Post by rg on Aug 18, 2011 11:31:58 GMT -6
From Lurknomore:
STATE OF THE INVESTIGATION,Eric Fryar, Avniel Adle
« Thread Started Today at 9:39am »
From Granny's board:
I received this letter.I have not signed a nda so here it is.
STATE OF THE INVESTIGATION
Eric Fryar, Avniel Adler
When the Fryar Law Firm began investigating the existence of a CMKX trust fund there were a myriad of issues to address. Initially, there was the extensive administrative effort of setting up representation and communication of a shareholder group in excess of 200—sending out attorney engagement letters to over 200 clients, answering clients’ questions, and collecting the funds necessary to sustain the investigation. The firm created a website as a mainframe for client feedback and to organize our work product and evidence. Finally, the Firm reviewed company history, researched the legal and factual issues of the case and read and organized the litigation pleadings of the several lawsuits that CMKX has been a party to. All of these start-up costs were performed at a considerable discount to give our clients the best opportunity at a meaningful investigation into their claims.
The investigation has had a specific focus throughout, namely: how can we determine whether a CMKX trust fund exists at a minimal expense? The Firm created an Investigation Schedule in an attempt to set-forth what the shortest path to unequivocal evidence of a trust fund would be. Naturally, the course of our investigation has informed us what the next most cost-effective step should be and our investigation plan has evolved accordingly.
Over the past few months we have spoken to a number of players in the CMKX saga. We contacted Bill Frizzell repeatedly to see what connection there exists between CMKM’s efforts at securing assets stolen by corporate insiders (Casavant, Edwards, etc.) and a possible CMKX trust fund. Frizzell disclaimed any connection between the two and explained that the funds stolen by Casavant and co. were easily traceable and that has been the focus of CMKX’s litigation efforts. We asked Frizzell about whether the company has any evidence of naked short selling. Frizzell has guarded this information as extremely private and claims that the company is not allowed to release this information. In other words, to obtain this information we would have to litigate with the company (a simple inspection request will not do). [Please be aware: The Fryar Law Firm has no connection with or prior knowledge
of Mr. Frizzell. Our approach to date has been to deal with him and the company in a polite and professional manner in order to obtain whatever information and assistance might be forthcoming. We have always understood that the company is not our primary target and that any time and money spent in needless wrangling on that front would likely be wasted. If necessary, however, we will not hesitate to deal with Mr. Frizzell in a more aggressive manner.]
In a similar vein, we have spoken to other attorneys that have favorably settled naked short selling cases. They too have confirmed that obtaining evidence of naked short selling from government entities is an uphill battle and likely a waste of time. Moreover, litigating against brokerage houses or other entities involved in the naked short selling of a company’s stock costs millions of dollars to finance. Thus, the Firm determined that litigating with Frizzell and CMKX would not be worthwhile at the moment or within the scope of our investigation. Likewise, sending Freedom of Information Acts to government entities would probably not yield any helpful information in the short term.
We have contacted a host of people who are allegedly connected to the missing trust account. Peter Maheu told us that he has no knowledge of any CMKX trust fund and that he would not return any more phone calls or letters. Keith Staub, the U.S. attorney who represented the SEC in the Bivens action said he had no knowledge whatsoever of any government trust, and in fact, that he was only put on the case to argue it out of court. Any real information would be in the SEC’s possession. Michael Phillips confirmed his story about seeing 3 CMKM trust accounts totaling trillions of dollars (more on him below). Lindell Bonney hung up on the Firm after we inquired what it means to be a “Paymaster”. Al Hodges never returned any of our letters or phone calls.
Following these efforts it occurred to us that deposing the parties who allegedly have personal knowledge of a CMKX trust fund would be the best plan of attack. Those parties are Al Hodges, Michael Phillips and Morris Richards. Consequently, we filed an extensive Rule 202 Petition seeking the depositions of Hodges, Phillips and Richards without filing a lawsuit.
