Register for free to join our community of investors and share your ideas. You will also get access to streaming quotes, interactive charts, trades, portfolio, live options flow and more tools.
Register for free to join our community of investors and share your ideas. You will also get access to streaming quotes, interactive charts, trades, portfolio, live options flow and more tools.
DID JB INVOKE THE 5TH AMENDMENT BEFORE THE SEC? Does anyone know?
A smart SEC attorney will tell you if you are guilty, DON'T TALK.
However, the Staff may take a negative inference by law from a failure to testify.
His lawyers, Rich Anslow and Greg Jaclin are very smart and would not let a guilty man hang himself.
Interesting.
what Regional office of the Commission conducted the investigation?
anyone know?
Did JB come into the US or did they go up there??
THE US GOVERNMENT IS SAYING THESE GUYS ARE LIARS...
WHY DO THINK THEY HAVE CHANGED THEIR STRIPES?????
The pig flies...
I haven't checked your math, but that appears to be a much more accurate summary, aside from the "shuffled around" shares comment. One thing I don't quite understand is the FBO acronym. "For the benefit of," perhaps? I am not sure what "named FBO on the original" you are referring to.
Anyway, you are right about that Form 4 from January; it certainly looks erroneous.
Cheers. I miss the honest debate...haven't had much of that of late.
Your share comparison for Mr. Wesson is neither fair nor valid. Your claim:
Wesson now has 187,061 shares according to today's Form 4. He had 826,704 shares on Dec 31, 2010.
You can leave your stuff at my house and come over anytime to use it and I promise not to let anyone else use your stuff, as long as we agree in advance what room you're going to leave it in. We'll talk.
For the purpose of facilitating JBI’s use of the License Area, subject to the terms and conditions hereinafter set forth, RockTenn hereby grants to JBI an exclusive license, that may not be terminated until the earlier of the expiration of the Term as described in an Agreement Addendum or earlier termination of this Agreement provided herein, to operate the AST System, the Pad, the Steel Shed, Plastic Feedstock from any RockTenn Facility covered by an Agreement Addendum,any RockTenn Facility landfill covered by an Agreement Addendum and the JBI Machines for the sole purpose of producing Fuel. (emphasis added)
If that were the case, then why would JBI and RockTenn agree that the addendum would be in substantially the same form as a nonexistent document?
“Agreement Addendum” shall mean an addendum that may be from time to time executed by the Parties that is in substantially the form as attached hereto as Exhibit A.
Yes. The license area will also be different for each site.
Regardless, it appears that the basic terms of any such Agreement Addendum have been agreed upon by JBI and RockTenn.
If you haven't already, read the actual Master Revenue Sharing Agreement
Always best to consult the legal document.
No exclusivity, no 10 year period.
Put down in words. Nice and Legal.
For the purpose of facilitating JBI’s use of the License Area, subject to the terms and conditions hereinafter set forth, RockTenn hereby grants to JBI an exclusive license, that may not be terminated until the earlier of the expiration of the Term as described in an Agreement Addendum or earlier termination of this Agreement provided herein, to operate the AST System, the Pad, the Steel Shed, Plastic Feedstock from any RockTenn Facility covered by an Agreement Addendum,any RockTenn Facility landfill covered by an Agreement Addendum and the JBI Machines for the sole purpose of producing Fuel.
The term of this Agreement (the “Term”) shall commence on the Effective Date and shall continue for the longer of (i) a period of 10 years thereafter or (ii) the expiration of the last Agreement Addendum (the “Initial Term”), unless earlier terminated pursuant to this Section 4.6, 4.7, 4.8 or otherwise provided herein. Except as otherwise provided herein, this Agreement will renew automatically for additional five years (each, a “Renewal Term”) following the Initial Term and each subsequent Renewal Term.
I like his credentials. Thanks for posting his petition to serve as JBI's counsel.
Mr. MacPhail practiced for four years with Holland & Hart, LLP between 2005 and July 2009. Previously, he served with the SEC for thirteen years in various positions of increasing responsibility. He was a Deputy Assistant Director of the SEC's Denver Regional Office (DRO) from January 2000 through August 2005. He previously served in the DRO as an attorney and Branch Chief between 1993 and 1997, and in the Division of Enforcement in Washington, D.C. as an attorney and Senior Counsel between 1991 and 1993. While at the SEC, he supervised enforcement investigations of, or litigated, a broad range of matters involving public company reporting and disclosure, investment companies and investment advisers, broker-dealer regulation and supervision, securities offering registration and exemption, Internet fraud, stock manipulation, and insider trading.
