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John T. Reed' summary judgment motion to end Russ Whitney' federal case against Reed 2 37. Black's Law Dictionary says insolvency means, Such a relative condition of a man's assets and liabilities that the former, if all made immediately available, would not be sufficient to discharge the latter. 38. REED removed all possible confusion as to which definition of "insolvent" he intended by including the sentence, "That is, their liabilities ($27,299,907) exceed their assets ($24,315,757) as of the last reported date: 9/30/02." 39. In a motion for summary judgment, the Court may consider matters that are properly the subject of strict judicial notice such as matters of public record [Kramer v. Time Warner, Inc., 937 F 2d 767 (CA 2 NY 1991)]. The assets and liabilities of WIN are a matter of public record. REED obtained the figures in question from the then most recent filing by WIN with the Securities and Exchange Commission (SEC)-a Form 10-Q filed by WIN on November 12, 2002 (Exhibit E). 'ON THE VERGE OF BANKRUPTCY' 40. Plaintiffs' statement in Second Amended Complaint '¶58 (Exhibit C) that REED said WIN was "on the verge of bankruptcy" is false. REED did not say that. What he actually said was, "Some readers may wonder what the difference is between being insolvent and being bankrupt. Filing a piece of paper with the bankruptcy court. As far as I know, Whitney has not filed the paper, although it appears eligible to. Another way to go bankrupt is for your creditors to force you into bankruptcy. That seems unlikely here because Whitney's biggest creditors probably do not even know they are creditors. His biggest creditors-listed as $22,288,574 of "deferred revenue" on his corporate balance sheet-are ordinary people who have signed up for his seminars, but not yet attended. "If those customers ever did a run on the bank and demanded refunds, Whitney Information Network, Inc. would be in trouble. On the day when they had that $22 million of deferred revenue," they had only $9,657,496 in cash and cash equivalents. Where is the other $12 million they would have to refund? They already spent it. On what? An airplane among other things. 41. There are two categories of bankruptcy: voluntary and involuntary. REED plainly stated in his Web comments that involuntary bankruptcy of WIN ""¦seems unlikely"¦" and explained why. With regard to voluntary bankruptcy, REED accurately said that WIN was "eligible" to declare bankruptcy-because their liabilities exceed their assets. REED said he was not aware of any voluntary bankruptcy filing by WIN. REED said nothing about whether WIN would voluntarily declare bankruptcy in the future. 42. The Court should note that Plaintiffs never identify a specific REED statement about WIN and bankruptcy as false. Rather, they paraphrase REED's two paragraphs on the subject then declare their own paraphrase-"on the verge of bankruptcy"-to be false. It may be, but REED should not be held responsible for the spin put on his comments by Plaintiffs. Plaintiffs' paraphrase of REED's comments is not a fair summation of them. The legal question is how would a reasonable person interpret REED's comments. In fact, REED chose his words carefully and consciously avoided saying that WIN was "on the verge of bankruptcy." The whole purpose of the discussion of bankruptcy was to make sure that readers would not draw such an erroneous conclusion from the word "insolvent." 43. WIN's financial performance since REED said they were insolvent in February, 2003 has deteriorated dramatically, thereby making it even harder for Plaintiffs to prove that REED' statements were false and made with "actual malice." At the time REED said WIN was insolvent, their negative net worth was minus $2,984,150. As of 9/30/04 it was minus $19,900,726. In the third quarter of 2004, WIN lost $12 million-more than its cumulative losses for its entire prior life. From December 31, 2003, to September 30, 2004, WIN's cash and cash equivalents dropped from $15,021,485 to $8,893,481. The rate of drop is $15,021,485 - $8,893,481 = $6,128,004 or $6,128,004 ÷ 9 months = $680,889 per month. At that rate, WIN's $8,893,481 would run out in $8,893,481 ÷ $680,889 = 13 months. Thirteen months from September, 2004, is October, 2005, the month the trial in this case is scheduled. (Exhibit F) In the year ending in February of 2005, WIN's stock fell 71% from its 52-week high of $5.05 to the recent $1.46 and trading volume has slowed to a trickle. (Exhibit G) TRADEMARK AND RELATED CLAIMS 44. This Court should grant summary judgment as a matter of law with regard to the federal trademark infringement, false designation of origin, false description and false representation under 15 USC 1125(a), and common law trademark infringement claims because: a. all use by REED of