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Thursday, October 30, 2003

Judge Pollack Dismisses 8 More Analyst Cases Against Merrill Lynch With Prejudice

On October 29, 2003, Judge Pollack of the S.D.N.Y. dismissed 8 more "analyst" cases against Merrill Lynch with prejudice. The cases related to research reports on eToys, Homestore.com, iVillage, Lifeminders, LookSmart, Openwave Systems, Pets.com, and Quokka Sports. The Court's Order, available here, expressed exasperation with plaintiffs' effort to reargue issues that the Court said it had "already decided not just once, but four times" in motions to dismiss and for reconsideration, including a June 2003 ruling discussed here.

In short, the Court found:

1. "[T]he harm suffered by the plaintiffs was not caused by any alleged fraud of the defendants; rather, it was caused by the direct intervention of the crash of the internet bubble in the market for which the defendants were not responsible."

2. Plaintiffs failed to adequately plead the existence of a connection between the losses they incurred and the alleged fraud on the market, or that their losses were a foreseeable consequence of the defendants' activity.

3. Under either a one year or two year (assuming, arguendo, that Sarbanes-Oxley Section 804 applied) statute of limitations, plaintiffs' claims were barred. The Court found that more than two years prior to the commencement of any of the 8 cases, "[t]he plethora of public information would have required even a blind, deaf, or indifferent investor to take notice of the purported alleged 'fraud.'" (emphasis in original).

4. Not every knowing misrepresentation creates a legal cause of action under the securities laws. The requisite state of mind under Section 10(b) and Rule 10b-5 that the plaintiff must allege is "a purpose to harm by intentionally deceiving, manipulating or defrauding." The Court rejected plaintiffs' argument that the Complaints need not allege a purpose to harm investors.

The Court added that plaintiffs had "failed to allege facts which could give rise to any inference, let alone a strong one, of an intent on the part of the defendants to defraud them." Plaintiffs' allegations that defendants had sought to attract investment banking business from companies for which they issued reports and that defendant Blodget had sought to increase his bonus compensation were insufficient as a matter of law because "[a]ll firms in the securities industry want to increase profits and all individuals are assumed to desire to increase their compensation."

Comments

Dept. of Justice does Cover-up of $300 million in Fraud connected to Mitt Romney.

