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Postby admin » Mon Nov 14, 2005 6:17 pm

Characteristically, the SLAPP suit claims a huge amount of money, often alleging conspiracy or joint malfeasance to silence and intimidate as large a group as possible. They are often not designed to be won, but simply to force critics to hire lawyers and spend time and money fighting the lawsuit rather than pursuing their cause. If this goal is accomplished, then the SLAPP will have been effective even if it is eventually dismissed or abandoned. The mere threat of a SLAPP suit may have the effect of discouraging public debate. (SLAPP suits take the form of a civil suit for damages or injunctive relief filed against an individual or organization, and arise because of communications by the defendant(s) to a government body, official or the electorate.)

SLAPP suits can silence individuals and organizations who would otherwise make invaluable contributions toward issues of public importance. The fear created by a SLAPP suit influences many constituencies. Environmentalists, politicians, union leaders, advocates of any kind may be quieted by the risk of the expense, uncertainty and hardship involved in defending their right to voice their legitimate concerns in public debate. SLAPP suits silences the citizens upon whom our democracy is built and turns the judicial process into a weapon against public dissent.
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Postby admin » Mon Nov 14, 2005 6:14 pm

"SLAPP suits function by forcing the target into the judicial area where the SLAPP filer foists upon the target the expenses of a defense. The longer the litigation can be stretched out, the more the litigation can be churned, the greater the expense that is inflicted, the closer the SLAPP filer moves to success. The ripple effect of such suits in our society is enormous. Persons who have been outspoken on issues of public importance targeted in such suits will often choose in the future to remain silent".
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Postby admin » Mon Nov 14, 2005 6:05 pm

Slapp Suits

"A SLAPP suit is an abuse of the Court's process designed to stifle legitimate public debate", according to the Sierra Legal Defence Fund. SLAPP stands for "Strategic Lawsuits Against Public Participation." SLAPP suits can silence individuals and organizations who would otherwise make invaluable contributions toward issues of public importance. The fear created by a SLAPP suit influences many constituencies. Environmentalists, politicians, union leaders, advocates of any kind may be quieted by the risk of the expense, uncertainty and hardship involved in defending their right to voice concerns.

The Sierra Legal Defence Fund identifies the following characteristics of a SLAPP suit

the plaintiff is usually a mid to large-sized company
the suit claims enormous damages and generally seeks and injunction
the defendant has been speaking out with some success in an attempt to influence government policy or public perception; and
the issue is one of public interest or concern
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Postby Guest » Mon Nov 14, 2005 6:00 pm

thank you for continuing to support this forum and keep it on top of peoples minds. I find your dootie head comments humorous enough not to delete. They somehow give investor advocates comfort knowing what we are dealing with. I thank you for that.

A new forum topic is being started titled SLAPP SUITS. It will perhaps relate to this forum for those who follow it.


Postby Guest » Mon Nov 14, 2005 3:30 pm

Anonymous wrote:you asked what section of the Telus Acceptable Use policy these posts violated. The section is as folows: ...

Defamation [/i]

I have highlighted the offending area but please note that it also covers any activity that goves rise to civil liaility to Telus.

Golly, Bri, you paid your lawyer half a million bucks and he still hasn't explained the doctrine of absolute privilege to you. Shiirley's complaint is a public document filed with a court. Republishing or linking to the document is not defamation in any common law court.

Get stuffed.

Postby Guest » Sun Nov 13, 2005 3:58 pm

Ted, keep up the good work and thanks for contuing to add to the amount of information out there

I noticed in the OSC Fair Dealing Model papers (appendix F on compensation bias, page ten, paragraph titled "FINANCIAL INCENTIVE FOR FIRM")
http://www.osc.gov.on.ca/Regulation/Rul ... 29_fdm.pdf

that means an investment firm can realize an increase of between ten to twenty six fold in the amount of revenues they retain if the switch clients from third party mutual funds into their own proprietary funds. (Switch from AUA, assets under administration, to AUM, assets under management)

previously published material available to the public

Postby Guest » Sun Nov 13, 2005 3:40 pm

The wrap account to avoid

Optima Strategy is in a dubious group

Dan Hallett

In my March 2, 2001 article I introduced the concept of wrap programs and gave an overview of the costs and benefits. In case you missed it, I make no secret about my dislike for these hot-selling products. I won't get into the details again, but I do want to focus your attention more closely on Assante Corporation's Optima Strategy pooled wrap program.

Optima Strategy is one of the country's larger wrap programs and it has the dubious honour of being the most expensive pooled wrap in the country. However, that's just one of the reasons why investors shouldn't leap blindly into this product.

High fees

For years, Assante's Optima Strategy pooled wrap program has been the most expensive product of its kind. While most programs have been charging in the 2.5 to three per cent range, Optima has consistently charged 0.5 to 1.3 per cent above its competitors. Problem is, in this case investors don't necessarily get what they pay for, in my opinion.