Before joining the SEC in 1991, Mr. MacPhail was a staff attorney with both the Federal Trade Commission’s Bureau of Consumer Protection, and the Office of Chief Staff Counsel, U.S. Court of Appeals for the D.C. Circuit.
You indicated "Unfortunately, that Wells Notice alerted the SEC to the JBI fraud."
So the SEC does not issue the Well Notice? Interesting since...
"Wells notice - Wikipedia, the free encyclopedia
en.wikipedia.org/wiki/Wells_notice
A Wells Notice is a letter that the U.S. Securities and Exchange Commission (SEC) sends to people or firms when it is planning to bring an enforcement action ..."
Please be more careful about your statements. JMO
Big question is, will JBI take on the ragger tail challenge?
Here you go, "plastic feedstock" defined, right in the SEC filed agreement!
"A. Some of RockTenn’s pulp and paperboard mills generate plastics and ragger wire from the recycling of Old Corrugated Containers (“Plastic Feedstock”).
“Plastic Feedstock” has the meaning ascribed to such term in the Recitals.
Some of RockTenn’s pulp and paperboard mills generate plastics and ragger wire from the recycling of Old Corrugated Containers (“Plastic Feedstock”).
You seem to think that we can all agree on a definition of "reasonableness", which is what is required of an objective standard, where I think that we've proven that we can't.
Regardless of the complicated nature of the law, JBI's management should make sure that all of its shareholders have access to any information that might influence the real value of their investments in their own perspectives at the same time.
Once again you have quoted a phrase out of context in order to complain about it:
I didn't just say "In fact I object to the word "standard" as well" in response to a noise in my head. I said it in response to this:
"So you think a subjective standard applies to the issue of reasonableness or reasonable forseeability?"
Because for a law, or standard, to be consistently enforceable I fail to understand how it can be subjective.
And I chuckled when you said this for virtually the same reason: "Perhaps, but the rule imposes an objective standard (i.e., reasonableness)."
You seem to think that we can all agree on a definition of "reasonableness", which is what is required of an objective standard, where I think that we've proven that we can't. "Reasonable", like beauty, is in the eyes of the beholder.
I'm sorry that you considered my remark to be snide...I have a sense of humor.
But none of that matters as long as you agree with this:
"the company CEO has the obligation, or at the very least should take it upon himself, to gather together the personnel that he employs who have contact with the public and suggest to them that they should not be providing information to individuals that the company itself has not made public. The determination as to what is material or not material is his responsibility, whether it be assessed properly or otherwise."
And I'm sure that you do.
You seem to think that we can all agree on a definition of "reasonableness", which is what is required of an objective standard, where I think that we've proven that we can't.
But none of that matters as long as you agree with this:
"the company CEO has the obligation, or at the very least should take it upon himself, to gather together the personnel that he employs who have contact with the public and suggest to them that they should not be providing information to individuals that the company itself has not made public. The determination as to what is material or not material is his responsibility, whether it be assessed properly or otherwise."
And I'm sure that you do.
"That indicates to me that there is a statute of limitations governing SEC enforcement actions."
Agreed. As required by the US Code versus any SEC rule. And as measured from "from the date when the claim first accrued".
How would you interpret that phrase? Does the claim accrue as of the date of the violation or the date that the court determined the validity of the claim?
In fact I object to the word "standard" as well.
I'm still smiling about this, even though I get the feeling that you actually meant it to be serious: "Perhaps, but the rule imposes an objective standard (i.e., reasonableness)."
I recognize your point, but, as indicated above, I see the issue differently. Assume, for the sake of argument, that the "recipient" you have identified is an average investor, who is unknown to the company outside that capacity. Then lets disregard my assessment above, and deem the fact of a Wells submission material. Under these circumstances, it really shouldn't matter whether the person disclosing the information actually knew whether or not the recipient of the information would be moved to buy shares. It should nonetheless be reasonably foreseeable that the disclosure of material information to this "average Joe" investor would result in the investor's purchase of shares (or sale in the case of negative information). "Subjectively innocent"? Perhaps, but the rule imposes an objective standard (i.e., reasonableness).