The public entity eToys.com filed for bankruptcy in 2001. At which time the court approved the law firms of Traub Bonacquist (TBF) and Morris Nichols (MNAT) to be the Creditors and Debtor’s counsel. The law mandates that both firms have no connection with eToys or with each other. The rules of conflict of interest are designed to assure the public and the creditors get a fair deal, especially when communal stock companies are involved. They must keep their hands out of the cookie jar.
The policing agent assigned to be the watchdog for the public is the Dept of Justice US Trustee’s office. The US Trustee program was formed around 1987 to separate such duties from the Judges who were handling bankruptcy cases. Congress felt such separations were necessary in order to halt any corruption with the millions, which has since become billions of dollar, in complex legal decisions and fee’s that Judges permit law firms and professionals to earn each year. Cronyism is a forbidden item.
There are more than 100 statutory violations that have occurred in eToys. Including perjury, scheme to fix fees, intimidation of victim/witness, conspiracy, obstruction of justice and RICO violations to name a few. The $300 million in fraud has not been prosecuted by the DOJ, even though confessions to perjury have occurred.
So that the reader may understand the serious consideration of the issues below I, Steven Haas (a/k/a Laser Haas) testify that the foregoing is true and correct. These statements are made under the “Penalty of perjury” this 17th day of October 2007.
Collateral Logistics’ Inc (CLI), a company owned by Laser Haas, was hired as the Court approved liquidation consultant as eToys had announced that they were going to auction off everything for $5 million. The bankruptcy assets were eventually sold to Bain/KB. Barry Gold, MNAT & TBF gave Bain/KB discounts in the tens of millions. At that time Bain was owned and/or controlled by the Presidential hopeful Mitt Romney.
The sales efforts of Laser managed to get back more than $45 million into the eToys bank accounts. Yet for some inexplicable reason the new CEO of eToys, Barry Gold and the law firms TBF & MNAT kept finding fault with Laser’s accomplishments. When Laser discovered the possibility that Barry Gold and TBF might be associated he was offered a very clever bribe of $800,000 with a caveat of TBF’s high connections.
Upon turning down that gratuitous offer, a campaign to destroy Haas began that forced Laser to hire a new attorney for CLI. Henry Heiman who was formerly a Trustee in Delaware. TBF, MNAT and Barry Gold had “produced” some documents to the Court stating that Haas generously waived all earnings. CLI was entitled to more than $3 million in fees and expenses. Heiman stated that he would correct the matter, that the contracts the court approved were indisputable and that CLI would be paid in 30 days. Haas told Heiman and the US Trustee office how the parties had tried to invite Haas to become one of the “good ole boys”. Both stated there was no law broken, that no court violation had occurred and denied any legalities/violations of conflict of interest issues.
Two years later Laser began to sense that Heiman did not have the best interest of CLI in mind; so Laser started to research the Code and Rules of the bankruptcy system that anyone can find on the Dept of Justice website. The law states the Courts can only approve attorneys for work in bankruptcy matters, once the attorneys submit an Affidavit, under Bankruptcy Rule 2014. Attorneys must state that there are no connections or conflict of interest. They must not touch the pot of golden cookies in the cookie jar.
The DOJ website led Laser to discover that his both Heiman & the Dept of Justice Attorney, Mark Kenney, had lied to Haas that the bribe was not an issue unless accepted. Perjury had been committed by the false affidavits that had been tendered by the attorneys. TBF, Barry Gold, MNAT, etc, had been paid more than $14 million in fees and expenses. Attorneys must re-certify there are no conflicts whenever the seek payments. They must submit fee applications at least every three months.
Upon supplementary discoveries of malfeasance Laser again contacted the Dept of Justice’s Mark Kenney and informed him of the issues at hand. This resulted in heated phone conversations whereby Heiman emailed Laser a threat by Susan Balaschak of TBF. Stating if Haas did not “back off” from his investigations not only would CLI not get paid for the work the Court had approved, Laser’s career would suffer greatly and TBF would seek additional retaliations to come after Haas for monies earned earlier.
When Laser called the Dept of Justice about such, Mark Kenney also addressed Haas in an angry manner and stated that the conflict of interest issues of Barry Gold and TBF had been handled in Bonus Sales. There it was, out of anger, a slip of the tongue, Mark Kenney accidentally provided Haas with the place to find the proofs that the Dept of Justice had known all along. Undisclosed conflicts of interest of TBF and Barry Gold existed and had already been addressed by the Courts twice before. Congress has mandated that all court cases now be available to the public by Internet access, knowing the fact that issues hidden tends to corrupt. The public access system is called PACER.
