Donald Thomas Scholz vs. Jayne E. Feher

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COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, ss.

--------------------------

DONALD THOMAS SCHOLZ,
Plaintiff,

v.

JAYNE E. FEHER
Defendant.

--------------------------


VERIFIED COMPLAINT

Introduction

This is an action for preliminary and permanent injunctive relief, pursuant to Massachusetts General Laws, Chapter 214 § 1B, to prohibit Defendant Jayne E. Feher from continued interference with Plaintiff Donald Thomas Scholz's right [UNINTELLIGIBLE] to a settlement agreement between the parties which resulted from Feher's earlier interference with Scholz's privacy.

Parties

1.  Plaintiff Donald Thomas Scholz ("Scholz") is an individual residing in Middlesex County, MA.

2.  Defendant Jayne E. Feher ("Feher") is an individual who, on information and belief, resides in Middlesex County, MA.

Facts

Scholz's particular need for privacy

3. Scholz is a famous rock musician, composer, recording engineer, and record producer. He is the founder of the musical recording group, BOSTON. BOSTON's first album, on which Scholz performed more than 85% of the instrumental portion, was the largest selling debut album in the history of recorded music. BOSTON released six albums between 1976 and 2004, and has conducted numerous successful major concert tours during that time. To date, BOSTON has sold over 30,000,000 albums.

4. Because of his celebrity, Scholz has guarded his privacy, including taking measures to keep secret his home address and personal telephone number.

5. Scholz has had several disturbing incidents throughout his public music career, including some within the past few years, which threatened his safety and well-being. For example, Scholz has received several threatening and delusional letters, some from persons who were imprisoned or in mental institutions. One such person, who wrote from prison where he was serving time for extortion, claimed to be Scholz's son. Another person wrote that it was God's will that Scholz marry her. Another person who wrote a delusional letter to Scholz was reportedly found unfit to stand trial on an assault charge by reason of insanity. Another person telephoned Scholz's business repeatedly, stating that Scholz had been speaking to him through the radio.

Feher's history of harassing Scholz and invading his privacy

6. In approximately December 1999, Scholz learned that someone who maintained the internet e-mail address [REDACTED] through the internet service provider, American Online, Inc. ("AOL"), apparently by nefarious means and without authorization, had obtained Scholz's home address and personal telephone number. That person, via her [REDACTED] email address, was distributing Scholz's home address and personal telephone number over the internet to people whom she did not know, and encouraging them to contact Scholz directly.


7. Because of the many previous threats to his own safety and well-being, Scholz was greatly concerned that this unknown person or some of the many people to whom she was disseminating Scholz's personal contact information, might cause harm to Scholz or to his close friends and family.

Scholz's earlier lawsuit against Feher


8. As a result, Scholz filed suit in this Court, Donald Thomas Scholz v. Jane Doe, Middlesex Superior Court Civil Action No. 00-282, and obtained a commission to take the out of-state deposition of AOL in Virginia in order to discover the owner of the email address "RITASPL." The information subpoenaed from AOL revealed that "RITASPL" was owned by Jayne E. Feher and that she was living in Key Biscayne, Florida.

9. Scholz had previously known Feher and had asked her not to contact him anymore.

10. After learning of Feher's identity and address, Scholz filed suit against her in Florida state court (Florida Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Case No. 00-05172-CA-27) (the "Florida lawsuit"), seeking injunctive relief for Feher's violation of Massachusetts's privacy statute (Mass. Fen. L. Chapter 214, § 1 B) and violation of Florida's common law right to privacy.

11. Feher was deposed in the Florida lawsuit. She admitted in that deposition that both Scholz and his counsel had, at different times, asked her not to contact Scholz. She also admitted to having tampered with his mail in March 1998 as follows: to having taken mail addressed to Scholz from inside his mailbox, opening it, reading it, and responding to the sender, posing as Scholz's wife and without Scholz's knowledge; to having taken several birthday cards addressed to Scholz from inside his mailbox and throwing them away; and to having taken a packaged addressed to Scholz from Scholz's porch and throwing it away.

May 2000 Settlement Agreement

12. The Florida lawsuit was settled by a "Settlement Agreement" dated on or about May 25, 2000. A copy of the Settlement Agreement, as executed by Feher and Scholz, is attached hereto as Exhibit A (to protect Scholz's privacy, Scholz's home address has been excised from the copy).

