TelexFree Court Status – 1st May 2014
Any notion that we’d be in for a quiet few days before the giant May 2nd hearing were dashed when I woke up to see some twenty something new filings had been made.
As the flurry of objections and motions being filed continues against the backdrop of the operators of a $1 billion Ponzi scheme trying to evade all responsibility for their actions, as of May 1st 2014 – here’s where we’re at.
1. Response and Objection to the DoJ’s request that a Chapter 11 Trustee be appointed (TelexFree, April 30th)
TelexFree are objecting to the DoJ’s request that a Chapter 11 Trustee be appointed, which would effectively put TelexFree in the control of the Department of Justice.
The main points of TelexFree’s argument that a Trustee should not be appointed are that
- the evidence submitted by the DoJ contains “inadmissible hearsay and blatantly false allegations”
- none of the current management (CEO in hiding Stuart MacMillan etc) had anything to do with the Ponzi scheme TelexFree ran from 2012 to 2014
- all the Ponzi fraud TelexFree carried out is irrelevant because “it is not offered today” and was “terminated (bankruptcy) pre-petition”
What is somewhat comedic, is that, although admitting their original business model was “problematic” (read: a Ponzi scheme), TelexFree are calling out the SEC’s investigation and evidence, as that is what the DoJ’s Trustee motion largely relies on:
Based largely on alleged prior conduct by individuals who are no longer in control of the Debtors, false allegations, and inadmissible hearsay relied upon by the SEC in obtaining the TRO on an ex parte basis, the U.S. Trustee has moved for the appointment of a Chapter 11 Trustee in these Chapter 11 Cases.
The only admissible evidence in the record of these cases to date – i.e., the Declarations4 – flatly contradicts many of the key assertions offered by the U.S. Trustee in support of the Trustee Motion.
TelexFree appear to be asserting that the Massachusetts District court has been hoodwinked. Kind of ironic when one considers the leading of the Nevada bankruptcy court down the garden path to negate Ponzi scheme liabilities.
Once again, TelexFree don’t deny they ran a Ponzi scheme for two years, but rather believe the fact that they’ve stopped the plan negates history and should evoke judicial and regulatory amnesia:
Contrary to the picture the Trustee Motion attempts to paint, the Debtors have completely discontinued the direct selling programs that are the source of both the SEC Action and the Trustee Motion.
Virtually all of the “evidence” offered by the U.S. Trustee consists of unproven and inadmissible hearsay allegations regarding pre-petition conduct of people no longer involved in the management or control of the Debtors’ legitimate business lines.
The Debtors are focusing on developing a business plan that can capture the opportunities in the Debtors’ telecommunications business and maximize the value of the Debtors’ estates.
At no point in the motion (and to date in any filing), do TelexFree challenge the allegation that their AdCentral investment business model was operating as a Ponzi scheme.
TelexFree conclude their objection by asking that the Judge deny the appointment of a Chapter 11 Trustee.
2. Brief regarding abstention (TelexFree, April 30th)
This brief was filed by TelexFree and is a response to the SEC’s request that, in the event the court does not move proceedings to Massachusetts, that they abstain from deciding anything in the case until the SEC complaint in Massachusetts is resolved (see April 30th court status).
The Court invoking Section 305(a) of the Bankruptcy Code and dismissing the Chapter 11 Cases will result in the immediate cessation of the Debtors’ business operations and a resulting significant loss of value for creditors because of the elimination of the various avenues available to the Debtors for maximizing the value of their estates.
This argument is based on Stuart Macmillan’s declaring that TelexFree will, by selling VOIP, generate $50 million a year in revenue going forward and retain over 100,000 retail customers.
In addition to the 99TelexFree VoIP service, TelexFree Nevada and TelexFree Massachusetts released other new technology for I-Phones and Google phones in March 2014.
The Debtors believe the sales of the 99TelexFree product and other new products will ultimately prove successful and profitable.
It should be noted that since 2012, TelexFree has generated only $1 million in VOIP revenue, largely sourced from its Ponzi participants (affiliates).
Another key argument raised by TelexFree is that abstention doesn’t benefit them:
Courts are in agreement that abstention is an extraordinary remedy of narrow breadth – appropriate only where the court finds that both “creditors and the debtor” would be “better served” by a dismissal.
It is clear that the best interests of the Debtors are not served by granting abstention.
Citing case-law involving a legitimate business, TelexFree argue that, should the bankruptcy court abstain (effectively suspending) their bankruptcy application, it would “prejudice the debtor” (TelexFree).
