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It s before the Courts. Presumably it will go to Trial and in due course a decision rendered.
There will be many more days for cheapies I m afraid.
IMO - I believe that many of your observations and conclusions are based on common sense.
I appreciate that many people want to only see what they feel are the positives as it relates to the Company and their efforts. I am of the opinion that one should look at the totality of efforts and draw a more realistic conclusion.
In Sarissa s case it is my opinion that they have inexperienced Management and a lack of Available cash.
There are various other factors of course but these are the two overriding issues at this time.
Honestly to me it simply seems like common sense.
Everything that the Company is said to be doing requires substantial "cash". Adminstration - Audits, Lawyers, Prospectus, new Exchange listing, Transfer Agent ETC. - Geology/Property - Drill Program, Geologists, Reports ETC. The October Private Placement proceeds ($250K) would most certainly be used up / dedicated by this time. My concern would be where is the Company going to obtain further moving forward funding from? Scott Keevil may have access personally to sufficient funding in this regard but he hasn t seemed motivated to fund the Company in that manner.
Everything that the Company says that they are doing, or that we believe they are doing, can be accomplished in a relatively short time if money is available when required. From my experience when there is a "slow down " it is usually because the Funds required are not available. - with the provisio that the people in charge know what they are doing.
I assume that money, or more specifically lack thereof, is a problem fir the Company.
It does seem like a repeat of the same story but with a different voice. We will have to wait to see if the results are any different.
In order to avoid these type of "misinterpretations" wouldn t a "blog" on the Company s Website be a great idea.
The Company could communicate directly with the Shareholders and potential Investors providing direct, accurate and current information.
IMO it would be helpful to all concerned as to what the Company is actually doing on a day to day / week to week basis.
It is a very important document that requires a serious approach by the author therefore I am of the opinion that it will have to be rewritten (at least a good portion of it) to ensure accuracy of the facts.
A Statement from the Company, on their Website for example, providing clarification in this regard (visitation timeline etc) could be a method to take speculation out of the equation.
Fair enough.
I look forward to the Company providing the Report sometime this month (which I would think is a reasonable expectation based on your explanation).
I don t recall the Company providing any specific timelines in this regard. The NI Report is quite comprehensive therefore I would think it would take several weeks for it to be completed after any site visit. That is assuming that all of the preliminary work required to complete such a Report was indeed underway and "almost complete".
When does the Company believe that Report will be completed? When does the Company anticipate providing the Report to the Shareholders for their perusal?
Thank you. As long as it was good wine !!!!
Has the Company said that this Report will be provided to them next week?
Case 1:15-cv-00093-FJS-RFT Document 8 Filed 03/26/15 Page 1 of 8
UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF NEW YORK
----------------------------------------------------------------
THOMAS E. PEREZ, Secretary of Labor, :
United States Department of Labor, :
Plaintiff,
:
v. Civil Action
:
File No. 15-CV-00093 (FJS/RFT)
DANIEL M. BYRNES, individually, and Fort :
Orange Capital Management, Inc. Profit
Sharing Plan, :
Defendants. :
----------------------------------------------------------------
PROPOSED CASE MANAGEMENT PLAN
PLEASE TAKE NOTICE that the parties in this matter have conferred pursuant to
Rules 16 and 26(f) of the Federal Rules of Civil Procedure and respectfully submit this proposed
Case Management Plan for this Court’s consideration. The Defendants are completing this
Proposed Case Management Plan pro se while they attempt to retain proper legal counsel to
represent them in this matter. Defendants’ contributions to this Proposed Case Management Plan
are done with their best efforts in order to meet the Court’s requirements for submission of the
Proposed Case Management Plan.
1) JOINDER OF PARTIES: Any application to join any person as a party to this action shall
be made on or before the May 2, 2015.
2) AMENDMENT OF PLEADINGS: Any application to amend the pleadings to this action
shall be made on or before the October 2, 2015.
3) DISCOVERY: Fact discovery shall be completed by October 2, 2015. Expert discovery
shall be completed by December 2, 2015.
1
Case 1:15-cv-00093-FJS-RFT Document 8 Filed 03/26/15 Page 2 of 8
4) MOTIONS: All motions, including discovery motions, shall be made on or before
February 2, 2016.
5) PROPOSED DATE FOR THE COMMENCEMENT OF TRIAL: This action will be
ready to proceed to trial on or before the 15th day of April, 2016. The Secretary anticipates
that it will take approximately one to two days to present the government’s case in chief.