13. The Settlement Agreement provides, inter alia, as follows:

¶ 3: Agreement not to distribute.
FEHER hereby agrees never to reveal or distribute SCHOLZ's home address or telephone number to anyone under any circumstances. This provision includes, but is not limited to, FEHER's agreement not to include SCHOLZ's home address or telephone number in any documents or pleading filed with any court, including but not limited to [...] in any action to enforce this Agreement.
[...]


¶ 4: FEHER hereby agrees never to make any false or defamatory statements about SCHOLZ or the rock music band BOSTON to anyone.

¶ 5: No contact.

a. FEHER hereby agrees as follows:

i. FEHER will stay at least 200 yards away from [Scholz's Massachusetts home] at all times;

ii. FEHER will not initiate contact with SCHOLZ ever by any means, including bolt not limited to in person or by correspondence, packages, or telecommunications, including but not limited to e-mails, telephone calls, or voicemails;

iii. FEHER will not follow, annoy, harass, or call attention to SCHOLZ; and

iv. in the event that FEHER and SCHOLZ are coincidentally in the same place, FEHER will ignore SCHOLZ, will not acknowledge or address SCHOLZ, and will not call attention to SCHOLZ; the only exception to this subparagraph is that if SCHOLZ speaks to FEHER first, then FEHER may respond to SCHOLZ.

[Emphasis added]

14. The Settlement Agreement further provided:

¶ 10: Breach.
If FEHER breaches any provision of Paragraphs 3, 4, and/or 5 above, then:

a. SCHOLZ's covenant not to sue FEHER, contained in Paragraph 6 above, will be deemed void ab initio and ineffective;

b. FEHER hereby stipulates that SCHOLZ will be entitled to a preliminary injunction under the terms of Paragraphs 3, 4. and 5 with notice of hearing to FEHER (unless an ex parte hearing is appropriate under the Florida Rules of Civil Procedure), that FEHER's breach of Paragraphs 3, 4 and/or 5 above shall constitute irreparable harm to SCHOLZ and that SCHOLZ will be substantially likely to succeed on the merits of an action to enforce this Agreement; moreover, FEHER hereby stipulates that SCHOLZ shall not be required to post a bond in excess of $1,000 in connection with said preliminary injunctive relief; and

c. If SCHOLZ prevails in an action to enforce this Agreement, then, in addition to any other injunctive or monetary relief awarded by the court therein, SCHOLZ will be entitled to:

i. a judgment against FEHER for $13,000 in damages for the investigator fees that SCHOLZ expended in investigating the acts complained of in the Litigation;

ii. a permanent injunction against FEHER under the terms of Paragraphs 3, 4, and 5 above; and

iii. an award of reasonable attorneys' fees against FEHER for all attorneys' fees that SCHOLZ incurs as a result of FEHER'S breach and/or in connection with enforcing this Agreement, from the date of said breach. Under no circumstances shall SCHOLZ be responsible for FEHER's attorneys' fees in any such action, unless SCHOLZ shall not prevail and the court determines that SCHOLZ's enforcement action was frivolous.


[Emphasis added.]

Feher's Move From Florida to Middlesex County, Massachusetts


15. When Feher first met Scholz in the fall of 1997, she was living in Canton, Massachusetts. In June 1998, Feher moved to Florida. Shortly after the May 2000 settlement of Scholz's Florida litigation against her, Feher informed Scholz (through counsel) that she was moving back to Massachusetts. On information and belief, Feher now lives just a few miles from Scholz's house.

Feher's March 2003 Breaches of the Settlement Agreement

16. In March 2003, Scholz received the following telephone messages on his home answering machine. His caller-ID service indicated the calls were placed from telephone number 781-894-3748 in Waltham, MA. The messages were both in Feher's voice:

Date:

Time:

Message:

Tue. 3.4.03

10:26 p.m.

"Hey, Tom, it's Jayne. Can you please call me back? Thanks. Bye."

Wed. 3.5.03

4:39 a.m.

