Jul 22

TelexFree: Clerk’s Notes for Merrill’s Hearing to Release $4 Million

07/22/2014 68 ELECTRONIC Clerk’s Notes for proceedings held before Magistrate Judge David H. Hennessy:Motion Hearing as to James Matthew Merrill held on 7/22/2014 re 55 MOTION for Release of Funds filed by James Matthew Merrill. Case called, Counsel & Defendant appear, Counsel argue motion, Matter taken under advisement, Order to issue. (Attorneys present: Lelling, Murane, Goldstein.) Court Reporter: Digital Recording – 9:30 for transcripts/CDs contact Deborah Scalfani (deborah_scalfani@mad.uscourts.gov). (Belpedio, Lisa) (Entered: 07/22/2014)
Jul 22

Herbalife: Stocks Plunge, Ackman Says It is Enron-Like Fraud

From Bloomberg:

Herbalife Plunges as Ackman Vows to Unveil Enron-Like Fraud

July 21 (Bloomberg) — Herbalife shares fell the most in three months after Pershing Square Capital founder and CEO Bill Ackman vowed to show Enron-like fraud at the seller of supplements and weight-loss shakes. Mr. Ackman spoke on “Bottom Line.” (Source: Bloomberg)

Herbalife Ltd. (HLF) shares fell the most in three months yesterday after billionaire Bill Ackman vowed to show Enron Corp.-like fraud at the seller of supplements and weight-loss shakes.

Ackman, head of Pershing Square Capital Management LP, said on Bloomberg Television that his firm has devoted $50 million of investors’ money to prove that Herbalife is a pyramid scheme. The results of the undercover investigation, which focuses on Herbalife’s nutrition clubs, will be released at a presentation today in New York.

“Trust me, when you see the stuff we have,” Ackman said in an interview on “Market Makers” with Stephanie Ruhle and Erik Schatzker, “you will conclude the money was well spent.” He suggested that the nutrition clubs — part of Herbalife’s direct-selling approach — resemble the fake trading rooms set up by Enron before accounting fraud led to that company’s bankruptcy in 2001.

Ackman has waged a battle to shut down Los Angeles-based Herbalife since December 2012. He has bet $1 billion against the company, saying it misleads distributors, misrepresents sales figures and sells a commodity product at inflated prices. U.S. regulators and law enforcement also are investigating allegations that the business is a pyramid scheme.

Photographer: Scott Eells/Bloomberg

William “Bill” Ackman, founder and chief executive officer of Pershing Square Capital… Read More

Stock Decline

Herbalife’s stock fell 11 percent to $54.02 yesterday, marking the biggest decline since April 11. The shares have tumbled 31 percent this year. Herbalife shares traded at the equivalent of $54.01 at 10 a.m. in Frankfurt in trading of 573 shares.

Today’s presentation, which will be webcast starting at 10 a.m., will give new information to back up Pershing Square’s claims, the hedge fund said in a separate statement.

“An in-depth analysis and examination of these clubs — which Herbalife claims are simply social gatherings that bring people together to focus on good nutrition and exercise — reveal that they are a core driver of Herbalife’s pyramid scheme,” Pershing Square said.

Herbalife responded to the statements yesterday on Twitter, saying it was confident in the integrity of the company and that “the truth will prevail.”

“Ackman’s theatrics are increasingly desperate,” the company said through its HerbalifeTruth account. Herbalife “is proud of role that nutrition clubs play in helping people lose weight and stay healthy.”

Ackman said on Bloomberg Television that his firm will turn over its findings to regulators.

“Our goal was to catalyze regulatory interest in the company,” Ackman said. “We spent the last year with undercover investigators in multiple countries and in the United States participating and trying to figure out — and ultimately figuring out — how nutrition clubs work and we have hundreds of hours of recorded conversations.”

Photographer: Patrick T. Fallon/Bloomberg

An employee stacks boxes of products for orders at the Herbalife Ltd. Los Angeles… Read More

To contact the reporter on this story: Duane D. Stanford in Atlanta at dstanford2@bloomberg.net

To contact the editors responsible for this story: Nick Turner at nturner7@bloomberg.net Ben Livesey, Thomas Mulier

NOTE: Our thanks to PatrickPretty.com for letting us know about this new story!

Jul 21

TelexFree and Zeek Rewards Updates

TelexFree (14-cv-11858) – James Merrill filed an answer to the Amended Complaint today, and there is not too much difference between this Answer and his previous answer. He denies everything and demands a jury trial.

Zeek Rewards (14-cv-00091) – Three defendants in the civil case against Todd Disner and fellow promoters filed an Amended Answer and Counterclaim to the original complaint in the case. These three defendants are:

  • Jerry Napier
  • Darren Miller
  • Trudy Gilmond

I have uploaded these documents onto the Files website.

Jul 19

Profitable Sunrise: Why No Updates?

Profitable-Sunrise-Review1I had a reader email me and ask why there has not been any updates in the ProSun case. Well, here’s what the Docket says:

Securities and Exchange Commission v. Inter Reef Ltd. et al
Thomas W. Thrash, Jr, presiding
Date filed: 04/04/2013
Date of last filing: 10/11/2013

So, there you have it, nothing has been added to the Docket since last October. I check the docket weekly and if there are any changes, I will post them.

Jul 16

TelexFree: Trustee Stephen Darr Answers Amended Complaint

BREAKING NEWS:  Trustee has no intention of reorganizing or reactivating TelexFree Businesses!!!!