I’m reading this as an indirect concession that they’re likely to lose the Massachusetts Ponzi scheme cases, which would most definitely benefit the company’s creditors (the SEC through the return of money and additional fines, and ultimately the affiliate investors who lost money).
Of course none of this benefits TelexFree and management, hence their objections. A far better prospect for TelexFree and its insiders is the scenario in which they convince a court the company has retail viability (which, if true would have meant they wouldn’t be in the mess they are now), and then go into hiding when the business fails.
Made on the fallacy of legitimate retail activity that doesn’t exist being used to pay back affiliates, that’s essentially the argument TelexFree make in their brief.
3. Omnibus objection to various TelexFree emergency motions (DoJ, April 30th)
An omnibus objection is basically the grouping of objections that are made on a single argument or series of arguments.
Here, the DoJ are objecting to TelexFree’s motions to
- honor credit-card chargebacks, transactions etc.
- maintain their accounts and continue to use forms and checks etc.
The thrust of the DoJ’s objection revolves around disputing the perception implied to the bankruptcy court that business at TelexFree (at least the VOIP service) can somehow operate as usual.
On April 29, 2014, Debtors filed the Declaration of Stuart A. MacMillan in support of their Objection to the Motion of the United States Trustee for Order Directing the Appointment of a Chapter 11 Trustee.
In his declaration, MacMillan states that he, personally, requested the resignations of Craft, Wanzeler and Merrill from “all positions with the Company effective immediately.”
MacMillan further states that Craft and Merrill voluntarily resigned, but Wanzeler did not and had to be “terminated” as an officer. Wanzeler
remains a board member. MacMillan claims that he is the only remaining representative of the
Debtors that has signature authority.
MacMillan provides no explanation for why he felt it necessary to terminate Debtors’ entire former management team.
The Motions, filed as emergency motions on OST four days before former management was terminated, have not been amended to reflect any change of circumstances in Debtors’ business operations such as the raid on their offices by Special Agents from Homeland Security, or the freezing of all their banks accounts and sources of revenue, or the fact that Craft, their former accountant, Chief Financial Officer, Board Member and signatory is no longer
associated with the Debtors in any capacity.
Given the extraordinary changes of circumstances and confluence of events that have occurred in the past 2 1/2 weeks since the petition date, it is unfathomable that Debtors are still going forward on their cash management motions (the Motions) as if business were proceeding as usual.
Currently, Debtors have no operating business. Due to the TRO, their accounts have been frozen and remain frozen for the foreseeable future. MacMillan admits their offices in Massachusetts have been shut down since the Federal raid and all remaining employees have been laid off.
MacMillan, the sole officer, independent board member, and authorized signatory for the Debtors has only been on the job for 2 ½ weeks.
In the objection, the DoJ also poke fun at the appointment of William Runge, which was made to “safeguard” TelexFree and its management’s money:
Runge, Debtors’ CRA, was employed on April 10, 2014, three days before filing, to “safeguard existing cash.”
Apparently, he wasn’t able to perform his new job duties very well because on April 15, 2014, Craft was apprehended attempting to walk out the back door of Debtors’ offices with $38 million in negotiable cashier’s checks.
Rounding out the DoJ’s objection, is the pointing out of of TelexFree’s lack of adherence to judicial procedure in bankruptcy cases:
Of prime importance in the reorganization process is the principle of disclosure.
The Code obliges a Debtor to engage in full and fair disclosure, providing to creditors “information of a kind, and in sufficient detail, as far as is reasonably practicable . . . that would enable a hypothetical reasonable investor typical of holders of claims or interests of the relevant class to make an informed judgment about the plan. . . .”
This disclosure requirement does not attach only to the preparation of disclosure statements. “Full and fair” disclosure is required during the entire reorganization process; it begins “on day one, with the filing of the Chapter 11 petition.
To date, no schedules have been filed, the Meeting of Creditors has not been held, and the United States Trustee has thus far been unable to appoint a Creditors’ Committee.
The SEC has obtained a TRO which has stopped the Debtors from operating in any capacity, let alone in the ordinary course of business. The former CFO and board members have disappeared with no explanation. The only declarations in support of the Debtors’ requests for relief have been signed by individuals that have been on the job for less than 3 weeks.
Yet, Debtors are pressing forward with their motions for “emergency” relief so they can continue business “as usual.”
It appears that Merrill, Wanzeler, and Craft have all fallen down the rabbit hole and are now expecting the Court to follow.
Personally I think it’s great to see the DoJ call out TelexFree’s abuse of the bankruptcy court in such a direct manner.
