Defendants/Counterclaim-Plaintiffs Microsystems Software, Inc. ("MSI") and The Learning Company, Inc. ("TLC") submit this Response to briefly address arguments made in Plaintiff/Counterclaim-Defendant William Silverstein's ("Silverstein") reply to MSI's and TLC's opposition to his Motion for Summary Judgment Opposition ("Silverstein's Reply").

The Response is replete with unnecessary hyperbole warranting no attention. Exaggeration aside, however, Silverstein makes a number of misleading arguments which require response. First, his argument that during his trip to Hong Kong and China, he spent every day receiving acupuncture treatment is contradicted both by his deposition testimony and by his electronic correspondence with third parties. MSI and TLC refer the Court to the deposition transcript and Exhibit H of their summary judgment opposition, which speak for themselves. See Silverstein Deposition, Vol. 3, pp. 72-81; Exhibit H to Summary Judgment Opposition. In any event, the fact that Silverstein can point to parts of the record suggesting he spent more than three days receiving treatment, while MSI and TLC can point to parts of the record suggesting he spent only three days receiving treatment or that he spent no more than two weeks receiving treatment, underscores the existence of a material dispute of fact about the necessity of his three-week trip to China, which precludes entry of summary judgment.

Second, Silverstein's argument that MSI and TLC pled their libel claim as public figures, thus precluding them from arguing now that they are not public figures, ignores the nature of notice pleading. MSI and TLC pled the "actual malice" element in the alternative, in the event that the Court ultimately were to conclude that they were public figures. Indeed, if MSI and TLC had not pled malice, a necessary element of a claim of libel brought by a public figure, and later were found to be public figures, there is no doubt that Silverstein would argume that the entire counterclaim should be dismissed for failure to plead the necessary elements of the claim. As MSI and TLC explained in their opposition to Silverstein's Motion for Summary Judgment, the evidence simply does not support a conclusion that they are public figures. See Memorandum in Opposition to Summary Judgment, p. 2, n.2.

Finally, the Court should ignore Silverstein's puzzling argument that the settlement proposal MSI and TLC presented to Silverstein is admissible. Silverstein cites Ladd v. Polidoro, 424 Mass. 196 (1997), for the proposition that settlement negotiations are admissible to prove abuse of process. See Silverstein's Reply, p. 6. Silverstein's reliance on Ladd is misplaced for two reasons. First, the Ladd case did not concern the admissibility of settlement proposals. Second, Ladd is a case that actually involved a claim for abuse of process. Silverstein has filed no such claim against MSI and TLC, and indeed, could not sustain such a claim on the merits. Although MSI and TLC do not dispute that they offered to dismiss the counterclaim as part of a settlement agreement, the substance of that proposal simply is not admissible.

For the foregoing reasons and the reasons stated in MSI's and TLC's Opposition, Silverstein's Motion for Summary Judgment should be denied. Respectfully submitted,

MICROSYSTEMS SOFTWARE, INC., and THE LEARNING COMPANY, INC.,

By their attorneys,

______________________________

Michael L. Rosen, BBO# 559954

Tracey E. Spruce, BBO# 638124

Foley, Hoag & Eliot LLP

One Post Office Square

Boston, MA 02109

Dated: November __, 1999 (617) 832-1000