation or proceeding. 16. No admission of liability. Settling Defendants have vigorously denied and continue vigorously to deny, inter alia, the allegations of the complaint and proposed amended complaint that plaintiff has suffered any actionable harm. Neither this Stipulation nor any document referred to herein, nor any action taken to carry out this Stipulation is, may be construed as, or may be used as evidence of, an admission or concession on the part of any of Settling Defendants with respect to any claims, potential claims or of any fault or liability or wrongdoing or damage whatsoever, or any infirmity in the defenses that Settling Defendants have asserted or intended to assert in this litigation. Moreover, there has been no determination by any court, administrative agency or other tribunal as to the factual allegations made against Settling Defendants. Nonetheless, Settling Defendants wish to settle and compromise the litigation to avoid further substantial expense and the inconvenience and distraction of protracted and burdensome litigation. Settling Defendants also have taken into account the uncertainty and risks inherent in any litigation, especially in complex cases like this litigation. Plaintiff agrees to accept the payments and performances set forth in this Stipulation, subject to the terms and conditions hereof, in full settlement of his claims. The payments and other performances to be made by the Settling Defendants are solely in com-promise of disputed claims and shall not constitute an admission of liability. 17. Counsel. In connection with the negotiation and execution of this Stipula-tion, each of the parties other than plaintiff has had the benefit of the advice of independ-ent counsel of his or her own choosing. Plaintiff, although advised to seek independent counsel, has chosen to proceed without benefit of counsel. Plaintiff acknowledges that he has had an opportunity to have this Stipulation reviewed by counsel prior to execution and further acknowledges that he shall have no right to have this Stipulation set aside on the ground that he was not represented by independent counsel in connection with the ne-gotiation and execution hereof. 18. Entire agreement. The parties acknowledge and agree that they are not re-lying on any representations, oral or written, other than those ex-pressly con-tained herein. This Stipulation supersedes all pro-posals, oral or written, all negotia-tions, conversations or dis-cus-sions between the parties and all course of dealing. All prior and contemporaneous agreements between the parties are hereby merged in this Stipulation, which alone constitutes the complete and exclusive understanding between the parties. No party to this Stipulation shall have any duty to take any action or to refrain from taking any action unless the same is expressly set forth in this Stipulation. 19. No release of other proposed defendants. Nothing contained in this Stipulation shall be deemed to release or otherwise compromise any claims of plaintiff against any person not expressly released hereby. 20. No presumption against draftsman. The parties acknowledge that they each participated in drafting this Stipulation, and there shall be no presumption against any party on the ground that such party was responsible for preparing this Stipulation or any part hereof. 21. Further assurances. Each party will, at any time and from time to time, upon the written request of the other, execute, acknowledge and deliver such other instruments, as the case may be, and take such other action as may reasonably be required more effectively to enable each party to enjoy the full benefits of this Stipulation. 22. Expenses. Each of the parties hereto shall pay the fees and expenses of its own respective counsel, accountants, other experts and all other expenses incurred by each party incident to the negotiation, preparation and execution of this Stipulation or any transaction incident hereto or contemplated hereby. 23. No oral modification; waiver. This Stipulation may not be modified or terminated, nor shall any term or condition hereof be waived, except in a writing signed by the par-ty sought to be charged there-with. Failure by any party to insist in any one or more in-stances on strict compliance with the terms, conditions, covenants, representations and warranties contained herein shall not be deemed a waiver. 24. Binding effect. This Stipulation shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, administrators, executors, personal representatives, successors and assigns, but shall not inure to the benefit of any other third party. 25. Severability. In the event that any one or more provisions of this agreement shall be deemed to be illegal or unenforceable, such illegality or unenforceability shall not affect any of the remaining legal and enforceable provisions hereof, which shall be construed as if such illegal or unenforceable provision or provisions had not been inserted. 26. Notices. All notices, requests, demands and other communications hereunder shall be given by hand or mailed, certified or registered mail, with postage pre-paid, or by nationally recognized overnight courier service providing for proof of delivery, to the parties at their respective last known addresses, with copies in like manner to their respective attorneys at the addresses first set forth below, or to such other address as a party may from time to time designate in a notice. 27. No Agency. This is an agreement of settlement. No agency, partnership, joint venture, or other joint relationship is created hereby. 28. Remedies cumulative. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with and nonexclusive of all other remedies at law or in equity. 29. Governing law. This Stipulation and all rights and liabilities of the parties hereto shall be governed by and construed in accordance with the substantive laws of the State of New York and of the United States of America. 30. Disputes. Any controversy or claim arising out of or relating to the subject matter of this Stipulation, or the breach hereof, or relating in any way to the subject mat-ter of this action or in any way arising hereafter between or among the parties hereto or any of them, shall be settled by arbitration by a single arbitrator in accordance with the Commercial Rules and Expedited Procedures then obtaining of the American Arbitration Association (“AAA”), and judgment on the award may be entered in any court having jurisdiction thereof. The location of the arbitration hearing shall be: (a) if the claims are asserted against plaintiff, in Garden City, New York; and (b) if the claims are asserted against any of the Settling Defendants, in the nearest city in which the AAA maintains a regional office to his, her or its respective residence or principal place of business. No claims by or against any of the parties shall be consolidated with claims by or against any other party or non-party so as to defeat the provisions of this Section 30. The award of the arbitrator shall include an award of attorneys’ fees, disbursements, arbitrator compensation and AAA administrative fees to the prevailing party. The arbitrator shall have no power to award punitive or exemplary damages, and all claims to such damages are hereby waived. 31. Counterparts. This Stipulation may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. An electronic facsimile or photocopy of this Stipulation or any signature hereon shall be deemed an original and may be filed or received in evidence in any matter and for any purpose. 32. Careful reading. Each party acknowledges that he or it, as the case may be, has carefully read each of the provisions of this Stipulation and understands the meaning and legal consequences hereof. 33. Entry of Order. This Stipulation may be reduced to an Order of the Court forthwith and without further notice to any party. IN WITNESS WHEREOF, each of the parties hereto has caused this Stipulation to be executed as of the date and year set forth below. Dated: February 27, 2002 ROBERT NOVAK Plaintiff Pro Se 1550 Sunrise Highway Copiague, New York 11726 (631) 789-5400 HILARY B. MILLER (HM-4041) Attorney for Settling Defendants 112 Parsonage Road Greenwich, Connecticut 06830-3942 (203) 399-1320 SO ORDERED: Dated: Central Islip, New York March ____, 2002 DENIS R. HURLEY U.S.D.J. D:\HBM Files\Documents\Novak v. Active Window\Stip of Settlement v6.doc (February 27, 2002 at 08:25:00 Rev. 3) |
For more information about any aspect of this lawsuit, please contact:
John R. Benn, 104 West Third Street, Sheffield, AL 35660
Phone: 256-386-7685 or 256-366-4177 | FAX: 256-386-7615
Email: jbenn@jblaw.org