Friday, May 01, 2009
Blumenthal vs. the Hoffmans
I Cried For A Year
In March, 2009, Mathew Fitzsimmons, an assistant attorney general in Attorney General Dick Blumenthal’s office, found himself peppered by a battery of uncomfortable questions in Judge James Bentivegna’s Superior Court in a case involving Valerie and David Hoffman.
Before Dick Blumenthal’s office fell on her like a ton of bricks, Valerie Hoffman, a small business woman, owned an herbal internet company, and her husband David was a house builder. A small independent contractor, David would buy land, put a house on it, sell the house and use the proceeds to repeat the process. Any monetary interruption in the business chain, he knew, would prove fatal to his livelihood.
Valerie had been cited by the state’s Consumer Protection department on a few complaints, information that made its way to George Gombossy, recently installed at the Hartford Courant as the paper’s consumer protection bulldog. Because of the connections between the Courant and Dick Blumenthal, whose beaming visage often appears in its pages, the attorney general’s office got involved in the complaint.
Valerie was contacted by an official in the Consumer Protection Department. She agreed with a demand from the department to put in her contract an unorthodox specification that anyone seeking a cancellation should have to make their request by certified mail, which later would prove an impediment for complainants.
In a conversation with Consumer Protection, Valerie asserted that she was scrupulously following commonly accepted business policies. However, because she could not afford legal bills, she made a generous offer to refund those she thought were not entitled to refunds. The state had included in their lists customers who had already been provided with refunds. Additionally, the state solicited candidates for refunds from customer lists provided during discovery proceedings, a process for which Blumenthal’s office was rebuked during a legal proceeding in Maine. Through such solicitations and repeat refunds, Blumenthal’s office managed to increase to $45,000 a payment that should have been in the vicinity of $7,000.
Never-the-less, Valerie agreed to pay the sum, a small fortune for her, at which point she was told by Phil Rosario in the attorney general's office that the arrangement could not be consummated because the issue had “become political.” Blumenthal’s office had raised the stakes; he now wanted $600,000, an arrangement Rosario told her was generous -- because she had embarrassed the attorney general.
“I said what?! Aren’t you supposed to be getting consumers refunded and not wasting tax dollars here? Is this possible? Are you really saying what really matters is Blumenthal looking bad in the paper?”
Valerie was about to learn there was a price she would have to pay for ruffling the feathers of the politically ambitious Blumenthal. Presently, the attorney general, a partisan Democrat, is being recruited by prominent members of his party to challenge two wounded Democrat senators, Chris Dodd and Joe Lieberman, who have incurred the wrath of easily provoked progressives.
Thus began for the Hoffman’s the complex litigation process in which the attorney general’s office so excels – an expensive, soul draining, bank account depleting ordeal its victims may reasonably suppose will have on them the same effect as medieval racks and thumbscrews.
Representations, many of which were highly misleading, having been made to a court in an affidavit prepared by Assistant Attorney General Fitzsimmons, Blumenthal’s office was granted, by means of an Ex-Parte Application for Attachment, liens on David Hoffman’s business, as a result of which David’s business activities were fatally frozen. The Hoffmans lost $600,000 on a house in Bethel through an attachment imposed by Blumenthal
“I cried for about a year,” Valerie said.
Distortion, outright fabrication and intimidation are useful techniques for extracting information – and, preferably, a compelled guilty plea – from gang bangers, drug lords and Al Capone types. But these methods usually stop at the courtroom door. Blumenthal’s office employed them expertly on the Hoffmans, and then submitted to a court an affidavit in which Fitzsimmons was the sole affiant. The judge in the case felt compelled to point out to Fitzsimmons that by so doing he would be breaking the rules of professional conduct.
Judges who had a keen appreciation for the niceties of the law and standard litigation processes were not amused by these prosecutorial high jinks.
Blumenthal Stacks the Deck
In a series of court actions that effectively removed Blumenthal’s hobnailed boots from the Hoffman’s throats, courts agreed with the defense that Bumenthal’s office had misrepresented in a sworn affidavit the number of clients harmed by Valerie’s business practices. In his affidavit, Fitzsimmons swore the number was in excess of 240. However many on the list he supplied to the court were not clients; others had already been refunded. Some of the names taken from client lists were out of state; never-the-less they were included in the affidavit, although the attorney general’s legal authority ends at the borders of Connecticut. The attorney general’s star witness crumbled on the stand, acknowledging under examination that she misrepresented when she said she had not signed up for Auto Ship.
