From Olivier...
Some perspective on yesterday's events in Austin, especially Judge Sparks' unmistakable warning on sanctions:
This litigation started on October 11, 2002 in the Superior Court of the State of California for the County of San Francisco. Berber, Rea and Trading Places were dismissed based on a lack of personal jurisdiction. Berber swore under oath in SFSC that he never did any business in his personal capacity in California. The California Court of Appeals affirmed that decision, stating that the record indicates that 30 shareholders were selling more stock in the California $526 million sale than was Berber, who in his own name only was selling about $3 million. To throw some light on that ruling: in this action I made sure to file in the record direct evidence that Milestone International, Ltd. is a shell entity established in the City of London in 1998 that cashed in for $330 million in California. That shell corp. has several bogus directors and does not hold any board meetings, annual or otherwise. It is directed by among others an attorney in Sark, The Channel Islands. Because of Berber's public statements of personally setting up a $100 million "Berber Family Trust," I've circumstantially proved that Berber personally owns Milestone and, because no other shareholder liquidated anywhere near $100 million, that Berber through Milestone personally reaped $330 million in California - not in any official capacity, but as secret majority owner.
Rea in the SFSC swore under oath that he never had any advisory function whatsoever. I've filed photographs of Trading Places operations and a transcript containing hundreds of securities recommendations proving this statement false.
In the United States District Court for the Eastern District of Virginia, Berber, Moor and their law firm Jenkens were all dismissed based on a lack of personal jurisdiction. I had solid grounds to appeal because section 1965(b) of the RICO statute authorizes nationwide service of process, i.e. conferring jurisdiction based on not minimum contacts with a specific state but with the United States as a whole: you serve them within the US that's it there is jurisdiction. If I were vexatious and seeking to delay proceedings it would be reasonable to assume that I would have appealed, citing to 1965(b), but I did not.
So, Berber and Moor counsel directed me to sue in Texas; I finally decided this has gone on long enough let's settle this once and for all so in late June I filed in the United States District Court for the Western District of Texas, Austin Division. I voluntarily dismissed Rea and TP in EDVA and sued them in Texas, for splitting RICO actions into pieces is precisely the judicial inefficiency 1965(b) was designed to prevent. When I sued in Texas pursuant to their invitation, Berber and Moor moved to have me declared vexatious for doing so. When they did that they stated that I sued other parties including several corporations "all to no avail." Jenkens filed that statement except the problem is I settled with Jenkens so they should have known better than to make that statement and in fact the last filing Jenkens made in this case was to apologize, using that word, if the Court interpreted "all to no avail" to mean I didn't settle any claims, amicably resolved them, which I cannot and will not discuss in any way in public. Now, if I were vexatious, then I would not have made the moral and ethical decision to finally pursue for these damages not the legitimate corporate enterprises through which Berber and Moor perpetrated their racketeering fraud upon thousands of citizens, what strike suit law firms would call the "deep pockets," only going after the key culprits, the individuals. It was the right decision and I'm glad I made it and I am very happy that Judge Sparks clearly warned us all yesterday that there won't be any filing for bankruptcy to evade the enforcement of the Court's ultimate judgment on these claims.
In this lawsuit, I am not only alleging facts concerning the kickbacks paid by Berber and Moor, but I'm also alleging obstruction of justice, including the above, and lying in federal agency (SEC), congressional (1999 and 2000 day trading hearings) and judicial (SFSC, EDVA, WDTX) proceedings. Here is a statement made by Berber right here on SI, which gives an indication of the respect he has for SEC and Congress, which issued a number of findings-of-fact re trading in 1999, statements made by Senator Collins and SEC Chairman Levitt:
Message 8252702
Berber therein imputes a hidden agenda to a United States Senator and a Chairman of the Securities and Exchange Commission, not to mention the United States Congress Permanent Subcommittee on Investigations, Committee on Governmental Affairs. What does he call their findings-of-fact? "Noise."
I responded to the vexatious litigant motion by consenting to Berber and Moor's demand for an injunction against further lawsuits; yet yesterday Judge Sparks, even in the presence of agreement by the adversarial parties, said he was not going to enjoin anything at this stage and would see how this case progresses. Earlier, I agreed that if I do anything to merit sanctions then they should get them, but that this also goes for Berber and Moor also, should they make false statements in the Court.
Sanctions range in scope. They can be censure or admonishment to attorney's fees to, in extreme situations, such as for example in the presence of years of obstruction of justice and discovery misconduct - i.e. destroying material evidence during litigation - the "nuclear" route, whereby the Plaintiff is granted summary judgment and awarded all relief requested in the complaint. A federal magistrate judge last January in Virginia stated to me during a hearing that if the defendants have been destroying evidence during this litigation then "That's certainly something you should look into and pursue."
