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Post by Twist Capper on Sept 17, 2010 6:48:36 GMT -6
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Post by hafizesh on Sept 17, 2010 11:24:08 GMT -6
excellet read... Post from Lumiere, an attorney and CMKX shareholder from PT and Tramp's board: Link to original post by Lumiere702... tramp2.proboards.com/index.cgi?board=general&action=display&thread=14362I thought this deserved it's own thread... Mike Sorry for this long post, but I felt such a look at the amended complaint was warranted. I make no judgment on any strategy AH may be employing. I certainly believe and hope that ER will come ASAP. I have seen much negative comment on the amended complaint. The following is only my opinion. All in all I believe the Amended Complaint addresses the Courts concerns. Any evaluation of the amended complaint must start with the Court’s tentative ruling on the motion to dismiss. The Court had two issues with the complaint that it said called for its dismissal: jurisdiction under Bivens and stating a claim under the Takings Clause of the Constitution. The Court stated that, under Bivens, a plaintiff may bring a suit against federal officers who act unconstitutionally, damaging the plaintiff. The plaintiff cannot bring suit directly against the federal government or its agencies due to sovereign immunity. The government can only be sued when it gives its permission. Furthermore, to sue a federal officer in his/her official capacity for constitutionally permissible actions would be tantamount to bringing suit directly against the government. The Court found that the original complaint was seeking to hold the current and former SEC commissioners liable for performing their duties. There were no facts alleged, only conclusions, that the defendants themselves acted unconstitutionally. The defendants cannot be held personally liable for the conduct of others who may have acted unconstitutionally. The Court has no jurisdiction in a Bivens case against federal officers acting in their official capacity The Amended Complaint, in my opinion, satisfies the Court’s Bivens problem with jurisdiction. It claims that IBM’s agreement with the SEC called for the trust funds to be released at the discretion of the SEC, but no later than one year after the company was originally de-listed, in October of 2005. (¶ 53) It states that repeated demands have been made to each defendant for the release of the funds and that representations were repeatedly given promising “imminent” release of the funds. (¶ 54) Failure to release the funds as legally required constituted an unconstitutional “taking.” Further specific acts previously attributed to the SEC in general are now directed at the individual defendants in ¶ 45. The Court stated that Plaintiffs failed to establish that they have a constitutionally protected property interest in the trust funds. It is not enough to state that they are the beneficiaries of the trust. That is a legal conclusion, not factual allegations sufficient to survive a motion to dismiss. The Court stated that owning shares of stock, in and of itself, does not give the shareholders a direct property interest in the assets of the company. The Court said that the Plaintiffs pointed to no “contract or agreement that designated them specifically as having rights to the moneys.” The Amended Complaint addresses the property interest issue. Beginning in ¶ 35 it describes the corporate resolution to self-liquidate dated October 21, 2005. Subsequent paragraphs describe the effort to establish exactly who were the bona fide shareholders so that the distribution of assets could take place. At that time there was a trust into which was placed Entourage stock for the benefit of the shareholders of CMKM Diamonds. CMKM shareholders had a reasonable belief that a pro-rata share of the assets of the company would be distributed and that they held a “vested pro-rata property right interest protected under the Constitution.” (¶ 39) The Court finally says that the Takings Clause of the Constitution does not protect shareholders from a government caused reduction of corporate equity. It cites Broad v Selaska, 85 F.3d 422 (9th Cir. 1996) In my opinion, the amended complaint renders that case distinguishable and therefore not controlling. The Amended Complaint has a very good chance of surviving the inevitable motion to dismiss. Let’s hope we don’t have to find out for sure. |
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