"Hey, Tom, it's Jayne again. Um .... I'm, like, very desperate, and I really need your help, and why should you help me, um .... I'll explain that to you ... um ... when I talk with you, if ... ever. All right? Can you give me a call? Thanks. Bye

17. Scholz did not return either of Feher's calls.

Feher's October 2004 Breaches of the Settlement Agreement

18. In October 2004, Scholz received the following telephone messages on his home answering machine. His caller-ID service indicated the calls were placed from telephone number [REDACTED] in Waltham, MA. The messages were all in Feher's voice:

Date:

Time:

Message:

Sat. 10.16.048:14p.m.      
(8:09p.m.)

"Oh, hi Tom. It looks like you can't even get a free gig now. Um .... The Cowsills, um, did the National Anthem for the, uh, opening Red Sox game. [Intense laughter.] So, I guess they weren't interested in BOSTON, were they. And, um, by the way [dog barking in background] [to dog: Oh, stop it, Sweetie.] Uh, and um, ... by the way, I am in the area right now, but I'll be moving away. Um, I will call you and let you know like where I'll be so you can send, like, your private dicks to my house. You know, so that, like, you know, you can, uh, see where I am. Um .... I didn't realize I was so important to you. You take care, Tom, and have a nice night. Bye."

Sat. 10.16.048:15p.m.
(8:11p.m.)

"Ha!! I was just thinking about the Cowsills, and [intense laughter] ... Have a nice life, Tom."

Fri. 10.22.0411:48 p.m.
(11:43 p.m.)

"Well, don't call me back, Tom. But, listen, um, I'm filing a lawsuit against you for lots of money. Um, um .... I don't know how to tell you this, but I don't think I'll settle, I think we'll go to court. Okay? So, I will talk to you later. Ali right' Bye, Tom."


19. Again, Scholz did not return any of Feher's calls.

20. To Scholz, who is familiar with Feher's voice, Feher sounds manic and spiteful in her October 2004 telephone messages.

21. Also during October 2004, when Scholz received these phone messages from Feher, there was a several-week period where Scholz received no personal mail (such as bills and correspondence) in his mailbox.

_____________
1 The times noted are the times stated after each message on Scholz's answering machine tape. These times are off by a few minutes because it is an old machine on which one has to set the time and because the machine records the time at the end of the message. For the October 2004 calls, the actual time each call started, as recorded in Scholz's telephone's caller ID function, is set forth in parentheses and italics.



COUNT I
Injunctive Relief
Against Invasion Of Privacy
Mass. Gen. Laws ch. 214. § 1B


22. Scholz re-alleges and incorporates by reference the allegations set forth in all of the foregoing paragraphs.

23. Feher's above-described conduct constitutes an unreasonable, substantial, or serious interference with Scholz's privacy in violation of Massachusetts General Laws, Chapter 214, Section 1B.

24. Scholz has been harmed and will continue to be harmed by Feher's invasion of his privacy.

25. In the event injunctive relief is not granted, Scholz will suffer immediate and irreparable injury that cannot be vindicated should he prevail after appeal or hearing.

26. Feher will not suffer any harm in the event injunctive relief is granted.

27. Scholz is likely to succeed on the merits of his claims at trial.


COUNT II
Breach of Contract


28. Scholz re-alleges and incorporates by reference the allegations set forth in all of the foregoing paragraphs.

29. The parties' May 2000 Settlement Agreement is a binding contract.

30, Feher's above-described conduct constitutes breaches of the parties' contract.

31. Feher's breaches have directly harmed Scholz.

32. Under the terms of their contract, Scholz is entitled to injunctive relief. monetary damages of at least $13,000, and reasonable attorneys' fees.


Prayers For Relief

WHEREFORE, Plaintiff Donald Thomas Scholz asks this Court to enter the following relief:

i. A temporary restraining order and/or preliminary injunction enjoining Feher as follows:

a. Feher is hereby prohibited from in any way revealing or distributing, directly or indirectly, Donald Thomas Scholz's home address or telephone number to anyone under any circumstances. Among other things, this means that Feher shall not include Donald Thomas Scholz's home address or telephone number in any documents or pleading filed with any court;

b. Feher is hereby prohibited from making any false or defamatory statements about Donald Thomas Scholz or the rock music band BOSTON to anyone;

c. Feher is hereby enjoined from coming within 200 yards of Scholz and/or Scholz's Massachusetts home (including his mailbox) at all times;

d. Feher is hereby enjoined from ever initiating any contact with Donald Thomas Scholz, directly or indirectly, by any means, including but not limited to in person or by correspondence, packages, or telecommunications, including but not limited to emails, telephone calls, or voicemails;

e. Feher is hereby enjoined from following, annoying, harassing, or calling attention to Donald Thomas Scholz;

f. in the event that Feher and Donald Thomas Scholz appear in the same place, Feher will ignore Scholz, will not acknowledge or address Scholz, will not call attention to Scholz, and will stay at least 200 yards away from Scholz; and

g. whatever other preliminary injunctive relief the Court deems appropriate.

