I don’t understand why Scott Kamber, Bob Kris, and the rest at KamberEdelson and TD Ameritrade persist in attacking me, as they spent much time doing at the 9/15/08 hearing.   Their attacks to date have consisted of claims that not only are not backed up by evidence, they are actually refuted by it.

Surely, they’re too smart to not realize that persuasion only goes so far in the face of cold hard evidence. I don’t have a good explanation; the best ones I can come up with are a) they realize that the situation is hopeless and are committing professional suicide or b) they realized Ameritrade was bad and are screwing up intentionally, so that it has to pay dearly for it’s bad behavior and to send a message to other companies to not be so extremely lax about security, or c) they think Judge Walker is susceptible to distraction,  Jedi mind tricks or NLP.  I don’t find any of these explanations credible, and yet here is what I could present as the cold hard evidence:

THREATS; DEFAMATION

“We never pressured Mr. Elvey whatsoever” is Scott Kamber’s version of the truth1.  “Never was Mr. Elvey threatened or even pressured in any manner.” (Dkt. 66-1, at 7.)

Kamber further claims: “It is not in dispute that Mr. Elvey signed the settlement agreement and emailed it to counsel.” (Dkt. 66-1, at 22.)

Kamber claimed in court on 10/7 that my counsel from Public Citizen have swept the claim of threats under the rug.

Quite to the contrary.  This is all simply not the case. The most economically coercive threats were made IN WRITING.  I am prepared to provide the emails and vmails which show they both made their economically coercive threats (i.e. they told me, on multiple occasions, to sign or they would take back the $10,000 offer, and carried out that threat when I denied signing the settlement submitted, by writing me out of $10,000 in a later version submitted to the court) and applied other extremely strong pressure on me to agree to the settlement, and did so on several occasions.  [Update: The emailed threats are now on record in document Dkt 175, p.12-13.  Amazingly, there's still no advice on the web (unless, perhaps, you count this blog) on how to fire/handle a corrupt class action firm, though there's plenty of good advice on how how to (not) get fired by a law firm!]  My reputation is important to me, and I have been uncomfortable ignoring the slander slung at me.  The reason my new lawyers didn’t emphasize any of this is that the threats distract from the larger issues of the case.  Their screwing me over via slander, threats etc. is bad and illegal, but I’m just one person; the interests of 6.3 million are more important.

Finally, KamberEdelson  filed document Dkt 53-2 with the court (the first proposed settlement), to my case’s docket, which shows my signature on a signature page I signed (i.e. it is my signature) but it’s been placed into a document I did not sign. See 73-CorrectedElveyBriefInOpposition.pdf, footnote 9 – the settlement notices were missing – I had never seen them – and there were other significant differences.  Furthermore, I never even received the complete proposed settlement document until after Dkt 53-2 was filed.  So I couldn’t have signed it.  The email record confirms this; if the court issued a subpoena on KamberEdelson and/or their ESP for all email between me and KamberEdelson attorneys, the record would show this [but see Update above.]  Coercing me to sign a signature page, and filing it in court attached to a different document – what would you call that, if not perjury, fraud or forgery?

Since I objected in court, neither TD Ameritrade, nor their counsel, nor KamberEdelson, has (to my knowledge) made any effort outside of court filings to present me or my counsel with an improved settlement or discuss improving it at all, despite my requests to do so.

FTC DATA

In court, I stated (Transcript, page 40) that I had received data from Chris Hoofnagle, a Stanford and Cal law professor, that he had received from the FTC under a FOIA request that indicated that there were approximately 2,200 identity thefts in 2006 and 2007 related to Ameritrade.  Contrary to Kamber’s representation of Mr Hoofnagle’s subsequent filing, my claim IS supported by the records I have.  When Mr Hoofnagle wrote back to me on 6/9/08, he quoted from my email in which I made the claim, writing:

> > 16 complaints * (8.4 million / 240000)  * (24/6) = 2,240
> > complaints / 2 years related to AMTD.

and his email strongly suggests he didn’t find my claim unreasonable.  The data used in the calculation all came from him: 9 + 7 = 16 complaints; he gave me the 9 and the 7, the 8.4 million victims per 240000 FTC claims, the 2006 and 2007 (= 24 months) and 3 + 3 = 6 months are all numbers he gave me in the email.  The math and the claim I made are correct/valid.  What is incorrect is their representation of my claim; what they claim I claimed <sic> is not a valid claim.

Note: I DID NOT CLAIM OR IMPLY that the approximately 2,200 identity thefts in 2006 and 2007 all related to data breaches at Ameritrade.  Among 8.4 million randomly chosen adult Americans, one would expect about 4% per year to be identity theft victims.

However, According to Mr Preston, Mr Hoofnagle has written: “To the extent that Mr Elvey implied at the hearing that I have determined (or that the records I have provided him suggest) that the data breaches at TD Ameritrade resulted in identity theft, that implication is not supported by the data.”  Furthermore, Mr Hoofnagle informed me that he is very close to Mr Preston and has been for many years.

RESPONSIBLE DISCLOSURE

In a filing, they quote only the post-semicolon portion of the following sentence (which I’ve put in italics) from this post.

“Please be aware: I don’t disclose security problems irresponsibly; you shouldn’t assume I’d make everything you provide public.”

They abuse that sentence fragment, and their own reformatting, by claiming it’s evidence that I intend to do the exact opposite of what my entire sentence says, namely they claim that I want to disclose security problems irresponsibly!  This blatant misrepresentation is absolutely galling.  I have a track record of practicing responsible disclosure as advocated by the federal government.  I would never even consider breaching client confidentiality or publicly disclosing any security problems of my clients, and the allegation that I would disclose security problems irresponsibly seems calculated to do maximum harm to my professional reputation.

RELATIVELY MINOR FALSE STATEMENTS

Mr Preston claims Mr Hoofnagle referred to statements “at page 41 from lines 4 to 8 of the transcript”.  The statements in question are actually on those lines on page 40.

Contrary to what was said several times in court by Ameritrade counsel on 10/7/08, the proposed settlement does NOT require Ameritrade to remedy material vulnerabilities uncovered by a penetration test.  It only requires they undertake to do so.

EPILOGUE

Basically, hackers broke into the company database, and had ongoing access for two years, even though many customers had proven to TD Ameritrade in October ’05 that their information had been stolen from the a company database.  TD Ameritrade ‘s filings with the SEC show it knew of the breach but hid that fact; it took two years and a pending injunction to even get it to hint to its customers that their information had been stolen.

So again, these outrageous false statements – regarding whether Kamber threatened or pressured me, my forgery allegation is well-founded,  FTC data suggests identity thefts related to Ameritrade,  the proposed settlement requires Ameritrade fix any security problems, I maintain confidentiality and practice responsible disclosure and so on – all are proven false, and I am at a loss to explain why attorneys would knowingly make such false statements. The legal system sometimes founders in highly technical cases but it doesn’t take technical understanding to see that these statements are false. Looking at the facts in this case, I find it impossible to explain away as ignorance or error what appears to be malice.  I’m being smeared because Kamber can’t figure out a winning strategy and went with a lousy, arguably suicidal one because he refuses to give up. Whether Jay Edelson and Ethan Preston are willing or unwitting participants I don’t know, but I feel their law firm is responsible if it fails to remedy such action.

I think I have figured out a somewhat reasonable explanation for the attacks.  Perhaps they are an effort to exact revenge on me and get me angry enough to appear unstable.

Please reply to this post if you feel there are any inaccuracies in it2. I very much do not wish to, especially while addressing defamation of my person, be guilty of the defamatory behaviour of which I am a victim.