One might wonder, what does it mean to depose a party without filing a lawsuit? That is an excellent question and one that required considerable legal research. Ordinarily, in order to issue subpoenas to compel testimony under oath and the production of documents requires the filing of a lawsuit. However, filing a lawsuit without an adequate factual basis can result dismissal without the opportunity to conduct discovery (this is what happened in the Hodges lawsuit), and more significantly can subject attorneys and their clients to monetary sanctions. Moreover, the persons who claim to have the information necessary for a lawsuit (Hodges, Phillips and Richards) would not be the target of the lawsuit, but only witnesses. Therefore, we are utilizing a little-known and little-used procedural tactic provided by Rule 202 of the Texas Rules of Civil Procedure. This is an innovative approach
and is not guaranteed success, but we feel very optimistic that we have put together a compelling and valid legal position.
What we are doing is representing to a court in Texas that we wish to secure deposition testimony from 3 out-of-state witnesses for use in an anticipated lawsuit. Thus, no one is being sued here. We are telling a Judge that, in the interest of justice, the CMKX shareholders need to depose Hodges, Phillips and Richards, so that their testimony is preserved for use in an anticipated lawsuit. In essence, a lawsuit could not be filed until we have a responsible party to sue. We need to depose Hodges, Phillips and Richards to determine who we could sue to reclaim CMKX trust funds.
It is worth noting that a Rule 202 Petition is an extremely rare procedure. This is particularly true in light our request to depose out-of-state residents. The Petition seeks a deposition of Hodges in California and a deposition of Phillips and Richards in Florida. Thus, the Texas Court must issue what are termed “Letters Rogatory” to request courts in California and Florida to issue subpoenas to our witnesses.
Our petition is also a persuasive document. We must persuade a judge that our deposition of Hodges does not seek to discover privileged “attorney work product”. Rather, we are only interested in hard evidence of a CMKX trust fund within Hodges’ possession, custody or control. We may not discover material that Hodges prepared for use in the Bivens action, his mental impressions developed in anticipation of the Bivens action, or the communications between any of the parties to the Bivens action or their representatives, employees or agents.
The schedule of events is as follows: a hearing will be held on whether the petition will be granted (likely at the end of August or beginning of September). We will notify Hodges, Richards, and Phillips that the hearing will take place. If the judge grants our petition, Mr. Fryar and Mr. Adler will depose Hodges in California, and Richards and Phillips in Florida. We have requested that the witnesses produce documents at the deposition, e.g., a screen shot of the computer screen Phillips allegedly viewed, or a document verifying that Maheu met with the DTCC (in the case of Richards). These documents will be inspected and copied, and posted on the PBWorks website. The depositions will probably take place some time in October, depending on how long it takes to process the Letters Rogatory and set deposition dates in California and Florida. It will be necessary to retain the services of
local attorneys in California and Florida to assist in the necessary filings in those states.
We would like to remind the shareholders the scope of our engagement. We have been retained to investigate the existence of a CMKX trust fund. We have not been retained to file a lawsuit. There is no magic bullet to remedy the wrongs perpetrated on the CMKX shareholders. Our best weapon is reliable evidence. If our investigation yields reliable evidence the shareholders will have something of value for use in an anticipated lawsuit. For now, the shareholders must understand that the Firm is doing our best to secure the information you have retained us to uncover. Additionally, any such lawsuit would also face hurdles of statutes of limitations, jurisdictional issues, and other potential obstacles. The best way to determine the viability of any such a litigation effort must start is valid evidence.
In closing, we would like to assure you that we believe we are breaking serious ground in this investigation and hope to have real answers for you shortly. We have no interest in fraternizing with any of the parties connected with the controversy. Our only goal is to get reliable information for the shareholders. We intend on securing depositions before suit, because we feel it is the fastest way to verify the existence of a CMKX trust fund at a minimal expense. Thank you again for your patience and support.
This message was sent to xxxxxxx from:
Eric Fryar | 1001 Texas Ave, Ste 140 - #111 | Houston, TX 77002-3194
Read more: qbidtalk.proboards.com/index.cgi?....2#ixzz1VOP2GbgS
cmkxunofficial.proboards.com/index.cgi?board=mofo&action=display&thread=8997
STATE OF THE INVESTIGATION,Eric Fryar, Avniel Adle
« Thread Started Today at 9:39am »
From Granny's board:
I received this letter.I have not signed a nda so here it is.
