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I defer to your experience in these issues, but some things are still unclear to me regarding your view of what's going on. Let's start with the law:
I said: If I'm not mistaken, the only remaining recourse is a 12 month registration suspension or a complete revocation.
You responded: They cannot suspend trading for a year but there is a process in place for revoking registrations...
The 1934 Act says:
Section 12 -- Registration Requirements for Securities
Denial, suspension, or revocation of registration; notice and hearing
j. The Commission is authorized, by order, as it deems necessary or appropriate for the protection of investors to deny, to suspend the effective date of, to suspend for a period not exceeding twelve months, or to revoke the registration of a security, if the Commission finds, on the record after notice and opportunity for hearing, that the issuer, of such security has failed to comply with any provision of this title or the rules and regulations thereunder.
Now I'll grant you that I've never SEEN a 12 month registration suspension (no, not a trading suspension), but the rules clearly provide for one. I am also not at all clear on what the impact on shareholders might be of a registration suspension versus a trading suspension......are you?
I hope to get a chance to address the rest of your response in another post.
" Something doesn't add up here. Doesn't make sense that they would let SPNG go this long while still owing that kind of money."
O&T......
Completely agree. There is NO obvious reason for them not to have filed, which would have been using the proper method, resulting in a significantly lower tax. The idea that they would accept an extra ~$150,000 in tax liability for 2008 just to avoid disclosing o/s numbers as of 5/31/08 (when filed on 3/1/09) doesn't cut it. And it doesn't cut it for 2009 either, given that the filing itself, which would reflect the 5/31/09 o/s(whatever that is), isn't due for another couple months.......their only obligation for 2009 so far is for estimated payments.
I'm waiting for someone to tell me what we're missing.
OT,
In case my other post didn't make it clear:
You're right.....the company should have used the "Assumed Par Value Capital Method ". However, Delaware law says that if a company fails to provide the numbers required to calculate the tax based on that method, then the state will calculate the tax using the "Authorized Share Method".........which they are able to do because, as we all know, the share authorization changes are in their possession already. And it appears that, for 2008, that's what they did. And for 2009, they would appear to be preparing to do it again.
It's a lot easier than it looks.
Even though "the numbers" aren't available, plugging in any reasonable guesses regarding assets and o/s shares results in significantly lower tax amounts than the "authorized share method" that the state of Delaware uses if you don't do your own calculation or fail to provide them numbers to calculate with.
For frame of reference, using 722m o/s, 3B authorized and 22m assets generates a tax of $30,000+.
The state, using the authorized numbers that they KNOW, is calculating based on the A/S method, which results in the maximum tax for 2009 of $180,000. Which appears to be exactly what they did for y/e 2008.
Apparently nothing has been paid on the 2008 bill, which appears to be accruing interest, and estimates which were due on the 2009 bill are not reflected as having been paid on the statement either....although the filing itself is not yet due.
I'm sure that those who may be unfamiliar with what a 10K is appreciate the explanation.
"The only thing missing would be the audited financial records and, as I have previously stated, it is hard to imagine them wanting to pay auditors tens of thousands of dollars to help the SEC determine what was and wasn't true in the previously completed audits and in the various pump pieces they issued."
So you feel that it's not a case of a desire to withhold the financials but a conscious decision not to prepare them? And Robison has been sitting idly by since July at a discount, producing nothing? Yet is adequately occupied to avoid an 8K Item 4.01: Changes in Registrant's Certifying Accountant?
I have no experience in these matters, but after responding to the above, please tell me how silly it is for me to think that the SEC investigators would allow ongoing trading when an issuer under investigation not only fails to file, but shows no inclination to file. If I'm not mistaken, the only remaining recourse is a 12 month registration suspension or a complete revocation. What action on the part of the company, beyond showing an intent not to file, would be required for the Commission to take one of those actions?
Okay...next question then:
Could they subpoena all the pieces of the the 10K, financial and narrative, prior to its compilation?
If so, how's that different?
If not, why would they be precluded from doing that when (I presume) they can subpoena anything else that they feel necessary that might be lying around?
ps. Saw Morgan F on an old Just Shoot Me today....she could STILL handle my case anytime :o)
O-S,
Great post.
