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a case study
Joseph Zernik, PhD Human Rights Alert (NGO)
1. Significance
Litigated in the US District Court,
Manhattan key court in corporate regulation Widely reported by media Was staged as restoration of enforcement of banking regulation in the wake of the financial crisis.
2. Underlying Matter
Unlawful taking of $5.8 billions by banking executives during the merger of Bank of America and Merrill Lynch in late 2008.
A decade-long project; Cost - several billions US dollars? Implemented independently by the Administrative Office of
the US Courts; PACER Public Access to Court Electronic Records CM/ECF Case Management and Electronic Court Filing.
2. Shell-game Fraud
Not validated; Electronic court procedures have not been established by law (e.g., digital signatures, electronic authentication records); Public access to digital signatures and electronic authentication records in denied;
3. Shell-game Fraud
file records with no prior review by the clerks of the courts; Enable unauthorized court personnel to issue and publish online court records dockets, minutes, orders, judgments;
Enable unauthorized attorneys to appear and
4. Shell-game Fraud
Litigation, a widespread practice in the state and US courts:
Texas Penal Code 32.48. SIMULATING LEGAL PROCESS. (a) A person commits an offense if the person recklessly causes to be delivered to another any document that simulates a summons, complaint, judgment, or other court process with the intent to: (1) induce payment of a claim from another person; or (2) cause another to: (A) submit to the putative authority of the document; or (B) take any action or refrain from taking any action in response to the document, in compliance with the document, or on the basis of the document. (b) Proof that the document was mailed to any person with the intent that it be forwarded to the intended recipient is a sufficient showing that the document was delivered.
1. Certificate of Service
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF <name of district> <name1>, Plaintiff, v. <name2>, Defendant. Case Number: <number>
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on <date>, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. <service list> Dated: <date> <name of individual>, Clerk <wet graphic signature> ________________________ By: <name of individual>, Deputy Clerk
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Methods
Information regarding PACER and CM/ECF,
US District Court, Manhattan:
Published Rules of Court Electronic Case Filing Rules & Instructions and CM/ECF Attorney Civil Dictionary Users Manual Public access to PACER records Requests to the office of the Clerk of the Court, attorneys for SEC and BAC in the case, office of the Chair of SEC, office of BAC President, Freedom of Information Act (FOIA) office of SEC, and the office of Fair Fund Administrator.
Human Rights Alert, 2011 12
Methods
Media coverage:
Search of major media outlets - New York Times, Washington Post, Wall Street Journal, Times of London
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Results
1. Denial of Access
denied:
-
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Results
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Results
No docket number is assigned to the entry No record is linked to the entry The record, if it existed, could not possibly be authenticated
Results
4. Simulated Litigation
August 3, 2009 - Civil Cover Sheet August 3, 2009 Summons issued Service of Summons
- No Civil Cover Sheet - No record is linked to the entry - The record, if it existed, could not possibly be authenticated
- No Motion for entry of the proposed Settlement Agreement - No proposed Settlement Agreement
Human Rights Alert, 2011 17
Results
5. Simulated Litigation
August 10, 2009 Proceeding August 25, 2009 Order pertaining to proposed Settlement Agreement
Access to the NEF is denied - Off the record no docket listing
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Circumstances
1. Simulated Litigation
Initial Proposed Settlement
- $33 millions to be paid by the shareholders to the US government; - Executives were not required to return any of the funds; - No individual was held accountable; - No individual suffered any consequences $150 millions to be paid by the shareholders to themselves; Executives were not required to return any of the funds; No individual was held accountable; No individual suffered any consequences
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Circumstances
2. Underlying Criminality
April 23, 2009 letter by State of New York Attorney General Andrew Cuomo to the US Senate, summarizing his findings in investigation of the same matter, generated extreme responses by independent media:
Let the Criminal Indictments Begin: Paulson, Bernanke, Lewis Cuomo Unveils Paulson, Bernanke, Lewis Conspiracy Bigger Than Watergate?
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Circumstances
[W]e will vigorously pursue our charges against Bank of America and take steps to prove our case in court," the SEC said in a statement. "We will use the additional discovery available in the litigation to further pursue the facts and determine whether to seek the court's permission to bring additional charges in this case.
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Circumstances
All media were noticed during the litigation of its simulated nature None raised any doubt about integrity of the litigation records
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Conclusions
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Conclusions
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Conclusions
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Conclusions:
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Conclusions
5. Banking Regulation
fraud on the people in SEC v BAC ; A simulated litigation was staged in SEC v BAC to appease the public at home and abroad; SEC, BAC, and other banking regulation agencies routinely offer the US Congress false testimonies; Due to US court corruption, there is no chance to institute effective banking regulation in the United States.
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Conclusions
Records;
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Conclusions
7. Corporate-government Corruption
Chair, Senate Judiciary Committee Chair, Senate Banking Committee Former Chair, House Banking Committee Patrick Leahy Christopher Dodd Barney Frank
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Discussion
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Discussion
2. Deprivation of Liberty
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Discussion
3. Deprivation of Property
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Discussion
4. The financial crisis and court corruption: The chicken and the egg
Foreclosure fraud: The homeowner nightmares continue CNN (Apr 2011) About 3 million homes have been repossessed since the housing boom ended in 2006 That number could balloon to about 6 million by 2013 Bloomberg (Jan 2011)
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Discussion
5. The financial crisis and court corruption: The chicken and the egg
"...a system in which only the little people have to obey the law, while the rich, and bankers especially, can cheat and defraud without consequences." Prof Paul Krugman, MIT (2011) In financial crisis no prosecution of top figures Gretchen Morgenson, NYT (2010) Banks to Pay $25 Billion Bribe For Immunity
Scott Paltrow, ICH (2011)
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Discussion
6. The financial crisis and court corruption: The chicken and the egg
"On July 26, 2010, Laurence Tribe, Senior
Counsel for the United States Department of Justice, Access to Justice Initiative, delivered an important speech to the Conference of Chief Justices, challenging them to halt the disintegration of our state justice systems before they become indistinguishable from courts of third world nations.
National Defender Leadership Institute (2010)
Leahy, Chair of the Senate Judiciary Committee called for a "Truth and Reconciliation Commission" on the US Department of Justice.
Senator Leahy speech Human Rights Alert, 2011 (2009)
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Discussion
7. Historic Perspectives
Robber Baron Era, USA
late 19th century
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Discussion
8. Medieval-Digital Era
21st century, USA
The time of the "Robber Knights Germany was loosely knit the strong hand of an Emperor was absent They could also not be taken to trial over anything by any other than their fellow ruling class, legitimizing any of their acts, good or bad
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Discussion
US Constitution
Gold Price
Food Prices
Handicapped presidency: Bush v Gore; Corporate-courts criminal networks: Citizens Large-scale abuse of the People:
Dispossession, false imprisonment, torture
Commonwealth of VA v Sibelius
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Discussion
Undermining Civil Society and Socio Key role for digital/networked technology:
economic Development;
Falsification of electronic records in the courts, prisons, banks, executive agencies Denial of public access to public records.
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Thanks!
Joseph Zernik, PhD Human Rights Alert (NGO) Records pertaining to the current presentation and additional records pertaining to the Los Angeles Superior Court: http://www.scribd.com/Human_Rights_Alert
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http://www.scribd.com/Human_Rights_Alert
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