This was filed today in the SEC case, 14-cv-11858, in Massachusetts District Court: (experts from the filing; emphasis added)

Stephen B. Darr, as he is the Trustee (“Trustee”) of the Chapter 11 Estates of Telexfree, Inc., Telexfree, LLC, and TelexFree Financial, Inc. (collectively, “the Debtors”), submits this Answer to the Amended Complaint of the Securities and Exchange Commission

Based on information currently available to the Trustee, the Trustee admits that the individual defendants operated a Ponzi/pyramid scheme as evidenced by, among other things, the revenues from the retail sales of the VoIP were less than one (1%) percent of the amounts needed to satisfy the promises to the investors who had placed the Internet ads. Further, based upon the information available to the Trustee, it appears that the early investors were paid not from sales of the VoIP services but rather from the money received from the later investors, thus evidencing a classic Ponzi/pyramid scheme.

As to the Defendants TelexFree, Inc. and TelexFree, LLC, the Trustee denies those allegations since the Trustee has assumed control over each of those entities’ estates, they have ceased operation, and the Trustee has no intention of reorganizing or reactivating their businesses.

I have uploaded the full document onto the Files website. (Doc 220)

Jul 15

Zeek Rewards: Todd Disner Files Pro Se Motion to Set Aside Default Judgement?

Almost too weird to imagine, Todd Disner has filed a Pro Se pleading asking the Judge to set aside the Default issued by the Clerk for Disner’s failing to file the required response within the prescribe time period. Soon after this Clerk’s Default was entered, Kenneth Bell, the receiver, filed a motion for a Default Judgement against Disner and several others who also failed to response by the deadline.

Disner is asking for an additional two weeks in which he can file the belated response, using the following as his reasons for failure to do so:

Clipboard03Clipboard04Another fly in the ointment is that since Disner is also listed as representing “Kestrel Spendthrift Trust” as a Trustee, does this rise to requiring representation by counsel because of it being a company and not an individual? This has been the case in many other federal schemes related cases followed by most of the blogs.

Whether this applies to a trust is yet to be officially determined by the Court, but I bet it will be established soon enough.


Jul 15

TelexFree: Hearing Scheduled for Merrill’s Motion to Release Funds

There is a Hearing scheduled for July 18, 2014 regarding the Motion for release of Funds filed by James Merrill, wherein he asks for the following to be made available to him ” for legal expenses” -

  • Middlesex Savings Bank,  $10,643.00
  • Middlesex Savings Bank,  $104,988.64
  • Waddell & Reed,   $3,985,097.33
  • Waddell & Reed,   $79,684.28

The DOJ has filed their Opposition to this Motion and argue that there’s no way Merrill could spend this in legal fees. You can read their arguments in document 61.

Jul 15

TelexFree: Judge Gorton Orders Scheduling Conference and Hearing

CIVIL DOCKET FOR CASE #: 1:14-cv-11858-NMG

Also on today’s docket, we have this:

NOTICE of Scheduling Conference Scheduling Conference set for 9/5/2014 02:00 PM in Courtroom 4 before Judge Nathaniel M. Gorton. COUNSEL SHALL BE PREPARED TO ARGUE THE PENDING MOTIONS AS LISTED DOCKET ENTRY NO. 217.

The above is related to the Electronic Order (217) below:

Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered. A scheduling conference and hearing will be held on Friday, September 5, 2014 at 2:00 P.M. The Court will hear oral arguments on the motions to dismiss filed by defendants Faith Sloan, Santiago de la Rosa, Randy Crosby and Sanderley Rodrigues de Vasconcelos and will set a discovery and trial schedule for all defendants.

Defendants TelexFree, Inc., TelexFree, LLC, James Merrill, Joseph Craft and TelexFree Financial, Inc. are reminded that their responses to the amended complaint are now overdue and are directed to submit responsive pleadings forthwith.

Jul 15

TelexFree: Judge Gorton Allows Limited Relief For James Merrill

A few days ago, James Merrill filed an “ASSENTED-TO MOTION FOR LIMITED RELIEF” relating to the Consent Order issued on May9, 2014 and asking that

“any funds contained within Middlesex Savings Acct. No. XXXXX661 will no longer be subject to the Court’s Order”.

In support of this motion, Mr. Merrill states the following:
1. The SEC agrees that the identified account should not be the subject of the
Court’s Order given its lack of proper and/or sufficient relationship to TelexFree.
2. The SEC, by and through Attorney Frank Huntington, assents to the
allowance of the instant motion.

Today, Judge Gorton allowed this Motion. The exact sum of money now made available to James Merrill is unclear at this time.

Jul 14

TelexFree: Opposition to Releasing $4 Million to James Merrill

Today’s filing in response to Merrill’s Motion:


The defendant James Matthew Merrill (“Merrill” or the “Defendant”), who admits that he presently has, at a minimum, $325,000 in unrestrained assets, nonetheless argues that he is entitled to a hearing and, ultimately, to the release of more than $4 million for his legal defense.

The funds Merrill asks the Court to release, however, are investor funds – money victims gave to TelexFree during the course of the alleged fraud. They were seized by the United States to preserve them during the pendency of the litigation, and to ensure that they are available for restitution to the hundreds of thousands of victims of the charged fraud, who suffered tens (if not hundreds) of millions in losses. The Defendant cannot use forfeitable, victim funds to pay for his defense, much less an unusually expensive one. Nor does he provide any evidence that he even needs the funds to retain counsel of his choice (indeed with $325,000 in the bank, nor can he). Finally, the Defendant does not argue that funds seized by the United States derive from any source other than TelexFree proceeds. Because he fails to meet these threshold requirements, his request for a hearing must be denied.

This is not all that surprising, considering Merrill’s previous Motion asked to release:

  • Middlesex Savings Bank,  $10,643.00
  • Middlesex Savings Bank,  $104,988.64
  • Waddell & Reed,   $3,985,097.33
  • Waddell & Reed,   $79,684.28

I have uploaded today’s filing onto the Files website.