Two fee modifications over the past year or so haven't changed that situation. Just over a year ago, I completed my first in-depth analysis of wraps and estimated that Optima clients could have been paying as much 3.31 per cent annually for a balanced portfolio (defined as 25 per cent Canadian equity, 20 per cent US equity, 20 per cent international equity, 30 per cent bonds, and five per cent cash).

In my more recent report in February of this year, I found that fees for this same hypothetical balanced portfolio jumped to a maximum 3.47 per cent. Fees have changed again (see below).

Fee reduction - not

Optima Strategy amended its fees just two months ago, which was spun as a fee reduction. However, that's not quite how it transpired. After reviewing the new fee structure, it appears as if some Optima clients will see fees fall, while others will see a hike in fees.

Optima is the only wrap program of its kind, to my knowledge, that offers a deferred sales charge (DSC) option on its funds. (Recall that investing on a DSC basis means paying nothing directly up front, but you face an exit fee if you sell within seven years while your advisor gets a lump sum commission payment of four to five per cent of the amount invested for his/her advice.)

While selling funds on a DSC basis is still pretty common, I must say that it's quite unusual for portfolios as large as those targeted by this program ($100,000 and up). New fees for Optima Strategy are now estimated at 3.22 per cent annually for DSC investors, and 3.6 per cent for those investing on a front-end load basis (based on the balanced portfolio noted above).

Reasons for its dubious honour

As mentioned in my previous article, I think most wrap programs charge more than is warranted for their services. However, we've already seen that Optima Strategy is considerably more expensive than its peers. Why? A big part of the reason stems from the fact that a DSC option exists on their funds.

The up-front payouts to Assante financial advisors likely cost the company 0.6 per cent per year to finance out of the total Optima fees. That alone would bring their fees down to the higher end of wrap fees' normal range - but at least it would be in the range. If you have more than $750,000, you'll qualify for a fee reduction of 0.5 per cent.

While that's quite "admirable" of Assante, the fact is that most portfolios of that size require a much more customized solution than that available in any pooled wrap program. Further, larger portfolio sizes should benefit from lower management fees - not punished with higher fees.

The other reason: Optima charges investors extra for a fundamental service that all other wrap programs already include in their base fees. Remember that most wrap programs build portfolios and then monitor and rebalance them regularly. While Optima Strategy provides a similar service, it's optional and comes with added costs for Optima clients, ranging from an extra 0.65 per cent for DSC investors to one per cent per year for front-end load investors. Note: the all-inclusive fees mentioned throughout this article include this monitoring and rebalancing fee to make it more comparable to its peers.

A second level of potential conflicts

Many argue that financial advisors who are compensated on a commission basis have a potential conflict since they may be biased toward those products that pay the best commissions. In such a case, investment funds from great firms like Beutel Goodman, Mawer, Perigee, PH&N and exchange-traded funds (ETFs) have potential to be ignored, since they either pay substantially less in commissions or nothing at all. However, many of the financial advisors recommending Optima Strategy to their clients have a whole other level of potential conflicts - something that may be unknown to prospective clients.

Assante's business model has resulted in many of the company's financial advisors owning a relatively large number of Assante Corporation shares (TSE:LMS), which has sagged badly since its debut on the Toronto Stock Exchange in 1998. Many of the advisors recommending Assante's Optima Strategy program are also significant shareholders. This presents significantly more potential for conflict for Assante advisors.

From a corporate standpoint, Assante seeks to maximize profits. One of the biggest factors in its profitability is the growth of its proprietary (i.e. in-house) products, such as Optima Strategy. In Assante's prospectus for its public share offering in 1998, the following was observed:

Assante's financial advisors grew in number by 1,613 per cent from 1995 to 1998, while assets in its in-house products (primarily Optima) grew by 563 per cent.
Assante believed that to survive as a fund company (i.e. fund manufacturer), the key was to partner with established financial advisory firms with an extensive base of advisors and clients (i.e. a large distribution channel).
By growing assets in its proprietary products, there is the potential for a nine- to 16-fold increase in operating margins.
Assante's strategy is to partner with the owners of those firms and their advisors who are responsible for the client relationships and, ultimately, control of the "shelf space." Shelf space refers to ranking among financial advisors' preferred list of mutual fund companies they recommend to clients.

To be fair, Assante isn't the only firm in this position, but they've been the most aggressive in their growth-by-acquisition strategy. Dundee and IPC are other similar firms in that they each have proprietary products and a network of advisors. However, Assante stands out in its apparent goal to use its growing advisor base to increase its in-house funds, most of which have fees that are far greater than their peers.

It must be said that I know of no wrongdoing by this company or its advisors, and I'm not implying that I do. Frankly, its corporate goal of maximizing profits is great for shareholders, but it conflicts directly with the interests of most of its clients. There simply is no getting around that, but it's a reality of which investors need to be aware because it's a strongly growing trend in this industry.