I said "From a purely practical versus legal standpoint, if a Wells Submission has been made, releasing that information one phone call at a time disadvantages those that rely on the public release of information to make their decisions."
You responded:
"I highly doubt that is happening."
This issue was brought about by a poster who posted that "jbi has responded to the wells notice..." well after the 8-K reporting the Wells Notice was filed. I took it to mean that he was advised that indeed there was a response to the Wells Notice, which I interpreted to mean a Wells Submission, and he denied that that is what was meant.....although I can't imagine another interpretation. After all, what response could the company have to the Wells Notice other than a Wells Submission?
Now, after all of this legal back and forth, you are expressing the opinion that "I highly doubt that is happening."
Are you suggesting that the conversation never occurred? Or that the poster was never told that "jbi has responded to the wells notice..."?
What, may I ask, is your basis for that opinion?
"I would be shocked if there was not a rule dictating the time within which a complaint must be filed."
I understand your shock. But the filing of a complaint would be as the result of facts determined in an SEC investigation. And that is a process which, as far as I can tell (see link), has no time limits whatsoever. They have been known to go on for years (5 years in the case of Dell).
http://www.sec.gov/divisions/enforce/enforcementmanual.pdf
I don't know what Statute of Limitations laws might apply, if any, but I don't believe that there is a specific SEC rule that dictates the time within which a complaint must be filed.
Section 2462 of Title 28 of the United States Code states that “[e]xcept as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued if, within the same period, the offender or the property is found within the United States in order that proper service may be made thereon.” The statute of limitations is an affirmative defense that is waived if it is not raised in timely fashion. See Canady v. SEC, 230 F.3d 362, 363 (D.C. Cir. 2000).
[T]he legal issue is whether the person providing it 1)realized that it was non-public information and 2)could reasonably foresee that the shareholder that they were informing would, in this case, buy shares based on it.
I'm still smiling about this, even though I get the feeling that you actually meant it to be serious: "Perhaps, but the rule imposes an objective standard (i.e., reasonableness)."
The question of materiality, it is universally agreed, is an objective one . . . .
From a purely practical versus legal standpoint, if a Wells Submission has been made, releasing that information one phone call at a time disadvantages those that rely on the public release of information to make their decisions.
Thank you for the clarity, as well as your subsequent self-correction (I do that frequently myself). I appreciate it.
One quick note though, regarding this:
So, in sum, if there is no complaint filed (I don't believe that there are any hard and fast rules dictating the time within which that must be done) we can SOMEDAY assume . . .
In addition, there is an obvious reticence on the part of most companies to comment on the process at all given that it involves the potential for litigation and any disclosure at all carries some risk. For a company to say anything BEYOND "We've filed a Wells Submission" would undoubtedly be frowned upon by the company attorneys and that statement alone doesn't make for much of a press release (or 8-K).
So no, I can't give you the requested example.....after a brief search anyway (I'm not entirely ready to admit that none exists). But my point was based on my understanding of the laws that might apply and not some example that I had in mind. And THAT I can provide:
Regulation FD (excerpts)
[excerpts omitted by Johnik, with a link at the end of the post to the regulation]
Obviously this law, as in many securities laws, carries with it some subjectivity.....especially here:
"under circumstances in which it is reasonably foreseeable that the person will purchase or sell the issuer's securities on the basis of the information."
Who could know whether the recipient of "kristina's" disclosure from the company's office, which I believe would qualify her as someone acting on the company's behalf, would be moved to buy shares? It's that subjectivity that led me to use the word "probably" in my post. On the other hand, had someone acting on the company's behalf told a shareholder that the company had decided NOT to file a Wells Submission, I don't think that it would be hard to argue that such a disclosure might move such a person to SELL shares. Subjective, right?
It's a theoretical argument. That said, I don't believe that my failure to provide an example in any way proves that the legal interpretation is invalid.
Again, neither the company nor the SEC is obligated to report the filing of a Wells Submission. If a complaint is filed we will have to conclude that either the SEC wasn't swayed by the submission or none was filed.
If a complaint isn't filed we can only conclude that either the commission was swayed by the submission or that none was filed.
It would probably be a securities law violation for "kristine" to selectively disclose that information.
I don't see it either. I know I, and everyone else I have spoken to who has invested in JBI, did not invest in the company for the media credits. It wasn't even a consideration.
