COMMONWEALTH OF MASSACHUSETT MIDDLESEX, SS ) SUPERIOR COURT)

MT IVY PRESS, ) JANE DANIEL, ) Plaintiffs, ) ) Civil Action vs. ) No.:) MONIQUE DE WAEL, a/k/a, ) MISHA DEFONSECA, ) VERA LEE, and ) EDWARDS, ANGELL, PALMER, & DODGE, ) Defendants )


PLAINTIFFS’ COMPLAINT AND JURY TRIAL DEMAND


I. PARTIES


1. The plaintiff, Mt Ivy Press, LP (hereinafter, "Mt Ivy"), is a limited partnership doing business within the Commonwealth of Massachusetts.


2. The plaintiff, Jane Daniel (hereinafter, "Daniel"), is a resident of Gloucester, MA.

3. The defendant, Monique DeWael, a/k/a Misha Levy Defonseca (hereinafter, "Defonseca"), is a resident of Dudley, MA.


4. The defendant, Vera Lee (hereinafter, "Lee"), is a resident of Newton, MA.


5. The defendant, Edwards, Angell, Palmer, & Dodge (at the time of litigation, known as Palmer & Dodge, hereinafter "EAPD"), is a limited liability partnership with a principal place of business in Boston, MA.


II. STATEMENT OF FACTS


6. In 1994, the plaintiff, Daniel, was working as a publisher/editor at Mt Ivy Press, LP, a small publishing company, founded by the plaintiff, the previous year.


7. In the course of the plaintiff's business, the plaintiff, Daniel, met the defendant, Defonseca.




8. When the plaintiff first met the defendant, Defonseca, Defonseca related that:


a. As a Jewish child, age 7, she was living in Belgium, when her parents were arrested by the Nazis in 1941;


b. She was placed in a foster home, and she was given a false identity, Monique DeWael, age four. Such identity was assumed for the purposes of protecting herself from the Nazis;


c. Defonseca was befriended by a man, who she referred to as "grandfather," whose name was Ernest DeWael, who gave her a tiny compass, and showed her a map of Europe;


d. When Ernest DeWael expressed to Defonseca concern that the Nazis would come for her, Defonseca set out on a journey "to the East" in search of her parents;


e. Over the next four years, Defonseca walked three thousand miles across the European theater of war, hiding in forests where twice she was befriended by wolves.


9. Defonseca further related to the plaintiff that she had been telling her story, and soliciting contributions from speaking engagements since approximately 1989-1990, and had been warmly embraced by the Jewish community in the Boston area and elsewhere.


10. Upon hearing the story, as related by the defendant, Defonseca, the plaintiff offered to publish Defonseca's autobiography (hereinafter, "the book").


11. Defonseca engaged a French-speaking writer, defendant, Vera Lee, to ghostwrite Defonseca's story, as Defonseca's command of the English language was weak.


12. Defonseca and Lee signed a collaboration agreement, intended to set forth the respective rights of the parties.


13. Both Defonseca and Lee signed publishing agreements with Mt Ivy Press, LP, in August of 1995.


14. Both publishing agreements contained the following warranty:


A. The Author represents and warrants to the Publisher that, with respect to the Work as submitted by Author, excluding revisions or additions by Publisher (i) the Work is not in the public domain; (ii) the Author and her collaborator are the sole and exclusive owners of the Work and have full power, free of any rights of any nature whatsoever in any one that mightinterfere therewith, to enter into this Agreement and to grant the rights hereby conveyed to the Publisher, (iii) the Work has not heretofore been published in whole or in part; (iv) the Work is original except for material in the public domain and such excerpts from other works as may be included with the written permission of the owners thereof; (v) the Work does not, and if published will not, infringe upon any proprietary right at common law; or any statutory copyright, or trade names, or patent, or trademark rights, or any other right whatsoever, (vi) the Work contains no matter whatsoever that is obscene, libelous, in violation of any right of privacy, or otherwise in contravention of law or the right of any third party; (vii) all statements of fact are true or based upon reasonable belief, except for facts and identities deliberately misstated to preserve confidentiality or for other valid reasons, provided the Author notifies the Publisher thereof (viii) the Work, if biographical or “as told to” the Author, is authentic, and (ix) the Author will not hereafter enter into any agreement or understanding with any person, firm, or corporation that might conflict with the rights herein granted to the Publisher.


15. Defonseca and Lee set to work to draft the manuscript. Over time, disagreements arose between Lee and Defonseca regarding the scheduling of time to work together on the manuscript.


16. During the same time frame, disputes began to arise between Lee, Daniel, and Defonseca, regarding the plaintiff's editorial dissatisfaction with respect to the form, substance, and delayed production time of the manuscript.


17. Defonseca's account of her experience could not be subjected to standard verification and process, due to the absence of certain critical information, including, but not limited to:


a. Defonseca reported that she did not know, and had never been told, her Jewish surname;


b. She had simply been called "Mischke," and never known her parents by any names other than "Gerusha,"(her mother, a Russian Jew), and "Reuven,"(her father, a German Jew);


c. Her parents were emigrees to Belgium;


d. She did not know her place of birth, but represented that she suspected it may have been Poland.


18. In the course of her research, the plaintiff, Daniel, learned that, at times, Jewish children of the Holocaust lost their identities when their parents were taken away.


19. Without the names, date, and place of birth of "Mischke," it was not possible for the plaintiff to check the personal aspects of the story.


20. To ready the manuscript for publication, the plaintiff attempted to undertake fact checking, including verifying historical and descriptive details, researching historical events, studying the flora and fauna of geographical locations and investigating behavior of wolves in the wild, etc.


