The fact that P&G and Dinsmore sought information from Schwartz is not evidence of a conspiracy. There is no dispute that P&G and Dinsmore lawfully contacted Schwartz as part of their pretrial investigation in connection with their Utah lawsuit in order to obtain information they could use in their litigation against Amway. In September 1996 when Dinsmore first contacted Schwartz. P&G was in the middle of litigation with Amway. Because Amway is a closely-held corporation, information about Amway was not readily available to P&G. Schwartz had been collecting information about Amway since the early 1990s. (9) In January 1996 he started his website "Amway: The Untold Story." (10) Schwartz had a large amount of information, not otherwise available to P&G, concerning Amway, including information about Amway's history, business practices, and distributor organization. (11) Before he was first contacted by Dinsmore, Schwartz had independently obtained and posted a copy of one of P&G's earlier complaints in the Utah litigation, as well as information regarding other complaints against Amway. (12) Many of these previous actions referenced on the Schwartz site included pyramid and RICO claims against Amway. (13)
Prior to Dinsmore's first contact with Schwartz. Schwartz alreadv had allegations on his website that Amway was an illegal pyramid scheme and that it had violated RICO. His website included a copy of the federal class action complaint in Hanrahan v Amway, Civ. No. 94-4615 (E.D. Pa.), which contains pyramid and RICO allegations. There was also reference on the Schwartz site to other suits with similar pyramid and RICO claims against Amway, filed by then-current or former Amway distributors.
Dinsmore retained Schwartz as a non-testifying consultant to assist in obtaining information about Amway that might be useful to P&G in the Utah action and leads donceming other potential sources of such information. (14) There is no evidence in the record to remotely suggest that P&G and Dinsmore's retention of Schwartz as a non-testifying consultant was improper.
The fact that Dinsmore provided copies of legal documents to Schwartz is not evidence of a conspiracy. Again, this activity must be viewed in the context of Schwartz's role as a non-testifying consultant. It was not improper for Dinsmore to provide Schwartz with documents from the Utah case or the Setzer case that contained similar claims, to acquaint Schwartz with the nature of the information P&G needed to support its claims in the Utah action. (15)
Viewing the facts in the light most favorable to Amway, the Court will assume that P&G and Dinsmore knew that Schwartz was likely to repost the information they provided to him and that he was likely to continue to make derogatory comments about Amway on his website. But none of that satisfies Amway's burden of showing P&G and Dinsmore entered into a concerted action with Schwartz to accomplish an unlawful purpose, or to accomplish a lawful purpose by unlawful means. The documents were public. An individual does not vouch for what a third party will do with information lawfully provided to him. There is no evidence that P&G and Dinsmore had any input or control into what Schwartz posted on his website, how he posted it, or what editorial comments he added to the materials they provided him. The evidence is unrebutted that Schwartz's decision on what to post on his website was made independently and without input or encouragement from P&G and/or Dinsmore. Schwartz was adamant in his testimony that he alone was responsible for what went on his website. (16) There is no evidence that P&G and Dinsmore controlled or attempted to control what was on Schwartz's website. There is no evidence that anyone at Dinsmore even suggested, requested, encouraged, or expected Schwartz to post anything on his website. (17) Although Schwartz requested Mr. Heuck of Dinsmore to review his comments regarding the Texas litigation, Mr. Heuck declined to do so. (18)
The remaining evidence Amway relies on regarding the unilateral actions of the "Internet confederates" is not sufficient to show the existence of an agreement between them ind P&G and Dinsmore, Such unilateral actions are not building blocks from which a reasonable inference of a concert ofaction can be drawn. They might carry some weight if Amway could show that these actions were taken in furtherance of an agreement. However, because Amway has not come forward with any evidence from which a jury could reasonably infer a joint agreement between P&G, Dinsmore, and Schwartz, the activities of Schwartz and his Internet confederates cannot be imputed to P&G and Dinsmore. Without evidence of an agreement, the assertion that Schwartz had similar goals as P&G and Dinsmore is innocuous. The fact that Schwartz gave information received from Dinsmore to his Internet confederates is innocuous. The fact that the Internet confederates sent information to P&G or Dinsmore, or met with them, is innocuous. Contrary to Amway's assertions, these facts are not sufficient to create a triable issue regarding the existence of a tacit agreement between P&G. Dinsmore and Schwartz to harm Amway.
Amway has also asserted that P&G and Dinsmore can be held liable under Michigan's concert of action claim. To state a concert of action claim a plaintiff need only allege that the defendants were jointly engaged in tortious activity as a result of which the plaintiff was harmed. Abel v. Eli. Lillv and Co., 418 Mich. 311, 338, 343 N.W.2d 164, 176 (1984). The evidence of record shows that P&G and Dinsmore acted in concert with Schwartz to discover evidence about Amway for use in on-going litigation. As more fully discussed above, the evidence does not show that P&G and Dinsmore were jointly engaged in tortious activity with Schwartz.
Now that discovery is closed, Amway's conspiracy claim must be tested against the evidence of record. That evidence does not create an issue of fact for the jury on the issue of a conspiracy. There is no evidence to suggest that P&G and Dinsmore had any control or influence over what Schwartz posted on the website. Accordingly, to the extent Amway has shown that the pleadings were posted in an unfair or misleading fashion, that allegation is not attributable to P&G and Dinsmore.
Because Amway has failed on its proofs of a conspiracy between P&G, Dinsmore and Schwartz. Amway's action against P&G and Dinsmore is strictly one of speech. The other wrongful actions Amway attributes to Schwartz and his Internet confederates -- destroying evidence, breaking into Amway distributor websites, sending spam e-mail messages to distributors, mounting a campaign to convince the Chinese government to keep Amway out of China, and other acts -- are not attributable to P&G and Dinsmore.
(9) Schwartz collected and shared information on Amway through his position as section leader on the Working From Home forum on Compuserve. He also shared his research on Amway on other on-line services. 9/8/97 Schwartz Aff. at ¶ 4-6.
(10) Schwartz Aff. 9/8/97 at ¶ 7.
(11) Heuck Aff. 8/27/99 at ¶ 2.
(12) Heuck dep. at 72-73; Hamilton dep. at 14-16.
(13) See P&G Motion for Summary Judgment., Addendum C.
(14) Heuck Aff. 5/18/01 ¶ 6.
(15) Heuck Aff. 5/18/01 at ¶ 19- 10.
(16) Schwartz testified that it was absolutelv his sole decision as to what the web site would look like throughout the entire time he maintained the site. and that he made it clear to Mr. Heuck and Mr. Hamilton that he would not change that policy:
They didn't ask, but I just made sure they understood that nothing went on the site that wasn't my decision to put on there, to take off, modify, whatever. I just felt since it was my site and had my name on it that needed to be my responsibility to do that, to be responsible for the content.
2/13/01 Schwartz dep. at 269-70. See also Schwartz dep 9/22/97 at 97-98, 172; 9/8/97 Schwartz Aff. at ¶ 8.
(17) Heuck dep. at 167: 5/18/01 Heuck Aff. at 14: 5/11/0: Hamilton Aff. at ¶ 7.
(18) Heuck dep.at 74-78, 211-13.
