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Two defendants embroiled in an Internet libel suit with their former employer are now demanding contempt proceedings for opposing counsel, arguing they are misrepresenting a court order. Defendants Mary Day and Michelangelo Delfino are asking the 6th District Court of Appeal in San Jose, Calif., to hold attorneys for Varian Medical Systems Inc. and Varian Semiconductor Equipment Associates Inc. in contempt for sending out cease-and-desist letters based on a trial court injunction now temporarily stayed by the 6th District. The pair’s attorney, John Eisenberg — a partner at Encino, Calif.’s Horvitz & Levy — filed a motion for adjudication of contempt Wednesday. In court papers, Eisenberg argues that Orrick, Herrington & Sutcliffe partner Lynne Hermle and Pillsbury Winthrop partner Thomas Loran III, “coerced a bookseller and several newspapers to cease distributing and running advertisements for a book written and published by appellants” by using threats of litigation. According to papers filed with the court, “The threats are premised on misrepresentations that such distribution and advertising will violate the trial court’s judgment in this case, without disclosing that the judgment has been stayed by this court’s supersedeas order.” On Wednesday, Eisenberg acknowledged it was unusual to request contempt from an appellate court. “It’s a very serious accusation not made lightly,” he said. Loran said he doesn’t think this contempt processing “has any merit.” “Varian will respond to the motion in due course,” he said. “I don’t think what I said violates any court order. Nothing that was done was improper.” The motion for contempt is the latest shot fired in an ongoing battle over Internet babble. Varian Medical and Varian Semiconductor sued former employees Day and Delfino for posting thousands of Internet messages about Varian. Day and Delfino have posted more than 13,000 messages about Varian, its executives and lawyers, and maintained a Web site primarily for that purpose. In November 2001, a Santa Clara Superior Court jury found Day and Delfino had libeled Varian and its employees and had invaded their privacy. The pair was ordered to pay $775,000 in damages. Santa Clara Superior Court Judge Jack Komar also permanently enjoined the pair from posting specific messages on the Web. Day and Delfino appealed, and the 6th District stayed Komar’s injunction pending appeal. The two published a book, “Be Careful Who You SLAPP,” contending that the libel trial was a strategic lawsuit against public participation. They also purchased advertisements in local newspapers, including The Recorder, to promote the book. Although The Recorder was aware of the stay, it chose to discontinue the advertisements after being contacted by Loran. Hermle sent letters to Barnes & Noble demanding the book retailer stop selling Day and Delfino’s book online to avoid liability. Hermle attached a copy of the trial court judgment. Hermle’s letter to Barnes & Noble does not mention the appellate court stay but does state that contempt proceedings against the pair are stayed. It does not mention that the injunction is stayed as well. “The superior court has initiated contempt proceedings against Mr. Delfino and Ms. Day for repeatedly violating the injunction, but those proceedings have been stayed pending resolution of the defendants’ appeal of the judgment.”

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