Friday, October 30, 2009

Everything You Were Afraid To Ask About Dick Blumenthal


Blumenthal and the Media

It would be a considerable understatement to say that the relationship between Attorney General Richard Blumenthal and Connecticut’s media is cordial. The great failing of the state’s media is that it seems to be unwilling -- or perhaps unable -- to mine below the surface of the attorney general’s all too frequent press releases.

In a recent focus group finding, a matter of fierce controversy between Gov. Jodi Rell and her opponents, it was determined that Blumenthal was at least as popular if not more so than Rell, whose rating after a bruising budget battle with Democrats was 59%, low for the governor. Focus group participants said of Blumenthal, according to a report in the Journal Inquirer, that he was “a strong leader they would have faith in to lead them out of the budget deficit problem… One participant thought that Blumenthal was on television and ‘out there’ as much as the governor.”

Connecticut’s media has a good deal to do with Blumenthal’s shining image on a hill. That image remains lustrous despite some heavy panting from Blumenthal's critics. The Competitive Enterprise Institute http://cei.org/pdf/5719.pdf (CEI), for instance, rated Blumenthal as the worst attorney general in the United States.

George Gombossy’s report on a case involving Valerie and David Hoffman is illustrative. Gombossy, it should be noted, is no longer associated with the Hartford Courant. The bulldog consumer advocate was “let go” after he took a bite out of one of the Courant’s advertisers, so Gombossy claimed. The Courant strongly insisted at the time that Gombossy’s position was eliminated and that he was eligible but declined to apply for a replacement position at a lesser salary. Gombossy’s quarrel with his former employer is in litigation and, as is usual in such cases, parties to the suit have clammed up – to a point: Gombossy carried his jihad with his former employer to his new blog site, “Connecticut Watchdog." At the end of September, the Courant reported: “George Gombossy, The Courant's former consumer columnist, has filed a lawsuit against the newspaper, charging that his dismissal violated his right to free speech because he insisted on writing investigative columns and blogs that criticized major advertisers”

Two primary sources, Connecticut’s Department of Consumer Protection and Attorney General Blumenthal, were useful to Gombossy in the promotion of his Courant columns. It was a report from Blumenthal on Sleepys, a large mattress company chain and one of the Courant’s reliable advertisers, that was partly responsible for upending Gombossy’s career at the paper. Gombossy had written for the Courant for 40 years. He was for 3 years the paper’s consumer protection watchdog. Since his departure, Gombossy’s Courant archives have been blocked by the paper. But the opening few paragraphs on his report on the Hoffmans, dated Feb. 17, 2008, are, to say the least, a tease:

“Year after year, Valerie Hawk-Hoffman invited unsuspecting would-be customers to her graceful colonial home in Bethel on Saturdays for classes on the wonders of herbs and how they could help you look younger, thinner and improve your sex life.

“After the class many of them signed forms to purchase products like Cold Away, Skinny Mini, and Italian Bee, expecting to receive a sample of the product.

“But based on more than 200 written complaints to state officials, what many of those customers unwittingly signed up for were automatic shipments that could only be canceled by certified letters accepted by Hoffman a month before the next shipment. Some complained they had received multiple orders each month when they signed up for one monthly order. Others accused her of refusing to accept their certified letters…”

The attorney general’s initial press release, dated a year earlier, Feb 19, 2007 announced a joint legal action with Connecticut’s Department of Consumer Protection (DCP) Commissioner Jerry Farrell, Jr. against “Sunrise Herbal Remedies, Inc. - also known as Sage Advice, Inc., and Herbs and Teas - and its owner Valerie Hawk-Hoffman.” The press release quoted both the attorney general and Farrell:

"Our lawsuit charges that this company repeatedly sent consumers herbs they never ordered and then tried to bully them into paying," Blumenthal said. "Instead of relieving stress and promoting harmony as its products promised, Sunrise Herbal raised anger and blood pressure by seeking to exploit consumers. Our evidence shows that they sent regular shipments when customers made one-time purchases or shipped two to three times the amount ordered. My office will fight to stop these abuses and win restitution for costumers (sic)."

"Business practices such as these cannot be tolerated," Farrell said. "What is envisioned as a one-time purchase should not become a never-ending nightmare of hassles. This wasn't just one consumer who had a problem - it was many consumers, and that goes to show that this was an intentional business practice of the company, not a mere mistake."

