HEARING DATE AND TIME: March 29, 2011 at 9:45 a.m. (Eastern time) OBJECTION DEADLINE: March 22, 2011 at 4:00 p.m.. (Eastern time)
John Lewis Mealer, pro per (pro se) 6333 Gardenia Lane Show Low, Arizona 85901 [email protected], 928-532-8191
CREDITOR/CLAIMANT
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ) MOTORS LIQUIDATION COMPANY, et al., ) Chapter 11 Case No. ) f/k/a General Motors Corp., et al. ) 09-50026 (REG) ) Debtor ) Jointly Administered ) ) ) ) ) (Creditor's Principal Brief) )
CREDITOR'S RESPONSE, OBJECTION and MOTION TO DENY THE RELIEF REQUESTED IN DEBTOR'S OBJECTION, DISAGREEMENT and MOTION TO DENY ENTRY OF ORDER DISALLOWING and EXPUNGING ADMINISTRATIVE CLAIM NO. 70792 FILED BY JOHN L MEALER
Creditor/Claimant/Plaintiff Mealer's Response, Disagreement, Objection and Motion is based on the attached Memorandum of Points and Authorities filed and timely served concurrently all pleadings and papers on file herein and such pleadings as filed in the Arizona District Court Case No:
3:10-cv-08172-JWS, which is integral to this complaint and attached hereto as Exhibits, and upon such oral and documentary evidence as may be presented at a hearing if necessary on this [responsive] principal brief Motion To Deny the Relief Requested in Debtor's Objection and Motion To Deny Entry of Order Disallowing and Expunging Administrative Claim No. 70792 Filed By John L Mealer.. TABLE OF CONTENTS
Page
I. Relief Requested...... 2
II. Jurisdiction …...... 5
III. Preliminary Statement (Background of Mealer's Claims)...... 6
IV. Debtor's liability is clear and concise...... 7
V. Internet Postings (Doctrine of Accord and Satisfaction Improperly Applied)...... 9
VI. Background …...... 16
1. These Chapter 11 Cases …...... 16
A. Exceptions Debtor(s) MLC, NGMCO (“GM”) bankruptcy protection. 16
1). July 10, 2009 …...... 16
2). Permitted Encumbrances …...... 16
B. Mealer's First filing in these Ch. 11 cases …...... 21
C. Mealer's Adversary Proceeding …...... 22
D. Mealer's Lawsuit in Arizona State Court and Arizona District Court... 25
E. Mealer's Administrative Proof of Claim (“APC”)...... 27
VII. Argument …...... 28
VIII. Sheer Speculation vs Inferential Allegations .…...... 32
A. Standing …...... 32
B. Cause …...... 32
IX. Conclusion …...... (38)
X. Motion to Deny Entry of Order Disallowing and Expunging Administrative Claim no. 70792 Filed by John L. Mealer …...... 39
XI. AFFIDAVIT …...... 39
XII. Certificate of Service and Service List ...... 40, 41 (i) TABLE OF AUTHORITIES
CASES Pages(s)
4A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §1082 (3d ed. 2010) … 22
15 U.S.C. § 1291 et seq...... 30
17 U.S.C. § 512(c)(1)(B). …...... 39
28 U.S.C. § 157(b)(2)(B), (O), and § 157(b)(5) …...... 5
28 U.S.C. § 157(c)(1), Id. § 157(b)(3), Id. § 157(c)(2) First Circuit (1996) …...... 5
49 U.S.C. §§ 11341-11342 (1982)...... 30
Amini v Oberlia Coll., 259 F.3d 493, 502 (6th Cir. 2001))...... 9,
Arizona Constitution in Article 18, Section 3...... 34
ARS § 20-455 Defamation …...... 6
Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. at 602, 603 …...... 39
Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 596 n.19 (1985) …...... 16-21, 28, 34
Averitt, [A.F.S., 767 F.2d at 972 Commission's Policy Statement, 108 F.T.C.A., At 362], 70 Geo.L.J. At 246...... 16-21, 29, 34
Bassett v NCAA, 28 F.3d 426, 430 (6th Cir. 2008) …...... 9,
Bell Atl. Corp v Twombly, 127 S. Ct. 1955, 1969 (2007)...... 9
Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 291 (2d Cir. 1979), cert. denied, 444 U.S. 1093 (1980)...... 12, 13, 16-21, 28, 34
Bethel v. New York Transit Authority, 1998 N.Y. Int. 0113 (October 15, 1998)...... 7, 8, 12, 35
Blue Shield of Virginia v. McCready, 457 U.S. 465, 478 nn. 12-13 (1982) …...... 34 (ii.) TABLE OF AUTHORITIES
CASES Pages(s) Boag v. MacDougall, 454 U.S. 364, 365 (1982)...... 22
Broad v. Rockwell Int'l Corp., Black’s Law Dictionary, [reasonable care] Gardner B.A.,2004, p. 1061), 642 F.2d 929, 961-62 (5th Cir.), cert. denied, 454 U.S. 965, 102 S.Ct. 506, 70 L.Ed.2d 380 (1981); …...... 7, 8, 12, 35
Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 222 (1993)...... 16-21, 28, 34
Brown v. Kendall, Restatement of the Law, Second, Torts. §288C. 60 Mass. 292 (1850)...... 9
Car Carriers, Inc. v Ford Motor Co., 745.F2d 1101. 1106 (7th Cir. 1984)...... 6, 9, 33
Caribbean Broadcasting System, Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1087 (D.C. Cir. 1998). …...... 14-24, 26, 30, 31
City of Tempe v. Pilot Properties, Inc., 22 Ariz. App. 356, 363, 527 P.2d 515, 522 (Ariz. Ct. App. 1974) (Slander of Title).. 13, 36
Clinkscales v. Carver, Restatement of the Law, Second, Torts. §288C. 22 Cal.2d 72 (1934)...... 9
Cook v. Avien, Inc., Black’s Law Dictionary, [duty of reasonable care] Gardner B. A., 2004, p. 1061), 573 F.2d 685, 692 (1st Cir.1978);...... 7, 8, 12, 35
County of Tulare v. Workers’ Comp. Appeals Bd. (1985) 170 Cal.App.3d 1247, 1253. …...... 31
Doe v Friendfinder Network, Inc., 540 F Supp.2d. 288 (D.N.H. 2008). …...... 38, 39
Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 480 at 488 (1992) (Scalia, J., dissenting at 488)...... 16-21, 28, 34
Educ. Credit Mgmt. Corp v Barnes 259 B.R. 328 (S.D.) 28 USC § 157(d);...... 5
Espinoza v. Elgin, Joliet & Eastern Railway, Restatement of the Law, Second, Torts. §288C. 649 N.E.2d 1323 (Ill. 1995)...... 9
F. Harper & F. James, Jr., The Law of Torts 1367 (1956). …...... 7, 8, 12, 35
(iii.) TABLE OF AUTHORITIES
CASES Pages(s) Fed. R. Civ P. Rule 41(a)(2) …...... 5
Fedie v. Travelodge Int'l, Inc., 162 Ariz. 263, 266, 782 P.2d 739, 742 (1989) …...... 34
Ferdik, 963 F.2d at 1261 …...... 22
F.T.C. v. Klesner, 280 U.S. 19, 28, 50 S.Ct. 1, 4, 74 L.Ed. 138 (1929) (footnote omitted)...... 29
Gee v. Pima County, 126 Ariz. 116, 612 P.2d 1079 (Ariz. Ct. App. 1980) (trade libel)...... 13, 16 ,18, 22, 24, 36
Gordon v. Burr, ('controlling persons' citing the SEC definition Id. At 668 with approval) 506 F.2d 1080, 1085 (2d Cir. 1974)...... 7, 8, 12, 35
General Indus. Corp. v. Hartz Mountain Corp., 810 F.2d 795, 803 (8th Cir. 1987) …...... 12, 13, 16-21, 28
H.R.Rep. No. 1383, 73d Cong., 2d Sess. 26 (1934) noting ("it would be difficult if not impossible to enumerate or to interpret the many ways in which actual control may be exerted")...... 9
H.R. Rep. No. 105-551, at 53, pt.2, at 64 (1998) ...... …..... 38, 39
Hackbart v. Holmes, Black’s Law Dictionary, [duty of reasonable care] Gardner B. A., 2004, p. 1061), 675 F.2d 1114, 1118 (10th Cir.1982);...... 7, 8, 12, 35
Haralson v. Fisher Surveying, Inc. 201 Ariz. 1, 31 P.3d 114 (2001) …...... 7, 9, 29, 30
Haspel v State Farm Mut. Auto Ins. Co., 241 Fed. Appx. 837, 2007 WL 2030272, *1 (3d Cir. 2007) (quoting Twombly127 S. Ct. at 1969))...... 9,
Heath v. Swift Wings, Inc., Restatement of the Law, Second, Torts. §288C. 252 S.E.2d 256 (N.C. 1979)...... 9
Herman v Magnusan, 277 N.W.2d 445, 455 (N.D. 1979)...... 9
Hicks v. Miranda, 422 U.S. 322, 45 L.Ed.2d 223, 95 S.Ct. 2281 (1975) …...... 4
(iv.) TABLE OF AUTHORITIES
CASES Pages(s)
Hinojosa v. Workmen’s Comp. Appeals Bd. (1972) 8 Cal.3d 150, 152) ,...... 31
Hirsch v. Cooper, 737 P.2d 1092, 1097 (Ariz. Ct. App.1986)...... 12, 13
Huntsinger v. Glass Containers Corp. (1972) 22 Cal. App. 3D 803, 807 [Fourth Dist., Div. Two] Huntsinger...... 31
International Harvester, Co., [A.F.S., 767 F.2d at 972 Commission's Policy Statement, 108 F.T.C.A., At 362], 104 F.T.C. 949, 1064 n. 55 (1984)...... 16-21, 28, 34
J. R. Norton Co. v. Fireman's Fund Ins. Co., 116 Ariz. 427, 430, 569 P.2d 857, 860 (App. 1977). …...... 34
Johnson v. Dudenak & Geibig t/d/b/a Sassy's, 60 Som.L.J. 333 (2002) (Gibson, J.), Restatement (Second) of Torts § 317..…...... 7, 12, 24-27
Josephson v. Meyers, Restatement of the Law, Second, Torts. §288C. 429 A.2d 877 (Conn. 1980),...... 9
Kamine/Besicorp Allegany, L.P. 214 B.R. 953, 972 (Bankr. D.N.J. 1997). …...... 4, 5
La Favre & Scott, supra note 5, at 585; infra note 78 …...... 31-34
LaFavre & Scott, supra note 5, at 569...... 30
Lee Moor Contracting Co. v. Blanton, 49 Ariz. 130, 135, 65 P.2d 35, 37 (1937)...... 9,10, 39
Lanza v. Drexel & Co., ('controlling persons' citing the SEC definition Id. At 668 with approval) 479 F.2d 1277, 1299 (2d Cir.1973) (en banc);...... 7, 8, 12, 35
Long v. Arizona Portland Cement Co. [Arizona Supreme Court] 89 Ariz. 366, 362 P.2d. 741, 742 (1961); Folk V. City of Phoenix, 27 Ariz. App. 146, 551 P.2d 595, 600 (1976). …...... 34
Macneil v. Perkins, 84 Ariz. 74, 324 P.2d 211 (1958)...... 7, 24-27, 29, 30
(v.) TABLE OF AUTHORITIES
CASES Pages(s) Maddox v Commonwealth, 349 S.W.2d 686 ) Ky. 1960)...... 30,
Mansbach v. Prescott, Ball & Turben, Black’s Law Dictionary, [duty of reasonable care] Gardner B. A., 2004, p. 1061),598 F.2d 1017, 1025 (6th Cir.1979);...... 7, 8, 12, 35
Matter of Poole Funeral Chapel, Inc., 63 B.R. 527, 530 (Bankr.N.D.Ala.1986) (quoting statements of U.S. Senator. DeConcini)...... 5
McDaniel v. Troy Design Servs. Co., 186 Ariz. 552, 553, 925 P.2d 693, 694 (App. 1996).…...... 7, 8, 12, 24-27, 35
McCarran-Ferguson Act, 15 U.S.C. § 1011...... 30
McDowell v. Davis, 104 Ariz. 69, 71, 448 P.2d 869, 871 (1968) …...... 34
McLean v. Alexander, Black’s Law Dictionary, [duty of reasonable care] Gardner B.A., 2004, p. 1061), 599 F.2d 1190, 1197-98 (3d Cir.1979);...... 7, 8, 12, 35
Medasys Acquisition Corp. v. SDMS, PC, 203 Ariz. 420 (2002). …...... 7-11, 13, 23, 24,34
Moore v State 94 S.E.2d 80 (Ga. Ct. App. 1956)...... 30,
Multistate Legal Studies, Inc. v. Harcourt Brace Jovanovich Legal and Professional Publications, Inc., 63 F.3d 1540, 1550 (10th Cir. 1995), cert. denied, 516 S. Ct. 1044 (1996) …...... 6, 24
Murawski v. Pataki, 514 F.Supp.2d 577, 591 (S.D.N.Y. 2007) (citations omitted)...... 4, 6
Nielsen Sjolander, Administratrix of Estate of Niels Otto Andersen Sjolander v. Vestas Wind System A/S, 64 Som. L.J. 280 (2009) (Klementik, J.)...... 7, 8, 12, 35
Nielsen Sjolander, Administratrix of Estate of Niels Otto Andersen Sjolander v. Vestas Wind System A/S, 2006 Supreme Court Farabaugh; Section 414 of the Restatement (Second) of Torts, “Negligence in Exercising Control Retained by Employer.” 64 Som. L.J. 280 (2009) (Klementik, J.)...... 7, 12, 35
Nifty Foods Corp. v. Great Atlantic & Pacific Tea Co., 614 F.2d 832, 838 (2d Cir.1980) …...... 5, 10, 11, 38
(vi.) TABLE OF AUTHORITIES
CASES Pages(s)
Newspapers Preservation Act of 1970 viz 15 U.S.C. § 1801, et seq...... 30, 31
Norway Plains Co. v. Boston & Me. R.R., 67 Mass. 263, 267 (1854)(Shaw, C.J.)...... 5
Pharo v. Smith, ('controlling persons' citing the SEC definition Id. At 668 with approval) 621 F.2d 656, 670 (5th Cir.1980) …...... 7, 8, 12, 35
Pension Benefit Guar. Corp. v. White Consol. Indus., Inc. 998 F.2d 1192, 1196 (3d Cir. 1993)...... 9,
Perfect 10, Inc. v. CCBill LLC, 481 F. 3d. 751 (9th Cir. Mar. 29, 2007; amended opinion issued May 31, 2007), …...... 38-39
Piper v. Bear Med. Sys., Inc., 180 Ariz. 170, 174, 883 P.2d 407, 411 (App. 1993)...... 34
Plywood Antitrust Litigation 655 F. 2d 627, 641 (5th Cir. 1981), cert dismissed, 462 U.S. 1125, 103 S. Ct. *437 3100, 77 L.Ed.2d 1358 (1983)), cert denied, 470 U.S. 1054, 105 S.Ct. 1758, 84 L.Ed.2d 821(1985)..6, 33
Pruitt v. Pavelin, 141 Ariz., 195, 685 P.2d 1347 (1984)...... 7, 9, 12, 35
Restatement (Second) of Agency Sec. 226 (Third § 7.03 § 227) …...... 38, 39,
Restatement (Second) of Agency Secs. 221 & 226, (Third § 7.03 § 227) ...... 38, 39,
Rawlings v.Apodaca 726 P.2d 565 (Ariz. 1986) …...... 7-11, 13, 23, 24,34
Rolf v. Blyth, Eastman Dillon & Co., Black’s Law Dictionary, [duty of reasonable care] Gardner B. A., 2004, p. 1061), 570 F.2d 38, 46-47 (2d Cir.), cert. denied, 439 U.S. 1039, 99 S.Ct. 642, 58 L.Ed.2d 698(1978).8