ii. A permanent injunction enjoining Feher as follows:

a. Feher is hereby prohibited from in any way revealing or distributing, directly or indirectly, Donald Thomas Scholz's home address or telephone number to anyone under any circumstances. Among other things, this means that Feher shall not include Donald Thomas Scholz's home address or telephone number in any documents or pleading filed with any court;

b. Feher is hereby prohibited from making any false or defamatory statements about Donald Thomas Scholz or the rock music band BOSTON to anyone;

c. Feher is hereby enjoined from coming within 200 yards of Scholz and/or Scholz's Massachusetts home (including his mailbox) at all times;

d. Feher is hereby enjoined from ever initiating any contact with Donald Thomas Scholz, directly or indirectly, by any means, including but not limited to in person or by correspondence, packages, or telecommunications, including but not limited to emails, telephone calls, or voicemails;

e. Feher is hereby enjoined from following, annoying, harassing, or calling attention to Donald Thomas Scholz;

f. in the event that Feher and Donald Thomas Scholz appear in the same place, Feher will ignore Scholz, will not acknowledge or address Scholz, will not call attention to Scholz, and will stay at least 200 yards away from Scholz; and

g. whatever other permanent injunctive relief the Court deems appropriate.

iii. A judgment against Feher for violation of Scholz's right to privacy under Massachusetts law.

iv. A judgment against Feher for breach of contract, awarding damages of at least $13,000;

v. An award of Scholz's reasonable attorneys' fees;

vi. An award of Scholz's pre-judgment interest and costs; and

iv. Such other relief as this Court deems appropriate and Just.



Respectfully submitted,
DONALD THOMAS SCHOLZ,
Plaintiff,
By his attorney,


__________________________
Susan E. Stenger
BBO No. 555552
PERKINS SMITH & COHEN LLP
One Beacon Street, 30th Floor
Boston, MA 02108
(617) 854-4000

VERIFICATION

I, Donald Thomas Scholz, hereby depose and say that I have read the foregoing Verified Complaint, and that the allegations therein are true based upon my personal knowledge and/or upon information which I believe to be true.

Signed under the pains and penalties of perjury this 19th day of November 2004.


__________________________
DONALD THOMAS SCHOLZ


ses-complaint-7319-21


SETTLEMENT AGREEMENT


This Settlement Agreement ("Agreement") is entered into between JAYNE E. FEHER ("FEHER"), an individual residing in Key Biscayne, Florida, on the one hand, and DONALD THOMAS SCHOLZ, an individual residing in Middlesex County, Massachusetts, ("SCHOLZ"), on the other hand.

WHEREAS, there is now pending in Miami, Florida, a lawsuit entitled Donald Thomas Scholz v. Jayne E. Feher and David Edward Peck, pending in the Florida Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Case No. 00-05172-CA-27 (the "Litigation"), and FEHER and SCHOLZ wish to resolve all disputes between them that were or that could have been raised therein;

WHEREAS, FEHER denies any liability to SCHOLZ for the claims that were brought in the Litigation;

NOW, THEREFORE, in consideration of the mutual covenants, agreements, representations, and warranties set forth herein, the receipt and sufficiency of such consideration being hereby severally acknowledged, FEHER and SCHOLZ hereby agree as follows:

1 . Computer.

a. After FEHER's counsel's receipt of SCHOLZ's signature on this Agreement, and upon at least five days' written notice to FEHER's counsel, Alan C. Gold, Esquire, of 7000 Southwest 62nd A venue, Penthouse B, Miami, FL 33243, that he or she is ready to pick up the computer, SCHOLZ's designee shall pick up at Attorney Gold's office the computer at issue in this case, including the central processing unit, the key board, and the mouse, (the "Computer"), on the following Monday for inspection. On or before the close of business of Friday of that week, SCHOLZ's designee shall return the Computer to Attorney Gold's office.