The witness also confessed she did not follow the burdensome Consumer Protection certified letter cancellation policy that amended Auto Ship because she just didn’t like it. She could not have been alone; this burdensome requirement, which obliged clients to notify Valerie by certified letter when they wished to opt out of the Auto Ship program, made processing more complex and burdensome to the customer. It also created an unnecessary hostility that Blumenthal later would take advantage of when his office went trolling for disgruntled customers disposed to complain about their treatment.
Most damaging to Blumenthal’s salient against the Hoffmans, Judge Bentivegna, later denigrated by the attorney general’s office as “a rogue backward judge,” ruled that the Hoffman’s assets had been seized with a defective affidavit.
The state was permitted to seize the Hoffman’s assets in an Ex-Parte Application for Attachment. In such cases, the integrity of the affidavit is essential, because the procedure permits the prosecutorial authority to seize assets without a hearing before a judge. The absence of a hearing granted on the strength of a defective affidavit seriously impairs due process rights and violates Constitutional protections.
Blumenthal’s office, the Hoffmans would later argue before Judge Bentivegna, “had two years to secure affidavits from consumers to be used in conjunction with its Ex-Parte Application for Attachment. The State simply chose not to comply with the statutory scheme for attachments requiring that an application be accompanied with an affidavit from a ‘competent’ affiant.”
A competent affiant would be one who had personal knowledge of the improprieties alleged in the affidavit, people who could give personal witness to the improprieties.
“Rather, the State used as an affiant a junior Assistant Attorney General who had only been assigned to work on this matter one month prior to his signing his affidavit.
“On cross examination on March 3, 2009, it was established that Fitzsimmons, in fact, did not participate in any of the underlying consumer transactions upon which that State’s enforcement action is based. More importantly, he did not even speak to all of the consumers who purportedly suffered a consumer loss. In sum, Fitzsimmons lacked personal knowledge of the most basic facts to which he sought to testify as an affiant and simply was never “competent” to serve as either an affiant or as a witness.”
The court agreed with this damaging assessment. And the fact that Blumenthal’s office permitted such obvious irregularities suggests that Connecticut’s Attorney General is not as careful as he should be in observing both standard practice and the constitutional rights of those against whom he is litigating. At a very basic level, Valerie had a right to confront her accusers – whose representations were not presented rightly in an affidavit used by the courts to deprive her of her property.
In a court document, Valerie asks why was Fitzsimmons the affiant? “Why was his obviously defective affidavit used by the State?”
That is a question to which no convincing answer yet has been given.
The Unanswered Questions
“Although the State has left this riddle unanswered,” Valerie declared in a court document, “what is known is that Attorney General Richard Blumenthal was interviewed by an investigative reporter weeks before the lawsuit, and he was forced to admit that his office had taken no action on the Sunrise Herbal Remedy file for two years. (See Hartford Courant New Article Dated March 9, 2007). Although this article was printed after the commencement of the first lawsuit, State of Connecticut v. Sun Rise Herbal Remedy, Docket No. CV-07-4028460-S was filed, a simple review of the article establishes that the interview of Blumenthal took place before the litigation was commenced.
“It is likely that the interview took place shortly before more personnel were assigned to the file, such as junior Assistant Attorney General Fitzsimmons. It is only after the phone call from the Hartford Courant that the State suddenly sprung into action with such vigor and vehemence against the Hoffmans.
“The State then took every consumer compliant on file with the State of Connecticut going back to 2001 (260 complaints) and filed the Fitzsimmons affidavit and sought the maximum penalty ($5,000.00) for exactly 260 allegedly ‘willful’ violations. In so doing the State: (i) included names of people on this list who were already refunded; (2) included those who were out-of-state consumers; and (iii) included those who had never ordered product!