Researching PACER for the Bonus Sales case (Del Bankr 03-12284) led to the discovery of a company TBF’s owner, Paul Traub and Barry Gold hold together. That being the entity of Asset Disposition Advisors. (ADA) The old adage of the lie told yesterday is forgotten when one tells a lie today proves to be correct in this case.
Haas’s attorney Heiman refused to supply the Court with this damming information and Heiman immediately asked the Court to withdraw as CLI counsel. Upon Laser’s supplying of the proof to the Court, the eToys shareholders reached out to Laser. The comparing of notes led to discovery of many additional hidden secrets. Both the shareholders and Haas made Emergency motions to ask the Court to deal with the issue of the false affidavits that were to be heard on December 22, 2004.
The Director, Lawrence Friedman, of the US Trustee’s in Washington D C replaced Roberta DeAngelis by a press release on Dec. 22, 2004. At the Emergency hearing on Dec. 22, 2004 the Judge Ordered TBF, MNAT and Barry Gold to address the non-disclosure of conflict of interests issues by responses on Jan. 25, 2005. The Asst US Trustee, Frank Perch armed with the responses and confessions of multiple, intentionally false affidavits, then Motioned to Disgorge TBF $1.6 million on Feb. 15, 2005.
Just when Laser and the eToys shareholder key researcher (Robert Alber) felt that justice would occur, out of the blue, less than 10 days later Mark Kenney enters a Stipulation to Settle that reduces the penalty of the returned monies of $1.6 million to only $750,000. At the same time Mark Kenney included language within the settlement that implied a get out of jail free card to everyone while also permitting continuous circumvention of the Law. It illegally states that the parties would not be compelled to tell any of their other illegitimate activities. Mark Kenney being charged by Oath with protecting the public’s interest had turned collaborator and seeks to protect the perpetrators of fraud on the court with a slap on the wrist fine. This is simply absurd!
Not only has TBF & MNAT confessed to several acts of false affidavits, Paul Traub of TBF also confessed directly to the court that he paid Barry Gold four payments of $30,000 each that stopped when TBF & MNAT placed Barry Gold secretly within the Debtor. A hidden Hiring Letter shows that Barry Gold was given illegal permission to circumvent the Court and the Law, by his own choice, and such was deliberate. Once he agreed to violate the law, he was then paid $40,000 per month and a bonus at the end. To earn this money all Barry Gold had to do was work 4 days per month for the Debtor.
Laser and Alber immediately complained to the Court, to Frank Perch and the Director of the Dept of Justice EOUST office, Lawrence Friedman. Mr. Friedman emailed Haas his staff was on top of it and that the matters would be addressed properly.
At the same time Haas and Alber began researching for the reasons why the Dept of Justice’s Mark Kenney would stick his neck out, so flagrantly against the Law. To everyone’s surprise the additional non-disclosures the Stipulation tried to cover up was the fact that MNAT, TBF & Barry Gold all had non-disclosed connections to KB/Bain. TBF and Barry Gold had worked for/with Bain. SanKaty, Stage, as Mitt Romney owned the entity called Stage Stores, also a bankruptcy matter in another state, Texas.
MNAT, it turns out, also represents Bain interests on a regular basis. MNAT had handled a Mitt Romney/Bain connected entity, the Learning Company, when it merged with Mattel. Both the Bain and Mattel issues mandate immediate removal of MNAT, TBF & Barry Gold with referral to the United States Attorney’s office for prosecution.
Yet the Disgorge motion and Stipulation to Settle speciously ignores MNAT. There are also multiple $100 million dollar preferential issues in both eToys and KB Toys bankruptcy that have never been reviewed. MNAT brazenly represents Bain in the KB Toys bankruptcy case. This is also a crime as has been established in the matter of In re Bucyrus. In that case Milbank was disgorged their entire fee’s paid, the Law firm lost a $20 million lawsuit and Gellene was sent to jail for his perjury in trying to hide such from the Court by false affidavits. A book on the Gellene matter is available on Amazon, entitled Eat what you kill -The fall of a Wall Street Lawyer.
To demonstrate how little the $750,000 meant to TBF as a deterrent, Paul Traub then petitioned the Court to handle the $100 million dollar preferential of Michael Glazer and Bain in the KB Toys case. TBF and Barry Gold did not inform the KB Judge of their connections to Bain and Glazer. Whereupon Haas and Alber immediately cried foul to Asst US Trustee Frank Perch, to the Court and to Lawrence Friedman.
Mark Kenney responded to the proofs provided by Laser by Obstructing justice stepping in as the defense for TBF. Kenney asked the courts to strike and expunge the proofs provided by Laser and Alber. The Court signed an Order dismissing Laser’s & ALBER’s comments and then held a hearing about the issue. As if such treasonous defenses and improper procedures were not enough, Laser discovers that Mr. Perch and Lawrence Friedman both put in their resignations, from their positions of esteemed office, for “personal reasons”. Leaving an perceptible void of responsible authority.
