Contracts Between Newton and ASTCA to Produce Telephone Directories

Back in February of 2010, Ethan Lake, marketing manager for ASTCA, approached Newton with a request to produce future telephone directories. With a lack of clarity in his instructions, Ethan sent Newton a list of every landline without any indication of whether it was a voice, fax, or data line. To further complicate things, the list Ethan provided contained confidential data that was internal to ASTCA, but crucially it lacked essential subscriber information such as village names.

John was able to explain the organization of the listings to Ethan, but it quickly became clear that Ethan lacked the knowledge and understanding required for producing a telephone directory. Ethan told Newton that ASTCA had recently hired a new person to look after their customer database. Newton arranged to meet that new person before agreeing to produce future directories. It turned out that the new person was someone Newton had known for many years, JD Hall, son of the chairman of the ASTCA board, Roy Hall.

After meeting with JD, Newton agreed to take on the task of producing future directories. Newton insisted that a new contract must be provided for these future directories. In-house counsel, Gwen Langkilde, in March of 2010, was tasked with preparing an agreement to facilitate the publication of the telephone directories. On August 28, 2010, Ethan wrote to John saying “Sorry for the delays. … Here is what Gwen finally sent me.” Attached to this email was the email from Gwen suggesting that instead of preparing a new agreement, we use the 2002 agreement with amendments. Gwen writes to Ethan (cc: Alex, JD, others) saying “Here’s a draft amendment to the current contract, which incorporates what you’ve set out.” It appears Ethan has asked Gwen to prepare a contract between ASTCA and Newton to facilitate the publication of telephone directories.  Gwen instead offers to amend the 2002 contract and sends copies of her amendments to Ethan, JD, and Alex Sene jr (then CEO of ASTCA).  This communication was not sent to Newton by Gwen but received only from Ethan who forwarded it to Newton.  The idea of using this old contract was rejected by Newton who said it may not be following procurement laws to extend such an old and expired contract.

The 2010 Contract (MOU) Prepared by ASTCA and Signed by both ASTCA and John Newton

In September of 2010, there was a brief meeting between the in-house legal counsel, Gwen Langkilde, and Newton, with JD Hall in attendance. In her deposition, Gwen claims JD called the meeting. Let’s clear this up. JD did not call the meeting. He had no authority to call such a meeting. Gwen called the meeting.

At that meeting, we reviewed a document Newton had submitted as a proposal for the basis of a contract. Newton submitted this document after waiting over six months for Gwen to prepare a contract, which she tried to avoid by suggesting the old contract be amended.

The document Newton submitted was never enacted and was never even made a part of the contract that was finally signed by both parties. Nonetheless, that document has been the focus of much discussion and of a huge amount of intentional misconstruing by Gwen, resulting in the Court taking the suggestions in this document as obfuscated by Gwen and making it part of their decision to rule against Newton on more than one instance.

The first instance where the Court brought Gwen’s obfuscations into its decision was on the ruling against Newton’s Motion for Summary Judgment. You can find the full Motion for Summary Judgment here and the Court’s denial of that motion here. But we’ll get into that later. Right now, we are going to remain focused on the MOU.

The MOU was signed by ASTCA’s Executive Director, Aleki Sene, on November 30, 2010, and by John Newton on December 1, 2010.

Work began immediately under the MOU.

After asking Gwen for listings several times and getting no reply, the below email represents Newton’s first attempt to assist JD Hall with the preparation of listing files and his first acceptance by conduct in regard to the MOU. 

On December 9, 2010, ASTCA began a litany of broken promises with the email below. The email was in response to the above email from Newton in which Newton aids with the preparation of listings.  This reply from JD was the first instance of ASTCA showing their acceptance by conduct and demonstrating they had accepted the terms of the MOU. 

From: J.D. Hall [mailto:jd.hall@astca.net]
Sent: Thursday, December 9, 2010 4:15 PM
To: John Newton <john@johnnewton
Cc: Gwen Langkilde <gwen.langkilde@astca.net>
Subject: Re: listing format

Hi John,

Thanks. I will review these before the end of this weekend and produce directory files for you early next week.

Regards,
J.D. Hall
ASTCA

Then, after more excuses, JD finally sent two files to Newton. These files were touted by ASTCA attorneys as being all the listings required for the telephone directory, a statement that is patently untrue.  There is some argument that cell phone listings were provided based on testimony in depositions of Alex Sene jr and Margaret Willis.  This is also patently untrue, and the writer of that Memo of Opposition seems to be fully confused by the terms pre-paid and post-paid.  Prepaid listings were never a part of the MOU. Post-paid listings were available in the same billing system used to gather all the listings for all sections of the telephone directories. See notes on deposition of Alex Sene jr,

The file named a2z 2011 as mentioned in JD’s email below was an Excel file. This file was a mess with many superfluous notes in the right column and inexplicable content below the listings.  There were 600 instances of numbers listed more than once with different names on each of the duplicates. But it does show that he at least claims to be capable of formatting the listings in Excel.  He later says this cannot be done.

He makes no claim that these are the entirety of the files required for the production of the directory. 

The ‘atoz ready.xls’ file was an Excel file used in the 2008 directory.  JD’s ‘a2z 2011’ file is suspiciously similar to the 2008 file. 

The ‘twrdd02 03001’ file was a pdf that had nothing to do with directory listings.  It was a list of changes containing all the data in each listing as would be used in directory listings but in a much different format than anything ever used in directories.  To use this file, one would need to go through and retype each of the entries into an Excel sheet, creating many opportunities for errors with no way to compare files and find errors.  Even after typing all the listings into an Excel sheet, there was no way to know whether any of the listings had “do not list” instructions.  There were Total Transactions Extracted: 6,705, whatever that means.  It was ASTCA’s responsibility to use their database resources to produce properly formatted listings for presentation to Newton for inclusion in telephone directories, always had been the case and was clearly spelled out in the MOU. Bottom line: this file was never intended for directory purposes in its present form and the file did not comply with the terms of the MOU. 

From: J.D. Hall [mailto:jd.hall@astca.net]
Sent: Thursday, February 3, 2011 2:07 PM
To: John Newton john@pagopago.com
Subject: RE: Data files for directory

John,

a2z 2011 data file is the file in the format of your atoz ready.xls the terdd02.03001 file is a changes to the directory records listing for reference. I did as many spot checks as I could and with a few exceptions most of the changes to the directory records are reflected in the a2z file.

J.D.