To disclose my potential conflict: on some level, Assante is one of my employer's competitors and advisors at Sterling cannot sell Optima Strategy. Though I always strive to deliver objective advice in all aspects, this fact should be known.

As always, investors beware. Do your homework and don't be afraid to ask direct questions.

Dan Hallett is the President of Dan Hallett and Associates Inc.("DH&A") - a
Windsor Ontario based independent investment research firm.

Article from the investment newsletter “Stingy Investor”.

Postby Guest » Fri Nov 11, 2005 11:45 pm

http://www.milbergweiss.com/files/tbl_s ... locked.pdf

go to this web site to see pdf file of the class action filed in the states

pages one and two of the intro are almost a line by line description of what I have been hearing as "standard industry practice" by some here in Canada. (the practice of pushing clients into proprietary funds to increase management and advisor earnings)

this will be dually posted in class action forum as it may be of use to those

dual posted in whistleblower and class action forums

Postby Guest » Fri Nov 11, 2005 11:30 pm

Sent: Saturday, November 12, 2005 12:57 AM
Subject: Milberg Weiss Announces the Filing of a Class Action Suit Against Wells Fargo & Company and Certain of Its Affiliates on Behalf of Purchasers of Certain Funds

Interesting U.S. case
Assante and a few others in Canada may have similar profiles.



http://www.milbergweiss.com/caseinfo/ca ... aseid=2339

Milberg Weiss Announces the Filing of a Class Action Suit Against Wells Fargo & Company and Certain of Its Affiliates on Behalf of Purchasers of Certain Funds
11.11.2005 23:17:00

NEW YORK, Nov. 11 /PRNewswire/ -- The law firm of Milberg Weiss Bershad & Schulman LLP ("Milberg Weiss") announces that a class action lawsuit was filed on November 4, 2005 against Wells Fargo & Company , and certain of its affiliates, on behalf of all persons who purchased from Wells Fargo Investments, LLC ("Wells Fargo Investments") or H.D. Vest Investment Services, LLC ("H.D. Vest") one or more of the Wells Fargo proprietary funds ("Wells Fargo Funds," as defined below) or non-proprietary funds participating in the Revenue Sharing Program (the "Wells Fargo Preferred Funds" and "H.D. Vest Preferred Funds," as defined below), from June 30, 2000 through June 8, 2005, inclusive (the "Class Period"), seeking to pursue remedies under the Securities Act of 1993 (the "Securities Act"), the Securities Exchange Act of 1934 (the "Exchange Act"), the Investment Company Act of 1940 (the "Investment Company Act"), and state law.

If you purchased any of the Wells Fargo Funds, or Wells Fargo or H.D. Vest Preferred Funds, through a Wells Fargo Investments or H.D. Vest broker between June 30, 2000 and June 8, 2005, inclusive, and sustained damages, you may, no later than January 10, 2006, request that the Court appoint you as lead plaintiff. A lead plaintiff is a representative party that acts on behalf of other class members in directing the litigation. In order to be appointed lead plaintiff, the Court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class. Under certain circumstances, one or more class members may together serve as "lead plaintiff." Your ability to share in any recovery is not, however, affected by the decision whether or not to serve as a lead plaintiff. You may retain Milberg Weiss or other counsel of your choice to serve as your counsel in this action.

The action is pending in the United States District Court for the Northern District of California against defendant Wells Fargo and its affiliated entities. A copy of the complaint filed in this action is retrievable from the Court using the case number C-05-4518WHA, or can be viewed on Milberg Weiss's website at: http://www.milbergweiss.com/ .

The "Wells Fargo Preferred Funds" includes mutual funds in the following mutual fund families: Franklin Templeton Investments, Putnam Investments, MFS Investment Management, Fidelity Investments, Evergreen Investments, Alliance Bernstein Investment Research and Management, Van Kampen Investments, AIM Distributors, Inc., Oppenheimer Funds, Inc., Eaton Vance Managed Investments, ING Funds Distributors, LLC, Allianz Global Investors Distributors , LLC, Federated, The Hartford Mutual Funds, Dreyfus Service Corporation, Delaware Investments, Pioneer Investment Management, Inc., Scudder Investments, and Wells Fargo Mutual Funds.

The "H.D. Vest Preferred Funds" includes mutual funds in the following families: Oppenheimer Funds, Putnam Investments, Scudder Investments, MFS Investment Management, Van Kampen Investments, Lincoln Financial Distributors, AIM Investments, Phoenix Investment Partners, John Hancock Funds, Wells Fargo Funds, American Funds, and Franklin Templeton Investments.