“The ex-parte attachment was based, once again, solely on an affidavit from Fitzsimmons and, once again, claimed a fraudulent transfer of property. The Superior Court of Maine, after oral argument, found there to be no probable cause for fraudulent transfer and ordered the attachment vacated.
“Why? Does the State have any concern about the due process rights of the Hoffmans?
“Apparently not. The State delayed the post-attachment hearing from December 2008 to March 2009 because it sought, with no legal basis or justification, to prevent the defendants from questioning Fitzsimmons at the post-attachment hearing. In short, the State sought nothing less than to prevent the defendants from conducting a meaningful hearing and confronting its only affiant.
“The consequences of the State’s actions in Connecticut and Maine have been financially devastating to David and Valerie Hoffman. The initial attachment and lis pendens in Maine caused a local bank to cancel a credit line needed to complete construction on (a) home needed for mortgage payments on the home in Bethel Connecticut. The lis pendens in Maine continues to encumber a property that is probably worth over Two Million Dollars. Dave Hoffman is presently prevented from gaining access to the equity in (a) property in order to finish construction, to pay daily living costs for his family or his legal bills.
“The ex-parte attachment ... caused the Hoffman’s to default on three separate mortgages on the Bethel property. The Bethel property went into foreclosure. Prior to the commencement of the foreclosures on the Bethel property, Dave Hoffman obtained a buyer who was willing to buy the Bethel property for 1.3 Million dollars. This offer was conveyed to the State with the request that the property be sold and the money left after paying off the mortgages be placed in escrow. The State responded by saying that it would have its “front office” (Attorney General Blumenthal) consider this request. The “front office” did not respond to this request for weeks. In the mean time, the buyer walked away from his offer. Eventually, the State wrote a letter stating that Dave Hoffman could use the statutory process to ask the Court for an approved sale but it still did not indicate if it would object to any such motion. The failure of the “front office” (Attorney General Blumenthal) to respond in a timely manner caused the loss of approximately $600,000.00 dollars in equity in the Bethel home. Eventually, the Bethel property sold after a foreclosure judgment at the distressed price of $885,000.00 dollars. Attorney General Blumenthal and his subordinates knew that not responding timely to the request for a private sale would injury the defendants. Yet, they did not respond on a timely basis.
Blumenthal Abrogates Contract, Superior Court Declines to Notice
Attorney General Dick Blumenthal, cited by the American Enterprise Institute as the worst attorney general in the United States, has more sleeves on his tentacles and cards up them than Harry Houdini.
In his attempt to impoverish the Hoffmans, Blumenthal may have violated a contract his office signed with his victims and a company that is holding their money in escrow.
Contracts can no more restrain Connecticut’s attorney general than chains could restrain Houdini, and both are artists in the craft of misdirection.
Here is the operative paragraph in the contract signed by Blumenthal’s office:
"The Escrow amount shall be released by escrow agent only after a receipt of an order by a judge of a Superior Court of the State of Connecticut directing: 1) to whom payment is to be made from the escrow account; and (ii) the amount of each payment. In the event that one of the parties shall appeal the order of the Superior Court of the state of Connecticut pursuant to Conn. General. Stat. Section 52-2781 (a)-(c), and said party post a bond sufficient to indemnify the adverse party and the Superior Court issues a stay order pending appeal then the escrow amount shall continue to be held by said Escrow Agent until an entry of a final non-appealable order nor the stay is lifted. In the event no bond is posted or no stay is issued by the superior court then the Escrow Agent shall release the escrowed amount in accordance with the order of the Superior Court.”
Now, it so happens that Blumenthal is faced with a set of facts and contractual obligations that he finds unpalatable: The trial court judge dismissed the attachment and refused to grant a stay of his decision pending appeal; and the state has failed to post a bond.
This money should be released from escrow.
Why wasn't the money released?
Because Blumenthal no longer likes the terms of the contract he has entered into and has decided not to honor them.
Let's be very clear about what happened: Blumethal's office used a defective affidavit to improperly seize the Hoffman's assets; the trial court dissovled the attachments due to this defect, and now Blumenthal is desperately trying to hold on to the money without posting bond by ignoring the plain language of the escrow contract to which his office is a party.
