MCA has failed to meet their second, November 8, deadline at which
we would be fully informed about the MCA controversy
and MCA would supposedly stand vindicated.


I have seen enough and I have made my own determination of the
case, based on the facts available to me, which follows now.

On September 12, S Vince Tidwell of the Miata Club of America
told us:

>From: S Vince Tidwell 
>Date: Tue, 12 Sep 2000 16:28:11 -0400
>
>Leon,
>
>Thanks for your letter.  There is indeed another side to the story and
>because of a lawsuit from MPG, our attorneys have advised us to refrain
>from commenting at this moment.
>
>With a month, this will be resolved and most everyone can get back to their
>lives of enjoying their Miata.
>
>All the best,
>
>Vince Tidwell

It has now been well over double this time, and the controversy has
*not* been resolved.

On Oct. 23, I wrote:

>Dear Vince, Norm,
>
>With regard to your message below, it now has been over a month.
>It is time to respond seriously.
>
>The office of President of the Miata Club of America is a public one. While
>no one likes legal risks, they do come with the job.
>
>By all means feel free to pass any response to the issue below past your
>lawyers for their approval.  But I and many others now want to know what is
>the background behind the issue referred to below.  And how the MCA is
>working
>to fulfil its responsibility to keep the Miata society (at least in the
>USA) a united and happy family.
>
>Sincerely,
>Leon van Dommelen

On Oct 31, S Vince Tidwell wrote:

>X-Sender: svt@pop.mindspring.com
>Date: Tue, 31 Oct 2000 08:44:31 -0500
>
>Leon,
>
>We all have to wait until the judge's ruling on November 8.
>
>All the best,
>
>Vince

Since November 8 passed without a word from anyone, I did two things:
I subscribed to the "Pacer" service to allow me access to court records
and I read the information on Miata.net about the case.  I will first
summarize my results for the court records that I have just obtained:

>10/17/00 25      Notice of Motion and Motion by defendant Norman Garrett,
>                 defendant Vince Tidwell, defendant Miata Magazine Inc,
>                 defendant Miata Club to dismiss for lack of jurisdiction
>                 over the person, insufficiency of service of process and
>                 process  motion(s) referred  to Judge Jeffrey T. Miller ]
>                  motion hrg set for 11/8/00 at 4:00 (bar)

I am *very, very* surprised.  How can MCA suggest that a motion
to dismiss for *lack of jurisdiction* will *resolve* the issue???

Is this an issue that came up at the very last minute, that could not
have been foreseen?  It appears not.  Also from the records:

>10/3/00  20      Order by Judge Jeffrey T. Miller re application for TRO and
>                 preliminary injunction; granting in part/denying in part
>                 application for TRO [13-1]; dfts are enjoined from
>                 publishing any competing magazine until further order of ct;
>                  dfts are not to directly or indirectly make contact w/ a
>                 printer until order of this court; TRO is denied in all
>                 other respects; court sets pla's bond on this matter at
>                 $25,000; preliminary injunction shall be heard 11/8/00 at
>                 4:00; supporting papers due 10/10/00; opposition due
>                 10/24/00; reply due 10/31/00; dfts motion to dismiss will
>                 be calendared for 11/8/00 at 4:00 and filed by 10/17/00;
>                 opposition due 10/31/00; reply to motion to dismiss due
>                 11/6/00; (jrl)

This motion was on the books *3 days* after S Vince Tidwell reassured us
that the case would indeed be *resolved* by November 8!  S Vince Tidwell
is a *public figure* accountable to us all (or at least the MCA members
among us such as me.)

Next:

>11/3/00  40      Notice by dfts Norman Garrett, Vince Tidwell, Miata Magazine
>                 Inc, Miata Club of withdrawal of motion to dismiss for lack
>                 of jurisdiction over the person, insufficiency of svc of
>                 process and process; t/w exhibits (sld)
>                 [Entry date 11/06/00] [Edit date 11/06/00]
>

I am not a lawyer, but this looks to me that the motion to dismiss
for lack of jurisdiction (and hence to keep all of us Miata enthusiasts
uninformed) may have been frivolous.  That it was not able to withstand
the smallest scrutiny.

