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Lets get THIS party started
A most pleasant development on a day of note!
Case 2:15cv00611NVW Document 44 Filed 08/10/15
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
Douglas A. Haviland, No. CV-15-00611-PHX-NVW Plaintiff, ORDER
v.
TD Ameritrade Incorporated,
Defendant.
On June 25, 2015, the court granted Plaintiff Douglas A. Haviland’s Motion to Confirm FINRA Arbitration Award (Doc. 1) “to the extent, and only to the extent, that TD Ameritrade must continue to make good faith efforts to transfer to Haviland a certificate recognizing ownership in his name of the 75,000 Bancorp X106 shares currently held by the Depository Trust Company.”1 (Doc. 29 at 7.) The court’s Order assumed, consistent with the parties’ briefing, that confirming the Award in full would impermissibly require TD Ameritrade to perform an illegal act, since the Securities and Exchange Commission had revoked the registration of Bancorp’s stock in 2009. Section 5 of the Securities Act of 1933 makes it unlawful to “offer to sell or offer to buy . . . any security, unless a registration statement has been filed as to such security,” 15 U.S.C. § 77e(c), or to sell, or deliver after sale, any unregistered security, id. § 77e(a).
1 For a full account of the prior proceedings in this case, see Haviland v. TD Ameritrade, Inc., No. CV-15-00611-PHX-NVW, 2015 U.S. Dist. LEXIS 83340, 2015 WL 3907117 (D. Ariz. June 25, 2015).
Case 2:15cv00611NVW Document 44 Filed 08/10/15 Page 2 of 5
On a Motion for Reconsideration (Doc. 31), however, Haviland attached a copy of an Oklahoma state court order, issued in January 2006, that approved a settlement agreement between Bancorp and two brokers, Capital Growth Financial, L.L.C., and JH Darbie & Co., among others. (See Doc. 31-2 at 25-29.) The agreement provided that Bancorp would issue new shares of common stock (“New Shares”) to the brokers and stipulated that those shares would be “deemed to be free-trading stock exempt from registration pursuant to Section 3(a)(10) of the 1933 Act, as amended.” (Id. at 27.) Under that provision, the prohibition on selling and buying unregistered securities does not apply to “any security which is issued in exchange for one or more bona fide outstanding securities, claims or property interests, or partly in such exchange and partly for cash, where the terms and conditions of such issuance and exchange are approved, after a hearing upon the fairness of such terms and conditions at which all persons to whom it is proposed to issue securities in such exchange shall have the right to appear, by any court, or by any official or agency of the United States, or by any State or Territorial banking or insurance commission or other governmental authority expressly authorized by law to grant such approval.” 15 U.S.C. § 77c(a)(10). As the Oklahoma court had invoked §3(a)(10), it appeared TD Ameritrade could lawfully comply with the arbitrator’s Award by delivering to Haviland a certificate recognizing ownership in his name of 75,000 New Shares. This court therefore ordered TD Ameritrade to submit a supplemental brief “explaining why the court should not grant Haviland’s Motion for Reconsideration.” (Doc. 41 at 3.)
In a Response (Doc. 43) filed on August 7, 2015, TD Ameritrade argues that purchase of any New Shares would violate 15 U.S.C. § 78l(j), which provides, “No member of a national securities exchange, broker, or dealer shall make use of the mails or any means or instrumentality of interstate commerce to effect any transaction in, or to induce the purchase or sale of, any security the registration of which has been and is suspended or revoked.” TD Ameritrade contends the SEC “revoked the registration of [Bancorp]” in November 2009, and therefore “any transaction” involving any Bancorp
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Case 2:15cv00611NVW Document 44 Filed 08/10/15 Page 3 of 5
shares is barred by § 78l(j). (Doc. 43 at 3.) In fact, the SEC’s November 3, 2009 order merely directs that, “pursuant to Section 12(j) of the Securities Exchange Act of 1934, the registration of each class of registered securities of [Bancorp] is hereby REVOKED.” (Doc. 14-3 at 25 (italics added).) That order does not purport to affect any Bancorp shares, such as the New Shares, that are exempt from registration. And the statutory provision on which the SEC relied does not give the agency power to remove from the market shares issued under the authority of § 3(a)(10). Instead, it merely empowers the SEC to revoke a registration when such a registration exists. See 15 U.S.C. § 78l(j) (“The Commission is authorized . . . to revoke the registration of a security, if the Commission finds . . . that the issuer of such security has failed to comply with any provision of this title or the rules and regulations thereunder.”). But where, as here, the shares in question are unregistered, § 78l(j) by its terms is inapplicable.