Rochez Brothers, Inc. v. Rhoades, ('controlling persons' citing SEC definition Id. At 668 with approval) 527 F.2d 880 (3d Cir.1975), cert. denied, 425 U.S. 993, 96 S.Ct.2205, 48 L.Ed.2d 817 (1976)...... 7,8, 12, 35
Rochez Brothers, 527 F.2d at 890;...... 9
Rueles, 199 Ariz. At 346, 347, ¶¶¶ 5, 11, 18 P.3d at 140, 141...... 7, 8, 12, 35 (vii.) TABLE OF AUTHORITIES
CASES Pages(s)
SEC v. Carriba Air, Inc., Black’s Law Dictionary, [reasonable care]Gardner B.A.,2004, p. 1061), 681 F.2d 1318, 1324 (11th Cir.1982);...... 7, 8, 12, 35
SEC v. Netelkos, 592 F.Supp. 906, 913 (S.D.N.Y.1984)...... 9
Santiago v. Phoenix Newspapers, Inc., 164 Ariz. 505, 794 P.2d 138. (1990)...... 7, 9, 29, 30
State Farm Mut. Auto. Ins. Co. v. Haight 205 Cal.App.3d 223, 241.) ...... 31
Schulman v. Cal. Water Res. Control Bd. (In re Lazar), 200 B.R. 358, 366 (Bankr. C.D. Cal. 1996) 28 U.S.C. § 157(a)...... 5
Section 5 of the FTC Act, 15 U.S.C. § 45,...... 16-21, 28, 34,
Section. 691.991 of the Michigan Compiled Laws …...... 34
State v Howes, Kadish, [supra note 5, at 340-41 (emphasis added)]. 432 A.2d 419 (Me. 1981)...... 30,
State v Satern, 516 N.W.2d 839 (Iowa 1994) Model Penal Code § 2.04(4)(now 2.06(4) at 34 (Tentaive Draft No. 1 1953) …...... 31-34
Strapex Corp. v. Metaverpa N.V., 607 F.Supp. 1047, 1050 (S.D.N.Y.1985). …...... 5, 10, 11, 38
Sutliff, Inc. v. Donovan Cos., 727 F.2d 648,654 (7th Cir. 1984); 5 C. …...... 6, 33
Triestram v. Way, Restatement of the Law, Second, Torts. §288C. 281 N.W. 420 (Mich. 1938)...... 9
Tryer v. Ojai Valley School, (1992) 9 Cal.App. 4Th 1476, 1481...... 31
United States v. Alcoa, 148 F.2d 416, 432 (2d Cir. 1945), and R. Bork, The Antitrust Paradox 160 (1978))...... 39
United States v. Carroll Towing Co., Restatement of the Law, Second, Torts. §288C. 159 F.2d 169 (2d. Cir. 1947) …...... 9
(viii.) TABLE OF AUTHORITIES
CASES Pages(s) United States v. Griffith, 334 U.S. 100, 107 (1948) …...... 16-21, 28, 34
United States v. Grinnell Corp., 384 U.S. 563, 570-71 (1966)) …...... 16-21, 28, 34
United States v Ruffin, 613 F.2d 408, 412 (2d Cir. 1979)...... 30,
W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, § 45, at 319-20 (5th ed. 1984) … 34
Wagenseller v. Scottsdale Mem'l Hosp., 147 Ariz. 370, 388, 710 P.2d 1025, 1043 (1985). …...... 12, 13
Wallace v. Casa Grande Union High Sch. Dist. No. 82 Bd. of Governors, 184 Ariz. 419, 427, 909 P.2d 486, 494 (App. 1995) (citations omitted). …...... 11,12,
Warner v. Southwest Defect Images, LLC, 2008 Ariz.App. LEXIS 47 (Ct.App.2008) …...... 7-11, 13, 23, 24,34
Western Tech., Inc. v. Sverdop & Parcel, Inc., 154 Ariz. 1, 4, 739 P.2d 1318, 1321 (Ariz. Ct. App. 1987)...... 13, 16 ,18, 22, 24, 36
White v. Abrams, 495 F.2d 724, 735-36 (9th Cir.1974))...... 7, 8, 9, 12, 35
Williams, [Restatement (Second) of Agency Sec. 219 (1958)] 106 Ariz. at 338, 476 P.2d at 148...... 7, 8, 12, 35
Williams v. Wise, 106 Ariz. At 338, 476 P.2d at 148 (1970)...... 9,10, 39
Williamson Tobacco Corp., 509 U.S. 209, 222 (1993)...... 12, 13, 16-21
Wright & A. Miller, Federal Practice & Procedure § 1216 at 121-23 (1969)...... 6, 33
Zweig v. Hearst Corp., (paraphrasing White v Abrams) 594 F.2d 1261, 1268 (9th Cir.1979)...... 7, 8, 12, 35
(ix.) HEARING DATE AND TIME: March 29, 2011 at 9:45 a.m. (Eastern time) OBJECTION DEADLINE: March 22, 2011 at 4:00 p.m.. (Eastern time)
John Lewis Mealer, pro per (pro se) Creditor/Claimant 6333 Gardenia Lane Show Low, Arizona 85901 [email protected], 928-532-8191
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ) ) Chapter 11 Case No. MOTORS LIQUIDATION COMPANY, et al., ) ) 09-50026 (REG) f/k/a General Motors Corp., et al. ) ) Jointly Administered Debtor ) ) CREDITOR'S RESPONSE, OBJECTION and ) MOTION TO DENY THE RELIEF ) REQUESTED IN DEBTOR'S OBJECTION and ) MOTION TO DENY ENTRY OF ORDER ) DISALLOWING and EXPUNGING ADMINISTRATIVE CLAIM NO. 70792 FILED BY JOHN L MEALER
CREDITOR, JOHN LEWIS MEALER'S RESPONSE, OBJECTION AND MOTION TO DENY RELIEF REQUESTED IN DEBTOR'S OBJECTION
The actual reason and authority this case is before this Honorable Bankruptcy Court, is through both the N.Y.S.D. Honorable Judge Robert E. Gerber and the Arizona District Bk Court Honorable
Redfield T. Baum's directions to this Claimant as noted herein.
Administrative Claims pending actions for Civil complaints are direct averment allegations based on debtor's admissions of acts along with inferential allegations respecting all the material elements which sustain recovery under some viable legal theory, central to this complaint, whether hypertechnically or otherwise plead pursuant to Fed. R. Civ. (See United States v. Uni Oil, Inc., 710
F.2d 1078, 1080-81 n.1 (5th Cir. 1983))
1. TO THE HONORABLE ROBERT E GERBER, INITED STATES BANKRUPTCY JUDGE:
Claimant/Creditor Mealer respectfully represent:
I. RELIEF REQUESTED
1. Creditor/Claimant, John Lewis Mealer, (herein “Mealer”) hereby responds to debtor's
Objection of this claim which this claim is valid pursuant to section(s) 11 U.S.C. § 503(a)(1)(A),(3)(A)
(3), and § 101(10)(A)(B), and § 348(d), and § 523(a)(6), and through judicial direction and Order.
A. Pursuant the Administration Claim Instructions, (“A.C.I.”) which Debtors have provided this court (See Debtor's Exhibit “A”) and which was completed by Claimant and mailed to the
Administrative Claim Office; instructed at No. 3 If court judgment, date obtained; whereby Mealer stated, “In federal court, currently.” regarding the pending lawsuit in the Arizona District Federal
Courts which was directed by the bankruptcy Judges Honorable Gerber and Honorable Baum, referenced by Mealer under No. 7 Supporting Documents: wherein Mealer stated, “I will send full documentation, plus letter of admission from GMC upon responc[s]e.”
B. Pursuant the “A.C.I.”, clearly stated on page No.2 Instructions For Filing
Administrative Proof Of Claim at No. 7 Supporting Documents: You must attach to this proof of claim form copies of documents that show the Debtor owes the debt claimed or, if the documents are too
lengthy, a summary of those documents. If documents are not available, you must attach an explanation of why they are not available. Mealer has clearly followed the instructions of said complaint by filing a “summary of those documents” (See Debtor's Exhibit “A” Administrative Proof of Claim # 70107022 additional details) which is the Rule No. 7 Summary.
C. Debtors are intentionally misleading this court by providing a never-served document (parked for Arizona's statute of limitations on defamation claim purposes) as debtor's Exhibit
“K” in an attempt to discredit this Creditor/Claimant. The Debtor's “Ex. K” document is irrelevant
2. except for Arizona Superior Court claim filing purposes noted herein, whereas, the Amended Claim (A copy of which is annexed hereunto as Exhibit #1) is Mealer's only Served Summons and Complaint, which has not been answered by defendants/debtors.
D. Furthermore, based upon the relevant concurrent/pending Arizona District Court complaint (Case No: 3:10-cv-08172-JWS) which was transferred from Arizona Superior Court (Case
No: CV201000316) by Defendant's (Debtors) after accepting service and summons of the Amended
Complaint, the Debtor intentionally supplied this court with only the initial parked, never-served complaint as Exhibit “K” and referred to as the “Mealer Claim”.
E. Debtor's Motion for US District Court for removal from State Superior Court further proves they are in possession of said complaint and by referencing of said, never-served
Complaint/claims, appears to be debtor's attempt to distract from the matters at hand. Debtor's, by acceptance and removal, must have in their possession the actual August 10th, 2009 properly served summons and Amended Complaint documents. (Exhibit #2).
F. Debtor's flagrant, intentional violations of the Federal Rules of Civil Procedure §
8(b) et seq., pursuant Rule 55(b)(2) are in default and as such, are pending Arizona District action.
(Exhibits #4, #4a, #4b). Said Motion for Default Entry “#4”, includes Order of Entry “#4a”, and
Judicial Notice “#4b” and includes and references all Exhibits #1, #2, #3 as provided herein. Note:
Exhibit #3 is a copy of plaintiff Mealer's letter of intention of filing default judgment upon defendants, including MLC.
Therefore, Mealer hereby makes notice to this Honorable Court of the intentional misdirection that Debtor is attempting upon all who are present, whereby they have improperly suggested and then did admit and now have purposely omitted in the same document/Objection/Motion -in order to influence, deceive and dissuade this court- as proven after the true receipt and service of summons for
Mealer's claims in Arizona District Court Case No: 3:10-cv-08172-JWS and within Debtor's February
3. 26th, 2011 Notice of Hearing On Debtor's Objection To Administrative Claim No. 70792 By John
Mealer,:
In Debtor's own words at ¶ #1: “The Debtors have examined the Mealer Claim and the hundreds of pages of documents Claimant has filed in these chapter 11 cases and in other actions Claimant has commenced against the Debtors.”
G. Pursuant to and upon order of this N.Y.S.D. Bankruptcy Court's direction on
4/14/2010, Mealer has proceeded and pursued Justice by law in a Superior Court Civil setting to procure a valid “show[ing] and a prima facie entitlement to relief” prior to this claim being returned to this bankruptcy forum. Ultimately, Arizona District Court Case No: 3:10-cv-08172-JWS is exactly that
“show[ing]” pursuant the N.Y.S.D. Case No. 09-50026; “Endorsed Order: Motion Denied without prejudice, for failure to show a prima facie entitlement to relief. S/REG USB” by the Honorable Robert
E Gerber in this very court and this exact case 09-50026 (REG) (herein, “NYSD Order”). Re: Mealer's
Motion to Approve Procedures For Administering Claims Under Bankruptcy Code Section 503(a)(1)
(A),(3)(4)(A)(C) was “denied without prejudice” thus allowing this claim and others to follow. (See
Ex. #5).
H. Mealer's true and complete claim, by Amended Complaint is pending appeal in
Arizona District Court, has made full, complete, proper allegations, has stated a claim on which relief can be granted and clearly establishes respondeat superior liability upon Debtors and subsequently is not barred by the “doctrine of accord and satisfaction” and has been accepted by Arizona District
Court per Orders of the Honorable John W. Sedwick.
THEREFORE, Debtors having intentionally misrepresented the true and correct issues at hand, have omitted and have failed to provide the relevant facts in what appears to be no more than abusive procedural tactics and as such have already become a detriment to the public and a hindrance and disgrace to this Court. For the reasons herein, accordingly, Creditor MEALER requests the entry of an order allowing the true and substantiated Mealer Claim to remain on the claim's register and to Deny the Debtor's Motion to Deny. 4. II. JURISDICTION
1. Jurisdiction is unclear for this case. Factually this court has jurisdiction to consider this matter pursuant to 28 U.S.C. §§ 157 and 1334. This is technically not a Core subject matter proceeding pursuant 28 U.S.C. §§ 157(b)(2)(B), 157(b)(5) “as defensive against torts and as such strictly limit the authority of bankruptcy judges with respect to personal injury claims”. Mealer filed his April 14, 2010 requesting this Court Approve Procedures for Administering Claims.... whereby the Honorable Robert
E. Gerber denied the request without prejudice and ordered Mealer to show a prima facie entitlement to relief which could only be concluded in a civil court. NGMCO 363 Order allows access to torts.
Therein lies the confusion.