Defendants anticipate that it will take another two to three days to present their case in chief.
The parties request that the trial be held in Albany, New York.
6) JURY DEMAND: Neither party has requested a jury.
7) JURISDICTION: This Court has subject matter jurisdiction. The parties are subject to the
jurisdiction of this Court. All parties have been served.
8) FACTUAL AND LEGAL BASES FOR PLAINTIFF’S CLAIMS AND DEFENDANTS’
DEFENSES: The Secretary has brought his claims pursuant to the provisions of section
404(a)-(b) of the Employment Retirement Security Act of 1974, as amended, codified at 29
U.S.C. §1001 et seq. The Defendants have brought forth three defenses: (1) Extenuating
Circumstances, (2) Unclean Hands, and (3) Extraordinary Action in this Matter.
9) WHAT FACTUAL AND LEGAL ISSUES ARE GENUINELY IN DISPUTE: The
defendants admitted the majority of the Secretary’s factual allegations in their Answer.
Nonetheless, at this time the Secretary does not believe that there are any dispositive or
partially dispositive issues appropriate for decision on motion because the parties dispute
whether the agreed-upon conduct constitute violations of ERISA Section 404(a)-(c) and
whether it resulted in a harm/loss to the Plan.
2
Case 1:15-cv-00093-FJS-RFT Document 8 Filed 03/26/15 Page 3 of 8
10) NARROWING THE ISSUES: The Secretary is hopeful that the parties can further narrow
the issue by agreement or motion at a later date. The Defendants will determine this upon
obtaining representative counsel.
11) RELIEF SOUGHT: an Order (1) requiring Byrnes to provide an equitable accounting of
the whereabouts and status of the Plan’s assets and liabilities, any gains and losses in the
Plan’s investments, and any income earned or payments received by the Plan, between
January 1, 2011 and the present; (2) requiring Byrnes to restore to the Plan all losses
attributable to his fiduciary breaches plus interest; Requiring the offset of benefits due under
the Plan to Byrnes against the amounts Byrnes owes to the Plan; Removing Defendant
Byrnes as fiduciary to the Plan; (3) permanently enjoining Byrnes from violating ERISA §
404, 29 U.S.C. § 1104; (4) Permanently enjoining Byrnes from serving as a fiduciary or
service provider to any employee pension benefit plan or employee benefit plan covered by
the provisions of ERISA; (5) appointing an independent fiduciary for the Plan with plenary
fiduciary authority and control over the Plan, including but not limited to, the authority to
marshal assets on behalf of the Plan, pursue claims on behalf of the Plan, and take all
appropriate actions for the rehabilitation or liquidation of the Plan and distribution of the
Plan’s assets to the Plan’s participants, beneficiaries, and creditors as may be necessary and
proper; (6) ordering Byrnes, his agents, employees, service providers, banks, accountants,
and attorneys to preserve and provide the Secretary and the independent fiduciary all of the
books, documents, and records relating to the finances and administration of the Plan; and
(7) awarding the Secretary the costs of this civil action; and (8) providing such further relief
as is just and equitable.
3
Case 1:15-cv-00093-FJS-RFT Document 8 Filed 03/26/15 Page 4 of 8
12) DISCOVERY PLAN
A. MANDATORY DISCLOSURES: The parties will exchange the mandatory
disclosures required under Rule 26(a)(1) on or before March 26, 2015.
B. SUBJECTS OF DISCLOSURE:
i. The Plaintiff expects to conduct discovery regarding defendants’ 2011 and
2012 investments into Sarissa Resources, Inc., including but not limited to the
information defendants reviewed and relied upon in making such
investments; defendant Byrnes’ relationship with Sarissa Resources, Inc.,
including but not limited to his personal holdings in Sarissa Resources,
Inc. as well as those of his family members; defendant Byrnes’
relationship with any officers, directors, or employees of Sarissa
Resources, Inc.; and defendant Byrnes’ employment with Sarissa
Resources, Inc. The Secretary reserves her right to pursue additional topics
during discovery as well.
ii. The Defendants will inquire about issues to be determined upon obtaining
representative counsel.
C. DISCOVERY SEQUENCE: The parties will conduct written fact discovery
(written discovery followed by depositions, followed by post-deposition written
discovery) followed by expert discovery (reports to be exchanged 30 days after
close of fact discovery; expert depositions to occur within 30 days after reports
have been disclosed).