The complaint alleges that during the Class Period, defendants served as financial advisors who purportedly provided unbiased and honest investment advice to their clients. Unbeknownst to investors, defendants, in clear contravention of their disclosure obligations and fiduciary responsibilities, failed to properly disclose that they had engaged in a scheme to aggressively push Wells Fargo Investments and H.D. Vest sales personnel to steer clients into purchasing certain Wells Fargo Funds and Wells Fargo and H.D. Vest Preferred Funds (collectively, "Shelf Space Funds") that provided financial incentives and rewards to Wells Fargo and H.D. Vest and their personnel based on sales. The complaint alleges that defendants' undisclosed sales practices created an insurmountable conflict of interest by providing substantial monetary incentives to sell Shelf-Space Funds to their clients, even though such investments were not in the clients' best interest. Wells Fargo Investments and H.D. Vest's failure to disclose the incentives constituted violations of federal securities laws.

The action also includes a subclass of persons who held any shares of Wells Fargo Mutual Funds. The complaint additionally alleges that the investment advisor subsidiary of Wells Fargo, Wells Fargo Funds Management, created further undisclosed material conflicts of interest by entering into revenue sharing agreements with brokers at Wells Fargo Investments and H.D. Vest to push investors into Wells Fargo Funds, regardless of whether such investments were in the investors' best interests. The investment advisors financed these arrangements by illegally charging excessive and improper fees to the fund that should have been invested in the underlying portfolio. In doing so they breached their fiduciary duties to investors under the Investment Company Act and state law and decreased shareholders' investment returns.

The action includes a second subclass of persons who purchased a Wells Fargo Financial Plan that held Wells Fargo Funds. The Wells Fargo Financial Plans include, but are not limited to Full Service Brokerage Accounts, Wells Asset Management accounts, WellsChoice account, and WellsSelect account.

Milberg Weiss (http://www.milbergweiss.com/ ) is a law firm with over 100 lawyers with offices in New York City, Los Angeles, Boca Raton, Delaware, and Washington, D.C. and is active in major litigations pending in federal and state courts throughout the United States. Milberg Weiss has taken a leading role in many important actions on behalf of defrauded investors, consumers, and others for nearly 40 years.

Postby Guest » Fri Nov 11, 2005 2:04 pm

http://primetimecrime.com/contributing/ ... ltieri.htm

Prime Time Crime

Canadian Corporate Counsel Association 2004 Annual Meeting

Winnipeg, August 16, 2004

Remarks by Joanna Gualtieri, Director, Federal Accountability Initiative for Reform

Should I Tell When It Hurts:

Conflict And Conscience In WHISTLEBLOWING

By Joanna Gualtieri


It is a pleasure to participate in your 2004 annual conference "Mapping the New Frontier" and I am truly honoured to speak amongst such distinguished guests and panelists.

I want to say, that apart from being inspired by the privilege to be here, I am struck by the visionary leadership of your organization for reaching beyond conventional discussion zones of regulatory change and governance rules. Though whistleblowing has become a "hot" topic, most reports remain superficial and sensationalistic. I could not therefore be more grateful to John Scott and Effie Triantafilopoulos for this opportunity to give a voice to whistleblowers - those employees whose crime is that of "committing the truth".

I want also to acknowledge the panoply of new prescriptive measures confronting today's corporate counsel. "Up the ladder" reporting, and the legal/ethical debate relating to "noisy withdrawal" and lawyers as whistleblowers, are central issues. They are not, however, the focus of my discussion as I would, in fact, benefit from your expertise. Rather, I have a simpler task of illuminating the trials and triumphs of conscientious resisters and their indispensable contributions to ethical and accountable public and corporate life.

History of Whistleblowing

The history of whistleblowing recalls a 20th century America faced with profound challenges including the Vietnam War, Watergate and the civil rights movement. Although fascinating, the American experience holds also two fundamental lessons for business leaders.

First, it demonstrates that once whistleblowers found their voice, there was no turning back. Their stories encapsulated perennial dialectic conflict such as "team player" versus heroic individualist, and employer loyalty versus fiduciary duty to the public good. As compelling vignettes of human sacrifice and glory, they shaped public opinion and political policy.

The enactment of the Sarbanes-Oxley Act is indeed a reflection of public influence creating a sea change in ground rules for responsible leadership. Likewise in Canada, Government recalcitrance towards whistleblower protection quickly evaporated on account of the Radwanski and Sponsorship Scandals. In February 2003, during debate of C-201, the Whistleblowers Human Rights Act, a non-partisan initiative of FAIR and Gurmant Grewal, MP, the Government refused to endorse whistleblower's protection. Just one year later, reeling from the scandals, the Government "suddenly" believed that protection was a good thing.

Second, in a globally integrated world, only the shortsighted would ignore Washington's tougher rules including whistleblower rights. At the very least, an invigorated SEC and the extra-territorial reach of the Sarbanes-Oxley to Canadian companies that trade on US stock exchanges means corporate leaders ignore the US jurisprudence at their own risk. Just ask Jean-Marie Messier of France's Vivendi.