The last I have:

>11/7/00  48      Minutes: Enter Order by Judge Jeffrey T. Miller:
>                 preliminary injunction hrg held. Motion for preliminary
>                 injunction - submitted. Ct to prepare order. TRO to remain
>                 in effect pending order.  Court Reporter: D. Henson (sld)
>                 [Entry date 11/13/00]
>
>[END OF DOCKET: 3:00cv1571]

I do not know why 11/8/00 is not there.  Maybe someone with experience
in these matters can tell me.


Next, on to part 2.  I have decided to make a decision on the issues
myself after reading the documents available on miata.net.  What
follows is my assessments about who would be judged legally "right"
if I was the judge.  Feel free to think for yourself and make your own
decisions:

The contract is at http://www.miata.net/miatamagazine/contract.gif
   This is the primary basis on which I base my judgment.
The MCA side is at http://www.miata.net/miatamagazine/mcaside.html
   This one-sided point of view was send by MCA to the local Miata
   Club chapters.
The MPG side is at http://www.miata.net/miatamagazine/mpgside.html
   This one-sided point of view was Miata Magazine's response to
   the MCA letter above.

My conclusions are:

1) MCA have withheld from Miata Magazine (MPG - since the magazine is PG
rated :) ) the $6/year they were required to contribute for the publication
of the four or five yearly issues of Miata Magazine.  (Besides advertising
contributions.) This $6 comes out of the $29 a year membership fee from MCA
members like myself.  The remaining $23 is unaccounted for, since the
MCA is a for-profit company, allowing MCA to keep closed books.

In particular the contract states: "MCA shall pay to MPG 19% of all
revenues received by MCA ..."   No ifs or buts.  MCA are in clear
violation of the contract on this point.

2) Subsequently, the MCA have withheld from MPG the mailing addresses
from the MCA members such as myself.  This too is a clear
violation of the contract, that states: "MCA shall provide current
membership lists for all mailings."  Period.

I may add that at NO TIME, I have given MCA the rights to withhold
my mailing address from Miata Magazine.   By accepting my membership
fee, MCA obligated to providing me this Magazine.  Their withholding
my mailing address is a violation on their part not only of the
contract with Miata Magazine, but also of their contract with *ME*.


Next, I will consider the actions of Miata Magazine, (MPG):

3) MPG want to offer/have already offered Miata Magazine on the
news stands.  On carefully reading every line in the contract,
I see *absolutely nothing* that prevents MPG from doing so.
The contract does state: "MPG shall produce a magazine of high quality
which shall promote the interests of MCA and Mazda automobiles."
Promoting the interests of MCA is not the same as making every decision
based on the best interests of MCA only, ignoring the interests
of Miata Magazine.

I note that MPG has paid MCA a quarter million dollars for Miata
Magazine.  This is well over $10 a member.  It should be obvious
to the meanest intellect that MPG would insist on the freedom
to explore all avenues to pay down on that considerable debt,
and the contract reflects this.  I assume MCA had that intellect
when they signed the contract.

As far as the interests of MCA is concerned, MCA spends only $6 of
each $29 membership fee on Miata Magazine, the other $23 going to
other club efforts.  MCA *SOLD* Miata Magazine to an outside operator.
Clearly, by this action MCA has confirmed that Miata Magazine
is only a minor part of what MCA does.  To now wring one's hands
and to state that making this minor component more widely available
would injure MCA financially and imply it can be stopped by *any* means,
even *illegal* ones, cannot be justified.

