Bo's .02...
I'll comment on the response a bit later. It's actually suprisingly good and I'll tell you why. For now I want to sweep something under the rug that frankly I'm sick of seeing and commenting on it.
NSS will NOT be part of this hearing. I'm open to any debate, but with this I simply do not see the Frizzle motion carrying weight or acceptance with the judge. Even if his motion is accepted, in reading the Answer I think it would be a huge distraction given the goals of his effort.
If denied, those that paid their $25 cover charge at the door will need to demand to see his billing records and EACH be reimbursed if his expenses are much less than the Frizzle fund.
Preperation time to file a simple motion would not equal the monies received, unless they show a bill that is questionable.
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THE FILING
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The filing was what I expected for the most part, but 2 things pleasantly surprised me:
1) Maheu and Attorney Stocklein showed prompt action and required dilligence in February...and Attorney Stocklein did THE MOST IMPORTANT thing anyone in business or law can do: A CYA (Cover Your A**) letter confirming a VERY IMPORTANT CONVERSATION. It may not seem like much, but as you can see from the exhibits being submitted to the record, that Atty Stocklein's confirming letter to SEC Special Counsel, Kevin O'Neill on February 16th regarding filing Form 15 and following the reporting protocol of Rule 12g-4(b)!!
This is CRUCIAL, because it was on that same day (2-16-05) that Attorney Stocklein then prepared Form 15 and Urban signed it AGAIN ON THATt SAME DAY! It was filed on 2-17-05.
This letter is KEY evidence because Attorney Stocklein is 100% correct when he goes on to contend that under Rule 12g-4(b), CMKX had SIXTY DAYS (60) from the time of the Form 15 filing on 2-17-05 to report!!
Here is Rule 12g-4(b) for everyone to see what I mean:
~~"The issuer's duty to file any reports required under section 13(a) shall be suspended immediately upon filing a certification on Form 15; Provided, however, That if the certification on Form 15 is subsequently withdrawn or denied, the issuer shall, within 60 days after the date of such withdrawal or denial, file with the Commission all reports which would have been required had the certification on Form 15 not been filed. If the suspension resulted from the issuer's merger into, or consolidation with, another issuer or issuers, the certification shall be filed by the successor issuer."~~
Excellent CYA letter. Excellent argument. The SEC jumped the gun B..I..G.....T..I..M..E in filing their action against CMKX. CMKX still has until April 17, 2005 to report.
WHAT CMKX ABSOLULTEY HAS TO DO NOW IS FILE THEIR REQUIRED REPORTS PRIOR TO APRIL 17, 2005 TO STAY TRUE TO THIS VERY GOOD ARGUMENT!!!! THEY MUST, THERE IS NO OTHER WAY TO MAY THIS ARGUMENT STICK. IF THEY DO, IMO THEY HAVE DONE EVERYTHING IN GOOD FAITH AFTER ATTY STOCKLEIN SPOKE TO SPECIAL COUNSEL O'NEILL ON 2-15-05.
2) The second thing that surprised me is the one small sentence that could prove to be a very effective defense. They prayed this matter should be barred by laches.
I've posted about this many times, and now this is front and center.
Let's face it, the SEC said nothing, did nothing and contacted no one for almost 2 years. CMKX believed that their Form 15 filing in 2003 was correct at that time. It wasn't until February of 2005 that this error was discovered, and discovered by CMKX SIMPLY WANTING TO BECOME A REPORTING COMPANY AGAIN!!
Atty Stocklein in his conversation and letter to Special Counsel O'Neill showed GOOD FAITH. This discussion invloved filing matters and the 2003 Form 15. Atty Stocklein then took Immediate appropriate action to correct this after his discussion with Special Counsel O'Neill.
In reponse the SEC filed their action premature (prior than the 60 days allowed by Rule 12g-(b). But further, they FILED NOTHING against CMKX prior to this time.
If this action is barred, it could very well be barred by laches.
"Laches" are:
Undue delays in asserting a right or privilege compare statute of limitations.
A doctrine permitting dismissal of a suit because a plaintiff's unreasonable delay in asserting a right or privilege has been detrimental to the defendant's ability to make a defense (as by resulting in the unavailability of witnesses or evidence) (a suit barred by laches)
Affirmative defenses are based on this doctrine.
I've said all along, the SEC complied with their filing because they did nothing to say it was in error prior to March of 2005, WHEN CMKX WAS ACTUALLY IN COMPLIANCE ACCORDING TO THE LAW BECAUSE OF THEIR FEB 2005 FORM 15 FILING.....AND THE CYA LETTER.
These 2 points are points are very good ones which have sound legal basis. They are certainly still within 60 days of February 17th. They need to report by February 17th and stay focused on this hearing and not get caught up in the issues trying to be raised by John Martin in his motion to intervene.
Bo