21. The plaintiff also sent the manuscript to wolf experts, and to Jewish scholars and Holocaust experts for review.


22. Enthusiastic endorsements were returned from several luminaries, including the chaplain of Brandeis University, Rabbi Albert Axelrod, Noble Laureate and renowned Holocaust survivor, Eli Wiesel, Leonard Zakim, director of the New England region of the Anti-Defamation League, and the North American Wolf Foundation.


23. The American book was published in April 1997, under the title, Misha: A Memoir of the Holocaust Years. American edition, was followed shortly thereafter by a French version, published by Editions Lafont, under the title, Surivre avec les loups, (Survival with Wolves), the production of which was under the oversight of Defonseca exclusively. Neither Mt Ivy Press, nor Jane Daniel, had any input with respect to the French edition, other than to make several specific minor corrections request by Lafont. Other foreign editions followed.


24. Two significant changes were made in the Lafont editions, and subsequent editions controlled by Defonseca. Identifying photographs were removed, and the "false identity" of "Mischke" was changed from Monique DeWael, to Monique Valle.


25. In 1997, Lee initiated a suit against plaintiffs Daniel and Mt Ivy Press, and defendant, Defonseca, in Middlesex Superior Court, C.A. No. 98-2456, alleging, among other things, breach of contract.


26. From the inception of the underlying litigation in May 1998, until March 1999, Defonseca represented herself.


27. In the course of her self-representation, defendant, Defonseca, filed a counter-claim against Lee, affirmatively representing, among other things, breach of contract.


28. The counter-claim filed by Defonseca against Lee represented that Defonseca had complied with all of the terms of the collaboration agreement, including that the book was, "based on the author's life experience, accomplishments, and impact upon society."


29. In the course of her self-representation, Defonseca filed a cross-claim against Daniel/Mt Ivy, alleging, among other things, breach of contract.


30. In the verified Answer, Cross Claim, and Counterclaim filed by Defonseca, acting pro se, on 7/20/98, Defonseca affirmatively represented, in addition to other matters:

a. "...the work, Misha...is Defonseca's story."; (Answer, Counterclaim, and Cross Claim of defendant, Misha Defonseca, paragraph 104);


b. "Defonseca, who is a Holocaust survivor, is not only deprived of a well-deserved quiet and comfortable enjoyment of a job well done..."(Answer, Counterclaim, and Cross Claim of Defendant, Misha Defonseca, Paragraph 136);


c. "...that the defendant has fully performed all duties with respect to the relevant contracts..." (Answer, Counterclaim, and Cross Claim of Defendant, Misha Defonseca, Second Affirmative Defense);


d. "...all actions undertaken by the defendant were undertaken in good faith, and any representations that may have been made by the defendant were true." (Answer, Counterclaim, and Cross Claim of Defendant, Misha Defonseca, Third Affirmative Defense, filed with this Honorable Court on 7/20/98);


e. That Defonseca and Lee were to write and prepare a manuscript about the life of defendant, Defonseca, "during the Holocaust years..." (Answer, Counterclaim, and Cross Claim of Defendant, Misha Defonseca, Count II, paragraph 8);


f. That the conduct of plaintiffs herein, Daniel, and Mt Ivy, "caused heightened stress, emotional distress, and pain on Defonseca, who is a survivor and, as such, is very sensitive to threats of misrepresentation, and to any tendency to downplay or sugar coat the events that happened during the Holocaust." (Answer, Counterclaim, and Cross Claim of Defendant, Misha Defonseca, Count VI, paragraph 34);


g. That Defonseca had experienced, "emotional pain of reliving her story." (Answer, Counterclaim, and Cross Claim of Defendant, Misha Defonseca, Count IX, paragraph 50);




h. That each of the foregoing paragraphs were personally reviewed by Defonseca and that, "said statements are true and accurate to the best of her knowledge and belief." (Answer, Counterclaim, and Cross Claim of Defendant, Misha Defonseca, Verification);


31. The above representations, made by Defonseca, were made under notary seal.


32. In addition to these affirmative misrepresentations made by Defonseca, who represented herself in the instant action, the defendant made similar misrepresentations with respect to the claims made by Daniel and Mt Ivy, including:


a. "all actions undertaken by Defendant in Cross Claim, Defonseca, while acting as her own counsel, and any representations that may have been made by the defendant in cross claim to the plaintiff in cross claim were true"(Answer of Defendant, Misha Defonseca, filed 11/19/98, Sixth Affirmative Defense).


b. "to the extent that the Defendant in Cross Claim, Defonseca, owes any duties to Mt Ivy and Daniel, Defonseca has fully performed and fulfilled such duties or obligations"(Answer of Defendant, Misha Defonseca, filed 11/19/98, Tenth Affirmative Defense).


33. By virtue of these representations, Defonseca represented to the Court, both in her capacity as litigant and counsel, that the facts forming the basis of the book were wholly true, and that the warranties made by Defonseca to Daniel/Mt Ivy in this regard were fulfilled.


34. This was only the tip of the iceberg with respect to deceit, fraud, and misrepresentation which Defonseca would present to the Court, in pleading form, prior to retaining counsel.


