Case 1:21-cv-11181-DPW Document 146 Filed 10/01/22 Page 1 of 7
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT COURT OF MASSACHUSETTS
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`Ina Steiner,
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`David Steiner,
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`Steiner Associates, LLC,
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`(Publisher of EcommerceBytes)
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`Plaintiffs
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`vs.
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`eBay, Inc., et al.,
`Defendants
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`__________________________________________|
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`CASE NO: 1:21-cv-11181
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`PLAINTIFFS’ SUPPLEMENT TO CONSOLIDATED OPPOSITION TO
`DEFENDANTS’ MOTONS TO DISMISS
`(Leave to File Granted on September 30, 2022)
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`Now come the Plaintiffs and respectfully submit the following documents to supplement
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`their Consolidated Opposition to Defendants’ Motions to Dismiss:
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`A. Defendant Jim Baugh’s Sentencing Memorandum filed on September 29, 2022;
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`B. Defendant Jim Baugh letter of attrition filed on September 29, 2022; and
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`C. Amended Sentencing Memorandum of David Harville filed on September 24,
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`2022.
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`Plaintiffs also request permission to submit the transcripts of the sentencing hearings
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`which took place on September 29, 2022 for Defendants Baugh and Harville, once they are
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`completed.
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`While the defendants may contend the supplemental documents are extrinsic evidence
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`which should not be considered by the Court in conjunction with the Defendants’ various
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`Case 1:21-cv-11181-DPW Document 146 Filed 10/01/22 Page 2 of 7
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`motions to dismiss, the same exceptions apply to these documents as the various documents
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`submitted with the Plaintiffs’ Consolidated Opposition to Defendants’ Motions to Dismiss.
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`As the Defendants know, the Court may consider extrinsic documents in deciding a Rule
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`12(b)(6) motion to dismiss “for documents the authenticity of which are not disputed by the
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`parties; for official public records; for documents central to plaintiffs’ claim; or for documents
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`sufficiently referred to in the complaint.” Watterson v. Page, 987 F.2d 1, 4 (1st Cir. 1993). Just
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`the same as the documents submitted with Plaintiffs’ originally filing, the two sentencing
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`memoranda are public pleadings, signed and affirmed by attorneys in good standing on behalf of
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`parties of this case, and should be considered by this Court where the authenticity of these
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`documents cannot reasonably be questioned by the Defendants in the instant proceedings. See
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`Watterson, 987 F.2d at 4. As to the Defendant Baugh attrition letter, it should be considered by
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`the Court in conjunction with Baugh’s Motion to Dismiss.1
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`Defendant Jim Baugh’s Sentencing Memorandum filed on September 29, 2022 is
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`relevant because it undermines the bulk of the claims made by Defendants eBay, Wenig, Wymer
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`and Baugh set forth in their Motions to Dismiss.
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`Crucially, Defendant Baugh’s memorandum and the included communications
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`corroborate and provide further evidence for Plaintiffs’ claims set forth in the Complaint that this
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`was a top-down conspiracy, where Defendant Baugh was acting as the conduit between the c-
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`suite executives, and the lower-level individuals who were carrying out the conspiracy. In each
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`communication included in Defendant Baugh’s memorandum, Defendant Baugh is included on
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`Defendant Wenig, Defendant Wymer, Wendy Jones and Marie Huber’s discussions regarding
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`1 Defendant Baugh admits he engaged in the conduct set forth in the Plaintiffs’ Complaint, and
`for which he denied in his Motion to Dismiss.
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`eCommerceBytes and the need to put an end to the reporting. See Exhibit A at 12-19. Defendant
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`Baugh then turned around and formed his team, to carry out the C-Suit executives’ directives.
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`Defendant Baugh describes the culture at eBay, which fostered the top-down conspiracy
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`beginning with Defendant Wenig, which Defendant Baugh described as an “insular, high
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`pressure environment,” a claim that should not be taken lightly coming from an individual who
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`worked for the National Clandestine Services of the CIA, providing security for the Vice
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`President and other government assets. Exhibit A at 2. While Defendant Wenig has adamantly
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`denied any involvement in the conspiracy, Defendant Baugh indicates that not only was his
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`cubicle just outside Defendant Wenig and the other executives’ private officers, Defendant
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`Wenig subjected Defendant Baugh to “intense, relentless pressure” relating to eCommerceBytes,
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`and both Defendant Wenig and his wife communicated with Defendant Baugh directly as to
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`eCommerceBytes postings. Exhibit A at 2. For example, Defendant Baugh and Defendant Wenig
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`texted each other directly where Defendant Baugh updated him that he was using a fake Twitter
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`account to communicate directly with the person behind an eBay parody account that was
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`criticizing Wenig. Exhibit A at 13, 16. In short, Defendant Wenig was “obsessed” with
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`neutralizing the Steiners’ website, which trickled down through the rest of the C-Suite, to
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`Defendant Baugh and the team he ultimately organized. Exhibit A at 3.
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`Additionally, Jones, who was a member of the C-Suite along with Defendants Wenig and
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`Wymer, directly ordered Defendant Baugh to “find a way to deal with the issue ‘off the radar
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`since comms and legal couldn’t handle it’… ‘Just get it done. I don’t want to know the details,
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`just make sure you sync with Wymer.” Exhibit A at 13.
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`The communications also demonstrate that although Defendant Wenig and Jones were
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`conveniently on sabbatical during the month of August, the time that the events of the conspiracy
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`were actually carried out, that at least Defendant Wenig continued to remain in the loop by
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`communicating with Defendant Baugh while he was away from eBay Headquarters. Exhibit A at
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`16.
