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Charles Ponzi

Charles Ponzi

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About Me

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    1956-12-19
  • About me

    Charles Ponzi sent me.

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  • Charles Ponzi created a new topic ' Luby Fuddrucker vs Visa and Banks' in the forum.
    The $5.75 billion antitrust trainwreck ripped up Antitrust Settlement Cases at the Victorian Legal Services Board, and the carnage rolls on.


    deref-gmx.com/mail/client/dgOgQC2e_vw/de...it-Card-Company-Fees


    Luby's Fuddruckers Restaurants, LLC v. Visa Inc. et al
    Plaintiff: Luby's Fuddruckers Restaurants, LLC
    Defendant: Visa Inc., Visa U.S.A., Inc., Visa International Service Association, MasterCard Incorporated, Mastercard International Incorporated, BA Merchant Services LLC, Bank of America Corporation, Barclays Bank of Delaware, Capital One, N.A., Capital One Bank (USA), N.A., Capital One Financial Corporation, Chase Bank USA, N.A., JPMorgan Chase Bank, N.A., JPMorgan Chase & Co., Citigroup, Inc., Citibank, N.A., Fifth Third Bancorp, First National Bank of Omaha, HSBC Finance Corporation, HSBC North America Holdings, Inc., PNC Financial Services Group, Inc., SunTrust Banks, Inc., SunTrust Bank, Texas Independent Bancshares, Inc., Wells Fargo & Company and Wells Fargo Merchant Services, LLC
    Case Number: 4:2017cv01049
    Filed: April 5, 2017
    Court: Texas Southern District Court
    Office: Houston Office
    County: Harris
    Presiding Judge: David Hittner
    Nature of Suit: Antitrust
    Cause of Action: 15:1
    Jury Demanded By: Both
    Access additional case information on PACER

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    Search for this case: Luby's Fuddruckers Restaurants, LLC v. Visa Inc. et al
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    Defendant: Visa Inc.
    Represented By: Lee L Kaplan
    Represented By: Mark R. Merley
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    Defendant: Visa U.S.A., Inc.
    Represented By: Lee L Kaplan
    Represented By: Mark R. Merley
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    Defendant: Visa International Service Association
    Represented By: Lee L Kaplan
    Represented By: Mark R. Merley
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    Defendant: MasterCard Incorporated
    Represented By: Tynan Buthod
    Represented By: Gary R Carney
    Represented By: Kenneth A Gallo
    Represented By: Alex M Hyman
    Represented By: Donna M Ioffredo
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    Defendant: Mastercard International Incorporated
    Represented By: Tynan Buthod
    Represented By: Gary R Carney
    Represented By: Kenneth A Gallo
    Represented By: Alex M Hyman
    Represented By: Donna M Ioffredo
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    Defendant: BA Merchant Services LLC
    Represented By: Layne E. Kruse
    Represented By: Eliot Fielding Turner
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    Defendant: Bank of America Corporation
    Represented By: Layne E. Kruse
    Represented By: Eliot Fielding Turner
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    Defendant: Barclays Bank of Delaware
    Represented By: Brent Lockhart Brown
    Represented By: Brian Calandra
    Represented By: Christopher Lanzalotto
    Represented By: James Tallon
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    Defendant: Capital One, N.A.
    Represented By: Jamie Alan Aycock
    Represented By: Andrew J Frackman
    Represented By: Abby F. Rudzin
    Represented By: John Zavitsanos
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    Defendant: Capital One Bank (USA), N.A.
    Represented By: Jamie Alan Aycock
    Represented By: Andrew J Frackman
    Represented By: Abby F. Rudzin
    Represented By: John Zavitsanos
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    Defendant: Capital One Financial Corporation
    Represented By: Jamie Alan Aycock
    Represented By: Andrew J Frackman
    Represented By: Abby F. Rudzin
    Represented By: John Zavitsanos
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    Defendant: Chase Bank USA, N.A.
    Represented By: Boris Bershteyn
    Represented By: Peter E Greene
    Represented By: Noelle M Reed
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    Defendant: JPMorgan Chase Bank, N.A.
    Represented By: Peter E Greene
    Represented By: Noelle M Reed
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    Defendant: JPMorgan Chase & Co.
    Represented By: Peter E Greene
    Represented By: Noelle M Reed
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    Defendant: Citigroup, Inc.
    Represented By: Tracy N LeRoy
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    Defendant: Citibank, N.A.
    Represented By: Tracy N LeRoy
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    Defendant: Fifth Third Bancorp
    Represented By: Eliot Fielding Turner
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    Defendant: First National Bank of Omaha
    Represented By: Eliot Fielding Turner
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    Defendant: HSBC Finance Corporation
    Represented By: Roger Brian Cowie
    Represented By: Perry A Lange
    Represented By: David Sapir Lesser
    Represented By: Bradley C Weber
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    Defendant: HSBC North America Holdings, Inc.
    Represented By: Roger Brian Cowie
    Represented By: Perry A Lange
    Represented By: David Sapir Lesser
    Represented By: Bradley C Weber
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    Defendant: PNC Financial Services Group, Inc.
    Represented By: Bruce Allen Blefeld
    Represented By: Edward William Duffy
    Represented By: Frederick N Egler
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    Defendant: SunTrust Banks, Inc.
    Represented By: Jared M Slade
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    Defendant: SunTrust Bank
    Represented By: Jared M Slade
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    Defendant: Texas Independent Bancshares, Inc.
    Represented By: Dennis R Bettison
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    Defendant: Wells Fargo & Company
    Represented By: Charles Bedford Hampton
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    Defendant: Wells Fargo Merchant Services, LLC
    Represented By: Charles Bedford Hampton
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    Plaintiff: Luby's Fuddruckers Restaurants, LLC
    Represented By: Scott G. Burdine
    Represented By: David Edwards Wynne
    Represented By: David Edwards Wynne
    Represented By: Kenneth R. Wynne
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    3 weeks ago
  • Charles Ponzi created a new topic ' CBA Bribery Scandal Case Feb 2016' in the forum.
    CBA exec called in graft hearing

    Leo Shanahan - The Australian
    Business Spectator
    12:15PM February 18, 2016
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    Commonwealth Bank’s current and former chief information ­officers are being sought as ­witnesses in the bribery case brought against two former IT executives charged with taking kickbacks in return for delivering a multi-million-dollar contract from the CBA.

    The Australian understands witness subpoenas have been drawn up by lawyers defending former CBA technology executives, asking that current CIO David Whiteing and former IT boss Michael Harte appear for the defence case.

    A series of other CBA technology and procurement staff have also been asked to appear as witnesses.

    Keith Hunter, 62, CBA’s former manager of IT engineering, and former IT executive colleague Jon Waldron, 44, have been charged with several counts of bribery after NSW Police alleged the two took a combined total of $2.9m from US technology entrepreneur Eric Pulier in return for millions of dollars in CBA work.

    NSW police, who were aided by the FBI in the investigation, allege the pair received money from Mr Pulier around October 2014 through an US-based charity called the Ace Foundation, in return for delivering his cloud computing company ServiceMesh a multi-million-dollar contracts with CBA.

    Both men have pleaded not guilty, with a directions hearing in a Sydney court today to decide whether the case proceeds to a committal hearing.

    It understood the defence teams for the men would like Mr Harte and Mr Whiteing to appear as witnesses to speak to, among other things, the circumstances surrounding the ServiceMesh contract and the utility of the technology.

    However the Commonwealth Director of Public Prosecutions is understood to object to Mr Whiteing, Mr Harte and others being called, arguing it would be inconsistent with the pleadings.

    CBA tipped off police after the suspicious funds appeared in the men’s CBA account in late 2014, with Mr Hunter and Mr Waldron resigning soon after.

    Mr Harte — who is not accused of any wrongdoing — was the manager in charge of the two men and oversaw the billion-dollar restructure of the bank’s IT services before departing in July 2014 to take up a role with Barclays Bank in London.

    He is now the chief operations and technology officer at Barclays and sits on the bank’s executive committee.

    Mr Whiteing replaced Mr Harte as CBA’s CIO and was previously vice-president of enterprise systems at BP.

    ServiceMesh was bought by US computing giant CSC for $US260m in October 2013 and maintained Mr Pulier’s role as head of the cloud computing company, but has since dismissed him and is suing him for the purchase price of ServiceMesh.

    During his time at CBA Mr Harte was a big supporter of the cloud technology provided by ServiceMesh.

    CBA said neither Mr Harte or the CBA were ever investors in ServiceMesh.

    “Mr Harte has informed CBA that he has never had any financial interest in ServiceMesh or any related party,” CBA said in statement.

    “Commonwealth Bank’s investigations to date indicate CBA does not hold, and has not previously held, an interest in ServiceMesh, and Mr Pulier was not offered shares in CBA as part of an agreement with CBA to provide services.”

    The Australian

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    3 weeks ago
  • Charles Ponzi created a new topic ' FIFA: US vs Swiss Bankers: Julius Baer' in the forum.
    Banker Admits to Money Laundering in FIFA Case

    By REBECCA R. RUIZJUNE 15, 2017
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    A former executive of the Swiss bank Julius Baer is the first banker to plead guilty in a broad FIFA corruption case. Credit Michael Buholzer/Agence France-Presse — Getty Images

    Jorge Luis Arzuaga, a former managing director at the Swiss bank Julius Baer, pleaded guilty to money laundering conspiracy in Brooklyn federal court on Thursday, revealing his role in the United States’ sweeping criminal case focused on FIFA, the governing body of international soccer.

    Mr. Arzuaga, who admitted to arranging the financial transfers of more than $25 million in bribes and kickbacks from 2010 to 2015, became the first banker publicly convicted in a case that has felled dozens of soccer officials and marketing and media executives since it was announced two years ago. His conviction suggests a new phase for the case, shifting its focus to the financial institutions through which bribe money traveled.

    The Swiss have pursued similar charges against Mr. Arzuaga, the United States Justice Department said Thursday, and a resolution is expected to be announced soon. The conviction of Mr. Arzuaga, a citizen of Argentina who worked for the Zurich bank until 2015, would be Switzerland’s first in its parallel investigation into FIFA, which has its headquarters in Zurich. Switzerland’s Office of the Attorney General did not immediately respond to a request for comment Thursday.

    Over the last two years, the Swiss authorities have provided significant assistance to the United States in carrying out arrests, extraditing defendants and responding to requests for information otherwise protected by the nation’s strict privacy laws. Switzerland’s Office of the Attorney General announced its own investigation into FIFA, after early-morning raids at a five-star hotel in 2015 that resulted in the first wave of arrests and upended soccer’s global leadership.
    Continue reading the main story
    Related Coverage

    More Charges as FIFA Inquiry Widens DEC. 3, 2015
    In FIFA Inquiry, Switzerland Aids U.S. but Is Wary of Being Eclipsed DEC. 5, 2015
    FIFA, Embracing Role as Victim, Seeks to Collect Millions in U.S. Case MARCH 16, 2016

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    Appearing in United States District Court in Brooklyn on Thursday, Mr. Arzuaga, 56, promised to pay more than $1 million to the government, adding to the hundreds of millions of dollars so far pledged by the convicted defendants. Mr. Arzuaga joins dozens of international soccer officials and marketing and media executives — predominantly from South and Central America — who have been convicted to date.

    A 236-page indictment released by the Justice Department in 2015 named numerous financial institutions, including Julius Baer, one of the banks at which Mr. Arzuaga worked, as having handled bribes paid to officials charged in the case. Mr. Arzuaga left Julius Baer that spring, shortly after the Swiss police had carried out the first surprise arrests at the behest of the United States Justice Department.

    On Thursday, William F. Sweeney, Jr., the head of the F.B.I.’s New York office, emphasized that the case was continuing.
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    “This plea shows how wide-ranging and systemic corruption once was in one of the world’s most popular sports,” Mr. Sweeney said in a statement. “Our work is nowhere near finished, and we will continue to pursue each and every corrupt member of this scheme until each is brought to justice.”

    The United States investigation — a coordinated effort of the Justice Department, the F.B.I. and the I.R.S. criminal investigation division — has relied heavily on financial forensics and the tracing of bribe payments through the international banking system to America. The 2015 indictment specifically highlighted a $5 million wire transfer to a Julius Baer bank account in the name of a company affiliated with Torneos y Competencias, an Argentine sports marketing firm that has already pleaded guilty in the American case and promised to pay the government more than $112 million.

    The indictment does little to disguise the identity of one of the soccer officials who received the payments: Julio Grondona, a longtime FIFA and Argentine soccer association official who died in 2014. The indictment said Mr. Arzuaga also arranged for money in accounts held by Mr. Grondona to be distributed to his heirs after his death.

    Julius Baer itself has been scrutinized by American prosecutors, who may have considered charging the bank for its role in helping to launder bribe money to soccer officials.

    “We are pursuing the bad actors — including soccer officials, sports marketing companies, financial institutions and their bankers — who have intentionally and criminally violated the law by laundering illegal proceeds,” said Richard Weber, chief of the I.R.S. criminal investigation division. “Prospective private bankers and relationship managers should take note of Mr. Arzuaga’s conviction and think twice about the consequences of conspiring to launder money.”

    Unrelated to the soccer case, Julius Baer is under a deferred prosecution agreement with the Justice Department after admitting last year to having helped American clients evade taxes and hide billions of dollars in offshore accounts. Under that agreement, the bank promised to pay $547 million to the United States for assisting clients with hiding money and filing false tax returns fro
    m at least the 1990s to 2009.

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    1 month ago
  • Charles Ponzi created a new topic ' Re-opening FOS Determinations: Treasury' in the forum.
    Submissions are due in 2 weeks.
    treasury.gov.au/ConsultationsandReviews/...mentary-Issues-Paper

    SUPPLEMENTARY ISSUES PAPER
    Review of the financial system external dispute resolution framework
    Consultation on the establishment, merits and potential design of a compensation scheme of last resort and the merits and issues associated with providing access to redress for past disputes
    May 2017

    © Commonwealth of Australia 2017
    ISBN 978-1-925504-48-4
    This publication is available for your use under a Creative Commons Attribution 3.0 Australia licence, with the exception of the Commonwealth Coat of Arms, the Treasury logo, photographs, images, signatures and where otherwise stated. The full licence terms are available from creativecommons.org/licenses/by/3.0/au/legalcode.

    Use of Treasury material under a Creative Commons Attribution 3.0 Australia licence requires you to attribute the work (but not in any way that suggests that the Treasury endorses you or your use of the work).
    Treasury material used ‘as supplied’
    Provided you have not modified or transformed Treasury material in any way including, for example, by changing the Treasury text; calculating percentage changes; graphing or charting data; or deriving new statistics from published Treasury statistics — then Treasury prefers the following attribution:
    Source: The Australian Government the Treasury.
    Derivative material
    If you have modified or transformed Treasury material, or derived new material from those of the Treasury in any way, then Treasury prefers the following attribution:
    Based on The Australian Government the Treasury data.
    Use of the Coat of Arms
    The terms under which the Coat of Arms can be used are set out on the It’s an Honour website (see www.itsanhonour.gov.au).
    Other uses
    Enquiries regarding this licence and any other use of this document are welcome at:
    Manager
    Communications
    The Treasury
    Langton Crescent
    Parkes ACT 2600
    Email: This email address is being protected from spambots. You need JavaScript enabled to view it.


    CONTENTS
    Consultation Process iv
    Introduction 1
    Scope 5
    Compensation scheme of last resort 9
    Problem being addressed — uncompensated consumer losses 9
    Existing framework for compensating losses in the financial system 10
    Compensation arrangements outside of the financial services industry 15
    International financial services industry compensation schemes 17
    Evaluation of a compensation scheme of last resort 19
    Potential design of a compensation scheme of last resort 22
    Legacy unpaid EDR determinations 32
    Providing access to redress for past disputes 34
    Problem being addressed — access to redress 34
    Approaches to providing access to redress for past matters 37
    Evaluation of providing access to redress for past disputes 39
    Design issues with providing access to redress for past disputes 41
    Consultation questions 47
    Appendix A — Amended Terms of Reference 51
    Appendix B — Examples of schemes outside the financial sector that provide for past matters 53


    CONSULTATION PROCESS
    REQUEST FOR FEEDBACK AND COMMENTS
    Interested parties are invited to lodge written submissions on the issues raised in this Paper by 28 June 2017.
    All information (including name and address details) contained in submissions will be made available to the public on the external dispute resolution review website at www.treasury.gov.au/ConsultationsandRevi...onsultations/2016/FS external dis
    pute resolution unless the party making the submission indicates that all or part of the submission is to remain confidential. Automatically generated confidentiality statements in emails are not sufficient for this purpose. Respondents who would like part of their submission to remain confidential should provide this information marked as such in a separate attachment. A request made under the Freedom of Information Act 1982 for access to a submission marked confidential will be determined in accordance with that Act.
    To ensure that the privacy of third parties is protected, and that the Commonwealth complies with its own legal obligations, some submissions may be published with some details removed or may not be published. In addition, all or parts of submissions may not be published: if they promote a product or a service; contain offensive language or the sentiments expressed are liable to offend or vilify sections of the community; or for reasons other than those outlined.
    Submissions should include the name of the organisation (or name if the submission is made by an individual) and contact details including an email address and telephone number where available. While submissions may be lodged electronically or by post, electronic lodgement is strongly preferred. For accessibility reasons, please email responses in a Word or RTF format. An additional PDF version may also be submitted.
    Closing date for submissions: 28 June 2017
    Address written submissions to:
    Email: This email address is being protected from spambots. You need JavaScript enabled to view it.
    Mail: EDR Review Secretariat
    Financial System Division
    Markets Group
    The Treasury
    Langton Crescent
    PARKES ACT 2600
    Enquiries: Enquiries can initially be directed to the EDR Review Secretariat by emailing This email address is being protected from spambots. You need JavaScript enabled to view it..


    INTRODUCTION
    1. The Review’s amended Terms of Reference require the Panel to:
     make recommendations on the establishment, merits and potential design of a compensation scheme of last resort; and
     consider the merits and issues involved in providing access to redress for past disputes.
    WHY REDRESS MATTERS
    2. These issues are of significant public interest given the scale of financial losses suffered by Australian investors in recent years. Estimates suggest that over 80,000 people have been affected with losses totalling more than $5 billion (or $4 billion after compensation and liquidator recoveries).
    3. For those individuals who have suffered losses, the effect on their lives can be devastating. Additionally, where those individuals have not been able to receive compensation or even have their case heard, this undermines trust and confidence in the financial system.
    4. In April 2017, the Panel made 11 recommendations to enhance the financial system’s dispute resolution framework, recognising that consumers and small business should have effective access to redress. On 9 May 2017, the Government accepted all of these recommendations.
    5. The Panel’s view is that implementation of these recommendations will help to ensure that financial firms will provide compensation for wrongful losses through the EDR system. However, in a limited number of cases this may not occur, for a number of reasons. This Issues Paper seeks feedback on these situations, and possible models to resolve them.
    BACKGROUND
    6. In recent years, a number of inquiries have considered the causes of financial failures and the issue of compensating investors for their losses, including:
     the Parliamentary Joint Committee on Corporations and Financial Services Report, Inquiry into financial products and services in Australia (November 2009);
     Mr Richard St. John’s report, Compensation arrangements for consumers of financial services (2012);

     the Senate Economics References Committee Report, Agribusiness managed investment schemes: Bitter harvest (March 2016);
     the Parliamentary Joint Committee on Corporations and Financial Services Report, Impairment of customer loans (May 2016); and
     the Australian Small Business and Family Enterprise Ombudsman Report, Inquiry into small business loans (December 2016).
    7. Consumers currently have a number of avenues for obtaining compensation, including:
     internal dispute resolution (IDR) — individuals can approach the firm directly to seek a resolution;
     external dispute resolution (EDR) — individuals can approach the Financial Ombudsman Service (FOS), Credit and Investments Ombudsman (CIO) or the Superannuation Complaints Tribunal (SCT) to have their complaint resolved;
     self initiated private action — individuals can sue in court or obtain an outcome through private negotiation, mediation or arbitration;
     private class action — individuals can start or join a class action where people who have suffered loss from the same type of misconduct bring a group action;
     the winding up process of a financial firm (external administration); and
     action taken by the Australian Securities and Investments Commission (ASIC) to obtain compensation for consumers — ASIC can take action through negotiations with the firm, legal or other enforcement action, or by leading a class action.
    8. In its Interim Report, the Panel observed that where consumers are denied access to justice due to a financial firm’s lack of resources to pay a determination issued by an EDR scheme, this has serious and significant consequences for the individual consumer and undermines trust and confidence in the broader financial system.
    9. This Supplementary Issues Paper continues the Panel’s examination of the EDR framework by seeking the views of interested stakeholders on the establishment, merits and potential design of a compensation scheme of last resort and the merits and issues involved in providing access to redress for past disputes.

    REVIEW PROCESS TO DATE
    10. On 20 April 2016, the Government announced this review of the financial system’s EDR and complaints framework (EDR Review). On 8 August 2016, the Terms of Reference for the Review were released.
    11. On 9 September 2016, the Panel released an Issues Paper and received 127 submissions from stakeholders. These submissions informed the Panel’s Interim Report, which was released for consultation on 6 December 2016 and sought stakeholder views on 11 draft recommendations. Fifty-six submissions were received.
    12. Among other issues, the Review’s original Terms of Reference directed the Panel to make observations, but not recommendations, on the establishment of a statutory compensation scheme of last resort. In their responses to the first Issues Paper, a number of stakeholders made submissions on this issue which informed the Panel’s observation in the Interim Report that there is considerable merit in establishing an industry funded compensation scheme of last resort.
    13. On 2 February 2017, the Minister for Revenue and Financial Services amended the Review’s Terms of Reference to include recommendations on the establishment, merits and potential design of a compensation scheme of last resort. The Panel was also asked to consider the merits and issues involved in providing access to redress for past disputes. The amended Terms of Reference are contained in Appendix A.
    14. On 3 April 2017, the Panel provided to the Government its Final Report on matters covered by the original Terms of Reference (other than that relating to a compensation scheme of last resort).
    Final Report
    15. On 9 May 2017, the Government released the Panel’s Final Report on the matters covered by the original Terms of Reference (other than that dealing with a compensation scheme of last resort) and the Government’s response to that Report. The Report makes 11 recommendations which represent an integrated package of reforms that will see the EDR framework well placed to address current problems and ensure it is designed to withstand the challenges of a rapidly changing financial system. The Government has accepted the Panel’s 11 recommendations.
    16. The Panel’s central recommendation is the establishment of a new single EDR body for all financial disputes (including superannuation disputes) to replace FOS, CIO and SCT. This is to be implemented via the establishment of the new Australian Financial Complaints Authority.