35. In sworn affidavits filed with the Court, Defonseca stated the following:


a. That she felt that she had been taken advantage of by Lee, and Daniel/Mt Ivy, with respect to her, "story...without any consideration or respect for what I went through, not only in my earlier life, but during this whole, grueling, and unnecessarily lengthy exercise of reliving my experience, to make the book in English..." (Defonseca Affidavit, dated 10/6/98);


b. that "my story, and my image belong to me. It is my life. Nobody has the right to exploit or make money from it without informing me and paying my share of the revenues" (Defonseca Affidavit, dated 10/6/98);


c. That Defonseca was "terribly stressed to have to go over it again" (Defonseca Affidavit, dated 10/6/98);


d. That Daniel had failed to, "gracefully accept" that Defonseca's parents were taken in 1941, as reported (Defonseca Affidavit, dated 10/6/98);


e. That, due to the alleged failure of Lee, Daniel, and Mt Ivy, to live up to their contractual obligations, she was, "reduced to ask for the help of the Jewish Family & Children's Services for food, assistance" (Defonseca Affidavit, dated 10/17/98);

f. That "Misha's story is not 'Sleeping Beauty's' it is war, a child in the middle of war, and inhumanity at this time" (Exhibit to Motion for Amendment to Cross Claim by defendant, and plaintiff in Cross Claim, Misha Defonseca).


36. After the appearance of counsel on her behalf, on or about March 11, 1999, Defonseca continued to fuel a continuous and unconscionable scheme calculated to interfere with the judicial system's ability to impartially adjudicate the matter. This included perjured testimony at her deposition, and at trial.


37. The trial of this matter was held in Middlesex Superior Court, the Honorable Elizabeth M. Fahey, Justice presiding, from August 6, 2001 to August 20, 2001.


38. The myth of Defonseca's persona as a Holocaust survivor was a central building block founded on Defonseca's perjured testimony, and propagated by her counsel in Defonseca's case.


39. Indeed, the book itself was introduced into evidence at trial, and was at the disposal of the jury to peruse, read, and contemplate during deliberation.


40. The book, offered and accepted into evidence, was wholly and entirely perjurious.


41. Examples of Defonseca's calculated, perjurious, testimony, included:


a. That, as a Holocaust survivor, Defonseca was extremely sensitive to threats or false representations (Defonseca trial testimony 5-77: 19).


b. She was paid $2,000-4,000 for speeches given regarding her status as a Holocaust survivor (Defonseca trial testimony 5-80: 19);


c. That Defonseca is, "not very good at fighting people. I used to be with animals" (Defonseca trial testimony, 5-91: 22);




d. That Defonseca had to steal in order to eat during the war (Defonseca trial testimony, 5-92: 1);


e. That Defonseca, during the war, had to kill to survive (Defonseca trial testimony, 5-92: 16);


f. Regarding her parents, reported to have been taken by the Nazis and taken to a concentration camp:


  1. "For me, having a movie, it is a memory as to my parents. And I hope that somebody in the world would say I have known them" (5-146: 6).


  1. "Because a lot of survivors are old now. That is not so much left. And if it continues, I am going to have a lesser opportunity to find somebody, somewhere"(Defonseca trial testimony, 5-146: 21).


g. Regarding her encounter with wolves in a promotional event sponsored by Mt Ivy at Wolf Hollow in Ipswich, MA, "Those wolves are not the wolves I knew 50 years ago when I was a kid, innocent in the woods"(Defonseca trial testimony, 5-152: 13)


42. The impact that Defonseca's status as a Holocaust survivor would have on the jury was not lost on Defonseca's counsel, Ramona Hamlin.


43. In closing argument, she hammered home the point, arguing to the jury:


a. "And what was she trying to defend herself about? Her life story. The tragedy has already been visited on Misha, that's not in dispute. She lost her parents at 7 years old, and wandered through Europe unprotected for four years. That's not in dispute. That happened to her."


b. "All along the reason that Misha got involved in this project was that Misha wanted to write a book to make a memory for her parents. Misha wrote to Jane in December of 1997, 'Remember you said repeatedly that you wanted to make a businesswoman of me, and I didn't want to. I wanted this book as a memory.'"


44. As is now known, and acknowledged by Defonseca, the evidence of her reported history as a Holocaust survivor, and the corresponding persuasive argument made by her counsel at trial were created from whole cloth and contained not one granule of truth.




45. Her false claims of writing her book to locate anyone who knew her parents in the Nazi Concentration camp were geared towards eliciting jury sympathy.


46. The perjurious evidence, presented by Defonseca at trial, in concert with her counsel's propagation of same, yielded the desired result, a massive award in favor of Defonseca against Mt Ivy and Daniel.


47. In a twenty-four page, special verdict form, dated August 20, 2001, the jury found, among other things:


a. That Mt Ivy Press breached its publishing agreement with Lee;


b. That Mt Ivy Press breached its publishing agreement with Defonseca;


c. That Lee had performed her obligations under the publishing agreement with Mt Ivy Press;


d. That Defonseca had performed her obligations under the publishing agreement with Mt Ivy Press;


e. That Mt Ivy Press had breached M.G.L. c. 93A with respect to its business dealings with Defonseca;


f. That Mt Ivy Press had breached M.G.L. c. 93A with respect to its business dealings with Lee;


g. That Lee had not breached her publishing agreement with Mt Ivy Press;


h. That Defonseca did not breach her publishing agreement with Mt Ivy Press.


48. In total, the jury had found damages against Mt Ivy, and Daniel individually, in the amount of, approximately $11,000,000.00; the trial court later trebled the award, to roughly $33,000,000.00, for "unfair and deceptive business practices"(M.G.L. c. 93A). The jury also granted all dramatic, movie, television, and radio rights to Defonseca.