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`Moreover, after Defendant Gilbert sprayed “FidoMaster” on the Steiners’ fence,
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`Defendant Baugh informed Defendant Wymer that “his team had given the Steiners ‘a tap on the
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`shoulder.’” Exhibit A at 13. Wymer expressed approval but did not ask questions, and the
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`executives were pleased because the perceived negative postings by eCommerceBytes subsided.
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`Exhibit A at 13. This demonstrates the “don’t ask, don’t tell” policy engaged in by the
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`executives, but demonstrates they directed the acts, and endorsed them.
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`After an August 7, 2019 email – just days before Defendant Baugh and his team flew to
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`Natick – Wymer met with Baugh and was very agitated, pointing his finger at Baugh. Exhibit A
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`at 19. Defendant Wymer “instructed Baugh to take any actions necessary to neutralize the
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`Steiners and identify Fidomaster.” Defendant Wymer indicated it was a direct order from
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`Defendant Wenig. Id. Defendant Wymer confirmed the “don’t ask, don’t tell” policy, instructing
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`Defendant Baugh that he did not want to know the details but that “his group would have
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`‘executive level support’ if efforts led to any ‘any legal problems.’” Id. The reference to “legal
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`problems” implies that the executives knew what they asked Baugh to do was criminal;
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`Defendant Baugh and his team did not need legal protection from eBay, where they were
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`instructed to engage in illegal activity by eBay through its executives and legal department.
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`During this conversation, Defendant Wymer instructed Defendant Baugh that Defendant Wenig
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`wanted the website burned to the ground, that “the only thing that matters is that it stops” and
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`that “eBay Corporate is willing to absorb any legal exposure.” Id. This all corroborates Plaintiffs’
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`claims – and undermines all Defendants’ claims to the contrary – that the conspiracy was
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`spearheaded by Defendants Wenig, Wymer and other c-suite executives, and that Defendant
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`Baugh’s role was to organize the team and carry out the directives.
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`Additionally, Defendant Baugh corroborates that eBay conducted a sham investigation
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`after their actions were exposed. First, General Counsel, Marie Huber, took part in directing that
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`“ordinary tools such as lawsuits and cease-and-desist letters would be ineffective to address the
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`‘problems’ posed by eCommercyBytes and FidoMaster.” Exhibit A at 2, 8. Huber was at the
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`helm of the legal department that was the first to investigate the matter and conducted the first
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`interviews, but she herself appeared to be actually involved in provoking the escalation to illegal
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`activity.
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`After Natick Police became involved, Defendant Wymer informed that he and Jones were
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`aware of what occurred because they saw an email from Natick PD to eBay legal. Defendant
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`Wymer reiterated that he did not know the details but that he would not say anything to legal
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`during the internal investigation, noting they “just needed to get rid of the Hardy Boys.” Exhibit
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`A at 19. Defendant Wymer also instructed Baugh to “stick to your guns,” which Defendant
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`Baugh took as a directive from Defendant Wymer to stick to the cover story that they went to
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`Boston for a conference. Id.
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`In sum, Defendant Baugh’s memorandum further lends support to Plaintiffs’ claims
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`within its Complaint that this was a conspiracy that started with Defendant Wenig and trickled
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`down, that the culture within eBay created and fostered an environment where criminal activity
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`was not only condoned but expected in order to destroy eCommerceBytes and the Steiners, that
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`the executives would provide “cover” for any illegal activity, and that the investigation
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`conducted by eBay legal was a sham. When the executives directed Defendant Baugh to handle
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`the issue “off the radar” and that they would cover for “any legal problems,” this implied they
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`knew what they asked Defendant Baugh to do was criminal; how would legal problems arise if
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`the conduct was non-criminal. Directing Defendant Baugh not to share the details was an attempt
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`to insulate the C-suite, and amounted to willful blindness, but the message was clear: Defendant
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`Baugh was to carry out their instruction to take care of the issue using any means possible and
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`off the radar even if it meant engaging in criminal activity.
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`Defendants Wenig, Wymer and eBay are now using their instruction to Defendant Baugh
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`not to share the precise details of the conspiracy to absolve themselves of all liability, when the
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`executives set the entire conspiracy in motion, and knew it would lead to criminal activity.
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`Plaintiffs request that this Court deny the Defendants’ Motions to Dismiss based on the
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`information set forth in this supplement and the arguments made in the prior opposition where
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`this information further satisfies the burden Plaintiffs already previously met. See Fed. R. Civ. P.
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`12(b)(6); Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 53 (1st Cir. 2013) (noting Court
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`assesses whether the “factual allegations gives rise to a plausible claim to relief.”).
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`CONCLUSION
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`Wherefore, the Plaintiffs respectfully request that this Court consider these supplemental
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`documents in support of its request to deny all Defendants’ Motions to Dismiss.
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`Respectfully submitted,
`INA AND DAVID STEINER
`By their attorney,
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`/s/ Rosemary Curran Scapicchio
`Rosemary C. Scapicchio, BBO No. 558312
`Law Office of Rosemary Scapicchio
`107 Union Wharf
`Boston, MA 02109
`617.263.7400
`Rosemary@Scapicchiolaw.com
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`Case 1:21-cv-11181-DPW Document 146 Filed 10/01/22 Page 7 of 7
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`Respectfully submitted,
`STEINER ASSOCIATES, LLC
`By its attorney,
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`/s/ Jillise McDonough
`Jillise McDonough, BBO No. 688694
`Law Office of Jillise McDonough
`107 Union Wharf
`Boston, MA 02109
`617.263.7400
`Jillise@Scapicchiolaw.com
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`CERTIFICATE OF SERVICE
`I hereby certify that a true copy of the above document was served upon the attorney of record
`for each party and upon any party appearing pro se by complying with this Court’s directives on
`electronic filing.
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`Dated: October 1, 2022 Signed: /s/ Jillise McDonough
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