TD Ameritrade next argues that the “settlement presented to the Oklahoma state court for approval called for” the New Shares “to be presented to, and accepted by, the [Depository Trust Company] in exchange for the alleged ‘counterfeit’ shares of [Bancorp].” (Doc. 43 at 4.) But the Depository Trust Company allegedly “refused to accept the share certificates issued pursuant to the Oklahoma state court order.” (Id. at 5.) It is not clear why TD Ameritrade believes this fact absolves it of its duty to comply with the arbitrator’s Award. TD Ameritrade offers no support for the idea that the Depository Trust Company’s rejection of the New Shares somehow renders the sale or purchase of those shares illegal.
In any event, TD Ameritrade’s brief appears to misstate the record. The settlement agreement merely requires Bancorp to “take such steps as are reasonably necessary and appropriate to ensure that such New Shares, among other things, shall be: a) Reasonably acceptable to [the Depository Trust Company] for deposit therein.” (Doc. 31-2 at 35.) The court’s order itself makes no mention of the Depository Trust Company. There is no indication that Bancorp failed to comply with this term of the agreement.
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Case 2:15cv00611NVW Document 44 Filed 08/10/15 Page 4 of 5
Nor is there any reason to think that such failure would strip the New Shares of their exemption from the prohibition on buying or selling unregistered securities.
TD Ameritrade insists that it does not know how or where to purchase New Shares because a “real market” for such shares does not exist. (Doc. 43 at 5-6.) According to TD Ameritrade, “there has been no trading in those, or any other, [Bancorp] shares except for a 30 minute period in 2006.” (Id. at 5.) One of the brokers to whom the New Shares were issued was allegedly “expelled from the securities industry by order of the SEC in July 2008.” (Id. at 5-6 n.7.) That TD Ameritrade may have difficulty locating a seller of New Shares, however, does not mean that purchasing such shares and transferring them to Haviland would be either illegal or impossible.
Finally, it is irrelevant that the “Oklahoma state court proceeding is not referenced in the record before the Arbitrator, and . . . was not raised in the underlying arbitration as a basis for relief.” (Doc. 43 at 2.) Haviland’s request for relief to the arbitrator included a demand that TD Ameritrade “transfer my [Bancorp] ownership which is now registered on [TD Ameritrade’s] books into my name on the books of [Bancorp] and deliver to me a [Bancorp] stock certificate as proof of my registered ownership.” (Doc. 14-3 at 3.) Nevertheless, the arbitrator’s Award ordered only that TD Ameritrade “deliver to Claimant a physical share certificate for 75,000 [Bancorp] shares registered in Claimant’s name.” (Doc. 1-1 at 3.) The Award did not indicate that TD Ameritrade had to deliver Haviland’s previously purchased shares, or that TD Ameritrade would be excused from compliance if those specific shares were not transferrable. When TD Ameritrade asked the arbitrator to clarify which class of stock the Award called for—CUSIP No. 05968X106, like Haviland’s original shares, or CUSIP No. 05968X205—the arbitrator did not respond. (Doc. 29 at 4.) The Award therefore appears to contemplate that TD Ameritrade may comply by furnishing Haviland a certificate for shares of a class other than that which he purchased in 2005. As a result, Haviland’s failure to mention the New Shares during arbitration does not mean those shares cannot be used to fulfill the Award.