MLM, I have not followed this debate, but there are far too many uncertainties to give a definitive answer to this question. First, insurance is largely a matter of contract, and those contracts can be very lengthy. One would need to take a careful look at the policy before one could determine what that policy covers. Any doubt is ordinarily resolved in favor of the insured, but without seeing the language of the policy, we can only guess. And no, I have not read or seen JBI's insurance policies (yes, there is likely more than one in place).
Second, coverage involves two separate duties on the part of the insurer: (1) the duty to defend, and (2) the duty to indemnify. The former duty is far broader than the latter. So, assuming a lawsuit can reasonably be construed to afford coverage, an insurer may well have to defend the suit, even though the question of indemnity remains open. For this reason, insurers will sometimes defend under a reservation of rights, leaving open the issue of indemnity depending on what transpires during the proceedings.
Related to the first two issues, insurance policies often contain exemptions for certain types of acts. The more severe the misconduct, the greater the likelihood it will be exempted from coverage. Often, the details of the misconduct (if any) do not come to light until the evidence is revealed (thus bringing into play the second issue above). Neither you nor I can surmise at the pleading stage of a lawsuit what will ultimately be proven following discovery, and trial, of the matter.
And there are so many other questions to be asked. What are the limits of liability? Who is covered under the policy? What is the policy term? What actions, if any, ultimately trigger liability, and when did those actions occur? I am only scratching the surface of the various considerations. Your question is about as far from black and white as they come.
How is that for an answer without an answer? : )
I should add that he reported some additional purchases made in a representative capacity.
What hasn't been posted to my knowledge (despite the snide comments of some) is Mr. Howell's certified trading history. To summarize (in simplified form), he reported the following purchases:
4/12/10: 5,000 shares at $4.92 per share;
1,000 shares at $4.85 per share.
5/18/10: 1,000 shares at $3.70 per share.
5/19/10: 1,000 shares at $3.55 per share.
5/20/10: 1,500 shares at $3.00 per share.
I suspect it will now be a battle between plaintiff's firms for lead plaintiff: with Leverty (as local counsel) and Rosen pushing for Timothy J. Amos and O'Mara (as local counsel) and Glancy pushing for Howard L. Howell.
We have a long wait before JBI's responsive pleading deadline is before us.
Stocker,
According to movant Howard, he bought shares as early as April 12, 2010. According to movant Amos, he bought shares as early as February 2, 2010. Both would have preceded the restatement (unlike the case of Pancoe). I don't recall either movant reporting any sales, but that would not preclude their ability to serve as lead plaintiff.
I think scion posted at least one of the movant's certified purchase history. The other one is available on Pacer, or perhaps it has been posted here as well. I can try to get a copy to you if you like.
Yes, really. The plaintiff who filed this action states that she purchased 1,000 shares on May 9, 2011, at $3.85 per share.
As of 10:00 p.m. EST, no one has moved to be lead plaintiff in this case. That clock is quickly winding down.
This latest one (Milberg LLP) is worth a good chuckle.
The complaint alleges that the Massachusetts-based company, which provides data restoration and recovery services . . . . (emphasis added)
I agree completely. You clearly understand these issues extremely well. Cheers!
Agreed. Certification appears to be rarely denied on numerousity grounds.
This case is definitely being driven by class action plaintiff's counsel (or hopeful class action plaintiff's counsel).
Looking forward to reading more of your posts....
Absolutely. Nice explanation. And thanks for sharing your knowledge.
As of 10:00 pm on today's date, August 10, 2011, the court's online electronic filing system (Pacer) reflected a single purported class action lawsuit filed against JBI in the U.S. District Court for the District of Nevada. That lawsuit was brought by a plaintiff who attested to purchasing 1,000 shares of JBI on May 9, 2011. On the same date the action was filed (July 28, 2011), plaintiff's counsel published a notice informing potential class members of the opportunity to move the court to serve as lead plaintiff of the purported class.
As a result of the above, other class action firms (understandably) have been searching for a more appropriate lead plaintiff, who has a more substantial financial interest in the litigation. The desire to do so is largely self-evident, as the appointed lead plaintiff in a certified class action becomes the decision-maker of the class, and the one who holds primary responsibility for choosing (yup, you guessed it) lead counsel (subject to court approval). For this reason, it should come as no surprise to see additional class action plaintiffs' firms soliciting potential plaintiffs in an effort to jump in the action.