The distinction between documents and filings, which by their very name have been filed, is the meat of this issue. It leaves me with just one question:
Can a subpoena be issued which requires the submission of the unfiled 10K upon its preparation and prior to its filing?
This is such a wacky issue that I'll avoid any related questions until someone can definitively answer that one.
EDIT:
AHHrRRRRRGGGGHH, I'm editing this post because I can't figure out why they would do such a thing
nick,
I believe it is statement b), with a change in tense. It's tough to judge intent.
b) there is no audited 10k because SPNG does not choose to release one.
Dell has been brought up for comparison purposes due to their own SEC investigation and delayed filings of several years ago. While the issues are far from apples-to-apples, I thought you might find the following chronology interesting.
From an 8K filed on 8/17/06:
"ROUND ROCK, Texas--(BUSINESS WIRE)--Aug. 17, 2006--Dell
(NASDAQ:DELL) reported revenue of $14.1 billion for the second quarter of fiscal year 2007, an increase of 5 percent year-over-year."
The filing continued on in fine detail to provide the results for the quarter. It also included the following:
"In August 2005, Dell received notice from the U.S. Securities and Exchange Commission that it was conducting an informal(emphasis mine) investigation of the company. The notice stated that the investigation is not an indication that any violations of law have occurred. The SEC has requested information relating to revenue recognition and other accounting and financial reporting matters for certain past fiscal years, and Dell has been cooperating."
Yet, while they were explicit in their reporting of their results for the quarter on 8/17, they filed the following, including the quoted narrative on 9/14.....the due date of the 10Q FOR THAT QUARTER:
FORM 12b-25
NOTIFICATION OF LATE FILING
"As announced on September 11, 2006, Dell Inc. is delaying the filing of the Form 10-Q for its fiscal second quarter ended August 4, 2006. The company is unable to file because of questions raised in connection with the previously announced informal investigation by the U.S. Securities and Exchange Commission (“SEC”) into certain accounting and financial reporting matters, and the subsequently initiated independent investigation by the Audit Committee of its board of directors."
My reading of that, and that's all it is, is that Dell CHOSE not to file of its own volition and while the decision was made based on issues brought forth by the SEC, it was not dictated by them.
It's just a story and it probably wouldn't be a good idea to draw any definitive conclusions from it. But, at the same time, I seriously doubt that we'll be seeing any stories about the SEC REFUSING TO ALLOW a company to file a filing. If there are any such stories I hope whoever finds them will post one.
Good luck.
http://sec.gov/cgi-bin/browse-edgar?action=getcompany&CIK=0000826083&type=&dateb=&owner=exclude&start=160&count=40
ps. Curiosity items:
The 10Q in question was eventually filed on 10/30/07. The SEC investigation was ongoing at that point as a formal investigation (converted from informal in 10/06), but the internal Dell Audit Committee investigation was complete. The current Dell 10Q, filed on 12/3/09, says "Although the Audit Committee investigation has been completed, the SEC investigation is ongoing. Dell continues to cooperate with the SEC investigation." So it's three years and counting.
Share prices by date were/are:
08/17/06 22.80
09/15/06 21.35
10/30/07 29.80 (10/15-11/15 range of 28.18-26.83)
12/22/09 14.11
There is no deadline.
I was agreeing with you. Just providing a section of the rules that I thought you might find more appropriate since it dealt with companies versus brokers.
Hash,
Your citation relates to revocation of broker/dealer registrations, but the point remains the same for issuers:
Section 12 -- Registration Requirements for Securities
j. Denial, suspension, or revocation of registration; notice and hearing
The Commission is authorized, by order, as it deems necessary or appropriate for the protection of investors to deny, to suspend the effective date of, to suspend for a period not exceeding twelve months, or to revoke the registration of a security, if the Commission finds, on the record after notice and opportunity for hearing, that the issuer, of such security has failed to comply with any provision of this title or the rules and regulations thereunder. 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 pursuant to the preceding sentence.
k. Trading suspensions; emergency authority
1. Trading suspensions
If in its opinion the public interest and the protection of investors so require, the Commission is authorized by order--
1. summarily to suspend trading in any security (other than an exempted security) for a period not exceeding 10 business days, and
2. summarily to suspend all trading on any national securities exchange or otherwise, in securities other than exempted securities, for a period not exceeding 90 calendar days.
http://www.law.uc.edu/CCL/34Act/sec12.html
pj,
Preferred shares authorized, not issued (yet....at least not officially.....you telling us something?)
