A Defendant’s Ordeal for Plaintiff’s Fraudulent Suit

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戴晨方律師

戴律师的主要服务范围包括公司法、商法,劳工法、和民事商业纠纷诉讼。她专长于公 司建立、起草合同和章程、商业租赁、公司收购和各种常见的劳工法法律问题。她也代理客户在麻州的州立和联邦法庭的诉讼案件,以及仲裁。她 代理的案件有违反合同、欺诈、盗用商业机密、非竞业限制、非法解雇、拖欠工资和加班费等。戴律师代理的公司有各行各业的,包括语言服务、 医疗行业服务、医疗器械、海产、文化交流、夏令营公司、移民顾问、网上服务、医学研究等。

戴律师出生于中国上海,荣获上海大学英语文学学士学位,加拿大卡尔加里大学工商硕 士管理学位,波士顿SUFFOLK大学法学院法学博士学位。

戴律师曾在中国元达律师事务所处理国际商法、公司法和反垄断法事宜。她曾协助麻州 最高法院法官Fernande R.V. Duffly审判民事和刑事案件,也为麻州著名商业投资银行Brown Brothers Harriman撰写投资法律法规报告。戴律师曾为法国最大的上市工程咨询公司ALTRAN审阅和草拟各类商业合同和承办其他公司法法律事宜。

在迁往加拿大之前,戴律师在中国可口可乐公司管理和协调全国商标侵权系统的运作, 并参与可口可乐公司总部和中国合作伙伴的磋商谈判,这个磋商导致在中国成立六个可口可乐装瓶公司。在进入法学院之前,戴律师在加拿大和美 国积累了丰富的中小型企业商业咨询经验,包括撰写商业计划、市场调查、营运咨询、策略咨询、商业谈判、财务预算等。

戴律师持有麻州和纽约州执照。她也同时持有麻州联邦地区法院执照。美国亚裔律师协 会麻州分会和波士顿律师协会会员。

戴律师业余时间积极为波士顿义务律师协会(Volunteer Lawyers Project)的低收入客户提供免费的失业福利听审代理。她也积极参与新英格兰中国信息网络协会(NECINA)的市场推广、赞助筹款和活动策划工作。

戴律师用业余时间陪伴她两个精力充沛过人的孩子,以及跑步、做Pilate、滑雪、阅读杂志和旅行。

戴律师经常进行商业法和商业规划方面的演讲。最近几次的演讲是:

  • 了解您的劳工权利(清华校友会,2013年5月)
  • 如何进行商业规划(新英格兰中国信息 网络协会,创业家培训班,2014年1月)
  • 商业规划(麻省理工中国创新与创业论 坛,2014年5 月)
Website: https://www.lionslawgroup.com/ 万家网商家黄页: http://yp.wanjiaweb.com/cn/content/lions-law-pc
Author: 戴晨方律師
Date: 
2021-10-16

On a hot summer day in August, my office phone rang. The president of a telecommunication business based in California asked for help.  The company was named a defendant for a breach of contract case in a superior court in Boston. The client had never heard of the plaintiff or never operated in the plaintiff’s types of business, nor has it done any business with plaintiff or signed this contract. The plaintiff claimed for a half million damage. It was obviously a contract fraud. Out of caution, the client immediately filed a claim for identity theft with a federal government agency governing the industry.

The plaintiff appeared to be a large offshore corporation with a Boston office. It was represented by a big law firm. The client brought to the attention of the plaintiff’s counsel that his signature on the contract was forged, and he never used the email address provided on electronic signature for this contract. The plaintiff counsel told the client to provide evidence to support his position and asked client “do not worry about answer the complaint on time.”

In Massachusetts, a defendant has 21 days to answer the complaint after being served. If it fails to do so, plaintiff can ask the court to enter a default judgment against the defendant, which is the remedy plaintiff asks for. The defendant then loses his day in the court and the opportunity to defend. Relying on plaintiff counsel’s statement, our client did not answer the complaint, and instead, continued persuading the plaintiff to dismiss the case. In about three months, the plaintiff counsel filed a motion requesting the court to enter default judgment against client, without referencing any of their communications or disclosing to the court that she advised our client not to worry about filing a timely answer. Our client then freaked out and called for my professional assistance.

The contract our client was sued on comes with an Adobe e-sign report. The structure and contents of the contract appears to be very sloppy. First, the entire format is strange. It is not a conventional Word converted PDF file, but it appears some parts were cut, copied and put together. Second, the words throughout the contract are in drastically varied fonts, styles and sizes. Not to mention that our client never used the e-mail address shown on the contract, and his alleged signature was in no way close to his real signature.

Our imminent goal is to prevent the court from issuing the default judgment. We immediately filed an answer to the complaint, which successfully kept the default judgment being entered. This entire case is a fraud and should not have been filed with the court. Our next goal is to persuade or pressure the plaintiff to voluntarily dismiss the case. This is the most cost-effective approach to end the case. Or we will have to file a motion to dismiss, which takes tremendous effort and costs client more money. 

On the other side, we were deeply disturbed by the plaintiff counsel’s bad faith act. She misled our client to believe that not answering the complaint on time had no consequence. However, our client should not have relied upon an opposing counsel’s ill-intentioned advice. Should our client had engaged lawyer earlier, it would not have led to the plaintiff’s asking the court to issue default judgment. The Plaintiff counsel is on the opposite side working for the best interest of her client. We are particularly concerned about why she failed to recognize the apparent defects in the contract and probe on her client about more facts surrounding this transaction in question, or she chose to turn blind eyes on it. Under either circumstance we consider it incompetent legal representation, or more seriously, a breach of a lawyers’ professional rules by acting with gross negligence to seemingly unlawful activities.    

We conversed with the plaintiff counsel further demanding the dismissal. We provided a thorough list of reasons to support our position. Our client would be willing to certify that it had never engaged in the types of business set forth in the contract. Observing the plaintiff counsel being arrogant and dismissive, we attempted to turn her attention to moral and professional ethical standard. She kept on asking for a proof from the government agency with which our client filed a complaint for identity theft. She deemed this complaint as our best defense for being wrongfully accused. We deemed it as an excuse for not let our client go.

Meanwhile, we consulted with a document forensic company (https://dataminediscovery.com/), whose professional advice has become the most powerful tool for a “fatal strike” on the plaintiff. We obtained from the plaintiff the original e-signed contract. After further examination, the forensic expert advised that our client’s signature is a photocopy scanned onto the contract, not an electronic signature signed through AdobeSign. We were further instructed to ask for access to the AdobeSign transaction audit report for this fake contract. Only the plaintiff can grant the access. The forensic expert told us the plaintiff would not be able to provide such a report should the contract was not actually signed through AdobeSign. As predicted, the plaintiff counsel did not respond to our request for a week, and immediately followed was their dismissal notice.  

This ordeal lasted for about seven months from the date our client was served the complaint. Our office used two months to fight to achieve the ultimate justice for our client.  When one is accused through a fraudulent scheme, it can be frustrating. Knowing what the right legal tools are and how to use them is instrumental to one’s vindication.

更多作者信息: http://yp.wanjiaweb.com/cn/content/lions-law-pc
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