A. Mealer's chapter 7 bankruptcy pre-petition claims ultimately originated from incidents that created his personal bankruptcy and were entirely made as protective and defensive claims which could have and would have existed outside of Bk. as detailed within the August 10, 2010
Amended Complaint (Ex. #1) sent to civil court by the Honorable Robert E. Gerber on April 14, 2010, and Honorable Redfield T Baum on June 2, 2010. The concurrent causes of action have caused an intersecting lapse of court's replies upon this Claimant and neither court has undergone final ruling proceedings on the merits of these cases, and many instances are pending appeal. Both bankruptcy court Orders maintain this is not core subject matter, yet these cases must be heard and ruled upon somewhere.
B. To sum up the jurisdictional issue; Mealer presumes this court possesses knowledge and power to determine where this case belongs, keeping in mind this court originally concluded and ordered through 'denial without prejudice' that Mealer provide prima facie entitlement to relief which could only be obtained in civil court for the personal injury torts. Mealer timely filed such legal proceedings and awaits adjudication by due process. Mealer awaits instruction to have these personal injury tort claims to be heard in the district in which the claims arose. If Not for Debtor's
5. interference, Mealer would be manufacturing automobiles at full capacity.
III. PRELIMINARY STATEMENT (BACKGROUND OF MEALER CLAIMS)
1. Debtor's “apple bites scenario” aside, in May, 2009, the Mealer Companies LLC
Funding Proforma (Exhibit #7) was mailed via email and US Postal Service on CD ROM, in print or
PDF format, to various interested prospective investors, brokers, venture capitalist firms, trust funds,
State of Tennessee Department of Economic Development, Texas Department of Economic
Development, the Arizona Governor's Office, the White House, Senator John McCain, Senator Jon Kyl and to a variety of major automakers, including Ford, Chrysler, GM, Land Rover (Tata Motors), Toyota and others, just days following the new “mealercompanies.com” website being set-up which was a significant due diligence point and web presence for prospective advantageous persons and companies to garner funding and support for full funding. Mealer was also maintaining the prior Mealer
Companies' website of “betterconstructed.com”.
A. According to mealercompanies.com website's detailed statistical visitor counter
(statcounter.com), within 10 days of the proforma mailings, GM employees entered
MealerCompanies.com website, possibly for review. Within 30 days on June 9th, 2009, Mr. Kordella signed into the website by direct URL (not from outside links) under investor guru Blog name
“MONEY01” and published injurious falsehoods sent via RSS FEED and later via direct email messages from within GM offices via inner-corporate secured ISP equipment to Mealer's prospective advantageous parties. Please See Ex #1 “Amended Complaint” P.44 et al., Count II, P.66, App. I et seq.,
P.76, App. II et seq., referenced herein pursuant to “A.C.I.”, Rules 2 & 7.
B. The true Mealer Claim and precise circumstances of this extraordinary case as it has progressed or stalled are not for lack of cognizable theory or the Mealer's requirement to supply
'inferential allegations', but instead represents the actual orders, demands and actions placed upon this
Claimant by this Honorable Court, the Arizona District Bankruptcy Court and the Arizona District
6. Court all originating from the unlawful, injurious actions of the Debtors. Claimant Mealer holds liable the Debtors and other entities as detailed within the served Amended Complaint, for injurious falsehoods made on and following June 9th, 2009 by GM corporation employee, engineer “designated”
(Ex. #23) blogger Mr. Kris J. Kordella with other named/identified or unnamed GM, GMAC employees/agents who aided, abetted and participated -to have published these injurious falsehoods- portrayed as an investor 'blogger' before key investors under the moniker “MONEY01” on Mealer's
Prospective Funding for his automotive manufacturing business growth website, in a clearly anti- competitive manner.
2. Mealer was in discussion with several groups of parties of interest of prospective investors for $200 Million and multiple prospective public clients and dealers for 2000 pre-MFG sales to the tune of $30 Million. Common sense, past and current illegitimate business purpose anticompetitive conduct by the GM Family of companies, specifically GM provide a basis of plausible validity of Debtor's actions. Such entities supplied only upon Order of this court as Non-Disclosure
Agreements will be violated.
IV. DEBTOR'S LIABILITY IS CLEAR AND CONCISE
1. As discussed and detailed further and within the actual served Complaint. (Ex.#1).
A. Debtors are held liable whether through negligence and gross negligence, respondeat superior, vicarious liability because they failed to prevent Mr. Kordella's intentional conduct while at work and /or while outside of work using GM equipment under control of GM, because he was privileged, long time employee of GM and while hired, trained and retained as a servant for over 25 years. Further, the negligent entrustment which GM placed upon Mr. Kordella to uphold his highly skilled and corporately managed custody of proper work ethics while using GM computers at work and
ISP from home and GM did fail to exercise said control, and his tortfeasors did occur both within and
7. outside his scope of employment through GM's inner-corporate ISP either as gross negligence or possibly by complicity and conspiracy. Whether intentional or not, GM had the right to control and controlled and is vicariously liable for their employee, Mr. Kordella's injury to Mealer and Mealer's property,
B. GM did entrust the custody and control to their employee, Mr. Kordella, who while at work for GM was in possession of and utilizing GM owned computer equipment, and the GM assigned private Internet access and GM secured and private email and the GM assigned private IP address by and through GM inner-corporately shared ISP access wherein GM had the ability to control
Mr. Kordella's daily activity while he was at work on said equipment and GM did know of the necessity, and had an opportunity, for exercising such control to prevent Mr. Kordella from intentionally maliciously injuring Mealer as stated within the Served Complaint.
C. Mr. Kordella's privately controlled ISP with employer GM acting as “controlling person” designated and created MONEY01 blog and the follow up messages have clearly and undeniably caused harm to Mealer. Mr. Kordella, blogged as a “GM engineer” cleverly identified as
”MONEY01”' who by the very moniker is the No. 1 investor with GM's blog replies by email owned by GM passing through the inner-corporate GM-GMAC controlled private ISP which Mr, Kordella had secured controlled access to as a 'flexible duty' employee under the controlling guidelines and policies of GM. (See Ex. 20, 21, 22, 23) The comments proved operationally malicious, strategic placement of injurious falsehoods which clearly and effectively implied factual assertion of totally false comparisons which this claimant (automaker) was reliant that GM would not commit in what would have been competitive and rival companies, which resulted in loss of investment funds and prospective monies to be set-aside for prospective investor meetings, to the benefit of GM, GMAC and to the injury of Mealer and Mealer Companies LLC. A signed copy of Mr. Kordella's ISP User Agreement form and Employee
Handbook cannot be had under due diligence and requires subpoena for GM.
8. 2. GM is vicariously liable for both contributory and comparative unintentional torts and per se unlawful activity against Mealer because GM supplied the computer equipment, trained the employees and retained the right to exercise the control of said equipment and employees, and apparently failed to exercise said right to control. GM is required to supply "reasonable care under all of the circumstances of the particular case" which is a predicated issue, flexible enough to apply to diverse circumstances.
3. Clearly, any discussion of good faith, negligence, or a duty to supervise is irrelevant. As one of the major treatises on the subject recognizes: Vicarious liability ... is imposed ... in cases where the master has taken all the steps that reasonable foresight would suggest, including those which involve the exercise of control. Indeed, the court is not even interested in hearing whether the master exercised his right of control well and prudent.
4. The mere fact that GM had considered that an employee may inadvertently iterate or comment on social media and whether or not such employee may or may not be designated by GM to speak on behalf of GM provides ample evidence that GM was the controlling person and owed a duty to Mealer and the public to behave as any reasonable person would under the circumstances and GM's choice and/or policy to to do nothing to stem the risk of any foreseeable risk of harm and the damages it will actually cause to others and an option (request and plea) to take alternative action (Ex. #11) to avoid such acts, violates such “reasonable person” and caused inadvertent injury to Mealer which was necessary to the general welfare of the public, including Mealer Companies' engineers and development team (See Ex. #7, P. 35 et al) has become no less than a series of intentional acts . GM further acted negligent per se by refusing to remove or have removed the postings after the fact.
V. THE INTERNET POSTINGS
1. Mealer's Amended Complaint (Ex.#1) details the strategically placed, GM created
“MONEY01” blog on Mealer's funding website 'per quod to per se' meanings of the injurious
9. falsehoods which Mr. Kordella (GM) maliciously stated in front of Mealer's prospective investors and clients is clear and evident throughout the Amended Complaint and specifically P. 66, Appendix I, and
P.78, Appendix II specifically beginning on P. 83, ¶128, through ¶128L. The effect of the MONEY01 blog was instrumental in preventing Mealer Companies and the Mealer Automobile and Mealer himself from gaining growth funds and becoming rival with Debtor GM.
Mealer's application of any attempt to qualm the already destructive RSS FEED delivered injurious falsehoods was to prevent further damage and to stem the financial, emotional and pecuniary damage that GM had just caused to him.
2. After days of Claimant demanding Mr. Kordella publicly apologize and have his superior issue a public apology as well including a retraction, Mr. Kordella offered a private insolent apology which Mealer then posted on his own in an attempt to save face and stem the future damages of the giant GM's lowly opinion of a new US Automaker who had just lost his prospective funds, reputation and ability to gain substantive automotive related work. Mealer's reply [to his self-posted on the MONEY01 blog entitled “TO JL, What a funny guy” of Mr. Kordella's private apology cliché] to
“....mend fences...” and “...good to go...” are examples of the “patchwork created by Mealer to attempt to save face”. It did not work as far as the prospective investors and clients are concerned.
A. Further examples of Mealer's August 22, 2009 attempts at “damage control” to portray that his business had not been destroyed and funding halted due to Mr. Kordella's RSS FEED sent injurious falsehoods have been included in Debtor's Exhibits Ex. B at 3, Id at 4, and are no more than what had been planned updates to help gather interest in the Mealer Automobile and Mealer
Companies products. Including Mealer's hope to rekindle the old prospective interest by claiming we were under negotiations (and trying to avoid explaining GM's attack): (Debtors Ex. C at 2)
It appears that we are under negotiations for funding and if all goes well, you will see out Bridge Vehicle hitting the market in the next 18 months. 10. B. On October 24, 2009, Mealer made further attempts to ease critically timed,June
9, 2009 interference of business progress and his blackened reputation instigated by GM's Mr.
Kordella's blog by instead predicting rapid developments in Mealer Co's. business:
The October Stretch October 2009 in regards to Mealer Companies brings us to a point where we hope to be moving into our initial corporate offices this winter as we expect to begin making major advances to bringing our product to manufacturing and to market by fall 2010. These are exciting times and I hope you will follow our progress. As we move our many engineers, techs and development personnel into the area, the enthusiasm will lead to constant updates and they should keep you up to speed. [sic JL Mealer] C. Finally, on January 1, 2010, Mealer applying even more damage control updated the remnants of his prospects and interested parties that the new year might be better than the previous year where GM acted maliciously to destroy his prospective advantages. Of course Debtors have again misquoted and taken out of context the website statements of Mealer.
Mealer Companies LLC has a quite a bit going for the company this year. Funding just around the corner and a wide open world to help heal. The MEALER products are not the issue and manufacturing along with product sales are not going to be a problem… It’s the red tape and road blocks that may be put down by the power brokers and greedy outsiders. When reality comes around, we know that nothing will stand in our way.
“Heal” meaning creating a sliver of real hope for new jobs and new found wealth for those of us who are struggling through a bad past year. Mealer Companies is just the tip of the iceberg on a new stretch of American Entrepreneurs. In fact the entire global world of private and individual businesses is about to rally around and create the jobs that not only the USA needs, but the world’s populous demands. No one who is worth anything wants to stay on welfare or take a free ride through life. It’s all about the job, career and lifestyles that we choose for ourselves and for our families.
I expect to have a few new prototype sketches of the MEALER on this Word Press site within the next 45-60 days.
JL Mealer
3. Mealer realizes that GM will not recant or relent in their attack and seeks relief for Mr. Kordella's (GM) injurious falsehood comments
4. Mr. Kordella whether designated by GM or by his own volition did intentionally and
11. negligently publish a series of injurious falsehoods and direct emails disparaging the quality of
Mealer's property which resulted in pecuniary loss and the publications of matter were in fact derogatory to Mealer's business, all of which were calculated to prevent others from dealing with him.
As evidenced in the Complaint Ex. #1, the details of Intentional Interference WPA prove true through
GM's tortfeasor. When facts are disputed, the employee relationship is a question of fact for the jury rather than an issue of law for the court. The court may decide the issue of “who had the control or right of control at the time ….[of the incident]” only if the evidence is “clear and uncontradicted.”
Mealer believes the evidence that [GM] had the control and right of control of [sic] actions at the time he used GM equipment while at work to cause injury. Indeed, GM had exclusive right to control the work activities at all GM owned offices and engineering locations because GM superiors supervised all of the employees daily work activities, including where, when, and how to work and what they are allowed to suggest in a personal manner or as designated by GM “on a blog”. (See Exhibit #23.)
A. The comments which were made on Mealer's business and prospective funding website under the guise of Mr. Kordella and other contributing GM employees (Ref. Ex. #1) while signed on as “MONEY01” and then again as he professed to be “A real engineer of real automobiles” with a returning email address that belongs to GM and assigned to GM employee(s)
“[email protected]” (Ex.#24) through GM jointly-owned IP address 198.208.251.24 from his
GM office in or near Bloomfield Hills, MI.
Clarification of ability to control and right, necessity and opportunity for exercising that conduct and control exists with GM who trained employee Mr. Kordella in professional conduct and has had control over such conduct for tortious, criminal activity within the scope of his employment while using GM supplied, monitored and personalized GM equipment is evidenced by GM's Social
Media Policies. (Ex. #23).
12. B. Normally a blog posting is merely a private made public opinion, HOWEVER, this case is extraordinary as the improper motive and means by which GM did actively (or possibly negligently) by and through their 25 year veteran -who was designated and connected to other designated GM bloggers- lead engineer Mr. Kordella's knowing he was blocking existing “business expectancy” investment funds did intentionally publish unlawful injurious falsehoods and misrepresentations of Mealer's business, knowledge, trustworthiness and personality, via a series of strategically worded, malicious injurious falsehoods, placed directly in front of Mealer's prospective investors and clients. Said comments were immediately sent via RSS FEED to prospects signed up to receive website updates and instantly interfered with tentative and not always serious investors but
'prospective investors' none-the-less. Whether considered “serious investors and clients” or “timid investors and clients” or “hesitant investors and clients” they were “prospective investors” prior to
GM's injurious falsehood MONEY01 blog. CLEARLY, the prospective growth funding and pre-MFG
Mealer Automobile sales were destroyed by Mr. Kordella's intentional posting of injurious falsehoods , slander of title and trade libel on June 9th, 2009. This cost Mealer $430 Million in prospective funds and pre-mfg vehicle sales.