As of the time and date referenced at the start of this post, no other prospective lead plaintiffs have moved for appointment as lead counsel. This lawsuit is, of course, in its infancy, so only time will tell if another investor steps up to the plate. That "opportunity" will eventually close, however, and the court will assess the plaintiff(s) that have filed appropriate motions within the requisite time.
This is my personal assessment of the matter, so I invite any contrary opinions or constructive criticism.
Exceptional post. Thank you for taking the time to detail this information, and nice job of explaining both the legal and procedural/practical considerations. Cheers.
"Should RockTenn make such Plastic Feedstock available at a landfill or other unit located on a RockTenn Facility, JBI shall be responsible for obtaining all Governmental Authorizations for, and the costs of, removing the Plastic Feedstock from the landfill or other unit, transporting it to the License Area, processing it through the JBI Machines, and paying all other costs and taking all other actions required to convert such Plastic Feedstock into Fuel." (highlight mine)
The above seems to suggest that the RockTenn Facility identified in a given Agreement Addendum will incorporate the License Area within its walls, otherwise ALL feedstock would require some transportation. Is that your understanding? It may have been done already (I'm obviously confused), but I'm trying to firmly establish whether the processor will or will not be kept in the "steel shed" that JBI will be required to construct. I still don't know exactly what the steel shed is for. Can you clear this up?
"RockTenn shall provide all Plastic Feedstock to JBI at no cost."
I never suggested that the agreement called for RockTenn charging JBI for Plastic Feedstock.
And now, we are left to assume that an application has been filed based solely on the sharp eyed reader of a heading suggesting same in the middle of the website.
You are correct. Two things "may explain" my inability to find any P20 related patent applications.....either they have not been filed or they have been filed very recently and are under the protection of the 18 month confidentiality period. Of course I could also have simply blown the search, but I don't think so. You are welcome to confirm or correct my lack of results.
Do you know which explanation applies?
I also note that you use the singular here: "Putting one and two together, you should not expect to be able to view JBI's patent application for some time".
Has the company only filed one of the 5 that they were in the process of filing 3 weeks ago, if you know?
And would you know which explanation might address my inability to find this, from the same 3 week old 10K/A?:
"JBI has a patent related to its Data Business, for the recovery of tape information."
Note that the language indicates that a patent has been granted. The confidentiality period explanation wouldn't cover that, would it?
But the agreement itself doesn't confirm that "JBI gets ALL of RKT's plastic........"
" 1. What do the terms “patent pending” and “patent applied for” mean?
A. They are used by a manufacturer or seller of an article to inform the public that an application for patent on that article is on file in the United States Patent and Trademark Office. The law imposes a fine on those who use these terms falsely to deceive the public."
http://www.uspto.gov/faq/patents.jsp#a1
I was only able to find one patent applied for by John Bordynuik, which was for a "PORTABLE RADIATION DETECTOR AND METHOD OF DETECTING RADIATION".
Most patent applications filed on or after November 29, 2000, will be published 18 months after the filing date of the application, or any earlier filing date relied upon under Title 35, United States Code. Otherwise, all patent applications are maintained in the strictest confidence until the patent is issued or the application is published.
The AST system consists of a 20,000 gallon storage tank and the lines required to connect it to the processor.
I think that a 20,000 gallon storage tank would occupy approximately 3,000 cubic feet. I think the math would then suggest that such a tank could be 15' in diameter and 20' high.
Would a "shed" built to accommodate such a tank, a foundation and the tank itself, with required connections be reasonably described as "relatively inexpensive"?
How do you distinguish the above from "Dude, the steel shed is a little shed outside the main building that houses the compressor and several storage tanks"?
Companies do not charge for MSDS, but services like that can. It's not a major problem to supply MSDS - companies do it every day for their customers.
Copies of MSDS are required to be available to employees in the workplace.
I suggest you open this website file and see what MSDS look like.
http://www.murphyoilcorp.com/operations/marref/msds.aspx
See, that wasn't so hard after all. But as "JBII IS NOT IN THE BUSINESS OF SELLING FUEL" it's probably not needed, even if the MSDS were available at that site.
CCOHS does NOT produce, sell, or make available, chemical products. To purchase products or to obtain copies of individual MSDSs, please contact JBI INC directly.
http://ccinfoweb.ccohs.ca/msds/browse/JBI_INC.html
MSDS Services
CANLabel DEMO version now available
http://www.ccohs.ca/products/canlabel/