Plaintiffs' names is non-actionable "fair use" as defined in 15 USC 1125 (c)(4) and/or c. permissible "descriptive" or "nominative" use as defined in the common law d. as the Court can readily see by reading REED's Web pages about Plaintiffs (Exhibit H), no reasonable person could be confused as to their origin COURT SHOULD READ THE ENTIRE WORK 45. The Court should read the entire publication of which Plaintiffs complain for both trademark and defamation purposes. A trial court was overruled when it refused to let a jury see the alleged defamatory "sound bite" in the context of the public television documentary in which it was broadcast. [Smith v. Cuban American National Foundation, 731 So. 2d 702 (Fla 3d DCA 1999)] 46. At 2.4.18 of Sack on Defamation, Libel, Slander, and Related Problems, 3rd

Edition the author says, "The law has developed a wide variety of tools to seek to ensure that only when there is an established, concrete relationship among error, fault, and harm to the plaintiffs may the plaintiffs pursue a remedy in defamation. Inconsequential harm ought not to give rise to extended litigation let alone a plaintiffs' judgment, or else plausible defamation suits might arise out of virtually all derogatory works and proceed at least through discovery to summary judgment or trial." 47. "These techniques include: (1) the well-established rule that only statements that are substantially false are actionable-'some' falsity will not suffice [See '§3.5 Infra]; (2) the requirement that cause and effect between defamatory falsehood and injury be clearly established [See 8.5.3 Infra]; (3) the 'libel-proof-plaintiff' doctrine holding that a notorious person is without a 'good name' and therefore may not recover for injury to it [Guccione v. Hustler Magazine, 800 F 2d 298 (2nd Cir. 1986) cert denied 479 U.S. 1091 (1987)]; (4) the principle that where true statements accompany a false one and the 'incremental harm' done by the falsity is negligible, recovery is similarly forbidden [Herbert v. Lando, 781 F 2d 298 (2nd Cir. 1986) cert denied 476 U.S. 1182 (1986) and Bose Corp. v. Consumers Union of United States, 466 U.S. 485 (1984)]; and (5) the rule that a public plaintiffs must prove not only that a specific defamatory allegation was published with 'actual malice,' but that the 'gist' of the defamatory allegations about him or her was so published." 48. "The substantial truth defense is an affirmative defense under which the court reads the article after having eliminated from its consideration those statements alleged to be defamatory. If the article, with the defamatory material excised, would not have an effect on the mind of the reader different from that created by actual article taken as a whole or the truth as completely told, the article is not libelous." Woodward v. Sunbeam TV Corp., 616 So 2d 501 (Fla DCA 1993) See also Jones v. American Broadcasting Companies, Inc., 893 F 2d 1342 (11th Cir. 1989) In this case, that would mean the Court should read all of REED's Web pages about WHITNEY, omitting only the specific alleged libelous statements and consider whether the effect on the average reader would be different than with the alleged libel included. 49. In this case, REED's Web site contains more than 400 pages of discussion of WHITNEY, almost all of which consist of angry denunciations of him by his former customers, WHITNEY's troubles with various laws and law-enforcement agencies, discrepancies in WHITNEY's public statements, and the like. Removing the complained-of statements has no effect on the gist. "The proof of"¦falsity must go to the 'gist' or 'sting' of the defamation." Sack on Defamation '§3.7 citing many cases TRADEMARK AND RELATED CLAIMS ARE SHAMS 50. There is not a snowball's chance in Havana that Plaintiffs are truly concerned about likelihood of confusion of REED's Web pages for Plaintiffs'. The pages are all clearly labeled with REED's domain name, https://www.johntreed.com. Plaintiffs' Web pages are labeled with their domain name, https://www.russwhitney.com. Furthermore, the content of REED's Web pages about Plaintiffs generally denounces WHITNEY. 