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Case 2:15cv00611NVW Document 44 Filed 08/10/15 Page 5 of 5
A court’s authority to vacate, modify, or correct an arbitration award is “narrowly circumscribed.” Haviland, 2015 U.S. Dist. LEXIS 83340, at *7, 2015 WL 3907117, at *3. “In sum, the Federal Arbitration Act allows a federal court to correct a technical error, to strike all or a portion of an award pertaining to an issue not at all subject to arbitration, and to vacate an award that evidences affirmative misconduct in the arbitral process or the final result or that is completely irrational or exhibits a manifest disregard for the law.” Id. at *7-8, 2015 WL 3907117, at *3. An award may also be modified if it calls for the performance of an impossible or illegal act. Id. at *8, 11, 2015 WL 3907117, at *3-4. TD Ameritrade has not shown that any such grounds for vacatur, modification, or correction exist in this case.
IT IS THEREFORE ORDERED that the court’s June 25, 2015 Order (Doc. 29) and Judgment (Doc. 30) are vacated.
IT IS FURTHER ORDERED that Plaintiff Douglas A. Haviland’s Motion for Reconsideration (Doc. 31) is granted. The arbitrator’s Award of March 11, 2015, is confirmed in its entirety.
IT IS FURTHER ORDERED that the Clerk enter judgment in favor of Haviland and against Defendant TD Ameritrade, Inc., confirming the arbitrator’s Award of March 11, 2015, in its entirety.
Dated this 10th day of August, 2015.
Neil V. Wake
United States District Judge
Pacermonitor
I can only speculate that question - I can't answer as to what the brokers would do!
I have yet to buy stock in BCIT. The broker took the money and put a marker in the account. When the broker delivers the shares backed by a cert - then I will have MY shares. So now where is the broker going to get these shares?.........well BCIT if course!!!!!! Maybe the brokers shouldn't have agreed to go out and purchase more share than are outstanding.
MEGAS is just helping these brokers finish the deal these brokers brokered. It is his company so - just guessing- the brokers would have to go to him. Don't ya think!
Read the press release. Brokers are aware that broker to broker trading is available to cover their failed trades.
AGAIN, systemic sorcery has placed inconvenienced individuals upon common ground!
________________________________________________________________
carrot_on_stick
Tuesday, September 20, 2011 8:36:34 PM
Re: CarltonH post# 137440
Post # of 154341
so let me see if i get this, beneath the cheaply thrown together facade that seems to have appeared from thin air, you are some sort of "troubleshooting" organization that has far reaching capabilities and resources. you can stand toe to toe with a federally backed, multi-trillion dollar behemoth that wields more power and influence than most countries. you have decided to focus all of this unique ability on bcit with no monetary requirements directed at s/h's? tm really did strike a goldmine
______________________________________________________________
Simple Simon would probably tell everyone to thank carrot for getting us to where we are today...................................maybe Simon is not that simple!
So……Pop some popcorn and grab yourself a front row seat.
The brokers are well aware of how the DTCC expects their participants to deal with their failed trades as outlined contained in this particular important notice.
DTCC B0846-11 is merely referenced as explicandum!
I am going to believe you thoroughly read over this latest press release along with the referenced DTCC instruct. Therefore, an individual of such astute boardsmanship as yourself would have to agree, this conjected reply of yours comes up shallow don’t ya think!
The press release states:
DTC participants need to acquire BCIT shares in order to settle aged fails in accordance with DTC instruction contained in DTC release B0846-11.
Age, stock specific, nor time frame in reference to DTC Importance Notice B0846-1, is the issue here. Under Proposed Solution read the 4th paragraph:
As to these designated CUSIPs, however, DTC will not lift the related deposit chill. If there are failed deliveries in these CUSIPs that are dependent upon physical securities held outside of DTC, settlement of those trades must be effected by physical delivery outside of DTC.
Here the DTCC clearly lays out to all of it’s participants the proper path in how to deal with their failed deliveries outside of DTCC involvement. From this point on, ignorance to this knowledge can no longer be defined as a misdemeanor!
Please - correct me if I am wrong.
Picking the arbitrator is just all part of the process. Kind of the Same as picking a jury. The claimant and respondent rank the arbitrators favorable to least favorable. The arbitrator picked is highest on both lists. This in order to satisfy both parties.
