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.
No wonder there's so much confusion, misdirection and mischaracterization about vplm and it's true nature.
Is she still married to emu? At some point I thought I heard they were no longer married? Guess it doesn't really matter. Selling shares to faster than Joey Chestnut can down those hot dogs is what matters.
Yeah I saw that posted earlier by someone. I asked....hasn't he been selling off for last couple years also? I know I've been seeing the forms with his name on from time to time but didn't pay much attention because it doesn't really matter much to me.
But why, if vplm is in best position ever and you see lots of comments that the ship is about to come in (well, to be fair, that's been intimated almost daily for the past 15 yrs...), then why would these insiders, who obviously know way more than we do, be selling off their shares like there's no tomorrows?
Not a single shareholder would buy vplm or the patents if they had the money. Very very TELLING! Explains a lot about the true nature of the tech-no no gy.
Sorry if you're replying.....can't hear you. Too much interference. Can't tell if its those dang sunspots again (Aurora borealis Thurs 17 states..) or crickets. I'll keep trying to keep you tuned in best I can as I really want to know all about "unless"
So what happened to Tucker and Candy? Why, after all their years with digi and vplm, and when things were allegedly supposedly falling up to a big event (like we're reminded of on a regular basis) did they mysteriously decide to split vplm? Inquiring minds want to know.
He's been selling for awhile also, hasn't he?
He already HAS been succeeding for years. He's got his own printing press and his own personal ATM and tons and tons of gifted shares transformed into sold shares and lots of friends and family and goombas to support his trip. So now he grabs his laptop, which is the entirety of vplm in the 1st place, and travels the world. I think they're building a pyramid for him back in Egypt. We can pay for that too!
"why waste your time, unless....."
Unless what? Spit it out if you've something to say....unless.....
Well is it about the company?
As I just told you I have many shares so why shouldn't I be? In fact, even if I didn't, why shouldn't I be? There's your riddle.
The 10 yrs ago is an estimate. It's been so long I can't remember exactly anymore. I got in around 13 yrs ago and I know I kept buying for quite some time b4 I realized the stupidity of holding tough to shares whilst I witnessed the company doing bad stuff. When I got in, it was only about voip and nothing to do with bogus patents. Voip is what got my attention. I already knew about voip at that point and had in fact already used voip on a few conference calls. In fact video conference calls. I pretty had the sense that voip would be a huge growth thing so that's why I got in, plus a tip. Then, a couple yrs later when I heard about the enhancing technology to be aquired, I thought OMG....too good to be true! Match made in heaven when ol chang kept telling us over and over and over for around 2 yrs about his vplm would now food the technology into their own voip service provider business (which they were just renting it anyway). And telling us about the immediate 10 to $100 million per year royalties about to start flowing in ......and then the bs lying PRs about deals, imminent deals about to happen with s&p 500 and fortune 500 companies and it was all so exciting.........except it was a big lie from the git.
And I guess you don't. I took my vplm money to the bank close to 10 yrs ago! Locked in to the black Forever! Actually spent it. And nothing can change that as long as I don't buy anymore as pledged and stuck to so far. If I had hung on to my shares like many advised, I would've lost a lot. In fact I did on paper until I wised up. And then I also bought all the original shares back, so they're free to do what they'll do......ho-hum.. And to think now, it was so easy. It was handed on a silver platter, but before that my cost basis went to 4x initial investment. Thankyou vplm for that opportunity.
Nothin' left to do but smile, smile smile!
Sometime in the past I posted that I thought the southbank debacle was maybe the result of 2 BOD members at the time, whom I thought were both Australians, as southbank was in Australia. In thought it was them (Candy and Tucker) who were making a play for their home country basically. I recently discovered that only 1 of them is Aussie and the other British so I was at least partially wrong about that angle, but it still could've been true for the Australian (Candy), which in and of itself is not a negative but after seeing what a joke the whole south bank affair turned out to be and then learning of the Australian component of the board director, it raised my suspicion. So in fairness I wanted to note it was only 1 Aussie not both.
In any event, I also have to admit that the curriculum vitae of both of them is so impressive that it's probably the 1 biggest reason for any doubts I have in reserve as to my theories that the patents are bogus. It's extremely difficult for me to jive that with their apparent careers. I say "apparent" only because all the resumes I see, appear to be put together only by the subject themselves. Possible conflict there, but I have no reason to dispute any of their experience.
At the same time, however, I always wanted to know what the specific reasons were for their abrupt departure from vplm some years ago. After all their years in it, I found it very curious the timing of their resignations. I think there was some kind of questionable reason given at the time. In fact, most of the BOD quit at one point of a other. Hmmm.
In my opinion, this coming week or next will have given the cabal (the insiders and insider support group, some paid, some voluntary, the time needed to put together the ubiquitous pump machine which works thru various methods and vehicles, to get the pps up. Be on the lookout for it as it will come as it always does... After all, it's the whole true purpose of vplm so it never fails. And also to never fail...is the fact that as soon as it spikes, the inevitable fall back will occur. Don't blink of you'll be quart short. Look for maybe a 50 to 90% spike and then over the cliff. That's the usual anyway.
For insiders and their support teams: MONEY & STRATEGY
For avg retail shareholder: COMEDY & TRAGEDY
For me: made out good and tell it like I see it about the company, based on 13 yrs of dd and keen observation.