51. It is now common for persons to put up Web sites using the word "sucks" as a suffix to the name or trademark of the person or company being criticized. Bally Total Fitness Holding Corporation sued the operator of a "Bally Sucks" Web site (dedicated to airing complaints about Bally) for trademark infringement and related issues and lost. [Bally Total Fitness Holding Corporation v. Faber, 29 F. Supp. 2d 1161 (C.D. Cal. 1998)] The legally ubiquitous "reasonable person" understands that Bally would not operate a Web site called "ballysucks.com" that published complaints about Bally. Similarly, he or she understands that Russ Whitney is not operating a Web site that tells of his losing a paternity suit. 52. In the seven years that WHITNEY's name has been at REED's Web site, not a single visitor to REED's WHITNEY Web pages has confused REED's pages about WHITNEY with WHITNEY-owned and operated Web pages. (REED Declaration 2) 53. There is one reason and only one reason why Plaintiffs assert trademark and related claims here. That is the only cause of action that addresses their real goal, which is to prevent Web surfers from finding the accurate, lawful criticism of WHITNEY at REED's Web site. Plaintiffs do not want search engine users to learn of WHITNEY's robbery conviction, hit-and-run judgment, paternity suit, unsatisfactory Better Business Bureau rating, negative corporate net worth and income, and troubles with various state attorneys general, among other things. There is no defamation or libel law against publishing such public documents about a public figure, so Plaintiffs falsely claim that REED's criticizing Plaintiffs by name is "trademark infringement." 54. For a consumer to confuse REED's Web pages about WHITNEY with WHITNEY's Web pages about himself is virtually impossible given Plaintiffs' own account of the allegedly libelous content of REED's Web pages. To win, Plaintiffs must convince a jury that consumers will believe that WHITNEY is libeling himself. Plaintiffs cannot have it both ways. Their libel and confusion allegations cancel each other out. 55. In their multiple motions for preliminary injunctions, Plaintiffs have never mentioned a common solution to concerns about consumer confusion, namely, requiring the alleged infringer to post a statement of non-association next to his use of the name or trademark. Such an order would eliminate the confusion Plaintiffs claim to be concerned about. But they have never sought it because it would not accomplish their real purpose, which is to silence an honest critic by making it impossible for Internet search engines to find accurate criticism of WHITNEY at REED's Web pages. 56. Another indicator of the insincerity of their trademark claims is lack of any differentiation whatsoever among various REED Web pages about WHITNEY. Surely in any group of Web pages that mention someone=s name there would be pages that would be more likely than others to cause confusion. Plaintiffs would have the Court believe that each and every one of REED's Web pages is equally likely to cause confusion. Again, that's because their real goal is to prevent Web surfers from finding accurate criticism about WHITNEY, not preventing confusion. Plaintiffs' are uniformly "concerned" about confusion at all REED's WHITNEY Web pages because they are uniformly critical of WHITNEY, not because they are uniformly likely to cause confusion. TRADEMARK AND RELATED LAW 57. Trademark and related laws say simply that it is illegal to use another's name to pretend to be him, but it is not illegal to use another's name to comment about him. Anyone who had read REED's articles about WHITNEY at REED's Web site would laugh out loud at the accusation that REED was pretending to be WHITNEY. REED's use of Plaintiffs' names is completely within the bounds of the statutory and common law as follows: 15 USC '§1125(c)(4) says, "(4) The following shall not be actionable under this section: "(A) Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark. "(B) Noncommercial use of a mark. "(C) All forms of news reporting and commentary. 58. At '¶23.01[6] of his McCarthy on Trademarks and Unfair Competition, McCarthy said, "A use of another's trademark to identify, not the defendant's goods or services, but plaintiffs' goods and services, is not an infringement so long as there is no likelihood of confusion. This can be dubbed a non-confusing 'nominative use' in that it names the real owner of the mark. The most common example of this is comparative advertising, where the senior user's mark is used to identify the senior user's product and the advertiser's object is contrast, not confusion." 59. "Much useful social and commercial discourse would be all but impossible if speakers were under threat of an infringement lawsuit every time they made reference to a person, company, or product by using its trademark." New Kids on the Block v. New America Pub. Inc. 971 F 2d 307 (9th Cir. 1992) RULE 56 SHOULD BE APPLIED ACCORDING TO ITS TERMS 60. In Federal Practice and Procedure, Wright and Miller said at '§2712 that F.R.C.P. 56, ""¦should be viewed with favor and applied according to its terms. (Freeman v. Continental Gin Co., C.A. 5th, 1967, 381 F. 2d 459) This conclusion was reaffirmed by a series of summary-judgment cases decided by the Supreme Court in the mid-1980s. [Celotex Corp. v. Catrett, 1986, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 1986, 106 S.Ct. 2505; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 1986, 106 S. Ct. 1348]"¦these Supreme Court cases signaled to the lower courts that summary judgment should be relied upon to weed out frivolous lawsuits and avoid wasteful trials. Federal Courts"¦have said that the rule is intended to prevent vexation and delay, improve the machinery of justice, promote the expeditious disposition of cases, and avoid unnecessary trials when no genuine issues of fact have been raised." 