Simply put, whistleblowers are employees who exercise free speech rights to challenge institutional abuses of power or illegality that betray the public trust. Their disclosures may be made internally or externally, either through the chain of command or outside that chain, and though attempts have been made to categorize these "truth-tellers", they cross all educational, gender, ethnic, and religious lines. Studies have shown that they tend to be the most diligent and that they do not situationalize their morality.

In the 60s, public concerns regarding nuclear facilities, dangerous drugs and toxic waste resulted in government regulation of industry and laws to protect workers who reported violations. As a result, employees who witnessed wrongdoing and who historically felt that their only option was to remain silent or quit started to speak out, and the "public interest" defense emerged to successfully challenge the "at-will" doctrine of employment.

But the power of "truth-tellers" is most cogently illustrated in three seminal events: the Pentagon Papers, Watergate, and the Challenger Explosion.

As the Pentagon faced mounting casualties in Vietnam, it decided to undertake a major review of the US involvement in the conflict. Daniel Ellsberg, an ardent War supporter who worked for the Rand Corporation, was one of the chief analysts.

In the course of his review, Ellsberg became increasingly disillusioned as he uncovered major government lies to deceive America. When the Pentagon sought to cover up, democratic principles led Ellsberg to tell the truth. After a fruitless approach to the Senate Foreign Relations Committee, Ellsberg, two years later - in 1971 - leaked the Pentagon Papers to the New York Times and the Washington Post.

Predictably, the Justice Department swiftly sought an injunction to prevent publication, but in a majority decision of the US Supreme Court, Justice Hugo Black, wrote the following: Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the Government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, The New York Times, The Washington Post and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that lead to the Vietnam war, the newspapers nobly did precisely that which the founders hoped and trusted they would do. The public fallout intensified when Watergate erupted as a result of an anonymous whistleblower known as "Deep Throat".

A decade later, with the 1986 explosion of the Challenger, there could be no turning away from public demands to protect whistleblowers. During the Presidential Commission hearings into the Challenger tragedy, three courageous employees of the company that built the Challenger rockets testified about the engineers who had tried to stop the launch. Their bosses had overruled them. In spellbinding testimony, they spoke about how the engineers were told that if they would "take their engineering hat off and put on their manager's hat" they would know why the launch had to go forward despite the risks. Upon returning to work, each was demoted.

The fact that a political agendum had trumped the lives of seven people outraged the American people, who responded by swamping congressional phone lines and mailboxes. In 1989, in the aftermath of the tragedy, President Bush signed into law the Whistleblowers Protection Act providing strong legal protection for government whistleblowers.

But as with any socially-minded and revolutionary new law, the legislation was only one element of broader cultural changes. Already, Washington had seen the birth of numerous public advocacy organizations, most notably, the Government Accountability Project (GAP), founded in 1977 to promote "truth-tellers" and help those struggling with whether to tell.

No one has been more influential in shaping the global whistleblower movement than lawyers Louis Clark and Tom Devine, GAP's founding Executive and Legal Directors, both still with the GAP. Providing counsel to thousands of whistleblowers worldwide, as well as executives of governments, their message illuminates the power of one individual to make enormous contributions to society. Completely independent from government, funding comes only from individuals and foundations including Ford, Deer Creek, John Merck, and the Fund for Constitutional Government, along with litigation awards.

Established in 1999, the Federal Accountability Initiative for Reform (FAIR) is Canada's only public interest organization promoting accounting through occupational free speech and protection for whistleblowers. It has benefited immeasurably from the contributions of GAP, participating in documentaries, public symposia, and media interviews. Counting on public support, FAIR intends to pursue the four-prong mandate of GAP: educate, assist whistleblowers, build campaigns to clean up wrongdoing, and monitor policies.

Whistleblower Activism Increases

Throughout the 80s and 90s, there was significant expansion in whisteblower activism. Whistleblowers forced the cancellation of American nuclear power plants 97 and 86 per cent complete because of shoddy materials and falsification of quality assurance records. Injunctions were obtained to close down incinerators because toxic emissions were poisoning the play areas of children. And at the Hanford nuclear weapons reservation in Washington State, conscientious resisters revealed that the actual levels of radioactive waste were in fact 440 billion gallons, a far cry from the official record of 5000 gallons.

Ironically, as Canada debates whether to participate in United States' missile defence program, whistleblowers, most notably MIT Professor Postol, continue to expose the lies and cover-up associated with the program. In a vignette that would be a parody of bureaucratic audacity were it not so alarming, one of GAP's whistleblowers revealed that during the 80s the Pentagon faked key tests. Following poor success in shooting down prototype enemy missiles, the Pentagon put a homing device on the Russian prototype so that the US interceptor could locate it. Fudging the results even further, the Pentagon then placed an explosive charge in the prototype and blew it up! Once disclosed, President Bush's request for $5.1 billion was slashed to $1.7.