The lacuna between Blumenthal’ s initial press release and further hearings and judgments on the Hoffman case should have provided Gombossy with enough time to flesh out his story. As usual, Gombossy and much of Connecticut’s press rely heavily on Blumenthal’s press releases. There was little follow-up reporting on the Hoffman case as it wended its way through multiple court hearings.

Gombossy’s report is more colorful than Blumenthal’s, though the attorney general, practiced in the journalistic art from his days as an Editorial Chairman and reporter for the Harvard Crimson, likes to paints in bright strokes.

In Gombossy’s first few leading graphs, one can almost see the spider inviting the fly into her web so as to sell her herbal tea -- and then eat the victim.

Blumenthal would later sue Hoffman, as well as her husband -- who had no business connection with his wife’s company -- for $1,332,000, a mind-boggling amount levied against a business woman who sells tea and herbal products. In the largest CUPTA settlement in history, a multi-billion dollar industry, Microsoft, paid out less money in fines than Blumenthal has sought from Hoffman’s one woman operation. The amount demanded as reparations from the tea and herbal vendor and her husband, a building contractor, it may be imagined, was somewhat stressful to them.

In his Courant column -- written, according to the dates specified in the Courant archives, a year after Blumenthal’s press release announcing the Hoffman’s suit -- Gombossy claimed: “…based on more than 200 written complaints to state officials, what many of those customers unwittingly signed up for were automatic shipments that could only be canceled by certified letters accepted by Hoffman a month before the next shipment. Some complained they had received multiple orders each month when they signed up for one monthly order. Others accused her of refusing to accept their certified letters…”

Gombossy cites “more than 200 written complaints” received by Blumenthal and Farrell, and writes that “many of those customers,” though he does not indicate how many, “unwittingly” signed up for automatic shipments.

Let’s pause here and ask the kinds of questions journalists should ask upon receiving press releases from Blumenthal.

How many of the 200 complaining customers “unwittingly” signed up for their merchandise? The forms they were signing were business contracts, and it must be presumed that few of the 200 complainants were illiterate. Of the 200 complaining customers, how many were from out of state, beyond Blumenthal’s jurisdiction? Of the 200 customers cited by Blumenthal as complainants, how many did not buy products from Hoffman? The answers to many of these questions would be forthcoming in public court records that were either not examined or reported upon by Gombossy.

Did the customers signing the forms for Hoffman’s products perhaps notice the “Auto Ship” information included on the contracts to which they appended their signatures? That information specified the terms under which the pre-product could be cancelled. Auto Ship is a common devise, especially for perishable merchandise. If this language was on the signed forms– and it was – how can it be said that those who signed the orders had “unwittingly” signed up for automatic shipments?

Gombossy mentioned that the shipments “could only be canceled by certified letters accepted by Hoffman a month before the next shipment.”

Herein lies a story that might have been explored by Gombossy had he been just a wee but more energetic in questioning claims made by Blumenthal’s office.

Valerie Hoffman was summoned to a meeting at the offices of Connecticut’s Department of Consumer Protection, an agency that often works hand in glove with the attorney general’s office in the prosecution of consumer complaints.

Made aware of the alleged complaints against her, she gave indications she wanted to satisfy the complainants. A professional business woman, Hoffman did not want her business to be crippled by endless litigation. She thought at the time that all the reported complaints alleged against her could be settled for about $7,000. None of the complaints, she thought, were justified. Never-the-less, she expressed her willingness to satisfy those customers alleged to have complained– whether or not she thought the complainants had sufficient cause to complain.

She then asked the officials at DCP what they wanted her to do. They made only one request of her: Should consumers wish to cancel out of the auto ship contract, they must do so by certified mail, a process that consumers would later find burdensome. This unfriendly consumer policy Hoffman was required to adopt by the DCP was so onerous that some of Hoffman’s customers refused to cancel by certified mail; others cancelled late. Many of the suits were related to this discontent.

Because Hoffman was pre-ordering product, her customers were required to cancel orders some days into the prior month. A customer who sent in a registered letter at the end of May canceling an order for June, for instance, had already ordered product for June that was in the process of being shipped. Overlooking such details, Blumenthal’s office simply assumed that every complaint was legitimate, when this was not the case.