STATE OF THE INVESTIGATION
Eric Fryar, Avniel Adler
When the Fryar Law Firm began investigating the existence of a CMKX trust fund there were a myriad of issues to address. Initially, there was the extensive administrative effort of setting up representation and communication of a shareholder group in excess of 200—sending out attorney engagement letters to over 200 clients, answering clients’ questions, and collecting the funds necessary to sustain the investigation. The firm created a website as a mainframe for client feedback and to organize our work product and evidence. Finally, the Firm reviewed company history, researched the legal and factual issues of the case and read and organized the litigation pleadings of the several lawsuits that CMKX has been a party to. All of these start-up costs were performed at a considerable discount to give our clients the best opportunity at a meaningful investigation into their claims.
The investigation has had a specific focus throughout, namely: how can we determine whether a CMKX trust fund exists at a minimal expense? The Firm created an Investigation Schedule in an attempt to set-forth what the shortest path to unequivocal evidence of a trust fund would be. Naturally, the course of our investigation has informed us what the next most cost-effective step should be and our investigation plan has evolved accordingly.
Over the past few months we have spoken to a number of players in the CMKX saga. We contacted Bill Frizzell repeatedly to see what connection there exists between CMKM’s efforts at securing assets stolen by corporate insiders (Casavant, Edwards, etc.) and a possible CMKX trust fund. Frizzell disclaimed any connection between the two and explained that the funds stolen by Casavant and co. were easily traceable and that has been the focus of CMKX’s litigation efforts. We asked Frizzell about whether the company has any evidence of naked short selling. Frizzell has guarded this information as extremely private and claims that the company is not allowed to release this information. In other words, to obtain this information we would have to litigate with the company (a simple inspection request will not do). [Please be aware: The Fryar Law Firm has no connection with or prior knowledge
of Mr. Frizzell. Our approach to date has been to deal with him and the company in a polite and professional manner in order to obtain whatever information and assistance might be forthcoming. We have always understood that the company is not our primary target and that any time and money spent in needless wrangling on that front would likely be wasted. If necessary, however, we will not hesitate to deal with Mr. Frizzell in a more aggressive manner.]
In a similar vein, we have spoken to other attorneys that have favorably settled naked short selling cases. They too have confirmed that obtaining evidence of naked short selling from government entities is an uphill battle and likely a waste of time. Moreover, litigating against brokerage houses or other entities involved in the naked short selling of a company’s stock costs millions of dollars to finance. Thus, the Firm determined that litigating with Frizzell and CMKX would not be worthwhile at the moment or within the scope of our investigation. Likewise, sending Freedom of Information Acts to government entities would probably not yield any helpful information in the short term.
We have contacted a host of people who are allegedly connected to the missing trust account. Peter Maheu told us that he has no knowledge of any CMKX trust fund and that he would not return any more phone calls or letters. Keith Staub, the U.S. attorney who represented the SEC in the Bivens action said he had no knowledge whatsoever of any government trust, and in fact, that he was only put on the case to argue it out of court. Any real information would be in the SEC’s possession. Michael Phillips confirmed his story about seeing 3 CMKM trust accounts totaling trillions of dollars (more on him below). Lindell Bonney hung up on the Firm after we inquired what it means to be a “Paymaster”. Al Hodges never returned any of our letters or phone calls.
Following these efforts it occurred to us that deposing the parties who allegedly have personal knowledge of a CMKX trust fund would be the best plan of attack. Those parties are Al Hodges, Michael Phillips and Morris Richards. Consequently, we filed an extensive Rule 202 Petition seeking the depositions of Hodges, Phillips and Richards without filing a lawsuit.