And in one of the more graphic illustrations of corporate hokum, television's "Primetime Live" featured nineteen employees of Foodline Corporation who told how management had authorized slimy past-due turkey to be "washed" in bleach water and put back on the shelves for another week, and how rotten chicken was recycled by blanketing it in tomato sauce to sell for a buck more a pound as "gourmet chicken". After the show, the stock price collapsed and has yet to recover. Profit plummeted $ 47 million to 3 and 80 stores were closed rather than opened.

But the real disclosure revolution for corporate America came in the aftermath of the riveting testimony of Enron's Sherron Watkins and Worldcom's Cynthia Cooper, which gave the world firsthand accounts of unprecedented corporate malfeasance and corruption. With a nation in crisis from Enron, Worldcom and 9/11 and confronting its national security and fragile financial markets, a swift and aggressive response was required. In July 2002, with uncharacteristic alacrity and resolve, Congress passed the Sarbanes-Oxley Act imposing stringent controls and accountability. A new paradigm of corporate ethic, responsibility and executive liability had arrived.

To date most of the analysis has focused on the duties and obligations of audit committees, the stringent accounting rules, board independence, codes of ethics and business conduct, and greater management accountability. The centerpiece of the Sarbanes-Oxley, however, is the protection for corporate whistleblowers.

For the first time in history private sector employees have stronger free speech rights than government workers. Now it is illegal to harass any worker at a publicly traded corporation for disclosing misconduct that violates federal fraud laws or that could materially threaten the company's stock value. If the employees do not receive a speedy administrative ruling, they can take their case to a jury in federal district court. The resulting depositions and public trial would cast a glaring spotlight on nefarious corporate conduct.

Whistleblowing in Canada

The Tainted Blood, HRDC, Gun Registry, Radwanski, Walkerton and Sponsorship Scandals, are evidence that Canada has had its own share of government corruption and breaches of public trust. The Bre-X and Cinar frauds, the seismic collapse of Nortel, the disgrace of Livent and allegations of autocratic entitlement by Lord Black, demonstrate that our private sector has also engaged in wrongdoing and betrayals. Clearly, it would be disingenuous to think that in all instances there were no employees wanting to speak out.

Public confidence and cynicism also run high with a Leger poll reporting that 70% of Canadians believe that government is somewhat corrupt. The view of corporations is roughly the same and a recent KPMG survey reported that eighty-four per cent of directors on the boards of major corporations suspect a Canadian public company will be caught fudging its books this year. Toxic workplaces and mental illness including depression attributable largely to bullying and lack of control over one's work cost Canada $33 billion annually. Clearly, it's time for reform.

Appallingly, Canada has no whistleblower protection statutes other than some scattered environmental and health and safety enactments. New Brunswick and Saskatchewan offer limited protection in labour standards laws for violations of a law or regulation. But the futility of this protection was recently demonstrated when employee Linda Merk was denied protection for disclosing to senior management rather than going outside to the police or some other "lawful authority". Merk is under appeal to the Supreme Court of Canada.

And when the Government finally in March 2004 acted on its ten-year-old promise to introduce legislation to protect whistleblowers, the result - the Public Servants Disclosure Protection Act - was a disgrace. It was an "anti-whistleblower" measure, replete with conflicts of interest, state-controlled "free speech" stipulations, heavy on sanctions and devoid of real protection. Frighteningly, if an employee deviated from a prescribed procedure, the Act subjected them to prosecution and disciplinary action. In our testimony to the Parliamentary Committee, FAIR denounced the Bill as worse than no law, and stated good faith required its withdrawal. Fortunately, the Bill died with the election. The legislative vacuum awaits a legitimate and principled law.

But despite the absence of legislation, employees of conscience have spoken out. At Health Canada, Dr. Brill-Edwards sounded the alarm about the arbitrary drug approval process including a rush to market of inadequately tested products. Likewise, Health Canada veterinarians Shiv Chopra, Margaret Hayden, and Gerard Lambert spoke out and testified at Senate Hearings about the risks associated with the bovine growth hormone.

Career diplomat Brian McAdam and, subsequently, veteran RCMP officer Robert Read, revealed corruption in Canada's embassy in Hong Kong and risks to our national security through fraudulent visa schemes and penetration of our immigration computer system by organized crime. And Colonel Michel Drapeau (now a lawyer) denounced corruption amongst senior military brass and was an outspoken critic during the arbitrarily truncated Somalia Inquiry.

As one of the most profiled whistleblowers in Canada, Dr. Nancy Olivieri, sparked an international debate on the erosion of the sacred principle of university independence from corporate influence. Threatened when she sought to disclose adverse drug trial results to her entrusted patients, ten years later, she remains embroiled in costly and draining litigation.

All were fired except Brian McAdam, whose destroyed health forced retirement, and Dr. Brill-Edwards, who conscientiously resigned. For Brill-Edwards, employment came in the form of a weekly train commute from Ottawa to Toronto.

