dale, are you the Richdale?
2008-11-13 12:33 ET - Street Wire
by Mike Caswell
Rene Hamouth has filed his answer to the complaint filed by California investor Deborah Richdale. He denies allegations that he shorted OTC Bulletin Board listing True Product ID Inc. or that he said the stock would rise to $600. (In the United States, an "answer" is the same as a statement of defence in English and Canadian law.)
Mrs. Richdale claims she invested $883,313 in the company based on Mr. Hamouth's representations. Mr. Hamouth had allegedly told her husband, Brad Richdale, that True Product ID had a $1.4-billion deal in China and was guaranteed to rise. Instead, the company's price fell and the Richdales said they later discovered Mr. Hamouth had been shorting the stock.
In his answer, Mr. Hamouth denies making the representations to the Richdales. He says the Richdales bought stock in the open market, and assumed any risks associated with shares purchased on the market.
Mrs. Richdale's complaint
Mrs. Richdale filed a suit against Mr. Hamouth and others on July 9, 2008, in the Eastern District of Pennsylvania. The other defendants were Utah resident Roger Dunavant, West Vancouver resident Richard Specht and Florida resident Wilson Hendricks.
The suit alleged that Mr. Hamouth approached Mr. Richdale in October, 2007, and recommended investing in True Product ID. He said the company had obtained a $1.4-billion contract in China for anti-counterfeiting technology, and was negotiating another $5-billion deal. He was looking for a group of "select" investors, the suit alleged.
Mr. Hamouth allegedly guaranteed a 500-per-cent return on the investment, and said he would personally make up the difference if the stock went down. He also said the company was planning a 1:100 rollback, which would boost its price.
The Richdales said they bought True Product ID between 10 and 13 cents, investing a total of $883,313. They purchased most of their shares through Oromond Trust, a holding company Mrs. Richdale controls for the benefit of her children.
Not long after that, the company's price began falling. They said they contacted Mr. Hamouth to ask him what was happening. Mr. Hamouth allegedly said that somebody was shorting the stock, but they should not be concerned because the company was still "on track."
The Richdales said they later discovered it was Mr. Hamouth who had been shorting the stock. "Hamouth engaged in such short selling because he knew of the falsity of his representations," the complaint stated.
The Richdales also discovered that Mr. Hamouth was trying to cover his short, but was having a problem doing so, according to the suit. He had unsuccessfully tried to use three million shares he was issued as a consultant, but the U.S. Securities and Exchange Commission would not let him register those shares because they were not eligible for any exemption.
On April 5, 2008, he allegedly offered to buy the Richdales's shares for 25 per cent above market price, which was 5.5 cents by then.
The Richdales said by this time they knew that Mr. Hamouth was the person shorting the company, and they confronted Mr. Dunavant, the company's chief executive officer, with the information. Mr. Dunavant admitted that he knew Mr. Hamouth was shorting, but did not do anything about it, the suit alleged.
The company rolled back 1:100 on June 11, 2008, but the stock kept falling. On July 1, 2008, it was at 55 cents, which translates to 55-100ths of a cent before the rollback.
"As a result of Defendants' actions, Plaintiffs have suffered almost a complete loss of their investment," the complaint stated.
In addition to the allegations over True Product ID, the suit also alleged that Mr. Hamouth and Mr. Dunavant had defrauded investors in three earlier stock schemes. Mr. Hamouth was found liable for short-swing trading in civil suits over Net Command Tech Inc. and Smart Video Technologies Inc., according to the suit.
The complaint also stated that the SEC had investigated Net Command and that the Vancouver Stock Exchange had previously banned Mr. Hamouth in connection with yet another transaction.
The suit alleged several breaches of the securities laws in Pennsylvania and California. It sought damages, to be determined at trial, plus an injunction restraining Mr. Hamouth from transferring his True Product ID shares.
Hamouth's answer
Mr. Hamouth and the other defendants filed an answer to the complaint on Nov. 10, 2008.
In it, Mr. Hamouth denies urging the Richdales to invest in True Product ID, but he believes that they did buy shares of the company on the market. He says he did not tell them the company had a $1.4-billion deal in China, nor did he tell them it was close to obtaining $5-billion in follow-up contracts.
According to the answer, Mr. Hamouth also did not guarantee to the Richdales that the company would reach $600, nor did he offer to personally make up the difference if the stock declined.
The defendants claim that Mr. Richdale never called Mr. Dunavant to inquire about Mr. Hamouth's alleged shorting. When Mr. Richdale did call, he was seeking investments in his business ventures, which included selling facial creams, tooth veneers and collectible watches.
Mr. Hamouth denies that he shorted the stock, that he had any problems covering a short or that he offered to buy the Richdales's shares at 25 per cent above market price.
The answer also notes that the SEC did investigate Net Command, and subsequently cleared Net Command and Mr. Dunavant of any wrongdoing.
The answer pleads many legal defences to the allegations. It states that the plaintiffs are barred from recovering any damages because they failed to mitigate their losses and that they must assume any risk of a decrease in the price of shares purchased on the market.
If the Richdales did suffer any loss, it was caused by outside events, including the operation of natural market forces, according to the answer.
The answer also states that any contract, promise or obligation alleged in the complaint may be illegal and would be unenforceable "as a matter of public policy."
The other defences are more difficult for non-legal types to interpret. The answer states that the claim is barred "under the doctrines of estoppel, laches and waiver" and "by the doctrine of unclean hands and other similar equitable doctrines."
Pennsylvania lawyer Michael Dubin filed the answer on behalf of Mr. Hamouth and the other defendants.
