I accept there is a "need for caution"... but, really, the degree of caution we are seeing exercised here now mostly suggests that the SEC probably got it exactly right... even if they did get it right for the wrong reasons (which I doubt).
As long as we're speculating...
You are suggesting a situation in which there is an effort being made by a member of the management, or a faction of the board, or a single board member, who is purposefully "under-informing" the company's lawyers... for purpose ? Or, suggesting a situation in which there is an effort being made in "biasing" the information the lawyers are given... however that is accomplished... in order to also bias the outputs the lawyers provide by biasing the inputs ?
Lying to the lawyers... to get purposefully incorrect advice... to justify doing something wrong ? How could doing that EVER be proper... or ever be in the best interest of the shareholders, rather than in the unique interest of the liar... or those who are helping in "motivating" him to act as it seems he is ?
This is CLYW... so, you always have to be concerned about the nature of "motivation" that might be supplied...
A board member or an executive who was doing that in order to elicit some specific but incorrect bits of advice from the lawyers that were hired, which is then intended to be presented and used to knowingly mislead the board of directors ? So, the legal advice was being paid for by and obtained "for the company"... and these are the company's lawyers ? Their advice is being passed along by one person to the board of directors for their action, but that advice is being "shaped" by the incomplete nature of the information exchanged... or by a bias in the "truth value" of information being provided to them ?
Then, with the lawyers having been provided some deliberately incorrect or incomplete information... they'd perhaps be induced to provide some deliberately incorrect advice... which the board member or executive would then expect the board to act upon ?
Yikes. And, WOW!!!
Yeah, doing that would clearly enough be "wrong". Obviously, using company $ to enlist lawyers whose purposefully skewed advice was intended to be used to perpetrate a fraud on the board... I'd say that would obviously enough be likely to create a problem or two.
IMO, anyone who lies to his own attorney that way, expecting to enlist and involve them that way in perpetrating a fraud... is either "stupid" or "guilty"... and those two are obviously categories that are not mutually exclusive. IMO, any attorney who ignorantly manages to get enlisted in enabling that sort of an effort in hijacking the proper governance of a public company... is similarly either "stupid" or "guilty"... without the categories being mutually exclusive.
If the lawyers were participating knowingly, while engaged in a "wink, wink, nudge, nudge, know what I mean" sort of thing ?
I'd guess that the SEC wouldn't tend to think too highly of that sort of thing.
But, the question was "is it self dealing" on the part of the board member or executive?
Doing that above in order to have the advice being solicited provide a clear individual benefit for the board member or executive, even if it is in fact counter to good governance practices, and against the best interest of the company ?
Yeah. I'd say that sort of an effort would clearly enough constitute self dealing. Obviously, that sort of thing would HAVE to be self dealing if there were "any" unique personal benefit that was dependent on it, or any that might reasonably result from the "shifts" that were expected to be enabled by the effort in misrepresentation... or by the use of the products of that effort in misrepresentation... in perpetrating a fraud. Using the company's money first to mislead the company's attorneys... and then using the company's attorneys to mislead the board ? Seems to me you'd not ever be able to do that... and there wouldn't ever be a reason to do it... without there being a compelling enough self interest in play that self interest was being allowed to trump the shareholders interest, and the larger public interest in proper governance... and avoidance of fraud.
Otherwise, I agree with you that whether or not that defines "self dealing"... that narrow concern in defining a specific element of what is wrong with it... when it is so grossly wrong... isn't really close to describing the full nature of or any limit in the problem.
I'd still want to know a lot more about what ELSE was going on... that might have enabled a board member to think that conducting that sort of a fraud would be a good idea...
I'd wonder if perhaps the effort that was being made... was one that was intended to enable subverting some portion of an ongoing legal process ?
Was the board member... bribed... some how ? Coerced ?
If the board member in question wasn't working to advance the shareholders interest... whose interest were they working to advance ?
Maybe someone tried to bribe a board member to try to get them to agree to and champion some lousy "deal"... or some settlement that wasn't reasonable... and that wasn't close to being in the shareholders best interest...
If not in shareholders interest, whose interest would it be in ? You couldn't possibly know without also knowing what exactly it was that was being considered... and who was involved in, or behind... whatever it is or was ?
Perhaps events we CAN see... show some were persisting in making some effort... even though it wasn't ever going to be possible for it to be agreed to by a majority of the board ?
I have no clue what the company might have been talking about with Daic's lawyers, recently... or with T-Mobiles... or with any others...
I think this makes the recent delays in the court case vastly more suspicious...
I do think it is wildly unlikely, though, that there would be "no connection" that existed between these sorts of "problems" taking place here AGAIN... and the ongoing disputes over the patent and its ownership...
Given the value in play and the apparently renewed appearance of corruption in the management of the effort... my first questions, and my primary interest are to know: where is the corrupting influence originating ?
I'd want to know more about the particular lawyers involved... and who else they know in common with the ones who hired them.
I'd want to know more about any settlement talks or "deals" that were being discussed...
It will obviously matter whether the lawyers were innocent and selected randomly... or were selected (by who ?) because it was known that they'd be willing to cooperate in conducting that sort of an effort in hijacking the governance of a publicly traded company, knowing the government was already watching them ?
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