4) MCA alleges that Miata Magazine included content that was
clearly not in the best interest of MCA.   While it is quite
to be expected that MCA would occasionally strongly disagree
with content they did not write, when selling the magazine,
they *signed away their right* to determine its contents.   The
contract states emphatically: "MPG shall have the final authority
over the contents of any proposed issue."   And let us here be
*very* clear.  MCA was *very much* aware that they were signing
away their independent voice in Miata Magazine: the contract has
an initialed modification, changing "MCA shall have an opportunity
to review and comment upon each issue of Miata Magazine."  The word
"comment" was changed into "advise".   In any case, the next sentence
in the contract gives MCA only two days from "delivery of a proposed
issue" to comment.   It should be clear that commenting at this
late stage gives little opportunity for a significant voice even
if MPG, who has the final authority, agrees with the comment/advise.

5) MPG has started a new magazine, "Ragtops and Roadsters".
This is a more serious question.  The contract states: "[Either party]
will not [...] enter into any other magazine or newsletter business
relating to Miata automobiles..."  I would read "relating to Miata
automobiles" as being another *Miata* magazine, and that it does
allow MPG to start a Magazine intended for the general Roadster
market.   But if the true market of the Magazine would turn out to
be mainly Miatas, it would clearly violate the contract.   And even
if it does not, I could see that the new magazine could be considered
to *relate* to Miatas.  The suggestion by MPG that Ragtops and Roadsters
compares to a magazine dedicated to *Jeeps* is ludicrous.  Yet, *certainly*,
this misty area of a *conceivable* violation does not justify the blatant
contract *violations* described in 1) and 2).  It clearly calls for
a professional legal determination of how this vague part of the
contract should be read.

6) Finally, there is the question of the missing "promotional
issues."  Despite the ridiculous mathematics by MPG, it is very
clear that MPG *have* violated the contract in this area:
"MPG agrees that it will provide a total of 90,000 magazines for
promotional purposes in each calendar year...".  In each calendar
year is not the same as "averaged over the years."

If MCA would have been in a long and hopeless struggle with MPG
to obtain the missing issues to which they were entitled, it would
reasonably entitle them to withhold the $6/year membership contribution
pending resolution of the issue.

However, it would *not* entitle them to withhold the mailing addresses
of their members.  First, that violates the implied contract between
MCA and their members such as myself.  Second, making the complete
customer basis of Miata Magazine unavailable is clearly disastrous
for the Magazine and not morally justifiable based on a relatively
minor contract violation.

However, the moral shortcomings of MCA extend well *beyond* this
issue.   For, the evidence shows *NO* protracted battle by MCA
to retrieve the missing issues.  Quite to the contrary.  In their
letter, MCA cites two reasons for withholding payments: (a) "Ragtops
and Roadsters", (b)  Miata Magazine availability through nonMCA
means.  The reason for withholding mailing addresses is cited as
(c) "content that was clearly not in the best interest of MCA."

As explained above, MCA has *no* rights to (b) and (c), and its rights
in (a) are clearly no more than finding clarification of the term
"relating to Miata automobiles" in a proper *legal* way.   By their
own letter, MCA implicitly admit that they are using a discrepancy
in the books (the missing promotional issues) as justification to
use illegal means to illegally regain rights they have sold
away.   That, in my final analysis, is a clear example of shady
business practices.

Next, my personal opinion:

The MCA is a for profit club, whose books are closed.  There is
no evidence that its income does much good to the Miata community
at large, and may mainly go to its administrators.  The MCA has
sacrificed the best interest of members like me.  They did this
in an attempt to regain some of the rights they sold away for a
quarter of a million dollars, rights that should have been kept
within the MCA in the first place.  The means they used to try
to achieve their goals seem illegal and unethical.  In short, as
an MCA member my interests have been abused and I am now also
associated with the dubious business practices of its leaders.

When my MCA renewal comes up, I will not renew. I have already
subscribed to Miata Magazine directly, and I will give the remaining
$10 directly to our local club.  Which is more than we have ever
received back from MCA ($0).

And if a viable alternative to MCA emerges, one that defends its
members instead of using them as pawns, that keeps its books and
actions open to its members, that uses its income to support
the Miata community at all levels, then I will join that Miata
Club.

Leon van Dommelen