:O)
You're right. Asking the boat division sales personnel how to contact a golf division customer might very well produce misleading results (never heard of 'em!). However, the Dubai Exports & Imports website that I just looked at listed "Taylor Made Clubs". So the response from Rob in Sales at Taylormade-Adidas Golf would suggest that Hasher had reached the right person, no?
Anyway, my purpose was to indicate that his approach was practical and creative DD and I don't think that can be reasonably disputed. Everything we do can always be done a little bit better, right?
polsih,
Taylormade has been around for a long, long time.......I use some of their stuff (fenders mostly) on my boats. And for what it's worth I think that Hashers little project is what good DD is all about.
I didn't know that there was a loanranger on Hotstockmarket...if I had an attorney I'd get them right on that. And I don't know which of your so-called "haters" theories that I've debunked...I think some people just find it counter-intuitive to think that the powerful would willingly share their power and I agree with that. But I think I've explained that it wasn't by choice.
It wasn't meant to be a hint....I thought it was pretty direct.
Several folks commented on my interpretation of the phrase in the Articles of Incorporation governing the requirements for authorizing share increases, voicing their disagreement. I willingly admit that I don't have experience in the law...except for a few days in the cooler for a mis-step during my college years some 40 years ago....so I'm not surprised that my interpretation was rejected. It would be nice if there was some accompanying research but what the hell, I gave it a shot.
Hope you had the time to read my follow-up.
spit,
re: "concluded it was forced upon SPNG by the state of Delaware and was not voluntary".
Apologies if I left that impression. I did not mean to suggest that Delaware wrote their laws with SPNG in mind. But I believe they wrote the law requiring common shareholder class approval of any increase or decrease of authorized shares OF ITS CLASS to deal with a situation like SPNG's. They did not want a class of stock created that could dictate the authorized number of common shares without allowing the common shareholders to have a clear say in that decision. So SPNG's Articles are written to voluntarily comply with the law, but they really have no choice.
Please keep in mind that this is just my opinion from my reading of Delaware law and SPNG's Articles of Incorporation. So far no one agrees with it and I have no special skills in this area, so I can't say as I blames 'em.
Good Luck.
hasher, Kitt, TEX, anyone?
I suspect I that I should allow this to drop, but I can't.
While it seems obvious that the purpose for creating the Class B shares was to assure control, the wording of the authorization requirement is clear to me. I'm convinced that "voting separately as a class" means exactly what it says.
So, I too wondered why the "founders" would create a facility to control the company (Class B), and then seemingly give that control back by requiring the common and B shareholders to approve authorization changes separately. It seems that Delaware, in its wisdom, saw that allowing the creation of a separate voting class that was able to perpetuate itself without any recourse by the common shareholders might be a lousy arrangement. And I am reasonably certain that that is why they wrote the following law as they did (note that I have edited out inapplicable sections and highlighted what I saw as the high points):
TITLE 8
Corporations
CHAPTER 1. GENERAL CORPORATION LAW
Subchapter VIII. Amendment of Certificate of Incorporation; Changes in Capital and Capital Stock
§ 242. Amendment of certificate of incorporation after receipt of payment for stock; nonstock corporations.
