COMMAND CONTROLWhen pro se plaintiff Stanley Parker sued America Online, he discovered a lively galaxy of AOL expatriates dedicated to the company's demise.
By Robert Ablon
Over the past four months, former America Online Inc. worker Stanley Parker has been itching to find out why he was fired and kicked off the service he considered his virtual home for five years.
From his actual residence in Tarzana, where he hosted interactive games for the service on his personal computer, Parker says he has tried to contact the company's attorneys, executives and public relations departments at least a dozen times by phone, fax, FedEx, registered mail, e-mail and voice mail -- all to no avail.
Furious at being ignored by a company that claims to connect people, Parker, 52, says he realized the only way to get AOL's attention was to drag the company into court, any way he could. Not being a lawyer, Parker says he took to scouring the Internet for ideas about how to go after the company. And in his quest to elicit a sign of life from AOL, the former space engineer discovered not only a lively galaxy of AOL expatriats dedicated to the company's demise, but also an expanding universe of legal resources that enabled him to file his own suit and unearth violations of laws he never knew existed.
Apparently, as AOL has swelled to 3.5 million subscribers in just two years, the company has also spawned resentment bordering on hatred in the online community.
Cutting and pasting from online documents, Parker scratched together a suit against AOL, alleging that the company had overcharged and defrauded him as a customer by rounding up his connect time to the next minute, adding 15 seconds to each session, and failing to disclose these billing practices.
Warned by an online buddy with litigation experience that AOL would try to outlawyer him at every turn, Parker figured he'd be better off suing in small claims court. When AOL failed to appear at the hearing in Los Angeles last month, Parker notched a $470 default judgment.
Parker has since rejected an $800 settlement offer from AOL -- it's unclear why AOL offered more than the judgment -- and now faces a motion filed by America Online general counsel Ellen Kirsh last month to vacate the award due to the inconvenience of travel, scheduled to be heard today. [AOL Watch note: AOL's motion failed.]
But with one judgment against AOL already under his belt, Parker says he intends to go after bigger stakes -- challenging AOL's classification of his status as a "volunteer" host in order to seek back wages and minimum wage for the hours he worked.
For his part, Parker theorizes that AOL came calling with a settlement offer only when it realized that a judgment could open the floodgates to hundreds of similar small claims suits against the company which already faces snowballing litigation on several other fronts.
AOL currently faces 10 class actions filed in eight states based on allegations over its billing practices, including one pending in San Francisco Superior Court filed by Palo Alto solo practitioner Stephen Hagen.
In addition to the class actions, a few disgruntled ex-AOL workers have asked the Internal Revenue Service and the Department of Labor to look into AOL's classification of certain staffers as independent contractors rather than employees.
AOL lead outside counsel Melvin Goldman of Morrison & Foerster, which has been retained to coordinate all the class actions, won't comment on any specific complaints, but says the company "vigorously denies any wrongdoing."
In an Aug. 3 letter to all AOL subscribers, America Online CEO Steve Case asserted that rounding up to the nearest minute is a common telecommunications practice, and that the company's alleged "added time" reflects the connection charges it has to pay telephone networks.
"The confusion seems to stem not from our billing practice but from incompleteness in the process we use to inform you how much time you have used," Case wrote. "To reduce the confusion, we are re-looking at how we inform you about our billing."
But Palo Alto attorney Hagen calls the letter a "well-thought-out response that doesn't address the issues of disclosure raised in our suit."
Three AOL in-house attorneys and two spokespersons contacted for this story did not return phone calls or respond to a faxed list of questions.
Stanley Parker says he loved AOL when he first logged on in 1990. He fast became a regular player on a role-playing game called Starfleet Online, and by late 1992 Parker had landed a position he'd long been gunning for: hosting Starfleet, a Star Trek knockoff.
As a host, Parker would set up scenarios and answer questions for up to 15 players at a time. In exchange for each hour that he hosted the Starfleet games, Parker earned an hour of credited time in his AOL account.
Although AOL considered him a volunteer, Parker says he sometimes worked as many as 50 hours a week -- all compensated with credited time -- and was allowed access to staff bulletin boards.
But AOL stripped Parker of his Starfleet command on May 30, 1994, allegedly for expressing hatred toward AOL management and making derogatory comments against AOL staff nearly two years before.
This summer, Parker again ran afoul of AOL management when he protested a complaint that another subscriber had lodged against him for sending unwanted e-mail. Parker maintains that the recipient could have ignored or deleted the mail, and he demanded that AOL withdraw the complaint.
When AOL refused, Parker informed the company that he had claimed the rights to the Starfleet Online name, and that AOL would have to secure his permission to use the moniker.
A week later, Parker says his account was shut off, without warning or notice. That's when Parker launched his odyssey for attention.
"They've still never told me why they terminated my account," Parker gripes. "I've sent more than 12 letters, faxes, e-mail you name it."
While America Online's terms of service state that AOL can terminate a subscriber's account without notice, at its sole discretion, upon any breach of the terms, Parker asserts that most members receive three warnings prior to termination. In fact, AOL's own staff enforcement guidelines instruct AOL guides to issue users three warnings and delete the black mark after six months.