Vplm via it's mouthpieces, have long similarly bragged (and lied) to shareholders as to what they're got. After all these yrs of that bragging we now know it was all just hot air...well, there was some truth to it in terms of the insiders and what they've got and continue to get from the shareholder funded go fund me page, compared to most shareholders. I've been way way in the black and locked in, for nearly 10 yrs and have things to show for it and have enjoyed. Purgatory? Hahaha. I never thought to call wising up about the whole "true long" thingy and learned to trade to profits many times over aside from recouping initial losses, as purgatory....lol, but I suppose character judgement that far astray from reality brings one to commensurate conclusions. I have no need to brag or share personal data so I don't. I have mentioned several times about the whole wising up and trading, for the benefit of anyone who might find that a lucrative alternative and I know of 1 case where that was the outcome for someone besides myself.
No doubt there are a few peeps who got in for dirt cheap and bought a lot and cashed in. Very few that lucky and good for them. For me it was a more circuitous route but I got there and then vowed to never buy another share, which turned out to be a good idea. Did quite well with some other stocks when I took advantage of the apparent once in a lifetime opportunity I saw in the 2008/9 crash, such as with BofA for one. Purgatory what a laff. But thats the number 1 reason I'm here and have said as much for yrs.....the entertainment.
For the shareholders, just a mirage...
For the insiders, yes, strategy from the git and a personal ATM
For me, mostly pure entertainment. Can't lose
So funny to see how the goalposts have been moved, here on the board, not up or back field some, but to the next county.
Appears to me that vplm has all their ducks in a row meaning all their marks wrapped around their finger.
Comedy and tragedy share the stage
That's nice...
Given a choice, I would not take 20 cents since that would never happen anyway bcuz it makes no sense and would be a major insult, nay, a major RIPOFF. I know some would take it only because of the insulting ripoff of no other choice. 20 cents would reveal the proof of a scam basically.
It also would reveal yet another blatant lies by emu as he clearly said he would take no less than a billion or some day it was 2 bil.
Truth be told, if we were offered 20 cents after all we've been told for all these yrs by vplm, they should all be shot at dawn, period.
Sun the 9th.....
And the question: buy....not buy remains THE most important question re: vplm.
Plan B yes or no.....would be a somewhat distant 2nd most important question. The question there would be: if you had the bucks, would you buy a licence or pay to settle?
But sale of the whole kit and cabootle would be #1 of the consensus. Afaic, licensing would be better but that, of course, assumes the patents are all that which I don't adhere to, but that's another movie...
So, from within the mirage of 'the patents are all that', the most important question remains "if you had the money (prolly a billion or 2, I'm guessing), would you buy the patents?"
Why is this such an important question? There seems to be comprehension challenges, so I'll spell it out.. The number 1 thing shareholders want to see is a sale. A good sale. A sale most would find equitable. Fiddy cent and up probably works for most, although realistically, I would be more in the $1 and up camp.
But now comes the crux of the matter...
If no one out there will or would ever buy.......well, I guess that renders the whole thing a moot point. Moot meaning trips and dust to dust ashes to ashes end o story. So right there that posits the question of "buy or not buy", as THE most important question. Only thing left is to shift that scenario to all the individual shareholders and or readers, where ea of you are given the question, as though ea of you were a big dog with the big bucks.
If.....for example...you decide you would indeed buy the whole shabang....then....you must ask yourself WHY then has no one or no company bought it? The only logical answer would be...because something must be wrong with the patents.
If, on the other hand, you chose to say no, won't buy.......then, lolol, the question of why not surfaces and need be answered. Again, the only logical answer would be there must be something wrong with the patents.......because if all you have to invest in a billion or 2, and owning the patents means hundreds of billions of dollars are there just awaiting for you to simply extract.
And so whoop, there it is.....THE MOST IMPORTANT QUESTION out there re: vplm .......and......I have graciously answered it for you. The answer is .....and survey says....it doesn't matter because the patents were created around 15 yrs ago and there has never been any interest in buying them from anyone ever........except for digi and vplm, who both found them to be a radioactive hot potato that they needed to get rid of one way or another...........BUT CANT COME HELL OR HIGH WATER.
yourwelcome
It's also amusing that vplm, with their love letters to those they want to convince infringed on them, never once told any of them that they definitely or clearly if undeniably infringed on them. The strongest words they used went something like "you should check, you MAY HAVE infringed on this that or the other patent. So that is a tell that vplm isn't even sure if they infringed or not. Hahaha......10 yrs and the biggest and ONLY "proof" of infringement, is ppl who just simply believe with no proof. Lame
Since the question is the most important, relevant, pertinent one to ask, it also becomes obvious why it wouldn't want to be answered... Waaay obvious... It's so cool to see how these things work and not just obvious as to question of given the money, would anyone choose to buy the company.......or not.....but very predictable, given the implications of the yes or no choice. No surprises here. Related to selective hearing and biases often seen amongst stock shareholders. If I was married to a stock, and began to realize it was headed for trips or bk, I would tend to not admit to anything that supports that.
For those who don't understand the simple question, it has nothing to do with whether or not it's a buyout of the entire company, a purchase of the patents alone, or any if the other possibke options vplm alleged it's looking to have happen.