    17. The Government has also, relevantly, accepted the Panel’s recommendations that:
     consumers and small businesses are provided with enhanced access to redress through higher monetary limits and compensation caps;
     the single EDR body be subject to enhanced accountability measures, including an independent assessor to review complaints about its handling of disputes;
     ASIC be provided with a general directions power to allow it to compel performance from the single EDR body if it does not comply with legislative and regulatory requirements; and
     improvements be made to increase the transparency and accountability of IDR processes.
    Next steps
    18. The Panel is to report to the Government on the matters covered by the amended Terms of Reference in the second half of 2017. The table below outlines the chronology of events.
    19. The purpose of publishing this Supplementary Issues Paper is to seek the views of interested stakeholders on matters covered by the amendment to the Review’s Terms of Reference.
    20. The Panel encourages stakeholders interested in the matters raised in this Supplementary Issues Paper to make a submission by 28 June 2017.
    21. The Panel will consider information provided in submissions and will conduct further consultations before providing an additional report to the Government in the second half of 2017.
    Event Date
    Issues Paper on original Terms of Reference released 9 September 2016
    Interim Report on original Terms of Reference released 6 December 2016
    Minister for Revenue and Financial Services amended the Review’s Terms of Reference 2 February 2017
    Final Report on matters covered in the original Terms of Reference provided to Government 3 April 2017
    Final Report and Government response released 9 May 2017
    Issues Paper on matters covered in amended Terms of Reference released 31 May 2017
    Additional Report on matters covered by the amended Terms of Reference to be provided to the Government Second half of 2017
    SCOPE
    22. The amended Terms of Reference require the Panel to undertake two separate but related tasks:
     make recommendations on the establishment, merits and potential design of a compensation scheme of last resort; and
     consider the merits and issues involved in providing access to redress for past disputes.
    23. The Panel considers that these tasks raise different issues, which might involve different policy considerations, funding models and administrative arrangements. The Panel is, therefore, approaching them as separate and distinct pieces of analysis.
    24. Given the Review’s Terms of Reference focus on the EDR system, this has been the Panel’s main focus in setting out issues surrounding a compensation scheme of last resort and access to redress for past disputes. However, the Panel is also interested in views on whether judgments and decisions from other dispute resolution processes, such as courts and tribunals, should also be considered.
    25. The Panel has outlined below its understanding of the scope of the amended Terms of Reference, and the issues that fall within that scope.
    26. However, the Panel wishes to make clear that it has not made a final decision on any of the issues contained in this Supplementary Issues Paper and welcomes all stakeholder comments and feedback, including on whether the Panel’s scoping of issues is appropriate.
    REVIEW PRINCIPLES
    27. In undertaking its review, as required by its Terms of Reference, the Panel will have regard to the Review’s core principles of efficiency, equity, complexity, transparency, accountability, comparability of outcomes and regulatory costs.
    PRINCIPLES GUIDING THE REVIEW
    Efficiency
    Any framework should provide outcomes in an efficient manner. This requires ensuring the framework possesses adequate coverage, powers, remedies, resources (that is, funding and skilled staff) to enable issues to be resolved quickly and with a minimum of resources.
    Equity
    Individuals should be treated fairly and be able to easily access any framework.
    Complexity
    Any framework should have minimal complexity. It must be easy to navigate and use, with a focus on informality.
    Transparency
    Any framework should be transparent and open. Users should have access to appropriately tailored information, including about what outcomes they can reasonably expect from the process.
    Accountability
    Relevant information should be made publicly available. There should also be scope for periodic independent reviews and responses to these reviews.
    Comparability of outcomes
    Any framework should ensure that individuals receive comparable outcomes, both procedurally and substantively.
    Regulatory costs
    The regulatory settings should, as appropriate, utilise market forces and avoid creating moral hazards. The framework should impose the minimum amount of regulatory costs necessary to ensure effective user outcomes. These costs should, where appropriate, be borne by those who create the requirement for regulation, with incentives for costs to be minimised.


    28. The diagram below depicts how the Panel sees the amended Terms of Reference in relation to a compensation scheme of last resort and access to redress for past disputes interrelating:


    Compensation scheme of last resort
    29. The Panel takes as its starting point the premise that a compensation scheme of last resort is to be considered in the context of a dispute which:
     has been the subject of a decision; and
     has remained unsatisfied because, for example, the firm is insolvent, has ceased trading or otherwise has insufficient assets to pay the claim.
    30. Although the Review’s Terms of Reference are focused on the EDR system, as part of its analysis, the Panel will be considering whether a compensation scheme of last resort should be available in situations where a court or tribunal has ordered that a consumer or small business be compensated and this has not occurred.
    31. The Panel views the issue of a compensation scheme of last resort in a prospective way which means that should a scheme be established, it would be open to claimants who in the future receive a decision in their favour, but which is not ultimately paid.
    32. The Panel considers that separate arrangements may need to be put in place to address legacy uncompensated losses, such as existing unpaid EDR determinations.
    33. These matters are discussed in more detail in the ‘Compensation scheme of last resort’ section of this Issues Paper.
    Redress for past disputes
    34. The question of providing access to redress for past disputes is very complex.
    35. The Panel considers that consumers and small businesses that have obtained a decision from any dispute resolution process (including from a tribunal or a court) have had access to redress and therefore are outside the Review’s amended Terms of Reference. (If as part of that decision the consumer or small business was awarded compensation but this has not been paid, this will form part of the Panel’s consideration of a potential compensation scheme of last resort.)
    36. In this Issues Paper, the Panel has primarily focussed its consideration of this issue on situations where consumers or small businesses with disputes of a type that could be resolved through EDR have, for various reasons, not been able to resolve their disputes to date. However the Panel is interested in views about the proposed scope.
    37. The Panel considers that potential scenarios could include where:
     the financial firm no longer exists (for example, because of insolvency) and therefore the dispute was either never lodged with an EDR scheme or was lodged but unable to proceed to determination;
     the monetary value of the dispute exceeded the EDR scheme’s monetary limits at the time, but could potentially fall within the monetary limits of the new Australian Financial Complaints Authority (once established);
     the dispute was outside of the EDR scheme’s time limits; or
     the consumer or small business did not pursue their dispute with the EDR scheme for other unspecified reasons (for example, because of personal circumstances, the costs of pursuing the dispute or emotional distress).
    38. These matters are discussed in more detail in the ‘Providing access to redress for past disputes’ section of this Issues Paper.
    Questions — Scope and principles
    1. Is the Panel’s approach to the scope of these issues appropriate? Are there any additional issues that should be considered?
    2. Do you agree with the way in which the Panel has defined the principles outlined in the Review’s Terms of Reference? Are there other principles that should be considered?

    COMPENSATION SCHEME OF LAST RESORT
    39. The amended Terms of Reference require the Panel to make recommendations on the establishment, merits and potential design of a compensation scheme of last resort.
    40. In its Interim Report, the Panel expressed the view that in circumstances where the market is unable to provide a solution to the problem of uncompensated consumer losses, there is considerable merit in introducing an industry funded compensation scheme of last resort. In light of the amendment to the Terms of Reference, the Panel is seeking additional information from stakeholders on these issues.
    41. In this section of the Issues Paper, the Panel first considers the problem which a compensation scheme of last resort seeks to address: the issue of uncompensated consumer losses. This is followed by a discussion of the financial system’s existing framework for compensating consumer losses and the compensation arrangements in other sectors and internationally. The Issues Paper then describes the arguments which are made for and against a compensation scheme of last resort, and discusses the potential design issues with such a scheme. Finally, the issue of legacy unpaid determinations is considered.
    PROBLEM BEING ADDRESSED — UNCOMPENSATED CONSUMER LOSSES
    42. Under the existing EDR framework, there are situations where an EDR body orders that a claimant be paid compensation, but that compensation is not paid.
    43. As at 2 May 2017, $13,909,635.50 (excluding interest) and $399,862 (excluding interest) in determinations made in favour of complainants by FOS and CIO, respectively, had not been paid.
    44. These uncompensated losses are relevant to the Panel’s Terms of Reference in two ways. First, they indicate a problem that is likely to recur, creating further unpaid determinations in the future (which is the focus of most of this section). Secondly, it raises the question of whether complainants who have an existing unpaid determination should be compensated (which is considered in more detail at paragraphs [116]-[123]).

    45. The impact of uncompensated consumer losses can be significant and wide ranging, including:
     individuals will often experience severe emotional distress and financial hardship;
     costs may be imposed on the wider Australian community as individuals are forced to rely on other forms of support, including the social security system; and
     there is an undermining of trust and confidence in the EDR framework and the financial services sector more generally.
    46. The wide-ranging nature of these losses is relevant when considering how to define ‘compensation’. For example, the Panel has heard from a stakeholder that compensation should include restitution and compensation for non economic impacts, as well as direct financial losses.
    EXISTING FRAMEWORK FOR COMPENSATING LOSSES IN THE FINANCIAL SYSTEM
    47. Where an individual suffers financial loss, they can seek compensation from the relevant firm and, in certain circumstances, from targeted compensation schemes. These schemes, which are considered in further detail at paragraphs [64] [72], cover losses associated with:
     where a market participant of the Australian Securities Exchange becomes insolvent and fails to meet its obligations to a person who had previously entrusted property to it;
     bank deposits and general insurance policies related to an Australian Prudential Regulation Authority (APRA) regulated entity in the event of insolvency; and
     fraudulent conduct or theft related to APRA regulated superannuation funds.
    48. Given the existence of unpaid EDR determinations, it is clear this framework is not delivering effective outcomes for some of its users.

    Firm level compensation arrangements
    49. The Corporations Act 2001 requires that if a financial services licensee provides a financial service to a person as a retail client, the licensee must have arrangements for compensating the person for loss or damage suffered because of breaches of the relevant obligations under Chapter 7 of the Act by the licensee or its representatives.
    50. Financial services cover a range of activities including:
     providing financial product advice;
     dealing or making a market in a financial product;
     providing custodial or depository services; and
     operating a registered managed investment scheme.
    51. Similarly, the National Consumer Credit Protection Act 2009 provides that a licensee must have adequate arrangements for compensating persons for loss or damage suffered because of a contravention of the Act by the licensee or its representatives.
    52. The objective of these requirements is to reduce the risk that losses cannot be compensated because of a licensee’s lack of financial resources.
    53. The justification for these compensation requirements include that consumers and small businesses:
     are not always in a position to assess the information provided by a licensee or the worth of the service provided;
     can incur severe financial hardship through losses resulting from the licensee’s conduct; and
     expect the level of comfort provided by a compensation regime.
    54. ASIC has stated in its regulatory guidance on the compensation and insurance arrangements for financial services licensees that the compensation requirements imposed by the Corporations Act 2001 are not intended to cover:
     product failure or general investment losses;
     all possible consumer losses relating to financial services;
     claims for loss solely as a result of the failure (for example, through insolvency) of a product issuer (that is, it is not intended to underwrite the products of a product issuer); or
     a return on a financial product that has not met expectations.
    Compensation arrangements involving professional indemnity insurance
    55. The requirement to have arrangements in place to compensate consumers is, unless the financial services licensee is an exempt licensee, subject to the requirement that the licensee hold ‘adequate’ professional indemnity insurance cover. Exempt licensees include:
     a general insurance company regulated by APRA under the Insurance Act 1973;
     a life insurance company regulated by APRA under the Life Insurance Act 1995; and
     an authorised deposit taking institution regulated by APRA under the Banking Act 1959.
    56. This exemption results in a large number of EDR scheme member firms not relying on professional indemnity insurance to compensate their customers where they suffer financial loss.
    57. For those firms required to hold professional indemnity insurance, the question of whether an insurance policy is adequate depends on a number of factors, including:
     the amount and scope of cover;
     whether the terms and conditions of the cover undermine the objective of providing compensation; and
     whether the licensee has sufficient financial resources to enable the professional indemnity insurance policy to work in practice.
    58. In relation to having sufficient financial resources available, ASIC has observed that firms should assess what financial resources are required (to cover the excess and gaps in cover due to various exclusions) and ensure they have appropriate financial resources available.
    59. Before granting an Australian Financial Service (AFS) Licence, ASIC asks licence applicants about their professional indemnity insurance arrangements and will not grant a licence until it is satisfied that the applicant has the necessary arrangements in place. However, ASIC does not approve professional indemnity insurance arrangements, nor does it have data about the renewal of advice licensees’ professional indemnity insurance cover.
    60. The Panel notes there is currently a paucity of data about the professional indemnity insurance market, in particular, the policies held by financial services licensees and credit licensees. This raises particular challenges for the Panel.
    61. The objective underpinning the professional indemnity insurance requirement is to reduce the risk to a firm that compensation claims cannot be satisfied by the firm due to a lack of financial resources. It is not to provide compensation directly to consumers.
    62. ASIC, in its December 2015 report, Professional indemnity insurance market for AFS licensees providing financial product advice, identified a number of the inherent limitations of using professional indemnity insurance as a compensation mechanism, including:
     ‘[professional indemnity] insurance is designed to protect AFS licensees against business risk. It is neither intended nor designed to provide compensation directly to consumers. Therefore, even if a consumer is successful in their claim made to an EDR scheme, it is the AFS licensee that must make a claim on its PI insurance to compensate the consumer as required. The consumer cannot claim directly on the PI insurance’; and
     ‘[w]hile ASIC provides detailed guidance to AFS licensees, [it] cannot regulate for a market driven product. [It] cannot require insurers to extend or limit cover, nor can [it] prescribe key product features or policy terms, or influence price or the operation of exclusions and excesses’.
    63. Submissions to the Panel’s Issues Paper of 9 September 2016 also indicated there are significant limitations in relying upon professional indemnity insurance to provide compensation to consumers, which are outlined below.
    Limitations of using professional indemnity insurance as a compensation mechanism
    Stakeholders responding to the Panel’s Issues Paper indicated there are significant limitations in using professional indemnity insurance as a compensation mechanism, including:
    • the total funds available under a policy may not cover all of the compensation awarded against the insured;
    • the policy may not cover the conduct which gave rise to the order for compensation (for example, fraud);
    • the amount of compensation payable may be less than the policy’s excess; and
    • cover may not have been taken out at all and self certification often means this is only discovered after the firm is insolvent.

    Compensation schemes for specific losses in the financial system
    64. A number of targeted compensation schemes currently operate in the financial system to protect consumers from specific types of losses.
    National Guarantee Fund
    65. The National Guarantee Fund (NGF) is a compensation fund available to meet certain claims which arise from dealings with participants of the Australian Securities Exchange (ASX) and, in limited circumstances, participants of ASX Clear Pty Limited, which provides clearing and settlement services. A range of claims can be paid under the NGF, but of particular relevance are claims relating to compensation for loss that results if a market participant becomes insolvent and fails to meet its obligations to a person who had previously entrusted property to it.
    66. The NGF is open to both wholesale and retail clients. There is no cap on claims of compensation for loss arising where a market participant fails to complete a sale or purchase of securities, makes an unauthorised transfer of securities, or cancels or fails to cancel a certificate of title to quoted securities. The scheme is funded by ASX participants.
    Financial Claims Scheme
    67. The Financial Claims Scheme is an Australian Government scheme that protects retail clients of authorised deposit taking institutions (ADIs) and policy holders of APRA regulated general insurance companies from potential loss due to the failure of these institutions.
    68. For banks, building societies and credit unions incorporated in Australia, the Scheme provides protection to depositors up to $250,000 per account holder per ADI. The Scheme seeks to provide depositors with timely access to their protected deposits in the unlikely event of the failure of their ADI.
    69. For general insurers, the Scheme provides compensation to eligible policyholders with valid claims against a failed general insurer. Under the Scheme, most policyholders with the affected general insurer are covered for valid claims up to $5,000. For any valid claims of $5,000 and over, the policyholder or claimant must be eligible under certain criteria.
    70. The Scheme is funded by recovery action through insolvency proceedings, and if the assets are insufficient, through an industry levy on other ADIs or general insurers.
    Part 23 of the Superannuation Industry (Supervision) Act 1993
    71. Part 23 of the Superannuation Industry (Supervision) Act 1993 makes provision for the grant of financial assistance to APRA regulated superannuation funds that have suffered loss as a result of fraudulent conduct or theft. The loss must also have caused a substantial diminution of the superannuation fund leading to difficulties in the payment of benefits.
    72. Compensation limits are at the Minister’s discretion with previous grants ranging from 90 to 100 per cent of the eligible loss. If the Minister, after seeking the advice of APRA, is satisfied that the loss has caused a substantial diminution of the superannuation fund and that the public interest requires action, a financial grant may be made by government to the fund. The scheme is industry funded through a levy on APRA regulated superannuation funds and approved deposit funds.
    COMPENSATION ARRANGEMENTS OUTSIDE OF THE FINANCIAL SERVICES INDUSTRY
    73. Compensation schemes for particular types of losses have also been established from time to time in other sectors. Several examples are described below.
    Fair Entitlements Guarantee
    74. The Fair Entitlements Guarantee is an Australian Government funded scheme of last resort that provides financial assistance for unpaid employee entitlements to eligible employees who lose their job due to the liquidation or bankruptcy of their employer. To be eligible, employees need to lodge a claim with the Government within either 12 months of losing their job or the liquidation or bankruptcy of their former employer, whichever is later. Directors of companies (and their spouses or relatives) and contractors are excluded from the scheme.

    75. Once entitlements are paid to an employee under the Guarantee, the Government stands in the shoes of the employee as a subrogated creditor and is entitled to claim the amount paid, and is given priority over other unsecured creditors. The Government may also provide funds to liquidators to enable recovery efforts of the Guarantee from entities, including initiating legal proceedings to recoup any funds paid.
    Travel Compensation Fund
    76. The national licensing rules for travel agents, which were in place until 30 June 2014, required participation in the Travel Compensation Fund (TCF) as a precondition for being licensed. The TCF’s purposes were to:
     ensure that only persons who had sufficient financial resources could join, or continue to participate in, the fund and therefore carry on business as a travel agent; and
     provide compensation to eligible consumers who had suffered financial loss as a result of the bankruptcy or insolvency of a registered travel agent.
    77. The TCF, which closed at the end of 2015, provided for compensation to be paid to consumers in circumstances where they had paid a licensed travel agent for travel or travel related services, and that agent subsequently failed to arrange the services requested by the consumer.
    78. The TCF was funded, relevantly, through: initial contributions by new participants; initial administration fees by new participants; and ongoing annual renewal fees.
    NSW Law Society Fidelity Fund
    79. Administered by the NSW Law Society, the Fidelity Fund receives annual contributions from solicitors as part of their Practising Certificate requirements. The money received is used to pay compensation to members of the public who successfully claim financial loss due to a solicitor’s or firm’s dishonest failure to pay or deliver trust money or property.

    80. Upon receipt of a claim, the Law Society may make further enquiries. The Fidelity Fund Management Committee decides the claim and it can allow, disallow, compromise or settle it. For almost all claims, there is a limit on payments of a total of $1,000,000 for all claims against a particular solicitor or firm. The Law Society may increase this amount, but is not obliged to do so.
    Motor Car Traders Guarantee Fund
    81. The Motor Car Traders Guarantee Fund operates in Victoria to, relevantly, meet the cost of successful claims made by consumers who have suffered a loss after purchasing a car, motorcycle or commercial vehicle, as a result of the trader failing to comply with certain conditions of the Motor Car Traders Act 1986 (Vic) (such as compliance with warranty provisions or transferring title to the car).
    82. Claims for compensation from the Fund are heard by the Motor Car Traders Claims Committee. Attempts must have first been made to resolve the complaint directly with the motor car trader (IDR). Making a claim is free of charge, with the maximum amount awarded being $40,000. The Fund is funded through motor car traders’ licensing fees and penalties paid for breaches of the Motor Car Traders Act 1986 (Vic). The Fund seeks to recover amounts paid out against the licensee.
    INTERNATIONAL FINANCIAL SERVICES INDUSTRY COMPENSATION SCHEMES
    83. Compensation schemes have been established in the financial services industry in other jurisdictions to address issues associated with consumers who have suffered financial losses (see table below).
    84. While a number of the schemes in these jurisdictions are targeted at specific types of loss, similar to the existing approach in Australia, the United Kingdom has introduced a single, comprehensive scheme covering a broad range of losses, including those not currently covered by Australia’s targeted compensation schemes, such as losses associated with poor quality financial advice.

    Table: International financial services industry compensation schemes
    United Kingdom Canada United States European Union
    Range of claims covered The scheme covers banks and building societies, credit unions, insurance, home finance, investments, pensions and endowments Provides protection for cash, securities and other property held by investment firms on behalf of clients Protects against the loss of cash and securities held by clients of a brokerage firm Provides protection where an investment firm is unable to return money or instruments belonging to its investors
    When can an applicant apply? When the scheme is satisfied the firm is unable, or likely to be unable, to pay claims against it When the firm becomes insolvent When the firm becomes insolvent When the authorities have determined the firm is unable to meet its obligations arising out of investor claims
    Who can apply? Individuals and small businesses All investors are eligible All investors (with limited exceptions) Normally retail investors
    Level of compensation awarded For investment claims, up to £50,000 per person per firm Up to C$1 million Up to US$500,000 for securities and cash (including a $250,000 limit for cash only) The Directive requires minimum compensation of €20,000 per investor, but Member States can provide higher levels
    Funding Industry funded Industry funded Industry funded Industry funded
    Administration Independent scheme but accountable to the regulators Independent scheme Independent scheme Independent schemes

    Questions — Existing compensation arrangements
    3. What are the strengths and weaknesses of the existing compensation arrangements contained in the Corporations Act 2001 and National Consumer Credit Protection Act 2009?
    4. What are the strengths and weaknesses of the National Guarantee Fund, the Financial Claims Scheme and Part 23 of the Superannuation Industry (Supervision) Act 1993?
    5. Are there other examples of compensation schemes of last resort that the Panel should be considering?

    EVALUATION OF A COMPENSATION SCHEME OF LAST RESORT
    85. In response to the Panel’s Issues Paper of 9 September 2016 and Interim Report of 6 December 2016, the Panel received a large number of submissions which supported establishing a compensation scheme of last resort, although there were different views expressed in relation to the scheme’s design. Stakeholders submitted that the current compensation arrangements for consumers were inadequate and that a scheme was important to:
     ensure that consumers who suffer loss from misconduct are compensated;
     build trust and confidence in the current EDR arrangements; and
     ensure trust and confidence in the financial services sector more generally.
    86. Consistent with the view that the existing compensation requirements should be strengthened, the Australian Bankers’ Association (ABA) submitted that it supported establishing a mandatory, prospective compensation fund that covers individuals and small businesses who have received poor financial advice, and have not been paid a determination made by an ASIC approved EDR scheme due to the validated insolvency or wind up of a financial advice business, where all other redress avenues have been exhausted. Further information on the ABA’s proposal is set out later in this section.

    87. The ABA also stated that a scheme should be accompanied by other reforms to reduce the likelihood of unpaid determinations, including:
     a greater professionalisation of financial advice (the Panel notes the Government’s recent reforms to lift the professional, education and ethical standards of financial advisers);
     expanding the availability and coverage of professional indemnity insurance, including run off cover, insolvency, fraud and other misconduct;
     ensuring the scheme is well understood by consumers of financial products so that it is clear it is a last resort scheme, and not intended to cover investment losses; and
     ASIC requiring an annual assurance statement from all AFS licensees that they have met their licence obligations, including compliance with ASIC’s Regulatory Guide 126: Compensation and insurance arrangements for AFS licensees and Regulatory Guide 166: Licensing: Financial requirements.
    88. The Panel also received submissions from stakeholders who held concerns about a compensation scheme of last resort, stating amongst other matters that:
     all taxpayers would be required to subsidise the scheme, as even with risk mitigation strategies, risk would not be fully priced into the market, with market participants and regulators taking on extra risk;
     it would be inequitable to impose the costs associated with a compensation scheme of last resort on compliant financial firms;
     appropriate professional indemnity and capital requirements would reduce the likelihood of unpaid FOS determinations in the first place and these should take priority; and
     any increase in levies or other funding would increase the costs for firms, with many of those costs ultimately borne by consumers.
    89. A number of submissions also referred the Panel to the 2012 report prepared by Mr Richard St. John, Compensation arrangements for consumers of financial services.

    Richard St. John report: Compensation arrangements for consumers of financial services
    In April 2010, Mr Richard St. John was asked by the Australian Government to consider the need for, and costs and benefits of, a statutory compensation scheme for financial services.
    In April 2012, the report was published and it concluded that it would be inappropriate, and possibly counter productive, to introduce a more comprehensive last resort compensation scheme to underpin the current relatively light compensation regime for financial advisers and other providers of financial services. Given the limited regulatory measures to protect retail clients from the risk of licensee insolvency, it was found that it would be inappropriate to require more responsible and financially secure licensees to underwrite the ability of other licensees to meet claims against them for compensation.
    The report made a number of recommendations aimed at strengthening the existing compensation requirements, including:
    • licensees providing additional assurances to ASIC in relation to their professional indemnity insurance cover; and
    • for ASIC to take a more proactive stance on monitoring licensee compliance with compensation requirements.
    In April 2013, the then Australian Government released its response accepting the report’s recommendations.

    90. The Panel is also aware that there are claims that moral hazard issues may arise with the existence of a compensation scheme of last resort. Moral hazard can arise where individuals assume risks as they know someone else is protecting them against possible financial loss.
    91. The introduction of a scheme may, for example, encourage consumers to become complacent about the risks of dealing in the market and induce riskier behaviour by financial firms. Further, it may reduce the incentive for stringent regulation or rigorous administration of the existing compensation arrangements.

