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Sunday, 11/04/2012 12:15:21 AM

Sunday, November 04, 2012 12:15:21 AM

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INTERESTING on what I found for this as Sharp is very Anti-Scam & I am sure he would also agree on SGLN Scam imo:

Just found this article online.
Is This Man A MasterMind or a Joker?

Just when we thought we have established a credible link between George A. Sharp/Helischauer and, the general consensus is that we have not provided enough evidence to truly marry the two. Although we have presented several coincidental connections, the tell-tale sign of the link between Mr. George A. Sharp/Helischauer to has been positively confirmed. Our DNS (Domain Name System) search of the October 2009 URL formation of shows it was formed by none other than George A. Sharp, Inc. Armed with this evidence, we find it interesting that anyone can say there is absolutely no connection between the two.

Strangely enough, in looking at the lawsuits filed by Mr. George A. Sharp/Helischauer, they all seem to be within driving distance from his home base in San Diego and close to where David Harter, his attorney is based in Tustin, California. Ironically, his lawsuits are only filed in San Diego, Orange County and Los Angeles. Coincidentally, George A. Sharp/Helischauer has lived in all three cities since moving from his Canadian homeland. Canada, by most accounts is in a dead heat with Irvine, CA and Boca Raton, FL as the Pump and Dump capital of the world.

It is our belief that unless you are putting yourself out there as a non-profit entity, the purpose of a commercial website in today’s Internet world is to make money, by any means, one way or another. Is a non-profit entity? NO! What is’s purpose? According to the site’s own disclaimer, they say “ is a free public service financially supported by its publishers who are simply sick and tired of penny stock scams designed to take advantage of those susceptible to get-rich-quick schemes”.

A quick once-over and you would think that as “a free service” they would indicate that this site is a non-profit. However, makes the ambiguous statement that “ is owned by a corporation registered in the Country of Nevis” and never gives the name of this alleged corporation nor any of the ownership structure as required by Reg. FD. There is simply no evidence linking ANY foreign entity to the ownership of the domain or hosting of The portion of the statement “a free service financially supported by its publishers” is also interesting, as it refers to publishers in plural, as if to say that there is more than one person publishing stories for the site and these publishers are paying a fee to have be a distributor of their stories. If that is the case, then why has this fact also not clearly disclosed, as required by Reg. FD?

Furthermore, if this site is “financially supported by its publishers” as its only source of revenue, then why is selling advertising space “for as little as $60.00 per month”? Are their “publishers” also their advertisers? Interestingly, as of January 20, 2012, it appears has begun placing ads on the site for companies that can build your business credit and pre-promotion stock picks. It will be interesting to see if this monetary compensation is properly disclosed under Reg. FD. I doubt it.

It’s hard to believe that a business model orchestrated by a man who thinks of himself as some sort of god could be so morally irresponsible as to call his plan “a work in progress.” George Sharp/Helischauer likes to call himself a stock fraud “crusader for justice”. Unfortunately, none of the evidence supports the theory of a business plan that is a work in progress. Evidence points to a business model that has a deeper more devious agenda. Fiction is stranger than fact. Where does fact end and fiction begin?
George A. Sharp/Helischauer has made a career of instilling fear in shareholders of small public companies based on little or no facts, but has a big budget for fiction. It is further evident that with the introduction of his imaginary friend, the Nevis Corporation as an alleged unverifiable owner of, he can invoke even more fear and doubt in the investment community. The implied third-party credibility is a vehicle to disseminate even greater fiction and destroy small thinly-traded public companies and evaporate the investment value of real, honest to God, hardworking investors. There is little to no regard for the truth.
When is someone in law enforcement going to stop this predator?
Let’s present some additional evidence bridging the connection between George A. Sharp/Helischauer and and also offer a few scenarios on how this scam partnership can make money. Then you can decide for yourself.
On March 26, 2011 issued their first public announcement on Corestream Energy (ZLUS). The only significant event with ZLUS that would justify a story on the site was a trading suspension imposed by the SEC on 3/31/2011 through 4/13/2011. The only other connection was that the address for the Company was Tustin, California.

Then, on March 31, 2011 issued their second public announcement on Medical Marijuana (MJNA). The only real event that occurred during this period was the merger with CannaBANK and now is located in San Diego, CA. During that period the volume increased over 300% and the stock price moved over 400%.

On April 6 through April 8, 2011 issued a series of public announcements on a little known Los Angeles company called Cord Blood America(CBAI)-Why CBAI? Was CBAI being heavily promoted at the time? According to’s very own “Hall of Fame” archive engine, they are not even listed. Because of this fact, one can only surmise that this can’t be the reason for the article being posted on the site. What could be the commonality? According to the site that George Sharp/Helischauer created about Michael Osborn, our investigative consultant, several of George A. Sharps/Helischauer’s postings have made reference to Michael Osborn and William Welsome. Further, Stephanie Schissler (the wife if CBAI CEO Matt Schissler) and Sandra Flinn (the mother of Stephanie Schissler) have a judgment for over $1 million against Mr. Welsome and his affiliated companies for Fraud, Constructive Trust, Conversion and Rescission. According to a source formally associated with the Law Offices of Shaub & Williams LLP, who represented Mrs. Schissler in the legal matter, in 2010 George Sharp/Helischauer contacted both Mr. and Mrs. Schissler in an attempt to persuade an assignment of the judgment held by Mrs. Schissler against William Welsome. Mr. George Sharp/Helischauer’s pitch was to garner the assignment and then collect using his Internet bully tactics and he would split the proceeds of what he collected. According to this source, the Schisslers declined this devious offer, which if nothing else, appears to be a great motive for the timing of the story.

Here is where it gets interesting. On April 11, 2011, issued a public announcement on Cuba Beverage Company (CUBV). According to time and sales logs, from April 4th through April 21, CUBV traded over 12 million shares in a price range of .325 to .05 per share. Prior to April 4, the stock of Cuba Beverage had limited trading activity as it appears to have been a dormant public company. Coincidentally, on April 22, 2011, Mr. George A. Sharp/Helischauer filed a lawsuit against Cuba Beverage in San Diego Superior Court making such claims against CUBV as fraud and negligent misrepresentation.

Continuing the pattern, on May 12, 2011, issued a public announcement on Writers Group Film Corp.(WRIT) According to time and sales logs, from May 10 through May 17 WRIT traded over 350 million shares in a price range of .07 to .0309 per share. Prior to May 10 the stock of Writers Group had limited trading activity as it also appears to have been a dormant public company. Yet another strange coincidence: on May 16, 2011, Mr. George A. Sharp/Helischauer filed a lawsuit against Writers Group Film in Los Angeles Superior Court with the identical complaint he had just filed a month earlier against CUBV in San Diego Superior Court.