It's an extremely simple question. I decided the last time I asked it to acknowledge that it's not just a buy the patents choice and has various options. I didn't wish the question to be yes or no between those various options. Ea and every time the question was asked b4, it was simply yes or no to buy or not buy. But that time I just decided to acknowledge there were other options. However, the question is still the same. And I even took the time to explain exactly why the question was being asked and why it was very pertinent and very important.
That said, good time to note that years ago when shareholders decided it was just fine to be blatantly lied to by the company, making them their "marks", and let the company slide totally on that, and now accepted that the company/patents were for sale....well the whole tenor of discussions here was THAT.....meaning sale of patents/company....was the road we were put on. It was the newly accepted way to go (especially as Chang and the rest of the BOD were blatantly slewing anything and everything to convince the new marks that there was all sorts of "beating the doors down" to buy these patents and that it would be quickly forthcoming PLUS millions of dollars in immed royalties to be coming. So the marks, including myself, bought and bought and bought as the price went up and up and up, as well as garnering new shareholders and tons of shares being bought up.
Well, myself and a couple other ppl suggested that a plan B would be a much better thing in the long run, ie, licencing and other firms if partnering. That suggestion was immediately and summarily beat down as NOT AN OPTION AND STUPID. It's right there in the archives. Point being that now after all these years of not being able to earn a plugged nickel or sell any patents, so now the goalposts have so amusingly moved from oh, we'll take $25/$20/$15/$10/$5.....to now commonly heard a Dollar, 50 cents, and now 30 cents and even 20 cents or shares or partners or ANYTHING above and beyond trips.
The fact remains that the main goal in the minds of almost all.....is to sell the patents/company and get a good price making the 10 yrs agony worth it. This is undeniable imho.
Thus........the question remains as intelligent and important as ever......oh and I fully get those who are reluctant to give an honest and open minded answer......
IF YOU HAD THE CASH, WOULD YOU BUY THE PATENTS/COMPANY???
itsthemostimportantquestionasked
Vplm allegedly, has been trying to sell the company or just the patents, for roughly past 10 yrs. The named companies and/or any other unnamed voip service providers and/or any other very rich investors with that kind of money.......have ALL answered the question of "if you had the money, would you buy the patents or company", and their answer obviously has been no. That answer could change at any time but so far, their answer is NO!
In addition, the overarching action that ALL INVOLVED from the git, especially shareholders, are faced with and focused on, is...................will the company and/or patents be bought.............or not. It's not only the overarching question, it's really the only question........unless you're looking for a plan B.
Therefore, the most intelligent question that can be asked is...........
IF YOU HAD THE CASH (or equivalent in some liquid shares), would you purchase the shares or company?
I not only can't follow that, but see nothing that even remotely answers the simple question I posed.
I doubt it'll do any good but the question again is...
If you had the money, would you buy vplm. Yes/no
The question remains, boys and girls......
If you had the money, would you buy vplm?
I've always found the voip-pal vs locksmith and locksmith vs voip-pal cases to be ambiguous and confusing. Apparently, some mistakes were made by the courts, which didn't help the misunderstandings nor clear up for good, the ongoing disputes by both sides. when I saw the outcome of the locksmith vs voip-pal case a couple years back, that found against voip-pal, I thought that was the end of it and that the shares in question would be released to RK or that the near $400k awarded by the jury, was maybe the compensation for those unreleased shares and maybe based on their value from back when this mess took place. I just didn't know and the outcome of that trial, in terms of what info was released here, did not explain those things. All I knew was that certain ppl were claiming that they were correct all along in when they said over and over that the shares would come back to vplm. Well, from what I read below, maybe I'm wrong but it indeed does appear as though those share still are in limbo and not returned to the treasury or whatever, for VPLM. And I still don't know if they were supposed to be or not. It's all to unclear to me.
That said I think the below case notes from appeal do explain and clear up at least some of the story at least for me and I'm feeling pretty sure some others will also gain a lot of insight from these court notes, therefore I'm copying them below.
_______________________________________
From Casetext: Smarter Legal Research
Locksmith Fin. Corp. v. VOIP-Pal.com
Court of Appeals of Nevada
Jan 25, 2023
523 P.3d 1104 (Nev. App. 2023)
No. 84267-COA
01-25-2023
LOCKSMITH FINANCIAL CORPORATION, a British Columbia Corporation, Appellant, v. VOIP-PAL.COM, INC., a Nevada Corporation; and New Horizon Transfer, Inc., a British Columbia Business Entity, Respondents.
ORDER AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
Throughout 2009 to 2013, Locksmith invested in respondent VOIP-Pal.com, Inc. (VOIP), largely in the form of cash loans to cover VOIP's operating expenses and business ventures. The debt that VOIP owed to Locksmith was eventually converted into shares of VOIP common stock by agreement between the parties. Shortly after the conversion of debt to stock, and while the shares were still restricted from sell or transfer by federal law, VOIP's board of directors accused Locksmith of fraud and froze over 90 million of Locksmith's shares via resolution of the board. The resolution provided that the shares would remain frozen pending an investigation and report on the board's fraud claim. From the record, it appears no such report was ever made.
We recount the facts only as necessary for our disposition.