    Questions — Evaluation of a compensation scheme of last resort
    6. What are the benefits and costs of establishing a compensation scheme of last resort?
    7. Are there any impediments in the existing regulatory framework to the introduction of a compensation scheme of last resort?
    8. What potential impact would a compensation scheme of last resort have on consumer behaviour in selecting a financial firm or making decisions about financial products?
    9. What potential impact would a compensation scheme of last resort have on the operations of financial firms?
    10. Would the introduction of a compensation scheme of last resort impact on competition in the financial services industry? Would it favour one part of the industry over another?
    11. What flow on implications might be associated with the introduction of a compensation scheme of last resort? How could these be addressed to ensure effective outcomes for users?
    12. What other mechanisms are available to deal with uncompensated consumer losses?
    13. What relevant changes have occurred since the release of Richard St. John’s report, Compensation arrangements for consumers of financial services?

    POTENTIAL DESIGN OF A COMPENSATION SCHEME OF LAST RESORT
    92. The Review’s Terms of Reference require the Panel to make recommendations on the potential design of a compensation scheme of last resort. Some of the potential design features are outlined below.
    Types of claims covered
    Inclusion of small business disputes
    93. The Corporations Act 2001 requires financial services licensees to have dispute resolution and compensation arrangements in place for financial services provided to a retail client in accordance with the Corporations Act 2001. A retail client, relevantly, includes consumers and small businesses. Under the National Consumer Credit Protection Act, licensees must be a member of an approved external dispute resolution scheme and have in place adequate compensation arrangements. As a matter of principle, there are strong policy grounds for small businesses having access to any compensation scheme of last resort.
    Financial advice disputes vs all disputes
    94. Disputes relating to the provision of financial product advice currently make up the largest proportion of unpaid FOS determinations. These are followed by disputes with operators of managed investment schemes and credit providers.
    95. In terms of the types of disputes covered by a compensation scheme of last resort, a broad compensation scheme would provide the greatest possible protection for consumers and small business. However, it would also increase the potential costs for those responsible for funding the scheme, who may then seek to pass those costs on, for example, to their customers and shareholders.
    Accessing the scheme
    Qualifying conditions
    96. Before a claimant can access a compensation scheme of last resort, there is the potential for imposing qualifying conditions. For example, the claimant may have to prove they have received an EDR determination in their favour and the relevant firm (which is a member of the compensation scheme) is insolvent, has stopped trading or has insufficient assets to meet the claims made against it. Claimants may also have to wait for a specified period of time before making a claim or prove they have taken particular steps to satisfy the EDR determination from the firm.
    97. An additional issue is how an individual could access a compensation scheme of last resort where the financial firm is insolvent and unable to defend a matter which is brought before an EDR body. Under the existing EDR scheme arrangements, there is the potential for complaints to be closed early in the process where there is no reasonable prospect of any order for compensation being met.
    Court judgments
    98. If a compensation scheme of last resort was established, it could apply only in relation to unpaid EDR determinations, or it could also apply where court-ordered compensation had not been paid. If a scheme were to include court judgments, it would be necessary to consider whether this should be subject to any restrictions—for example, whether any payments from the scheme should be subject to the monetary limits and compensation caps that apply in the EDR system.
    99. Class action litigation would raise further questions—such as whether claimants with a right to compensation arising from a class action should have access to the scheme at all; whether payments from the scheme should include payments for legal costs or only compensation; and whether litigation funders should be able to recover from the scheme, either directly or indirectly through their contracts with the class of claimants.
    Reviewing an EDR scheme’s determinations
    100. Where an individual has received an EDR determination in their favour, a question arises in relation to whether any compensation scheme of last resort is able to independently review the EDR determination or whether it should simply accept the EDR scheme’s determination of the merits of the dispute.
    101. In the United Kingdom, after an individual has made a claim to the Financial Services Compensation scheme (FSCS), the FSCS investigates and decides for itself, based on its own rules and liability standards, whether an individual should be paid compensation. That is, it is not bound by an EDR determination. For example, in relation to claims made against certain investment businesses, the FSCS may pay compensation “only to the extent that the FSCS considers that the payment of compensation is essential in order to provide the claimant with fair compensation”.
    Funding
    102. Internationally, compensation schemes of last resort in the financial sector are industry funded. However, there is also the possibility of other funding models, such as those which have a degree of government involvement.
    103. Under an industry funding model, there are a variety of ways to allocate the scheme’s cost amongst contributors. For example, the United Kingdom’s FSCS adopts a funding class model to cover its compensation costs. A participant firm’s permissions to conduct activities determine which class, or classes, it belongs to. If a firm is a member of more than one funding class, they are required to contribute to both classes. Each of the relevant funding class has a threshold to try to ensure that firms’ contributions to the FSCS are affordable and sustainable. If compensation and specific costs in a funding class are so high that the threshold is breached, firms in other classes are called upon to contribute.
    104. While grouping firms based on the types of activities they carry on can create incentives for firms to work together at an industry level to improve practices, it can result in levies being subject to high degrees of volatility where those activities are subject to a high number of claims.

    105. By contrast, while a single class funding model may reduce volatility, it raises issues around cross subsidisation as firms in one sector who are operating consistent with their legal obligations are required to subsidise the actions of firms in other sectors who are not.
    106. The Panel notes that the United Kingdom’s Financial Conduct Authority is currently consulting on options for changing the funding of the FSCS and the coverage it provides to consumers, and specific proposals to change rules around the scope and operation of FSCS funding.
    Compensation caps
    107. In compensation schemes of last resort, caps are often placed on the total size of claims that can be paid in order to manage the impact on the scheme from any one event. If any scheme was limited to unpaid EDR determinations, the compensation caps or monetary limits for the EDR scheme could act as limits for the scheme.
    Scheme administration
    108. There are a number of ways that a compensation scheme of last resort could be administered. For example, the scheme could be administered by Government with appropriate legislative backing (similar to the Fair Entitlements Guarantee, as described above).
    109. Alternatively, the scheme could be industry administered with regulatory oversight. For example, an industry administered scheme, including its terms of reference, could be introduced by legislation. Similarly to the current provisions which require particular firms to be a member of an approved EDR scheme, legislation could require particular firms also to be members of a compensation scheme of last resort.
    110. Any compensation scheme of last resort could form a part of the existing industry EDR arrangements, or operate as a stand alone scheme.
    A scheme’s ability to recover compensation
    111. In circumstances where a compensation scheme of last resort makes a payment to a claimant, the scheme may seek to recover this compensation from the firm that failed to satisfy the EDR determination. For example, as described earlier in this section of the Issues Paper, under the Fair Entitlements Guarantee program, once entitlements are paid to the employee, the Commonwealth stands in the shoes of the employee as a subrogated creditor and is entitled to claim in the liquidation and is given priority over other unsecured creditors under the Corporations Act 2001.
    112. A related issue is the role played by ASIC where an EDR scheme member fails to pay a determination. For example, ASIC may have a role in bringing regulatory action against the firm and those who control it.
    Interaction with other compensation schemes
    113. A number of compensation schemes already operate within the financial services sector. For example, the Superannuation Industry (Supervision) Act 1993 provides for compensation dealing with losses from fraudulent conduct or theft in an APRA regulated superannuation fund.
    114. The introduction of a compensation scheme of last resort would raise issues about how the new scheme would interact with existing schemes. It would be important to ensure that consumers knew which scheme to access depending on the circumstances and that firms were making appropriate financial contributions.
    Stakeholder proposals for a compensation scheme of last resort
    115. In response to the Panel’s initial Issues Paper and Interim Report, submissions were received from a number of stakeholders on this issue, with the ABA and FOS providing detailed comments. The Panel has highlighted these proposals to assist stakeholders in responding to design issues, but they do not represent a preferred view of the Panel. A summary of these two proposals is contained below.
    Australian Bankers’ Association proposal
    The ABA supports establishing a mandatory, prospective compensation fund that covers individuals and small businesses who have received poor financial advice, and have not been paid a determination made by an ASIC approved EDR scheme due to the validated insolvency or wind up of the financial advice business, where all other redress avenues have been exhausted.
    However, the ABA believes that managing the risk to consumers of unpaid determinations requires a multifaceted response. The introduction of a last resort compensation scheme must be accompanied by other measures and reforms to reduce the likelihood of unpaid EDR determinations, both to ensure the scheme is truly a last resort, and promote the long term viability and success of a scheme. These measures include reforms relating to professional indemnity insurance, AFS licensing criteria, enhanced enforcement ASIC powers, and the professionalisation of financial advice.
    Australian Bankers’ Association proposal (continued)
    Types of claims covered
    The scheme should cover failures that arise in the context of a relationship where personal advice on Tier 1 products, and/or general advice on Tier 1 products is provided to retail customers. Tier 1 products are all financial products except those listed under Tier 2. Tier 2 products are generally simpler and better understood than Tier 1 products. The failure could relate to Corporations Act 2001 breaches, fraud, negligence, misrepresentation and administrative errors connected with the advice relationship.
    The scheme should cover general advice provided by financial advisers, product manufacturers and robo advisers (who deliver financial advice online using algorithms and technology), as well as personal advice to avoid market distortions and take account of the low level of consumer understanding of the difference between personal and general advice. The scheme is not intended to cover retail bank staff providing retail banking services.
    The scheme should not cover businesses that only provide dealing or arranging services, such as securities dealers or derivatives dealers, nor should it cover research houses that publish reports containing general advice.
    Scheme membership
    The scheme should require all AFS licensees who offer personal financial product advice and certain general advice to a retail client to be a member and contribute to the scheme. The scheme should be mandatory, with compulsion underpinned by a legislative or regulatory requirement.
    Access to the scheme
    There should be a validated insolvency or wind up of the financial advice business, and all other redress avenues should have been exhausted.
    Generally, there would be an expectation that a customer would resort to the financial adviser (and through the financial adviser the professional indemnity insurer), the financial resources of the financial adviser, and would have explored legal enforcement options. Evidence will be required (possibly from a registered liquidator or administrator) that the assets of the financial advice business will not cover the determination.

    Australian Bankers’ Association proposal (continued)
    Funding
    Broadly, the ABA supports a levy structure comprising:
    • a prefunded establishment levy, based on borrowings from industry;
    • prefunded management levies to support the operation of the compensation scheme of last resort and repay establishment levies; and
    • prefunded compensation levies.
    Funding contributions need to be calculated taking into account different advice models, such as general advice representative models, product manufacturers that provide financial advice, and robo advice businesses. The calculation would need to balance appropriate risk weightings with the cost of administering the contributions.
    The introduction of a scheme should work in an integrated way with other regulatory, professional and risk management structures, so as to actively encourage improved practice and professionalism at the level of individual advisers and practices.
    Compensation caps
    The ABA is of the view that the size of disputes and the quantum of compensation awards considered by the scheme should align with or be no greater than that provided by the EDR scheme.
    Scheme administration
    The structure of the scheme should be developed through flexible, industry based processes, with appropriate legislative underpinning to ensure all financial advisers contribute to the scheme. A largely industry based process will ensure the scheme can be established in a timely way, and to enable flexibility to adjust its remit, terms of reference and processes over time.
    The governance arrangements should include:
    • a board, with representation including an independent chair, a legal expert and an equal number of industry and consumer representat
    1 month ago
  • Charles Ponzi created a new topic ' Whistleblower law firm Zuckerman Law' in the forum.
    Zuckerman Law Washington DC Whistleblower Retaliation and Award Law Firm

    202.262.8959

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    Image of Comey's Testimony Underscores Need for Strong Whistleblower Protections
    Comey’s Testimony Underscores Need for Strong Whistleblower Protections

    By Jason Zuckerman | June 13, 2017
    4

    For me, the most telling moment of former FBI Director Jim Comey’s June 8th testimony occurred early in the hearing, when Mr. Comey choked up as he recalled the White House’s publicly stating that the President had fired him because the “FBI was in disarray.”

    This emotional display seemed out of character for Mr. Comey. While U.S. Attorney for the Southern District of New York, he successfully prosecuted organized crime. As Deputy Attorney General during the George W. Bush Administration, Mr. Comey refused to sign an extension of the warrantless domestic spying program and defied the White House Counsel and Chief of Staff. Mr. Comey can fairly be described as a “tough guy.” So how did he go from leading the most powerful law-enforcement agency worldwide to being labeled a “leaking liar”?

    To an experienced whistleblower advocate, Mr. Comey’s predicament is not surprising. Mr. Comey’s experience, unfortunately, is like those of many whistleblowers I have represented over more than a decade. President Trump promised to bring a business approach to government—and his retaliation against Mr. Comey is straight out of the corporate defense playbook. Corporations typically take the following steps of escalating retaliation to silence whistleblowers:
    Intimidate and Silence the Whistleblower

    In his June 8th testimony, Mr. Comey described in detail how the President had asked him to drop the investigation of Michael Flynn and had conditioned Mr. Comey’s job on “loyalty” to him. Senator Rubio expressed skepticism about Mr. Comey’s feeling intimidated by the President and blamed Mr. Comey for not pushing back. But that type of Monday-morning quarterbacking ignored the power dynamics of the conversation. Mr. Comey wanted to keep his job and was understandably reluctant to accuse the President of obstructing an investigation.

    Whistleblowers often confront this intimidation tactic in the workplace. A supervisor or senior company official tells the whistleblower to “let it go,” “mind your own business,” or learn to be a “team player.” And in some cases, the whistleblower is told to shut up if he or she wants to remain employed. Threats of retaliation, whether express or implicit, are powerful tools to silence a whistleblower. When a company officer or senior manager orders a subordinate to do something unlawful or to cover up unlawful conduct, holding firm to one’s ethical values is not an easy avenue to follow. As Mr. Comey learned, refusing to carry out an unlawful order may be career suicide, at least in the short term.
    Retaliate Swiftly and Severely Against the Whistleblower

    Initially, the bizarre method of firing Mr. Comey seemed surprising for a President who perfected the art of firing on his reality show, The Apprentice. Mr. Comey was not given an opportunity to resign; he was not even notified that he had been fired. But now that we know about the President’s real motive for firing Mr. Comey, it’s clear that his tack was deliberate.

    Mr. Comey learned of his firing while addressing FBI agents at a Los Angeles field office when the announcement flashed across a television screen. The White House had announced Mr. Comey’s firing without notifying Mr. Comey himself. President Trump sent a loud and clear message to Mr. Comey and to every senior government official about the consequence of disloyalty.

    In the corporate workplace, whistleblower-employees are similarly humiliated as a warning to their colleagues. A whistleblower may be escorted out of the office with security guards while other employees are present, pulled out of a meeting and fired on the spot in front of colleagues, or simply fired via text message. When a corporation fires a whistleblower in this humiliating fashion, it ensures that all other employees know the consequence of whistleblowing.
    Badmouth the Whistleblower and Their Work History

    Firing Mr. Comey in a humiliating and offensive manner served only as phase one. President Trump then defamed Mr. Comey and asserted that he fired him because of chaos within the FBI, as well as the alleged loss of confidence in Mr. Comey among FBI agents.

    These statements stand in stark contrast to the President’s repeated, public praise of Mr. Comey before Mr. Comey refused to comply with the President’s “hope” that Mr. Comey drop the investigation of Flynn. Indeed, if President Trump believed that Mr. Comey’s leadership caused chaos within the FBI, then why did the President invite Mr. Comey to continue to serve as FBI Director?

    This patent distortion of Mr. Comey’s performance record is an all-too-common experience of whistleblowers. Prior to blowing the whistle, they receive strong performance evaluations and bonuses; they are valued members of the team. But once they blow the whistle and refuse to drop their concerns, they are suddenly deemed incompetent and unqualified for their position. And when a company realizes that it lacks any existing basis to fire the whistleblower, it creates one by subjecting the whistleblower to heightened scrutiny and setting the whistleblower up to fail. For example, a company might place the whistleblower on a performance-improvement plan that contains impossible objectives, and then fire the whistleblower for not meeting those unattainable goals.

    This tactic may backfire and enable a whistleblower to ultimately prevail at trial, but the damage to the whistleblower’s reputation is permanent. Prospective employers are reluctant to hire someone who previously fired for poor performance and are especially reluctant to hire a whistleblower. Many whistleblowers never find comparable employment and must accept lower-level positions, earning a fraction of what they did before their wrongful termination.
    Attack the Whistleblower’s Credibility

    Apparently, President Trump has no evidence to rebut Mr. Comey’s vivid account of the President’s alleged attempts to obstruct justice. So President Trump called him a “liar.”

    Desperate to defend themselves at all costs, corporations frequently employ this tactic—labeling the whistleblower a disgruntled former employee who will say anything to win his or her case. So far, this is not working well for President Trump, whose accusation merely serves to shine a spotlight on his own questionable credibility.

    Attacking a whistleblower’s credibility is an effective and pernicious tactic in many whistleblower cases. Once expelled from a company, a whistleblower is marginalized and alienated from former coworkers. The key witnesses continue to work at the company and, fearing retaliation, are reluctant to corroborate the whistleblower’s testimony. Though whistleblowers may still prevail (for example, by using documentary evidence), the attack on a whistleblower’s credibility is odious because the company fired the whistleblower precisely for having integrity.
    Create a Post-Hoc Justification for Firing the Whistleblower

    Prior to firing Mr. Comey, President Trump papered the file with a post-hoc justification for the firing. After the President decided to fire Mr. Comey, Deputy Attorney General Rod Rosenstein was tasked with drafting a memorandum to the Attorney General outlining concerns about Mr. Comey’s performance. Most of those concerns focus on Mr. Comey’s statements about the investigation of former Secretary of State Hillary Clinton’s use of a private email server. Surely President Trump knew of those public statements when he repeatedly asked Mr. Comey to remain as FBI Director (as long as he could pledge “loyalty” and drop the Flynn investigation).

    In this case, the White House’s initial reliance on the Rosenstein memo as the basis for the decision to fire Mr. Comey backfired because President Trump told NBC anchor Lester Holt that he had decided to fire Mr. Comey regardless of the memo. In many whistleblower-retaliation cases, however, these types of pretextual memos may be persuasive. Some judges even rely on such memos, which mask the real reason for a firing or other adverse action, to grant the company summary judgment and deny the whistleblower a jury trial.

    On the other hand, creating a post-hoc justification for a retaliatory adverse action sometimes misfires by providing strong evidence of pretext and spurring a jury to award punitive damages. For instance, a former in-house counsel at Bio-Rad Laboratories recently secured more than $11 million in damages at trial in a Sarbanes-Oxley whistleblower-retaliation case. The jury awarded $5 million in punitive damages because Bio-Rad had backdated a negative performance evaluation of the whistleblower that the company drafted after it fired him.
    Focus on the Whistleblower’s Alleged Misconduct

    To distract attention from what may be obstruction of justice, President Trump and his attorney have focused on Mr. Comey’s leak to the press and have alleged that the leak was unlawful. This accusation seems frivolous because Mr. Comey did not leak classified information, grand jury material, or other sensitive information. Instead, he revealed that President Trump had conditioned his continued service as FBI Director on his agreeing to drop the investigation of Flynn. As a private citizen, Mr. Comey has a constitutional right to blow the whistle to the media about this matter of public concern. Mr. Comey did not reveal to the media information from FBI investigative files or classified information. Yet President Trump and his allies compare Mr. Comey to leakers who illegally disclosed classified information. This is an appalling accusation against the former head of a law-enforcement agency.

    But this is another standard corporate defense tactic in whistleblower cases. To divert attention from the wrongdoing that the whistleblower exposed, the company uses its substantial resources to dig up dirt on the whistleblower. The company or its outside counsel examines the whistleblower’s timesheets and expense reports with a fine-tooth comb to find any discrepancy, reviews every email to find some inappropriate communication, and places all of the whistleblower’s work under a microscope to find any shortcoming.
    Sue the Whistleblower and Initiate a Retaliatory Investigation

    Firing Comey, concocting a pretextual basis for the firing, and branding him a leaking liar apparently was not sufficient retaliation. So shortly after his testimony, President Trump’s personal attorney announced his intention to sue Mr. Comey and/or file a complaint with the Department of Justice Office of Inspector General (OIG). I am skeptical that a civil action against Mr. Comey or an OIG complaint poses any real legal threat to Mr. Comey. To the contrary, such a complaint would likely pose a greater risk for President Trump, including potential counterclaims and the risk of being deposed or questioned under oath by the OIG.

    The misuse of legal process against corporate whistleblowers, however, is an especially powerful form of retaliation in that it can dissuade a whistleblower from pursuing their claims. When I defend against this form of abuse of process, I am always struck at the seemingly endless resources that the company will spend to prosecute claims lacking any merit or value. Fortunately, these claims can go awry by spawning additional retaliation claims under the whistleblower protection laws. And a jury can punish the employer for subjecting the whistleblower to abuse of process.
    Why Whistleblowers Deserve Strong Legal Protection

    In light of Mr. Comey’s distinguished record, he will likely bounce back and rebuild his career. But most corporate whistleblowers never fully recover. Too often they find their careers and reputations destroyed. Even when whistleblowers obtain monetary relief at trial, they are usually blacklisted from comparable positions, especially if they work in a small industry.

    Mr. Comey’s experience as a whistleblower is a stark reminder of what can happen to any employee who is pressured by a powerful superior to engage in unlawful conduct or to cover up wrongdoing. When intimidation tactics succeed, the public suffers. The company could be covering up threats to public health or safety, environmental contamination, financial fraud, defective products, or any other conceivable harmful wrongdoing.

    Courageous whistleblowers who put their jobs on the line deserve strong protection. As Congress embarks on a mission to gut “job killing” agencies, let us hope it will spare the very limited resources that are spent enforcing whistleblower-protection laws. Without such a large backlog of whistleblower cases, OSHA could have, for example, addressed the complaints of Wells Fargo whistleblowers years ago, potentially curbing or halting the bank’s defrauding of its customers. And Congress should consider filling the gaps in existing whistleblower laws. If Mr. Comey “lacked the presence of mind” to explicitly reject the President’s improper demand for him to drop the Flynn investigation, then surely most employees would also be reluctant to refuse an order to commit an unethical or unlawful act.

    After Mr. Comey’s testimony, Speaker Ryan pointed out that “[t]he President’s new at this. He’s new to government.” Mr. Comey’s testimony should be a lesson for the President about how to treat whistleblowers. To make America great again, the President should abandon the Rambo litigation tactics that apparently served him well in New York real-estate disputes, and instead view whistleblowers as allies, not as enemies. As Tom Devine of the Government Accountability Project and I argue in an article in the Emory Corporate Governance and Accountability Review, Draining the Swamp Requires Robust Whistleblower Protections and Incentives.

    Jason Zuckerman represents whistleblowers nationwide in whistleblower rewards and whistleblower retaliation claims. Recently Matt Stock and Zuckerman issued an ebook titled SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.



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    Categories: Corporate Whistleblower, federal whistleblower protections, Whistleblower Protection, Whistleblower Protection Law, Zuckerman Law

    Tags: Corporate whistleblower protection, federal whistleblower protection, whistleblower protection, whistleblower protection laws
    About the author
    Avatar of Jason Zuckerman

    Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. He is rated 10 out of 10 by Avvo, was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015 and selected by his peers to be included in The Best Lawyers in America® and in SuperLawyers.

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    1 month ago
  • Charles Ponzi created a new topic ' APRA's new laws on Bank Directors' in the forum.
    New laws could punish 'honest if mistaken judgments': Harrison Young

    8 June 2017

    Clancy Yeates

    www.smh.com.au/business/banking-and-fina...20170608-gwn8ls.html

    The government's plan to beef up the banking regulator's powers could see executives facing stiff penalties for "honest, if mistaken, risk judgments", Commonwealth Bank director Harrison Young says.

    Amid intense debate about how banks can improve their battered public reputations, Mr Young on Thursday weighed in on the new executive accountability facing banks which will give the regulator new powers to ban senior bankers.

    It's a very difficult thing to put into place and I'm not sure how it will work," Mr Young said of the new powers

    given to APRA.

    "Language in the Treasurer's announcement suggested bankers, not just the bank, but individual bankers,

    starting with the CEO and down into the organisation, could be punished for bad judgment regarding risk."

    Mr Young said that was very different from punishing misconduct in dealing with individual customers.

    "It seems to me you're sort of mixing up what seem like criminal penalties with honest, if mistaken, risk

    judgments."

    The new regime, announced in the budget, will require the Australian Prudential Regulation Authority to approve very senior appointments and influence how they are paid.

    Treasurer Scott Morrison has said the regulator will also have the power to act more quickly against executives who are "found guilty of crimes or caught in illicit activities where it affects their ability to do their job with competence, honesty, or integrity.”