(a) After a corporation has received payment for any of its capital stock, it may amend its certificate of incorporation, from time to time, in any and as many respects as may be desired, so long as its certificate of incorporation as amended would contain only such provisions as it would be lawful and proper to insert in an original certificate of incorporation filed at the time of the filing of the amendment; and, if a change in stock or the rights of stockholders, or an exchange, reclassification, subdivision, combination or cancellation of stock or rights of stockholders is to be made, such provisions as may be necessary to effect such change, exchange, reclassification, subdivision, combination or cancellation. In particular, and without limitation upon such general power of amendment, a corporation may amend its certificate of incorporation, from time to time, so as:
(3) To increase or decrease its authorized capital stock or to reclassify the same, by changing the number, par value, designations, preferences, or relative, participating, optional, or other special rights of the shares, or the qualifications, limitations or restrictions of such rights, or by changing shares with par value into shares without par value, or shares without par value into shares with par value either with or without increasing or decreasing the number of shares, or by subdividing or combining the outstanding shares of any class or series of a class of shares into a greater or lesser number of outstanding shares;
(b) Every amendment authorized by subsection (a) of this section shall be made and effected in the following manner:
(1) If the corporation has capital stock, its board of directors shall adopt a resolution setting forth the amendment proposed, declaring its advisability, and either calling a special meeting of the stockholders entitled to vote in respect thereof for the consideration of such amendment or directing that the amendment proposed be considered at the next annual meeting of the stockholders. Such special or annual meeting shall be called and held upon notice in accordance with § 222 of this title. The notice shall set forth such amendment in full or a brief summary of the changes to be effected thereby, as the directors shall deem advisable. At the meeting a vote of the stockholders entitled to vote thereon shall be taken for and against the proposed amendment. If a majority of the outstanding stock entitled to vote thereon, and a majority of the outstanding stock of each class entitled to vote thereon as a class has been voted in favor of the amendment, a certificate setting forth the amendment and certifying that such amendment has been duly adopted in accordance with this section shall be executed, acknowledged and filed and shall become effective in accordance with § 103 of this title.
(2) The holders of the outstanding shares of a class shall be entitled to vote as a class upon a proposed amendment, whether or not entitled to vote thereon by the certificate of incorporation, if the amendment would increase or decrease the aggregate number of authorized shares of such class, increase or decrease the par value of the shares of such class, or alter or change the powers, preferences, or special rights of the shares of such class so as to affect them adversely.
So, to no one's surprise, it seems that rather than the goodness of the founder's hearts it is the state of Delaware that is imposing the requirement of the approval of the majority of common shares, SEPARATELY, for any changes to their authorized number.
" before any TA is gagged the SEC has to approve this order because gagging the TA without the SEC's
consent would be in violation of the Freedom of Information Act. "
Malarky.
"It is not solely up to the company and Spongetech couldn't just tell the TA they are not allowed to say anything about the share structure"
Sure they can.
"Further, the SEC clearly states that in order for a TA to be gagged, a company must file Form "CT order" (which Spongetech did in 2008)"
More Malarkey. (There are no SEC rules that deal with the gagging of a T/A and the only 2008 CT order granted to SPNG dealt with the terms of the contracts with the Yankees and Mets.)
"the SEC will not allow the gag order unless the company clearly demonstrates that the gag order is "in the best interest of the public/shareholders" (taken directly from the SEC website)."
No, it's not. And you can look until you're blue in the face and you won't find it.
I'll continue if anybody is interested, but you should get the idea by now. Not only was this post copied and pasted from a previous post, but the original post was from June 16th, part of a larger post full of equally unsupportable nonsense.
I don't do "drifts". I do language. And there is only one way to interpret the following:
"the affirmative vote of a voting majority of the shares of the Common Stock and of a voting majority of the shares of the Class B Stock, each voting separately as a class."
and that is, that a change to Article IV of the Articles of Incorporation requires:
1. "the affirmative vote of a voting majority of the shares of the Common Stock"
AND
2. "a voting majority of the shares of the Class B Stock"
each voting separately as a class.
Both classes must agree, in separate elections, to authorize a change in Article IV. It's that simple.
The motivation of the parties to include those terms are for your to ruminate on.....I don't care. Whatever it was or whatever you would like to think that it was does not change the language.
If you have an alternate interpretation, please present it.
ps. "I dunno" is NOT an alternative interpretation.
"what would happen if the "A election" were pro, but the "B election" were con?"
Obviously the motion would fail.
z,
PIA? meaning?
h,
"Would the may 09 financials be correct if the previous (re-audited) ones were incorrect, or do these things work on a continuing basis?"
It's kind of a trick question. The only filing requiring re-audit is the 2008 10K, as you know. The SEC didn't want to see those numbers as comparison numbers on the 2009 10K without being reviewed first.