Once VOIP's board froze Locksmith's shares, Locksmith was unable to transfer or sell them, even when the stock would no longer be subject to federal restriction. At peak value, those shares were worth about $14 million. Locksmith sued both VOIP and its stock-transfer agent. New Horizon Transfer, Inc. (New Horizon), for multiple causes of action, including breach of contract, securities fraud, and breach of fiduciary duty. We refer to VOIP and New Horizon collectively as VP unless otherwise stated. Under its claim for breach of contract, Locksmith alleged that VP had "breached [its] obligations" by "stripping away Locksmith's lawful ownership of its 95,832,000 restricted shares by ... refusing to provide clearance to the transfer agent for sale of Locksmith's [ ] restricted shares in [VOIP]." Under its breach of fiduciary duty claim, Locksmith claimed the individual members of VOIP's board "act[ed] in bad faith when they agreed to issue 95,832,000 restricted shares ... and then later fr[oze] and [sought] to cancel the shares for no legitimate reason." Locksmith also claimed that the board had breached its fiduciary duty by committing securities fraud. VOIP counterclaimed for multiple causes of action, including fraud. This case is referred to in the parties’ briefing as Case 1.
Case 1 was captioned Locksmith Financial Corporation et al v. VOIP-Pal et al, case no. A-15-807745-C.
Litigation between the parties went on for nearly five years, during which the value of Locksmith's stock plummeted to a small fraction of its peak value. Ultimately, the jury found against both Locksmith and VP on all claims, with one exception: the jury found that the individual members of VOIP's board of directors breached their fiduciary duty to Locksmith and awarded Locksmith $355,000 in damages. A full record of Case 1 was not provided by the parties, so it is unclear which of Locksmith's allegations—the alleged securities fraud, the board's freeze of Locksmith's stock, or both—were the bases for the jury's finding of breach of fiduciary duty. However, the jury did not find that VOIP had committed securities fraud as an independent cause of action against the company.
The record does not provide why $355,000 was awarded, so exactly what this amount represents is unclear.
Shortly after trial, Locksmith asked New Horizon to transfer Locksmith's shares of VOIP stock. From the record, this appears to be the first time Locksmith affirmatively sought transfer of its stock. New Horizon was slow to respond but ultimately deferred to VOIP, letting Locksmith know a response would eventually be coming from VP's counsel. Locksmith's attorney reached out to VP's attorney to ask about its request to transfer its stock. Through counsel, VP expressly refused to transfer, claiming that Locksmith had already litigated the transfer of its stock at trial, so VP was under no obligation to transfer the stock post-trial.
We note that there is nothing in the record to support that Locksmith did not retain ownership of its shares of stock following the conclusion of Case 1.
Once again unable to access its stock, Locksmith swiftly filed another lawsuit against VOIP and New Horizon, this time seeking only equitable remedies under a statutory cause of action for breach of the duty of an issuer of stock to register a transfer. See NRS 104.8401 ; NRS 104.8403. Eventually, each party moved for summary judgment, making arguments of both law and public policy. At the time of the hearing the district court orally granted summary judgment in favor of VP after finding that Locksmith's claims were precluded because transfer of its stock was litigated during Case 1 under its breach of contract claim. The public policy arguments raised by the parties were not addressed in either the district court's oral ruling or written order, nor was the effect of the jury finding that VOIP's board had breached their fiduciary duty.
The trial court judge in Case 2 was not the same as in Case 1.
In its order, the district court focused on the following four factual findings: (1) in the complaint for Case 1, under the breach of contract claim, Locksmith's allegations included that VP had "sought to ‘strip Plaintiff s lawful ownership of the shares by freezing and seeking to cancel the shares’ "; (2) NRS 104.8403, which is one of the statutes forming the basis for Locksmith's claims for equitable relief in Case 2, was included in Case 1 as Jury Instruction No. 52; (3) during discovery for Case 2, the founder of Locksmith, Richard Kipping, stated in his deposition "it's pretty obvious that the two cases are based on the same transaction"; and (4) Locksmith's counsel made statements at trial about transferability, including that "perhaps the most important [right] a shareholder has is the right to sell or transfer their stock." The district court's order also denied Locksmith's motion for summary judgment, finding that Locksmith failed to meet its evidentiary burden. This appeal followed.
Locksmith raises two issues on appeal: (1) the district court committed legal error by granting summary judgment in favor of VP because Locksmith's claims for failure to transfer were not precluded by the previous litigation in Case 1; and (2) the district court committed legal error when it denied Locksmith's motion for summary judgment. We agree that VP did not meet its burden to show that Locksmith's claims in Case 2 were precluded as a matter of law by litigation in Case 1. Yet we disagree that it was legal error to deny summary judgment to Locksmith on its claims as genuine disputes remain. We address each issue in turn.
We review de novo a district court's order granting or denying summary judgment. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment requires this court to view all evidence in the light most favorable to the nonmoving party. See id. If there are no genuine disputes of material fact, and the "moving party is entitled to judgment as a matter of law," then this court will affirm the district court's grant of summary judgment. Id. (internal quotation marks omitted). The party asserting an affirmative defense, such as claim preclusion, bears the burden of proof as to that defense. See Nev. Ass'n Servs., Inc. v. Eighth Judicial Dist. Court, 130 Nev. 949, 955, 338 P.3d 1250, 1254 (2014). Whether claim preclusion operates to bar an action presents a question of law that we review de novo. See Boca Park Martketplace Syndications Grp., LLC v. Higco, Inc., 133 Nev. 923, 925, 407 P.3d 761, 763 (2017).