    Mr Young said that if the laws were intended to only capture flagrantly stupid choices such as some banks made

    leading up to the global financial crisis, that might be acceptable, but it would be very difficult to write

    regulations that made that clear.

    Speaking later, he said that "risk management in banks is a team sport. It's like a continuous conversation, with individuals constructively challenging each other. It would be hard to make that sort of process work if you were assigning blame for bad decisions."

    The comments came as a former senior Barclays banker highlighted mortgage pricing as another dimension of the debate about banks' ethics.

    Steve Weston, a former head of mortgages at Barclays who now chairs a local peer-to-peer lender rival to banks, said Australian banks' practice of charging new home loan customers lower interest rates than many existing clients is the type of behaviour that will increasingly fall short of society's expectations of the financial sector.

    Steve Weston, OurMoneyMarket.

    "There are things that we are doing in Australia today, that if I went back to my former colleagues in the UK and said, 'How do you feel about these intro rates, how do you feel about differential pricing on standard variable mortgages between old customers and new', and they would go 'What? You're kidding,'" he said at a conference on banking and finance ethics.

    Mr Weston, who now chairs a non-bank competitor in OurMoneyMarket, questioned if that was an ethical practice on the part of banks.

    "How do [you] look customers in the eye and go, 'Hold on, guess what, this is what happens for loyalty – you pay

    more than the new person'."

    The comparison with the UK – where banks had to be rescued by the taxpayer during the global financial crisis, and where scandals uncovered have been more widespread than Australia – was played down by the chief executive of Westpac-owned BT Financial Group, Brad Cooper.

    Mr Cooper pointed out that Australian banks had not been embroiled in the same "mis-selling" scandals as banks in the UK.

    "Yes, we've still got things to do, but I think we're at very different starting points as well here, compared to where the UK was," Mr Cooper said.

    Another difference between the two markets is that most UK home loans are fixed-rate products, which are more difficult to renegotiate mid-way through a loan term.

    Mr Weston, who also advises banks on conduct issues, said some senior bankers realised the risks associated with some behaviour, but there was no incentive to be the "first mover". This idea – in economic jargon it is known as a "collective action problem" – is a key focus among regulators.

    Australian Securities and Investments Commission deputy chair Peter Kell said this tendency, whereby no bank wanted to move first to stamp out behaviour that might be questionable but was also profitable, was "pervasive" in finance.

    "That has a corrosive impact on outcomes for consumers and for people's adherence to basic ethical standards," Mr Kell said at the same conference.

    Mr Weston said mortgages were just one example where banks priced products in a way that was hard to justify.

    He also pointed to their use of "introductory rates" – where banks offer an attractive deal for a limited time,

    before customers revert to being more profitable for the lender.

    Several major local banks, for instance, have in recent months cut interest rates paid to long-term savers while boosting introductory rates, which are prominently advertised but paid to fewer people.




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    1 month ago
  • The "Reserve Bank documents collusion in the antitrust trainwreck" list of lawyers in the Amex Settlement as at February 2009 is here at the back. See link below to Commonwealth Bank David Murray's review.

    Judge Garaufis found Amex misrepresented the RBA, Gary Friedman pointe at Keila Ravelo, Ravelo points at Feliz's scam litigation service company. The Victorian legal Services Board blames a landlord who says he was evicted, except the real landlord points his finger at scam litigation service company operators in Brighton because they boasted about the information they got from that foreign board.

    fsi.gov.au/files/2014/08/Supported_Resid...Action_Group_Inc.pdf

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    1 month ago
  • Charles Ponzi created a new topic ' Suzi Burge, David Cohen & Justi Tonti' in the forum.
    independentaustralia.net/business/busine...he-same-part-1,10375

    (Image via @BankReformNow)

    The consumer protection inquiry began without fanfare and little MSM interest but bank victims' concerns are at least getting a hearing. Evan Jones reports in part one of this two-part investigation.

    THE CURRENT Senate Economics Committee Inquiry into consumer protection in the banking, insurance and finance sector held hearings in Sydney on Tuesday, 26 April 2017.

    You probably haven’t heard about this inquiry because the media has shown little interest. Save for scribes and witnesses waiting their turn, a mortgage broker victim and I were the only attendees. I’ve never before seen such a lack of interest in a Parliamentary inquiry hearing.

    Committee members presiding were Senator Chris Ketter (Labor, Chair), Senator Jane Hume (Liberal) and Senator Nick Xenophon (NXT).

    Those appearing before the Committee were representatives of the Australian Securities and Investments Commission (ASIC), the Financial Ombudsman Service, Choice, the Financial Rights Legal Centre and Consumer Action Law Centre, and a couple of financial industry associations. (I didn’t stay for the latter.)
    The Australian Securities and Investments Commission

    The Chair tackled the ASIC representatives on matters recently in the news — matters seriously embarrassing for ASIC.

    The first concerned the disclosure that ASIC had been for years workshopping its media releases regarding malpractice with the guilty parties. Sleuthing by The Australian’s Ben Butler (ex-Fairfax) after a long FOI battle, exposed the practice on 18 and 19 April. Fairfax’s Adele Ferguson complements the story on 21 April. This practice persisted during and after the 2013-14 Senate Inquiry into ASIC, in which ASIC was exposed as seriously derelict in its responsibilities.

    Notable is the reference to David Cohen’s involvement and ASIC’s kowtowing to him — Cohen at the CBA in 2014 but also at the AMP in 2006. This is the same David Cohen who, as CBA chief general counsel, played a dominant role in the foreclosure of close to 1,000 Bankwest business borrowers after the CBA takeover of Bankwest in December 2008 and the subsequent cover-up of its criminal character. ASIC’s deference to Cohen is definitely not a good look. Any sector that has a David Cohen as a senior player is a socially dysfunctional sector.

    The Chair also raised the matter, again from media exposure, that ASIC tolerated the persistent failure of Macquarie Bank to clean up its financial advisory arm — the failure including a compliant report from Ernst & Young.

    In reply, ASIC’s Deputy Chairman Peter Kell claimed that there was nothing untoward in ASIC-bank liaisons regarding media releases; in any case, the events are yesterday’s news. Kell also claimed that ASIC has ensured that Macquarie Bank is now well and truly accounting for past sins.

    The Chair let the parries from Kell go through to the keeper. ASIC’s sole problem, according to Kell, was the lack of additional definitive powers. For example, ASIC needs a "product intervention power" to head off products that are poorly or corruptly designed or are pushed onto the wrong people.

    Certainly, such an extension of powers for ASIC is desirable, but the Committee members allowed the ASIC representatives to set the character of the exchange. That exchange ended with hearty acceptance from the Committee members that ASIC is on the move and consumer protection is now looking rosy.
    The Financial Ombudsman Service (FOS)

    FOS’ Chief Ombudsman, Shane Tregillas, opened his segment with these claims (also published on the FOS website):

    In order to fairly and impartially resolve the disputes that come to FOS, we are independent of the parties to that dispute and of the government and of regulators. …

    [Our principles introducing FOS’ Terms of Reference] emphasise that what we do is resolve disputes fairly, informally and in a timely manner. They also stress the importance of seeking to resolve disputes cooperatively and transparently. These principles mean that, in resolving disputes, we seek to understand all aspects of the dispute without taking sides and then we make a decision based on the specific facts and circumstances of each dispute.…

    Tregillas has made such claims many times in similar circumstances. But the perennial experience of bank victims who go to FOS seeking help experience otherwise. They experience an institution incompetent and inefficient at best — in bed with the banks at worst.

    For bank victims, dealing with FOS is an immensely frustrating and depressing experience. They expect commitment, proper procedures and integrity and they generally get none of these. Time limits for the victims are arbitrarily determined, whereas the financial service providers – the guilty parties – determine their own time periods for responses.

    Several examples highlight FOS’ modus operandi. Tasmanian Suzi Burge’s complaint about the CBA was detailed in her submission’s chronology. FOS stuffed Burge around for several years, during which period her position deteriorated. FOS contented itself with partial documentation provided by the bank. FOS found in Burge’s favour on multiple counts but got the story wrong on several key accounts (as misled by the bank). Because of the (avoidable) inaccuracies, FOS’ resolution regarding compensation was trivial, incommensurate with the substance of its determination adverse to the bank. When Burge asked FOS to get it right, FOS, in the person of Justi Tonti-Fillipini, replied to the effect that, we got it wrong, that bothers me, but we’re worn out with your case, we’re understaffed, that’s it, we’re not changing anything, go away.

    Ms Tonti-Fillipini figures significantly in another case — that of the Goldsworthys and their company, Goldie Marketing, against the ANZ. Tonti-Fillipini informed the Goldsworthys’ consultant, Bruce Ford, over the phone (Ford recorded the exchange on 22 October 2014) that FOS could not take on their complaint because of staff shortages. The Goldsworthys then took FOS to court, claiming that denial of assistance on this basis was contrary to FOS’ charter.

    Tonti-Fillipini then penned a reconstructed file note, claiming a range of reasons why denial of assistance was appropriate — the note submitted to the court proceedings. Ford and the Goldsworthys were appropriately outraged. So was Senator Nick Xenophon, who opined that FOS should be disbanded and replaced by a statutory body. This matter has been admirably covered by ABC reporter Stephen Long, both on the 7.30 Report, 16 March 2016, and The Drum, 1 April 2016.

    Bizarrely, the court found for FOS (Goldie Marketing v FOS, VSC 282, 19 June 2015).

    Judge Cameron determined that:

    109 I find that the reasons given and decision made by Dr Tonti-Filippini in the November Jurisdictional Decision are "compelling" within the terms of the Operational Guidelines. They are convincing, rational, logical, reasoned and comprehensive. It has already been noted that those reasons (apart, of course, from the issue of staff resourcing) are not sought to be impugned or attacked by the plaintiffs.

    This is all just so much palaver. It may be that it was ill-advised to take FOS to court in the first place. Red lights would be flashing everywhere regarding this "attack" on the regulatory apparatus and its implied undermining of the "legitimacy" of the entire apparatus. FOS is transparently doing the bidding of ANZ in its refusal to handle the Goldworthys’ complaints. More, this impertinence of the judge complements the deep underlying bias of the courts against bank victims. That judicial bias can be read between the lines in the succeeding paragraph, where the substance of the bank customer’s complaints has been obliterated by the imperative of the bank cleaning up its books:

    Finally, the parties differed in relation to the impact of further delay in the resolution of their dispute. Whilst the plaintiffs stated that there is no urgency given the longevity of the dispute, ANZ submitted that it has effectively been prevented from exercising its enforcement rights for several years. By way of observation, it is highly desirable that commercial disputes are determined in an efficient and timely manner which invariably reduces the costs burden on all parties.

    For further exposure of FOS’s dirty linen, we turn to more submissions to the current consumer protection Inquiry.

    Let us begin with a submission (Name Withheld, #64) regarding a "trivial matter" concerning an ATM’s disbursement of a withdrawal. I have always been ready to concede that FOS handles small-scale complaints reasonably well. No. In this case, FOS refused to accept the complaint regarding the offending bank Westpac’s refusal to deal with the complainant’s concern.

    David Bibo’s submission #61 is salutary. Bibo doesn’t explain the nature of his complaint, but goes straight for the jugular. He notes that FOS rightly invalidated a "settlement" (apparently by a FOC "conciliator") that was forced on him through bullying ('How can one agree to be assaulted?', he notes) but then FOS overturned its own invalidation.

    In my own submission (#87) I claim simply that "FOS is simply corrupt”. Bibo lays it on.

    The apparent poor institutional culture and low ethical standards of the FOS and its members raise the question as to whether the FOS has any genuine intent or ability to identify, address and help prevent unconscionable, illegal and unethical behaviour of the type constantly and consistently indulged in by its members. The FOS is clearly biased towards its own members and a sham operation that regards itself and its members to be unaccountable to anyone. …

    Its members [Financial Service Providers] know they can continue to operate in a corrupt manner with immunity perpetually granted to them by the FOS in the secure knowledge that their days of getting away with misconduct, whether it is a breach of law or not, are protected by the FOS, the organisation that is meant to help protect consumers from them. …

    The FOS has become a corrupt organisation that now serves only it's equally corrupt members. When confronted with that corruption it chose to enforce and entrench it. The FOS, its conciliator and senior management representatives of the FSP lied to me in calculated, coordinated, premeditated manner.

    And so on.

    It is also instructive to examine a number of submissions for which the Secretariat has invited a FOS response — notably Harris (#74), Matheson (#75), Slattery (#76), Thomson (#78) and Nielen (#79). In addition to documenting the malpractice of the particular financial services provider/s (FSPs), the victim submission documents the maltreatment by FOS — long delays, transparently ludicrous decisions, occasional right evaluations that are backtracked on, or not reflected in the final determination.

    In each case, FOS has responded to the submissions with the same form letter. We have considered all material, it says. Well no it hasn’t. That’s a lie. We are independent, it says. By way of “proof”, it cites ASIC support (which merely indicts ASIC as well) then proceeds to claim that because we are formally independent, therefore, we are in practice independent! That’s a lie as well.

    Presumably, there is the delicate matter of not pursuing public disclosure of private details of a victim complaint. But the point of standard parliamentary inquiry procedure in seeking a response from a financial services provider or external dispute resolution organisation (as is FOS) is to seek correction or reinterpretation of the victim’s submission from that body. In all cases here, FOS merely responds with a vacuous standard form letter, without addressing the substance of the victims’ complaints.

    In the case of Suzi Burge (#69, as above) FOS’ standard letter response adds, without elaboration, a list of the court cases in which Burge has appeared (and lost). This peccadillo represents a de facto comment and involvement outside FOS’ charter (“independence”) and is reprehensible. It is a clear indication of FOS’ complicity with its bank funders. Ironically, FOS’ evaluation of the Burge complaint was that the CBA had indeed engaged in malpractice against her. FOS should be asking itself, "How did the courts come to a conclusion contrary to ours?" FOS’ charter, remember, is to provide a dispute resolution mechanism that avoids dependence on the court system.

    One of the FOS trio of senior managers appearing at the Inquiry hearing was Philip Field. Field himself is implicated in FOS’ dodgy practices. He apparently condoned the FOS’ rejection of the Goldsworthys’ complaint. In another case involving the NAB which attempted to corruptly manufacture security from a person not involved in some dodgy loans by the bank, Field sided with the bank though the evidence was naturally lacking. Field also oversaw the Determination in late 2014 legitimising the rejection by the CBA of the Sunshine Coast-based Caulfield family’s claims for financial hardship consideration and for inclusion in Queensland’s Farm Debt Mediation process.

    The Caulfields have incidentally raised a new complaint with FOS on the grounds of CBA’s ‘maladministration’ (FOS’ label for alleged bank malpractice) of their loan. FOS initially rejected this complaint on four grounds, all of which were transparently erroneous. FOS subsequently admitted that their grounds for rejection were wrong. But FOS has since moved to demanding comprehensive financial information from the Caulfields so as to assess their claims for compensation.

    The manifest unreliability of FOS means that this demand is possibly a fishing expedition to facilitate the CBA cleaning up its self-incriminating documentation that points to a corrupt manipulation of the entire loan process. It has come to the situation where bank victims can’t trust to hand information to FOS given the reasonable presumption that FOS, in collaboration with the bank offender, will use such information to crucify permanently a victim’s redress against bank malpractice.

    FOS’ slip is showing, and it doesn’t care who notices. Which highlights that FOS, like the corrupt financial system it protects, sees itself as immune from redress. This racket leaves the victims both desperate and enraged.

    Tregillas did raise the issue that:

    ‘ … current claim limits and compensation caps for consumers and small businesses under our jurisdiction are outdated and do need to be increased.’

    Certainly, both the current cutoff limit for accepting complaints and the limit of monetary compensation for small business complainants are arbitrary. More, they have been used cynically by FOS to stuff around SME complainants. However, it’s not clear that it would be a good thing to raise these limits for SMEs. If FOS has demonstrated that it is part of the problem rather than part of the solution in resolving malpractice against SMEs, raising the limits will merely compound the present bottomless pit of misery for SME victims. Either FOS should be disbanded or responsibility for external dispute resolution for SMEs should be taken from it.

    Dr Evan Jones is a retired political economist. Read Dr Jones' submission (#87) to the Senate Inquiry here. This is the first of a two-part investigation; part two tomorrow.

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    Evan JonesSenate inquiryconsumer protection inquirySenate Inquiry into consumer protection in the banking insurance and finance sector#banksRCbanking royal commissionFOCASICCBAIan Narev
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  • Charles Ponzi created a new topic ' Douglass v Boutros-Ghali, Aug 2015' in the forum.
    Another case - in August 2015 too- related to the CBA IT Bribery Scandal under the watch of the CBA's chief executives who saw nothing until Feb 2015 they claim.

    Case Name: Shawn Douglass v. Computer Sciences Corp., et al.

    Case No.: 2015-1-CV-284957

    (1) Defendants Computer Sciences Corp. and Servicemesh, Inc.’s Motion to Dismiss for Forum Non Conveniens to Plaintiff’s First Amended Complaint
    (2) Defendants Computer Sciences Corp. and Servicemesh, Inc.’s Demurrer and Demurrer to Plaintiff’s First Amended Complaint, Subject to Their Motion to Dismiss for Forum Non Conveniens
    (3) Defendant Jeff Drake’s Motion to Dismiss for Forum Non Conveniens to Plaintiff’s First Amended Complaint
    (4) Defendant Jeff Drake’s Demurrer and Demurrer to Plaintiff’s First Amended Complaint, Subject to His Motion to Dismiss for Forum Non Conveniens
    (5) Defendant Teymour Boutros-Ghali’s Joinder in the Motions to Dismiss for Forum Non Conveniens filed by Defendants Jeff Drake and Computer Sciences Corporation and Servicemesh Inc.
    (6) Defendant Teymour Boutros-Ghali’s Demurrer to the First Amended Complaint

    On December 17, 2012, plaintiff Shawn Douglass (“Douglass”) executed an employment contract to join defendant Servicemesh, Inc. (“Servicemesh”) as CTO. (First Amended Complaint (“FAC”), ¶12.) Plaintiff Douglass’s compensation included an equity award totaling 598,644 options in Servicemesh stock (“Options”). (Id.) The employment contract included special acceleration rights for the Options in the event of a change of control such as merger or acquisition. (Id.) Upon a change of control, plaintiff Douglass would receive 25% of the Options immediately and 75% of the Options if a change of control occurred and the acquiring company terminated him within one year. (Id.)

    Beginning January 25, 2013, defendant Servicemesh asked plaintiff Douglass to reach out to potential acquirers and initiate discussions. (FAC, ¶13.) Plaintiff reached out to several large corporations, including defendant Computer Sciences Corporation (“CSC”). (Id.) On February 24, 2013, plaintiff Douglass and defendant Jeff Drake (“Drake”), Servicemesh’s Executive Vice-President of Corporate Development, began talks with defendant CSC and working on the due diligence process. (FAC, ¶¶5 and 14.) In mid-March 2013, several other corporations expressed an interest in acquiring defendant Servicemesh. (FAC, ¶15.) Defendant Drake and plaintiff Douglass collaborated daily to coordinate the various due diligence matters. (FAC, ¶16.) For months, plaintiff Douglass participated in meetings with several interested bidders in parallel with defendant CSC to obtain the best price. (Id.)

    Beginning September 21, 2013, plaintiff Douglass was systematically excluded from the acquisition process and his access to the CSC deal room was revoked. (FAC, ¶17.) Officers and directors of defendant Servicemesh excluded plaintiff Douglass with the knowledge that defendant Servicemesh was going to cancel the stock option plan and redistribute the money saved from cancellation of plaintiff Douglass’s stock. (FAC, ¶18.)

    On October 28, 2013, defendant Drake informed plaintiff Douglass that cancellation of the employee option plan was likely but defendant Servicemesh’s CEO, Eric Pulier (“Pulier”) was working to obtain solid retention packages including one for plaintiff Douglass. (Complaint, ¶¶12 and 19.) After receiving confirmation that the employee option plan would be cancelled, plaintiff Douglass spoke to Pulier who told plaintiff Douglass not to worry about his stock options since the offer letter from CSC “will make up for it” and plaintiff Douglass would get a “big offer” from CSC with Pulier’s help. (FAC, ¶¶20 – 21.) Defendant Drake repeated Pulier’s statements about receiving an offer from CSC that would compensate plaintiff for his lost options. (FAC, ¶21.)

    On October 29, 2013, after seeking clarification from Servicemesh’s CFO, Teymour Boutros-Ghali (“Boutros-Ghali”), plaintiff was advised to sign the requisite disclosure documents or face termination for cause without any compensation. (FAC, ¶22.) Pulier and defendant CSC’s CTO, Dan Hushon (“Hushon”), further assured plaintiff he would receive compensation comparable to the options being eliminated in the acquisition. (Id.) In reliance on Pulier’s promises and under threat of termination, plaintiff Douglass signed disclosure documents and a release of claims. (FAC, ¶23 – 28.) Acquisition of defendant Servicemesh by defendant CSC closed on November 15, 2013. (FAC, ¶29.)

    On November 21, 2013, plaintiff Douglass received an offer letter with only a modest increase in compensation. (FAC, ¶30.) Plaintiff Douglass did not receive any restricted stock units or other compensation as promised by Pulier. (Id.) On December 7, 2013, plaintiff Douglass informed defendant CSC that he would like to be made whole on the canceled stock options as Pulier promised. (FAC, ¶31.) On December 10, 2013, defendant CSC’s Chief Human Resources Officer, Sunita Holtzer, stated defendant CSC’s general counsel would investigate and respond to plaintiff. (FAC, ¶32.) On February 12, 2014, plaintiff advised CSC that a number of financial representations made by defendant Servicemesh to defendant CSC were not accurate and specifically that there was a conflict of interest. (FAC, ¶33.) On March 11, 2014, plaintiff Douglass was informed that he was being terminated without any severance or consideration for the canceled stock options and promises made to him by defendant Servicemesh and/or CSC. (FAC, ¶34.)

    On August 27, 2015, plaintiff Douglass filed a complaint against defendants Servicemesh and CSC asserting claims for:

    (1) Breach of Oral Contract
    (2) Promissory Estoppel
    (3) Breach of the Implied Covenant of Good Faith and Fair Dealing
    (4) Intentional Misrepresentation
    (5) Negligent Misrepresentation
    (6) Unfair Business Practices Under Bus. & Prof. Code §17200
    (7) Unjust Enrichment
    (8) Restitution
    (9) Wrongful Termination/ Retaliation

    On November 16, 2015, plaintiff Douglass filed a first amended complaint (“FAC”) which now asserts causes of action for:

    (1) Breach of Oral Contract
    (2) Promissory Estoppel
    (3) Breach of the Implied Covenant of Good Faith and Fair Dealing
    (4) Intentional Misrepresentation
    (5) Negligent Misrepresentation
    (6) Unfair Business Practices Under Bus. & Prof. Code §17200
    (7) Unjust Enrichment
    (8) Restitution
    (9) Wrongful Termination/ Retaliation
    (10) Failure to Pay Wages
    (11) Declaratory Relief

    On January 15, 2016, defendants CSC and Servicemesh filed the first two motions now before the court, a motion to dismiss for forum non conveniens and, subject to the motion to dismiss, a demurrer to plaintiff’s FAC.

    On February 5, 2016, defendant Drake filed the second two motions now before the court, a motion to dismiss for forum non conveniens and, subject to the motion to dismiss, a demurrer to plaintiff’s FAC.

    Pursuant to a joint stipulation, the court issued an order on February 24, 2016 continuing the hearing on the above matters to April 21, 2016.

    On March 25, 2016, defendant Boutros-Ghali filed the last two motions now before the court, a joinder to the motions to dismiss for forum non conveniens filed by CSC, Servicemesh, and Drake and a demurrer to the FAC.

    Pursuant to a joint stipulation, the court issued an order on April 20, 2016 continuing the hearing on all of the above matters to June 2, 2016.

    I. Defendants CSC and Servicemesh’s motion to dismiss for forum non conveniens is DENIED.

    “A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion … [t]o stay or dismiss the action on the ground of inconvenient forum.” (Code Civ. Proc., §418.10, subd. (a)(2).) “When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just.” (Code Civ. Proc., §410.30, subd. (a).)