D. WRITTEN DISCOVERY: The parties expect to conduct written discovery,
including interrogatories, requests to produce, and requests for admission. The
4
Case 1:15-cv-00093-FJS-RFT Document 8 Filed 03/26/15 Page 5 of 8
Secretary proposed that the parties promulgate an initial round of discovery
demands on or before April 30, 2015. The Defendants expect to promulgate an
initial round of discovery demands on a time frame after engagement of
representative legal counsel.
Discovery in excess of the interrogatory limits is not anticipated at this time. The
parties anticipate that written discovery will cover topics such as those discussed
above in Section C(12)(b)(i). The Secretary reserves her right to pursue additional
topics during discovery as well.
E. DEPOSITIONS:
i. At this time, Plaintiff expects to depose individual defendant Daniel M.
Byrnes, and to depose Fort Orange Capital Management Profit Sharing
Plan under Fed.R.Civ.P. 30(b)(6), in the Capital Region (likely in Albany
or Colonie). Plaintiff also intends to conduct a third-party deposition of
Sarissa Resources, Inc. pursuant to Fed.R.Civ.P. 30(b)(6). The location of
the Secretary’s deposition of non-party Sarissa Resources, Inc. will be
determined at a later date. The Secretary reserves her right to conduct
additional depositions of individuals and/or entities not specified herein.
ii. The depositions Defendants will conduct will be determined upon
obtaining representative legal counsel and will be held at an appropriate
local to be determined.
F. EXPERTS:
i. The Secretary expects to retain a valuation expert and is the process of
procuring government funding to do so. The Secretary seeks a variance
5
Case 1:15-cv-00093-FJS-RFT Document 8 Filed 03/26/15 Page 6 of 8
from the expert disclosure requirements of the form uniform pretrial
scheduling order typically issued by the Court. The Secretary proposes
that the parties identify any expert witness they plan to use to support a
claim or defense no later than July 2, 2015. The Secretary further
proposes that the parties conduct expert discovery, including the exchange
of reports and depositions, after the close of fact discovery (i.e. the parties
exchange expert reports 30 days after the close of fact discovery, or by
Nov. 2, 2015, the parties exchange rebuttal reports by Dec. 2, 2015, and
expert depositions occur within 45 days after the exchange of rebuttal
reports).
ii. The Defendants expect experts to be determined upon obtaining
representative legal counsel.
G. ELECTRONIC DISCOVERY: The Secretary requests that the parties agree to
retain all electronically created or stored information relevant to the case until trial
or until any resulting appeals are resolved and to address discovery issues
pertaining to the materials as materials are requested. The Secretary neither
requires that defendants produce documents in native format nor plans to produce
documents responsive to defendants’ requests in native format. As a general
matter, the Secretary plans to produce documents responsive to any of defendants’
document requests in PDF format and will accept the same from defendants.
However, the Secretary reserves the right to identify and request that certain
documents be produced in native format, including but not limited to the
following documents obtained during the government’s investigation of the Plan:
6
Case 1:15-cv-00093-FJS-RFT Document 8 Filed 03/26/15 Page 7 of 8
(1) Loan Accrual Statement, dated August 1, 2012 (Loan #001, showing that the
Plan loaned Daniel M. Byrnes $120,000), and (2) Secured Promissory Note, dated
August 1, 2012 (relating to the Plan’s loan of $120,000 to Daniel M. Byrnes).
H. PROTECTIVE ORDERS: The parties do not request any protective orders at
this time.
I. ANTICIPATED ISSUES REQUIRING COURT INTERVENTION: In order
to do non-party discovery on Sarissa Resources Inc., a Nevada corporation that is
headquartered in Canada, the Secretary may need to file Letters Rogatory with
this Court.
13) USE OF EXPEDITED MEANS TO PRESENT EVIDENCE/BIFURCATION: While
the parties hope to use expedited means to streamline the case wherever possible, they can
respond more fully to this inquiry after discovery has been conducted. The Secretary does not
anticipate that bifurcation is necessary at this time.
14) RELATED CASES: To the parties’ knowledge, there are no related cases pending before
the judges of this Court.
15) CLASS ACTION: Not applicable.
16) PROSPECTS FOR SETTLEMENT:
i. The Secretary’s position is that the prospects of settlement cannot be evaluated in
a meaningful way prior to the completion of discovery. The Secretary’s position
would be substantially impacted by defendants’ agreement at this time to appoint
an independent fiduciary in order to wind down the Plan and restore to the Plan
the $220,000 of Plan assets that were used to purchase 11 million shares of stock
in Sarissa Resources, Inc.