C. Further, Mealer has provided the documentary evidence proving the existence of a valid business expectancy (Ex. #7); Mr. Kordella's and GM's knowledge of this funding expectation is proven by his repeated visits to “http://mealercompanies.com/?page_id=2”, (See Ex. #1, p.70,
¶113b1 and Ex. #8 and Ex. #9); the existence of defamatory injurious falsehood styled comments made by Mr. Kordella acting under GM capacity portraying themselves as lead investor “MONEY01” including a series of follow-up and further injurious falsehoods through direct emails to prospects of
Mealer, which did result in irreparable damage proving tortious as defamation and trade libel berating the Mealer Automobile are wrongful and fraudulent and intended to dissuade Mealer's prospects whomever they may have been.
13. D. Indeed, Mealer has left the GM employee created “MONEY01” blogging account [containing injurious falsehood comments] on the company website for over 180 days and this was allowed for several reasons (See Exhibit #18) including;
1). Mealer expected GM in any form whether MLC, or the new
GM (GM LLC) or the latest GM Company to offer a public corporate apology so
that Mealer may try to “win back” his lost prospective investors and clients;
2). Mealer felt that altering the website comments and blogs was
dishonest to those following the progress of the prospective growth funding;
3). Mealer was attempting to use the attention (as bad as it was/is) of
the corporate giant GM to inspire others to potentially “invest in the underdog;”
4). Mealer hopes that through the history of GM's anti-competitive
behavior against other automakers, inventors and suppliers, that this GM attack on Mealer
might prove beneficial to Mealer rather than a crushing antitrust issue.
5). It is simply not Mealer's responsibility nor his authority to remove
another person's injurious falsehoods without the requested corporate parties
permission, public apology and retraction. No officer or superior to Mr. Kordella
from any GM party has responded to multiple requests to have these issues
resolved.
6). Following the blog space created as “MONEY01” Mr. Kordella followed up by sending direct emails containing additional injurious falsehoods to a variety of Mealer's prospective investors, clients and interested parties and the initial posting became somewhat shadowed by the direct assault, including multiple threatening emails to Mealer. And those emails cannot be remedied.
7). The publication of injurious falsehoods by GM prove to be evidence for
14. the unlawful actions by GM and the associated defendants IF such a lawsuit were to result had GM and the parties NOT offered the public, corporate apology as originally requested by Mealer.
Mealer routinely mailed copies of multiple letters to the Honorable Robert E. Gerber in order to keep the court up to date on the April 14, 2010 Order to show a prima facie entitlement to relief wherein, Mealer requested that GM, et al., remove by 'request to have removed' through their CEO authority the blog and to publicly apologize for said injurious falsehoods.
5. Mr. Kordella has never offered a public apology to Mealer nor has Mealer accepted any public [or private] apology from Mr. Kordella for the initial, immediate effect of the injurious falsehood postings, nor has GM publicly and corporately apologized for their gross negligence, negligent and/or injurious falsehood related activity.
A. Debtor has erred in their summary of the doctrine of accord and satisfaction, and has erroneously concluded that any private or public apology could meet such an accord or satisfaction.
IN FACT, an accord and satisfaction “is a method of discharging a contract or cause of action whereby the new agreement, or accord, is substituted for the old and the performance of the accord is the satisfaction.” This has never been the case and cannot possibly become the solution in this personal injury matter for either GM or GMAC (Ex. #10, P.4-5 citing P.16 ) Solar-West. Inc. v. Falk, 687 P.2d
939-45 )Ariz. Ct. App. 1984)).
B. Mealer did not ask for, nor provoke debtors for this injurious attack at any time during their once-active business and Mealer's once-active business. Debtors, while converting to a new improved version of their failed business appear to have decided that a new US automaker might too easily grab a very small portion of their sales market and then worked to destroy the man (Mealer) and his automobile (the Mealer Automobile).
C. Mealer wishes to make it clear to this court, he understands that other creditors are also important and although the intentional tortious actions and injurious falsehoods caused
15. extensive, provable irreparable damages to Mealer and his business, Mealer is willing to accept the originally demanded/requested “GM Family's, (Specifically GMC n/k/a MLC and GM LLC, new
GMCo and GMAC) “Public Corporate Apology” and the requests made for their tortious activity and whatever pecuniary damages this court feels is reasonable for the trade libel and defamation they have caused, plus any other GM, MLC damages. (Ex. #11).
Accordingly, the Mealer Claim should NOT be denied and must be heard in it's entirety.
VI. BACKGROUND
1. These Chapter 11 Cases
To the best of Mealer's knowledge Debtor's Ch. 11 dates are correct.
2. The Internet Postings (See Complaint Exhibit #1, Viz court authority per A.C.I.)
VII EXCEPTIONS TO Debtor(s) MLC, NGMCO (“GM”) BANKRUPTCY PROTECTION
1. On July 10, 2009, on suggestion of the president, directed by executive GM officers, the board and the general anticipation of the torts used against Mealer, to regain market control, the
Debtors depended on the elimination of personal injury torts by consummating the sale of substantially all of their assets to NGMCO, Inc. (which is the reformed GM, a/k/a General Motors LLC, k/n/a
General Motors Company “GMC”), a United States Treasury-sponsored purchaser, pursuant to section
363 of the bankruptcy Code and certain Amended and Restated Master Sale Agreement (“MSPA”).
See Sections 3, 4, 5 noted herein on P. 16, clearly stating MLC and purchaser GM LLC (NGMCO) are not immune to and must be in compliance with applicability to any Antitrust Laws. Further Pursuant to
“Section 4.3 Noncontravention; Consents.
(b) Subject to the entry and effectiveness of the Sale Approval Order, no consent, waiver, approval, Order, Permit, qualification or authorization of, or declaration or filing with, or notification to, any Person or Governmental Authority (other than the Bankruptcy Court) is required by any Seller …. of the transactions contemplated by this Agreement or by the Ancillary Agreements to which such Seller is a party or the compliance by such Seller with any of the provisions hereof or thereof, except for (i) compliance with the applicable requirements of any Antitrust Laws... 16. AND “Section 5.2 Authorization; Enforceability. (b) No consent, waiver, approval, Order, Permit or authorization of, or declaration or filing with, or notification to, any Person or Governmental Authority is required by Purchaser for the consummation by Purchaser of the transactions contemplated by this Agreement or the Ancillary Agreements to which it is a party or the compliance by Purchaser with any of the provisions hereof or thereof, except for (i) compliance with the applicable requirements of any Antitrust Laws... “
AND note that Section 5.2 was REPLACED on July 5th, 2009 in the Second Amended Restated Master sale and Purchase Agreement (herein “MSPA2”)
“Section 5.2 Authorization; Enforceability. “MSPA2” (b) This Agreement constitutes, and each of the Ancillary Agreements to which Purchaser is a party, when duly executed and delivered by Purchaser, shall constitute, a valid and legally binding obligation of Purchaser (assuming that this Agreement and such Ancillary Agreements constitute valid and legally binding obligations of each Seller that is a party thereto and the other applicable parties thereto), enforceable against Purchaser in accordance with its respective terms and conditions, except as may be limited by applicable bankruptcy....fraudulent transfer and other similar Laws relating to or affecting …. in effect …. by general equitable principles relating to enforceability, including principles of commercial reasonableness, good faith and fair dealing.”
AND the EXECUTION COPY reverted;
“Section 5.2; (b) No consent, waiver, approval, Order, Permit or authorization of, or declaration or filing with, or notification to, any Person or Governmental Authority is required by Purchaser for the consummation by Purchaser of the transactions contemplated by this Agreement or the Ancillary Agreements to which it is a party or the compliance by Purchaser with any of the provisions hereof or thereof, except for (I) compliance with the applicable requirements of any Antitrust Laws....”
AND pursuant to Parent SEC agreements and related notes:
Section 4.5 Reports and Financial Statements; Internal Controls. (b) (i) The consolidated financial statements of Parent included in the Parent SEC Documents (including all related notes and schedules, where applicable) fairly present or will fairly present in all material respects the consolidated financial position of Parent and its consolidated Subsidiaries, ….subject, in the case of Parent SEC Documents filed or furnished during the period beginning on the date of the Original Agreement and ending on the Closing Date, to any modification by Parent of its reporting obligations under Section 12 or Section 15(d) of the Exchange Act as a result of the filing of the Bankruptcy Cases.
17. AND; pursuant to the Second Amended to Amended Restated “MSPA”, dated July 5th, 2009, entered
July 10, 2009, which clearly states the permitted encumbrances outlined within the Honorable Gerber's
MLC Bankruptcy Chapter 11, 363 Order;
“...(x) except to the extent otherwise agreed to in the Ratification Agreement entered into by Sellers and GMAC on June 1, 2009 and approved by the Bankruptcy Court on the date thereof or any other written agreement between GMAC or any of its Subsidiaries and any Seller, all Claims (in each case solely to the extent such Claims constitute Encumbrances) and Encumbrances in favor of GMAC or any of its Subsidiaries in, upon or with respect to any property of Sellers or in which Sellers have an interest, including any of the following: (2) owned or leased equipment;(4)...inventory, equipment, ; it being understood that nothing in this clause (xi) or preceding clause (x) shall be deemed to modify, amend or otherwise change any agreement as between GMAC or any of its Subsidiaries and any Seller....”
This clause et seq is especially critical as the GMC-20 ISP device was/is registered at and stored within the GMAC headquarters at 200 Renaissance Center, Detroit, MI.
2. Permitted Encumbrances: GM by and through engineer Mr. Kordella have created a series of “...permitted encumbrances... arising by operation of law or statute....” [IE. Defamation,
Trade Libel and Antitrust Law and other tortfeasors per statutes] “...that are being contested in good faith by appropriate proceedings....” [IE. Case No. 3:10-cv-08172-JWS US District Court of Arizona].
In addition, the 363 order further states that neither MLC nor the new GM are subject to all terms, conditions and limitations, including certain personal injury torts and any antitrust related claims which may occur at any time during the bankruptcy or had been referenced to in the various versions or amendments of the final MSPA whether prior to, during or after the 363 Order and the complete settlement of all issues related to the GM bankruptcy.
Section 3. Effectiveness of Amendment. Upon the execution and delivery hereof, the Purchase Agreement shall thereupon be deemed to be amended and restated as set forth in Section 2 , as fully and with the same effect as if such amendments and restatements were originally set forth in the Purchase Agreement. Section 4. Ratification of Purchase Agreement; Incorporation by Reference. Except as specifically provided for in this Amendment, the Purchase Agreement is hereby confirmed and ratified in all respects and shall be and remain in full force and effect in accordance with its terms. This Amendment is subject to all of the terms, conditions and limitations set forth in 18. the Purchase Agreement, including Article IX thereof, which sections are hereby incorporated into this Amendment, mutatis mutandis, as if they were set forth in their entirety herein. Section 5. Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, and all of which taken together shall constitute one and the same agreement. All signatures of the Parties may be transmitted by facsimile or electronic delivery, and each such facsimile signature or electronic delivery signature (including a pdf signature) will, for all purposes, be deemed to be the original signature of the Party whose signature it reproduces and be binding upon such Party.
Motor Liquidation Company (“MLC”) and honorable Robert E Gerber of the New York
Southern District Bankruptcy Court remanded the changes to the June 1st, 2009, June 26th, 2009 & July
5th, 2009 agreements to apply as follows within the bankruptcy-reorganization 363 Order:
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTICT OF NEW YORK In re: Chapter 11 Case No. 09-50026 (REG) GENERAL MOTORS CORP., et al As taken from the 363 Order by Honorable Robert E Gerber:
Upon the motion, dated June 1, 2009 (the “Motion”), of General Motors Corporation (“GM”) and its affiliated debtors, as debtors in possession (collectively, the “Debtors”), pursuant to sections 105, 363, and 365 of title 11, United States Code (the “Bankruptcy Code”) and Rules 2002, 6004, and 6006 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”) for, among other things, entry of an order authorizing and approving (A) that certain Amended and Restated Master Sale and Purchase Agreement, dated as of June 26, 2009, by and among GM and its Debtor subsidiaries (collectively, the “Sellers”) and NGMCO, Inc., as successor in interest to Vehicle Acquisition Holdings LLC (the “Purchaser”),a purchaser sponsored by the United States Department of the Treasury (the “U.S. Treasury”),together with all related documents and agreements as well as all exhibits, schedules, and addenda thereto (as amended, the “MPA”), a copy of which is annexed hereto as Exhibit “A” (excluding the exhibits and schedules thereto); (B) the sale of the Purchased Assets 1 to the Purchaser free and clear of liens, claims, encumbrances, and interests (other than Permitted Encumbrances) 2, including rights or claims based on any successor or transferee liability; (C) the assumption and assignment of the Assumable Executory Contracts; (D) the establishment of certain Cure Amounts; and (E) the UAW Retiree Settlement Agreement (as defined below);
1 Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in the Motion or the MSPA.
2"Permitted Encumbrances" means all (I) purchase money security interests arising in the Ordinary Course of Business; (ii) security interests relating to progress payments created or arising pursuant to government Contracts in the Ordinary Course of Business; (iii) security interests relating to vendor tooling arising in the Ordinary Course of 19. Business; (iv) Encumbrances that have been or may be created by or with the written consent of Purchaser; (v) mechanic's, materialmen's, laborer's, workmen's, repairmen's, carrier's liens and other similar Encumbrances arising by operation of law or statute in the Ordinary Course of Business for amounts that are not delinquent or that are being contested in good faith by appropriate proceedings;
Plaintiff understands the preceding references noted as superscript (“1, 2”) to clearly define the unusual antitrust related personal injury tort claims which are, through the 363 Order, considered to be
“...similar encumbrances...” and “...permitted encumbrances...arising by operation of law or statute....” “...that are being contested in good faith by appropriate proceedings....” by both this instant
Administrative Claim and within the Arizona District Court. The final “MSPA” at sections 4.3(b) and
5.3(b)(i) unequivocally state, pursuant the 363 Order, there shall be no consent, waiver, approval,
Order, Permit or other compliance requirement(s) to transfer assets “... except for (I) compliance with the applicable requirements of any Antitrust Laws....” and as clarified in “MSPA2”(b) except as may be limited by applicable bankruptcy....fraudulent transfer and other similar Laws relating to or affecting
…. in effect …. by general equitable principles relating to enforceability, including principles of commercial reasonableness, good faith and fair dealing.”
The following context relating to exceptions for assumed liabilities as any expressly permitted or specific provisions of antitrust issues of the 363 order is quite clear;
At 48; “Except for the Assumed Liabilities, or as expressly permitted or otherwise specifically provided for in the MPA or this Order, the Purchaser shall have no liability or responsibility for any liability or other obligation of the Sellers arising under or related to the Purchased Assets.”