As Mark Kenney was successful in assisting in the defense of TBF, MNAT and Barry Gold, the court also assisted the threats of TBF against Haas, by allowing the CLI claims hearing to be rescheduled. Haas’s new counsel, Brad Brook, now having a slam-dunk case against the fraud, with admitted acts of perjury, should have motioned to win the case, bizarrely, instead Brook asks to withdraw. Stating falsely that Haas had disappeared and could not be reached. Brook could not offer or state it was a monetary issue as his firm believed in Laser’s case so much they took it upon contingency.
The Court permitted the rescheduling, the withdrawal of Laser’s attorney and then summarily dismissed the CLI claims case. The Court ignoring the issues of due process and Constitutional rights, even went so far as to refuse Laser’s new counsel from speaking to the Court the very day the Court dismissed the $3 million claim that CLI had earned from the Court approved contracts as liquidation consultant.
Both Haas and Alber complained to the FBI, the US Marshall’s, the OIG, the OGE and the OPR offices of the US Government. All of which referred Haas and Alber to the US Attorney’s office in Delaware and the US Dept of Justice office of General Counsel of the EOUST in Washington D.C..
The sham of these referrals is the fact that the after the resignation of Lawrence Friedman, the replaced Region 3 Trustee, Roberta DeAngelis was promoted by the Dept of Justice to be the Acting General Counsel for the US Trustee’s. DeAngelis is now in scandalously in charge of investigating her own cases that she was removed from!
Making matters even worse the US Trustee’s office has been acting as appellee in the appeals of Haas and Alber, improbably defending TBF, MNAT and Barry Gold by asking the Courts to strike and dismiss the Haas or Alber appeals for being “without merit”. Roberta DeAngelis has actually signed a brief asking the 3rd Circuit to dismiss.
Heading off the first appeal of Laser, the bankruptcy court issued a 57 page Opinion that testifies on behalf of the perpetrators and states clearly erroneous findings of fact and conclusions of law to justify the position. It is as if the Delaware bankruptcy court has become a twilight zone and sanctuary for white-collar, syndicated crime!
Anyone can plainly see that the entire system of cronyism is defending TBF, MNAT and Barry Gold. The one question that has remained unanswered is Why? Who can it be, that the entire system is protecting? At the same time the question comes to mind as to how high does the manipulation of the system go? Is the White House aware of all the perversions of the Justice system and if so, why has no one sought to correct the problem? Where does the power come from that can manipulate the Dept of Justice?
Everywhere that Haas and Alber look they find inexplicable questions of connections and cronyism that remain unanswered, even though the acts of impropriety are clearly evident. Just months ago it was discovered that the Judge who had heard all 4 Delaware District Court appeals in the eToys case, Judge Kent A Jordan, was a partner in the firm of Morris James. As per the law § 455 Kent Jordan should have recused himself from the case as his firm Morris James was the firm that Haas had fired when he had hired Henry Heiman to pursue the claim of CLI in eToys.
Also the resignations of esteemed parties do not cease, as Debra Yang of President Bush’s Corp Fraud Task Force also resigned without providing any remedy. A feat that is only made pale by the fact that it is now discovered that the US Attorney for Delaware Colm F Connolly was a partner of the law firm of MNAT. Colm F Connolly is now to be the Judge in Delaware District Ct position made vacant by Kent A Jordan.
It appears it certainly is a great career move to refuse to investigate or prosecute one’s former partner, associates and clients. Especially when the Presidential hopeful Mitt Romney owns one of the clients and has benefited from the malfeasance.
Nevertheless, it now has to be a vital cause of concern for MNAT, Barry Gold, TBF & Mr. Connolly, as such actions are unethical, illegal and good reason for Colm Connolly failing to be promoted to the Federal Judge position. The lawbreakers now realize they are caught, red-handed, with everyone’s hands in the cookie jar.


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» Eight More Analyst Research Cases Dismisssed from The 10b-5 Daily
Judge Pollack of the S.D.N.Y. has dismissed, with prejudice, an additional eight class actions against Merrill Lynch alleging the brokerage committed securities fraud by publishing overly optimistic research reports. The companies discussed in the rele... [Read More]

» Eight More Analyst Research Cases Dismisssed from The 10b-5 Daily
Judge Pollack of the S.D.N.Y. has dismissed, with prejudice, an additional eight class actions against Merrill Lynch alleging the brokerage committed securities fraud by publishing overly optimistic research reports. The companies discussed in the rele... [Read More]

   
 
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