49. The Court also awarded Mt Ivy's copyright to Defonseca and Lee.


50. An appeal was taken to the Appeals Court of Massachusetts, resting predominantly on the theory that the state law claims, involved in the underlying action, were pre-empted by Federal copyright law (17 U.S.C. Sec. 101 et. seq.).




51. On May 17, 2005, the Court of Appeals issued an opinion regarding the appeal. The opinion commenced with the following description, "Shortly after the Nazis seized her parents, seven year old Misha Levy fled alone to the forests and villages of Europe, where she wandered for four years. Along the way, she witnessed atrocities, found herself trapped in the Warsaw ghetto, and killed a Nazi soldier in self-defense. Miraculously, she survived her ordeal, thanks to her strong will and guile, as well as, incredibly, the aid of a pack of wolves, who "adopted" and protected her, providing food, companionship, and affection."


52. Focusing solely on the narrow issue of Federal pre-emption, the findings of the jury and trial court were upheld.


53. During the pendency of the appeal, plaintiff, Daniel, began to suspect, for the first time, that there may have been certain aspects of Defonseca's account that may not have been the literal truth.


54. At the time of trial, in August of 2001, there was no affirmative evidence available to the plaintiff that Defonseca's account was, in any way, shape, or form, false.


55. During the pendency of the appeal, Daniel continued to look for concrete evidence, one way or another, regarding the truthfulness of the Defonseca account. Towards this end, the plaintiff, Daniel, contacted several genealogists, who informed her that, based upon the limited information available, they could offer no assistance in researching Defonseca's family history.


56. On or about June 2006, Daniel, in reviewing cartons of documents turned over to her by Mt Ivy's literary agency, EAPD, post-trial, came upon a photocopy of a signature card for two of Defonseca's bank accounts.


57. A Middlesex Savings bank account form contained the following information: name: Monique(Misha) Defonseca; date of birth 5/12/37; birthplace: Etterbeek, Belgium; mother's maiden name: Donville.


58. For the first time, the plaintiff, Daniel, had a hint that there may have been inconsistencies in Defonseca's autobiography, to wit, that Defonseca had claimed that she knew neither the place nor date of her birth, nor her family name.


59. Utilizing the information, the plaintiff attempted to access vital records in Belgium, in utilizing the information she had obtained. However, Belgium has a privacy law which seals all vital records, birth, death, and marriage, for 100 years.


60. The plaintiff also contacted two private detectives, in order to trace Defonseca's path of immigration to the United States in 1985. However, again, the subject records were sealed and unavailable.

61. The plaintiff, Daniel, then went to the Federal archives in Waltham, MA to search the ships' passengers lists, without success.


62. The plaintiff also ran the names Donville and Dewael through the database of Yad Veshum, a world-wide repository of names of more than three million Holocaust victims, without a match.


63. The plaintiff, Daniel, also posted queries on various genealogical websites, with a focus on Belgium.


64. In July, 2007, Daniel began writing a book on the subject of the ten years of litigation associated with the Work and posting chapters as they were completed on the World Wide Web as a blog. She introduced the book by saying that the end of the story had not yet occurred and asked that anyone with knowledge of the missing pieces of the account contact her.


65. In December, 2007, the plaintiff engaged the services of a private detective firm with operatives in Belgium, but was still unable to attain any further information regarding Defonseca's origins.


66. In January of 2008, the plaintiff was contacted by Sharon Sergeant, a forensic genealogist, who had come upon Daniel’s blog on the Internet. Ms. Sergeant offered to assist the plaintiff, Daniel, in her quest to garner information regarding Defonseca's genealogy and background.


67. Sergeant learned that the book had been translated into 18 languages and made into a full-length feature film in French billed as a “true story.” Sergeant initially compared various editions of the book, particularly the French translation and observed two key differences: the “false identity” given to the orphaned “Mischke” by her “adoptive” family was changed from Monique DeWael in the Mt Ivy edition to “Monique Valle” in the French and U.K. editions, and the photographs of Defonseca’s childhood in the Mt Ivy edition had been removed from foreign editions.


68. Sergeant then searched various databases, including the Avotaynu database of seven million Jewish names, without a match on the names Valle, Donville and DeWael. She searched Jewish deportation records for a married couple with the first names Gerusha and Reuven and found nothing.


69. Next, Sergeant, observing that there were many references to Catholicism in the book, as well as references to comic strips that had appeared in periodicals circulated in Catholic schools, decided to research Catholic baptismal records in Belgium.



70. In the course of such research, Sergeant discovered that there was a maternity ward in a hospital in Etterbeek, the district in Brussels identified on Defonseca's bank record as her place of birth. Correspondingly, Sergeant focused on Catholic parishes located in this district.


71. Finally, proof of Defonseca's true identity was located.


72. A baptismal record for Monica Ernestine Josephine DeWael disclosed that she was born on May 12, 1937 in Etterbeek, daughter of Robert Henri Ernest DeWael, and Josephine Germaine Barbe Donville. The family's address on the baptismal certificate was in another district of Brussels, Schaerbeek.


73. Subsequently, an elementary school was located in the same neighborhood as the DeWael family home in Schaerbeek. A week later, the school produced a record indicating that Monique DeWael had been a student at the elementary school in September 1943, right in the middle of her reported 3,000 mile journey.


74. Daniel posted the two documents on her blog and contacted an outspoken skeptic of Defonseca’s story who had been posting his opinions on a Belgian blog, who then notified the Belgian press of the newly-discovered evidence. With the correct name, (DeWael, not Valle, as had been published in the French edition) the Belgian press was able to uncover even more evidence of Defonseca’s fraud.