But the consequences that can arise when no one speaks are tragically patent in the incalculable human suffering of the sixty thousands infected with HIV and Hepatitis C during Canada's Tainted Blood Scandal. As a result of the Krever Inquiry we learned that contrary to the US and most of Europe, Canada chose not to implement timely screening of its blood banks. The investigation by former Privacy Commissioner John Grace further revealed that unbelievably ten years of tapes and verbatim transcripts of the high level meetings attended by Canada's provincial and federal health ministers were destroyed following Access to Information Requests and the launching of two lawsuits. Buried in this destruction are the secret decisions that resulted in a death sentence for thousands. But the coup de grace is that ten years later the RCMP quietly declared that no charges would be laid as they felt there was no criminal intent. With blood plasma products more valuable than gold, profit triumphed over life.

But how can we blame those who remain silent given our history of abusing employees who tell the truth? Faced with despair and financial ruin, most never fully recover. One year after the Radwanski Affair and despite changes at the top, almost fifty per cent of the employees in the Privacy Commission still feel that they would face reprisal for grieving harassment. Indeed, US surveys have shown that over eighty-five per cent of whistleblowers will suffer harmful consequences.

Limited only by the imagination of management, harassment includes spotlighting the whistleblower, not the wrongdoing; building damaging records; threats and smear campaigns; humiliation and isolation; and for many, the most damaging of all, denial of meaningful work and career paralysis. Having lived the experience, the list does little to capture the true agony. How does one cope with being silenced at key meetings; witnessing one's work being assigned to unqualified colleagues, witnessing the removal of one's name plate from her office; being suddenly struck from the departmental phonebook; sitting alone all day in a silent office; being told that to challenge the retaliation is fruitless as you are "behind the eight ball on this one"; being publicly announced as being out of your job; and being threatened with libel by your Minister of the Crown for daring to say anything was wrong? Despite top-notch credentials, whistleblowers often never find work again.

Institutions also engage in well-orchestrated cover-up. Employees are gagged; expertise is separated from authority, with only "loyal" employees vested with decision-making; work tools and information are withheld; and written records are forbidden. Often, issues will be studied to death and if an investigation is even launched, it conflicts of interest with bosses investigating themselves are the norm, not the exception.

In my experience at FAIR, it is profoundly moving to counsel employees who for years have been fighting formidable institutional power simply for the right to be heard in a fair and just setting. Standing in judgement of oneself is counterintuitive to the layperson but in government, Department of Justice lawyers have justified this abusive process for decades.

Under the current regime, senior management in the employee's department is authorized to hear harassment grievances and prohibits such grievances from being referred to independent arbitration at the labour tribunal. With grievances dead-ending with the employee's boss it's no surprise that employees lack confidence in the process.

But the ultimate denial of justice are the heavy tactics used to intimidate employees who have no access to independent arbitration against bringing actions in tort in our regular courts. With this sort of impunity for government bosses, it's little wonder that one employee out of five reports harassment.

In 2002, I challenged this jurisdictional barrier, and after losing in Ontario Superior Court with $80,000 in costs ordered against me just on the Motion, I prevailed in the Court of Appeal. It was an important victory for whistleblowers, establishing the principle that, even in the absence of a specific whistleblower protection, an employee could rely on his or her common law remedies in tort.

But the victory was short-lived and in November 2003, having not appealed, the Government quietly passed the euphemistically titled Public Service Modernization Act, where buried at s. 236, it says that public servants have no right to bring an action in our courts of justice for any employment matter. The hypocrisy of government to subject private sector employers to a higher standard is an irony not lost on most!

But regardless of the right of an employee to seek a remedy, external disclosures and litigation expose institutions to public relations disasters, not to mention costs. Just weeks ago, after the Wall Street Journal published reports that Nortel executives had "cooked the books" in 2003, the stock had a one-day dive of 10 per cent. The Sponsorship Scandal almost cost Paul Martin the prime minister's office.

Giving The Organization A First Chance

It is significant that both Sherron Watkins and Cynthia Cooper chose to work within their organizational structures before going public. This accords with the choice of the vast majority of whistleblowers that GAP has represented over a quarter of a century. Most are employees simply wanting to do their job. But the important lesson of Enron, is that harassing and attempting to silence employees no longer is a formula for cover-ups. That antiquated perspective virtually guarantees problems are likely to become public scandals that could have been nipped in the bud.

But the decision whether to give the organization a first chance before going public depends largely on whether the employee believes that they will be treated with respect and their concerns taken seriously. The challenge therefore is to earn their trust.

In short, whatever the mechanism employed to accommodate internal disclosures, whether hotlines, ombudsman, ethic committees, certain basic principles will enhance the likelihood that an employee will in fact use them. They are:

1. The right to communicate within the profession, on the job, and with colleagues.

This basic principle, if respected, would prevent the need for whistleblowing.

2. A declaration that leadership will insist that integrity is the cornerstone of all

professional duties - evidenced by action, not rhetoric.