Claim preclusion is a "policy-driven doctrine ... designed to promote finality of judgment and judicial efficiency by requiring a party to bring all related claims against its adversary in a single suit, on penalty of forfeiture." Rock Springs Mesquite II Owners’ Ass'n v. Raridan, 136 Nev. 235, 238, 464 P.3d 104, 107 (2020) (internal quotation marks omitted). This court applies a three-part test to determine whether claim preclusion applies: "(1) the parties or their privies are the same, (2) the final judgment is valid, and (3) the subsequent action is based on the same claims or any part of them that were or could have been brought in the first case." Five Star Capital Corp. v. Ruby, 124 Nev. 1048, 1054, 194 P.3d 709, 713 (2008). The test for determining whether claims, or any part of them, are barred in a subsequent action is if they are "based on the same set of facts and circumstances as the [initial action.]" Id. at 1055, 194 P.3d at 714. Claim preclusion applies to all grounds of recovery that were, or could have been, brought in the first case. Id. at 1055, 194 P.3d at 713.
In this case, it is undisputed that the first and second prongs of the Five Star test were satisfied—the parties are the same in Case 2 and Case 1, and neither party disagrees that the judgment in Case 1 was a valid, final judgment. The dispute, however, concerns the third prong of the test: whether Locksmith's claims in Case 2 were litigated, or could have been litigated, in Case 1.
As to the third prong, Locksmith asserts there are three reasons VP is not entitled to summary judgment as a matter of law: (1) when viewed in the light most favorable to Locksmith as the nonmoving party, the record shows that some of the facts and arguments presented to the district court by VP were misleading and should not have been treated as conclusive as they ultimately were; (2) VP's post-trial refusal to transfer Locksmith's shares may be a completely new wrongdoing by VP, and therefore a new claim; and (3) the district court failed to consider whether Locksmith's public policy argument could be a viable exception to claim preclusion. We agree that VP failed to meet its burden to satisfy the third prong and conclude that summary judgment in its favor was inappropriate.
The evidence supporting VP's motion for summary judgment was not sufficient to establish claim preclusion as a matter of law
The district court's order set forth four reasons as to why claim preclusion prevents Locksmith from pursuing its claims in Case 2. We address the district court's finding regarding the similarity of the claims in Cases 1 and 2 below and address the other factual findings in turn.
First, the court found the inclusion of Jury Instruction 52 supported VP's argument that there was factual commonality between Cases 1 and 2. We note that jury instructions are not claims and are used only to instruct the jury on the law of the case. See NRS 16.110(1) ; see also Rock Springs, 136 Nev. at 238, 464 P.3d at 107. Jury instructions are not used to obtain actions for declaratory relief but are instead intended to "summarize the contours of the law that a jury will apply to the facts." Rock Springs , 136 Nev. at 238, 464 P.3d at 107 (citing Nevada Jury Instructions—Civil, 2011 Edition Disclaimer and Information, at iii). Jury instructions may help "ensure that the jury reach[es] its conclusion using the elements" of the alleged cause of action, but a jury instruction does not "become a binding judicial declaration on the parties’ " obligations. Id. at 238-39, 464 P.3d at 107-08. As such, this court is "unwilling to suppress parties from proposing jury instructions that may help clarify the law for the jury out of fear that doing so would preclude future claims." Id. at 241, 464 P.3d at 109 (emphasis added). Therefore, in this case, the district court erred in relying on the jury instruction to support claim preclusion.
Second, the district court relied on VP's representation that Kipping, the founder of Locksmith, admitted that the factual basis for Case 1 and Case 2 were the same during his deposition when he said, "it's pretty obvious that the two cases are based on the same transaction." But VP took this statement out of context. Kipping's quote was given while counsel for VP was asking Kipping to compare the physical complaint in Case 1 against the physical complaint in Case 2, paragraph-by-paragraph, to point out the factual similarities between the claims. At the relevant time, Kipping was asked to compare paragraph 24 from the previous complaint to paragraph 28 in the current complaint. In both paragraphs the transactions at issue were exclusively the debt-to-stock convertible loan agreements. There was no mention of VP's freeze via resolution, nor its later refusal to transfer, in either paragraph. In fact, Kipping denies in his deposition that the transferability of Locksmith's stock was even at issue in Case 1, and at no point did he make the admission that VP represented to the district court that he had made. Therefore, Kipping's deposition testimony does not support that Locksmith's claims in Case 2 were litigated in Case 1.
Third, to the extent that the district court relied on the arguments of Locksmith's counsel at trial in Case 1 to prove claim preclusion in Case 2, those arguments cannot establish claim preclusion because the arguments were neither claims nor evidence of claims presented to the jury. Indeed, the jury in Case 1 was expressly told so in Jury Instruction No. 13: "Statements, arguments and opinions of counsel are not evidence in the case." Thus, the jury in Case 1 was not free to infer a claim that appears to be almost exclusively supported by Locksmith counsel's arguments and opinion alone. Thus, in this instance, counsel's arguments cannot do not necessarily support a finding of claim preclusion.
When considered in sum and viewed in the light most favorable to Locksmith, the evidence that VP relied on to support its motion for summary judgment was insufficient to prove that Locksmith's claims in Case 2 were precluded as a matter of law. As such, VP failed to meet its burden and summary judgment in its favor was inappropriate.