Upon losing his AOL account, Parker contacted an online buddy of his named Erroll Trobee, who had similarly been terminated as an AOL games host and swept off the service three years ago.
After AOL allegedly ignored Trobee's pleas, Trobee filed a series of complaints against the company in Pennsylvania state court, alleging breach of contract, failure to pay minimum wage, failure to pay back wages, and defamation of character.
Like Parker, Trobee joined AOL in 1990 and soon began hosting role-playing games from his home PC in exchange for credited account time. By January 1991, Trobee had been promoted to manager of AOL's emergency substitution team, which entailed his finding replacement hosts or stepping in himself to run games when a regular host couldn't make it.
"It was probably the most fun you could have on a computer," Trobee recalls. "Everyone in the chat room was laughing."
But Trobee's AOL-amore turned bitter when he too was terminated as a host, allegedly for disrupting staff harmony and posting a notice on a public bulletin board criticizing AOL's personnel decisions. Trobee says he did air his anger in public, but had never been admonished not to do so.
"Evidently AOL has a policy against staff posting anything anti-AOL, but I never saw such a policy and still haven't," Trobee notes. He adds that AOL ignored his letters appealing the termination.
But shortly afterward, Trobee says a strange thing happened. He claims that in November 1992 he received a disk in the mail that contained two files: One was a list of "troublemakers" singled out by AOL staff guides, the other revealed the screen names of those guides.
"I didn't know who sent me the disk, but I sure knew what to do with it," Trobee chuckles. "I e-mailed a copy of the guide list to all the troublemakers."
That got AOL's attention, Trobee crows.
"Within 10 minutes of sending the e-mail, the guide manager called me and asked where I got the lists," Trobee recounts. "I said I wasn't going to tell him, and the next thing I knew my account was [closed]."
Again Trobee says he appealed to AOL, and again AOL did not respond to his letters or phone calls.
But Trobee, who has also worked as an insurance claims manager, knew how to play hardball. And he had time on his side -- literally.
When AOL shut off Trobee's account in November 1992, Trobee says he still had nearly 86 hours of credited time left in his account -- time he had earned as wages for his staff work.
When he tried to recoup cash for the credit, AOL refused, Trobee says. So in April 1993, he filed a small claims action against the company for failure to pay back wages.
Concurrently, Trobee sued AOL for libel vis-à-vis the staff board posting that accused him of stealing the screen names of AOL guides.
"They've prevented me from earning a living in the online world by classifying me as a hacker," Trobee argues, referring to the incident. "And by putting me in a position where I have to sue, it makes me an even less desirable employee."
WILL WORK FOR TIME
Two years after he filed his first brief against AOL, Trobee has won a fair amount of leverage -- he claims AOL has offered to settle four times, for as much as $15,000 plus a lifetime free account. But he remains unimpressed.
"That wouldn't even cover their failure to pay minimum wage," Trobee scoffs. "It's an insult after all the damage they've done. I believe I'm entitled to a minimum of $150,000 plus the stock shares that employees received."
Thus far, courts have awarded him only $562 in damages -- on the back wages claim in a June 1993 judgment, which AOL has since appealed. A judge dismissed the libel complaint without prejudice.
During the appeal, Trobee amended his suit to include libel, failure to pay minimum wage and breach of contract.
In the fall of 1993, AOL moved to dismiss Trobee's case for lack of jurisdciton and improper venue outside its Virginia headquarters. But when Trobee submitted a brief noting that AOL advertises and provides service to tens of thousands of Pennsylvanians, AOL withdrew its motion.
Tired of AOL's legal maneuvers, Trobee says he's preparing a motion for summary judgment that he believes will force AOL to settle on his terms.
"This case will never go to trial, because the implications are too great if they lose," Trobee claims. "It could change the way people think about minimum wage and who you have to consider an employee."
What seems unusual about Trobee's case -- and potentially precedent setting -- is the fact that his compensation came entirely in the form of credited time on AOL, says labor lawyer Richard Frank, a partner at Cooley Godward Castro Huddleson & Tatum.
"It's highly uncommon for someone who doesn't fall into the category of intern or volunteer to be working a lot of hours with no cash compensation," Frank says.
A VIRTUAL 2-BY-4
In the meantime, Stanley Parker is preparing a form on how to sue AOL, and Erroll Trobee is shepherding other prospective plaintiffs along, even while both men push AOL to reactivate their accounts.
"I never wanted to sue AOL," claims Parker. "But after several months of no response, I decided I had to pick up the biggest 2-by-4 I could find and hit 'em over the head with it."
And for all their rancor toward AOL, neither Parker nor Trobee considers it worse than the other major online services.
"It's a lot like early aviation," Parker suggests. "A sloppy operation hurting people on the ground and in the air, until eventually the public gets tired of it and goes to the courts to get justice."
For at least a few hours Tuesday, in an eleventh-hour meeting with AOL before today's hearing on the company's motion to vacate the small claims award, Parker thought he had finally reached a happy settlement he says. But after he learned that reinstatement of his account was apparently not part of the deal, Parker says his rage returned.
Now he says AOL lawyers are calling him every hour. And he just lets it ring.
The Recorder · Wednesday, November 15, 1995.
Reporter Robert Ablon gave permission for this story to appear on-line.
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