3. The right to due process with realistic burdens of proof. The fatal flaw of

whistleblower protection is the inadequacy of remedies. It is wrong to ask

employees to speak out and defend the public without giving them full

opportunity to defend themselves.

4. The right to information to enable responsible dissent.

5. The right to make a difference by having an independent forum, free from

conflict, review misconduct concerns. In our view, corporate counsel

should not be part of this review.

6. The application of sanctions against those who commit wrongdoing

including those who retaliate.

7. The right to vindication and to be "made whole" through relief for the

wounds of retaliation.

If we have learned anything from recent events, it is that healthy institutions and "truth tellers" are on the same side. Their early warnings offer a golden opportunity for senior executives to avoid being blindsides by risks taken without their knowledge and to save them from liability for decisions taken far from their own purview.

Some may say that corporate lawyers will be motivated to adapt to the new reality simply as a function of corporate expedience. I believe that most will be motivated by the opportunity to contribute to a better and safer world.


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Postby Guest » Fri Nov 11, 2005 11:57 am

I could continue to post the answers to every one of your questions until I am blue in the face

I am so very sorry. I must have missed where these answers were posted by you. Here are the questions (repeated) again that might help to put this matter to rest.

Who did the investigation?
What was the cause of the investigation, the process followed and the conclusion?
What evidence did they use to assist in this investigation?
Was (name removed until trial) (name removed until trial) bound and gagged from even talking to regulatory authorities, (as the court filed anton piller order suggests) and how was his evidence or allegations properly investigated if this evidence was taken away and kept by a custodian? If he was prevented from speaking to them?
Were the custodian, the seizure, the order, the lawyers etc paid for by the plaintiff?
When will this evidence be inventoried?
When will it be catalogued?
When will it be released to the proper police and regulatory agencies?
Who will ensure that it will be used as part of the investigation?
Can you tell this forum a case number, or a file number of said investigation process?
What personal contact information are you referring to in your quote above? (threatening defamation)

How should I govern myself when one man is dead, another is being threatened with the same silence buying legal process used on the first man? All of it surrounding allegations of investment wrongdoing?
Should I believe you when you claim (anonymously) that all is well, that all was done properly?
I am certain that you would not mislead, but humor us with a few facts if you have the time.
Will you provide answers to these fair questions?
Will you try and work towards keeping your posts non personal, non-vindictive?
It is in the public interest that these and many other questions get answered, and probably it is in the interests of your argument to have them probed properly. If you cannot answer these questions then please feel free to offer your opinion. (Facts would help though) But please try and do so in a professional manner.
Members of the public will continue to ask questions that relate to the public interest and the public right to know until satisfactory answers come.
If either side steps over the line then I am sure the lawyers and the courts can deal with it accordingly.

Postby Guest » Thu Nov 10, 2005 9:56 am

good response. I see that you are able to answer less than one question out of the fifteen posted. Your answer about the telus acceptable use policy appeared to point to defamation, as you highlighted it. Can you show this forum exactly where the defamantion is (just copy and paste the offensive words) and it is highly likely that the offensive (if defamitory) statement will be removed. Thank you for your help in this, and thank you for your continued support of this forum. We will look forward to all the details around the issue coming out in various courtrooms around the country in the near future. As you will agree, with one person dead, it is of utmost importance that all details be revealed.

Thanks again

(in the name of cleaning up the clutter, of course any and all posts of an angry, defamitory, or over-emotional nature will be removed. Thanks for understanding and helping to keep this forum on facts only, and not flames)

Postby Guest » Thu Nov 10, 2005 8:58 am

Somwhere in your laundry list of inappropriate questions, Larry, you asked what section of the Telus Acceptable Use policy these posts violated. The section is as folows:

Civil Offences and Violations of the Rights of Others

While using the Communication Services, the Customer is prohibited from, in TELUS' sole judgment, posting, uploading, reproducing, distributing or otherwise transmitting information or materials where such activity gives rise to civil liability or from otherwise violating the rights or assisting others to violate the rights of TELUS or any third party, including, but not limited to, the violations listed below:

Copyright infringement
Trade-mark infringement
Patent infringement
Misappropriation of trade secrets

I have highlighted the offending area but please note that it also covers any activity that goves rise to civil liaility to Telus. You really should read these agreements before you start engaging these kinds of activities. The laws in Canada are significantly differentrom those elsewhere particularly in the US

Postby Guest » Wed Nov 09, 2005 9:45 pm

Still looking forward to an open hearing into Joe's allegations, as they still have not been investigated properly. Unless you call what happened to Kent Shirley an investigation. And unless you call gagging Joe, and then beating him and gaggin him when he could not defend himself also an investigation. Others see it as using brute force to silence and intimidate people guilty of committing the truth. Your tone sounds like you are similarly guilty of trying to hide the truth. Thanks for giving us your thoughts so we can learn from them)

Postby Guest » Wed Nov 09, 2005 1:43 pm

still waiting for the questions surrounding this issue to be answered. Thanks for your informative reply.


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