Almost one month later, on June 9, 2011, issued a public announcement on Forex International Trading Corp.(FXIT) According to time and sales logs, from June 7 through June 17 FXIT traded roughly 2 million shares in a price range of .158 to .10 per share. Prior to June 7 the stock of Forex International had limited trading activity. Again, it appears to have been a dormant public company. Yet again another strange coincidence: on June 13, 2011, Mr. George A. Sharp/Helischauer filed a lawsuit against Forex International Trading Corp. (FXIT) in San Diego Superior Court, again with the identical complaint he just filed earlier against CUBV and WRIT.

Another connection between Mr. George A. Sharp/Helischauer and FXIT is a lawsuit filed in October 2009 by George A. Sharp v. Yasheng Echo-Trade. Are there other connections between Mr. Sharp/Helischauer , Forex International Trading and Yasheng Echo-Trade? Well, it appears that the CEO of FXIT, Mr. Darrin Dunckel was also a named defendant in the lawsuit filed by Mr. George A Sharp/Helschauer against Yasheng Echo-Trade. The case was originally filed in San Diego but in January 2010, Yasheng Echo-Trade was granted a motion to transfer the lawsuit to Los Angeles. In June 2010, the lawsuit was settled out of court for $25,000.00. The terms of the settlement were specific:

“On June 2, 2010, the Company entered into a settlement agreement and release of claims (the “Agreement”) with Sharp for the purpose of resolving the Case. Under the terms of the Agreement, the parties agreed to settle the action pursuant to which the Company will pay Sharp $25,000 (the “Funds”) on or before June 3, 2010. Upon receipt of the Funds, Sharp will provide an executed Request for Dismissal with prejudice. Additionally, Sharp has agreed to cease and desist from contacting shareholders of the Company and communicating in any manner regarding the Company.”

We spoke with attorney Michael Goch, who was the attorney who represented Yasheng Echo-Trade in the settlement with George Sharp/Helischauer. Mr. Goch was very helpful and frankly very interested in the breach of confidentiality as it related to the settlement entered into in good faith by his former client and Mr. Sharp/Helischauer and ultimately the subsequent non-approved posting on about his former client. Now we understand why Mr. Sharp/Helischauer is so adamant about not being connected to Unfortunately for George Sharp/ Helischauer, I don’t think his abusive use of “Freedom of Speech” will protect him from his breach of contract with Mr. Goch and Yasheng Echo-Trade.

So how can George Sharp/Helischauer be making money off of this scam partnership between himself and The easy way out would be to accuse him of shorting the stock when in all actuality, anyone that has ever met the man knows that he alone is not capable of 1.) Having the knowledge to short a penny stock; 2.) Putting up enough capital in a prime broker account to actually execute a short order and 3.) Has the mental capacity to single handedly design, implement and execute a short strategy business plan that can be profitable.

Based on the evidence presented in this story, we have concluded, it is more plausible that George Sharp/Helischauer makes money by disseminates negative information through on companies that have just initiated heavy promotional campaigns. He then piggy backs off this very expensive marketing technique already paid for by the promoters of these companies. Based on his negative posted press, the stock price on these companies quickly plummets, which is when he buys and because the low was artificially created, the stock normally rebounds close to its original value, which is when he quickly sells and makes a tidy little profit. In the event the stock price does not rebound as anticipated and depending on the geographic location of the company, George Sharp/Helischauer then initiates a lawsuit against the company for fraud and misrepresentation among other causes of action. This has been confirmed by the lawsuits he has filed in San Diego, CA, Orange County, CA and Los Angeles, CA.

To professionally pull off this type of scam, the partnership between George A. Sharp/Helischauer and would require someone with knowledge of both equity trading and stock promotion and as we have said before, George A. Sharp/Helischauer does not have the wherewithal to pull this off on his own.

While researching facts for this story, we asked Michael Osborn to research any connection between George Sharp/Helischauer and investment professionals that may be capable of perpetrating this type of scam and here is what he came up with. He recalled being introduced to George Sharp/Helischauer in 2004 by Christopher J. Benz. Mr. Benz is a suspended former registered principal who held positions at several FINRA registered firms. Michael stated that “Chris and I worked together on the Victory Capital transaction where he introduced me to George to work for our OnDemand subsidiary. Up until recently, I did not want to believe that Chris had anything to do with George or George’s manipulative misdeeds after the introduction. Given the lengths George has gone to destroy lives, I think we need exhaust every angle till we can see the complete picture and know the entire story.”

One other connection with George Sharp/Helischauer and the investment community is his relationship with Morris Fox. He used Mr. Fox as an expert witness in the case Sharp v Victory Capital Holdings Corp. to validate the value of the options alleged owed to Mr. Sharp/Helischauer by Victory Capital.

Mr. Fox is also an investment professional that had been a suspended registered principal back in the 1970’s. It is truly amazing that our judicial system does not do background checks on people that are used as expert witnesses.

Is George A. Sharp/Helischauer the only connection between Christopher J. Benz and Morris Fox? Is there a further connection between Christopher J. Benz and Morris Fox that can help shed light on the George A. Sharp/Helischauer relationship? In our research we discovered that both Christopher J. Benz and Morris Fox worked for the same firm (Norcross Securities, Inc) from 1993 through 1994. Both Mr. Benz and Mr. Fox have the financial background to help George Sharp/Helischauer perfect this type of scam.

According to George Sharp/Helischauer “I'm going to say this over and over again as I post to this blog: Do not buy penny stocks as you will lose almost every time. And never, ever buy stocks which are promoted by email or otherwise. These are scams 100% of the time. The perpetrators of these scams are in it for themselves and want your money.” Does that mean that we won’t be seeing Mr. Sharp/ Helischauer file any more frivolous lawsuits? Does this confirm by his own admission that he never actually purchased ANY stock of the companies he sues because as he puts it “these are scams 100% of the time” or is he saying that he is “susceptible to get-rich-quick schemes” and therefore has no business being an investor because he has a susceptibility problem himself and needs help? You decide….