Hoffman readily complied with the request made of her by the DCP. Later on, this would prove onerous for people who wanted to cancel their orders, because it required money and time from the complainants. The requirement mentioned by Gombossy was one demanded of Hoffman by the DCP, a piece of useful information not included in Gombossy’s column written more than a year later, which leaves the reader with the impression – easily corrected by asking a few important questions – that it was Hoffman who was erecting frustrating obstacles standing in the way of customer cancellations.

In fact, Hoffman wanted to satisfy her customer’s issues quickly. But any possible attempt to satisfy their concerns was put on hold after Blumenthal’s office began the litigation against her. It would be true in a precise sense to say it was Blumenthal and the DCP, not Hoffman, whose actions prohibited Hoffman from satisfying her customer’s requests. Such inconvenient items were not mentioned in Gombossy’s report, because the report relied exclusively on the word of Blumenthal, the theatre director who was framing media reports.

If the matter had been put to a judge at this point, the judge very likely would have cautioned the complainants to read contracts before they signed them.

It would take the Hoffmans years before they were able to put their case before a judge in a hearing they had demanded as soon as the litigation had commenced. The Hoffmans were driven to trial by the outrageous demands made by the attorney general’s office. Fortunately, they were luckily enough to have engaged a good lawyer, Jim Oliver, who has guided them through treacherous litigation shoals. Along the way, a private window on the questionable methods used by that office was opened to them. That window today remains shut to reporters and commentators who are strangely incurious concerning Blumenthal’s misuse of his authority.

Blumenthal And Hoffman

Whatever case Blumenthal thought he had against Hoffman was seriously flawed from the beginning by what Hoffman in her court challenges considered to be gross prosecutorial misconduct.

Blumenthal’s modis operandi in consumer protection cases usually follows the same course. The cases that flow into his office have a few different tributaries. Some cases are picked up from news accounts; others leech into the office from the Connecticut’s Consumer Protection Department; others arise from spin-off investigations conducted by Blumenthal’s office; still others are piggy-back cases that have been probed by other attorneys general.

Again, the Hoffman case is illustrative. The case drifted on to Blumenthal’s radar from consumer complaints made to the Consumer Protection Department. Blumenthal announced his intent to sue in a press release, which was picked up by the Hartford Courant. The case lingered in his office until it garnered more press, by Gombossy among others, nearly a year later, at which point Blumenthal’s office, startled awake, began to pursue the case in earnest. When Hoffman was summoned to Blumenthal’s office, she was told that it now would cost her considerably more money to settle her case because she had “embarrassed the attorney general.”

When Blumenthal becomes earnest, he obtains ex-parte judgments from courts.

An ex-parte judgment is a delicate instrument most effectively employed in criminal cases, such as mob actions and drug cases. It permits a prosecutor to obtain from a judge an attachment of assets without the necessity or precaution of a hearing. Blumenthal’s ex-parte judgment stripped the Hoffmans of their 14th Amendment Constitutional right to be secured in their property from prosecutors who declined to allow them to answer charges they knew to be false.

A procedure of this kind is a scalpel that should be use with great caution. Blumenthal’s office wields it like a mace.

In the Hoffman case, Blumenthal used the exparte judgment to attach the assets of Valerie Hoffman’s husband, a builder in Maine. The Hoffmans declared in litigation briefs that Blumenthal or his agents had reason to believe there was no connection between Mr. Hoffman’s construction business and Mrs. Hoffman’s business. Mr. Hoffman’s business depended upon using the profits he had realized on one construction project to finance successive projects. Blumenthal’s exparte attachment of Mr. Hoffman’s assets interrupted this process and destroyed his credit.

But there is more: Especially in civil cases, it’s essential that the affidavit used to secure the ex-parte seizure of assets should be flawless -- because it is on the basis of the affidavit that judges award prosecutors extraordinary power to seize assets with a wink at 14th amendment constitutional amendment.

Section 1 of the 14th amendment, adopted after the Civil war, provides: “…No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The affidavit submitted by Blumenthal’s office, attorney Oliver contended in court, was fatally flawed. Nearly all the statements contained in the affidavit were not “facts” based on personal knowledge, as required by statute. The affidavit was replete with opinions and legal conclusions based upon a review of hearsay documents.