b. SCHOLZ's designee may copy and/or print any e-mail messages, or evidence of any e-mail messages, having anything to do with SCHOLZ or the rock music band BOSTON or the e-mails, and the recipients of the e-mails, at issue in this case. SCHOLZ's designee shall not copy or print any other information or data contained on the Computer, and shall keep confidential all such other information or data; the only exception to said confidentiality agreement is that SCHOLZ or his designee may comply with a legal subpoena for such information or data, but only after immediately notifying FEHER thereof and first giving FEHER ten (10) days within which to obtain a protective order against such release of information. SCHOLZ's designee will not divulge to SCHOLZ any information contained in the Computer other than e-mail messages, or evidence of any e-mail messages, having anything to do with SCHOLZ or the rock music band BOSTON or thee-mails, and the recipients of the e-mails, at issue in this case. Prior to inspecting the Computer, SCHOLZ's designee will sign a copy of this Agreement, next to this Paragraph 1, thereby noting his or her agreement to abide by this Paragraph 1.

c. In the event that SCHOLZ's designee cannot perform the inspection with his or her own monitor, and requires FEHER's monitor, then SCHOLZ's designee shall so notify Attorney Gold in writing via facsimile and Attorney Gold shall arrange to have the designee pick up the monitor at Attorney Gold's office within three business days. The time for SCHOLZ's designee to return the computer to Attorney Gold shall be extended by the number of days from the date the notice regarding the monitor is faxed to Attorney Gold until the monitor is delivered to or picked up by SCHOLZ's designee.

d. FEHER will provide with the Computer any and all passwords of which she is aware that are necessary to start the computer, access any data on the computer, and access any e-mail addresses used by her or David Edward Peck at any time.

e. FEHER hereby represents that she has not destroyed any data in the Computer or damaged the Computer and that, since David Edward Peck left her house on January 13, 2000, no one else has destroyed any data in the Computer or damaged the Computer. A breach of this subparagraph 1(e) will not invoke the breach provisions of Paragraph 10 of this Agreement. If SCHOLZ's inspection of the Computer, as per this Paragraph 1, leads SCHOLZ to believe that FEHER's representation in this Paragraph 1(e) is untrue, then SCHOLZ may declare this Agreement void ab initio in writing within twenty (20) days' of the last day of the inspection of the Computer. If SCHOLZ fails to give such written notice within said timeframe, then SCHOLZ shall be deemed to have waived any damages resulting from said misrepresentation. Any such waiver under this Paragraph 1(e) shall not affect the enforceability of any other provision of this Agreement.

2. Telephone bills.
Simultaneously with her delivery of her execution of this Agreement, FEHER shall provide to SCHOLZ's counsel, Susan E. Stenger at PERKINS, SMITH & COHEN, LLP, One Beacon Street, Boston, MA, 02108, copies of all of her telephone bills for the periods including November 1, 1999, through January 31, 2000, except that FEHER may black out all itemization of all calls to anywhere other than a California area code. In addition, FEHER will execute simultaneously with this Agreement the authorizations attached hereto as Exhibit A for SCHOLZ's counsel to obtain the same information directly from FEHER's telecommunications carriers. FEHER's counsel shall deliver said signed authorizations with this Agreement as executed by FEHER. FEHER hereby represents that Bell South and AT&T are the only telecommunications carriers with which she had an account at any time during the period November 1, 1999, through January 31, 2000.


3. Agreement not to distribute.
FEHER hereby agrees never to reveal or distribute SCHOLZ's home address or telephone number to anyone under any circumstances. This provision includes, but is not limited to, FEHER's agreement not to include SCHOLZ's home address or telephone number in any document or pleading filed with any court, including but not limited to in the Litigation or in any action to enforce this Agreement. The only exception to this Paragraph is that FEHER or her designee may comply with a legal subpoena for such information, but only after immediately notifying SCHOLZ thereof and first giving SCHOLZ ten (10) days within which to obtain a protective order against such release of information.

4. FEHER hereby agrees never to make any false or defamatory statements about SCHOLZ or the rock music band BOSTON to anyone.