In this particular case, there’s been a strong impression that regulators are playing catchup to Merrill and Wanzeler’s carefully planned exit-strategy. And, while that might be true to some extent, at least there’s some evidence above that those handling the case are well-aware of the games TelexFree are playing.
4. DoJ objection to TelexFree’s exhibits, in relation to TelexFree’s objection that a Chapter 11 Trustee be appointed (DoJ, April 30th)
Normally I wouldn’t include a list like this in the update, but there’s a particular objection to the MacMillan declaration in this particular list.
TelexFree have based much of their legal arguments around alleged facts around Stuart Macmillan’s declaration, which has created the scenario of TelexFree basing it’s arguments on little else than facts declared by TelexFree.
The DoJ’s objections to the inclusion of emails written by Macmillan used to support his declaration as evidence in TelexFree’s objection to the appointment of a Chapter 11 Trustee, include
Federal Rules of Evidence 601
This general ground-clearing eliminates all grounds of incompetency not specifically recognized in the succeeding rules of this Article. Included among the grounds thus abolished are religious belief, conviction of crime, and connection with the litigation as a party or interested person or spouse of a party or interested person.
Macmillan obviously has a ‘connection with the litigation as a party or interested person or spouse of a party or interested person’ because he’s the CEO of TelexFree.
Federal Rules of Evidence 602
A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony.
I’m guessing the DoJ are of the belief that “cuz Macmillan said so” doesn’t constitute “sufficient evidence” to support the claims made in his declaration.
Federal Rules of Evidence 801(c)
Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
Number 2 seems to be relevant here, with Macmillan making assertions in their objection he claims are supported by assertions made in his emails.
Federal Rules of Evidence 805
Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.
Given that neither TelexFree’s or Macmillan’s hearsay “conforms with exceptions” (at least as far as I can see), that’s probably why this rule has been cited.
Federal Rules of Evidence 901
To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
Again, Macmillan’s declaration is based on “because I said so”. There’s no additional evidence outside of his own emails provided.
Note: Federal Rules of Evidence sourced from Cornell University Law School
5. Reply to TelexFree’s objection to moving of bankruptcy proceedings to Massachusetts (SEC, May 1st)
Pretty much the entirety of TelexFree’s bankruptcy application revolves around them convincing the Nevada court that they are a legitimate company.
In this reply to TelexFree’s objection against moving bankruptcy proceedings to Nevada, the SEC write
In analyzing (arguments raised in TelexFree’s objection), (TelexFree’s) arguments are based on presumption – that (TelexFree, TelexFree LLC and TelexFree Inc.) are legitimate businesses requiring Chapter 11 reorganization.
Yet, as alleged in the complaints filed both by the Commission and Massachusetts Securities Division and supported, at least in part, by information provided by (TelexFree) themselves, (TelexFree is), in reality, a fraudulent enterprise not capable of reorganization.
6. Motion for an order establishing procedures for monthly compensation and reimbursement of professionals (TelexFree, May 1st)
In this motion, TelexFree are asking the Nevada bankruptcy court to establish a court-approved procedure by which they can pay the “professionals” currently working for them.
These professionals are listed as follows:
- Greenberg Traurig LLP (reorganization lawyers)
- Gordon Silver (Nevada and reorganization co-lawyers)
- Alvarez & Marsal North America LLC (financial advisors)
Any compensation and/or reimbursement paid to the above, would appear to be in addition to the $6 million TelexFree has already claimed it set aside for retainers prior to filing for bankruptcy.
No specifics on how much of their affiliate investor money TelexFree plan to spend on the proceedings is cited, however in a declaration supporting the motion, Thomas Fell, a shareholder of Gordon Silver, writes,
These Chapter 11 cases will generate and require a substantial volume of professional work, and thereby accrual of fees by the Professionals in amounts large enough to unduly burden the Professionals during the extended period before payment.
TelexFree’s affiliates can be left high and dry it seems, but not their lawyers and financial advisors.
Meanwhile with a TRO in place in Massachusetts freezing TelexFree’s funds, how the Nevada court can grant this motion (or even consider it), is a mystery to me.
6. Reply to SEC objection to TelexFree’s motion that certain parts of the TRO violate an automatic stay due to the bankruptcy application (TelexFree, May 1st)
TelexFree initially filed a motion declaring that certain parts of the TRO violated an automatic stay evoked when they filed for bankruptcy (see motion #1 in April 24th court update). This motion was then met with an objection by the SEC (see motion #1 in April 29th court update), which TelexFree are now replying to.