Posted by Abuse of Law at Sunday, January 22, 2012 Email ThisBlogThis!Share to TwitterShare to FacebookLinks to this post
Labels:, budos pecsa, Chris Benz, Cuba Beverage, David Harter,, FBI, george helischauer, George Sharp,, Morris Fox,, VYEY

Saturday, January 14, 2012Truth Is In The Eye of The Beholder


Truth Be Told-Part II
By Michael Osborn

I originally posted this article on January 12, 2012 with a copy of a letter written by George Sharp/Helischauer to an Orange County attorney. I was asked to hold off on posting the letter because Mr. Sharp/Helischauer threw a bitch-fit about its contents being shared with the online world. I find it ironic how he can post half-truths about people and have NO problem with it but as soon as someone fires back at him with provable facts, he has a hissy fit. Well, based on the fact that Mr. Sharp/Helischauer took a year of my life which drastically affected me and my family, I decided to clean up the content of my article and re-post the information without the attached George Sharp/Heischauer letter and I removed specific names until we receive formal written approval from all parties to post, which we will have in hand the week of the 16th . Happy reading.
Let Mr. Sharp/Helischauer delusions continue…
On Tuesday, December 27, 2011, an email with an attached letter was sent from George Sharp/Helischauer to an attorney in Orange County.
According to the letter, the subject was Sharp v Cuba Beverage Company et al. San Diego Superior Court Case No. 37-2011-0090093-CU-FR-CTL . After reviewing the complaint and the subsequent court filings, it is obvious that the case is without legal merit. I guess this lawsuit confirms that any joker with $125 bucks can file a lawsuit, with or without a legal foundation. If you have not had an opportunity to review the complaint (see above link), I suggest you carve out some time and get ready for some comedy. I will present the facts as I understand them to our readers and then let you decide.

April 22, 2011: George Sharp/Helischauer sues Cuba Beverage claiming he lost money buying Cuba's stock. Unfortunately for him, he omits to state how many shares he bought, when he bought them, what he paid for them and how much he lost on this investment. Despite the judge ordering him, two times, to amend his complaint to be more specific, he refused to do so. According to an attorney close to the matter, when Mr. Sharp/Helischauer was asked for the specific information, he told the defendants that they will only find out in discovery, which is obviously displaying suscpicious behavior. When a subpoena was served on TD Ameritrade, which is George Sharp's broker, he filed a motion to quash the subpoena. When the demand for production was due which required Sharp to provide copies of his confirmations, Mr. Sharp/Helischauer who has been acting In-Pro-Per, had his attorney file an anti-SLAPP motion to freeze discovery.
Our research has shown that the majority of Mr. Sharp/Helischauer's lawsuits appear to be cookie-cutter. This includes the lawsuits filed against Cuba Beverage, Writers Group Film, Yasheng Eco Trade, and Arena Pharmaceuticals. In each lawsuit, George Sharp/Helischauerrefuses to say who, how, when, where, and how much he lost on his investments. These facts are required to establish foundation surrounding the claim and are normal for the plaintiff to provide to support his complaint.

What is the reasonable conclusion? Why is Mr. Sharp/Helischauer withholding these simple foundational facts?

Based on the fact that George Sharp/Helischauer is not willing to provide this simple, yet required information, one can safely argue that George Sharp/Helischauer either never bought any stock of Cuba Beverage or that of any of the other companies he sued or if he did make a purchase, it was a miniscule amount. This supports our continued claim that Mr. Sharp/Helischauer is a frivolous lawsuit filer and will soon be formally deemed a vexatious litigant with the California Supreme Court.

Because it is hard for me to believe that anyone could willfully be this devious and schrewdly waste the courts valuable time, I would love to be wrong about Mr. Sharp/Helischauer buying stock in the companies he sues. Based on Mr. Sharp/Helischauer own actions, I highly doubt I am wrong. One solution to prove me wrong would be for Mr. Sharp/Helischauer to post on or ALL of his trade confirmations for Cuba Beverage and Writers Group Film. I will eat crow and issue a public apology to Mr. Sharp/Helischauer if he can factually prove that he purchased a reasonable amount of stock that would merit his litigation. We all know that one thing Sharp is good at doing is posting on his webblogs, perhaps this time his post could actually be supported with factual information...we doubt it though!

George Sharp/Helischauer has no problem posting links to complaints he has filed which he knows will negativly impact the stock price nor does he have a problem posting personal information about the insiders of these public companies to scare the investment public and therefore depress the stock price even further. If Mr. Sharp/Helischauer truly has no problem with full disclosure then why would he not be willing to post proof of his purchases and therefore his losses? He can even block out his account number and his address on the confirmations if it makes him feel better. No problem! Just prove us wrong!

If he does NOT post his confirms then there is only one reasonable and logical conclusion; George Sharp/Helischauer is a fake and his lawsuits are total frauds filed to manipulate the price of thinly traded micro-cap companies for his own financial benefit.

Alhough I would love to continue getting into the legal merits of the complaint (or lack thereof) and the viability of George Sharp/Helischauer being able to maneuver his way around a courtroom during an actual trial, I think I will leave the "lawyering" up to real attorneys and just focus on specific contents of his letter.

Unfortunately, in Mr. Sharp/Helischauer letter, instead of spending time on his supposed subject of Cuba Beverage, he decided to devote most of his letter to slamming me, including discussing my ability to pay may legal bills. Now, I’m a big boy and have a thick skin especially after being imprisoned for a year while paying my "debt" to society, so I can take his self-indulgent rants. He tried to scare the Orange County attorney by inferring that one of my former in-house attorneys left the State of California because of his conduct based on how I manipulated him and his actions. The reality was that because of his religious beliefs and changes occurring in his family, moving was the option they felt was better suited for their lives and family. George Sharp/Helischauer's attempt at an underlining scare-tactic is best!
My issue here is what does any of his rants about me have to do with Cuba Beverage?

He further whines on about the disposability of my attorneys and names my formal criminal lawyer Evan Ginsburg. He states that "I throw my attorneys under the bus after I no longer find them useful". It truly amazes me how Mr. Sharp/Helischauer believes his own delusional BS. You see, Evan Ginsburg who represented me in my criminal trial, became my attorney in January, 2010. While acting as my attorney in my on-going criminal trial (which included George Sharp/Helischauer as one of the States proposed witnesses) Mr. Ginsburg assigned a third-party judgment in favor of Mr. Ginsburg over to George to go collect. At that time, Mr. Ginsburg had both a legal and ethical responsibility to recuse himself as my attorney but neglected to do so. Mr. David Harter, as Mr. Sharp/Helischauer's attorney in both the criminal matter and the assignment of the judgment also had an ethical responsibility to notify all of the parties of this conflict. At the very least, David Harter is guilty of culpable negligence. The statement “he has a tendency to throw his attorneys under the bus” is not entirely factual. How would you have felt about such a collaboration? With that being said, I did make sure to protect my legal rights and “toss” a formal complaint regarding this matter into the California Bar Association and the American Bar Association.
Again, I wonder...what does this have to do with Cuba Beverage?
Mr. Sharp/Helischauer continues his “know-it-all” attitude by admonishing the Orange County attorney saying, “Finally, you seem to think that you have made the discovery of some great conspiracy in naming me with an AKA of George Helischauer. If you wish to list the name properly, you need to list it as an FKA, as my name was legally and properly changed within the courts in 1997 and is listed as George Sharp with the Social Security Department, DMV and other authorities.” For starters, who the heck is the Social Security Department? Did he mean the Social Security Administration? You can tell that in the following line, he uses his words very carefully “you need to list it as an FKA, as my name was legally and properly changed within the courts in 1997” What does the phrase “within the courts” mean? Does he mean his name change was formally accepted and decreed by the courts? Well, we have gone through every civil and criminal document available through Pacer and WestLaw as well as hired a private detective and based on our research, there is no such document publicly listed proving his name change “within the courts” . The following is the report we received referring to his California Department of Motor Vehicles Report and Consumer Report from our Private Detective:

It's peculiar because in 1997, Mr. Sharp/Helischauer lived in California and according to the California Courts, Judicial Branch of California, he would have had to follow several specific steps including a public announcement of his proposed name change and a formal hearing on the matter. If the name change was approved then the court would give him a decree finalizing his name change. According to the Pacer case locator, our thorough search of every national court record resulted in NO such specific steps ever being documented.