    As a preliminary matter, the court considers where the burden of proof lies. The court notes that, “[o]n a motion for forum non conveniens, the defendant, as the moving party, bears the burden of proof.” (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751; see also Cal-State Business Products & Services, Inc. v. Ricoh (1993) 12 Cal.App.4th 1666, 1675 (Ricoh)—“The defendant bears the burden of proof in attempting to override the plaintiff’s choice of forum.”) Once the defendant meets that initial burden, “the party opposing the enforcement of a forum-selection clause (generally the plaintiff) bears the burden of proof. [Citation.]” (Ricoh, supra, 12 Cal.App.4th at p. 1680.)

    Here, defendants’ motion to dismiss is based upon the assertion of a forum selection clause. “Although not even a ‘mandatory’ forum selection clause can completely eliminate a court’s discretion to make appropriate rulings regarding choice of forum, the modern trend is to enforce mandatory forum selection clauses unless they are unfair or unreasonable. [Citations.] In California, the procedure for enforcing a forum selection clause is a motion to stay or dismiss for forum non conveniens pursuant to Code of Civil Procedure sections 410.30 and 418.10 [citation], but a motion based on a forum selection clause is a special type of forum non conveniens motion. The factors that apply generally to a forum non conveniens motion do not control in a case involving a mandatory forum selection clause. [Citations.]” (Berg v. MTC Electronics Technologies (1998) 61 Cal.App.4th 349, 358 (Berg).)

    “If there is no mandatory forum selection clause, a forum non conveniens motion ‘requires the weighing of a gamut of factors of public and private convenience ….’ [Citation.] However if there is a mandatory forum selection clause, the test is simply whether application of the clause is unfair or unreasonable, and the clause is usually given effect. Claims that the previously chosen forum is unfair or inconvenient are generally rejected. [Citation.] A court will usually honor a mandatory forum selection clause without extensive analysis of factors relating to convenience. [Citation.]” (Berg, supra, 61 Cal.App.4th at pp. 358-59.)

    Defendants contend this action is subject to a forum selection clause found in several written agreements signed by plaintiff Douglass. Defendants point first to the Incentive Stock Option Agreement (“Option Agreement”) which incorporates the terms and conditions of the Servicemesh Inc. 2011 Equity Incentive Plan (“Equity Plan”). (See Exhs. A – B of the Declaration of William L. Deckelman, Jr. in Support, etc. (“Declaration Deckelman”).)

    Section 4(q) of the Equity Plan states, in relevant part, “Unless otherwise provided in the Award Agreement, recipients of an Award under the Plan are deemed to submit to the exclusive jurisdiction and venue of the federal or state courts of Delaware to resolve any and all issues that may arise out of or relate to the Plan or any related Award Agreement.”

    When defendant CSC purchased defendant Servicemesh, they entered into an Equity Purchase Agreement (“EPA”) which included the following relevant provision, “All litigation relating to or arising under or in connection with this Agreement or any of the Related Agreements shall be brought in a United Stated District Court or a state court located in the State of Delaware, which shall have exclusive jurisdiction to resolve any disputes related to or arising under this Agreement or the Related Agreements, with each party irrevocably consenting to the jurisdiction thereof for any actions, suits or proceedings arising out of or relating this Agreement or the Related Agreements.” (See Exh. C to the Declaration Deckelman.)

    The term “Related Agreements” is defined by the EPA to include “the Escrow Agreement, the FIRPTA Certification, the IRS Notice, the Purchase Right Termination Agreement, Retention Agreements, Non-Disclosure and Non-Solicitation Agreements, Letters of Transmittal and the Stockholder Addendums.” (See Exh. C to the Declaration Deckelman.) “Retention Agreement” is defined by the EPA to have the meaning set forth in Section 8.2(n) which, in turn, states, in relevant part, “Each employee of [Servicemesh, including plaintiff Douglass] shall (i) have delivered an executed retention agreement, substantially in the form of Exhibit H, providing for the grant of certain restricted stock units with a grant date of the Closing Date (each, a “Retention Agreement”), but with the terms particular to such individual, to [CSC] and (ii) shall not have given [Servicemesh] notice of their intent to terminate their employment with [Servicemesh].” (See Exh. C to the Declaration Deckelman.)

    Defendants also direct the court to a Letter of Transmittal signed by plaintiff wherein it states, “All litigation arising under of in connection with this Letter of Transmittal, the Purchase Agreement or any of the Related Agreements shall be brought only in a United Stated District Court or a state court located in the state of Delaware, which shall have exclusive jurisdiction to resolve any disputes relating or arising under this Letter of Transmittal, the Purchase Agreement or any of the Related Agreements, with each Party irrevocably consenting to the exclusive jurisdiction thereof for any actions, suits or proceedings arising out of or relating to this Letter of Transmittal, the Purchase Agreement or any of the Related Agreements.” (See Exh. D to the Declaration Deckelman.)

    Defendants contend this court should give effect to the contractually agreed upon mandatory forum selection clauses identified above. Although defendants include a copy of the Retention Agreement in connection with their motion to dismiss, defendants (significantly) do not refer to the forum selection clause from the Retention Agreement.

    In opposition, plaintiff Douglass points out a conflict between the (mandatory) forum selection clauses identified above and the (non-mandatory) forum selection clause found in the Retention Agreement. The Retention Agreement states, in relevant part, “Any party bringing a legal action or proceeding against any other party arising out of or relating to this Agreement may bring the legal action or proceeding in the United States District Court for the Eastern District of Virginia, Alexandria Division or in any court of the Commonwealth of Virginia, sitting in Fairfax County.” (See Exh. E to the Declaration Deckelman; emphasis added.) Furthermore, the Retention Agreement states, in part, “Each party to this Agreement submits to the nonexclusive jurisdiction of the courts specified [in the forum selection clause]… .” (Id.; emphasis added.)

    By defendants’ own admission, the Retention Agreement includes an integration clause which states, “This Agreement (along with the RSU Award Agreement and the Employment Documents that you are required to sign on the Transaction Closing Date) sets forth the entire understanding of you and [CSC] with regard to the RSU Retention Grant, and supersedes all prior agreements and communications, whether oral or written, between you and [CSC] or its affiliates with respect thereto.” (Id.)

    The Retention Agreement submitted by defendants is dated November 12, 2013 and would appear to be the last signed agreement in the group of agreements submitted by the defendants. As such, the Retention Agreement, by its own terms, “supersedes all prior agreements and communications.” Consequently, defendants have not met their burden of demonstrating the existence of a binding mandatory forum selection clause. Defendants’ motion to dismiss for forum non conveniens is DENIED.

    II. Defendants CSC and Servicemesh’s demurrer is SUSTAINED, in part, and OVERRULED, in part.

    A. Defendants CSC and Servicemesh’s demurrer to the first cause of action [breach of oral contract] is OVERRULED.

    “The statement of a cause of action for breach of contract requires a pleading of (a) the contract; (b) plaintiff’s performance or excuse for nonperformance; (c) defendant’s breach; and (d) damage to plaintiff.” (4 Witkin, California Procedure (4th ed. 1997) Pleading, §482, p. 574; Roth v. Malson (1998) 67 Cal.App.4th 552, 557.) Here, plaintiff Douglass alleges Defendants CSC and Servicemesh and their “representatives reiterated and assured Plaintiff that they would make Plaintiff whole on his canceled stock options and that post-closing of the acquisition that CSC would provide additional compensation and/or restricted stock units in exchange for plaintiff agreeing to execute certain closing documents including a release of defendants.” (FAC, ¶36.)

    Defendant CSC [alone] demurs by arguing that neither it nor its representatives made any such promise(s) or assurance(s). According to defendant CSC, the alleged promises were made by defendant Servicemesh’s CEO, Pulier, and are not binding upon CSC. Defendant CSC contends generic allegations of agency are insufficient (see Moore v. Regents of University of California (1990) 51 Cal.3d 120, 134, fn. 12) and more specificity is required.

    At paragraph 22 of the FAC, plaintiff Douglass alleges, in relevant part, “Pulier stated that he was in communication with Sunita Holtzer (‘Holtzer’), Chief Human Resources Officer of CSC, about the executive compensation packages after the acquisition and that he would insure that plaintiff received compensation comparable to the value of the approximately 450,000 shares in the Company that were being eliminated in the acquisition. As Pulier announced he would continue to lead the Company after the acquisition, and knowing from the closing documents that CSC would assume all liabilities of the Company after the transaction, it was apparent to plaintiff that Pulier had both ostensible and actual authority to commit the Company and CSC to insure plaintiff was given compensation after the closing to compensate for the loss of his options and the change of control agreement. In addition, plaintiff was in contact with Dan Hushon, the CTO of CSC, who advised plaintiff he and CSC were aware of the amount of lost equity that Pulier promised to make up and that Hushon expected CSC to offer plaintiff compensation to include that lost equity.”

    Defendant CSC acknowledges these allegations asserting ostensible agency, but contend they are nevertheless insufficient to bind CSC for promises made by Pulier. Defendant CSC relies on J.L. v. Children’s Institute, Inc. (2009) 177 Cal.App.4th 388, 403 – 404 (J.L.) where the court wrote:

    “An agent is one who represents another, called the principal, in dealings with third persons.” (Civ.Code, § 2295.) “In California agency is either actual or ostensible. (Civ.Code, § 2298.) An agency is actual when the agent is really employed by the principal. (Civ.Code, § 2299.) An agency is ostensible when a principal causes a third person to believe another to be his agent, who is really not employed by him. (Civ.Code, § 2300.) [¶] An agent has the authority that the principal, actually or ostensibly, confers upon him. (Civ.Code, § 2315.)…. Ostensible authority … is the authority of the agent which the principal causes or allows a third person to believe that the agent possesses. (Civ.Code, § 2317.)” (Van Den Eikhof v. Hocker (1978) 87 Cal.App.3d 900, 905, 151 Cal.Rptr. 456.)

    Before recovery can be had against the principal for the acts of an ostensible agent, three requirements must be met: The person dealing with an agent must do so with a reasonable belief in the agent’s authority, such belief must be generated by some act or neglect by the principal sought to be charged and the person relying on the agent’s apparent authority must not be negligent in holding that belief. (Associated Creditors’ Agency v. Davis (1975) 13 Cal.3d 374, 399, 118 Cal.Rptr. 772, 530 P.2d 1084; Hill v. Citizens Nat. Trust & Sav. Bk. (1937) 9 Cal.2d 172, 175–176, 69 P.2d 853.) Ostensible agency cannot be established by the representations or conduct of the purported agent; the statements or acts of the principal must be such as to cause the belief the agency exists. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1438, fn. 11, 29 Cal.Rptr.2d 746; Lee v. Helmco, Inc. (1962) 199 Cal.App.2d 820, 834, 19 Cal.Rptr. 413.) “ ‘Liability of the principal for the acts of an ostensible agent rests on the doctrine of “estoppel,” the essential elements of which are representations made by the principal, justifiable reliance by a third party, and a change of position from such reliance resulting in injury. [Citation.]’ [Citation.]” (Kaplan v. Coldwell Banker Residential Affiliates, Inc. (1997) 59 Cal.App.4th 741, 747, 69 Cal.Rptr.2d 640.)

    Defendant CSC acknowledges the sentence in paragraph 22 of the FAC where plaintiff Douglass alleges, “In addition, plaintiff was in contact with Dan Hushon, the CTO of CSC, who advised plaintiff he and CSC were aware of the amount of lost equity that Pulier promised to make up and that Hushon expected CSC to offer plaintiff compensation to include that lost equity.” Defendant CSC contends this single statement is insufficient because it does not constitute a promise or offer of any kind. Defendant CSC misunderstands the significance of this allegation. Plaintiff Douglass does not rely on any promise made by Hushon. Instead, the fact is asserted as an act of affirmance or ratification of Pulier’s statements. It is this court’s opinion that the allegations are sufficient to allege Pulier acted as an ostensible agent of CSC.

    As stated in J.L., there are three requirements in order to successfully assert ostensible agency. “The person dealing with an agent must do so with a reasonable belief in the agent’s authority, such belief must be generated by some act or neglect by the principal sought to be charged and the person relying on the agent’s apparent authority must not be negligent in holding that belief.” (J.L., supra, 177 Cal.App.4th at pp. 403 – 404.) Defendant CSC argues further that plaintiff Douglass could not hold a reasonable belief in Pulier’s authority and/or acted negligently in doing so because Pulier and CSC stood on opposite sides of a transaction. Defendant CSC contends it would be unreasonable, under such circumstances, for plaintiff Douglass to believe that Pulier had any authority to bind CSC.

    However, this issue cannot be decided on a demurrer. An agent’s ostensible “authority may be proved by circumstantial evidence [citations]; and it may likewise be implied from circumstances [citations].” (Gaine v. Austin (1943) 58 Cal.App.2d 250, 261.) “Whether ostensible agency exists ‘… is a question of fact.’ ” (Kaplan v. Coldwell Banker Residential Affiliates, Inc. (1997) 59 Cal.App.4th 741, 748; House Grain Co. v. Finerman & Sons (1953) 116 Cal.App.2d 485, 492 [question of ostensible agency is “one of fact”].)

    Next, defendant Servicemesh [alone] contends plaintiff Douglass has not sufficiently alleged what consideration he would receive from defendant Servicemesh. Where the contract is written, consideration is presumed. (See Civ. Code, §1614—“A written instrument is presumptive evidence of a consideration.”) However, the statutory presumption of consideration does not apply to an oral contract. “In an action on an oral agreement, the essential element of consideration must normally be alleged.” (See 4 Witkin, California Procedure (5th ed. 2010) Pleading, §525 citing Acheson v. Western Union Tel. Co. (1892) 96 Cal. 641, 644.) Defendant Servicemesh points to the allegation at paragraph 36 where it is alleged, “post-closing of the acquisition, … CSC would provide additional compensation and/or restricted stock units in exchange for plaintiff agreeing to execute certain closing documents including a release of defendants.” (FAC, ¶36.) The consideration being offered by Servicemesh [additional compensation and/or restricted stock units, presumably from CSC] is of post-acquisition property. Defendant Servicemesh cites no authority, and this court is aware of none, that a company cannot offer consideration that it will obtain in the future or consideration (belonging to another [CSC]) if acting as an agent for the other.

    Next, defendants CSC and Servicemesh argue plaintiff has not, himself, alleged adequate consideration. Defendants CSC and Servicemesh point again to paragraph 36, but fail to discuss the allegation that plaintiff agreed to “execute certain closing documents including a release of defendants.” Although the FAC does not explicitly identify what the “certain closing documents” are, defendants contend the closing document is the Equity Purchase Agreement. Defendants CSC and Servicemesh continue by arguing that the alleged oral promise here is a modification of the Equity Purchase Agreement and the modification is unsupported by additional compensation. (Civ. Code, § 1698—“Unless the contract otherwise expressly provides, a contract in writing may be modified by an oral agreement supported by new consideration.”) However, defendants’ assumption that the oral promise is a modification of the Equity Purchase Agreement is not supported by the allegations of the FAC. The only closing document specifically referenced in the FAC is a “280G disclosure document.” (See FAC, ¶20 – 22.)

    Finally, defendants argue the alleged promise from Pulier of a “ ‘big offer’ from CSC … to make up for the loss” (see FAC, ¶21) is not sufficiently definite to be enforceable.

    “Under California law, a contract will be enforced if it is sufficiently definite (and this is a question of law) for the court to ascertain the parties’ obligations and to determine whether those obligations have been performed or breached.” [Citation.] “To be enforceable, a promise must be definite enough that a court can determine the scope of the duty[,] and the limits of performance must be sufficiently defined to provide a rational basis for the assessment of damages.” [Citations.] “Where a contract is so uncertain and indefinite that the intention of the parties in material particulars cannot be ascertained, the contract is void and unenforceable.” [Citations.] “The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.” [Citations.] But “f … a supposed ‘contract’ does not provide a basis for determining what obligations the parties have agreed to, and hence does not make possible a determination of whether those agreed obligations have been breached, there is no contract.” [Citation.]

    (Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 209.)

    The court cannot state, as a matter of law, that the promise of a “big offer,” sufficient to counter the loss of plaintiff’s options is too indefinite to enforce. (See Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768—where court found sufficiently definite a promise that plaintiffs would be paid a bonus that would be sufficient for them to retire.”)

    For the above stated reasons, defendants CSC and Servicemesh’s demurrer to the first cause of action in plaintiff Douglass’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action
    for breach of oral contract is OVERRULED. B. Defendants CSC and Servicemesh’s demurrer to the third cause of action [breach of implied covenant of good faith and fair dealing] is OVERRULED. “Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” (Rest.2d Contracts, §205.) “There is an implied covenant of good faith and fair dealing in every contract that neither party will do anything which will injure the right of the other to receive the benefits of the agreement.” (Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d 654, 658; see also CACI, No. 325.) However, there can be no implied covenant without an underlying contract. (See Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 36—“Absent that contractual right, however, the implied covenant has nothing upon which to act as a supplement, and ‘should not be endowed with an existence independent of its contractual underpinnings.’ [Citation.]”) Defendants CSC and Servicemesh demur to the breach of implied covenant third cause of action by arguing that it is derivative of the first cause of action and since the first cause of action fails, so too does the third cause of action. However, in light of the ruling above, defendants CSC and Servicemesh’s demurrer to the third cause of action in plaintiff Douglass’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for breach of implied covenant of good faith and fair dealing is OVERRULED. C. Defendants CSC and Servicemesh’s demurrer to the second cause of action [promissory estoppel] is OVERRULED. “The required elements for promissory estoppel in California are … (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) his reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.” (Laks v. Coast Fed. Sav. & Loan Assn. (1976) 60 Cal.App.3d 885, 890; see also US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 903.) Defendants CSC and Servicemesh incorporate their earlier arguments concerning ostensible agency and indefiniteness. For the reasons stated above, the court is not persuaded by those arguments. Defendants CSC and Servicemesh demur additionally by arguing that plaintiff does not adequately allege detrimental reliance or causation. Defendants acknowledge the allegation that plaintiff executed documents which cancelled his Servicemesh stock options, but argue that such reliance was unreasonable because the Servicemesh Equity Plan gives Servicemesh the right to cancel plaintiff’s unvested stock options without consideration and without consent upon a change of control. Defendants’ argument overlooks the allegation that plaintiff not only executed documents which cancelled his stock options, but also alleges he executed “documents including a release of defendants.” (FAC, ¶36.) Defendants do not point to any allegations or judicially noticeable facts which would demonstrate plaintiff’s detrimental reliance (release of defendants’ liability) is unreasonable. Accordingly, defendants CSC and Servicemesh’s demurrer to the second cause of action in plaintiff Douglass’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for promissory estoppel is OVERRULED. D. Defendants CSC and Servicemesh’s demurrer to the fourth cause of action [intentional misrepresentation] is OVERRULED. “The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 (Lazar); see also Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 363.) “Fraud actions are subject to strict requirements of particularity in pleading. … Accordingly, the rule is everywhere followed that fraud must be specifically pleaded.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) “The pleading should be sufficient to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud.” (Commonwealth Mortgage Assurance Co. v. Superior Court (1989) 211 Cal.App.3d 508, 518.) The Lazar court did not comment on how these particular allegations met the requirement of pleading with specificity in a fraud action, but the court did say that “this particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’ A plaintiff’s burden in asserting a claim against a corporate employer is even greater. In such a case, the plaintiff must ‘allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” (Lazar, supra, 12 Cal.4th at p. 645.) Defendants contend the FAC lacks sufficient particularity. Defendant CSC again repeats its argument regarding the agency allegations. For the reasons stated above, the court finds the agency allegations sufficient. Defendants also contend the allegations concerning knowledge of falsity are insufficient. “Intent, like knowledge, is a fact. Hence, the averment that the representation was made with the intent to deceive the plaintiff, or any other general allegation with similar purport, is sufficient.” (5 Witkin, California Procedure (4th ed. 1997) Pleading, §684, p. 143.) Defendants’ arguments concerning the reasonableness of plaintiffs’ reliance are also addressed above. Finally, defendants contend plaintiff has not alleged damage with enough particularity and apparently assert plaintiff has not suffered any damage because he was paid like every other shareholder. This assertion of extrinsic fact is not proper on demurrer. Accordingly, defendants CSC and Servicemesh’s demurrer to the fourth cause of action in plaintiff Douglass’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for intentional misrepresentation is OVERRULED. E. Defendants CSC and Servicemesh’s demurrer to the fifth cause of action [negligent misrepresentation] is SUSTAINED. There cannot be, as a matter of law, a negligent promise to perform a future event. In Tarmann v. State Farm Mutual Automobile Ins. Co. (1991) 2 Cal.App.4th 153, 159, the court explained, “To maintain an action for deceit based on a false promise, one must specifically allege and prove, among other things, that the promisor did not intend to perform at the time he or she made the promise and that it was intended to deceive or induce the promisee to do or not do a particular thing. [Citations.] Given this requirement, an action based on a false promise is simply a type of intentional misrepresentation, i.e., actual fraud. [Footnote.] The specific intent requirement also precludes pleading a false promise claim as a negligent misrepresentation, i.e., ‘The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true.’ [Citation.] Simply put, making a promise with an honest but unreasonable intent to perform is wholly different from making one with no intent to perform and, therefore, does not constitute a false promise. Moreover, we decline to establish a new type of actionable deceit: the negligent false promise.” Here, plaintiff has alleged various false promises of future performance. Such promises can only be intentional. Accordingly, defendants CSC and Servicemesh’s demurrer to the fifth cause of action in plaintiff Douglass’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for negligent misrepresentation is SUSTAINED WITHOUT LEAVE TO AMEND. F. Defendants CSC and Servicemesh’s demurrer to the sixth cause of action [unfair business practices] is OVERRULED. “Business and Professions Code section 17200 et seq. prohibits unfair competition, including unlawful, unfair, and fraudulent business acts. The UCL covers a wide range of conduct. It embraces anything that can properly be called a business practice and that at the same time is forbidden by law.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1143 (Korea).) “The UCL covers a wide range of conduct. It embraces anything that can properly be called a business practice and that at the same time is forbidden by law.” (Korea, supra, 29 Cal.4th at p. 1143.) “Section 17200 ‘borrows’ violations from other laws by making them independently actionable as unfair competitive practices. In addition, under section 17200, a practice may be deemed unfair even if not specifically proscribed by some other law.” (Id.) “By proscribing unlawful business practices, the UCL borrows violations of other laws and treats them as independently actionable. In addition, practices may be deemed unfair or deceptive even if not proscribed by some other law. Thus, there are three varieties of unfair competition: practices which are unlawful, or unfair, or fraudulent.” (Blakemore v. Superior Court (2005) 129 Cal.App.4th 36, 48.) In demurring, defendants argue plaintiff Douglass has not sufficiently asserted a claim for unlawful or unfair business practices. However, a violation of Business and Professions Code section 17200 can also be predicated on fraudulent conduct. Defendants have not demonstrated how the sixth cause of action fails to state a claim under the fraudulent prong of Business and Professions Code section 17200. Accordingly, defendants CSC and Servicemesh’s demurrer to the sixth cause of action in plaintiff Douglass’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for unfair business practices is OVERRULED. G. Defendants CSC and Servicemesh’s demurrer to the seventh and eighth causes of action [unjust enrichment/ restitution] is OVERRULED. In Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793, the court wrote, “[T]here is no cause of action in California for unjust enrichment. “The phrase ‘Unjust Enrichment’ does not describe a theory of recovery, but an effect: the result of a failure to make restitution under circumstances where it is equitable to do so.” [Citations.] Unjust enrichment is “‘a general principle, underlying various legal doctrines and remedies,’ ” rather than a remedy itself. [Citation.] It is synonymous with restitution.” In McBride v. Houghton (2004) 123 Cal.App.4th 379 (McBride), the court wrote, “Unjust enrichment is not a cause of action, however, or even a remedy, but rather a general principle, underlying various legal doctrines and remedies. It is synonymous with restitution. Unjust enrichment has also been characterized as describing the result of a failure to make restitution. [¶] In reviewing a judgment of dismissal following the sustaining of a general demurrer, we ignore erroneous or confusing labels if the complaint pleads facts which would entitle the plaintiff to relief. Thus, we must look to the actual gravamen of [plaintiff’s] complaint to determine what cause of action, if any, he stated, or could have stated if given leave to amend. In accordance with this principle, we construe [plaintiff’s] purported cause of action for unjust enrichment as an attempt to plead a cause of action giving rise to a right to restitution.” There are several potential bases for a cause of action seeking restitution. For example, restitution may be awarded in lieu of breach of contract damages when the parties had an express contract, but it was procured by fraud or is unenforceable or ineffective for some reason. [Citations.] Alternatively, restitution may be awarded where the defendant obtained a benefit from the plaintiff by fraud, duress, conversion, or similar conduct. In such cases, the plaintiff may choose not to sue in tort, but instead to seek restitution on a quasi-contract theory (an election referred to at common law as “waiving the tort and suing in assumpsit”). [Citation.] In such cases, where appropriate, the law will imply a contract (or rather, a quasi-contract), without regard to the parties’ intent, in order to avoid unjust enrichment. [Citation.] (McBride, supra, 123 Cal.App.4th at pp. 387 – 388; internal citations and punctuation omitted.) Significantly, “there is no particular form of pleading necessary to invoke the doctrine of restitution.” (Dinosaur Development, Inc. v. White (1989) 216 Cal.App.3d 1310, 1315 [internal quotation marks omitted].) As the McBride court instructs, the court should overlook the labels given by the plaintiff and instead focus on whether there is a basis for restitution. In light of the rulings above, plaintiff has stated claims which would support a basis for restitution. Accordingly, defendants CSC and Servicemesh’s demurrer to the seventh and eighth causes of action in plaintiff Douglass’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for unjust enrichment and restitution, respectively, is OVERRULED. H. Defendants CSC and Servicemesh’s demurrer to the ninth cause of action [wrongful termination/ retaliation] is OVERRULED. In demurring to the ninth cause of action, defendants contend there exists no common law claim for retaliation and any such claim must be statutorily based. Defendants go on to cite Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792 (Searcy) for the proposition that where a claim is based on a statutory duty, the plaintiff must identify the statute. However, Searcy involved governmental tort liability. Defendants’ reliance on Searcy is misplaced since this case does not involve governmental or public entity liability. “[T]o state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.” (Peter W. v. San Francisco Unified School District (1976) 60 Cal.App.3d 814, 819.) “In order to state a cause of action for government tort liability, ‘every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty. [Citation.] Duty cannot be alleged simply by stating, ‘defendant had a duty under the law’; that is a conclusion of law, not an allegation of fact. The facts showing the existence of the claimed duty must be alleged. [Citations.] Since the duty of a governmental agency can only be created by statute or ‘enactment,’ the statute or ‘enactment’ claimed to establish the duty must at the very least be identified.’ [Citation.]” (Zuniga v. Housing Authority of the City of Los Angeles (1995) 41 Cal.App.4th 82, 96.) Accordingly, defendants CSC and Servicemesh’s demurrer to the ninth cause of action in plaintiff Douglass’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for wrongful termination/ retaliation is OVERRULED. I. Defendants CSC and Servicemesh’s demurrer to the tenth cause of action [failure to pay wages] is OVERRULED. Defendants argue simply that since plaintiff’s contract claims fail, so too does plaintiff’s claim for lost wages. In light of the rulings above, defendants CSC and Servicemesh’s demurrer to the tenth cause of action in plaintiff Douglass’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for failure to pay wages is OVERRULED. J. Defendants CSC and Servicemesh’s demurrer to the eleventh cause of action [declaratory relief] is OVERRULED. Defendants demur to the declaratory relief eleventh cause of action on the basis that plaintiff seeks relief which directly contradict the express terms of the forum selection clause found in the Letter of Transmittal. For the same reasons discussed above in Section I, the court does not find defendants’ argument persuasive. Accordingly, defendants CSC and Servicemesh’s demurrer to the eleventh cause of action in plaintiff Douglass’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for declaratory relief is OVERRULED. III. Defendant Drake’s motion to dismiss for forum non conveniens is DENIED. For the same reasons discussed above, defendant Drake’s motion to dismiss for forum non conveniens is DENIED. IV. Defendant Drake’s demurrer is SUSTAINED, in part, and OVERRULED, in part. A. Defendant Drake’s demurrer to the fourth cause of action [intentional misrepresentation] is OVERRULED. Defendant Drake separately demurs to the fourth cause of action by arguing that the FAC does not plead with particularity any false representations by Drake. However, Drake acknowledges the allegation at paragraph 21 where it is stated, “Drake repeated Pulier’s statements about receiving an offer from CSC that would compensate him for his lost options.” This allegation is sufficient to incorporate the same misrepresentations attributed to Pulier in the same paragraph. Drake further argues the allegation lacks particularity concerning when, where, or how it was made. Lazar does not require an allegation of where a fraudulent statement was made. As to when, paragraphs 20 and 21, read in conjunction, state the representations were made early on the morning of October 28, 2013. As to how, a reasonable inference from the word “repeated,” is that they were directly spoken to plaintiff. The balance of defendant Drake’s arguments are essentially the same as those advanced by defendants CSC and Servicemesh. For the reasons previously stated, defendant Drake’s demurrer to the fourth cause of action in plaintiff Douglass’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for intentional misrepresentation is OVERRULED. B. Defendant Drake’s demurrer to the fifth cause of action [negligent misrepresentation] is SUSTAINED. For the same reason stated above in connection with defendants CSC and Servicemesh’s demurrer to the fifth cause of action, defendant Drake’s demurrer to the fifth cause of action in plaintiff Douglass’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for negligent misrepresentation is SUSTAINED WITHOUT LEAVE TO AMEND. C. Defendant Drake’s demurrer to the sixth cause of action [unfair business practices] is OVERRULED. For the same reasons stated above in connection with defendants CSC and Servicemesh’s demurrer to the sixth cause of action, defendant Drake’s demurrer to the sixth cause of action in plaintiff Douglass’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for unfair business practices is OVERRULED. D. Defendant Drake’s demurrer to the seventh and eighth causes of action [unjust enrichment/ restitution] is OVERRULED. For the same reasons stated above in connection with defendants CSC and Servicemesh’s demurrer to the seventh and eighth causes of action, defendant Drake’s demurrer to the seventh and eighth causes of action in plaintiff Douglass’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for unjust enrichment and restitution, respectively, is OVERRULED. V. Defendant Boutros-Ghali’s joinder to the motions to dismiss for forum non conveniens is DENIED. For the same reasons discussed above, defendant Boutros-Ghali’s joinder in the motions to dismiss for forum non conveniens is DENIED. VI. Defendant Boutros-Ghali’s demurrer is SUSTAINED. Defendant Boutros-Ghali demurs to the fourth through eighth causes of action directed at him on the basis that, essentially, there are no allegations that he made any fraudulent statements and all the causes of action directed against him are predicated on the existence of such an allegation. Unlike defendant Drake, plaintiff can point to no allegation that defendant Boutros-Ghali repeated Pulier’s representations. In opposition, plaintiff can point only to paragraph 18 where it is alleged that defendant Boutros-Ghali “excluded Plaintiff [from the CSC acquisition process] knowing that [Servicemesh] was going to cancel the stock option plan and redistribute to Pulier, Drake and Boutros-Ghali the millions of dollars saved from the cancellation of Plaintiff’s stock.” Plaintiff also points to paragraph 27 where it is alleged defendant Boutros-Ghali “warned Plaintiff that if Plaintiff did not sign the closing documents or blocked the deal in any way, Plaintiff would be terminated by Pulier and left with nothing prior to closing.” Plaintiff tacitly admits these statements do not allege fraud by defendant Boutros-Ghali. Instead, plaintiff Douglass alludes to a “scheme” or “common plan” of fraud by Servicemesh officers, including defendant Boutros-Ghali. To the extent plaintiff Douglass is attempting to argue a conspiracy by defendant Boutros-Ghali with others, he has not adequately alleged conspiracy. Accordingly, defendant Boutros-Ghali’s demurrer to the fourth and sixth through eighth causes of action in plaintiff Douglass’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] is SUSTAINED with 10 days’ leave to amend. For the same reasons stated above, defendant Boutros-Ghali’s demurrer to the fifth cause of action in plaintiff Douglass’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for negligent misrepresentation is SUSTAINED WITHOUT LEAVE TO AMEND.[Code Civ. Proc., §430.10, subd. (e)] for breach of oral contract is OVERRULED.