75. The plaintiff, Daniel, spent several years working to ascertain whether or not Defonseca's memoir was truthful. It was only with the advancement of the internet, and the corresponding availability of worldwide networking and information access that the truth regarding Defonseca's true identity, and the corresponding magnitude of the hoax perpetrated by her in her memoir came to light.


76. In the aftermath of such a discovery, even more damaging information came to light, including that, on or about March 3, 2008, Le Soir, the leading newspaper in Belgium, published an account in which it was revealed that Defonseca's real father, Robert DeWael, had collaborated with the Nazis and turned over to them members of the Belgium resistance.


77. Confronted with the irrefutable evidence, Defonseca acknowledged, for the first time, in a statement dated 2/28/08, that the memoir was a hoax. In her statement, approximately translated from the French, and reported in the Boston Globe on February 28, 2008, Defonseca acknowledged that every essential element of her autobiography is false, that her testimony at the trial was perjured and that every document she filed with the Court when acting as her own counsel, was intended to mislead the Court and the jury.



78. At all times relevant hereto, the Plaintiffs provided professional and effective services with respect to the publication and marketing of the book, meeting and exceeding their obligations under the Publishing Agreement with Defonseca and Lee.


COUNT I: INDEPENDENT ACTION FOR RELIEF FROM JUDGMENT, ORDER, OR PROCEEDING, OR TO SET ASIDE JUDGMENT FOR FRAUD UPON THE COURT IN ACCORDANCE WITH MASS. R.CIV. P. 60(b): MISCHA DEFONSECA


79. The plaintiff restates and incorporates by reference paragraphs 1-78 of her Complaint, as if specifically set forth herein.


80. Under Mass.R.Civ.P. 60(b), this Honorable Court maintains the power to entertain an independent action to relieve a party from the judgment, order, or proceeding, or to set aside a judgment for fraud upon the Court.


81. The action referred to in the preceding paragraph sounds in equity, and is designed to provide the Court with the flexibility to be certain that justice is done in light of all of the facts.


82. Such independent action has been deemed available to a litigant in order to prevent a grave miscarriage of justice, or where enforcement of the judgment would be manifestly unconscionable.


83. The uncontroverted evidence, now, finally, available, to the plaintiff, and the Court, is that the defendant, Defonseca, participated in a hoax of monumental magnitude, which she perpetrated upon, not only the plaintiffs, Daniel/Mt Ivy Press, but upon the trial and appeals court, and public at large.


84. In perpetrating such hoax, the defendant directly violated the warranty provision in her publishing contract with Daniel/Mt Ivy Press.


85. Said contract required that the defendant warrant that the content of the book was true.


86. Given the defendant's recent, and unequivocal, acknowledgment that the entire book was a hoax, it is axiomatic that she violated this critical, contractual provision with the plaintiffs, Daniel/Mt Ivy Press.


87. Indeed, had the fact of the hoax been known, at or after, the inception of the underlying lawsuit, Defonseca would have been unable to sustain her burden of proof, as a matter of law, and her claims against Daniel/Mt Ivy Press would have been dismissed.


88. Correspondingly, the jury trial which resulted in a verdict against Daniel/Mt Ivy Press would have never occurred.


89. The fact that the book was a hoax also explains Defonseca’s insistence on control over the French translation edition (a major issue at trial), in which she removed all photographs of herself and her true family, and changed the “false identity” given to her by “foster family” from Monique DeWael to Monique Valle.


90. Specifically, had there been wide-spread distribution of Mt Ivy Press’s edition of the book, inclusive of Defonseca’s real name (DeWael) and family photographs, both in the United States and Europe, it would have substantially increased the risk to Defonseca that her scam might be discovered. It was for this reason that Defonseca refused to cooperate in the marketing of the Mt Ivy edition of the book.


91. This demonstrated a conscious manipulation by Defonseca of the publication process, designed to minimize the possibility that her fraud would be uncovered.


92. Defonseca’s intent in this regard is critical, as it supports plaintiffs’ contentions at trial that Defonseca was, in virtually all respects, uncooperative with respect to the promotion of the Mt Ivy edition of the book.


93. Indeed, the relative efforts of the Parties to promote the Mt Ivy edition of the book was at the heart of the underlying controversy.


94. The breadth and scope of the hoax did not stop with the contractual relationship between the plaintiffs herein, and the defendant, Defonseca, however. Such hoax implicated Defonseca's relationship with the court system, and the mechanism thereof as well. In this regard, Defonseca acted as her own counsel in the underlying action from May, 1998, the date of inception of the subject lawsuit, to March 11, 1999.


95. Throughout this time, Defonseca actively participated in the litigation process, representing herself and her own interests, including filing a number of pleadings, which now can be seen to be overtly false.


96. After the appearance of Defonseca's counsel, Defonseca continued to orchestrate a barrage of false pleadings, representations, testimony, and evidence, upon the litigants and the trial and appellate courts.


97. The conduct of Defonseca, both while acting as her own counsel, and as a litigant, had the impact of not only corrupting the ability of the plaintiff, Daniel/Mt Ivy, to mount an affirmative case and/or to prepare defenses in the underlying action, but also sullied the judicial process and machinery itself.


98. Moreover, such conduct had public policy implications far beyond those attendant to the litigants in this action, and the court system itself.


99. The defendant, Defonseca, perpetrated a fraud and a hoax based upon one of the great historical tragedies known to mankind, the Holocaust.