Could he have tried to do a common-law name change? According to Wiki “In California the "usage method" (changing the name at will under common law) is sufficient to change the name. Not all jurisdictions require that the new name be used exclusively.[13] Any fraudulent use or intent, such as changing the name to the same name as another person's name, may invalidate this type of name change.
Specifically in California, Code of Civil Procedure § 1279.5 and Family Code § 2082 regulate common law and court decreed name changes. Code of Civil Procedure § 1279.5 (a) reads, "Except as provided in subdivision (b), (c), (d), or (e), nothing in this title shall be construed to abrogate the common law right of any person to change his or her name." Subdivisions b through e preclude one from changing their name by common law if they are in state prison, on probation, on parole, or been a convicted sex offender. If a person is not in any of these categories, then a common law name change is allowed. Family Code § 2082 also specifically states, "Nothing in this code shall be construed to abrogate the common law right of any person to change one's name."

Official Registration

A legal name change is merely the first step in the name-change process. A person must officially register the new name with the appropriate authorities like the Social Security Administration,whether the change was made as a result of a court order, marriage, divorce, adoption, or any of the other methods described above. The process includes notifying various government agencies, each of which may require legal proof of the name change and that may or may not charge a fee. Important government agencies to be notified include the Social Security Administration,[14] Bureau of Consular Affairs[15] (for passports), the United States Postal Service,[16] and the Department of Motor Vehicles (for a new driver's license or state identification card). Additionally the new name must be registered with other institutions such as employers, banks, doctors, mortgage, insurance and credit card companies. Online services are available to assist in this process either through direct legal assistance or automated form processing.

If Mr. Sharp/Helischauer is claiming the “Usage Method”, then why in 1997 did he register a new Delaware corporation under the apropos name, George A. Helischauer, Inc.?

Further, why in November of 2006, did he have a Federal Tax Lien in the amount of $85,277.00 in favor of creditor the “Internal Revenue Service” attached to the name George Helischauer, not George Sharp?

If in fact Mr. Sharp/Helischauer is unilaterally operating under his statement of “my name was legally and properly changed within the courts in 1997” then why in 1991, did he register Select Database Corporation, a California company and list the officer of the corporation as George A. Helischauer? According to Dun and Bradstreet he was listed in this position through March 2006. Was George operating as both George Helischauer and George Sharp at the same time?

In December 2003, Mr. Sharp/Helischauer signed a Service Agreement with Victory Capital Holdings Corp. now known as Victory Energy, as a contractor to act in various CEO roles for the company and its affiliates under the name George Sharp. Victory Capital is a public company that I helped form and sat on the Board of Directors of for several years. Mr. Sharp/Helischauer stated when counsel was preparing the agreement he had to be a contractor because he was not a US citizen. According to his agreement with the company, he never disclosed under Reg. FD an AKA or FKA regarding his alleged 1997 name change. To act in an executive role of a public company that is fully reporting to the SEC, one would think that the executives AKA or FKA would be an important disclosure requirement prior to executing an agreement.

The true acid test for George Sharp/Helischauer will be to produce a true and legal copy of his Passport to the court (which we will be requesting). Last week, I have forwarded Mr. Sharp/Helischauer's letter which offered an explanation regarding his name change to U.S. Immigration and Customs Enforcement (ICE) in a hope that they can shed some light on this overly confusing matter.

Finally, in his letter, Mr. Sharp/Helischauer complains about how we obtained his credit report, as if we did some illegal deed. First, it is a matter of public record and stamped by the court as discovery in the eviction action filed by Ms. Aniko Kaye against George Sharp. Also as a matter of public record are all of his 2006 Wells Fargo bank records. These records are stamped as evidence as well by the court and made for a very interesting read. Ironically, he used these records to support his alleged sham claim to the court that he had to move from the slums of Beverly Hills/Los Angeles to La Jolla and because of this move, his rent jumped to $2,000.00 a month at 7660 Fay Avenue, Suite H122 La Jolla CA 92037 (which the court now knows was and is nothing more than a UPS store). Is UPS charging a lot more these days or is someone trying to manipulate the court and play more games with peoples lives? Hmmm...

So after reading Mr. Sharp/Helischauer's letter, I can safely say that it had very little, if anything at all to do with Cuba Beverage and was more about his fixation with me, Michael Osborn aka Michael Osborn Ison. The fictitious world that Mr. Sharp/Helischauer has spent so much time creating now appears to be crumbling around him. As my friend continues to tell me, far too often, people lie when the truth fits so much better.

You live by the sword, you die by the sword.
Posted by Abuse of Law at Saturday, January 14, 2012 Email ThisBlogThis!Share to TwitterShare to FacebookLinks to this post
Labels:, cuba bev, drudge report,, FBI, george helischauer, George Sharp, IRS, SEC, stock fraud, stock promoter, usag, writers group film

RE-PRINT-Lawyers SLAPP Back!

Read Supporting Article
As I sat at my desk this weekend researching facts for an up-coming speaking engagement, I came upon several great articles on SLAPP and I deceided to share them with our readers.

The one to the left is a report written by Dr. John Daab, a Certified Fraud Examiner and the below article was written by Lisa M. Chait and Harry W.R. Chamberlain II. In reading the article, I began to feel like I was reading the other teams playbook. In my experience, this is but the same tactics used by George Sharp/Helischauer his abusive legal quest.

Enjoy the article below. It is a long read but very insightful.

Published Articles
From the website of:

Lawyers SLAPP Back!

Legal advisors have standing to challenge third party derivative tort suits under Code of Civil Procedure § 425.16 Introduction - The Rising Tide of Third Party Claims Against Lawyers.