7
Case 1:15-cv-00093-FJS-RFT Document 8 Filed 03/26/15 Page 8 of 8
ii. Defendants’ position on the prospects of settlement is to be determined upon
obtaining representative legal counsel.
17) MANDATORY MEDIATION:
A. YES (Secretary); NO (Defendants)
B. YES (Secretary); NO (Defendants)
C. YES (Secretary); NO (Defendants)
D. YES (Secretary); NO (Defendants)
Pursuant to Fed. R. Civ. P. 26(f) meetings were held on multiple dates in March 2015 by phone
and were attended by:
Allison L. Bowles, Esq. for plaintiff
Daniel M. Byrnes, pro se for defendants Daniel M. Byrnes and Fort
Orange Capital Management Profit Sharing
Plan
On March 25, 2015 Mr. Byrnes consented to have the Secretary file this document with his electronic signature.
DATED: March 26, 2015
New York, NY
BY: s/Daniel M. Byrnes BY: s/Allison L. Bowles
DANIEL M. BYRNES ALLISON L. BOWLES
For defendants, pro se Attorney
Bar Roll 515903
U.S. Department of Labor
Attorneys for Plaintiff, Hilda L. Solis,
Secretary of Labor
201 Varick Street, Room 983
New York, NY 10014 (646) 264-3658
Bowles.Allison@dol.gov
8
Sarissa s Website shows three Directors - Scott, Dan and Cam. I also recall Dan providing a statement , several months ago, advising that Ben Ward is no longer involved as a Director / Officer.
Ben Ward resigned some time ago. I believe that it was in May 2014.
I agree with many of your comments. I am of the opinion that much of what you say is based on your experiences. I do not see you as a detractor at all merely a realist as it relates to the Company s business affairs.
However unlike you I no longer have the faith in Dan s ability to lead Sarissa to the next level. One aspect really bothers me and that is who is Dan Byrnes?
Based on the recent facts presented in the documents - it is troubling that information that is purported to be full and complete disclosure provided by the Company is not.
On the Company s Website the Executive summary states that Mr. Byrnes was the President of Fort Orange Capital Management until 2010.
However the information filed by the Department of Labour stated that the company ceased operations in 2005 due to " poor performance and a loss of clients ".
The company was not voluntarily dissolved. On or about July 2010 the company was" dissolved by proclamation " by the New York State Secretary of State. There is reference to a lack of Filings - Corporate etc - dating back to 2002/2003.
Information provided on the Website, Regulatory Filings, ETC is to provide factual information to Shareholders, prospective Shareholders, Investors - actually anyone who maybe interested.
What did Mr. Byrnes actually do from 2005 to the present?
One of the requirements in operating a Public Company is to be complete and factual in your disclosures.
I ll leave that to others to determine .
Serious . The chances that one would be there is minimal but one of them could be there on a visitation by chance.
You may be able to get a number through the Exploration office. Since work is apparently being done in the field Scott and / or Dan may even be there.
Chapleau Exploration Office:
72 Birch St.
Chapleau, Ontario
P0M 1K0
Phone: 705-860-4776
Really ? IMO there is still a part of the story that is to be played out and I don t expect it to be positive.
I don t believe that the Court has possession of Certificates . As I understand it they are, among other aspects, suing to obtain the stock.
It is possible that the 11 million shares, or a part of them, have already been sold over the past several years. I am not saying that they were only that it might be a possibility.
Thomas Perez is the US Secretary of Labor. The lawsuit was filed under his name as is common legal practise.
It is actually the US Federal Government that filed suit in the State of New York.
"US Labor Department files suit to recover losses to, appoint independent
fiduciary for Albany, New York, retirement plan
Perez v. Daniel Byrnes and the Fort Orange Capital Management Profit-Sharing Plan
Date of Action: Jan. 26, 2015"
The President and Director of Sarissa is getting sued by the State of New York for violating the Law. It affects the operations of the Company. It is on topic.
The State of New York filed the Lawsuit. They actually do state that he violated the Law.
IMO it has a lot to do with Sarissa s ability to succeed. Financially, Management and it s ability to exploit it s Asset.
Dan Brynes, the President of Sarissa, is being sued by the State of New York for Violations of the Law concerning the purchase of shares of Sarissa in contradiction of his fiduciary duties as an Administrator of a Registered Retirement Plan.
This is a significant legal problem for him and a significant Business problem for Sarissa - IMO. This is a problem for serious Financial organizations were they interested in financing a Sarissa activities. That said additional Geological issues exist including not having compliant and current Geological Reports.