    B. Defendants CSC and Servicemesh’s demurrer to the third cause of action [breach of implied covenant of good faith and fair dealing] is OVERRULED.

    “Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” (Rest.2d Contracts, §205.) “There is an implied covenant of good faith and fair dealing in every contract that neither party will do anything which will injure the right of the other to receive the benefits of the agreement.” (Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d 654, 658; see also CACI, No. 325.) However, there can be no implied covenant without an underlying contract. (See Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 36—“Absent that contractual right, however, the implied covenant has nothing upon which to act as a supplement, and ‘should not be endowed with an existence independent of its contractual underpinnings.’ [Citation.]”)

    Defendants CSC and Servicemesh demur to the breach of implied covenant third cause of action by arguing that it is derivative of the first cause of action and since the first cause of action fails, so too does the third cause of action. However, in light of the ruling above, defendants CSC and Servicemesh’s demurrer to the third cause of action in plaintiff Douglass’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action for breach of implied covenant of good faith and fair dealing is OVERRULED. C. Defendants CSC and Servicemesh’s demurrer to the second cause of action [promissory estoppel] is OVERRULED. “The required elements for promissory estoppel in California are … (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) his reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.” (Laks v. Coast Fed. Sav. & Loan Assn. (1976) 60 Cal.App.3d 885, 890; see also US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 903.) Defendants CSC and Servicemesh incorporate their earlier arguments concerning ostensible agency and indefiniteness. For the reasons stated above, the court is not persuaded by those arguments. Defendants CSC and Servicemesh demur additionally by arguing that plaintiff does not adequately allege detrimental reliance or causation. Defendants acknowledge the allegation that plaintiff executed documents which cancelled his Servicemesh stock options, but argue that such reliance was unreasonable because the Servicemesh Equity Plan gives Servicemesh the right to cancel plaintiff’s unvested stock options without consideration and without consent upon a change of control. Defendants’ argument overlooks the allegation that plaintiff not only executed documents which cancelled his stock options, but also alleges he executed “documents including a release of defendants.” (FAC, ¶36.) Defendants do not point to any allegations or judicially noticeable facts which would demonstrate plaintiff’s detrimental reliance (release of defendants’ liability) is unreasonable. Accordingly, defendants CSC and Servicemesh’s demurrer to the second cause of action in plaintiff Douglass’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for promissory estoppel is OVERRULED. D. Defendants CSC and Servicemesh’s demurrer to the fourth cause of action [intentional misrepresentation] is OVERRULED. “The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 (Lazar); see also Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 363.) “Fraud actions are subject to strict requirements of particularity in pleading. … Accordingly, the rule is everywhere followed that fraud must be specifically pleaded.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) “The pleading should be sufficient to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud.” (Commonwealth Mortgage Assurance Co. v. Superior Court (1989) 211 Cal.App.3d 508, 518.) The Lazar court did not comment on how these particular allegations met the requirement of pleading with specificity in a fraud action, but the court did say that “this particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’ A plaintiff’s burden in asserting a claim against a corporate employer is even greater. In such a case, the plaintiff must ‘allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” (Lazar, supra, 12 Cal.4th at p. 645.) Defendants contend the FAC lacks sufficient particularity. Defendant CSC again repeats its argument regarding the agency allegations. For the reasons stated above, the court finds the agency allegations sufficient. Defendants also contend the allegations concerning knowledge of falsity are insufficient. “Intent, like knowledge, is a fact. Hence, the averment that the representation was made with the intent to deceive the plaintiff, or any other general allegation with similar purport, is sufficient.” (5 Witkin, California Procedure (4th ed. 1997) Pleading, §684, p. 143.) Defendants’ arguments concerning the reasonableness of plaintiffs’ reliance are also addressed above. Finally, defendants contend plaintiff has not alleged damage with enough particularity and apparently assert plaintiff has not suffered any damage because he was paid like every other shareholder. This assertion of extrinsic fact is not proper on demurrer. Accordingly, defendants CSC and Servicemesh’s demurrer to the fourth cause of action in plaintiff Douglass’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for intentional misrepresentation is OVERRULED. E. Defendants CSC and Servicemesh’s demurrer to the fifth cause of action [negligent misrepresentation] is SUSTAINED. There cannot be, as a matter of law, a negligent promise to perform a future event. In Tarmann v. State Farm Mutual Automobile Ins. Co. (1991) 2 Cal.App.4th 153, 159, the court explained, “To maintain an action for deceit based on a false promise, one must specifically allege and prove, among other things, that the promisor did not intend to perform at the time he or she made the promise and that it was intended to deceive or induce the promisee to do or not do a particular thing. [Citations.] Given this requirement, an action based on a false promise is simply a type of intentional misrepresentation, i.e., actual fraud. [Footnote.] The specific intent requirement also precludes pleading a false promise claim as a negligent misrepresentation, i.e., ‘The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true.’ [Citation.] Simply put, making a promise with an honest but unreasonable intent to perform is wholly different from making one with no intent to perform and, therefore, does not constitute a false promise. Moreover, we decline to establish a new type of actionable deceit: the negligent false promise.” Here, plaintiff has alleged various false promises of future performance. Such promises can only be intentional. Accordingly, defendants CSC and Servicemesh’s demurrer to the fifth cause of action in plaintiff Douglass’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for negligent misrepresentation is SUSTAINED WITHOUT LEAVE TO AMEND. F. Defendants CSC and Servicemesh’s demurrer to the sixth cause of action [unfair business practices] is OVERRULED. “Business and Professions Code section 17200 et seq. prohibits unfair competition, including unlawful, unfair, and fraudulent business acts. The UCL covers a wide range of conduct. It embraces anything that can properly be called a business practice and that at the same time is forbidden by law.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1143 (Korea).) “The UCL covers a wide range of conduct. It embraces anything that can properly be called a business practice and that at the same time is forbidden by law.” (Korea, supra, 29 Cal.4th at p. 1143.) “Section 17200 ‘borrows’ violations from other laws by making them independently actionable as unfair competitive practices. In addition, under section 17200, a practice may be deemed unfair even if not specifically proscribed by some other law.” (Id.) “By proscribing unlawful business practices, the UCL borrows violations of other laws and treats them as independently actionable. In addition, practices may be deemed unfair or deceptive even if not proscribed by some other law. Thus, there are three varieties of unfair competition: practices which are unlawful, or unfair, or fraudulent.” (Blakemore v. Superior Court (2005) 129 Cal.App.4th 36, 48.) In demurring, defendants argue plaintiff Douglass has not sufficiently asserted a claim for unlawful or unfair business practices. However, a violation of Business and Professions Code section 17200 can also be predicated on fraudulent conduct. Defendants have not demonstrated how the sixth cause of action fails to state a claim under the fraudulent prong of Business and Professions Code section 17200. Accordingly, defendants CSC and Servicemesh’s demurrer to the sixth cause of action in plaintiff Douglass’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for unfair business practices is OVERRULED. G. Defendants CSC and Servicemesh’s demurrer to the seventh and eighth causes of action [unjust enrichment/ restitution] is OVERRULED. In Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793, the court wrote, “[T]here is no cause of action in California for unjust enrichment. “The phrase ‘Unjust Enrichment’ does not describe a theory of recovery, but an effect: the result of a failure to make restitution under circumstances where it is equitable to do so.” [Citations.] Unjust enrichment is “‘a general principle, underlying various legal doctrines and remedies,’ ” rather than a remedy itself. [Citation.] It is synonymous with restitution.” In McBride v. Houghton (2004) 123 Cal.App.4th 379 (McBride), the court wrote, “Unjust enrichment is not a cause of action, however, or even a remedy, but rather a general principle, underlying various legal doctrines and remedies. It is synonymous with restitution. Unjust enrichment has also been characterized as describing the result of a failure to make restitution. [¶] In reviewing a judgment of dismissal following the sustaining of a general demurrer, we ignore erroneous or confusing labels if the complaint pleads facts which would entitle the plaintiff to relief. Thus, we must look to the actual gravamen of [plaintiff’s] complaint to determine what cause of action, if any, he stated, or could have stated if given leave to amend. In accordance with this principle, we construe [plaintiff’s] purported cause of action for unjust enrichment as an attempt to plead a cause of action giving rise to a right to restitution.” There are several potential bases for a cause of action seeking restitution. For example, restitution may be awarded in lieu of breach of contract damages when the parties had an express contract, but it was procured by fraud or is unenforceable or ineffective for some reason. [Citations.] Alternatively, restitution may be awarded where the defendant obtained a benefit from the plaintiff by fraud, duress, conversion, or similar conduct. In such cases, the plaintiff may choose not to sue in tort, but instead to seek restitution on a quasi-contract theory (an election referred to at common law as “waiving the tort and suing in assumpsit”). [Citation.] In such cases, where appropriate, the law will imply a contract (or rather, a quasi-contract), without regard to the parties’ intent, in order to avoid unjust enrichment. [Citation.] (McBride, supra, 123 Cal.App.4th at pp. 387 – 388; internal citations and punctuation omitted.) Significantly, “there is no particular form of pleading necessary to invoke the doctrine of restitution.” (Dinosaur Development, Inc. v. White (1989) 216 Cal.App.3d 1310, 1315 [internal quotation marks omitted].) As the McBride court instructs, the court should overlook the labels given by the plaintiff and instead focus on whether there is a basis for restitution. In light of the rulings above, plaintiff has stated claims which would support a basis for restitution. Accordingly, defendants CSC and Servicemesh’s demurrer to the seventh and eighth causes of action in plaintiff Douglass’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for unjust enrichment and restitution, respectively, is OVERRULED. H. Defendants CSC and Servicemesh’s demurr
    2 months ago
  • Good news from Derryn Hinch's Justice Party -

    Australian paedophiles will have their passports cancelled under strict new laws to be unveiled by the Turnbull government.

    The changes follow high-profile cases of child exploitation in south-east Asia and fervent campaigning by anti-paedophile senator Derryn Hinch.

    "It would be the best thing I've achieved in my time here," he told Fairfax Media, labelling the trips taken offenders - particularly to nearby Asian countries - "child rape holidays".

    Read More...
    2 months ago
  • Charles Ponzi created a new topic ' FOS update from denise' in the forum.
    BFCSA: The demolition of FOS and CIO is now on! Major Banks want ONE JUMBO AFCA to handle complaints. Our stupidly dumbo Prime Minister fails to understand you have the ROYAL COMMISSION FIRST. Then, if you are sensible, you create a Government controlled Federal Consumer Protection Bureau, to enable consumers to hold the Government to Account. The Prof. Ian Ramsay Report will be pure farce, influenced by the dumbo's at ASIC.

    CONSUMER COMPLAINTS mainly against the Major banks have been mishandled by the corrupt EDR for two decades. Now, CIO calls for ROYAL COMMISSION INTO THE BANKS!!!!

    Please LIKE our BFCSA PAGE the top of the page. Please SHARE and even support our work via donations to assist our campaign or JOIN us today - details re membership button and donations on our website. www.bfcsa.com.au

    Six industry associations, representing four out of every five financial services firms, have jointly condemned the federal government's plan to create the Australian Financial Complaints Authority, warning it won't be trusted by smaller players who are angry they weren't properly heard during the consultation process and don't want to subsidise a scheme that will be designed to accommodate the big banks.

    Fighting back, CIO claims the new "AFCA will not be equipped to weed out poor corporate culture, call out moral obloquy or fix embedded organisational cultures," Mr Venga said. "Only a royal commission can do this."

    Read much more...........................
    www.bfcsa.com.au/…/bfcsa-the-demolition-of-fos-and-c…

    Read More...
    2 months ago
  • www.abc.net.au/news/2017-05-26/labor-cal...o-disabilities/85605
    Federal Labor calls for royal commission into institutional abuse of people with a disability
    By political reporter Alexandra Beech

    Updated about an hour ago
    Related Story: Group homes for people with a disability 'must be phased out to stop abuse'
    Related Story: Group home 'hell': Open letter calls for inquiry into abuse of people with disabilities
    Related Story: Royal commission into alleged abuse of people with disabilities ditched
    Related Story: Calls for royal commission into institutional abuse of people with disability
    Map: Australia

    Federal Labor is calling for a royal commission into the abuse of people with a disability.
    Key points:

    Rights groups back Federal Labor's call to tackle epidemic
    A royal commission would "open the doors" to closed-off institutional environments
    Shadow disability minister calls for bipartisan support

    It comes after a Senate inquiry recommended establishing a royal commission into the disability sector in November 2015.

    The co-chief executive of People With Disability Australia, Matthew Bowden, has welcomed Labor's announcement, saying violence against people with a disability was at "epidemic levels".

    "It's happening in all environments where people with disability are; it's happening in every single jurisdiction," Mr Bowden said.

    He said a royal commission could help uncover the abuse of people in more closed-off environments.

    "Some of the people who are at great risk are at great risk because of the environment they're in," he said.

    "So people in psychiatric facilities, people with disabilities in juvenile justice centres, in prisons, in group homes.

    "They're hard to reach because their environments don't allow them to have freedom of association with people; service providers have a great deal of control and power in those people's lives and so reaching them can be difficult.

    "But this is where a royal commission would be able to compel the doors to be flung open and a spotlight to be shone in those very hard-to-reach places."
    Women particularly at risk

    The chief executive of Women With Disabilities Australia, Carolyn Frohmader, said she dealt with reports of violence every day and the problem appeared to be getting worse.

    "The ones that we see on television, on Four Corners, Lateline, media reports, they're just the ones we know about," she said.
    Locked away in suburbia

    A hundred years ago people with an intellectual disability were locked up in "lunatic asylums". Today they're still locked away, but it's just behind the walls of suburbia, writes Alison Branley.

    "That's the tip of the iceberg."

    Ms Frohmader said it was crucial that the royal commission focused in particular on the abuse suffered by women with a disability.

    "We know anyway the terrible statistics in the Australian context around violence against women generally, but if you add the layer of disability on top of that the evidence the statistics are horrific," she said.

    "Women with disability experience domestic violence at a rate of 40 per cent higher than women without disability.

    "And we know that women and girls with disability in institutional settings are targeted and experience profound and horrific forms of violence."

    She said issues such as forced contraception, abortion and sterilisation would also need to be addressed.
    Call for bipartisan support

    Both the Federal Government and the Opposition voted against setting up a royal commission when the Greens called for the move earlier this year.

    The Greens' motion was in response to allegations of abuse in institutional care raised by the ABC's Four Corners program.
    Inquiry hears horror stories

    The disability advocacy group Bolshy Divas told the 2015 inquiry accountability was lacking in the system and abuse cases went nowhere.

    Shadow disability minister Carol Brown said further cases had come to light since then.

    She said the issue could not be ignored.

    "We've also had organisations that have been calling for a royal commission, we've also had more than a hundred Australian academics sign a letter to the prime minister arguing the need," Senator Brown said.

    "So there's been added voices to the call for a royal commission and the government is not listening."

    But she said she remained hopeful there would soon bipartisan support and the Turnbull Government would establish the public inquiry.

    Senator Brown said that would allow victims, families and carers to have their voices heard at the "highest possible level".

    "A royal commission can compel witnesses, they take evidence and testimony where other forms of inquiries cannot and it's able to make recommendations and findings fully independent of all other levels of government and the non-government sector," she said.


    Read More...
    2 months ago
  • Clinton campaign boss John Podesta paid by Adani-fight foundation
    Hillary Clinton’s campaign chairman John Podesta in Washington.

    The Australian
    12:00AM November 3, 2016
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    5
    Dennis Shanahan
    Political Editor
    Canberra

    Hillary Clinton’s presidential campaign chairman was being paid $US7000 a month by the US foundation funding efforts to stop the $16 billion Adani coal project in Queensland at the same time as he was being briefed on the anti-coal campaign in Australia.

    The San Francisco-based Sandler Foundation started paying John Podesta after he switched from being Barack Obama’s counsellor to Mrs Clinton’s campaign chairman in February last year, and has been seeking his assistance for anti-coal actions in India and Australia.

    Mr Podesta’s payments have been revealed in the latest batch of his emails released by WikiLeaks. He has refused to confirm the payments, but the Sandler Foundation, which also funds the Sunrise Project, the Australian-based leader of the campaign against the Adani coal project, has verified the emails and said it would “pay much more” for Mr Podesta’s advice. Earlier email dumps by WikiLeaks confirmed that Sunrise was leading a foreign-funded, highly orchestrated group of Australian activists working to stop the Adani coalmine, which it is claimed will create 10,000 jobs, by influencing indigenous land owners and environmental legal challenges.