100. The conduct of the defendant, Defonseca, diminishes and mocks the unimaginable suffering of millions of Jews who suffered grievously at the hands of the Nazis during the 1930s and 1940s.


101. Indeed, the defendant, Defonseca, was not satisfied simply to profit on the backs of those who had to endure the horrors of the Holocaust, but was so greedy, that she was willing to sue her publisher and perpetrate a fraud within this court system, to satisfy her greed for additional rights and money.


102. The facts of the case implicate far more than the respective rights of the litigants. Equity mandates that Defonseca's unconscionable profiteering on the blood of Holocaust victims and survivors not receive the endorsement of our legal system.


103. Further, substantial public policy considerations are triggered herein relative to Defonseca's status as the "author" of an "autobiography."


104. Specifically, Defonseca has, in essence, converted the funds of untold readers, who trusted, when the book was purchased, that it was what it purported to be-an autobiography. These readers have been duped and their money stolen by Defonseca.


105. Moreover, Defonseca's conduct corrupts the integrity of the publishing industry. In order for publishers to fulfill their legal and ethical obligations to the consumer, they must be able to rely upon the veracity of the authors, whose work they bring forth.


106. Should this Court allow this judgment to stand it would embolden prospective authors to peddle lies for money, all to the detriment of the consumer.


107. Similarly, should the Court allow this judgment to stand, the esteem afforded the publishing industry itself would be eroded, the public's trust in its’ integrity diminished or eradicated.


108. Relief from the judgment is also warranted, under Mass.R.Civ.P. 60(b), on the grounds that the defendant, Defonseca, committed fraud upon the Court.


109. As noted, Defonseca acted, for several critical months, as her own counsel, affirmatively filing, time and time again, false, misleading, and fraudulent pleadings, never failing to remind the Court of her status as a Holocaust survivor.



110. A pro se party is bound by the same principles, procedures, and substantive law as litigants with legal counsel and is held to the same standards as practicing members of the bar.


111. Correspondingly, Defonseca, both while acting as her own counsel, and while represented, set in motion an unconscionable scheme calculated to interfere with the judicial system's ability to impartially adjudicate the matter by improperly influencing the trier of fact, and unfairly hampering the presentation of the opposing party's claim or defense.


112. It is now beyond dispute that Defonseca, acting pro se, knowingly and intentionally filed a myriad of false pleadings with the Court, as part of a pattern or scheme, calculated to defraud.


113. In this regard, Defonseca fabricated and submitted evidence to the Court and, after counsel appeared, continued to fabricate such evidence, thereby inducing her counsel to perpetrate this fraud, up through trial, and, indeed, through appeal.


114. Given Defonseca's recent acknowledgment regarding the falsehoods associated with the book, and ensuing pattern of perjury and evidentiary fabrication in the underlying action, the evidence is well beyond the clear and convincing standard that she engaged in fraud upon the Court.


115. Defonseca's conduct, aided wittingly or unwittingly by her counsel, had the effect of corrupting the judicial process itself.


116. Moreover, at all times relevant hereto, the plaintiffs, Daniel/Mt Ivy, acted vigilantly and aggressively, in trying to ascertain the truth. Correspondingly, there were never undue or unreasonable delays on the part of the plaintiff, in bringing this matter to the attention of the Court.


117. Further, the plaintiff maintains that this independent action is subject to the tolling provisions of M.G.L. c. 260 Sec. 12, based upon the undisputed fact that the defendant fraudulently concealed such cause of action from the plaintiff until 2/28/08, when Defonseca acknowledged that the book was a hoax.

118. Nor can it be said that the conduct of Defonseca did not substantially and irrevocably impact the findings of the jury in the trial of this matter.


119. There can be no question that Defonseca's testimony would have been viewed differently had the jury been aware that the underlying book was a fraud and a hoax.



120. Moreover, as a matter of law, Defonseca's failure to provide a truthful account constituted a breach of contract with the plaintiffs, Daniel/Mt Ivy Press, and the jury, as a matter of law, could not have found otherwise.


121. Finally, it would be naive to believe that Defonseca's impersonation of a Holocaust survivor did not, in a large sense, color the entirety of the proceedings.


122. Additionally, the hoax, if known to the jury, would have explained many aspects of Defonseca's conduct, at issue during the trial, in particular the deletion of photographs and name change in the French language edition of the book, and her reticence in appearing on the "Oprah" program, both of which might have led to the unraveling of her story.


123. If this judgment is permitted to stand, irreparable and grave harm will come to the integrity of the judicial system.


124. If this judgment is permitted to stand, irreparable and grave harm will come to the honored legacy of Holocaust survivors and victims.


125. If this judgment is permitted to stand, irreparable and grave harm will come to the renown of the publishing industry.


126. If this judgment is permitted to stand, irreparable and grave harm will continue to befall Daniel and Mt Ivy, left in personal, professional, and financial ruin, in the wake of Defonseca's reprehensible conduct.


127. All of the elements necessary to vacate this judgment by mechanism of a 60(b) independent action exist in this case, including:


a. the judgment in equity and good conscience ought not to be enforced;


b. Mt Ivy and Daniel have a meritorious defense in the underlying case;


c. There is irrefutable evidence of fraud on the part of Defonseca, acting both as legal representative and litigant;


d. there is no fault or negligence on the part of Daniel/Mt Ivy; and,


e. there is no adequate remedy at law.


128. At all time relevant hereto, the plaintiffs have acted professionally, ethically, and in compliance with their contractual obligation and come to this Court with clean hands.