VP's post-trial request to transfer may be a distinct cause of action
The district court also found that Locksmith's unsuccessful breach of contract claim in Case 1 precluded its equitable claims in Case 2. Locksmith argues that its claims in Case 2 were never ripe for litigation in Case 1 because it did not ask VP to transfer its stock until after the judgment was rendered in Case 1. Locksmith argues that VP's post-trial, permanent denial of transfer was a distinct act of wrongful conduct and so its claims in Cases 1 and 2 are distinct.
As supporting authority, Locksmith cites to Lawlor v. National Screen Services, where the United States Supreme Court overturned the Third Circuit Court of Appeals’ affirmance of a trial court's grant of summary judgment based on a 1942 and a 1949 lawsuit, both arising from the same wrongful conduct. 349 U.S. 322 (1955). Writing for the court, Chief Justice Warren stated that "both suits involved essentially the same course of wrongful conduct" but the course of wrongful conduct alone is "not decisive" when determining if claim preclusion applies. Id. at 327-28 (internal quotation marks omitted). As an example, Chief Justice Warren provided that "an abatable nuisance" can "frequently give rise to more than a single cause of action." Id. In response, VP argues the facts in Lawlor are distinguishable, and that a careful reading of the case shows that "in essence, the Lawlor Court concluded that the two actions lacked sufficient factual commonality — i.e., they did not share enough operative facts to justify preclusion."
Broadly speaking, the three-part test for claim preclusion found in Five Star is rooted in the Restatement (Second) of Judgments. G.C. Wallace, Inc. v. Eighth Judicial Dist. Court, 127 Nev. 701, 707, 262 P.3d 1135, 1139 (2011). The Restatement (Second) of Judgments provides the following example to show the limits of claim preclusion as an affirmative defense when a defendant is accused of the same course of wrongful conduct:
When a person trespasses daily upon the land of another for a week, although the owner of the land might have maintained an action each day, such a series of trespasses is considered a unit up to the time when action is brought. Thus if in the case stated the landowner were to bring suit on January 15, including in his action only the trespass on January 10, and obtain a judgment, he could not later maintain an action for the trespasses on January 11 through January 15.
Restatement (Second) of Judgments § 24, comment (d) (1982).
Locksmith's claim in Case 2 is comparable to the example in the Restatement in that it seemingly could not have been litigated during Case 1. The initial freeze via resolution by VOIP's board took place in 2014. VP's permanent refusal to transfer Locksmith's stock occurred post-trial, in late 2019. As such, VP's permanent refusal to transfer could not have been litigated in Case 1. Further, while the district court found that Locksmith had failed to prove its breach of contract claim, the district court did not address the effect of the jury finding for Locksmith on its breach of fiduciary duty claim. Arguably, after Case 1 concluded, VP's failure to respond to Locksmith's request to transfer its stock may have been inconsistent with the jury's verdict in Case 1, giving rise to a new cause of action in Case 2. If so, Locksmith's claim is analogous to Chief Justice Warren's example of an abatable nuisance in Lawlor: VP does not dispute it has a duty to transfer or that Locksmith's stock was and is transferable—it merely continues to refuse to transfer.
VP argues that even if we should conclude that Locksmith's claims in Case 2 were not litigated in Case 1, the issue of transferability was litigated in Case 1 and therefore Locksmith's claims in Case 2 are barred based on the doctrine of issue preclusion. But, as we explain below, VP has not established that it acted in conformity with the jury's verdict on the breach of fiduciary duty claim in Case 1 when it denied Locksmith's request to transfer the stock post-trial. So, VP has not shown that it is entitled to summary judgment as a matter of law based on its alternative argument of issue preclusion. Furthermore, the district court did not decide this issue. See 9352 Cranesbill Tr. V. Wells Fargo Bank, N.A., 136 Nev. 76, 82, 459 P.3d 227, 232 (2020) (declining to address an issue that the district court did not resolve).
The full litigation record of Case 1 was not provided by either party, but the operative facts leading to these two claims appear to be distinct. In Case 1, VP's freeze via resolution was apparently meant to be temporary because it followed an allegation of fraud that was to be investigated. Also, it occurred when Locksmith's stock was still restricted from transfer under federal law, and before Locksmith ever sought to transfer or sell its stock. Comparatively, in Case 2, the refusal to transfer was permanent, it followed lengthy and expensive litigation where VP was not the prevailing party, it occurred after Locksmith's stock was no longer restricted from transfer under federal law, and it occurred because Locksmith requested the transfer of its stock. The two cases also appear to differ on the claims of VP's wrongful conduct. In Case 1, the jury found the wrongful conduct to be a breach of fiduciary duty. In Case 2, the alleged wrongful conduct was a breach of duty by an issuer of stock under NRS 104.8401 and NRS 104.8403 by failing to transfer the stock of its shareholder.
VP offers no argument that Locksmith's shares are not transferable. Nor does VP point to anything in the record to suggest that it was or is relieved of its statutory duty to transfer Locksmith's stock. Thus, because the two cases appear from the record to be factually distinct, and because VP may have disregarded the jury's finding by refusing to transfer Locksmith's stock post-trial, we cannot conclude that litigation in Case 1 precluded Locksmith's claims in Case 2 as a matter of law. Because VP has not met its burden to prove claim preclusion as a matter of law, we conclude that summary judgment was inappropriate.