    In a celebratory email to the Sandler Foundation in August last year after a decision against the Adani mine, Sunrise director John Hepburn, a former Greenpeace activist and one of the authors of a strategy to block coalmining in Australia, thanks the foundation. “Without your support, none of this would have happened,” he said.

    Those emails also revealed that in May last year Mr Podesta was being briefed on attempts by Sandler Foundation-funded groups to protect their tax-exempt charity status and hide the identity of their foreign donors from the Australian parliament.

    Mr Podesta also offered to help Greenpeace in India, which was also involved in a fight for charity status as it campaigned against the Indian Adani corporation.

    Herb Sandler founded the Sandler Foundation after selling a family owned bank, World Savings, just before the global financial crisis. Mr Sandler, and his late wife Marion, sold the bank for $US25 billion, making a personal profit of almost $US3bn.

    Mr Sandler and Mr Podesta are close friends. The Sandler family has given $4.4 million to the Clinton campaign because they “care about people and not billionaires”.

    The Turnbull government has accused a “cabal of individuals and overseas activists” of trying to prevent jobs being created in Queensland. Federal Resources Minister Matt Canavan has said that the foreign-funded groups “don’t live here, they don’t understand the region, and they’re trying to ­corrupt our judicial system and our political system for their own ends”.

    Senator Canavan has called for foreign-funded groups to be forced to disclose their income.

    The Adani mine development, which it is claimed will help provide cheap electric power to tens of millions of poor Indians, has been delayed for at least seven years by various legal challenges, including against a rail line to the coast and the development of a port at Abbot Point.

    Yesterday, GetUp!, one of the groups named in the Podesta emails fighting the Adani mine, said Senator Canavan attacked its “one million members rather than engage positively with the push to get the influence of ‘Big Money’ out of politics”. Paul Oosting, ­national director of GetUp!, said Senator Canavan was “too busy defending the interests of major Liberal National Party donors, like Adani, to try and reform the current broken situation”.

    Read More...
    2 months ago
  • time.com/4546768/bill-clinton-inc-memo-r...ess-charitable-ties/
    Massimo Calabresi
    Oct 27, 2016

    A 2011 memo made public Wednesday by Wikileaks revealed new details of how former President Bill Clinton made tens of millions of dollars for himself and his wife, then Secretary of State Hillary Clinton, through an opaque, ethically messy amalgam of philanthropic, business and personal activities.

    The memo was written by Bill Clinton’s longtime aide, Doug Band, and is among tens of thousands of emails apparently stolen from Hillary Clinton’s campaign chief, John Podesta, in what U.S. officials believe is part of a massive Russian-backed attempt to disrupt the U.S. election.

    The Band memo came in response to an investigation undertaken by a law firm, Simpson Thacher & Bartlett, into the activities of the Clinton Foundation at the behest of its board. The board was concerned that some of the activities undertaken by Band and others on behalf of the President could threaten the Foundation’s IRS status as a charity, according to Band’s memo. Chelsea Clinton had also reported concerns to Podesta and other Clinton advisors that Band and his recently-launched consulting firm, Teneo, were using her father’s name without his knowledge to contact British lawmakers for clients, including Dow Chemical.

    In the 12-page memo, Band describes how he and several colleagues spent much of the years after Bill Clinton’s presidency working to fund the Clinton Foundation, which has raised nearly $2 billion from individuals, corporations and governments for charities focusing on climate change, economic development, health, women and girls issues and other causes. Band claims in the memo that from 2006 to 2011, he and a colleague, Justin Cooper, raised $46 million for the Foundation through the Clinton Global Initiative, an annual networking conference that is one of the Foundation's big sources of income.
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    But the Foundation work was just a part of what Bill Clinton did during his wife’s time as a Senator and Secretary of State, and it wasn’t always clear where the former president's non-profit activities ended and his for-profit ones began. Five months before he wrote the memo, Band joined forces with a recently retired State Department envoy, Declan Kelly, to form Teneo, which Band said provided merchant and investment banking services, corporate restructuring, public relations and communications services and strategic advising services to 20 clients, including Coca-Cola, Dow Chemical, UBS, Barclays and BHP Billiton, among others. Over that period, Band says in the memo, Teneo raised $8 million for the Clinton Foundation.

    And Band was also organizing personal income directly for Clinton. Under the heading, “For-Profit Activity of President Clinton (i.e. Bill Clinton, Inc.),” Band wrote, “We have dedicated our selves to helping the President secure and engage in for-profit activities—including speeches, books, and advisory service engagements... In support of the President’s for-profit activity, we also have solicited and obtained, as appropriate, in-kind services for the President and his family—for personal travel, hospitality, vacation and the like. Neither Justin nor I are separately compensated for these activities (e.g., we do not receive a fee for, or percentage of, the more than $50 million in for-profit activity we have personally helped to secure for President Clinton to date or the $66 million in future contracts, should he choose to continue with those engagements).”

    Band mentions four such “arrangements” without naming them. Bill Clinton was paid nearly $18 million to be “honorary chancellor” of a for-profit college, Laureate International Universities, according to reports and the family's tax returns. A Dubai-based firm, GEMS Education, paid Bill Clinton more than $560,000 in 2015, according to the tax returns. Band also lists a variety of speaking fees, previously disclosed by the Clintons, including hundreds of thousands of dollars each from UBS, Ericsson, BHP and Barclays. In 2011 alone, according to the Clinton’s tax returns, Bill Clinton earned $13,454,000 in speaking fees.

    No evidence has been found to support allegations of a quid pro quo of official acts by Hillary Clinton as senator or Secretary of State in exchange for the money received by the Clintons or the Clinton Foundation. However the messiness and opacity of the relationship between Clinton’s personal, business and philanthropic undertakings detailed in the memo raises new questions about Bill Clinton's activity. In the email to which Band's draft memo was attached, Band tells Podesta he has removed the "lasry section all together." Marc Lasry is a hedge fund manager and Clinton donor who funded an unsuccessful investment vehicle launched by Chelsea Clinton's husband Marc Mezvinsky.

    Other questions arise in the penultimate paragraph of the memo, entitled “Other Matters.” Without providing details, Band writes that since the end of Bill Clinton’s presidency he and Cooper had served as the primary contact and point of management for President Clinton's activities, including political, business and Foundation matters, speeches, books, and family/personal needs, including “securing in-kind private airplane travel, in-kind vacation stays, and supporting family business and personal needs.”

    Calls and emails to Band, Teneo and the Clinton Foundation were not immediately returned. The Hillary Clinton campaign declined to confirm that the memo, or other emails released by Wikileaks, are in fact undoctored documents stolen from Podesta’s personal email account. However a campaign spokesperson, Glen Caplin, tweeted on Wednesday that Wikileaks was advancing a “clear political agenda” by “dribbling out” Podesta’s emails. “If Podesta dump was about high-minded transparency @wikileaks would release all at once,” Carlin tweeted.

    Podesta has said he is cooperating with the FBI in an investigation of the hack. The Clinton Foundation has said it will stop accepting foreign and corporate donations if Hillary Clinton is elected president.

    Read More...
    2 months ago
  • Charles Ponzi created a new topic ' US Secret Service snatches hacker' in the forum.
    Excellent. USA Secret Service 'snatch' Russian from a non -extradition country. It can happen.

    www.documentcloud.org/documents/3673513-...Sentencing-Memo.html

    Read More...
    3 months ago
  • Charles Ponzi created a new topic ' Extradition to USA of boiler room scammers' in the forum.
    500 boiler room scammers of the elderly are set to be extradited for trial in the USA for fleecing 80 Americans.

    www.stlucianewsonline.com/caribbean-us-p...scammers-in-jamaica/

    Read More...
    3 months ago
  • Writes Michael Smith News: These emails from the ABC tell the story of its refusal to report on Gillard and the AWU Scandal
    Wednesday, 05 April 2017

    Julia-gillard-bruce-wilson

    Last Friday I wrote about 4 Corners and its Pauline Hanson expose - here's a recap:

    4Corners is a very expensive national asset. It's not the plaything of the ABC's staff collective.

    The promo (for the Pauline Hanson expose) could equally have been written featuring Bob Kernohan and others in 2012 regarding Gillard and her secretive deals with the AWU.
    I know that 4Corners people set to work on a story regarding Gillard and the AWU Scandal in late 2012.

    I know people like Bob Kernohan were spoken to.

    In the end, the story of the prime minister who was under police investigation for fraud was canned.

    And as the ABC decided to drop the story on Gillard, Gillard gave them an extra $190M of our money.


    On Monday 19 November 2012 Jonathon Holmes in his Media Watch program nailed the issues - and confirmed discussions I'd had with him and the 4 Corners program.

    EPISODE 41, 19 NOVEMBER 2012
    News values, priorities and politics

    Has the ABC gone missing in action on a story that might bring down the Prime Minister? Or is it treating the story on its merits?

    .........the story is not going away. And my bet is that the ABC’s investigative programs can’t, and won’t, ignore it for much longer.



    I don't know how many people contacted the ABC calling for 4 Corners to devote a program to Pauline Hanson.

    I doubt it was as many as wrote asking for it to devote time and resources to The AWU Scandal.

    In October 2012 one of our readers complained about the lack of coverage.

    On 23 October 2012 the ABC's Canberra based news editor made this incredible reply - read it in the context of the time, resources and promotion given to the Hanson piece.

    From: John Mulhall <This email address is being protected from spambots. You need JavaScript enabled to view it.>

    To:

    Sent: Tuesday, 23 October 2012 2:08 PM

    Subject: ABC News query



    Dear Mr,

    Thank you for your email regarding Mr Blewitt's statements. The ABC is aware of these statements but we do not at this stage believe it warrants the attention of our news coverage.

    To the extent that it may touch tangentially on a former role of the Prime Minister, we know The Australian newspaper maintains an abiding interest in events 17 years ago at the law firm Slater and Gordon, but the ABC is unaware of any allegation in the public domain which goes to the Prime Minister's integrity. If indeed Ms Gillard has had questions to answer, ABC News reported those answers from her lengthy media conference of 24/8/12 in which she exhausted all questions on the issue.

    However, if any allegation is ever raised which might go to the Prime Minister's integrity, the ABC would of course make inquiries into it and seek to report it. As for matters concerning Mr Bruce Wilson, ABC News will cover the case against him as it proceeds.

    Once again thank you for your query.

    Best regards,

    John Mulhall

    ACT News Editor, ABC News

    This email address is being protected from spambots. You need JavaScript enabled to view it.

    After we published that missive our readers hit their keyboards and biros in droves.

    But beyond putting Bruce Wilson up (to say Gillard knew nothing) followed by Blewitt and Styant Browne on the 730 program, the ABC delivered very little coverage.

    When Victoria Police detectives flew to Queensland to interview Olive Brosnahan - the ABC reported nothing.

    When the Operation Tendement task force was set up - the ABC reported nothing.

    When the Fraud Squad raided Gillard's office on 15 May 2013 - the ABC reported nothing.

    On 17 June 2013 The Australia reported on the warrant - and the Victoria Police statement that issues of client legal professional privilege over some documents "should be cleared up within two weeks".

    The ABC reported nothing. Again our readers hit the emails and letters.

    On 19 June 2013 one of our readers received an emailed response from the ABC. Keep in mind Gillard was then PM and the police were preparing to argue that all the documents created by her and seized in the raid were created in the furtherance of fraud (which was the finding of the Chief Magistrate when he adjudicated on the matter).


    Original Message
    From: News-On1ine
    Sent: Wednesday, June 19, 2013 10:01 AM
    To:
    Subject: RE: Victoria Police Raid on Slater and Gordon

    Dear Mr

    Thank you for your email.

    The ABC was aware that an alleged raid had occurred. However, we were unable to confirm

    it had happened and therefore, we did not report it.

    Kind regards

    ABC News Online

    Later in June, the Gillard Government made this announcement of $190M in extra funding for the ABC:
    Funding

    The ABC is primarily financed by the federal government through triennial funding arrangements. In the 2013-14 Budget, the government is providing the ABC with an additional $30 million over three years to meet the growing demand for its digital services. The ABC will also receive $69.4 million over four years from 2012-13 to expand its news and current affairs services. In addition, the government will provide a loan of $90 million over three years to the ABC to assist with the construction of a purpose-built ABC facility at Southbank, Melbourne.

    In 2013-14, government funding to the ABC will total $1.05 billion.


    July, August, September - nothing.

    Nothing as the privilege case worked its way through the courts.

    By September we were facing the Abbott election. And still nothing from the ABC.

    One of our readers wrote to the ABC and passed the note on to me:

    Date : 2-4/09/2013

    Contact type: Complaint

    Location: VIC



    Subject: Police Investigation into three people including J Gillard.

    Comments: I would like to know why the ABC has not reported the following information:

    1. Police removed boxes of evidence from Slater and Gordon in May, as a result of a search warrant that names Julia Gillard as a person of interest.

    2. Police have confirmed in writing that Julia Gillard is under investigation for her role in a Fraud. Copies of this document are publicly available!

    3.Police will be in Court on October 16 and will be asserting that Julia Gillard created documents that were created in furtherance of a fraud and will be seeking to use those documents to pursue the conviction of people, including possibly Julia Gillard herself.

    In summary; what the hell is wrong with you people? Why is it that you are deliberately avoiding reporting this issue, a matter of significant public interest? Why did you quickly end the coverage on live TV this week when Rudd was asked by a reporter about the matter? When is your recalcitrance on this issue going to end and when can we expect some factual reportage in exchange for our dollar ?

    Finally, can you PLEASE assure me that you will have a reporter in Court on October 16 to provide the community with factual reporting on the matter? As the best resourced news organisation in the Southern Hemisphere I think this is the least you can do!

    Network - Other

    RecipientName - Audience & Consumer Affairs Referer - Complaint


    The ABC's news and current affairs (which houses 4Corners) honcho replied.

    From: News Caff [This email address is being protected from spambots. You need JavaScript enabled to view it.]
    Sent: Monday, 16 September 2013 2:12 PM
    To:
    Subject: Police Investigation into three people including J Gillard.

    Dear M

    Thank you for your email regarding investigations being conducted by Victoria Police.

    It is a matter of public record that some form of investigation is underway. We know this because the ABC extensively reported the fact that Ralph Blewitt and others took information to the Police.

    Beyond this, there are few confirmed facts which would reach the threshold of ABC editorial standards for reporting. We accept that other media may operate to a different standard, but we do not intend to compromise our own.

    Reporting that the (then) Prime Minister of the nation is under police investigation is an enormously significant call to make. It cannot be made on supposition, on rumour, or on hearsay.

    You have said that Vic Pol have confirmed this in writing, but we have not cited this media release or public communication. According to The Australian they’ve been collecting files but you would expect any Police investigation to gather up this sort of primary documentation. That does not mean Ms Gillard is under investigation.

    For all we know, the investigation could be into Ralph Blewitt, or Bruce Wilson or Slater and Gordon or any number of other individuals and entities.

    Rather than mimicking other media reports, the ABC is following fine principles of reporting confirmed fact.

    When such facts become available, you can be sure the ABC will report them.

    Yours sincerely

    Adam Doyle

    ABC News

    There was a bit more email toing and froing with Mr Doyle and our reader - and he explained the threshold for the ABC to report on the police raid and investigation.

    Sent: Monday, 16 September 2013 3:10 PM
    To: '
    Subject: RE: Police Investigation into three people including J Gillard.

    Dear M

    I can’t say for sure whether a reporter with a mic will be filing live reports on the steps of a court, but if and when Victoria Police announce that they are investigating Ms Gillard, you can be sure the ABC will report them.

    Yours sincerely

    Adam Doyle

    ABC News



    ABC 4Corners found no difficulty in resourcing and speedily presenting a program on Pauline Hanson based on disgruntled former members statements, apparently unlawfully recorded phone calls and the flagrant presentation by the ABC of legally privileged confidential communications in emails between Ms Hanson and her lawyers.

    But Gillard was protected from scrutiny.

    Anyone think the ABC is not broken?

    Read More...
    4 months ago
  • Larry Pickering

    Four-time Walkley Award winning political commentator and Churchill Fellow, has returned to the fray over concern that the integrity of news dissemination is continually being threatened by a partisan media.

    BLOG / FACEBOOK
    Mon 20 Mar 2017 12:12:03 pm/415 COMMENTS

    Labor’s vilification of RC Commissioner Dyson Heydon, when hearing evidence from Shorten and ex PM Gillard, turned out to be yet another of Shorten’s misguided missiles because Heydon let the criminality of both slide through to the keeper. Now those flawed decisions may come back to haunt him via an unpretentious bloke called Ralph Blewitt.

    Justice Heydon excoriated Shorten and determined that Gillard was an innocent tool of partner and union crook, Bruce Wilson.That was not true of Gillard and Shorten deserved to be charged over the monetary betrayal of his AWU members.

    Perhaps the Bench believes Labor leaders should be exempt from prosecution as it is they who screamed the loudest about Conservative interference. Labor demanded that dyson Heydon be sacked as a Conservative sympathiser. So the Commissioner (and others) will be watching Ralph Blewitt’s testimony with great interest.

    Blewitt has been told by WA Police that he will face over 30 criminal charges. Each of those charges will embroil Julia Gillard and she will find it hard to avoid the witness box in a normal trial. What that evidence leads to should concern Gillard more than Blewitt who has declared his intention to bring down both Gillard and her then boyfriend Bruce Wilson

    Despite having been assured of only partial immunity, Blewitt maintains he did not profit from any criminal venture of Gillard and Wilson.

    Bill Shorten had insisted the AWU forgo any attempt to recover stolen funds, which by now had amounted to, in total and as best we can determine, $1.4 million in 90s money, could be much more.

    Dyson Heydon made a serious mistake in not recommending charges be brought against Gillard and it is likely to leave egg on both his face and reputation when the truth is laid bare, as Blewitt is determined to do, no matter what the cost.

    The Commissioner cannot claim ignorance as The Australian newspaper had spelt out the facts behind Gillard’s actions while working as a solicitor for Slater & Gordon.

    Slater & Gordon, who are now teetering on the edge of insolvency, were deeply enough involved to sack Gillard in an attempt to appear clean handed.

    Anyway, Blewitt was owed a legitimate amount of $13,430 in AWU long-service leave but he was now ‘persona non grata’ with the AWU.

    A peeved Ralph needed his money, he was broke. So when he discovered his ol’ mate, and partner in crime Julia had knifed her way into a plum PM’s job, and therefore was now a "person of influence", he decided to give her a call. Remember, ol’ Ralph can be a bit naive too.

    “Can you arrange for me to get my severance pay, Julia?” asked Ralph politely. Gillard told him in no uncertain terms to "fornicate" off.

    Undeterred, Ralph called Gillard again. This time he couldn’t get past her minders. So he waited and called again, he was transferred to a staffer, “Piss off Blewitt or we will get the Commonwealth Police on to you.” Ralph pissed off and the AWU still owes him his severance pay. And the hurt still abides.

    Perhaps it wasn’t wise to piss ol’ Ralph off because when I enquired as to his whistle-blowing motives, he sent me this:


    “So we must fly a rebel flag,

    As others did before us,

    And we must sing a rebel song

    And join in rebel chorus.

    We'll make the tyrants feel the sting

    O' those that they would throttle;

    They needn't say the fault is ours

    If blood should stain the wattle!"

    The is no doubt that Gillard was complicit in, and profited from, at least $1.4 million stolen from the AWU, Slater & Gordon’s client. Her most damning action was that she posed as a solicitor for Slater & Gordon’s client, her boyfriend Bruce Wilson of the AWU.

    The WA Police are only moving against Blewitt on a figure of $400,000... there’s a million missing somewhere.

    If you have any doubts about Gillard’s guilt, have a read of the 10 part comprehensive series here on pickeringpost.com home page.

    Justice Heydon was swayed by Gillard’s “young and naive” defence. Yet Gillard was neither young nor naive, she was a partner in a Labor Party law firm and was fully cognisant of how Labor union criminality works.

    Slater & Gordon in fact held part of the mortgage on the now infamous property (above) at 85 Kerr Street Fitzroy, in Melbourne.

    Bill Leak's interpretation

    The Kerr Street property and others were renovated, including Gillard’s own house in Collingwood, using fraudulent funds paid to Wilson that were extracted from development companies in return for industrial peace.

    Gillard knew exactly how it all worked as Shorten is an expert at converting AWU union dues into available cash.

    Gillard was at least partly responsible for convincing Boulder AWU members, in her capacity as an AWU lawyer, to transfer their funeral fund to PO box number 157 in Perth, owned by Bruce Wilson. This money was spent on purchasing two holiday homes that had mysteriously been sold after renovations were completed. The profits promptly disappeared.

    Ralph Blewitt (left) claims he was dudded by Gillard, (right).

    Wilson has vowed to protect Gillard but she is most culpable when it comes to the Corporate Affairs hearing where she had to justify her setting up of the slush fund after Corporate Affairs had initially denied her request. Gillard's subsequent appeal could only be heard in a court of law that Wilson says he clearly recalls. That puts both he and Gillard in an appeals court that transcripts can be subpoenaed from.

    Julia had better have plenty of popcorn ready, it will be a long trial that should end with Blewitt on a bond and her and her ex in cuffs.

    Read More...
    4 months ago
  • Turnbull wants unionists & bosses in secret payments in jail - the perfect test case is now before court
    Monday, 20 March 2017

    6a0177444b0c2e970d01901efe2d7a970b (1)

    Secret commission payments are currently unlawful and were unlawful at the time of Gillard's AWU Workplace Reform Association.

    We do not need a new law to prosecute Gillard et al.

    To protect Gillard, police have allowed Thiess to pretend it knew nothing about the secret payments made by Thiess to Bill Ludwig, Bruce Wilson, Ralph Blewitt and Julia Gillard (the Heydon Royal Commission found that money to pay for her renovations came in cash from Bruce Wilson who had no other legitimate source than the unlawful slush fund she set up) - incredibly police have accepted Thiess's story that it was deceived by false invoices.

    We don't need new laws Mr Turnbull.

    We need competent investigations and prosecutions.

    And the will to allow justice to take its course, no matter where and to whom that path leads.
    PM pitches new union fight with Shorten

    Screen Shot 2017-03-20 at 10.48.21 am
    Jennifer Rajca, Australian Associated Press
    March 20, 2017 8:07am

    Malcolm Turnbull has opened up a fresh front on the industrial relations battleground, proposing news laws to jail union officials and employers who make illegitimate secret payments.

    As Labor leader Bill Shorten stood up in parliament to introduce a private bill to protect the take-home pay of workers, the prime minister strode into a press conference alongside his Employment Minister Michaelia Cash.

    The pair unveiled plans to penalise employers and union officials found to have made secret payments other than for clearly legitimate purposes.

    It would also require full disclosure of legitimate payments.

    "Trade unions have a solemn, legal, moral, fiduciary duty to act in the best interests of their members," Mr Turnbull told reporters in Canberra on Monday.

    "We have seen through the Heydon royal commission and subsequently unions have let their members down and big unions have traded their rights away in return for payments."

    For payments with the intent to corrupt, penalties include up to 10 years in prison and $900,000 for individuals.

    Sentences of up to two years and $90,000 would apply for other illegitimate payments.

    Senator Cash said there was no consistency across Australia's bribery laws and the offence was often difficult to prove.

    "Employees should be aware and should have full knowledge of any payments that are made between their employer and a union," she said.

    "When you look at the level of penalty, it should send a very, very clear message to any employer or any union who wants to indulge in secretive payments.

    "It is wrong and compromises the integrity and lawfulness of the workplace."

    The pair described their announcement as a test for Mr Shorten.

    But the opposition leader was already pre-empting the attack as he addressed parliament about his bill aiming to stop future cuts to penalty rates following the Fair Work Commission's decision to align Sunday rates in the hospitality and retail sectors.

    "What I say to the prime minister is use whatever distraction that you think is necessary. Use every possible dishonest distraction you have in your book. Put up whatever story you want," he said.

    "But on this issue, when it comes to defending working families in this country, the living standards of working families, we will not be deterred or put off."

    Mr Turnbull will introduce the payments legislation on Wednesday.