True you could argue the list is stacked against you. Unless you do not get involved in or understand this process. Then I guess you get what you got coming to you.
Panels are a bit deeper than that yet run along the same lines.
but they will not pay us unless ordered to do so imho./b]
It speaks for it’s self!
[/7. The decision to sue the shareholders was on the advice of the SEC and DTC.[
As You are so heavy into this comedy - I will ask you to back up your fraud accusation.
True the suit did receive serious opposition. Then why are the brokers feeling the heat?
Per the advice of the SEC And the DTCC. Are you positive it was for fraud
Which in effect exonerated the shareholders and placed the focus in the proper direction.
Step one
Old news can we move on from here.
Question is:
Has anyone with Ameritrade checked as to why there is a show of value to their shares.
3 billion
Are you referencing the authorize share count, outstanding share count or the amount needed to facilitate the brokers short?
Systematic sorcery has placed inconvenienced parties upon uncommon ground!
___________
"if brokerages need to acquire more certs they will purchase them from the same place they got yours. tommy boy has 3 billion shares of worthless paper to unload. that's the whole point of this"
________
Then have the brokers purchase away. These shares will now have been made whole. After all the money taken from clients was to be used to purchase shares- correct?
Who's afraid of the big bad Wolf
brokers never purchased "legitimate shares"?
"So how does any of this benefit shareholders? last time i checked this company was not trading. if brokers have to "cover" a non-trading stock i guess they will have buy shares from tommy boy.
you all will then have legitimate shares in a non-trading blank check penny stock company.
you people did all the heavy lifting and sir thomas cashes in. "
So you are stating the brokers never made a purchase in BCIT shares!
If you go to TDA now and ask for your certificate and they say they can't get them or just simply will not get them - until a court orders them -this could possibly open up the criminal aspect!
Just thinking.
I guess they are S O L
Statute of limitations are up.
IMHO
Good things will only come to those who make them happen.
Also, I have never known negative waves to attract anything positive.
Then there is the coat tail riders. I won't even get into that
This has me thinking of what the auto mechanic said to me just the other day.
It's that ticking noise you need to be worried about!
You come across as offended
You have made claims in the past of being a shareholder. Have you gone to court or arbitration to obtain what is rightfully yours?
True True
do you really think the brokers are just going to fix this?
You want something done you have to make it happen. And you cannot deny there are people here who are making iT happen.
And right now here's where they are:
http://www.litigationlawfirms.com/resources/lawsuits-and-disputes/litigation/types-damages.ht
Compensatory damages and punitive damages are comparable in the sense that they offer compensation to the plaintiff of a case but they have some differences pertaining to how they are rewarded. Compensatory damages are damages that are awarded to a plaintiff in a civil law case for injuries incurred as a result of the actions of the defendant, lost wages, lost profits, hospital bills (current and future), cost of home medical care, property damage, mental anguish, loss of friends, loss of respect in the community, loss of reputation, loss of consortium and pain and suffering. The objective of compensatory damages is to return the plaintiff to the place that they were in before the injury occurred. Compensatory damages are also referred to as special damages by certain insurance companies. Special damages also refers to the money lost as a result of the injury caused by the defendant in the case. For instance, the defendant mugs the plaintiff and in the process steals a watch and a ring from the victim. The defendant has been caught but the watch and ring have already been pawned by the defendant. The victim, or plaintiff, can ask for compensatory damages for the loss of the ring and the watch. The plaintiff will have to prove how much each piece of jewelry cost them, so having receipts would be helpful for the plaintiff’s attorney.