A genuine dispute of material fact remains as to whether the balance of equities and public policy favor Locksmith
Locksmith argues that affirming the order granting VP's motion for summary judgment would result in an untenable situation where Locksmith still has ownership of VP stock, was cleared of fraud and all other allegations by the jury, but can still never realize any value from its property via transfer. Locksmith urges this court to consider how pernicious this outcome would be on the public policy of Nevada, as our laws recognize stock as the personal property of its holder and invests the holder with certain statutory rights. See NRS 78.240, NRS 78.235(1). VP argues that the public policy behind claim preclusion, which favors fairness to defendants and respect for the finality of judicial decisions, overcomes Locksmith's public policy arguments.
The Restatement (Second) of Judgments articulates the limitations on the use of tests and formulas when evaluating claim preclusion:
Underlying the standard is the need to strike a delicate balance between, on the one hand, the interests of the defendant and of the courts in bringing litigation to a close and, on the other, the interest' of the plaintiff in the vindication of a just claim.
Restatement (Second) of Judgments § 24, comment (b) (1982). This policy is reflected in Nevada's own caselaw, as our supreme court has concluded that "[c]laim preclusion does not bar independent actions for equitable relief because the exceptional circumstances justifying equitable relief also justify deviation from the doctrine of claim preclusion." Doan v. Wilkerson, 130 Nev. 449, 454, 327 P.3d 498, 502 (2014), superseded by statute, NRS 125.150(3), on other grounds, as recognized by Kilgore v. Kilgore, 135 Nev. 357, 364-65, 449 P.3d 843, 849 (2019).
Locksmith raised Doan at summary judgment to argue that even if VP can prove claim preclusion, the unjust result of VP failing to transfer Locksmith's stock would be an exceptional circumstance justifying equitable relief. This argument was not addressed in the record by the district court. Assuming without concluding that further discovery would allow VP to prove claim preclusion as a matter of law, a genuine dispute of material fact remains as to whether allowing VP to effectively control Locksmith's ownership of the stock is an exceptional circumstance permitting a trial on equitable remedies. And, therefore, the district court's decision to apply claim preclusion to summarily preclude Locksmith from pursuing equitable remedies was in error.
As to VP's argument that, on balance, the policy behind claim preclusion prevails. Locksmith is seeking exclusively equitable relief, and "[a] judicial declaration in Case 2 will not undermine the finality of the jury's verdict in Case 1." Rock Springs , 136 Nev. at 240, 464 P.3d at 109.
A genuine dispute of material fact remains as to whether Locksmith met its own evidentiary burden for summary judgment
Locksmith argues that VP's failure to rebut the assertion that the stock was transferable and that there was a duty to transfer are sufficient to show that the district court's denial of its motion for summary judgment was legal error. But Locksmith brings his claims in Case 2 under a statute that also imposes burdens on the party seeking transfer. See NRS 104.8401(1)(a)-(g). It is not clear what evidence Locksmith provided to the district court to prove that it satisfied its burden. Thus, a genuine dispute of material fact remains as to whether Locksmith can prove its eligibility to seek transfer and we agree with the district court that Locksmith is not entitled to summary judgment as a matter of law.
Accordingly, we
REVERSE the order granting VP summary judgment, AFFIRM the order denying summary judgment to Locksmith, and REMAND for proceedings consistent with this order.
Insofar as the parties have raised any other arguments that are not specifically addressed in this order, we have considered the same and conclude that they either do not present a basis for relief or need not be reached given the disposition of this appeal.
Lol. Come on baby, let's do the twist!
Keep em help me out here. I'm really confused about the whole locksmith vs vplm and verse visa. How many separate cases they have between them in recent times? Is it all the same case or multiple? Also, the one spoken of here today...what was that case and what was the outcome. I understand the state supreme court has done a partial reversal.
I tried to get the info myself but no pacer acct and going direct to Clark county case got me nowhere
Tia
I neglected to mention, the problem is they can't collect any infringement damages...and for that matter, they can't sell company either, so unfortunately the question is a hypothetical exercise in futility.
You mean "accept". Sure, why not, in that order not the other way around.
If someone hits your car and bangs it up, you can collect insurance for the damages. You still own the car and can still sell it...
IF YOU HAD THE MONEY, WOULD YOU BUY THE PATENTS ?
Everybody is waiting for the BIG BANG of vplm to start the new universe from nothingness. Hey it's only been 10 or 20 yrs, these things take millennia.
Sad truth is.... nobody in the world wants to buy vplm or the patents. Dats fact. And a fact ever since the patents were created. Zero interest, if you don't count the fake interest that vplm staged and lied about in the big BS chang PRs and the faked conference calls, which were prepicked infomercials.
In fact, and this is key.....
Not even digi the development company or vplm, who bought digi, wanted them. Digi, who with Emu, had no problem allegedly raising some $18 mil for the patent development, and allegedly successfully tested them, but then, instead of having that, the world's best and needed and foundational technology, which they were allegedly using on their voip seller platform (digi, not vplm) couldn't even make enough bank to keep the fake lights on, but also couldn't sell it except to make the deal with vplm, which was all part of the scheme. I can't find it anymore but I used to have a legal doc that digi filed with gov that stated they no longer wanted to be in the voip business and they wanted to sell the patents (application's) for cost which the listed twice that I saw, in the 600k and $800k range. Anyway, after vplm got digi, and after lying to shareholders as to what great things were to coming with the patents basis, for near 2 yrs, then they abruptly said the patents and or company were for for sale..