WHEREFORE, the plaintiffs move this Honorable Court to exercise its equitable powers, pursuant to Mass.R.Civ.P. 60(b), to vacate the judgment entered by the trial court entered on August 23, 2001, and all ensuing post-judgment orders issued by the Court, arising out of, or attendant to, said judgment.



COUNT II: RELIEF FROM JUDGMENT, ORDER, OR PROCEEDING UNDER MASS.R.CIV.P.60(b)(6): MISHA DEFONSECA


129. The plaintiff restates and incorporates by reference paragraph 1-78 of her Complaint, as if specifically set forth herein.


130. The facts and circumstances surrounding this hoax, perpetrated by Defonseca, heretofore described, constitute extraordinary circumstances upon which relief is required under the law. Specifically, the egregious conduct of the defendant herein, impacted not only the litigants themselves, but tainted the judicial process, such that fraud on the Court occurred.


131. Moreover, equitable principles warrant relief hereunder. To allow a result to stand would be against the notion of judicial fairness, and would offend the ethical conscience of not only the Court, but our society as a whole.


132. The defendant, Defonseca, acting as both litigant and counsel, perpetrated the fraud upon the litigants, the Court, and the world. To allow the Court to sanction or place its imprimatur upon the actions of Defonseca in this regard would be to allow one of the greatest injustices in the annals of Massachusetts' judicial history to stand.


133. Moreover, should the Court give its blessing to Defonseca's profiteering, it would have the effect of diminishing, minimizing, and trivializing the experiences endured by Holocaust victims and survivors throughout the world.


134. Equity requires that not only should Defonseca be precluded from reaping the financial benefits of her hoax but also from the benefits of a fabricated case against Daniel and Mt Ivy Press, that resulted in a judgment of roughly 32.5 million dollars against the plaintiffs.


135. At all times relevant hereto, the plaintiffs have acted professionally, ethically, and in compliance with their contractual obligation and come to this Court with clean hands.


WHEREFORE, the plaintiffs move this Honorable Court to exercise its equitable powers, pursuant to Mass.R.Civ.P. 60(b), to vacate the judgment entered by the trial court on August 23, 2001, and all ensuing post-judgment orders issued by the Court, arising out of, or attendant to, said judgment.

COUNT III: INDEPENDENT ACTION FOR RELIEF FROM JUDGMENT, ORDER, OR PROCEEDING, OR TO SET ASIDE JUDGMENT FOR FRAUD UPON THE COURT IN ACCORDANCE WITH Mass. R.Civ. P. 60(b): VERA LEE


136. The plaintiff restates and incorporates paragraphs 1-78 of her Complaint, as if specifically set forth herein.


137. Lee rode the coattails of Defonseca's fraudulent conduct all the way to victory at trial.


138. As the entire underlying proceeding was tainted by the conduct of Defonseca, heretofore described, it is impossible to cull out the respective rights and liabilities of the parties to underlying action, in the absence of such false evidence.


139. The fraudulent conduct of Defonseca, heretofore described, adversely impacted Daniel/Mt Ivy Press' ability to prosecute its claims and defenses against Lee, as the foundation of the entire trial was that Defonseca had written a truthful account of her experiences during World War II.


140. Moreover, like Defonseca, Lee, in her publishing agreement with Mt Ivy Press/Daniel, warranted that all of the materials presented by Lee to Mt Ivy Press, in connection with the book, were true.


141. Whether or not Lee knew that Defonseca's account was, in whole or part, fabricated, the warranty provision of the publishing agreement was breached.


142. This breach is critical to the outcome of claims by and between Mt Ivy/Daniel and Lee.


143. Indeed, had the fact of the hoax been known, the inception of the underlying lawsuit, Lee would have been unable to sustain her burden of proof, as a matter of law, and her claims against Daniel/Mt Ivy Press would have been dismissed.


144. Correspondingly, the jury trial which resulted in a verdict against Daniel/Mt Ivy Press would have never occurred.


145. Moreover, further fact finding is warranted with respect to the knowledge of Lee, the book's ghostwriter, regarding the falsified facts contained therein.


146. These factual questions should be subject to inquiry with respect to further discovery.


147. Most importantly, there is no possible way to segregate a judgment obtained by Lee against Daniel/Mt Ivy from the pervasive fraud which dominated the trial and appeal of these matters.

148. Further, the plaintiff maintains that this independent action is subject to the tolling provisions of M.G.l. c. 260 Sec. 12, based upon the undisputed fact that the defendant fraudulently concealed such cause of action from the plaintiff until 2/28/08, when Defonseca acknowledged that the book was a hoax.


149. All of the elements necessary to vacate this judgment by mechanism of a 60(b) independent action exist in this case, including:


a. the judgment in equity and good conscience ought not to be enforced;


b. Mt Ivy and Daniel have a meritorious defense in the underlying case;


c. There is irrefutable evidence of fraud on the part of Defonseca, acting both as legal representative and litigant;


d. there is no fault or negligence on the part of Daniel/Mt Ivy; and,


e. there is no adequate remedy at law.


150. At all times relevant hereto, the Plaintiffs have acted professionally, ethically, and in compliance with their contractual obligation and come to this Court with clean hands.


151. Correspondingly, this Court should use its equitable powers provided for under Rule 60(b), to set aside the judgment obtained by Lee, within this framework. A judgment which is, on its face, unconscionable, and which should not, in the interests of justice, be permitted to stand.


WHEREFORE, the plaintiffs move this Honorable Court to exercise its equitable powers, pursuant to Mass.R.Civ.P. 60(b), to vacate the judgment entered by the trial court on August 23, 2001, and all ensuing post-judgment orders issued by the Court, arising out of, or attendant to, said judgment.