In their objection, the SEC argued that
- TelexFree were using outdated case-law
- provisions in the bankruptcy code deemed action by government agencies exempt from the automatic stay
- no money judgement has been in the SEC case, negating TelexFree’s claim that the TRO constitutes an “enforcement of a money judgement” and
- the invocation of the bankruptcy’s court was in the best interests of TelexFree’s creditors, namely the SEC and TelexFree’s affiliates
- the 1998 amendments to Section 362(b)(4) (do) not have a substantive effect (on their arguments)
- The TRO creates a lien (“a right to keep possession of property belonging to another person until a debt owed by that person is discharged”), which renders the TRO violations “not excepted” from the automatic stay
The basic argument is that the lien TelexFree allege has been created constitutes a money judgement, which TelexFree says is exempt from the exception that government agencies receive from the automatic stay bankruptcy cases create.
1. Hearing for order establishing procedures for monthly compensation and reimbursement of professionals (Nevada)
A hearing for TelexFree’s motion (see “motions” #6 on today’s list), has been set for May 28th.
Important Upcoming Dates
- May 2nd (Nevada) – Mammoth hearing to decide on SEC’s request to move bankruptcy proceedings to Massachusetts, DoJ’s request that a Chapter 11 Trustee be appointed, TelexFree’s objections to the TRO, the final First Day Orders, and ‘whether the interests of creditors and the various debtors are better served by the suspension of all (bankruptcy) proceedings in these jointly administered cases‘
- May 7th (Massachusetts) – Hearing in the SEC case to decide on whether a preliminary injunction will be granted against TelexFree, Carlos Wanzeler, Jim Merrill, Joe Craft, Faith Sloan and Sann Rodrigues
- May 22nd (Nevada) – First meeting of TelexFree creditors
- May 28th (Nevada) – Hearing to decide on TelexFree’s motion for employment of their lawyers and establishing of procedures for the monthly compensation and reimbursement of professionals hired by TelexFree
Despite the volume of filings over the last twenty-four hours, not much in regards to the May 2nd hearing has changed.
TelexFree’s bankruptcy application still relies on the premise that the company is legitimate now, based on nothing more than that they’ve stopped offering the fraudulent investment positions they’d been using to run a Ponzi scheme over the past two years.
These Chapter 11 Cases were filed for several reasons. First, TelexFree Nevada and TelexFree Massachusetts experienced exponential growth in revenue between 2012 and 2013 (from de minimis amounts to over $1 billion), which put tremendous pressure on the Debtors’ financial, operational and management systems.
Second, although TelexFree Nevada discontinued the Original Comp Plan and implemented the Revised Comp Plan, the Debtors believe that the Revised Comp Plan requires further revision before being implemented.
Finally, the trailing liabilities arising from the Original Comp Plan are difficult to quantify and have resulted in the assertion of substantial unresolved liabilities against the Debtors, a great many of which may not be valid.
It should be repeatedly noted that I’m not a lawyer, but how a Judge can overlook that and permit TelexFree’s application to move forward escapes me.
If for nothing else, than imagine the worrying precedent it would set in US Ponzi scheme cases:
Run a Ponzi scheme and then at the first sign of a regulatory investigation (by way of a document and/or information request or otherwise), hire some stooges to take over, resign and then run off to the bankruptcy court for regulatory protection.
It’s simply unimaginable. And one would hope, cause for increased damages to be levied against TelexFree and its management later down the track.
They said it themselves in their Chapter 11 Trustee response filed yesterday:
The goal of Chapter 11 is to rehabilitate and reorganize viable businesses.
And that’s clearly not what is happening here.
I can’t say I envy Judge Landis when he sits through the epic hearing set to take place tomorrow. It’s probably going to be messy and although an order or orders would be nice on the day itself, it should be noted that there could be a delay leading into next week.
Due to the size of the hearing, the Judge might also take various rulings under consideration and publish a delayed order(s).
Either way the story of whether or not TelexFree can get away with a $1 billion Ponzi scheme is going to play out in court tomorrow, and hopefully come to a relatively finite conclusion.
Failing that, at the very least we should have much a clearer picture of which takes precedence when a Ponzi scheme goes bust; the bankruptcy code or regulatory action.
Footnote: I’ve seen some chatter questioning the legitimacy of an email sent out to TelexFree affiliates by KCC. Here’s an excerpt from a declaration made by Joseph Morrow (Director of Corporate Restructuring Services at KCC):
On April 28th, at my direction and under my supervision, employees of KCC caused to be served, via electronic mail, the Notice of Chapter 11 Bankruptcy Cases, upon more than 1,304,354 parties.
The above declaration should put any uncertainties about the origin or intent of the email to rest.