So NO ONE EVER wanted or wanted to keep the patents. What big secret was known or discovered that rendered the patents to be KRYPTONITE???
Maybe time for Dr Gil 2.0, with a bigger fake offer...yeah...that's the ticket...uh, well maybe...maybe not, considering it was a pre agreed upon put on. A few believed it was real, lololol
It's getting closer............... Don't get quart short..
I honestly can't fathom (except in terms of blind propaganda and/or mass hysteria) how any shareholders or anyone that works for vplm in any capacity..............
.....could in their right mind actually and truly believe that vplm is in its best position ever. I mean come on. There are so many negative developments happening......ones that in the past were not anticipate, expected or wanted.......and at 1st, when these monkey wrenches are thrown out there, most have a negative reaction but in case after case after case.......a little pep talk has then invariably change their minds to embrace the former negatively viewed events as "best position ever" events. It's highly amusing to me as I'm into the psychology aspect. But I'm also as pragmatic as can be and those dots just don't connect until they are forced into fitting the mold. I've heard every seemingly lame excuse for why it's no problem that the pps, for the entire history, is soooo out of line with a company that claims it's stuff is worth zillions. Or that the insider sales of zillions of shares goes along with "best position ever"........or that such a tremendous storyline and possible HUMONGOUS disrupter of life as we know it, never for years makes the news in any meaningful way. That's "best position ever"??? Or that vplm has never truly pushed themselves on the market as for sale, regardless of the oh so obvious fact that no one.....I repeat ....no one.....ever .....has shown a tidbit of desire to buy the company or the patents EVEN WHEN ITS BEYOND OBVIOUS TO ANY REASONABLE PERSON THAT IF THE TECHNOLOGY WAS WORTH EVEN A 10th OF WHAT'S BEEN PROMULGATED, THEN IT WOULD'VE BEEN SOLD, LEASED, RENTED, LICENSED, PARTNERED, OR SETTLED ON, LONG AGO AND MANY TIMES OVER. 3/4ths OF ONES BRAIN COULD BE TIED BEHIND ONES BACK AND STILL EASILY SEE THAT. VPLM, IF REALLY ALL THAT, COULD'VE EASILY GARNERED OVER A $TRILLION AND HUMAN NATURE DOESNT LET THAT JUST SIT THERE TO ALLOW THAT LEVEL OF WEALTH, POWER AND PLACE, TO SIGN THERE AND LET SOMEONE ELSE OR YOUR COMPETITORS, GRAB IT OUT FROM UNDER YOU.
No doubt that many here have used the epithet "if it's too good to be true, it isnt"...and yet are perfectly willing to accept the ridiculous notion that vplm is truly in its best position ever.
Vplm is in one of the worst positions ever... Same ol crap pps is nothing new as it's almost always a crap pps for over 10 yrs, esp on avg. They have been a company for about 26 yrs and zero success I know of. If you want to count only the time since they threw all shareholders under the bus after 2 years of lying to them as to what they WERE GOING TO DO......NOT WHAT THEY PLANNED TO DO OR WISHED TO DO OR HOPED TO DO, BUT WHAT THEY UNEQUIVOCALLY PROMISED TO DO, in many PRs posted years ago, then that would be approx 10 yrs and that's still a long time to have failed to be successful. Of course these things take time but they have had that time and been completely unsuccessful. And now they are having all these cases dismissed that were supposed to be infringement. If it's true they were infringing then no good fiduciary reason to agree to dismiss these cases. It's common sense. And at the same time CEO and wife or former wife (?) Are gifting and selling kazillions of shares and seeing the pps go lower and lower. That alone is not in any way commensurate with being in the "best position ever". The CEO and some others have clearly turned that phrase into a dirty word. Many many so called longs or true longs have become very frustrated and irritated with hearing that phrase along with the waaaaay over done "patience is a virtue". There are definitely many more pro vplm ppl or former pro, who don't like to hear it anymore compared to the anti vplm set, simply because there has always been far more pro ppl than anti here. That's fact.
Those who do not like or appreciate the opposing views, that is, opposed to the way the company has and is conducting its business, if they were fair and balanced and open minded, would have no problem with the opposing views and certainly would not feel as thought they have to quit using the board or go elsewhere or advise newcomers to not listen to opposing views and to instead contact those who think they are the only ones who are right and should only be exposed to that sort of mentality. That, is highly elitist and narrow minded and myopic. All views should ALWAYS BE WELCOMED and considered. The only ppl who shouldn't be paid to much mind are those who post positively or negatively ONLY for the sake of itself and not because it's what they truly and honestly believe and wish to share. Also, regardless of the view of sentiment, if it's presented in a rude way, that's also not helpful. Also, no one is forced to read posts that they don't agree with and they are also provided with a way to turn them off, so there is no need to act like anyone's personal views are causing a problem with a whole group of ppl. That's ludicrous.
Lastly, this board is here for all viewpoints, pro or con, and that's how it should be, not, as some seem to think.......a place of pollyanna.
Oh yeah, the A.O.M.
Aren't they associated with the P.B.A.?
Oops, looks like the reply I intended for you somehow I wound up sending to myself do you can read it s few posts above yours or hear is the url of the post, I think...
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=172289905