CLEARLY, the exception of antitrust issues which are expressly permitted as encumbrances and otherwise specifically provided for in both the 363 order and the MSPA. Mealer has plead quite clearly the antitrust and permitted personal injury tort claims and has done so pursuant Federal Rules of Civil
Procedure. In reference to the authority of this “permitted encumbrance” claim and antitrust issue,
20. pursuant paragraph 71 of this Court's July 5, 2009 Order which causes this court to “retain exclusive jurisdiction” Mealer expresses concern over the pending cases in the District of Arizona and the influence each Claim and Complaint might have on the public's interest and rather than argue the jurisdictional issue, hereby places the selection of venue bringing to light the last sentence of ¶ 71 and it's relevance to this instant claim/case where it states;
“This court does not retain jurisdiction to hear disputes in connection with the application of the Participation Agreements, stockholder agreements or other documents concerning the governance of the Purchaser, …. which disputes shall be adjudicated as necessary under applicable law in any other court or administrative agency of competent jurisdiction”.
Simply, if the Honorable Robert E Gerber decides to hear this case when a final ruling may be justified upon the merits rather than denial of claims, Mealer agrees with his decision.
B. MEALER'S FIRST FILING IN THIS CHAPTER 11 CASE.
1). Mealer, dealing with intervening circumstances beyond his control, realized the damages were so deep and far reaching and that GM would not do the right thing and offer an apology, so he was forced to resort to “protective and defensive” protection, officially requesting this Court
Approve Procedures for Administering Claims Under Bankruptcy Code Section 503(a)(1)(A),(3)(4)(A)
(C). On 4/14/2010, this Court denied the Administrative Claims Motion, which granted and Ordered
Mealer to proceed in a civil suit so as to provide “prima facie entitlement to relief.” (Ex. #5). Pursuant this Court, this case has progressed.
2). The obvious factor involving the six month period keeping Mealer from pursuing any legal remedy relates to the fact, that Mealer believed a miracle could happen and he would have been graced with funding regardless of the blackened name and trade libel by GM. Furthermore, enough time had passed that Mealer realized his prospects from the summer of 2009 had moved on after the GM assault. Mr. Kordella and GM made certain that Mealer's funding would never happen
21. and after six months of Mealer's pleas and requests with GM / GMAC, he realized they were never going to be responded to. With no other recourse, the Administering Claims Action was forced upon him.
C. MEALER'S ADVERSARY PROCEEDING
1). On October 4, 2009, Mealer having no response from GM, GMAC or Mr.
Kordella regarding a public apology and retraction and while attempting to compile personal funds to file the civil suit (as ordered in N.Y.S.D. to provide prima facie entitlement to relief), was forced to file his personal Ch 7 petition, Case No. 09-24899, (fees donated by an associate) due to the financial results of the injurious falsehoods which destroyed Mealers prospective growth funding on June 9,
2009, and blackened his name for other automotive-related jobs.
2). On March 30, 2010, Mealer filed a “protective and defensive” Adversary Claim
(No. 10-00503) which was Mealer's attempt to outline the GM and GMAC Group's use of tortfeasors to control his livelihood and ultimately cause default in Mealer's mortgage payments as any pending foreclosure was placed on automatic stay. Viz 28 U.S.C. §§ 157(b)(2)(B) and 157(b)(5), which “strictly limit the authority of bankruptcy judges with respect to personal injury ….claims” and Fed. R. Civ. P.
Rule 41(a)(2) which allow for involuntary dismissals, the Ariz. Dist. Bankruptcy Court Judge the
Honorable Redfield T. Baum dismissed GM and MLC “without leave to amend” without reference to
Rule 8(a) and as such, “without prejudice” and directed Mealer to replead in civil court much like the
Honorable Robert E Gerber ordered on April 14, 2010 for prima facie relief.
3). Mealer did not violate an Automatic Stay of the Debtor's chapter 11 reorganization, nor did Mealer lack standing to proceed viz judicial order noted herein and referenced in Exh #5 and referenced in Debtor's Exh “I” pgs, 7, 8, 9, 10 stating that civil claims are not to be heard
22. in a bankruptcy court and that as such, the “injunction and retention of jurisdiction therein” would not grant jurisdiction to the Ariz. Dist. Bk Court, nor to Mealer's claims in that forum. Which reverted back to the Hon. Robert E. Gerber's Order and Motion to Deny without prejudice... pending Mealer's prerequisite for prima facie relief for his 503(a)(b)(1)(A),(3)(A)(B)(C) [initially, mistakenly quoted via pro se error as “503(a)(1)(A),(3)(A)(3)”] ...tardily file[d] claims... (b) after notice and a hearing... (1)
(A) ….actual necessary costs and expenses to preserve the estate... (3) expenses other than compensation and reimbursement... WHEREBY, (A) a creditor who files a petition under section
303....(B)….a creditor recovers after court's approval...(C)….in connection with the prosecution of a criminal offense relating to the case or to the business or property of the debtor. Viz 348(d)…for a claim against the debtor that arises after the order for relief but before the conversion in a case...Mealer reasons viz 11 USC 523(a)(6) …. for the willful and malicious injury by the debtor to another entity ….
a). The GM Corp reorganization through MLC to NGMCO and finally to
GM LLC and GMCo, does not offer antitrust immunity under context of any Antitrust Laws as specified under labor unions, major league football and baseball or interstate carriers, nor under the insurance companies provision, nor free press as a newspaper company.
b). IN FACT, as matter of law through direct Congressional Action, neither the Debtors, nor NGMCO, GM LLC, GM Company have any protection what-so-ever from the wide range of Antitrust and/or Anticompetitive illegitimate business purpose violations. Mealer believes that because Debtors and associated companies noted herein, maliciously violated Mealer's privacy, published defamation of character through injurious falsehoods,created trade libel which caused immediate, irreparable harm as it was sent to prospective advantageous parties via RSS FEED, the unlawful actions caused violations of a variety Anticompetitive laws (Antitrust Laws) because it
23. prevented the public from accessing the interstate sales upon full-scheduled manufacture of Mealer products, Mealer Automobile, whereby the personal injury tort was converted to criminal activity against society.
c). Furthermore, because Debtors and other defendants in the ordered civil case have not responded to Mealer's requests and pleas (as noted herein) to put an end to the continued damages, their potential defense of “negligence” cannot be allowed from this point forward, because debtors and related parties are maintaining their untrue, blackening statements and by not recanting the injurious falsehoods thus, are without recourse by acting with reckless disregard of whether the comments are false or not. Because the forum presentation of these injurious falsehoods was published before Mealer's prospects and including Mr. Kordella's follow-up, direct injurious falsehood emails which are not “fair comment and criticism”, nor are they “ridiculous” when used in this prospective funding assemblage and context. As such, Debtors, et al are assuming strict liability. The Law does not provide protection for Debtors and related parties who share ownership of the ISP used to blog against
Mealer on his privately owned company growth funding website because they are not the provider, but the actual “information content provider” and contributory publisher while also housing and protecting the Internet Service Provider.
4). The wording of the 363 Order was specifically and dynamically worded so as to not circumvent Antitrust Law or Anticompetitive behavior, and the Honorable Judge Gerber (N.Y.S.D.) would never intend to release either MLC or NGMCO, GM LLC from antitrust issues such as Mealer v
GM, GMAC, et al., as that would result in a gross miscarriage of justice and prevent due process while causing severe harm to the public and would violate criminal law. Furthermore, clarification of
NGMCO (k/n/a, GM LLC and GM Company) liability as “Purchaser” in the “MSPA” preamble which was drafted by this honorable court and is clearly on record.
24. 5). On June 2, 2010, the Ariz. Dist. Bk. Court Honorable Redfield T. Baum made it clear that personal injury tort claims could not be heard in the Ariz. Dist. Bk Ct. with the stay in effect in the N.Y.S.D. Bk. Ct. regarding Mealer's MLC and GM LLC claims. Judge Honorable Baum ordered
Mealer to a civil forum prior to dismissing the case “without leave to amend”, viz 28 U.S.C. §§ 157(b)
(2)(B) and 157(b)(5), which “strictly limit the authority of bankruptcy judges with respect to personal injury ….claims” and Fed. R. Civ. P. Rule 41(a)(2) which allow for involuntary dismissals, without reference to Rule 8(a) and as such, “without prejudice” and directed Mealer to replead in civil court much like the Honorable Robert E Gerber ordered on April 14, 2010 for prima facie relief,which allowed for redress in a separate civil forum or as detailed by Hon Judge Baum's reference to “ …. and the injunctions or retention of jurisdiction provisions therein.” (Debtor's Ex. I: 9:23-10:1). Mealer understands (again) this dismissal to revert to the Honorable Robert E. Gerber's April 14, 2010;
“Endorsed Order: Motion Denied without prejudice, for failure to show a prima facie entitlement to relief. S/REG USB” [Re: N.Y.S.D. Case No. 09-50026 (See Ex. #5)].
D. Mealer's Lawsuit in Arizona State Court and Arizona District Court
1). While multiple bankruptcy cases and complaints covering tort issues were concurrently underway;
a). On April 14, 2010 the Honorable Robert E Gerber, by order, sent Mealer to show prima facie evidence entitlement to relief. (Ex. #6)
b). On June 2, 2010, the Honorable Redfield T. Baum, by order, sent Mealer to civil court for his civil issues and remanded all other Debtor matters back to the N.Y.S.D. Forum. (Debtor's Ex. “I” p.6:21-25 and p.7:22-24 and p.9:23-25, p.10:1)
c). On June 8, 2010, Mealer parked a complaint in Arizona State Superior
County Court case No. 10-00316 (“State Court Action”) and completed an amended complaint and
25. properly served said Complaint (Ex. #1) and on August 10, 2010, concurrently and properly on all parties including MLC (Ex. #2). Mealer served pursuant Fed R. Civ. P. 4(h), under that Rule, “a domestic... corporation... or other unincorporated association... must be served... by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized... by law to receive service of process.” And specifically, viz Ariz. R. Civ. P 4.2(h) providing That [i]n case of a corporation or partnership or an unincorporated association located outside [Arizona] but within the United States... service... shall be made on one of the persons specified in Rule 4.1(k), which mirrors Fed. R. 4(h) and specifies that service can be made on “a partner, an officer, managing or general agent, or to any other agent authorized by appointment or by law to receive service of process.”
2). Mealer complied with the letter of Rule 4.2(c) in attempting to serve MLC.
Service was made to c/o Albert Koch (the acting CFO, CEO at the time) at 500 Renaissance Center, Ste
1400, Detroit, Michigan 48265, Certified Mail-Return Receipt No. 7009 2820 0000 9062 9488 and service was accepted on August 18th, 2010 at 7:17 by “Firm Book” method Recipient: “T. Keys” after being routed to the 400 Ren Cen mail center “Firm Name: REN CEN 48243.” (See Ex. #2, Pg. 13).
The certified mailing was signed by T. Keys who had the authority to “accept restricted delivery mail on [MLC's and Koch's] behalf”. “[i]n determining the validity of service in the state court prior to removal, a federal court must apply the law of the state under which the service was made.”
3). Debtors have provided this court with an improper and never served document as their Exhibit “K.” Whereas, the properly served Complaint against 15 defendants, alleges 21 Causes of action against “GMACM” (GMAC Mort. LLC, GMAC Financial Svcs., Residential Capital LLC), for mortgage related violations (all 21 have been dismissed in Mealer's Ch. 7 Bk., due to the “inartful pleadings” of this pro se litigant violating Rule 8(a), yet with prejudice), AND 11 Causes of action
26. remaining against “GMACM,” GM LLC (pending appeal, See Ex. #6 ), and the same 11 Causes of actions being held against Debtors, and at least 2 Causes of action for negligence against CEO's; David
Applegate, Michael Carpenter, Thomas Marano and Edward Whitacre, Jr. The Four Causes of action against the Department of the United States Treasury have been 'voluntarily' dismissed.
4). On June 15, 2010, General Motors LLC filed a motion to dismiss the District
Court Action on grounds that have been proven opposite of the GM LLC claim and the District Court's ruling, which is awaiting the time for appeal. (See Ex. #6)
5). Mr. Kordella's motion to dismiss is also awaiting appeal per court order (Ex
#6). Furthermore, observations of District Court notwithstanding pending appeal as the appeal has yet to detail much of what has been detailed herein regarding “prospective” rather than “serious” investors and as proven by case law specifically referenced for P. 14 herein.
E. MEALER'S ADMINISTRATIVE PROOF OF CLAIM , “APC”
1). On February 5, 2011, Mealer filed the Administrative Proof of Claim (herein
“APC”) (Debtor's Ex. “A”) which clearly defines multiple claims against Debtors including [gross] negligence, viz Section 7 “A.C.I.” referring to additional paperwork (ie. the Served Complaint (Ex.
#1)), as previously directed in court orders by the Honorable Redfield T. Baum (Ex. #6 and See
Debtor's Ex “I” p.6:21-25, p.7:22-24, p.9:23-25, p.10:1) and the Honorable Robert E. Gerber (Ex.
#5) allowing for new administrative based claims, civil complaints and future appeals granted to this
Creditor, and other tardily filing Creditors.
2). Mealer clearly “APC” references the only filed and served by summons August
10, 2010 amended complaint which details all allegations, Incl: “injurious falsehood quotes” from Mr.
27. Kordella (while at work for GM and for the benefit of GM and his fellow employees) as long term benefits to regain market control were oddly suggested by President Obama, directed by and through
GM's Edward Montgomery and GM superiors to enhance GM's survival through these procedures. (Ex.
#14 :P.3¶¶1,4, P.4¶4, P.5:¶¶1,2 P.6:¶2,3 and Ex. #16:¶2). The obvious effect of such a plan, even rooted in bankruptcy protection, inspired by the government and acted upon by the failed company
(GM), was injury to Mealer's customers and prospective employees (See Ex.#1, Development Team,
P.36), was sufficiently substantial as it caused small harm on a large class of people. Mealer being the main injured party must file this section 5 claim against GM and GMAC for unlawful control of this claimant's business through GM, GMAC employees and agents.
a). GM is vicariously liable because GM employees including Mr. Kordella, complied with the business needs of their employer, specifically to promote like-styled vehicles such as the Chevy Volt (Ex. #15) while downplaying competition by uplifting GM (Ex. #14) and upgrading employee benefits (Ex. #16). The mens rea requirement for accomplice liability is satisfied because, analogous to requiring that the accomplice intend to promote or facilitate the act underlying the offense, whether unintentional or intentional.
b). Through a series of letters and phone calls from Mealer, GM was aware of the unfair, deceptive acts and practices they were in control of remedying with a simple public retraction, apology they could have satisfied the second part of the complaint relating to what amounts to a wide range of normally indistinguishable antitrust violations. GM refused to act or respond and have assumed liability through complicity.