You consider yourself a careful attorney. You regularly attend risk management programs sponsored by your professional liability insurer, and seminars on cutting-edge ethical issues at local bar association meetings. Your office maintains the latest computer software for calendaring important deadlines. And you take full advantage of the vast array of electronic technologies that keep your clients instantly informed about the progress of their cases and transactions. So you think you’re doing all that you can to prevent lawsuits involving your practice Well, think again! According to data compiled by the Los Angeles County Bar Association-sponsored legal malpractice insurance program and the ABA’s Standing Committee on Professional Liability, the risk of claims by third parties (people you do not represent) is at an all-time high. Today, the biggest threat of litigation facing a lawyer practicing in Los Angeles is not a malpractice claim by his or her client – it is a malicious prosecution action by the disgruntled opposing litigant who was named as a party in that client’s unsuccessful prior lawsuit. Malicious prosecution is a “derivative tort” claim – a secondary lawsuit that targets opposing parties or their legal advisors for conduct and communications that occurred during the course of another legal action. During the past two decades the California Supreme Court has closely circumscribed the “disfavored tort” of malicious prosecution and similar derivative torts. For example, the Court recently abolished tort liability for “spoliation of evidence,” opting instead to defer questions of appropriate sanctions, evidentiary inferences or jury instructions to trial judges in the original case in which the evidence was allegedly lost or destroyed. (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 18-19.) Thus, when a lawyer or some other “non-party” allegedly despoils or conceals relevant evidence during the course of pending litigation, the antidote is not another round of derivative litigation; instead, the exclusive remedies are monetary sanctions, professional discipline, contempt and criminal law deterrents, such as prosecution for obstruction of justice. (Temple Community Hospital v. Superior Court (1999) 20 Cal.4th 464, 470.) While some critics have called for eliminating malicious prosecution altogether in favor of other alternative remedies and sanctions, the theory remains. And in spite of their “disfavored” status, at least statistically speaking, malicious prosecution and other derivative claims continue to spawn secondary lawsuits against members of the legal profession. Lawyers, armed with recent legislation and judicial decisions, are fighting back however. Under the anti-SLAPP statute (Code of Civil Procedure § 425.16), legal advisors now have standing to challenge an action for malicious prosecution at the inception of the lawsuit by way of a special motion to strike. Unless the plaintiff establishes that there is a “reasonable probability” of success on the merits, the case is dismissed – and the prevailing defendant is entitled to recover attorneys’ fees. This article explores favorable trends in defending derivative tort claims and, hopefully, avoiding them in the first place. How the Anti-SLAPP Statute Operates to 'Screen' Derivative Tort Suits.

What is a SLAPP Suit? “SLAPP” stands for “strategic lawsuit against public participation.” Courts have adopted this acronym for any lawsuit filed primarily to chill the defendant’s exercise of First Amendment rights – such as free speech, petitioning a government body for redress of grievances, or pursuing legal remedies in a court of law. (See Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1109, fn. 1 (Briggs).) SLAPPers are not necessarily concerned with “winning.” The primary motivation of the SLAPP suit is to punish those who exercise their First Amendment rights or to obtain an economic advantage over the defendant rather than vindicate some legally cognizable right. (See Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 816 (Wilcox).) While most SLAPP suits are ultimately unsuccessful in enforcing any valid legal right on behalf of the plaintiff, they often “succeed” in other areas. This is because defending a SLAPP suit – even when there is a strong defense – requires a substantial investment of money, time and personal resources of the “SLAPPed” defendant. This “chilling” effect is not confined to those who are the targets of a SLAPP suit. Other parties who are similarly situated, and their lawyers, may also be “chilled” in the free exercise of their rights for fear of becoming the targets of future litigation. SLAPP suits thus often masquerade “as ordinary civil claims such as defamation, conspiracy, malicious prosecution, nuisance, interference with contract and/or economic advantage, as a means of transforming public debate into lawsuits.” (Wilcox, supra, 27 Cal.App.4th at pp.816-817; Elizabeth Pritzter & Mark Goldowitz, GUARDING AGAINST THE CHILL: A SURVIVAL GUIDE FOR SLAPP VICTIMS (1994-present) at pp. 2-3 [California Anti-SLAPP Project website at].) The ‘Anti-SLAPP’ Statute. Code of Civil Procedure section 425.16, the so-called “anti-SLAPP” statute, was enacted in 1992 and has been broadened by amendments in recent years to provide the targets of a SLAPP suit with a special vehicle for the early examination and disposal of meritless suits. The anti-SLAPP statute is a “screening” procedure requiring a plaintiff who brings an action arising out of protected speech or petition activity, at the outset of the SLAPP suit, to “make a prima facie showing [verified under oath] which would, if proved at trial, support a judgment in [the plaintiff’s] favor.” (Code Civ. Proc., § 425.16, subd. (b).) Once the moving defendant has demonstrated that the plaintiff’s cause of action arises from free speech or petition activity, “the burden shifts to the plaintiff to establish a probability that the plaintiff will prevail on the claim.” (Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907.) This screening mechanism operates like a nonsuit or summary judgment motion “in reverse;” if the plaintiff cannot satisfy the burden of proving a prima facie case under oath, then the SLAPP-defendant is entitled to dismissal of the SLAPP suit, and an award of his or her attorneys’ fees and legal costs necessarily incurred in defending the action. (See Briggs, supra, 19 Cal.4th 1106 at pp. 1111-1123; Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 644; Code Civ. Proc., § 425.16, subd.(c).) Section 425.16 thus provides for “fast and inexpensive unmasking and dismissal” of frivolous and improperly motivated claims that are subject to the statute. (Wilcox, supra, 27 Cal.App.4th at p. 823.) As amended in 1997, section 425.16(a) “declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the Constitutional rights of freedom of speech and petition for the redress of grievances. . . . [I]t is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.” Heeding the Legislature’s command to broadly construe the statute, the courts have held that “[any] cause of action arising from litigation activity may appropriately be the subject of a section 425.16 motion.” (Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141,151 (Shekhter), emphasis added.) Such activity plainly encompasses “the filing and prosecution of [civil] actions as well as statements made . . . in relation to those lawsuits.” (Ibid.; Briggs, supra, 19 Cal.4th at pp.1115-1116 [“[p]etitioning activity involves lobbying the government, suing, [and] testifying”].) Advantages of the Anti-SLAPP Statute (CCP §425.16)

Scope: The special motion to strike applies to any claim or cause of action arising from free speech or petition activity. Statute is “construed broadly.”

Motion Priority: The motion must be heard within 60 days after complaint served + all discovery is stayed unless “good cause” is shown.

Burden on Plaintiff to Prove “Probability of Success” on the Merits: If plaintiff cannot satisfy the burden of proving a prima facie case under oath, then defendant is entitled to dismissal of the SLAPP suit.

Attorneys’ Fees Awarded to Prevailing Defendant as Costs: Defendant’s fees and costs are mandatory if the motion prevails. Plaintiff may recover fees only if motion was “frivolous.”

Right to Immediate Appeal: If the motion is denied, defendant has right to immediate appeal, staying proceedings in the trial court. Prevailing defendant recovers attorneys’ fees on appeal.