One might wonder, what does it mean to depose a party without filing a lawsuit? That is an excellent question and one that required considerable legal research. Ordinarily, in order to issue subpoenas to compel testimony under oath and the production of documents requires the filing of a lawsuit. However, filing a lawsuit without an adequate factual basis can result dismissal without the opportunity to conduct discovery (this is what happened in the Hodges lawsuit), and more significantly can subject attorneys and their clients to monetary sanctions. Moreover, the persons who claim to have the information necessary for a lawsuit (Hodges, Phillips and Richards) would not be the target of the lawsuit, but only witnesses. Therefore, we are utilizing a little-known and little-used procedural tactic provided by Rule 202 of the Texas Rules of Civil Procedure. This is an innovative approach
and is not guaranteed success, but we feel very optimistic that we have put together a compelling and valid legal position.
What we are doing is representing to a court in Texas that we wish to secure deposition testimony from 3 out-of-state witnesses for use in an anticipated lawsuit. Thus, no one is being sued here. We are telling a Judge that, in the interest of justice, the CMKX shareholders need to depose Hodges, Phillips and Richards, so that their testimony is preserved for use in an anticipated lawsuit. In essence, a lawsuit could not be filed until we have a responsible party to sue. We need to depose Hodges, Phillips and Richards to determine who we could sue to reclaim CMKX trust funds.
It is worth noting that a Rule 202 Petition is an extremely rare procedure. This is particularly true in light our request to depose out-of-state residents. The Petition seeks a deposition of Hodges in California and a deposition of Phillips and Richards in Florida. Thus, the Texas Court must issue what are termed “Letters Rogatory” to request courts in California and Florida to issue subpoenas to our witnesses.
Our petition is also a persuasive document. We must persuade a judge that our deposition of Hodges does not seek to discover privileged “attorney work product”. Rather, we are only interested in hard evidence of a CMKX trust fund within Hodges’ possession, custody or control. We may not discover material that Hodges prepared for use in the Bivens action, his mental impressions developed in anticipation of the Bivens action, or the communications between any of the parties to the Bivens action or their representatives, employees or agents.
The schedule of events is as follows: a hearing will be held on whether the petition will be granted (likely at the end of August or beginning of September). We will notify Hodges, Richards, and Phillips that the hearing will take place. If the judge grants our petition, Mr. Fryar and Mr. Adler will depose Hodges in California, and Richards and Phillips in Florida. We have requested that the witnesses produce documents at the deposition, e.g., a screen shot of the computer screen Phillips allegedly viewed, or a document verifying that Maheu met with the DTCC (in the case of Richards). These documents will be inspected and copied, and posted on the PBWorks website. The depositions will probably take place some time in October, depending on how long it takes to process the Letters Rogatory and set deposition dates in California and Florida. It will be necessary to retain the services of
local attorneys in California and Florida to assist in the necessary filings in those states.
We would like to remind the shareholders the scope of our engagement. We have been retained to investigate the existence of a CMKX trust fund. We have not been retained to file a lawsuit. There is no magic bullet to remedy the wrongs perpetrated on the CMKX shareholders. Our best weapon is reliable evidence. If our investigation yields reliable evidence the shareholders will have something of value for use in an anticipated lawsuit. For now, the shareholders must understand that the Firm is doing our best to secure the information you have retained us to uncover. Additionally, any such lawsuit would also face hurdles of statutes of limitations, jurisdictional issues, and other potential obstacles. The best way to determine the viability of any such a litigation effort must start is valid evidence.
In closing, we would like to assure you that we believe we are breaking serious ground in this investigation and hope to have real answers for you shortly. We have no interest in fraternizing with any of the parties connected with the controversy. Our only goal is to get reliable information for the shareholders. We intend on securing depositions before suit, because we feel it is the fastest way to verify the existence of a CMKX trust fund at a minimal expense. Thank you again for your patience and support.
This message was sent to xxxxxxx from:
Eric Fryar | 1001 Texas Ave, Ste 140 - #111 | Houston, TX 77002-3194
Read more: qbidtalk.proboards.com/index.cgi?....2#ixzz1VOP2GbgS
cmkxunofficial.proboards.com/index.cgi?board=mofo&action=display&thread=8997