Plastic2Oil Inc (PTOI)

[Johnik]

In fact I object to the word "standard" as well.

Care to explain why you "object" to the word "standard"? That doesn't make any sense. The only reason why we got off on this tangent of discussing the applicable standard for assessing foreseeability and materiality is due to this comment of yours:

I'm still smiling about this, even though I get the feeling that you actually meant it to be serious: "Perhaps, but the rule imposes an objective standard (i.e., reasonableness)."

http://investorshub.advfn.com/boards/read_msg.aspx?message_id=68209472

...in which you seem to suggest that I identified the wrong standard for assessing reasonable foreseeability (and subsequently for assessing materiality). You brought up the issue of the applicable standard, and now you object to the term altogether? Okay, how about the word "test"? I assure you that the terms objective "standard" and objective "test" are often used interchangeably, if that is your concern.

Turning to materiality, you then appear to suggest that when the U.S. Supreme Court says, "The question of materiality, it is universally agreed, is an objective one," in actuality means that an objective standard does not apply because courts have applied different variations of the precise contours of the "general test of materiality." Trust me, if the U.S. Supreme Court wanted to hold that an objective standard did not apply, it certainly would not have stated that it is "universally agreed" that an objective standard applies. No matter how hard you dig, I can confidently say you will not be able to find a single appellate authority that states that an objective standard does not apply either to the question of reasonable foreseeability or the question of materiality.

Now to be fair to you (which I will do despite your snide remark), the confusion lies at your misapprehension of the legal issues and terms, not your lack of reasoning. An "objective standard," when used in interpreting, among other things, regulations, is based on perceptions and actions external to any particular person. The question, therefore, is not what any one person would do or think under the particular circumstances at issue, but rather what a fictitious "reasonable person" would do or perceive. A "subjective standard," in contrast, is peculiar to a particular individual (for example, assessing a particular person's intent or state of mind). "Reasonableness", by its very nature, invokes an objective standard.

The issue that you have touched upon in an apparent effort to disprove my identification of the appropriate standard (or test, if you prefer that word) is that different authorities can arrive at different interpretations as to the meaning of a word in a regulation that is undefined. Of course, that happens all the time. But an objective standard nonetheless applies, regardless of the precise definition (or "formulation") that you apply.

To take this a step further, there are many times when "reasonable minds" might arrive at different conclusions when presented with the same information. Applying an objective standard to the issue at hand does not mean that those "reasonable minds" must agree on the outcome. If that were the case, we would have few disputes that would ever go to trial.

Now having explained all of this to you, let's return the comments I made which contained the statement that you wished to mock:

I recognize your point, but, as indicated above, I see the issue differently. Assume, for the sake of argument, that the "recipient" you have identified is an average investor, who is unknown to the company outside that capacity. Then lets disregard my assessment above, and deem the fact of a Wells submission material. Under these circumstances, it really shouldn't matter whether the person disclosing the information actually knew whether or not the recipient of the information would be moved to buy shares. It should nonetheless be reasonably foreseeable that the disclosure of material information to this "average Joe" investor would result in the investor's purchase of shares (or sale in the case of negative information). "Subjectively innocent"? Perhaps, but the rule imposes an objective standard (i.e., reasonableness).

http://investorshub.advfn.com/boards/read_msg.aspx?message_id=68202211

Make sense to you now?

As for this question of yours:

I said "From a purely practical versus legal standpoint, if a Wells Submission has been made, releasing that information one phone call at a time disadvantages those that rely on the public release of information to make their decisions."

You responded:
"I highly doubt that is happening."

This issue was brought about by a poster who posted that "jbi has responded to the wells notice..." well after the 8-K reporting the Wells Notice was filed. I took it to mean that he was advised that indeed there was a response to the Wells Notice, which I interpreted to mean a Wells Submission, and he denied that that is what was meant.....although I can't imagine another interpretation. After all, what response could the company have to the Wells Notice other than a Wells Submission?

Now, after all of this legal back and forth, you are expressing the opinion that "I highly doubt that is happening."
Are you suggesting that the conversation never occurred? Or that the poster was never told that "jbi has responded to the wells notice..."?
What, may I ask, is your basis for that opinion?

I do not know the poster, and I do not know what was actually said, so I certainly cannot describe to you what transpired during whatever conversation took place.

As for the basis of my opinion that I highly doubt that JBI is (quoting from you) "releasing that information one phone call at a time disadvantag[ing] those that rely on the public release of information to make their decisions," I base my opinion on the fact that no one, to my knowledge, has said that someone at JBI told them that the company has filed a "Wells Submission," let alone anyone indicating that such release of information has been occurring "one phone call at a time." Did you call and have someone tell you that a "Wells Submission" has been filed? My guess is no.

Left with this one anonymous person's description of one phone call, which the poster said was not an assertion that a Wells Submission was filed, I have no basis to believe that the company has been releasing this information "one phone call at a time." Apparently you do based on the fact that this one anonymous poster said that JBI "has responded to the wells notice..." Rejecting the veracity of this one poster, for the sake of argument, the inference you are drawing that this "response" was a "Wells Submission" certainly is not unreasonable. However, as you should also know from the SEC manual you linked me to, a "Wells Submission" is largely a term of art, carrying its own specific requirements. A "response," in my view, could be any form of communication responding to the issuance of the Wells Notice. Is a "Wells Submission" required, for example, before a company can request a hearing, propose a settlement, communicate with the SEC in general? I am fairly certain the answer is no.

As you may or may not also be aware, I believe the commission has expressed its opinion that the Wells Submission ordinarily is not the appropriate means to resolve factual disputes, as opposed to those focused on policy and legal interpretations (though as a practical matter I don't doubt that Wells submissions are often used for purposes of disputing the facts). I may be wrong about this, but you can check SEC Release 5130 for guidance, if you like, as I seem to recall that this release contained useful guidance.