The many procedural advantages of invoking the anti-SLAPP statute include: The special motion to strike takes precedence over virtually all other activity in the lawsuit, ordinarily requiring the “merits” hearing within 60 days after service of the complaint. All discovery is stayed until the hearing on the motion, unless “good cause” is shown, and then such discovery as may be allowed is usually limited to the issues raised by the anti-SLAPP motion. (Code Civ. Proc., § 425.16, subds.(f), (g).) If the moving defendant prevails, attorneys’ fees are awarded as part of the statutory costs of defending the lawsuit – whereas the plaintiff who successfully demonstrates a prima facie case must show that the anti-SLAPP motion was objectively frivolous. (Code Civ. Proc., § 425.16, subd. (c).) The fee award must be sufficient to compensate the defendant for the cost of defending the entire action, or at least that portion of it which constituted a SLAPP suit – including the fees reasonably incurred by the prevailing defendant on appeal. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1019-1020 (ComputerXpress); Shekhter, supra, 89 Cal.App.4th at p. 150 [“a single cause of action [may] be stricken”].) Once the trial court has concluded that the action is a SLAPP suit, there is no right for “leave to amend” because the courts are required to go beyond the pleadings and determine the SLAPP plaintiff’s improper intent to chill First Amendment activity. (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073-1074.) If the motion is unsuccessful, the defendant also has the right to immediately appeal from the order denying the anti-SLAPP motion, effectively staying theproceedings in the trial court until the Court of Appeal independently reviews the record de novo to decide if the plaintiff should be allowed to proceed. (Shekhter, supra, 89 Cal.App.4th at pp. 150-151; Code Civ. Proc., § 425.16, subd. (j).) Lawyers Have Standing to Invoke Section 425.16. Until recently, it was unclear whether section 425.16 extended to the activities of lawyers and other legal advisors who facilitate their clients’ rights to petition the courts. A party’s legal representatives, at the same time, arguably have standing to invoke the statute’s protection in the exercise of their own personal rights of free speech with respect to that representation, advice and counsel. (See Paul v. Friedman (2002) 95 Cal.App.4th 853, 865 [questioning lawyer standing]; and compare Schekhter, supra, 89 Cal.App.4th at p. 151 [“Mr. Kass and the Manning law firm [the lawyers for Allstate] had standing to bring the special motion”]; Briggs, supra, 19 Cal.4th at pp. 1109-1110, 1115-1119 [section 425.16 applied to legal aid society personnel who allegedly “instigate” and “counsel” tenants in property disputes]; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785 [lawyers initiating Attorney General investigation of consumer complaints].) Another unsettled question was whether section 425.16 could be applied to “screen” malicious prosecution actions. (See Wendy Gordon Carroll, The New Assault on Malicious Prosecution: The Anti-SLAPP Statute, L.A. COUNTY BAR UPDATE (Oct. 2000) at pp.1-3.) Several California appellate courts have applied the statute to test the merits of malicious prosecution claims, and “functionally indistinguishable” derivative tort theories. (See Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087-1088 [malicious prosecution]; Jarrow Formulas, Inc. v. LaMarche (2002) 97Cal.App.4th1,17 [same] (Jarrow); ComputerXpress, supra, 93 Cal.App.4th at pp. 1005-1010, 1015 [abuse of process]; Schekhter, supra, 89 Cal.App.4th at p. 151 [unfair competition and business interference torts “arising from” filing and prosecuting the prior action].) These decisions leave no doubt that section 425.16 protects “both lawyer and client for litigation-related conduct in an underlying lawsuit.” (Jarrow, supra, 97 Cal.App.4th at p. 18.) Attacking the Merits of Plaintiff’s Case Under the Anti-SLAPP Procedure. An anti-SLAPP motion works much like a motion for summary judgment. It is a speaking motion, which may be supported by declarations, documentary evidence and judicially noticeable facts. When the special motion to strike is filed, the trial court must consider two components: First, the moving party has the initial burden of showing that a cause of action falls within the purview of section 425.16 because it arises out of the defendant’s actions in furtherance of the rights of petition or free speech. Second, the obligation then shifts to the plaintiff to establish a probability that she or he will prevail on the merits. (Jarrow, supra, 97 Cal.App.4th at pp.15-16.) Claims for malicious prosecution are classic SLAPP suits because they “chill” the rights of free speech and petition for redress of grievances: “Courts have long recognized that the tort has the potential to impose an undue ‘chilling effect’ on a citizen’s willingness to . . . bring a civil dispute to court, and, as a consequence, the tort has historically been regarded a disfavored cause of action.” (Sheldon Appel & Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 872 (Sheldon Appel).) By definition, such actions arise out of “a party’s constitutional right to petition.” (Chavez v. Mendoza, supra, 94 Cal.App.4th at p.1087.) Once it has determined that the malicious prosecution action is subject to screening, the trial court must evaluate whether the plaintiff has demonstrated by satisfactory proof the essential elements of the claim: (1) that the prior action was initiated by or at defendant’s direction and was terminated in plaintiff’s favor; (2) was brought without probable cause; and (3) was commenced with malice. (Sheldon Appel, supra, 47 Cal.3d at pp. 871-872.) Favorable termination is not necessarily established by the dismissal of the prior lawsuit. For example, a voluntary dismissal in furtherance of a settlement or simply to avoid further litigation expenses is not a favorable termination on the merits. (Pender v. Radin (1994) 23 Cal.App.4th 1807, 1814-1817.) The same is true where the prior case is disposed of as untimely under the applicable statute of limitations “because it does not reflect at all on the substantive merit of the claim alleged.” (Stanley v. Superior Court (1982) 130 Cal.App.3d 460, 465.) The second element – probable cause – ordinarily presents a question of law where the facts are not materially disputed. The courts have imposed strict limits in this regard, requiring that“[t]he plaintiff in a malicious prosecution action must prove each of the necessary elements of the tort, and the trial court must carefully consider the issue of probable cause so that recovery is not permitted for mere negligence in bringing an action, or simply because the action was not successful.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 1515, 1562, internal citations omitted, emphasis added.) “Counsel and their clients have the right to present issues that are arguably correct, even its is extremely unlikely they will win . . . .” (Hufstedler, Kaus & Ettinger v. Superior Court (1996) 42 Cal.App.4th 55, 66 .) “If a court finds that the initial lawsuit was in fact objectively tenable,” then the prior action was not frivolous, and the malicious prosecution plaintiff has suffered no “improper or unjustified hardship” in being required to defend the prior suit. (See id. at p. 63, emphasis added; Sheldon Appel, supra, 47 Cal.3d at p. 878.) As such, an interim ruling allowing the case to go forward – even though later reversed on appeal – can establish that the underlying lawsuit was objectively tenable, in the eyes of at least one “reasonable lawyer [i.e., the trial judge].” (Vanzant v. DaimlerChrysler Corp.