61. There are no genuine issues as to any material fact pertinent to this motion, therefore REED is entitled to judgment as a matter of law. Those material facts are: a. Plaintiffs failed to comply with Fla. Stat. 770.01 as required b. Plaintiffs complain of false statements in publications c. Plaintiffs explicitly complain of libel in all complaints e. Plaintiffs acknowledge explicitly and implicitly in their complaints that they are public figures f. Plaintiffs acknowledge implicitly in their complaint that REED is a media defendant h. the Court can conclude as a matter of law that Plaintiffs' trademark and related causes and their tortious interference cause of action are shams that illegally attempt to deny REED libel defenses by mislabeling the claims i. REED clearly labeled each and every one of his Web pages, including those that discuss Plaintiffs, with the domain name https://www.johntreed.com, thereby eliminating any chance that a reasonable person would be confused into thinking that the page in question was owned or operated by Plaintiffs. j. REED is permitted to use Plaintiffs' names to comment about them under the "fair use" exceptions of federal trademark law [15 USC 1125 (c)(4)]. k. REED is permitted to make "nominative" or "descriptive" use of Plaintiffs' names under well-settled common law. l. There has been no confusion at all during the seven years that Plaintiffs' names have been used at REED's Web site. Plaintiffs have never identified a single consumer who was confused. For the reasons stated above, this Court should grant Defendant summary judgment with regard to the Plaintiffs' causes of action in the complaint as a matter of law pursuant to F.R.C.P. Rule 56. February 22, 2005 ________________________________ Date John T. Reed, pro se Defendant John T. Reed Publishing 342 Bryan Drive, Alamo, CA 94507 925-820-6292, Fax: 925-820-1259 www.johntreed.com UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION WHITNEY INFORMATION NETWORK, INC. and RUSS WHITNEY, an individual, Plaintiffs, Case No. 2:04-cv-00395-FTM-33DNF (LAG) v. JOHN T. REED, an individual, Defendant. _________________________________________/ DECLARATION OF SERVICE JOHN T. REED, under penalty of perjury hereby declares: On February 22, 2005, I served DEFENDANT'S DISPOSITIVE MOTION FOR SUMMARY JUDGMENT by Federal Express on Christina Kitterman, 300 Las Olas Place, Suite 860, 300 S.E. Second Street, Fort Lauderdale, FL 33301. I declare under penalty of perjury that the foregoing is true and correct. Executed on February 22, 2005. John T. Reed, pro se 342 Bryan Drive Alamo, CA 94507 925-820-6292, fax 925-820-1259

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION WHITNEY INFORMATION NETWORK, INC. and RUSS WHITNEY, an individual, Plaintiffs, Case No. 2:04-cv-00395-FTM-33DNF (LAG) v. JOHN T. REED, an individual, Defendant. _________________________________________/ DECLARATION JOHN T. REED, under penalty of perjury hereby declares: 1. I received one written notice that purported to comply with Florida Statute 770.01 from Plaintiffs in January, 2002. I never received any other written notice from Plaintiffs that claimed to comply, or could be construed to comply, with Florida Statute 770.01. 2. Russ Whitney's name has been on my Web site since 1997. There has never been a single instance of a person being confused as to whether my Web site was associated with Russ Whitney in the more than seven years that Russ Whitney's name has been on my Web site. I declare under penalty of perjury that the foregoing is true and correct. Executed on February 22, 2005. ___________________________. John T. Reed, pro se, 342 Bryan Drive, Alamo, CA 94507 925-820-6292, fax 925-820-1259, www.johntreed.com UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION WHITNEY INFORMATION NETWORK, INC. and RUSS WHITNEY, an individual, Plaintiffs, Case No. 2:04-cv-00395-FTM-33DNF (LAG) v. JOHN T. REED, an individual, Defendant. _________________________________________/ ORDER On motion of Defendant for summary judgment against Plaintiff's claims, and good cause having been shown, therefore, IT IS ORDERED that the Defendant's motion be granted and that judgment be entered for Defendant on Plaintiffs' claims. _______________ ______________________________________ Date Copyright 2005 by John T. Reed John T. Reed, a.k.a. John Reed, Jack Reed, 342 Bryan Drive, Alamo, CA 94507, Voice: 925-820-7262, Fax: 925-820-1259, www.johntreed.com

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