The 2009 10Q's were never audited, so they don't need a review in the SEC's eyes. And the 2008 10Q's were never audited either, so the comparables are no concern.
But you're right in that there must be continuity into the 2009 statements from the 2008 balance sheet.
Here's what I find interesting. In the event that Robison has completed the 2008 re-audit, and from a workload standpoint they sure should have, and they determined that Drakeford's work was acceptable (don't say it!), then there would be absolutely nothing precluding the company from publishing that fact. In fact, it could be argued that an 8-K to that effect would be required under the circumstances.
On the other hand, any changes that Robison deems necessary to the 2008 year end balance sheet would carry forward, having a domino like effect through the 2009 10Q's. And it would be reasonable to expect that those 4 (2008 and 2009x3)restatements might be filed as a group, with the 2009 10K filed subsequently. Of course, it remains to be seen whether we see any filings at all.
"I doubt there's a way to structure two elections."
In that case, I welcome you or anyone else to clearly interpret the following phrase any other way:
"the affirmative vote of a voting majority of the shares of the Common Stock and of a voting majority of the shares of the Class B Stock, each voting separately as a class."
H,
A belated thank you. I knew you weren't referring to my numbers, I was just saying that the share raises weren't arbitrary in the sense that they had a very real purpose.
I guess I shouldn't be surprised that my post didn't draw more attention. I think your efforts to find out if companies of substance can tell you how to contact their distributors is a terrific project. Just one suggestion if I may......when you report the responses, please consider posting your original inquiry with each one. I think the wording of your question might make it easier for people (me) to follow the responses without having to know the history of the issue.
GL
happy,
From your link I see that 7 (maybe not coincidentally) of the 60+ companies that were suspended, were suspended individually, with the remainder being suspended in batches of 6 or more.
I'm guessing here, but I believe the group suspensions represent an ongoing SEC program to clear the decks of companies that have basically stopped operations and trading on their own.....next stop being revocation of registration.
The companies suspended individually, on the other hand, were probably suspended "for cause", where the absence of activity is not the SEC's primary reason for acting. It would be interesting to know if the latter group is the same 7 that were still breathing after suspension.
As noted, most of the above is conjecture, a product of both boredom and laziness.
"Arbitrarily" isn't the term that I would use, but ok.
What I am suggesting is that the size of the RME holding for those previous raises (I didn't doublecheck your count of 4, but I don't question it) was adequate so that, when added to the other holdings of MMSMFL, it resulted in a majority of the outstanding shares at the time of those elections.
For example:
At year end 8/31/08, per the 10K, holdings were as follows (millions, rounded):
MMSMFL 25
RME 257
Total O/S common shares 521
(Note that the individual ownership above is actually as of 7/28....this is for example purposes only and exact comparable data by date is tough to come by).
So, the common share election could result in a majority of all shareholders (54%) without even asking for the votes of any other than MMSMFL.
"(b) The provisions of this Article IV of the Certificate of Incorporation shall not be modified, revised, altered or amended, repealed or rescinded in whole or in part, without the affirmative vote of a voting majority of the shares of the Common Stock and of a voting majority of the shares of the Class B Stock, each voting separately as a class."
It's my understanding that the last 6 words of the term deal with your question. I interpret it to mean that there are effectively 2 elections required under Article IV. One for the common shares, as discussed, and another for the Class B shares. And that, in order to modify, revise, etc. BOTH elections must result in majorities in favor thereof. So the Class B election, which is clearly a shoe-in, must be supplemented by a Common share election in order to change Article IV. That's why the low RME holding caught my interest as having a significant potential impact on this issue at this time.
I'm not an expert in this stuff...or anything else.....and am drawing my conclusions based only on my reading of the clause above. I sure could have it wrong, but I don't think so.
Hasher,
re: "It would not surprise me to see an increase in the AS to be announced soon."
Food for thought:
The article amending the Certificate of Incorporation on 9/25 said the following:
2. The Certificate of Incorporation of this Corporation shall be amended by changing the Article thereof numbered “FOURTH” so that, as amended, said Article shall be and read as follows:
"ARTICLE IV. CAPITAL STOCK.