5. No contact.

a. FEHER hereby agrees as follows:

i. stay at least 200 yards away from [REDACTED] Massachusetts, at all times;

ii. FEHER will not initiate any contact with SCHOLZ ever by any means, including but not limited to in person or by correspondence, packages, or telecommunications, including but not limited to e-mails, telephone calls, or voicemails;

iii. FEHER will not follow, annoy, harass, or call attention to SCHOLZ; and

iv. in the event that FEHER and SCHOLZ are coincidentally in the same place, FEHER will ignore SCHOLZ, will not acknowledge or address SCHOLZ, and will not call attention to SCHOLZ; the only exception to this subparagraph is that if SCHOLZ speaks to FEHER first, then FEHER may respond to SCHOLZ.

b. SCHOLZ hereby agrees to stay at least 200 yards away from 230 Sunrise Drive, Apartment 2, Key Biscayne, Florida.

6. SCHOLZ, for himself and his past and present attorneys, successors, heirs, and assigns, hereby covenants not to sue FEHER, or her past and present attorneys, successors, heirs, or assigns, on any claim or cause of action, whether or not raised in the Litigation, of every name and nature, both in law and in equity, whether known or unknown, that SCHOLZ now has or ever may have had against FEHER on any matter at any time from the beginning of the world through the date of this Agreement, unless FEHER shall breach this Agreement. This covenant not to sue is not meant as and shall not be construed as a covenant not to sue, or a release of, David Edward Peck.

7. FEHER, for herself and her past and present attorneys, successors, heirs, and assigns, hereby covenants not to sue SCHOLZ, or his past and present attorneys, successors, heirs, or assigns, on any claim or cause of action, whether or not raised in the Litigation, of every name and nature, both in law and in equity, whether known or unknown, that FEHER now has or ever may have had against SCHOLZ on any matter at any time from the beginning of the world through the date of this Agreement.

8. Subject to Paragraph 10(c)(i & iii) below, SCHOLZ and FEHER shall each be responsible for their own costs and attorneys' fees incurred in the Litigation through the date of this Agreement.

9. Disposition of the Litigation.

a. SCHOLZ will request that a default be entered and that a default judgment, including injunctive relief, issue against Defendant David Edward Peck in the Litigation. In the event that a default and a default judgment are not entered for any reason, then the Litigation shall remain pending as to Defendant David Edward Peck.

b. Simultaneously with their clients' execution of this Agreement, counsel for SCHOLZ and FEHER shall execute the joint motion attached hereto as Exhibit B requesting that the court enter this Agreement as an order under seal, that the court dismiss all claims against FEHER, with SCHOLZ and FEHER bearing their own costs and attorneys' fees through the date of said dismissal, and that the court retain jurisdiction of the Litigation and of the parties for purposes of enforcing this Agreement. FEHER's counsel shall deliver said joint motion with this Agreement as executed by FEHER.

c. Simultaneously with their clients' execution of this Agreement, counsel for SCHOLZ and FEHER shall also execute the Stipulation of Dismissal Of All Claims Against FEHER, attached hereto as Exhibit C. Said Stipulation of Dismissal shall be without prejudice, each party bearing his or her own costs and attorneys' fees through the date of the dismissal, and shall request that the court retain jurisdiction of the Litigation for purposes of enforcing this Agreement. FEHER's counsel shall deliver said signed stipulation with this Agreement as executed by FEHER. In the event that the court will not allow disposition of the Litigation as per Paragraph 9(b) above, then SCHOLZ's counsel shall file the Stipulation of Dismissal.

d. SCHOLZ and FEHER hereby accept the personal jurisdiction and venue of the Florida Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County for purposes of enforcing this Agreement.

10. Breach.

If FEHER breaches any provision of Paragraphs 3, 4, and/or 5 above, then:

a. SCHOLZ's covenant not to sue FEHER, contained in Paragraph 6 above, will be deemed void ab initio and ineffective;

b. FEHER hereby stipulates that SCHOLZ will be entitled to a preliminary injunction under the terms of Paragraphs 3, 4, and 5 with notice of hearing to FEHER (unless an ex parte hearing is appropriate under the circumstances under the Florida Rules of Civil Procedure), that FEHER's breach of Paragraphs 3, 4, and/or 5 above shall constitute irreparable harm to SCHOLZ, and that SCHOLZ will be substantially likely to succeed on the merits of an action to enforce this Agreement; moreover, FEHER hereby stipulates that SCHOLZ shall not be required to post a bond in excess of $1,000 in connection with said preliminary injunctive relief; and

c. If SCHOLZ prevails in an action to enforce this Agreement, then, in addition to any other injunctive or monetary relief awarded by the court therein, SCHOLZ will be entitled to:

i. a judgment against FEHER for $13,000 in damages for the investigator fees that SCHOLZ expended in investigating the acts complained of in the Litigation;

ii. a permanent injunction against FEHER under the terms of Paragraphs 3, 4, and 5 above; and

iii. an award of reasonable attorneys' fees against FEHER for all attorneys' fees that SCHOLZ incurs as a result of FEHER's breach and/or in connection with enforcing this Agreement, from the date of said breach. Under no circumstances shall SCHOLZ be responsible for FEHER's attorneys' fees in any such action, unless SCHOLZ shall not prevail and the court determines that SCHOLZ's enforcement action was frivolous.

11. Notices.
Any notices sent under this agreement shall be made in writing and sent via facsimile and via certified mail:

a. if notifying SCHOLZ, then to:

Susan E. Stenger, Esquire
PERKINS, SMITH & COHEN, LLP
One Beacon Street
Boston, MA 02108
tel: 617-854-4000
fax: 617-854-4040

or to such subsequent address of which SCHOLZ sends written notice to FEHER at the address set forth in ¶ 11(b).

b. if notifying FEHER, then to:

[REDACTED]

or to such subsequent address of which FEHER sends written notice to SCHOLZ at the address set forth in ¶ 11(a).

12. Should any provision of this Agreement be deemed or determined finally by any court to be illegal or invalid, the validity of the remaining provisions shall not be affected thereby.

13. This Agreement is the product of negotiation between counsel for FEHER and counsel for SCHOLZ. Each of the signatories below hereby warrants and represents that he/she has read this Agreement in full, has obtained or had the opportunity to obtain the advice of legal counsel in entering this Agreement, fully understands each provision hereof, agrees to be bound by all of the terms and provisions set forth herein, and enters this Agreement of his/her own free will.

14. This Agreement may be executed simultaneously in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.


HEREBY AGREED TO, UNDER SEAL.

__________________________
JAYNE E. FEHER
May 25, 2000


__________________________
DONALD THOMAS SCHOLZ
May __, 2000




STATE OF FLORIDA

Miami-Dade County

May 25, 2000

The above signature of Jayne E. Feher was subscribed, sworn to, and acknowledged before me this 25 day of May 2000.


__________________________
Notary Public
My Commission Expires:




RECORDS RELEASE AUTHORIZATION


To: Bell South

I, JAYNE E. FEHER, hereby authorize the immediate release of copies the following records to Susan E. Stenger, Esquire, PERKINS, SMITH & COHEN, LLP, One Beacon Street, Boston, MA 02109:

All telephone bills issued to Jayne E. Feher for the periods including November 1, 1999, through January 31, 2000, except that all itemization of all calls to anywhere other than a California area code shall be blacked out or otherwise deleted. This release shall encompass all accounts in Jayne E. Feher's name, whether individually or jointly with another, including but not limited to the account for telephone number [REDACTED] and any cellular telephone accounts.



__________________________
Jayne E. Feher
[REDACTED]
Dated: May 25, 2000



RECORDS RELEASE AUTHORIZATION


To: AT&T Corp.

I, JAYNE E. FEHER, hereby authorize the immediate release of copies the following records to Susan E. Stenger, Esquire, PERKINS, SMITH & COHEN, LLP, One Beacon Street, Boston, MA 02109:

All telephone bills issued to Jayne E. Feher for the periods including November 1, 1999, through January 31, 2000, except that all itemization of all calls to anywhere other than a California area code shall be blacked out or otherwise deleted. This release shall encompass all accounts in Jayne E. Feher's name, whether individually or jointly with another, including but not limited to the account for telephone number [REDACTED] and any cellular telephone accounts.



__________________________
Jayne E. Feher
[REDACTED]
Dated: May 25, 2000



STATE OF FLORIDA

Miami-Dade County

May __, 2000

The above signature of Jayne E. Feher was subscribed, sworn to, and acknowledged before me this ____ day of May 2000.


__________________________
Notary Public
My Commission Expires:


COMMONWEALTH OF MASSACHUSETTS
Middlesex County
May __, 2000

The above signature of Donald Thomas Scholz was subscribed, sworn to, and acknowledged before
me this 22nd day of May 2000.


ses-settlmnt agrmt-7319-21

 
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