Speaking of Class Action...

No, really! Even before the news yesterday about the legal troubles facing Trenton Business Administrator Terry McEwen, I was thinking about the movie “Class Action,” the 1991 release directed by Michael Apted, starring the always wonderful Gene Hackman and Mary Elizabeth Mastrantonio as father-and-daughter lawyers on opposite sides of a contentious class-action lawsuit. It’s long been a favorite of mine largely it’s because it was shot in my hometown of San Francisco. As such, it features all the usual scenic money shots of The City that you always see on screen. But it also features scenes shot in some lesser-known and less featured spots (Hey, it’s Beach Chalet! Look, it’s Mission Dolores!) as well as some local celebrities (Mayor Art Agnos! Dan Hicks, with the original Hot Licks!!), which are nice little Easter Eggs for folks like me who lived there back in the day.

Otherwise, “Class Action” (the movie, not the civil securities fraud lawsuit filed in Federal Court against 6D Global Technologies in which BA McEwen [as a member of the company’s Board of Directors] was named as one of several defendants, and which also included arrests on criminal charges of the Founder/CEO and others in the company although not Mr. McEwen) is a pleasant but otherwise routine courtroom drama that follows the usual formula you know so well. Scrappy, firebrand lawyer represents Ordinary Working People suing a Big Bad Car Company for building cars that blow up. It’s pretty evocative of the period in which it was shot, featuring the Big Cellphones and Bigger Shoulder Pads that ruled the world at the time.

The plot thread regarding the lawsuit follows a fairly routine path, with Hackman going nowhere fast in his lawsuit (and in the broken relationship with his daughter Mastrantonio) until a key piece of evidence is found, a Smoking Gun that proves his case, and leads the Evil Carmaker to admit defeat (and also leads to Father-Daughter reconciliation. The resolution proves that The L:ttle Guy can win, and (more dubiously) that Lawyers Have Hearts.

Of course, the Smoking Gun is found in the last reel, after much drama, and almost but not quite by accident. That’s the formula for courtroom fiction. There’s no dramatic arc if the Smoking Gun is never found, and no drama if it’s found in the first five minutes of the film.

But Real Life isn’t often like that. In our notably litigious society, many suits are brought that have no real validity to them (Hello, Barry Collicelli!). And many are brought whose outcomes are glaringly obvious from the day they are brought (See “ADPC vs. City of Trenton,” 2010-2011), you have to wonder why some defendants even bother to put up a fight at all. Well, I suppose lawyers have to eat.

Trenton’s City Council should keep this in mind today and this evening, as they meet to consider what is likely the next ADPC versus Trenton lawsuit. A civil lawsuit seems to be where we are going, as the result of the latest fuckup by the City in its clumsy attempt to replace ADPC, the vendor which has been supplying supervision and operational oversight of Trenton’s Information Technology assets and operations for nearl 30 years, with a company called FCC Consulting, a small single-proprietorship whose cost proposal for a three-year contract was the 3rd most expensive out of 12 bidders.

The docket for this evening’s Council meeting was revised yesterday to include a new Item V, an Executive Session to discuss “Pending Litigation – ADPC.” I don’t have any information about this, but it seems that the president of the company, Joe Harris, who has been railing for days about how poorly ADPC has been treated by the City, is once again taking Trenton to court as he did 4 years ago. He won then, and he is on track to whip the City’s ass again if he has in fact decided to sue.

In fact, I think his case will be easier to prove in 2015 than in 2011 because in this Real Life case, unlike a Hollywood story, the Smoking Gun is in plain view. I see what is a likely Smoking Gun, with the Seal of the City of Trenton all over it.  It’s the City’s own Request for Proposals document. #CC2015-06, the Re-Advertised version of the original document issued earlier in the summer (NOTE: I will post a link to the document once I can upload it. In the meantime, I will post an excerpt as a screengrab). UPDATE: Here’s the link.

There is a document included with the RFP package sent out to all parties interested in bidding for the Trenton IT contract called “Information System Audit for the Assessment of Technical Support Services for the City of Trenton Information System – June 23, 2015.” This document provides a narrative background to the history and status of Trenton’s IT infrastructure, and provides a rough inventory of all the City’s hardware and software assets throughout every City working location. The document intends to provide a snapshot of the City’s current status so an interested company can prepare a complete and accurate proposal to take over the operation, should they win the competition.

On Page 1 of this document, there is a description of how the City’s IT management has broken down. Here’s the money quote:

And there it is, your Smoking Gun. If ADPC wants to show a Judge and Jury that they were railroaded out of town and unfairly judged for their performance, they will have to do little more than point to this document. The City of Trenton openly admits that its Business Administrator and Department/Division Directors “were and continue to be unaware of the IT resources available of plans proposed by the contractor (ADPC) even though they have met with no less than six Business Administrators over the past five years to present the long range plan for Information Technology in the City.” [Emphasis mine – KM]

This is astonishing.

Once more, with feeling: “They [ADPC] last presented this plan in July 2014 and it was received and then never discussed or even rebuked, as was the case since 2010.” [Emphasis mine – KM]

Listen. This is the kind of assertion that a plaintiff’s attorney includes in their brief, as a hypothesis they have the burden of proving in court by a preponderance of evidence. This can take months and require a mind-numbing mountain of technical documents that need to be translated into easily-digestible bites by expert witnesses.

That won’t need to happen in the sequel “ADPC vs. Trenton II: A Good Day to Sue Hard.” This will be one short story. ADPC’s attorney’s just have to show up and say something like,

“Your Honor, our clients tried for five years to get direction from the City of Trenton regarding their work. They tried, and tried, and tried, and tried. With no fewer than six Business Administrators they tried, and over a period of five years tried. They kept submitting plans and proposals, and they never got a single reply, not even to reject the plans.

“Your Honor, to prove this we introduce Plaintiff’s Exhibit A, the package issued by the City of Trenton to all the parties that were invited to replace my client. In their own words, Your Honor, they have openly admitted this to the world.”

At this point, I was going to pile on the arguments against the City proceeding to install FCC Consulting to replace ADPC. But I don’t think I even have to go into how the rest of the RFP violates NJ State Purchasing guidelines for the way it laid out the weighted Evaluation Criteria by which all of the proposals were judged.

I won’t have to go into the very shaky financial history of FCC Consulting and its principal. It won’t be necessary to refer to the many business suspensions or court-ordered Judgments filed against F.C. Carothers and his several LLC’s over the last decade, the most recent one being only one year ago, or of personal bankruptcy nearly a decade ago.

No, I don’t need to make any further arguments, because the City’s already given up the game.

If I were a member of Trenton’s City Council in Executive Session tonight, the first question – the ONLY question – I would ask the Administration would be, “How do we cut our losses and get out of this?”

Trenton is screwed. Better to admit this now than wait for the inevitable ruling by a court. In this movie, there’s no suspense.