VII. ARGUMENT
1. Debtors Must Be Held Liable for Mr. Kordella's Actions;
28. A. Mealer asserts (See Ex. #1, viz A.P.C. And this court's authority to provide #7
Supporting Documents after #5 Brief Description) Debtors are liable for all allegations stated in Ex. #1, under a theory of respondeat superior, [vicarious liability] and negligent entrustment, negligence in exercising control retained by employer, gross negligence, recklessness and/or for complicity and conspiracy under accomplice liability. These allegations viz the August 10, 2010 served Complaint by
GM through Mr. Kordella, in response to Mealer stating on automotivenews.com that the huge burden of “UAW demands have crushed GM and other US automakers,” and by re-quoting -then pending-
GM CEO, Mr. Whitacre's statements of June 9, 2009 and making personal views about the UAW burden causing the downfall of the Big Three. (Ex.#1,P.3¶, 8b,P.69-70, ¶¶70b,c, P.46¶83b, P.54¶99b,
P.67 ¶¶¶¶ 112a,b,c,d, P.68¶113, P.74¶113g)
“I don’t know anything about cars,” Whitacre, 67, said [per Bloomberg News] “A business is a business, and I think I can learn about cars. I’m not that old, and I think the business principles are the same.”
B. Mr. Kordella stated through his work email from [email protected] (which is protected by GM's “Liberty Alliance, Oblix” computer program and firewall which is accessed specifically by GM employees from either home or work, (Ex. #20, #21, #23)) to Mealer, Re; Mr.
Kordella's and GM's reason for the injurious falsehood publications to Mealer's prospective parties, while GM control to provide beneficial support to GM and employees, the principle and accomplice is yet to be determined as complicity fits well in this instance;
“...As you know, if things do not work out for GM, I will lose most of my pension, all medical benefits and on, and on. Basically a financial Armageddon for me and hundreds of my friends and family members that have relied on GM for the last 60 plus years. Not to mention the tens of thousands who’ve already lost their jobs. ..”“... Needless to say you know that Detroit and it’s suburbs, and for that matter all of Michigan, Ohio, Indiana and other Mid West states have been beaten up so badly in the press, by Congress, by most Americans that feel they’re not affected by this automotive crisis, that we’ve developed thin skin....”
29. C. Furthermore, the The GMC-20 ISP protective system provided by a company that GM helped create known as “LIBERTY ALLIANCE” and OBLIX NET POINT and GM's secondary connection as to employee Respondeat Superior and vicarious liability liability exists regardless of “going and coming” rule, because employer's private and secured ISP, Liberty Alliance network solution allowed, managed and mandated their employee's use of said product for Internet access both at home and at work. Liability also applies because GM incidentally benefited from Mr.
Kordella's tortious activity.
The court, however, also explained that there is an exception to the general rule pertaining to when the employees actions through the equipment provided provides an incidental benefit relied upon by the employee and derived from the employer. Whether through the actual tort -or- through the work the employee may complete at home through the same secured ISP and computer which made available and a requirement for work related ISP access such as email.
GM and GMAC share an interactive, secure and highly scrutinized Internet Service Provider clearly making for the GM – GMAC clearly making the ISP the content producer in this extreme case in which the service provider has the right and ability to control such activity and to remove said activity. GM - GMAC would not be profitable today if not for the wanton disregard for the safety, public welfare and destruction of the June 2009 critical prospective business growth funding for Mealer
Companies LLC and Mealer. Furthermore, In Murawski v. Pataki, 514 F.Supp.2d 577, 591 (S.D.N.Y.
2007) (citations omitted), in an opinion which also carries the support of almost every circuit court. In making explicit the test for immunity from suit, the Ninth Circuit has stated that § 230(c)(1) protects only three particular types of parties from liability. GM and GMAC controlled the speaker, his content , his access and his equipment, thus they controlled the tortfeasors and criminal activity.
30. (1) a provider or user of an interactive computer service, (2) whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or speaker, (3) of information provided by another information content provider. Barnes v. Yahoo!, Inc. 570 F.3d 1096, 1100-1101 (9th Cir. 2009).
And as clearly defined herein and as this case clearly shows, GMACM and GM are not subject to this 3 party exclusion as they provided both the content and the service through their employees and agents while they mutually received financial benefit(s) directly attributable to the infringing activity, viz 17 U.S.C. § 512(c)(1)(B). Liberty Alliance and Oblix supplied GM with the ability to gain incidental benefit, derived by simplifying GM-GMAC employees “strategic options” as they are connected “going and coming” for business purposes, which inherently makes GM, GMAC employees blogs and the GMC-20 ISP nonexempt.
"The objectives of the Liberty Alliance Project are in line with General Motors' pursuit to leverage the most effective technology solutions offered for the digital economy," states Ralph Szygenda, GM Group Vice President, Chief Information Officer. "Secure information management and interoperability across the Internet landscape are vital issues to GM as we use digital technologies to expand our strategic options and reinvent relationships with our customers, employees, and business partners. It's a progressive, innovative alliance that makes sense for GM." PR Contact: Eric Apodaca at 313-667-4861 313-667-4861 or [email protected]
(See Ex. #20, #21, #22, #23, #25 specifically on P.6 “Circle of Friends”, P.13,¶6)
Mr. Kordella's reasoning (alone) for his attack on Mealer, provides undeniable proof Mr.
Kordella was acting within his “scope of his employment” to promote his master (GM) and had done so in an anti-competitive manner on GM's computer as directed by GM managerial discussions, GM publications, pre-bankruptcy orders and through supervisor directions. On June 9, 2009, Mr. Kordella was not “engineering” for GM who was wrapped up in Bankruptcy corporate reformation, but instead searching the Internet with GM-GMAC inner corporate private and secured ISP and computer related equipment. GM's superiors and managing members have made it publicly clear that GM was suffering and must be more competitive. The Mealer Automobile's (new US automaker) while GM was a failed
31. company would have caused even more damages than GM had already suffered to date on June 9,
2009. GM and Mr. Kordella were betting GM Volt technology which is an early variation of the Mealer
Automobile, and they may have felt threatened. (See Ex. #24, P.2) (Also See Exhibit #26)
VIII. SHEER SPECULATION S v. INFERENTIAL ALLEGATION:
Defendant's claiming Mealer's “sheer speculation” is simply another GMACM abusive attempt to dissuade and deceive this court, when in fact, Mealer's Complaint made clear, direct and legally directed “inferential allegations respecting all the material elements to sustain recovery under some viable legal theory.”
A. STANDING:
Mealer clearly has standing to pursue all claims stated within the Amended Complaint pursuant to his following all directions given and ordered to him by the court and pursuant to bankruptcy laws as noted herein, with special consideration to tort laws and due process afforded him by Article Five in the American Bill of Rights and Fourteenth Amendment to the U.S. Constitution.
B. CAUSATION: Further, for the reasons stated herein; Mealer's injury by GM,
GM's causation of the 'alleged' incidents, and the violations of law in tort and otherwise causing injury to Mealer as detailed within the Aug.10, 2010 Complaint, re: this instant case claims and violations admitted by Mr. Kordella do in fact grant Mealer standing to sue for all counts as this continuous sequence of unbroken tortious activity, has continued to produce injury upon Mealer, and without said tortfeasors, such injury would not have occurred. (See Allen v. Wright, 468 U.S. 737, 752 (1984))
Proximate cause as "ideas of what justice demands, or of what is administratively possible and convenient." (See Keeton, et al., supra), and Viz; 11 U.S.C. § 503(a)(1)(A),(3)(A)(3), §101(10)(A)(B),
§348(d), §523(a)(6).
32. 503(a)(1)(A),(3)(A)(3) whereby (a) An entity may timely file a request for payment of an administrative expense, or may tardily file such request if permitted by the court for cause. (b) After notice and a hearing, there shall be allowed administrative expenses, other than claims allowed under Section 502(f) of this title including-- (1)(A) the actual, necessary costs and expenses of preserving the estate including-- (3) the actual necessary expenses, other than compensation and reimbursement specified in paragraph (4) of this subsection, incurred by-- (A) a creditor that files a petition under section 303 of this title; (B) a creditor that recovers after the court's approval, for the benefit of the estate any property transferred or concealed by the debtor; (c) a creditor in connection with the prosecution of a criminal offense relating to the case or to the business or property of the debtor.
101(10)(A)(B): whereby “(10)” The term creditor means-- (A) entity that has a claim against the debtor that arose at the time of or before the order for relief concerning the debtor: (B) entity that has a claim against the estate of a kind specified on section 348(d), 502(f), 502(g) or 502(h) or 502(I) of this section.
348(d) A claim against the estate or the debtor that arises after the order for relief but before conversion in a case...
523(a)(6) for willful and malicious injury by the debtor to another entity or to the property of another entity.
Both Arizona and Michigan have derived laws prohibiting what amounts to defendant's GM claims of anti-indemnity for their employees actions. These laws protect Mr. Kordella from having his pension voided or any other actions taken against him for what the debtor's GM claim is Mr. Kordella's sole negligence. NOTE: Mr. Kordella could not have sole negligence as stated herein and within Ex.
#1, Mealer's amended Aug. 10, 2010 Complaint.
The outcome of this motion can very easily be defined by the totality-of-circumstances analysis of the negligent actions of GM , “whether a duty exists[] is a matter of law for the court to decide.”
Gipson v Kasey, 214 Ariz. 141, ¶9, 150 P.3d 228, 230 (2007). Such question is to be reviewed denovo.
De La Cruz v. State, 192, Ariz. 122, ¶ 1, 961 P.2d. 1070, 1071 (App. 1998). GM's unlawful activity substantially harms the public, Mealer, Mealer Companies LLC and prospective parties which is detailed within the Aug. 10, 2010 Complaint on P.4¶10d, P.24¶28h1, P.38¶70i, P.41¶72a, P.44¶79,
P.44¶80, specifically at P.64¶¶¶¶¶¶107e,f,g,h,j,k, and specifically at P.65¶109, and specifically at
P.75¶114, P.79¶119c, P.81¶122, P.85¶¶128b,d.
33. GM Corp. k/n/a/ “MLC” and GM Company must be held vicariously liable to Mealer Viz
Arizona Revised Statutes (“A.R.S.”) section 12-2506(D)(1) (2003) and U.S.C. Title 15 et seq., for injuries inflicted on common foes (competitive business [Mealer Companies LLC] and it's owner
[Mealer]). This court should hold through the totality of the circumstances of this case, sufficient evidence exists that (a) Debtors and Mr. Kordella and other engineers/employees of GM and GMAC as named within the Complaint knowingly acted in concert to inflict injuries on Mealer and products to be produced by Mealer Companies LLC (b) they were certain or substantially certain would result in the consequences complained of, and (c) actively participated in commission of the tort. (See Mein v. Cook,
219 Ariz. 96, 193 P.3d 790 (App.2008). Other courts have reached similar conclusions. See, e.g., Lamb v. Peck, 441 A.2d 14, 15-16 (Conn.1981), Robinson v. June, 637 N.Y.S.2d 1018, 1020-21
(N.Y.Sup.Ct.1996). Further, a “conscious agreement” need not be verbally expressed and may be implied from the conduct itself. Restatement (Second) of Torts § 876 cmt. a (1979); see also Mein, 219
Ariz. at 100, ¶ 19, 193 P.3d at 794.0 There was no need for someone to yell words akin to, “let's get
‘em,” to create a conscious agreement under A.R.S. § 12-2506(D)(1), although according to Mealer's website visits (Ex. 9), it appears that the intent to “get 'em” by various GM employees [Ms. Christy
Garwood, Mr. Joseph Burgel and Mr. Kordella while under control of and while at work applying methods to benefit the business of GM and collecting payroll] during it's strategic bankruptcy, and under the scope of GM's bankruptcy protection and aggressive new and improved business model erroneously set-forth by President Obama (See Exhibit #14), was active and Mealer's injuries are the type Congress intended to prevent because they are "inextricably intertwined with the injury [GM -by and through- multiple employees] sought to inflict." Blue Shield v. McCready, 457 U.S. 465, 484, 102
S.Ct. 2540, 2551, 73 L.Ed.2d 149 (1982). Mealer has shown that GM actively manipulated the growth funding of his business through unlawful activity and prevails on his theory.
34. Mealer maintains and has standing to pursue both defamation, trade libel, slander of title and antitrust claims because Mealer Companies LLC is Mealer's alter ego and prospective investors and customers relied on Mealer's good standing, mental capacity, capable engineering staff, personal honesty, strong character and selfless ways to either continue or begin business and buy products from his company. See Sherman, 601 F.2d at 439-40.
Standing for Mealer to sue [for all claims], (See Ex. 1) including those under antitrust law is proper under section four of the Clayton Act, 15 U.S.C. § 15 (1988), to maintain a private damage action against GM. Under section four, persons injured in their "business or property by reason of anything forbidden in the antitrust laws may sue" in federal district court and recover treble damages.
15 U.S.C. § 15(a) (1988); Midwest Communications, Inc. v. Minnesota Twins, Inc., 779 F.2d 444, 449-
50 (8th Cir.1985), cert. denied, 476 U.S. 1163, 106 S.Ct. 2289, 90 L.Ed.2d 730 (1986). (1) [t]he causal connection between the alleged antitrust violation and the harm to the plaintiff; (2) [i]mproper motive;
(3) [w]hether the injury was of a type that Congress sought to redress with the antitrust laws; (4) [t]he directness between the injury and the market restraint; (5) [t]he speculative nature of the damages;
[and] (6) [t]he risk of duplicate recoveries or complex damage apportionment. Midwest
Communications, 779 F.2d at 450; Peck v. General Motors Corp., 894 F.2d 844, 846 (6th Cir.1990).
Prescribed by the Supreme Court.
The law of the case doctrine provides that a court's decision on legal issues should govern the same issues in later stages of the same case. Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382,
75 L.Ed.2d 318 (1983). The doctrine, however, applies only to issues decided by final judgments.
Smith v. Mark Twain Nat'l Bank, 805 F.2d 278, 286 n. 16 (8th Cir.1986); In re Unioil, Inc., 962 F.2d
988, 993 (10th Cir.1992).