(2002) 96 Cal.App.4th 1283,1288-1290.) Likewise, the separate element of “[m]alice must be established by other, additional evidence.” (Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 498.) Merely because the prior action lacked probable cause, “without more, would not logically or reasonably permit the inference that such lack of probable cause was accompanied by the actor’s subjective malicious state of mind. . . . [] [T]hat evidence must include proof of actual hostility or ill will on the part of the defendant or the subjective intent to deliberately misuse the legal system . . . for the intentionally wrongful purpose of injuring another person.” (Id. at pp. 498-499, citing Sheldon Appel, supra, 47 Cal.3d at p. 885.) How the anti-SLAPP statute applies to attack a malicious prosecution claim is well illustrated by the Court of Appeal’s recent opinion in Jarrow Formulas, Inc. v. LaMarche (2002) 97 Cal.App.4th 1. (*Editor’s Note: Mr. Chamberlain served as co-counsel on appeal for the prevailing defendants in Jarrow; the case was argued by the Association’s immediate past-President, Edith R. Matthai.) Jarrow Formulas, a company which manufactured vitamins and nutritional supplements, sued Sandra LaMarche, a graphic artist, over the ownership rights to certain artworks used on the packaging and promotional materials of Jarrow’s products. LaMarche hired a lawyer to defend lawsuit, and cross-complained against Jarrow for defamation and wrongful interference with LaMarche’s other business opportunities. The proceedings were hotly contested and acrimonious. Jarrow frequently threatened LaMarche and her counsel with the prospect of a subsequent malicious prosecution action. In a letter to one of LaMarche’s lawyers, Jarrow’s president wrote: “people who file bullshit lawsuits – AND THEIR LAWYERS – should know what it is like to have their lives made miserable by crap litigation just like mine has been.” (Jarrow, supra, 97 Cal.App.4th at pp.12-13.) Jarrow succeeded in having LaMarche’s cross-complaint dismissed on a motion for summary judgment; however, LaMarche thereafter prevailed on all of Jarrow’s claims at trial. In response to Jarrow’s inevitable malicious prosecution action, LaMarche and her lawyer moved for dismissal under section 425.16. The Court of Appeal held that the anti-SLAPP statute applied to Jarrow’s secondary lawsuit, and that Jarrow had not made the requisite showing that it was likely to prevail on the merits of its claim. (Jarrow, supra, 97 Cal.App.4th at pp.14-21.) Even assuming that Jarrow had received a favorable termination on the merits in the prior action, LaMarche’s cross-complaint was at least “legally tenable,” albeit unsuccessful. Jarrow’s failure to satisfy each element of its malicious prosecution claim barred recovery. Having prevailed under the anti-SLAPP statute, defendants “were entitled to [recover from Jarrow] their costs and attorneys fees on appeal and in the trial court.” (Jarrow, supra, 97 Cal.App.4th at p. 22, emphasis added. Employing Other Available Defenses – The Noerr-Pennington Doctrine. Because anti-SLAPP procedure permits the court to consider any matter bearing on the merits of the lawsuit, the defendant may not be content to merely challenge the elements of the plaintiff’s case. Don’t overlook other substantive law defenses and privileges that might be included in the moving papers which serve to demonstrate that the SLAPP suit has no reasonable likelihood of success. “Section 425.16 sets out a mere rule of procedure, but it is founded on constitutional doctrine. Those who petition the government are generally immune from . . . liability. This principle is referred to as the ‘Noerr-Pennington’ doctrine . . .” (Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 21.) The Noerr-Pennington doctrine generally holds that no liability will attach under the Sherman Act for a party’s efforts to influence a governmental body. Those activities are protected by the First Amendment right to petition the government for redress of grievances, even though the motive behind such activity is anti-competitive. (See generally Eastern R. Conference v. Noerr Motors (1961) 365 U.S. 117 and United Mine Workers v. Pennington (1965) 381 U.S. 657, 699-670; Professional Real Estate Investors, Inc. v. Columbia Pictures Ind., Inc. (1993) 508 U.S. 49, 55-58.) Later precedent extended Noerr-Pennington to petition activity in judicial, as well as administrative and legislative, proceedings. (Professional Real Estate Investors, supra, 508 U.S. at pp. 55-60; Hi-Top Steel Corp. v. Leherer (1994) 24 Cal.App.4th 570, 574.) Although originating in the field of federal antitrust litigation, the Noerr-Pennington doctrine has been consistently applied by California courts to actions for intentional interference with economic relations and similar common law “tort” theories. Thus, the scope of economic interference claims is limited by the constitutional right to petition for redress of grievances, including the right to seek relief in a court of law. (Pacific Gas & Elec. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1137 [hereafter PG&E]; Hi-Top Steel Corp. v. Leherer, supra, 24 Cal.App.4th at pp. 577-578.) The only limitation on the Noerr-Pennington privilege is the so-called “sham” exception. (Id. at p. 577.) Genuine efforts to influence government action will not constitute a sham. (Blank v. Kirwan (1985) 39 Cal.3d 311, 322; Hi-Top Steel Corp. v. Leherer, supra, 24 Cal.App.4th at pp. 578-583.) By parity of reasoning, litigation – the process of petitioning a judicial body – will not be deemed a sham unless the action is so “objectively baseless” and maliciously motivated that any reasonable litigant would have no realistic expectation of success on the merits. (Professional Real Estate Investors, 508 U.S. at pp. 60-61 & fn. 5.) When challenging the merits of a malicious prosecution claim, the existence of “probable cause” to initiate the legal proceedings or the absence of a malicious motive in doing so, precludes the application of the sham exception and compels dismissal of the action. (Ibid.; PG&E, supra, 50 Cal.3d at p.1137.) Our Supreme Court instructs that this “probable cause” assessment should be made as early as possible. (Id. at pp.1133-1137.) The constitutional privilege underlying Noerr-Pennington is consistent with the stated goal of section 425.16 – the early dismissal of unmeritorious claims. Civil Code §47(b) – The Absolute Litigation Privilege. Another check on derivative lawsuits against California lawyers is the “absolute litigation privilege” codified by Civil Code section 47(b). The litigation privilege bars tort claims against parties and their lawyers arising out of communications made during the course of judicial or official proceedings. Although cast in terms of immunity from defamation, section 47’s broad reach, “for well over a century [has applied to] communications with some relation to judicial proceedings [rendering participants in a prior lawsuit, including lawyers] absolutely immune from tort liability”on any theory – with the sole exception of malicious prosecution. (Rubin v. Green (1993) 4 Cal. 4th 1187, 1193-1194.) In addition to defamation torts, the litigation privilege bars liability claims on theories of abuse of process, invasion of privacy, misrepresentation, infliction of emotional distress, and interference with contractual or other business relationships. (Rubin v. Green, supra, 4 Cal.4th at pp. 1194-1195, & fn. 3.) “The principal purpose of section 47() is to afford litigants . . . the utmost freedom of access to the courts without the fear of being harassed subsequently by derivative tort actions.” (Id. at pp. 1194-1195, citing Silberg v. Anderson (1990) 50 Cal.3d 205, 213.) Malicious prosecution actions are exempt from the otherwise “absolute” nature of the privilege because “[t]he policy of encouraging free access to the courts . . . is outweighed by the policy of [redressing] individual wrongs when the requirements of favorable termination, lack of probable cause, and malice are satisfied.” (Jarrow, supra, 97 Cal.App.4th at p.18.) One argument raised against applying section 425.16 to malicious prosecution claims is that this one remaining exception is somehow “abrogated” by the screening procedure. Not so. A determination that the anti-SLAPP statute applies to screen a given malicious prosecution claim “will not prevent valid malicious prosecution claims, but will require a plaintiff bringing this claim to demonstrate early on that the complaint is supported by a sufficient prima facie showing of facts to sustain a favorable judgment.” (Chavez v. Mendoz, supra, 94 Cal.App.4th at p. 1089, emphasis added; accord McLarnon v. Jokisch (2000) 431 Mass. 343, 347, 727 N.E.2d 813, 816 [interpreting Massachusetts’ similar anti-SLAPP statute].) This result is entirely consistent with “the disfavored nature of the malicious prosecution tort” and the sound view that “the remedy for frivolous ‘litigation does not lie in the expansion of malicious prosecution liability.’” (Chavez v. Mendoz, supra, 94 Cal.App.4th at p.1089.) Section 425.16 thus supplements – but does not “supplant” – applicable privileges and defenses. The anti-SLAPP procedure is frequently employed in conjunction with challenges to derivative lawsuits targeting speech and petition activity also protected by the absolute litigation privilege under Civil Code §47(b) and by the Noerr-Pennington doctrine. (See, e.g., James Moneer, No-Win Situation, Opposing a SLAPP Motion is Time-Consuming and Expensive, LOS ANGELES DAILY JOURNAL, Aug. 4, 2000, at p. 5; Dennis J. Seider, SLAPP Shot, LOS ANGELES LAWYER (Nov. 2000) 32 at pp. 32-36, 53.) In some respects, the anti-SLAPP statute may be applied even more broadly than these other substantive law privileges, enabling the moving party to shift the burden to the plaintiff to show how “communicative conduct” or “noncommunicative conduct” in furtherance of First Amendment rights could result in a liability judgment. (See, e.g., Ludwig, supra, 37 Cal. App. 4th at pp.18-20; Rubin v. Green, supra, 4 Cal.4th at pp.1195-1196; Briggs, supra,19 Cal.4th at pp.1115-1116.) Protecting Yourself From Derivative Tort Suits.