Based on actual documentation that is available to the General Public, Shareholders and / or the Regulatory Authorities there is no reason to believe that significant progress had been made as has been stated in PR s, "interviews " and / or "conversations".
Sarissa needs significant money in order to move matters ahead. Who is going to invest those funds? Sarissa also needs strong Mining Management - who could be enticed to come on Board?
They may very well have the Asset but you need competent Mining expertise, strong Mining Business Management and sufficient legitimate Funding available in order to fulfill the goals.
Sarissa was in trouble before / now those troubles have escalated in nature.
I highly doubt that Shareholders who are disgruntled have been able to sell simply because there is no market for the stock. Approximately 935 M shares outstanding with an average daily volume of less than 500 K does not make a Market.
IMO Dan must resign his positions with Sarissa. Yes, progress under Scott "leadership" was spotty at best, but this outstanding legal matter ( the nature of it in particular) will cause further hardships for Sarissa that may be difficult to overcome.
The Government says that Dan s actions related to the Retirement Fund was a violation of the Law.
Quote: “Daniel Byrnes not only violated the law through his behavior, he violated the trust that the plan’s participants placed in him,” said Susan Hensley, EBSA’s regional director in Boston. “We seek his removal and the appointment of an independent fiduciary to help undo his actions and allow plan participants access to their benefits.”
Court: U.S. District Court for the Northern District of New York
Docket Number: 1:15-cv-00093-FJS-RFT
Media Contacts:
Ted Fitzgerald, (617) 565-2075, fitzgerald.edmund@dol.gov
Andre J. Bowser, (617) 565-2074, bowser.andre.j@dol.gov
He acted improperly as the Administrator and is being sued by the State of New York. The Lawsuit document, available on this Board, lays out the various breaches / accusations.
Actual Bona fide results are required to be provided to the Shareholders and the Market in general. Only red flags are appearing. IMO
Dan Byrnes, President, interview was on Stock Radio. Their normal practise is to provide one complimentary interview and follow up interviews are to be paid for by the Company. Sarissa received their complimentary interview in late 2014. Presumably they now must compensate this Public Relations Firm for their advertising.
Stock Radio is a division of the Seo Freisin Inc, a Public Relations Firm.
Quote from their site -
"This website (Stock Radio) is a service of Seo Freisin, Inc., a financial public relations firm that receives compensation by some of the companies profiled. All direct and third party compensation received has been disclosed within each individual profile in accordance with section 17(b) of the Securities Act of 1933. This compensation constitutes a conflict of interest as to our ability to remain objective in our communication regarding the profiled companies. Seo Freisin, Inc., and/or its affiliated will hold, buy, and sell securities in the companies profiled. When compensated in shares, all readers should be aware that is our policy to liquidate all shares immediately. We reserve the right to buy or sell the shares of any the companies mentioned in any materials we produce at any time. This compensation constitutes a conflict of interest as to our ability to remain objective in our communication regarding the profiled companies."
The "competition " Board of Directors and Management has a strong Financial, Business and Mining background. They also have a sound internal support system in all of these areas.
Sarissa is not in the same category - IMO.
In Dan s recent Stock Radio "interview " he stated that they are at Phase 1 of the Project. He also said Historical Data can not be used as proof.
He did state that they were in midst of getting things done in order to meet today s Geological related requirements.
On paper the 11M shares are worth approximately $130,000.00. The cost of converting them / depositing to an Brokerage Account would be in the hundreds of dollars.
What Dan told Investigators about the Shares not being "liquid" has more to do with the Company Shares not having enough volume to sustain such a "sell" off.
As I understand the Complaint / Writ filed with the Courts it was not Dan s money that was invested. His Firm was the Administrator of a Retirement Fund. The New York Department of Labor states that he failed in his fiduciary duty as the Administrator of the Fund and is seeking to seize the Fund and it s Assets. Apparently the only Assets are the 11 Million Sarissa shares.
I agree that in the final analysis it may turn out to being a minor bleep on the radar. However the State of New York feels it deserved investigation and a Lawsuit. Until the matter is resolved it is both a Legal issue for Dan and a Business issue for Sarissa to deal with.
Is that to mean that you are satisfied that an Administrator of a registered Retirement Plan utilized 95 percent of the Fund value to invest in a Penny Stock Company. Apparently a Company that he had a personal Financial interest in.
He had a fiduciary duty as the Administrator of the Fund. Investing almost the entire proceeds of the Fund into one (then) 2 cent stock is not defendable under any sensible Business organizational Plan.