COUNT IV: RELIEF FROM JUDGMENT, ORDER, OR PROCEEDING, UNDER Mass. R.Civ. P. 60(b)(6): VERA LEE


152. The plaintiff restates and incorporates by reference paragraphs 1-78 of her complaint as if specifically set forth herein.


153. As described in the substance of this Complaint, there are extraordinary and compelling circumstances which, in the interests of justice, require that the underlying judgment maintained by Lee against Daniel/Mt Ivy Press be vacated.




154. The conduct of defendant, Defonseca, tainted and corrupted the entire judicial process with respect to the underlying trial such that the findings of the jury, the trial, and appellate courts entirely lack factual foundation.


155. Given these extraordinary circumstances, the trial court, pursuant to M.R.C.P. 60(b)(6), should vacate the judgment, and all ensuing orders which arose from the judgment.


156. At all times relevant hereto, the plaintiff acted expeditiously and vigilantly in her attempt to discover the underlying fraud, and to seek judicial relief in connection therewith.


157. At all times relevant hereto, the Plaintiffs have acted professionally, ethically, and in compliance with their contractual obligation and come to this Court with clean hands.


WHEREFORE, the plaintiffs move this Honorable Court to exercise its equitable powers, pursuant to Mass.R.Civ.P. 60(b), to vacate the judgment entered by the trial court on August 23, 2001, and all ensuing post-judgment orders issued by the Court, arising out of, or attendant to, said judgment.



COUNT V: INDEPENDENT ACTION FOR RELIEF FROM JUDGMENT, ORDER, OR PROCEEDING, OR TO SET ASIDE JUDGMENT FOR FRAUD UPON THE COURT IN ACCORDANCE WITH Mass. R.Civ. P. 60(b): EAPD


158. The plaintiff restates and incorporates by reference paragraphs 1-78 of her Complaint, as if specifically set forth herein.


159. EAPD, a law firm/literary agency, was a reach and apply defendant in the underlying action.


160. In its capacity as a reach and apply defendant, EAPD was caused to wrongfully pay to the defendants, Lee and Defonseca, funds arising out of the judgment from the underlying action.


161. For reasons heretofore stated, the judgment in question should be vacated on the basis of the Court's equity power, as embodied in M.R.C.P. 60(b).


162. Moreover, at all times relevant hereto, the plaintiffs, Daniel/Mt Ivy, acted vigilantly and aggressively, in trying to ascertain the truth. Correspondingly, there were never undue or unreasonable delays on the part of the plaintiff, in bringing this matter to the attention of the Court.



163. Further, the plaintiff maintains that this independent action is subject to the tolling provisions of M.G.l. c. 260 Sec. 12, based upon the undisputed fact that the defendant fraudulently concealed such cause of action from the plaintiff until 2/28/08, when Defonseca acknowledged that the book was a hoax.


164. At all times relevant hereto, the Plaintiffs have acted professionally, ethically, and in compliance with their contractual obligation and come to this Court with clean hands.


165. The necessary factors for vacating a judgment pursuant to M.R.C.P. 60(b), with respect to EAPD, are in place, including:


a. the judgment in equity and good conscience ought not to be enforced;


b. Mt Ivy and Daniel have a meritorious defense in the underlying case;

c. There is irrefutable evidence of fraud on the part of Defonseca, acting both as legal representative and litigant;


d. there is no fault or negligence on the part of Daniel/Mt Ivy; and,


e. there is no adequate remedy at law.


WHEREFORE, the plaintiffs move this Honorable Court to exercise its equitable powers, pursuant to Mass.R.Civ.P. 60(b), to vacate the judgment entered by the trial court on August 23, 2001 date, and all ensuing post-judgment orders issued by the Court, arising out of, or attendant to, said judgment.



COUNT VI: RELIEF FROM JUDGMENT PURSUANT TO 60(b)(6): EAPD


166. The plaintiff restates and incorporates by reference paragraphs 1-78 of her complaint as if specifically set forth herein.


167. As described in the substance of this Complaint, there are extraordinary and compelling circumstances which, in the interests of justice, require that the underlying judgment maintained by Lee against Daniel/Mt Ivy Press be vacated.


168. The conduct of defendant, Defonseca, tainted and corrupted the entire judicial process with respect to the underlying trial such that the findings of the jury, the trial, and appellate courts entirely lack factual foundation.


169. Given these extraordinary circumstances, the trial court, pursuant to M.R.C.P. 60(b)(6), should vacate the judgment, and all ensuing orders which arose from the judgment.

170. At all times relevant hereto, the plaintiff acted expeditiously and vigilantly in her attempt to discover the underlying fraud, and to seek judicial relief in connection therewith.


171. At all times relevant hereto, the Plaintiffs have acted professionally, ethically, and in compliance with their contractual obligation and come to this Court with clean hands.


WHEREFORE, the plaintiffs move this Honorable Court to exercise its equitable powers, pursuant to Mass.R.Civ.P. 60(b), to vacate the judgment entered by the trial court on August 23, 2001 date, and all ensuing post-judgment orders issued by the Court, arising out of, or attendant to, said judgment.


Plaintiffs,

By their attorneys,



__________________________

JOSEPH M. ORLANDO, ESQ.

BBO #380215

BRIAN S. MCCORMICK, ESQ.

BBO #550533

Orlando & Associates

One Western Avenue

Gloucester, MA 01930

978-283-8100




Date: _____________________