    CRIMINALISING SECRET PAYMENTS BETWEEN EMPLOYERS AND UNIONS

    20 March 2017

    Prime Minister

    Minister for Employment

    This week the Turnbull Government will introduce vital legislation banning secret payments between unions and employers.

    The new laws will criminalise payments or other benefits passed between employers and unions that could have a corrupting influence.

    Any union leader who is willing to accept benefits from an employer is placing themselves in a highly compromising position.

    The Royal Commission into Trade Union Governance and Corruption found that such payments corrupt union officials and should be banned.

    Penalties will apply equally to employers and unions. The person offering or making the benefit will be subject to the same penalties as the person soliciting or receiving it.

    Those who make, receive, solicit or offer payments or benefits intended to corrupt a union official will face a maximum 10 years in prison, up to a $900,000 fine for an individual or $4.5 million fine for a company.

    Penalties for payments or benefits other than specified legitimate payments (such as genuine membership fees) will be 2 years in prison, up to a $90,000 for an individual or $450,000 for a company.

    The Bill will also require that any legitimate financial benefits obtained by an employer or union during enterprise agreement negotiations be disclosed to employees.

    If money changes hands between an employer and a union, both parties have an obligation to honestly disclose these payments to their employees and members.

    These vital changes will deliver on three key recommendations of the Royal Commission into Trade Union Governance and Corruption.

    The Turnbull Government is acting to ensure that employers and unions act in the best interests of their employees and members.

    Bill Shorten and the Labor Party should now support this reform, to clean up the unfair, secretive, and often corrupt payments that have tainted Australian workplaces for decades.

    ENDS
    PRESS CONFERENCE WITH THE MINISTER FOR EMPLOYMENT, SENATOR THE HON. MICHAELIA CASH CANBERRA

    20 March 2017

    Prime Minister

    Minister for Employment
    Subjects:

    Corrupting Benefits Bill; 18C; GST distribution; Perth Freight Link

    E&OE

    PRIME MINISTER:

    All of our industrial legislation, that the Minister has negotiated through the Senate is designed to ensure that unions do their job, represent their members honestly and openly.

    Now, during the Heydon Royal Commission, Australians were horrified to see the extent of secret payments made by employers - big business, very often - to trade unions, and in particular, the Australian Workers Union.

    And very often, in circumstances where, in an industrial agreement, the union had agreed to trade away workers' entitlements, including penalty rates - the Cleanevent agreement, the Chiquita Mushrooms agreement and others.

    Australians were horrified because they said, how can this be lawful? How could it possibly happen that this would not be a breach of the law?

    Now, we are dealing with that right now. We are taking up the recommendations of the Heydon Royal Commission, to make it a criminal offence, punishable by up to 10 years in prison, for a union to accept or a union official to accept or an employer to make a payment that has a corrupting motive, a corrupting intent in the sense of encouraging a union or a union official to act improperly.

    We are also making it an offence, punishable by up to two years’ imprisonment, for any payment to be made by an employer to a union or a union official, other than for clearly legitimate purposes - such as the remittance of union dues or something of that kind.

    Finally, again implementing the recommendation of the Heydon Royal Commission - we are going to ensure that the law compels unions and employers, at the time an enterprise agreement is put to members of a union for their approval, that any payments to the union is fully disclosed, any legitimate payment is fully disclosed. Secrets payments are utterly unacceptable.

    Trade unions have a solemn, legal, moral, fiduciary duty to act in the interests of their members.

    And we have seen again and again, through the Heydon Royal Commission and subsequently the way unions have let their members down, how big labour, big unions have ignored the interests of their members and traded their rights away in return for payments from employers.

    Now, the law applies to all Australians and it applies to unions.

    We have seen Sally McManus from the ACTU say that the law should not apply to unions unless they agree with it.

    Well, that’s not the rule of law. That’s the rule of unions.

    Bill Shorten has said he wants to run the country like a union leader. That’s not the approach of a Prime Minister. That is not the approach of the leader of a nation whose foundation is freedom, democracy and the rule of law. That is the approach of a union boss, like Sally McManus, that thinks their unions are above the law.

    Well, they’re not and in one piece of legislation after another, we are restoring the rule of law to the Australian industrial sector, to the construction sector, to unions, to employer organisations and employers - we are restoring and defending the rule of law.

    MINISTER FOR EMPLOYMENT:

    Thank you, Prime Minister.

    This is all about transparency in the workplace.

    Employees should be aware and should have full knowledge of any payments that are made between their employer and a union.

    This is a government that is committed to ensuring our workplaces in Australia are transparent and they are at all times treated in a fair manner.

    This is a real test for Bill Shorten because Bill Shorten says he believes in the worker and yet, time and time again, by his actions, he confirms for the Australian people, he is only interested in big unions being able to do deals with big businesses.

    In terms of this legislation, as we know, the Royal Commission, in fact, successive royal commissions dating back to 1982 have stated that secret payments between employers and unions, should be banned.

    We should have transparency in our workplaces.

    Of course, we know potentially one of the worst offenders when it comes to secret payments being made, is Bill Shorten himself when he was with the Australian Workers Union.

    He was more than happy to have money paid by Cleanevent to his union in exchange for trading away the penalty rates of the lowest-paid workers in this country. But also, in exchange for receiving a list of workers that he could conveniently add to the AWU membership to bolster his power within the union movement.

    Well, enough is enough.

    Successive royal commissions, including the Heydon Royal Commission have said this is not acceptable practice within the workplace.

    So the Prime Minister and I are here to announce today that we will introducing into the Parliament laws to ban corrupting benefits.

    This should actually be a piece of relatively uncontroversial legislation. And the test for Bill Shorten and Labor is, they like to talk big on supporting the workers. Well, if that’s what you are all about, then quite frankly, this legislation should be able to go through the Parliament in an uncontroversial manner.

    What the legislation seeks to do, is to ban secret payments from employers to unions.

    Certain legitimate payments will continue to be allowed, such as payments for genuine services that are provided by a union or genuine payment of membership fees.

    Criminal penalties will apply to both the employer and the union. The party that makes the offer of the payment will be penalised in the same way as the party that solicits or receives the payment.

    As Commissioner Heydon basically acknowledged - it takes two to tango in these situations.

    In terms of the penalties, they reflect the seriousness of the offence.

    In terms of criminal penalties for payments with the intent to corrupt, they will be up to 10 years in prison and $900,000 for an individual, or $4.5 million for a company.

    Penalties for other illegitimate payments, will be two years in prison or $90,000 for an individual or $450,000 for a companies.

    As the Prime Minister has also stated though, transparency is key. So when legitimate payments are being made in the course of negotiating an enterprise agreement, the legislation will require the disclosure of these legitimate payments, to the employees so that when they are considering whether or not to vote the agreement up, they will be doing so in full knowledge of all of the payments or benefits that have been given to either the union or the employer.

    If money changes hands between an employer and a union, both parties have an obligation to honestly declare what has occurred and why.

    As I have said, this is basically all about transparency. If you do believe in integrity within workplaces, if you do believe for standing up for Australian workers, then we should be standing side-by-side here today with all parties supporting this vital piece of legislation, which will ensure that employers and unions that exchange money, are no longer allowed or in the event they are a legitimate payment, this is disclosed to the employees.

    JOURNALIST:

    Who will determine what is a genuine service and when will the legislation be introduced?

    MINISTER FOR EMPLOYMENT:

    That will be for the trier of fact to ultimately determine whether or not it is a genuine service. For example, if a payment is being made into a safety training fund, you would need to show that you actually have an actual program of, basically, safety training. You would need to show that that has been undertaken. But you would also need to show that it has been charged out at market rate.

    In terms of the legislation, the Prime Minister will introduce the legislation into the House of Representatives on Wednesday.

    JOURNALIST:

    Isn’t a payment that has a corrupting intent already illegal under existing laws? Isn't what you are announcing just an IR dog whistle?

    MINISTER FOR EMPLOYMENT:

    No not at all, Andrew. One of the issues that the Royal Commissions, in particular the Heydon Royal Commission made note of, was that across Australia there are differing laws in relation to bribery. There is no consistency and it is often very difficult to prove.

    So in particular, in relation to the industrial relation relations regime, Commissioner Heydon recommended that a Commonwealth offence be introduced and a very clear offence which outlawed basically all payments full stop, unless they are legitimate.

    And that is exactly what we have done, so you have consistency across the board in the industrial regime.

    JOURNALIST:

    [Inaudible] is quite different from already being illegal?

    MINISTER FOR EMPLOYMENT:

    But, basically, across the board different jurisdictions have different penalties. They are often not utilised and as I have said, a lot of it is actually in relation to the corruption of a Commonwealth official.

    This is specifically now, in relation to the industrial context and that is what was lacking and Heydon identified that.

    PRIME MINISTER:

    This was recommended by the Royal Commission, presided over by one of the most distinguished judicial figures in contemporary legal history. So this was a very thoughtfully considered recommendation which we have adopted.

    JOURNALIST:

    Had these laws been in place in the past, some reasonably serious CEOs would have found themselves at risk of going to the slammer as well as unionists. Have you got the support of the construction companies, businesses for this?

    MINISTER FOR EMPLOYMENT:

    Yes, we have. When Heydon was first announced, companies came out and said they supported the recommendations.

    One of the things we’ve got to be very clear here - this applies equally to employers as it does to unions.

    When you look at the level of penalty, it should send a very, very clear message to any employer or any union, who wants to indulge in secretive payments. It is wrong and compromises the integrity and lawfulness of the workplace.

    JOURNALIST:

    If the laws are so important, why has it taken 14 months since the handing down of the final report from the Royal Commission to unveil them? Secondly, in your personal view, should “offend and insult” be removed from Section 18C and replaced by “harass”?

    PRIME MINISTER:

    Well thank you. In terms of the timing of this, this is a very important priority. As you know, we’ve dealt with some very substantial pieces of industrial legislation already since the 45th Parliament convened, particularly relating to the Building and Construction Commission, Registered Organisations Bill, obviously, the legislation that affected the Country Fire Authority.

    But both the ABCC and Registered Organisations have the same intent of restoring the rule of law, accountability. Registered Organisations in particular required union officials and indeed officers of employer organisations to have the same level of accountability as company directors do to their shareholders.

    Again, this is the same principle. But this is a very real, significant gap in the law that Justice Heydon identified in the Royal Commission. It should be utterly unthinkable, unacceptable, that employers would be making payments to unions and in particular, secret payments and in circumstances where - as the Commission found in case after case - the context or the result was that employees' rights were traded away.

    JOURNALIST:

    Prime Minister on Section 18C?

    PRIME MINISTER:

    All of those matters are being considered. As you know, there was a Parliamentary Committee that considered it and the Government is considering its response to that.

    JOURNALIST:

    If Australians were horrified by the findings of Commissioner Heydon, why did you make scant or almost no mention of them during the election campaign?

    PRIME MINISTER:

    Well that’s not correct. That is absolutely not correct. The whole election campaign, the election was triggered by those two pieces of industrial legislation which were fundamental to the recommendations of the Heydon Royal Commission.

    JOURNALIST:

    If payments are disclosed transparently, why go the extra step and ban them? How can you say that corporate payments to unions corrupt industrial bargaining outcomes, but corporate donations to political parties don’t corrupt public policy outcomes?

    PRIME MINISTER:

    Well, you’re not seriously suggesting to me that a corrupting benefit should be allowed, as long as it’s disclosed? Is that what you are putting to us?

    JOURNALIST:

    Why aren’t political donations a corrupting benefit to politicians? Why do you assume they don't impact public policy outcomes?

    PRIME MINISTER:

    I wouldn't have thought there would be anybody here actually defending employers paying bribes to unions, but there it is. It is a broad church.

    JOURNALIST:

    Prime Minister, what chance do you believe you’ll have of getting this through Parliament? Are you expecting the Labor Party to come on board with this?

    PRIME MINISTER:

    Well they should. Look, the Labor Party is not going to take advice from me on industrial matters, I know.

    When union membership is declining, we know that. Having said that, the power of a relatively small number of very cashed-up militant unions - CFMEU most prominently - is getting greater and greater within the union movement. You can see the culture of the CFMEU, the lawless culture of the CFMEU, is overtaking the Labor movement.

    Bill Shorten is not a Labor leader in the mold of Paul Keating and Bob Hawke. He is a wholly-owned subsidiary of the CFMEU.

    You see Sally McManus there, defending the lawlessness of the CFMEU. The head of the ACTU saying unions don't have to obey the law. If they don't like the law, they can disobey it. That is exactly what the CFMEU says.

    So that’s the type of Australia that Bill Shorten wants us to be. He wants an Australia where there are two classes of Australians; those who obey the law – that’s most of us - and those who don't have to, unless it suits them, and that’s the CFMEU and the AWU and some of these unions.

    Now if the union movement is fair dinkum about restoring its credibility and its integrity and recovering its membership, then it would have backed this in. Just like as it would have backed in the ABCC and the Registered Organisations Bill. But the reality is, we know that Bill Shorten - as I said - he is completely controlled by some militant unions who have utter contempt for the law of the land.

    What we are doing is ensuring that the law of the land does apply to them, that the law is strengthened. We are doing so in order to protect the very members of those unions who have so little regard for the laws of our nation.

    JOURNALIST:

    Prime Minister, on the GST distribution, a poll in The Western Australian on Saturday showed five federal Liberals would lose their seat and a big reason for that is the anger over the GST injustice that WA gets over the distribution. 92 per cent of West Australians say that it’s important that you act on that before the next election.

    Can you give a commitment that you will take on board those concerns, rather than waiting for several years? Four years, which Treasury’s estimated before WA’s share recovers to 70 cents. Will you act sooner on that?

    PRIME MINISTER:

    Well, we explained during the last year - and I have been very consistent about this - that we understand the sense of grievance that West Australians feel. Michaelia of course, is a West Australian Senator.

    MINISTER FOR EMPLOYMENT:

    West Australian Senator.

    PRIME MINISTER:

    We understand that very well. I am the first Prime Minister to take action on this.

    What I said was, in consultation with Colin Barnett and my colleagues, I said, we will have an opportunity in several years’ time - and the estimate at that point was 2019-20 - when the Western Australian GST share, under the formula, rises back up to 70 per cent. That was the West Australian Treasury’s estimation, not mine. I said, that is an opportunity then, to set a floor so that nobody loses. But then, West Australians will feel, as indeed will citizens in other states, that no state's share is going to sink down to the levels of 30 per cent and so forth, where Western Australia that found it.

    This is what I did. I made that commitment to seek to achieve that. I wrote to all the Premiers and Chief Ministers, I raised it at COAG. I was attacked, unrelentingly, by the Labor Party, including by Mr Shorten.

    So, really, the question now is we will seek to achieve that. That is our goal, we think it is fair and it is achievable with goodwill.

    But the fiercest opponents of what I proposed, were Bill Shorten - federal Labor leader - and the Labor Premiers, including South Australia, Victoria and Queensland. So the challenge for the new Labor Premier of Western Australia, is how is he going to get his own party onside? That’s the real question. Because Labor is absolutely rock solid at the federal level, so far anyway, in defending the existing arrangements on the GST distribution.

    I believe there is an opportunity to set a floor. But to do so at a time when nobody is actually going to lose. That’s the point. I have been completely consistent about that.

    I know there has been some reporting in Western Australia that I had made a commitment that was different to that, but if you look at my statement in August, to the West Australian division of the Liberal Party State Council, and subsequent statements, they have been completely consistent, including the correspondence I had with the Premiers.

    I saw somewhere it said I hadn't raised the matter with the Premiers, I did. I raised with them both in writing and in a meeting. Now, we might just have one more?

    JOURNALIST:

    Section 18C of the Racial Discrimination Act, are you expecting the Government's position on that issue to be resolved this week? Why won't you say what your own personal view is?

    PRIME MINISTER:

    Well I am the Prime Minister. So the Government has a view on matters of this kind, the Government will have a response. It will be the collective response of the Government. Perhaps one more?

    JOURNALIST:

    On penalty rates, do you plan to respond on penalty rates to the Fair Work decision this week, will you be recommending take-home pay orders?

    MINISTER FOR EMPLOYMENT:

    Yes, we will be making a submission in relation to chapter 11 and the transitional provisions. In terms of what we’ll be recommending, I won't be disclosing it here obviously. That it is something the Government is considering.

    JOURNALIST:

    Mr Turnbull are you going to carry through your threat during Western Australia election to fund only the Coalition's planned roads project and not fund the new Labor government's rail project?

    PRIME MINISTER:

    Michelle, the Freight Link project - which is what you are referring to - is a high-priority project of Infrastructure Australia and we have committed to fund that.

    The new Western Australia Labor Government does not want to proceed with it and so therefore doesn't want our money for that project. They would like to secure Federal Government support for alternative infrastructure projects. The position is that we will look at them and Infrastructure Australia will look at them. We’ll examine them in good faith and in the normal way.

    Again, it would be quite absurd to do anything else. You can't just say you have got a project that is fully developed, fully costed, fully analysed, prioritised by Infrastructure Australia and then when the Government comes in and says despite all that, we don't want to do it, here, commit the same amount of money to another project, that is at this stage basically a press release.

    There is no business case. There is no plan for it. They have got a way to go. We are all in favour of investing in infrastructure and we do so to the tune of tens of billions of dollars around the nation. I am an enthusiast for urban rail, I think we’ll need more urban rail in all of our big cities. I welcome governments that want to get on with that.

    But as to manner and the extent of Federal Government funding, that is going to be on the basis, after due consideration, of what is proposed. This idea that the State Government can put out a press release and then say give us the money, on the basis of the press release.

    Australians would not think well of my government if we were as careless as that in dealing with their taxpayers' dollars.

    Thanks very much.

    Read More...
    4 months ago
  • There are some interesting times indeed ahead for Julia Gillard and her cronies in crime. Ralph Blewitt has penned a letter to police offering to open up and tell all, even if it has consequences for him. Gillard may not be flying high with the United Nations for much longer.
    Over the weekend Ralph Blewitt submitted this notice to Western Australia Police.
    *****************************************************************************
    Police will have their own view about what charges should flow from their investigations - but Ralph's position which he makes so clearly in this letter will have to be taken into account.
    Put yourself in Ralph's shoes. He faces an uncertain future. He is under no compulsion to return to Australia, he's voluntarily making himself available to police.
    Ralph knows full well that his destiny is in the hands of authorities. It must have been very, very tempting to drop the whole AWU matter and just get on with his very full life. But he hasn't done that. And I admire him for his guts and sense of right and wrong.

    Dear Detective Sergeant (Name withheld),
    I have recently become insulin dependent in the management of chronic Diabetes Type 2.
    My wife and carer Ruby and I are adjusting to managing daily insulin injections and I have to be a little more prudent in managing my movements with a lot more pre-planning.
    May I ask a few questions about my attendance at your offices “to deal with the matter”?
    Will I be under arrest?
    Will I be under caution?
    Do police anticipate charging me with any offence(s)?
    If so what offences?
    If so will I be bailed, remanded or summonsed to appear in court?
    Will I be permitted to leave Australia and return to my home in Malaysia after the meeting with you “to deal with the matter”? (my wife and carer Ruby does not yet have a long term visa to remain in Australia).

    Background
    Since late 2012 I have been available to and actively assisting police in their enquiries about the secret commissions paid by Thiess executives through the AWU Workplace Reform Association and the associated frauds, forgeries and other offences that I observed and was a part of from 1991 to 1995.
    I want to tell all that I know - and I wish to co-operate with police and the courts by pleading guilty to the offences I know I helped others commit.
    I am, however, not willing to cooperate in the furtherance and coverup of the offences of my co-offenders, particularly Julia GILLARD and Bruce WILSON.
    I did not set out to commit any offence of my own volition.
    I will not plead guilty to charges singling me out to take the fall on behalf of others. I was part of a criminal conspiracy. I didn't have the ability to do what I did without direction of others.
    Every time I offended during the 1991 to 1995 course of conduct I did so at the behest (as Ms GILLARD put it during her exit interview from Slater and Gordon) of Bruce WILSON and/or Julia GILLARD.
    Where I completed the application to incorporate the AWU Workplace Reform Association, so did GILLARD.
    I wrote what GILLARD and WILSON told me to write.
    It would be unjust and wrong just to charge GILLARD and not to charge me.
    These were offences in which we were jointly involved. The same applies in reverse - it would be dishonest and unjust to charge me but not to charge my co-offenders WILSON and GILLARD as we were acting together.
    When I signed the false document, Specific Power of Attorney I knew that GILLARD was not in the room to witness it. I knew the document was not signed on 4 February 1992 as it falsely states. I knew I was creating a false document and I admit to that offence. However I did not act alone and I am concerned that the courts and the public would get the wrong impression about the criminal behaviour involved in making that false document if GILLARD and WILSON are not charged with me.
    When I conspired with WILSON and GILLARD to buy the Kerr Street property I wrote out a cheque for about $67,000 from the AWU Workplace Reform Association cheque book. The entry in the Slater and Gordon Trust Account ledger says the money came from me, not the association. That is false. I know that Bill Ludwig’s lawyer Con Sciacca sent a fax to GILLARD’s law firm on the day I paid the money in. The contents of that fax can only have been in the furtherance of fraud and I will consider it a neglect of police duty if that fax is not seized and produced for me to consider - as it is apparently central in the efforts to fraudulently represent that the $67,000 came from me and not the Association GILLARD, WILSON and I fraudulently set up.
    Detective Sergeant, I will tell the truth, the whole truth and nothing but the truth. There is a very important proviso in that statement - that it is the whole truth.
    I didn’t set out to create the AWU Workplace Reform Association. I wouldn’t have a clue where to start. I did not brief any lawyer to act for me or to give me legal advice about incorporating the association. GILLARD was not acting as my lawyer, she was in on the conspiracy.
    I look forward to meeting with you to tell all and “to deal with the matter” in its entirety once and for all.

    Regards Ralph Blewitt.
    **************************************************************************
    Gillard and Wilson may have managed to cover their tracks so far, but I personally feel the truth is about to be told, and their run is about to come to an abrupt end.
    The money Gillard has been gifting to the “Clinton Foundation” may never be recovered (Nearly half a billion dollars). The damage she has done to Australia during her governance is also irreversible in the short term.
    It is now Australia needs to turn to honest government willing to govern for the people, not their own rotten vested interests!

    www.michaelsmithnews.com/…/ralph-blewitt-to-plead-gu…DesiredUserName wrote:
    Michael McGarvie's wife works for Slater and Gordon and his Howard Bowles must know the trust accounting rules for funds passed through trusts for the deposit on a house. What do you think about this theory from one on the investigative reporters that Howard Bowles was 'spying on'?

    ATO Commissioner asked for tax ruling on "the scheme Bernard cooked up" for GILLARD
    Monday, 20 February 2017

    Moments like this make it all worthwhile!

    KC read our post yesterday about GILLARD and the "scheme Bernard cooked up" to provide her with a lump sum "loan".

    Another of our brilliant readers and regular contributors had provided a professional tax litigator's view on the scheme/combination/conspiracy. Yesterday we published that on the website, today KC has dispatched this note to the Commissioner of Taxation.

    Just magnificent work, thank you to all concerned.



    Sent this off to the ATO (to whom I remit close to $900K a year). Be interesting to see what response I get.


    Commissioner of Taxation

    I write to seek a tax ruling relative to the apparent accepted practice of a corporation providing a loan to employees, and then, over time, forgiving the loan, as some form of incentive/bonus scheme to extend the time staff remain in the employment of the corporation.
    This would appear, most easily understood in the practice of Slater & Gordon expose on

    www.michaelsmithnews.com/2017/02/they-go...ly-unprosecuted.html

    As a substantial employer I seek clarification from the ATO as to the clear precedent set by this established, if somewhat unusual method of remunerating staff whilst, apparently avoiding taxation obligations.

    I would also seek clarification as to whether the forgiveness of this loan, over time, is also a deductable expense for the employer.

    While I would understand that Slater & Gordon are a large and powerful law firm with deep connections into the body politic this country is still the land of the “fair go”. If this matter is known to the ATO, which I am aware has been brought to its attention, is the ATO turning a blind eye or at least is it determining no ATO fraud has occurred and payment arrangements, by way of a forgiven loan is not taxable income. If this is in fact the case it should be available to all businesses to offer a salary package with this type of tax free incentive included.

    Yours Faithfully


    Read More...
    5 months ago

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