Punitive damages are different from compensatory damages and are not awarded to the plaintiff of a case as often as compensatory damages are awarded. Punitive damages will only be awarded by the judge presiding over the case if the defendant’s act was so horrible and offensive that the court believes it is important to make an example out of the defendant from the case. Punitive damages are meant to be a punishment for the defendant and to deter the defendant from committing the same crime again. By making an example of the defendant by rewarding the plaintiff punitive damages the judge is hoping to deter other criminals from committing the same crime as the defendant in the case in question. Punitive damages are added to the compensatory damages that have already been awarded to the plaintiff by the judge. This helps to make an example of the defendant. The judge may order the defendant of a case to pay the following fees if the plaintiff prevails in a trial along with compensatory and punitive damages:
Fees charged by expert witnesses
Court reporter fees
Costs of constructing exhibits
Reproduction costs
Miscellaneous legal costs
Punitive damages that are awarded in the court system of the United States are subject to the limitations imposed by the due process of law clauses of the Fifth and Fourteenth Amendments of the United States Constitution. The percent of cases that go to civil trial and have punitive damages awarded in them is two percent. Also, studies show that the median amount of punitive damages awarded in a civil case is anywhere from $38,000-$50,000.
Have you asked for a refund?
The criminal aspect has yet to be addressed. Now that the facts have been exposed and verified, this could become a possibility.
Really no shorts in penny stocks! could this be why they are fighting to keep any argument like this out of the courts?
It is a shame the brokers are looking down on and giving us all the finger on this issue, an issue that has been proven and recognized as a simple right to obtain what you have purchased.
Tex The synopsis is for those who are now realizing a value in their shares (even if it is at the cost of the brokers arrogance) and may now go after them.
Yes sad but true, right now, legal action is necessary - been there done that- and that first step was the hardest step. Is it not always that way?
To be more specific:
The global lock refers to the Certificates bearing the 106 CUSIP. These 106 Certs ARE locked and as well they should be! This in order to protect US, The shareholders and the DTCC. Actually all 106 certs are retired.
The name Energy Source was tied to these 106 Certs when the judge revoked energy source. A company that never existed bearing a CUSIP that had already been retired. I still get a kick out of that. I can picture that judge sitting up in his bed in the middle the night saying I revoked what!
Still FINRA is claiming that energy source and Bancorp are one in the same.
Before the 106 certs were retired they were replaced with new certificates bearing the name Bankcorp international group Inc. bearing the new 205 CUSIP. This was ordered by the Oklahoma court in order to satisfy the DTCC requirements of cleansing all counterfeit certificates from the marketplace. The DTCC is satisfied and has 205 Certs their stores.
The brokers not involved in that court action are claiming this does not apply to them.
I have a copy of a screenshot from FINRA, which someone has typed in, and I paraphrase, "FINRA is objecting to the 106-205 transfer stating that The company did this without their approval." Therefore telling the D TCC not to fully activate the 205 Certs.
The question; why is FINRA objecting to a court ordered action?
This global lock does not apply to Bancorp and it does not apply to the certs bearing the 205 CUSIP.
Bancorp is a private entity that has shareholders and can trade. It's just that THIS market has given Bankcorp the Scarlet letter so to speak.
The global lock is relevant and we all have every right to what we purchased.
All roads lead to FINRA!
Carleton Huxley can answer that question. Smart to direct your questions there.
They are throwing the new guys at this one.
R . I pm'd you on the lbt.
If you were summonsed then you have the list.
Correct. Scotty was exonerated. The third party action (dtcc) showed no one was damaged.
What it did show, there is NO issue with BCIT. Nothing wrong with your shares. The grabowski arbitration proved that. The brokers are hanging on to the 106's, it is all they have.
I hear The 205 certs will burn them if they touch them.
You are entitled to what you purchased. Go get it!
I jumped in with no clue and an attitude.
For you C H has a template! Also a much stronger supporting cast.
I disagree.
This is more about the brokers are showing absolute contempt towards any legal process and their stalling tactics are finally catching up with them and blowing up in their face. No dead end here.
How would I know this?
Plausible deny ability is now gone.
What is important is not the $8.25. Rage has proved that yes we have been damaged by the brokers actions or The very least the brokers have been negligent.
They are going to be held accountable for selling something that they do not have. This is a simple right to what you purchased.
Been verified thru Huxley. Give it time that info will get out.
R
what a rush!
Congratulations to you.
You mean the nightmare did not start when those legitimate brokerages continued to accept clients money after the lock notification?
Who would it be making a crooked act?
This is a serious accusation that needs to be addressed.
You need to look into this further yourself.
I can see what you mean about those clerical errors being viewed as a crooked act.