An attorney who becomes the target of a derivative tort action is not without remedies to challenge the meritless lawsuit. But a word of caution. The anti-SLAPP statute is a screening process, not a panacea. It will not shield any lawyer from the consequences of pursuing an objectively untenable (i.e., frivolous) action on a client’s behalf. (See, e.g., Chavez v. Mendoz, supra, 94 Cal.App.4th at p.1086 [“plaintiffs met their burden to establish a probability they would prevail on their malicious prosecution claim”]; Paul v. Friedman, supra, 95 Cal.App.4th at pp. 865-868 [conduct outside of official proceedings and breach of confidential settlement not privileged].) Several factors may account for the alarming increase in derivative lawsuits by non-clients against lawyers during the past few years. These include the overall “decline in civility among lawyers” ( giving rise to members of the legal profession being more willing to sue one another for perceived indignities), and stereotypes How to AvoidDerivative Tort Claims

Adopt and maintain a client-intake checklist. Screen your clients and your cases carefully. Beware the “hostile” client who views litigation as a vendetta.

Stay away from cases outside your expertise. Don’t just take “any case that comes through the door.” This increases your chances of being sued by clients – and by third parties.

Thoroughly investigate the facts and the law. Don’t overplead your client’s case – the subsequent derivative lawsuit might be based upon any claims that were not “objectively tenable.”

Remain “civil.” Avoid acrimonious exchanges with opposing parties and counsel, and Rambo-style litigation tactics. Don’t overplead your client’s case – the subsequent derivative lawsuit might be based upon any claims that were not “objectively tenable.”

about “greedy” trial lawyers clogging the courts with “frivolous” lawsuits. (ABA Standing Committee on Lawyers’ Professional Liability, Legal Malpractice Claims in the 1990s, Dec. 1996, at pp. 14, 22.) What can you do to protect yourself Adopt and maintain a client-intake checklist. Choose your clients and your cases carefully. Avoid cases outside your areas of expertise, and don’t just take “any case that comes through the door.” (Harry W.R. Chamberlain II, The Seven Deadly Sins: Why Attorneys Get Stung By Juries In Legal Malpractice Cases (2nd Quarter 2001) VERDICT 30 at pp. 32-33.) Thoroughly investigate the facts and the law before bringing a lawsuit. At a minimum, legal ethics and rules of court require that lawyers do so. (See Fed. Rule Civ. Proc. 11, 28 U.S.C.; Norton v. Hines (1975) 49 Cal.App.3d 917, 923-924; Bus.& Prof. Code § 6068(c); Prof. Resp. Rules 3-200, 3-700(C)(1)(a), (b).) Don’t overplead your client’s case – even if one or more claims were objectively tenable, the subsequent derivative lawsuit might be based upon any claim that was not. (See Crowley v. Katleman (1994) 8 Cal.4th 666, 680.) When bringing or defending a lawsuit, avoid the temptation to get caught up in acrimonious exchanges and responding in kind to Rambo-style tactics. (See, e.g., Jarrow, supra, 97 Cal.App.4th at pp. 4-14.) Remember, that is why they call it “civil” litigation. Whether the anti-SLAPP procedure and other available defenses will be effective in stemming the tide of derivative litigation against California lawyers remains to be seen. Meanwhile, applying these techniques might help to reduce the real and ever-present threat of third party actions, and can minimize your exposure if they do arise.
Posted by Abuse of Law at Saturday, January 14, 2012 Email ThisBlogThis!Share to TwitterShare to FacebookLinks to this post
Labels: 1st amendment,, Dr. John Daab, george helischauer, George Sharp, Harry W.R. Chamberlain II, Lisa M. Chait, ORINGHER, P.C., Procedure § 425.16, RICHMAN THEODORA, SLAPP, STEPHAN

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a·buse/?'byo?oz/ Verb: Use (something) to bad effect or for a bad purpose; misuse.


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First Resource Group LLC, and David H. Stern
Integrity Financial AZ, LLC, Steven R. Long, Stanley M. Paulic, Walter W. Knitter, and Robert C. Koeller

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