35. The district court's rulings on GM's motion to dismiss and motion for summary judgment were not and could not become final judgments. See Bullock v. Baptist Memorial Hosp., 817 F.2d 58, 59 (8th
Cir.1987) (order dismissing complaint against some but not all defendants is not a final order); Wright v. South Ark. Regional Health Center, Inc., 800 F.2d 199, 202 (8th Cir.1986) (denial of summary judgment motion is usually not a final order); Fed.R.Civ.P. 54(b) (judgment on multiple claims or involving multiple parties). Further, a district court may properly depart from an earlier holding "if convinced that it is clearly erroneous and would work a manifest injustice." Arizona v. California, 460
U.S. at 618 n. 8, 103 S. Ct. at 1391 n. 8.
When a district court is convinced that it incorrectly decided a legal question in an interlocutory ruling, the district court may correct the decision to avoid later reversal. In re Unioil, 962 F.2d at 993.
This court should conclude that until the district court entered judgment on all claims after trial, the district court could reconsider its earlier rulings deciding the standing issue in Mealer's favor. In any event, the law of the case doctrine does not prevent this court from reviewing the district court's standing decision on appeal. In re 949 Erie St., Racine, Wis., 824 F.2d 538, 541-42 (7th Cir.1987).
B. GM as an employer may be vicariously liable for torts committed by an employee that cause injury to another's property or person even if the employer did not have any part in the commission of the tortious act. GM had the right to control or controls Mr. Kordella's actions, then the employee is an “employee” and GM is potentially subject to vicarious liability for the their employee's tortious acts.
C. Respondeat superior is equivalent to vicarious liability in this instant case and a culpability matter, backed with ample case law and US Code and Ariz. Rev Stat., reasoning. And as detailed pursuant the references in Mealer's “APC” at #7. Supporting Documents stating, “I will send
36. full documentation, plus letter of admission from GMC upon responc[s]e.” Without a doubt, this response by properly served complaint (Ex. #1) are Supporting Documents explaining the allegation and charges which detail the GM Corp./ MLC and what Mealer believes to include GM LLC vicarious liability derives from the reasoning that (1) Mr. Kordella was acting on GM’s behalf, (2) GM is usually exercising control and supervision over Mr. Kordella's conduct, (3) GM is in the better position to accept financial responsibility or to insure against it, and (4) GM receives the benefit of Mr. Kordella’s work and should therefore also bear the burden of the Mr. Kordella’s negligent and intentional conduct.
Thus, some courts have characterized it as respondeat superior, or “let the master answer.”
D. Mr. Kordella's unlawful actions did actually, physically, morally and financially assist the GM Corporation's transition to GM LLC and GM Company to where it is today by keeping the public attention on the new GM and not on an emerging Mealer Automobile and new US
Automaker (or other final branding). Mr. Kordella was in fact, acting to further the employer's business and has stated this in his private admission/pseudo-apology to Mealer after the Intentional Interference
WPA was done. Specifically, to support new “breakthrough” GM technology. (See Ex. #26)
E. Mealer not only made clear, ie. “red flag” Mr. Kordella's publication of injurious falsehoods under vicarious liability, respondeat superior need to intervene, after GM employee acting as GMAC agent was made clear to his employers, but the “red flag” went ignored to further injure
Mealer. The audacity of GM and GMAC to go beyond the obvious "infringing activity'” which was and is “apparent to a reasonable person operating under the same or similar circumstances", especially considering Mealer requested they stop, prevent and have removed the infringing material. GM and
GMAC's action ave caused and compounded the damages made by Mr. Kordella while he served the interest of two masters while refusing to abandon make right the irreparable harm and injury to Mealer.
37. Second, the service provider, who was GM and GMAC must not “receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity.” The relationship between GM, GMAC (GMC-20 ISP stored at GMAC
HQ) is clear and uncontradicted proof that when combined with (Ex. #20, #21, #22, #23, #25, #26) provide vicarious liability to establish a master-servant relationship.
F. Indeed, GMC, k/n/a MLC, connected with GMAC and their shared corporate ISP equipment and inter-related transactions...” with '”....GMAC, usually generating efficiencies and enhanced results for each of them, including business opportunities and referrals, data and resource sharing, economies of scale, leveraging staff expertise, and administrative expenses, all of which combined, result in a highly valuable and significant organizational, operational, business and financial synergies;” “entered into that certain [amended prior to May 22, 2009] Master Services Agreement, dated as of November 30, 2006...” “...' provide various services and financial accommodations to one another as set forth therein...” (See Exhibit #16). And, who has remedied or replaced defective jointly shared and owned IT equipment prior to the 363 Order and the unlawful activity against Mealer through the cross-collateralized and co-owned ISP equipment. This entire lawsuit before the court, cannot possibly have been mere coincidence as no monopolist is unconscious of what he is doing, and improper exclusion is always intended.
IX. CONCLUSION
For the foregoing reasons, this injured claimant Mealer prays this court continue these proper proceedings and allow this extraordinary issue to remain active within this MLC f/n/a GMC
Bankruptcy. Complainant realizes this court has seen many bizarre and unworthy claims against GM during this Chapter 11 restructure and although this case seems bizarre and outlandish it is exactly the truth and not unlike what GMC has done in the past to other competitors. Mealer prays this court sees the validity of this case and allows it to be heard. (38.) 15 March, 2011 .JLM E-Signed .
X. MOTION TO DENY ENTRY OF ORDER DISALLOWING AND EXPUNGING ADMINISTRATIVE CLAIM NO. 70792 FILED BY JOHN L. MEALER
For the reasons stated in the foregoing documents accompanied by all documents on file and to be brought together and already served and unanswered by Defendants , Complainant, Creditor Mealer hereby respectfully requests this Honorable Court to DENY Entry of Order Disallowing and Expunging
Administrative Claim No. 70792, Filed by John L. Mealer, and to allow this claim to continue wherever this court deems proper according to applicable law.
XI. AFFIDAVIT
I, John Lewis Mealer under penalties of perjury to the full extent of the law, affirm the preceding documentation, affidavits, evidence and representations to be true and correct to the best of my knowledge and perception of this ongoing incident, with my signature below.
15 March, 2011 .JLM E-Signed .
39. CERTIFICATE OF SERVICE
I, John Lewis Mealer do hereby declare that: On 16 March 2011,I deposited the original and copies of the following documents and otherwise served via the US Postal Service, First Class Mail to be delivered to the following persons and addresses:
CREDITOR'S RESPONSE, OBJECTION and MOTION TO DENY THE RELIEF REQUESTED IN DEBTOR'S OBJECTION, DISAGREEMENT and MOTION TO DENY ENTRY OF ORDER DISALLOWING and EXPUNGING ADMINISTRATIVE CLAIM NO. 70792 FILED BY JOHN L MEALER and TABLE OF CONTENTS, TABLE OF AUTHORITIES, CREDITOR JOHN LEWIS MEALER'S RESPONSE, OBJECTION AND MOTION TO DENY RELIEF REQUESTED IN DEBTOR'S OBJECTION and CREDITOR'S RESPONSE, OBJECTION and MOTION TO DENY THE RELIEF REQUESTED IN DEBTOR'S OBJECTION, DISAGREEMENT and MOTION TO DENY ENTRY OF ORDER DISALLOWING and EXPUNGING ADMINISTRATIVE CLAIM NO. 70792 FILED BY JOHN L MEALER, AFFIDAVIT, CERTIFICATE OF SERVICE, SERVICE LIST.
I declare under penalty of perjury that the foregoing is true and correct and that this declaration on 15 March, 2011 at Show Low, Arizona.
.JLM E-Signed .
40. SERVICE LIST
ORIGINAL: Hard Copy and CD-Rom;
New York Southern District Bankruptcy Court One Bowling Green New York, New York, 10004-1408
COPIES: CD-Rom; (i) Weil, Gotshal & Manges LLP , attorneys for Debtors, 767 Fifth Avenue, New York, N.Y. 10153 (Attn: Harvey R. Miller., Stephen Karotkin, Esp., Joseph H. Smolinksy, Esq. (ii) Debtors, c/o Motors Liquidation Company, 401 South Old Woodward Avenue, Suite 370, Birmingham, MI. 48009 (Attn: Thomas Morrow). (iii) General Motors LLC, 400 Renaissance Center, Detroit, Michigan 48265 (Attn: Lawrence S. Buonomo, Esq.) (iv) Cadwalader, Wickersham & Taft LLP , attorneys for the United States Department of the Treasury, One World Financial Center, New York, NY., 10281 (Attn: John J. Rapisardi, Esq.) (v) United States Department of the Treasury , 1500 Pennsylvania Avenue NW, Room 2312, Washington, D.C. 20220 (Attn: Joseph Samarias, Esp.) (vi) Vedder Price, P.C., attorneys for Export Development Canada, 1633 Broadway, 47th Floor, New York, N.Y. 10019 (Attn: Michael J. Edelman, Esq. And Michael L. Schein, Esq.) (vii) Kramer Levin Naftalis & Franklin LLP, attorneys for the statutory committee of insecured creditors, 1177 Avenue of the Americas, New York, N.Y. 10036 (Attn: Thomas Moers Mayer, Esq., Robert Schmidt, Esq., Lauren Macksound, Esq., and Jennifer Sharret, Esq.) (viii) Office of the United States Trustee for the Southern District of New York, 33 Whitehall Street, 21st Floor, New York, N.Y. 10004 (Attn: Tracy Hope Davis, Esq.) (ix) U.S. Attorney's Office, S.D.N.Y., Chambers Street, Third Floor, New York, N.Y. 10007 (Attn: David S. Jones, Esq. And Natalie Kuehler, Esq.)
41.
John Lewis Mealer, Pro Per (Pro Se) 1 6333 Gardenia Lane Show Low, Arizona 85901 2 [email protected] [email protected] 3 IN THE SUPERIOR COURT OF THE STATE OF ARIZONA 4 IN AND FOR THE COUNTY OF NAVAJO 5
6 JOHN LEWIS MEALER ) ) CASE_NUMBER_CV201000316 7 PLAINTIFF ) ) 8 vs ) CIVIL COMPLAINT FOR TORT, CRIMES ) 9 GMAC MORTGAGE LLC and CEO DAVID ) JURY TRIAL DEMANDED APPLEGATE , GMAC FINANCIAL ) 10 SERVICES, GMAC LLC and CEO ) MICHAEL CARPENTER, GENERAL ) FIRST AMENDED COMPLAINT 11 MOTORS CORPORATION., GENERAL ) MOTORS COMPANY and CEO EDWARD ) AFFIDAVITS I, II, III 12 WHITACRE JR , MOTORS LIQUIDATION ) COMPANY, RESIDENTIAL CAPITAL LLC ) 13 and CEO THOMAS MARANO , UNITED ) SERVICE LIST ) 14 STATES TREASURY DEPARTMENT, GM ENGINEER KRIS J KORDELLA, JANE ) NOTICE OF CERTIFICATE OF SERVICE 15 DOE, JOHN DOE, et al.
16 DEFENDANTS
17
18 VERIFIED COMPLAINT
19 1. Plaintiff, John Lewis Mealer Pro Se, states, pleads with specificity per legal requirements 20 and case law noted on Pages 98, 99 herein, commences and prosecutes as follows: 21 JURISDICTION AND VENUE 22 2. This detailed case, filed, June 8th, 2010 involves intentional and ongoing tort violations 23 including injuries for malicious libel by the defendants against this plaintiff, which have created 24 a claim in excess of $50,000 and also affects title to real property within Navajo County, Arizona 25
, -1- and falls within the jurisdiction of the Superior Court of The State of Arizona in and for the 1 County of Navajo where the damages to this State of Arizona, Navajo County resident John 2 Lewis Mealer and his locally based Independent Alternative Fuel Powered Automaker business 3
th 4 known as Mealer Companies LLC had occurred on June 9 , 2009 and continue to occur to date.
5 3. This honorable court has local jurisdiction for local judicial action and trial court action
6 in these matters under Article 6, Sections 5 and 14 of the Arizona Constitution, and ARS Title
7 44, Chapter 10, per ARS Title 12-541 and other laws pertaining to this instant case.
8 4. This court may exercise supplemental jurisdiction over the state law and federal law 9 asserted in this action pursuant to 28 USC § 1367. 10 5. This court has personal jurisdiction over each of the defendants because they do business 11 in this District and engaged in unlawful conduct and/or caused the harm at issue in this case in 12 this District. 13 6. Original subject matter jurisdiction is conferred upon this Court by the Federal Trade 14 Commission Act (1914). Title 15 U.S.C. §§ 41-51 Lanham Act, 15 U.S.C. §1111 et seq, the 15
16 United States antitrust laws, The Sherman Act 15 U.S.C. §§§ 1,2,4, and 28 U.S.C. §1331.
17 Supplemental jurisdiction over claims arising under the law of the State of Arizona ARS Title 44
18 §1111 et seq., Arizona Revised Statutes Title 12 et seq.
19 7. Venue is proper in this District under Title 28 USC § 1391 because a substantial portion
20 of the events giving rise to the claims as issue in this Complaint occurred in this district.
21 8. The true nature of culpability of these defendants, whether as sole individuals for their 22 random, wholly unconnected yet contributory acts of tortious aggression and wrongful conduct 23 which was guided by evil motives and willful and wanton disregard of the interests of this 24 plaintiff and/or an obscure series of acts which fell into place resulting in pure negligence 25
, -2- against this plaintiff, in what defendants may excuse in defense of these claims] as merely (8a) 1 “Coincidentally-Occurring,” ”Individually-Tortious,” “Unintentionally-Simultaneous” 2 interruption of this plaintiff's prospective funding and private business growth from a secluded 3
4 incident of GM engineering employee Mr. Kordella's fit of jealousy and passion as his private
5 opinion [yet, while in his professional capacity, simply for “his own and fellow employee's and
6 GM survival”] creating various injurious issues of significant importance in respect to both the
7 initial and ongoing unrelenting injurious falsehoods and intentional tortious and quasi-criminal
8 behavior and malicious attacks by defendants against this plaintiff. 9 (8b) Which by Arizona legal determination prescribes respondeat superior culpability, 10 resulting in and causing irreparable harm to this plaintiff, nonetheless, OR 11 (8c) perhaps these defendants were actually, at least partially, acting in concert in an 12 aggressive display of the GM Family's need to succeed as proclaimed by the GM Family in 13 multiple documents, governmental, public and private testimony, which will be validated as 14 additional inculpatory evidence upon Discovery-Disclosure prior to this honorable court hearing 15
16 this instant case.
17 9. This pro per, pro se plaintiff reserves the right to hire or acquire counsel during these
18 proceedings. This pro per, pro se plaintiff reserves the right to settle out of court with individual
19 defendants without causing this lawsuit and/or these claims to be diminished or detracted from.