The contract above specifies that if Blumenthal appeals Judge Bentivegna’s decision – which he recently has done – his office is to post bond so that the Hoffmans might draw from the bond to pay their legal expenses money that a previous judge has determined was improperly seized through a deceptive affidavit, the Hoffman's expenses having been incurred through Blumenthal’s faulty prosecution.
Blumenthal has not posted the bond, and he has lost his right to maintain his attachment. He is now seeking to use the appellate process to continue to deprive the Hoffmans of their property. It is plain to see that his strategy is to retain improperly seized assets through fruitless appeals in hopes that the Hoffmans will simply give up and go away. Blumenthal well knows that a lengthy appeal will continue to impair the Hoffmans financially.
Most of us would not wish to live in a system of justice in which attorneys general may seize property with defective affidavits and then run out the court clock until their tortured victims collapse under the weight of such disgusting violations of justice as are evident in Blumenthal’s vengeful prosecution of the Hoffmans.
As concerns injustices committed by his office but no others, Blumenthal has liberal tolerance levels.
One wants to shake the attorney general and ask: Dick, does your mommy know you’re doing this?
Does George Gombossy, consumer watchdog at the Hartford Courant know you're stretching a butterfly on the wheel?
The System Is Broke, Fix it
A few days after Valerie’s tormentors were beaten back in Judge Bentivegna’s court, an attorney trying the case suffered a massive coronary, an indication perhaps of the stressful environment in Blumenthal’s office.
Valerie, far more courageous than her persecutors and their enablers in the media, now has legal actions pending against the state of Connecticut in Maine for $6 million, a suit made possible because of prior rulings damaging to Blumenthal. The state has exposed itself to a suit in Connecticut for another $3 million. The Hoffmans are considering an ACLU investigation of Blumenthal and have submitted a grievance against Fitzsimmons that may put his law license in jeopardy.
All this grief and expense – owing to the unnecessarily protracted litigation, those seeking refunds from Valerie still have not received their due -- could have been prevented very early on for about $7,000. But Blumenthal must have his million, an outrageous figure. In the largest CUPTA settlement in history, a multi-billion dollar industry, Microsoft, paid out less money in fines than Blumenthal is seeking from Valerie’s one woman operation herbal business – still in operation and satisfying customers.
If there is a dram of justice left in the courts, the Hoffmans will prevail. Perhaps they may hope that Gombossy will celebrate their vindication in one of his columns. Blumenthal’s wicked prosecution of this case conceivably could result in a torrent of suits brought by other companies similarly abused. The Hoffman’s suit, if successful, will change the way Blumenthal’s office conducts its business.
Here we see Blumenthal at the top of his game.
If Blumenthal can use judicial instruments such as an Ex-Parte Application for Attachment to avoid a judicial hearing and, with a defective affidavit, persuade a judge to allow him to seize the personal assets of a business owner, he will be able to deploy such measures to deprive anyone of their property, while riding roughshod over their imprescriptable constitutional rights. Faced with the despoliation of their property by an overweening prosecutor, the first right of the citizen is to be able in court, before a judge, to defend himself from an unlawful taking.
Small businesses, which do not generally have the resources of too-large-to-fail businesses, should join in this case.
It is only a matter of time before other attorneys general, a tight knit group of lawyers who generally act in concert to extort funds from businesses without the trouble of passing their sometime questionable tactics before the noses of judges, begin to appropriate Blumenthal’s questionable and in some cases illegal techniques to fatten state budgets while subverting the constitutional rights of their victims.
The Hoffman’s at least are fighting the injustices that have been visited upon them by an attorney general who is popular in his state largely because a sleepy media has not bothered to raise the curtain on Blumenthal’s questionable prosecutions.
The deck is stacked against them. Watching the process from afar leaves the impression of a flea swatting away a herd of elephants. Justice and right may be on the side of the flea, but power wielded in so artful a manner by an office crowded with lawyers who have at their disposal the unlimited financial resources of a state that has not shown itself to be friendly to business is irresistible when good judges and slumbering members of the media take no notice.
If the Hoffmans do not prevail, they never-the-less will have their honor intact -- bright and undiminished -- to refresh their flagging spirits.
The same cannot be said of Blumenthal and his prosecutors.