In his press release, the attorney general contended with much fanfare that 200 customers had issued complaints either to his office or to the Department of consumer protection. But when the time arrived for Blumenthal to put up or shut up in a judicial proceeding, his office produced one authentic witness who admitted under cross examination that she had not read the contract. The witness conceded she had been reluctant to cancel her contract because the policy imposed on Hoffman by the state’s Consumer Protection Department was too burdensome to her.

The Assistant Attorney General who had been handling the case, Matthew Fitzsimmons, called one other witness to the stand – himself. He was, the Hoffman’s contended, an inauthentic witness. In fact, he was not a witness at all, a witness being someone who has first hand knowledge of events litigated. Fitzgerald’s testimony was hearsay, a fact dutifully noted at the time by the judge, who had put to Fitzgerald the following query: Are you sure you want to do this?

Fitzsimmons was sure: He mounted the stand and was cross examined. From that time forward, the jig, as they say in the slammer, was up.

Fitzsimmons’ testimony demonstrated he had no personal knowledge of any of the consumer transactions upon which the State based its enforcement action. The sole witness’ testimony established that Fitzsimmons lacked any personal knowledge concerning how Mrs. Schreiber came to participate in the auto-ship program or whether she, in fact, even suffered a consumer injury.

Blumenthal had seized the property of a man living in Maine, a state that falls outside his jurisdiction, through the use of a defective affidavit, positive publicity from a media that asked few follow-up questions of Blumenthal and failed to survey and report on litigation that contradicted Blumenthal’s assertions in his press releases.

Chutzpa And More Chutzpa

The exparte attachment on assets that Blumenthal regularly receives from judges tilts the playing field between Blumenthal’s heavy handed prosecutors and – there is no other way to put this – the attorney general’s litigatory victims. It is a ton of bricks placed on the prosecutorial side of the judicial scales. Used by unscrupulous attorneys general, this blunt instrument renders victims quite literally defenseless, because a defendant deprived of his assets is shorn of the means of defending himself from what may be unjust prosecution. The questionable seizure of assets is in turn used by Blumenthal’s prosecutors as a hostage to persuade his victims to surrender their imprescriptable constitutional rights and to reach pressured agreement with prosecutors to settle the cases in Blumenthal’s favor.

Courts tend willingly to grant exparte seizures of assets when they are deployed to give prosecutors an edge in their dealings with unscrupulous and dangerous drug lords and mafia figures. But even in these cases, the affidavit used to secure the seizure of assets without a hearing must not be based on hearsay testimony. The affiant, the person whose testimony is represented in the affidavit, must have personal knowledge of the facts to which he has sworn in the affidavit.

This rule of court was not met in the Hoffman case. The affiant was an assistant attorney general who had no personal knowledge of the facts represented in the affidavit. The entire house of cards erected by Blumenthal against the Hoffmans was built with this joker card as its foundation stone.

To deploy such a fatally defective weapon against a vendor of tea and herbs is the equivalent of placing a grenade in playpen, hoping against hope that children will not pull the pin. And indeed, Blumenthal’s office sometimes seems to be run by grinning children for whom winning at all costs is a categorical imperative. It may well be an imperative: Blumenthal has so often boasted that his office brings in more money than it spends that one begins to wonder whether the office is driven by greed rather than justice.

In the Hoffman case, Oliver contends, Blumenthal’s prosecution was fatally flawed from the beginning. The affidavit used to secure without a hearing before judge the seizure of Hoffman’s assets and those of her husband implicitly asserted that the facts represented in the affidavit were drawn from a credible witness. This was not the case. Despite Blumenthal’s boast in his first press release that there were more than 200 clients duped by Hoffman, the sole affiant in the affidavit used to seize the Hoffman’s assets was an attorney general in Blumenthal’s office whose remarks were hearsay and who had no personal knowledge of the consumer transactions represented in his materially false affidavit.

Judges should be wary of such submittals from Blumenthal’s office: This is not the first nor -- without the scrutiny of watchful judges -- will it be the last time that attorneys in Blumenthal’s office have relied on materially false affidavits of this kind to secure the assets of their victims.

In another case now making its way through the courts, Blumenthal relied on shoddy investigation to assemble an affidavit used to procure from a judge an exparte attachment of business equipment from the owner of a pellet business, also defended by Oliver..

The owner of the pellet business was shorted by his supplier in an attempt to extort from the pellet business a number of New York customers. The owner was in the process of satisfying the complainants by procuring supplies from a different resource – at a loss to himself –when Blumenthal intervened in the case and shut down any possibility of remuneration.