The aggregate number of shares of stock of all classes which the Corporation shall have authority to issue is 3,068,000,000, consisting of 3,000,000,000 shares of Common Stock, having a par value of $0.001 per share, 28,000,000 shares of Class B Stock, having a par value of $0.001 per share, and 40,000,000 shares of Preferred Stock, having a par value of $0.001 per share."
It also said, and this appears in all prior amendments:
"(b) The provisions of this Article IV of the Certificate of Incorporation shall not be modified, revised, altered or amended, repealed or rescinded in whole or in part, without the affirmative vote of a voting majority of the shares of the Common Stock and of a voting majority of the shares of the Class B Stock, each voting separately as a class."
I believe that the above provision is the term that has been relied upon to raise the authorized share level in each of the previous instances. Obviously there has been very little difficulty in achieving a majority in the Class B elections, but I wonder what, if anything the Form 3's that were filed showing holdings as of 4 days subsequent to the above filing might suggest regarding the Common Stock election that would be required for any authorized share changes, up or down.
Excuse the abbreviations, rounded to millions:
MM 11+9 (common+class B)
SM 6+9
FL 28+5
RME 66+5
So, the total common shares beneficially owned (suggesting probably under the control of for voting purposes) as of 9/28/09 was 111 million. The officers should have filed Form 4's if they had any subsequent transactions.....I would have expected a Form 3 for RME (based on their Class B holding) and Form 4's for subsequent transactions, but that's just my opinion.
Based solely on the above, if there are more than a total of 222 million shares outstanding and if there have not been any increases in the holdings reported as of 9/28, the 3 directors cannot authorize an increase or decrease in authorized shares by themselves.....without soliciting the votes of all shareholders.
Those are 2 very big ifs and as I said, this is just food for thought.
By the way, Pike indicated ownership at that date of 100 million plus 42 million added later. And we don't know the status of the Signature and Levin(sp?) holdings, but I can't imagine that their shares could participate in a vote without a notification to ALL shareholders.
veg,
The rules require the auditor to report evidence of fraud to the client, then to the SEC if not corrected OR directly to the SEC who has no obligation to make it public immediately. The fact that we have heard nothing means exactly that.....nothing.
veg,
p.F9 of same 10Q
Revenue Recognition
Sales and services are recorded when products are delivered to the customers. Provision for discounts, estimated returns and allowances, and other adjustments are provided for in the same period the related sales are recorded. In instances where products are configured to customer requirements, revenue is recorded upon the successful completion of the Company’s final test procedures. For the nine months ended February 28, 2009, six customers, SA Trading Company, US Asia Trading, Dubai Export Import Company, Fesco Sales Corp., New Century Media and Walgreens, accounted for 99.4 percent of sales.
http://sec.gov/Archives/edgar/data/1201251/000114420409021409/v146656_10q.htm
TJG,
I re-read your post and I respect your right to express your opinion.
My response was not to that opinion, but to the fact that it was rendered based on a hypothetical that wasn't supported by any facts.
There is no way for me to argue sensibly with your opinion without guessing about how the settlement came about and I'll leave that to you. But it seems as likely that a settlement was reached by Spongetech to avoid having to support their sales numbers as it was by Spongables to avoid suffering monetary damages. And they both were probably motivated by a desire to cut legal fees. It's over and I'll bet both parties are happy to see it go.
TJG,
"just for argument sake lets say it went to court"
"remember if it would have gone to court"
It went to court. The settlement was made in court and the "with prejudice" determination was made by the court.
As to whose idea it was to settle, it was everybody's. They agreed not to use each other's nomenclature and Popovsky agreed to mumble apologetically, which will have no meaning if it goes unmentioned in the Post, which it so far has. The best thing to come out of it for all parties is its relatively painless and hasty conclusion.
bucks,
I'd rather not express an opinion that might be interpreted as advice, but I have a few thoughts based on a little experience and a fair amount of research:
Thinking of an SEC investigation as a criminal investigation probably isn't apples-to-apples. So, what a prosecutor might do in terms of filing charges based on evidence gathered may not be the same thing that the SEC might do in a similar situation. The SEC process usually starts with an informal investigation (about which we have not heard) and proceeds to a formal investigation of undetermined duration......I don't think they sense any time pressure at all that would cause them to stop before ALL potential fraudulent activities were thoroughly investigated in order to "bring forth their case" as it related to completed components.