Judge Sparks first of all seemed satisfied that I do not intend to file other lawsuits and that I came to Texas to have these claims determined in Texas. However, if Judge Sparks orders this case to proceed past the dismissal stage, to discovery and trial, I understand why he would want to give me a moment to consider what that means: many, many cases are dismissed, lots of bogus lawsuits are filed which is one reason why this has taken so long, there are huge hurdles set in place to filter out baseless claims. I believe I've presented mine well enough to prevail on dismissal. However, the Court is saying, in effect, you've made some very serious allegations and they better be true or else. I told Judge Sparks that this litigation is a full-time endeavor (I don't have 20 attorneys, clerks, paralegals, secretaries and couriers at my disposal as do Berber and Moor, for obvious reasons) and he said if I'm sanctioned then I better find another job and it will take some time to earn enough to pay the sanctions, which means they'll be quite high if I have wasted the time of all of these courts with frivolous claims. I stated earlier that there is a reason why I took the unusual step of personally verifying the complaint allegations under penalty of perjury, something very few plaintiffs ever do because there are risks then if you're not telling the truth, the stakes go up dramatically. I am unafraid of any sanctions: I'm telling the truth; and, given the chance, I'll prove beyond what I already have that these defendants have been as I have alleged engaged in a pattern of obstruction of justice for years, to evade civil and criminal penalties for their fraudulent conduct.
Judge Sparks' sanctions statement as I understand it means that ANYONE - not just me - who is found to have toyed with the courts all this time is going to be severely punished for it. He said, without a transcript so forgive me if I'm misquoting here, but I believe it was, speaking to all parties, "I can guarantee that one way or the other this action is going to result in sanctions, and no one will be able to avoid them by declaring bankruptcy." Now that means that I can't declare "BK" (legal short-hand for bankruptcy) to evade that punishment, if the Court in due course finds it to be merited; it also means that Berber, Moor and Rea are likewise put on notice from the start of this action that merely because they're individuals does not mean they can haul out this parlor trick of losing and then depositing all funds offshore and saying, so sorry, I have no money, can't pay, I'm filing for bankruptcy. Judge Sparks unmistakably warned us all that this Court's judgment is going to be enforced, no escape hatches for the guilty parties.
Judge Sparks also stated that almost all RICO claims are brought because the plaintiffs can't think of anything else. I've read through hundreds of RICO orders and it is true that many are dismissed because people claim RICO when really their claims do not meet the test set by Congress in 18 U.S.C. 1961-1968, law interpreted and enforced by Supreme Court authority. Judge Sparks also stated, "If there is any possible way to dismiss this case, I will." Later, I stated that I understand how serious RICO allegations are but the claims I bring are a textbook example of RICO claims. In fact, I drafted the complaint after reviewing others that went to trial, and I quickly learned that racketeers and good RICO claims have an enormous amount in common. It was amazing, the exact same tactics used by other racketeers were used by Berber and Moor, as I have alleged.
Berber and Moor's own attorney stated to the Court, re arbitration, "We still think it's a good motion....we don't know if it covers claims before he was a client." 99% of my claims regard their conduct when I was not their client; I've waived contractual claims.
I ended up stating that if this action is ordered to trial I have hope that lawyers will come in to support it and of course the Court would prefer lawyers handling it so if I prevail on dismissal let's see how that goes but I believe if I can find the right attorney then we can go forward with confidence.
Now, after I left the courthouse, Berber and Moor counsel - and either an assistant or maybe Moor - followed me down the street about a block and-a-half. He said why not drop this case and I said are you insane and he said no way this ever goes to trial and I said we'll see. Berber's defense suffered a severe blow by Jenkens & Gilchrist withdrawing from this case, but Jenkens stated it had good cause and I'll leave you all as I to only guess at what that may mean, what has happened to trigger that statement and Jenkens' withdrawal after all this time.
One thing I believe Judge Sparks made clear yesterday and that's this: I said something about Rea filing a sworn affidavit saying he never did business in Texas when he sent me a long e-mail in October describing an Austin meeting where he secured 25k/month in payments from Berber and Moor. In fact, Rea followed that up over the phone (he did not appear in person), by saying first that no one ever went to Texas and then a few minutes later he claims "we only went there once." Judge Sparks responded to my perjury allegations - again, if a misquote I am very sorry, but to the effect that - "Not telling the truth in a federal court is a very serious matter." To me, that means that this tortured, two-year dance is now completely finished and this Court is going to get to the truth one way or the other, but I have no idea what that means regarding the Court's pending order, and no way would I ever presume to predict judicial determinations in advance as defense counsel has.
When the order comes down, whether or not this case goes forward, it will be posted here. If it is ordered forward, I'm not going to be able to discuss discovery or trial preparations but public orders can be posted to keep this up to date.
Regards,
Olivier |