Blumenthal’s investigator, who compiled the affidavit necessary to allow Blumenthal to seize without a hearing before a judge the equipment the owner needed to satisfy his customers, later admitted in discovery documents that his affidavit was defective.

Relying on one witness, investigator claimed in his affidavit securing the exparte attachment that goods were fraudulently transferred by the owner of the pellet business. In a discovery deposition, Blumenthal’s investigator asserted he had no knowledge of any goods, property or money fraudulently transferred by the pellet business owner, fatally undermining the rational used to procure the exparte attachment.

It is becoming difficult to avoid the seemingly obvious conclusion. This is a procrustean effort on the part of Blumenthal to fashion affidavits that will allow him to seize property without a hearing to support his premature press releases.

Procrustes was the amiable Greek innkeeper who professed to have a bed that would fit any shape. Those of his customers who were to tall to fit in the bed found themselves bound to it, and their limbs were shortened to accommodate the bed, while his shorter customers were stretched to fit. Facts and affidavits, the body of evidence necessary to procure from deceived judges who award Blumenthal the authority of seize assets that freeze all business activity, appear to have been adjusted to fit Blumenthal’s ingeniously conceived press releases.

Forced to the wall by such unorthodox methods, the owner of the pellet business attempted suicide. Luckily, he was unsuccessful and may someday live to see a time when Connecticut’s attorney’s general may prosecute the right offender.

Before that happens, judges will have to look more closely than Connecticut’s media at Blumenthal’s questionable methods and bullying tactics.

What Next?

Mrs. Hoffman tells me the pain is missing from this piece.

It’s taken me a long time to build up the business,” Hoffman says, “And I’ve been a responsible stakeholder. Blumenthal claims to have received 200 complaints. That’s less than 1% of my business, which means that 99% of my clients had no trouble with any of these policies. When certified letters were sent, none were refused. The two clients who claimed they were – that’s TWO clients – later acknowledged they sent the letters to the wrong address. All this was demonstrated in court, when finally I had my day in court. But Blumenthal is not interested in compliance. He’s interested in dollars.”

It’s not as if Hoffman was hiding her business policies under a bushel.

“The opposite is true,” she said. “Unlike most companies who have their policies in tiny illegible type, I splashed my policies everywhere: on the website in three places, on my brochure, on the receipts, on the invoices, on the wall of my office. I did everything but tattooed them on my forehead. When a client purchased products on the website, they could not sign off with signifying that they agree to these policies. Their signature signified agreement with the policies. Companies are required only to state their policies, and this was done. It may have been overdone.”

Hoffman – and some judges – believes that she has been far more responsible than Blumenthal.

“After three years of litigation,” she says, “Blumenthal’s office still does not know who really is due a refund or who was refunded or who was not refunded. These things should have been known before Blumenthal brought suit. He brings suits that destroy lives, and he doesn’t even know if he has a legitimate suit. But how could anyone expect that office to behave ethically or morally, when year after year they brag how much money they make for the state? Their office is in the extortion business. They throw you in a room with a huge guy who tells you that if you don’t give them money, they’ll ruin your life. That is what happens. And now, not one but three judges have called their office immoral, egregious, vexatious, corrupt and potentially criminal.”

Her struggle is not over.

“We have two suits in process and a new suit pending,” she said. “In previous litigation, Blumenthal claimed sovereign immunity. But that didn’t fly because, according to the judge, sovereign immunity – complete immunity from prosecution – does not apply when one’s actions are egregious, shocking and completely immoral, as in this case.”

In a Maine case, Judge Hornby noted: “The plaintiffs assert that Fitzsimmons swore to a false affidavit in connection with attaching Maine real estate. Such behavior by a state assistant attorney general -- if it occurred -- is deplorable, and could be subject to criminal penalties, bar discipline and other sanctions.”

Hoffman notes, “Matt Fitzsimmons, the attorney in Blumenthal’s office who prosecuted the case, now has admitted in discovery responses that he lied on his affidavits. He is now subject to the loss of his license to practice law, as well as criminal penalties. These admissions have made it possible for us to open other suits. Right now, Blumenthal’s office is facing three multi-million dollar suits filed against them for civil rights violations, abuse of process, slander of title and illegal attachment.”
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