If memory serves, the formal investigation notification was delivered on 9/18. The Commission felt that it was in the interest of current and potential shareholders to suspend trading 2 weeks later, for reasons stated, which would suggest TO ME that they definitely didn't begin the investigation "a bit prematurely". Finally, at the suggestion of another poster, I looked into the recovery rates of companies that have undergone suspensions...my research indicated that they were poor. You might want to do the same to see if you concur....I found everything I needed searching sec.gov.
Then again, your guess is as good as mine.
No problem, outfer.
Note that neither I nor the court offers up a comment on the relative value of the settlements to the parties, naturally. But if that little voice is really telling you that there wasn't a lot of it gained in either exercise, that wouldn't surprise me at all.
Good Luck
Outfer,
You've got the concept right.......the court says that the case(s) can't be brought again. But that shouldn't be viewed negatively here.
Each case is brought based on a complaint related to a given set of facts. These cases were settled (in court, not out of) as to the complaints brought, hence dismissed with prejudice. Nothing precludes SPNG from bringing a new complaint against Spongables should they re-introduce the name "Spongetech" to their website or use any of the terms that they agreed not to use in the original settlement. The term "with prejudice would have the negative implication that you "sense" if the case had been dismissed by the court after a finding that the facts did not support the complaint.
Same deal with GFGU. They AGREED to settle, so the judge basically said "there's no need to do this again as long as you guys agree on this settlement".
hasher,
FYI, here's a sample of a "forged" opinion letter:
http://stockscamarchive.110mb.com/spngscam.pdf
I just realized that when that letter was written (4/17), one might have expected Pensley's letterhead to look like this:
http://spngscam.angelfire.com/pensley.pdf
And it also just struck me that the JP/MA partnership agreement (can't find the link right now) showed only one "current client" as of the agreement date (3/31) and it wasn't Spongetech.
I'm sorry for being so obtuse.
It was not clear to me from your previous posts that you were stating, without any equivocation, that David Patch told you that he directed Kaja Whitehouse to write the initial NY Post article. And I was unaware that that had been discussed between you and he on this board previously. That is now crystal clear to me and I apologize to you and to anyone who may have been left with the impression that you were leaving anything unsaid. It's unfortunate that all that history has gone "poof"
Thanks.
ps. Still don't know what "ubss" means?
4k9p,
Thanks much for your response. I'm afraid that I don't have PM and so cannot respond in kind. I'm too cheap.
But there's a second reason:
The PM doesn't exactly comport with "all i know is what i posted earlier". I don't want to seem ungrateful for the communication in question, but I'm now in the awkward position of keeping a confidence that I don't want regarding an issue that you contend has been made public in the past.
Please consider making the statement that you made to me here, where people can evaluate its credibility for themselves. If, as you say, it has been discussed and acknowledged on the board previously, then no harm no foul. I won't ask twice and I'll not divulge info received in a PM.
ps. What's ubss?
4k9p,
Did DP ever publicly acknowledge (or deny) making that statement to you? If so, can you point me to that, please?
Also, I have not seen any indication that an informal investigation preceded the formal investigation, yet I believe that to be the norm. While it would be unusual for such a thing to be made public, it would be no less unusual than someone directing a reporter to write an article about a company under informal investigation and that fact being reported to David Patch who then reported it to you. Were you made aware at any point that an informal investigation occurred?
Who wanted to see the article in the Post? Given that the first article appeared after the auditor and late filing issues had already sent the stock down significantly, what would the motivation have been for that party to pile on? Was it to create a shorting opportunity or a buying opportunity or both?
Does the sum of your information begin and end with your statement that "i was told by DP that kaja was directed to write that first article"?
I'm not a big fan of coincidence either. Or conjecture, for that matter.
I stand corrected. By me.
The FIRST Post article was on 9/17 (Not Spongeworthy...
SpongeTech mops up books amid SEC inquiry), the day before the company received the formal order of investigation.
The likelihood of that article being the precipitant for the investigation is just as silly, but I was mistaken in my previous post.