20 NATURE OF ACTION
21 10. This historical action comes forth June 8th, 2010, and with good cause, plaintiff 22 submitting this plausible, truthful complaint (sworn civil lawsuit) against defendants actual June 23 9th, 2009 (perpetuated to date), unwanted, unlawful, unethical, injurious trespass with intent to 24
25
, -3- cause serious injury through defamation of character, publication of injurious falsehoods and 1 trade libel and by effect have caused irreparable harm to this plaintiff, and defendants' have; 2 (10a) intentionally destroyed this plaintiff's prospective advantages, personal and 3
4 business reputation, trade viability and other pertinent attributes through unlawful means AND
5 (10b) have acted to destroy through unlawful activity this plaintiff's competitive business
6 trade of alternative fuel powered automobile (and other product) manufacturing,
7 (10c) Which occurred on this plaintiff's professional privately-owned-business website
8 “http://mealercompanies.com” which was; 9 (10d) created explicitly and clearly labeled to secure and provide an Internet presence for 10 final due diligence for prospective advantageous methods, from foreign and/or domestic pending 11 contractual relations and product orders and purchases from various; persons, groups, investors, 12 banks, clients, customers, employees, government agencies, private businesses, et al. AND 13 (10e) to be used specifically for the benefit of this plaintiff, [who is the manager and 14 founder of the private independent alternative fuel powered automaker “Mealer Companies 15
16 LLC”] in order to gather,
17 (10f) specifically, $200,000,000. of prospective B-Round trade growth capital and to
18 garner, specifically,
19 (10g) multiple private and public prospective agreements for 2000 Pre-MFG Mealer
20 “BV” automobile sales worth $30,000,000. in sales profits (pending prospective funding
21 contracts of which defendants interfered with) and additional future sales of other Mealer 22 Companies LLC products, AND 23 (10h) Mr. Kordella, (who is a co-defendant and jointly and severely co-liable for these 24 instances, privately and professionally) did effectively, intentionally publish on a global scale; 25
, -4- (10h1) multiple grossly disparaging, derogatory and injurious falsehoods, libel per quod, 1 and per se by definition, AND 2 (10h2) gross trade libel per se, AND 3
4 (10h3) gross slander of title, intentional misrepresentation of the Mealer Automobile,
5 (10i) in order to intentionally interfere with prospective advantageous capital investors
6 AND (10j) whereby defendant's have created these exact pecuniary and compounding daily
7 damages AND
8 (10k) other irreparable harm[s] to this plaintiff through intentional personal defamation 9 of character and plaintiff's professional reputation and (9k1-a) the Mealer Automobile 10 (10k1-b) and other Mealer products for domestic manufacturing trade as detailed herein. 11 (10l) Defendants did intentionally commit intentional misrepresentation, publishing 12 untrue and unprivileged derogatory statements creating personal injury of plaintiff's personality, 13 mental capacity, trustworthiness, engineering capability, product viability, authenticity, 14 selflessness as gross slander of title and gross defamation of character and this plaintiff's 15
16 expected fiscal, political and job creating contributions to these United States of America for
17 which this proud American has long planned and has expected to execute.
18 (10m) Defendants' (Specifically Mr. Kordella and GM whether acting severally or
19 jointly as per and within the scope of ResCap and GMACm's strategic mortgage servicing
20 program) wrongful conduct was guided by intentional malicious and evil motives and willful
21 and wanton disregard of the interests of this plaintiff. 22 11. Defendants continue to brazenly and maliciously complete and perpetuate their mission 23 of tortious interference through globally published malicious libel, injurious falsehoods, 24 defamation of character, trade libel, slander of title, etc 25
, -5- (11a) after invading the privacy of this plaintiff AND 1 (11b) defendants with unclean hands AND 2 (11c) which have intentionally intimidated AND, 3
4 (11d) destroyed and rendered bankrupt this plaintiff and have (10e) wholly restrained and
5 derailed plaintiff's professional automotive trade by;
6 (11f) intervening in prospective investor growth (funding) and interfering with pre MFG
7 sales of the Mealer Automobile and other Mealer Companies products AND
8 (11g) without a response from defendants when this plaintiff has requested and has 9 repeatedly demanded a corporately written and Internet global publication of a formal corporate 10 apology within the first 5 days of their grossly disparaging attack.. (See Exh______) 11 12. Worse yet, co-defendant (specifically GMACM, ResCap who own title to this plaintiff's 12 home and competitive [to GM] automobile manufacturing business HQ address) have refused 13 multiple phone calls and written requests and/or demands from this plaintiff to have removed the 14 various grossly disparaging, derogatory and injurious falsehoods and gross trade libel, slander of 15
16 title that were strategically placed upon this plaintiff's funding, business growth website through
17 the use of a "protected computer," per 18 U.S.C. § 1030(e)(2), which designates the private and
18 highly secured Internet Service Provider (“ISP”) which is housed in GMAC LLC corporate
19 headquarters at 200 Renaissance Center in Detroit, Michigan. (See Exh______)
20 (12a) The defendants' malicious, strategic and cleverly worded disparaging remarks and
21 financially destructive and globally published libel through invasion(s) “with intent to destroy” 22 and defendants' highly improper actions have; 23 (12b) intentionally caused both this plaintiff's chapter 7 bankruptcy (after inducing 24 breach of mortgage contract) (12c) and while continuing their attack from June 9th 2009 to date, 25
, -6- have, (12d) wholly violated the Automatic Stay of said bankruptcy and continue in order to (12e) 1 prolong this plaintiff's inability to make to recover from the initial attack in order to resume this 2 instant defaulted mortgage. 3
4 (12f) This plaintiff can not assume responsible for removing mealercompanies.com
5 professional website postings made by another party without that corporation's or private party's
6 explicit directions to do so, and in this case, a public corporate apology and full detailed public
7 retraction which had been demanded by this plaintiff from the corporate defendants within five
8 days of finding the grossly disparaging injurious falsehoods and utterly destructive trade libel. 9 For this plaintiff to remove these attacks without the defendant's aforementioned publicly made 10 request to do so, including their publicly made apologies would be dishonest to those parties who 11 have been following this plaintiff's public Internet postings and business website logs (Blogs) of 12 his search and subsequent acquisition of prospective and pending funding agreements from both 13 of this plaintiff's professional websites related to the Mealer Automobile, products and funding. 14 (12h) To hide the defendant's publicly and globally posted and globally published via 15
16 RSS feed, the various grossly disparaging trade libel and defamation of character “by removal
17 from public view,” would “reduce” this plaintiff to the same moral turpitude of the defendants
18 and by this plaintiff's perspective would be dishonest concealment to prospective clients,
19 investors and the general public.
20 (12i) Simple removal of said defendants' comments will do nothing to repair the damages
21 that have been done. In fact, removal without defendant's public corporate apology would be 22 useless as the MONEY01 blog was sent out worldwide via the RSS feed, email update for the 23 http://mealercompanies.com website and the prospective parties who received have obviously 24 lost interest due to personal disparagement and product trade libel and other untrue comments 25
, -7- and destructive actions of the world renowned GM Family published to the severe detriment and 1 financial injury of this plaintiff. 2 13. Multiple inner-corporate employees and intra-corporate agents may be brought forth as 3
4 co-defendants for aiding and abetting and contributory negligence involved in these gross
5 tortious transgressions during discovery-disclosure. Including defendant's CEOs and upper
6 management for refusing to take action since receiving notice of these claims, which have caused
7 and continue to perpetuate ongoing damages.
8 14. Plaintiff expects to seek justice and rule of law in these matters and to be paid, 9 reimbursed, made whole again for defendant's intentionally and/or negligently created and 10 continued damages and suffering of this plaintiff, his company (trade loss), his company 11 products loss of revenue including trade libel) and his family's suffering both financially and 12 emotionally and physically. 13 PARTIES and POSITIONS 14 PLAINTIFF MEALER 15
16 15. Plaintiff (Mealer) is living at the home he built 90% single handedly creating a custom
17 “Mealer-Built” home located at 6333 Gardenia Lane, Show Low, Arizona [which is currently
18 mortgaged to GMAC] and is the (15a) founding member (15b) and patent holder to the “at-one-
19 time” expanding to meet tremendously expansive future sales demands for, (15c) independently
20 owned and operated alternative-fuel-powered automaker called Mealer Companies LLC which is
21 state registered - headquarters and on adjoining property a private R&D - located at 6333 22 Gardenia Lane, Show Low, Arizona [also under the same GMAC mortgage], (15d) which is an 23 Arizona LLC registered as of 9/19/08 with the Arizona Corporation Commission #L-1477212-5, 24 to (15e) build alternative fuel powered automobiles and (15f) to eventually pay profit and other 25
, -8- employee related taxes through Internal Revenue Service (“IRS”) Employer ID #26-3359384, 1 (See Exh's ______, ______, ______, ______) 2 16. Although plaintiff lists defendants' as separate “parties” who are listed individually with a 3
4 brief outline of their tortious and/or criminal and/or contributory involvement, plaintiff contends
5 that defendants' are jointly and severally liable for 100 percent of this plaintiff’s damages (16a)
6 per ARS 12-2506(D). (16b) Of an amount as this honorable court and the jury deem proper.
7 (16c) But For the illegal, injurious and improper methods of debt collection, defamation of
8 character, trade libel et al, by the defendants this plaintiff would have been funded to expand 9 Mealer Automobile manufacturing and to expand manufacturing of other Mealer Companies 10 products and/or would have acquired interim high level employment in other company's 11 alternative powered automobile manufacturing/development positions or other high level work 12 outside and exclusive of Mealer Companies LLC. 13 DEFENDANTS 14 GMAC LLC, GMAC MORTGAGE LLC,
15 17. Defendant, GMAC LLC [Headquarters at 200 Renaissance Center, Detroit, Michigan 16 who has the responsible CEO of Mr. Michael Carpenter], 'et al' [including Ally bank and Ally 17 Financial LLC., Inc. and/or any subsequent renamed entities of the same company and all 18 subsidiaries who act under GMAC LLC fiducial capacity, please refer to Points and Authorities 19 herein], specifically GMACM as the main creditor and private home mortgage holder, Cause of 20 Action; [By and through the cross-collateralization under the Omnibus Security Agreement and 21
22 other documents and agreements whereby granted a security interest to the Omnibus Agent in
23 any cash or other property posted or required to be posted as collateral (REFERENCE ALL OF
24 “¶ #63” herein)]
25
, -9- (17a) [Mortgage #0602003923 for this plaintiff's home and purchased by GMAC 1 Mortgage (GMACM who has the responsible CEO of Mr. David Applegate) on April 1st, 2008 2 from the original mortgage holder known as Amerifirst Financial Inc., of Arizona, for this 3
4 plaintiff]. GMACM have since made multiple;
5 (17b) efforts to foreclose upon this debtor's mortgage contract AND
6 (17c) coincidentally, “GMAC” was also the main creditor of General Motors (herein
7 called “GM”) on June 9th, 2009,
8 (17d) whereby GMAC LLC has maintained a publicly proclaimed interest in the 9 survivability and viability of their preferred debtor/competitive automaker [to plaintiff] “GM”, 10 (17e) maintains the registered "protected computer," per 18 U.S.C. § 1030(e)(2), which 11 designates an Internet Service Provider (“ISP”) used for access to and the perpetuation of the 12 series of intentionally financially devastating torts/crimes against this plaintiff. (See 13 Exh's______, ______, ______, ______) 14 18. This plaintiff further contends that “GMAC” et al whether as the corporate entity and/or 15
16 as “Jane Doe and/or John Doe” employee and/or agents working within “GMAC,” and/or
17 subsidiary “GMACM,”
18 (18a) Cause of Action, did willfully, flagrantly and abusively misapply a substantial
19 portion of this plaintiff's mortgage payments by converting said portion to a variety of tortious
20 abuses and to benefit the GM Family (specifically GMACM, GMAC LLC, GMAC Financial
21 Services, “GMAC et al,” ResCap and all versions of a failing GM 'the automaker') when 22 defendants have no right or authority to do so and against any implied or assumed position of 23 applied pecuniary trust, did through intentional acts of willful and wanton misconduct, while; 24
25
, -10- (18b) in fact, GMAC LLC, direct subsidiary ResCap, SEC recorded contract connected 1 subsidiary GMACM were acting as a bank, while also acting as a mortgage company 2 (specifically regarding the inner-corporate distribution of this plaintiff's mortgage payments). 3
4 (18c) This contention includes the “GMAC LLC, GMAC Mortgage LLC, GMAC
5 Financial Services, ResCap, et al” direct corporate civil liability due to the fact that the GMAC
6 LLC Detroit HQ “houses” their financial and insurance institution's regulated "protected
7 computer," per 18 U.S.C. § 1030(e)(2), which designates the private and highly secured Internet
8 Service Provider (“ISP”) their private “ISP” which was used to attack this plaintiff. 9 (18d) That this "protected computer," per 18 U.S.C. § 1030(e)(2), which designates the 10 private and highly secured Internet Service Provider (“ISP”) is by agreement, contract, ISDA 11 2002 Master Agreement collectively and together with the schedules, annexes and swap 12 transactions related thereto, foreign exchange and interest rate transactions and Master Securities 13 Forward Transaction Agreement with the annexes and swap transactions relating thereto with 14 GMAC LLC in such capacity as the Omnibus Agent. This entire agreement ultimately 15
16 transferred 100% of the equity of GMACM servicing rights and related contractual rights
17 whereby GMAC LLC (AKA Ally Bank and Ally Financial, who's HQ is located at 200
18 Renaissance Center, Detroit, MI) own, control and cross-collateralize and jointly administer
19 under the agreement, a substantial share of said contracts and filings belonging to and serviced
20 by defendants', per SEC filings prior to June 9th, 2009. (See Exh's ______, ______,
21 ______, ______) 22 DEFENDANTS GENERAL MOTORS “CORPORATION”, 23 GENERAL MOTORS “COMPANY”, MOTORS LIQUIDATION COMPANY
24 19. Defendant, by Respondeat Superior, General Motors “ Corporation” f/k/a General
25 Motors “old GM”, (19a) [For over 100 years has been Headquartered at 300 Renaissance
, -11- Center, Detroit, Michigan], (19b) k/n/a Motors Liquidation Company “MLC” 1 [Headquartered at 500 Renaissance Center, Ste 1400, Detroit, MI.] while in the Southern 2 District of New York Bankruptcy court, AND 3
4 (19c) today officially and formally restructured as General Motors “Company” a/k/a
5 “new GM” who has the responsible CEO of Edward Whitacre Jr, [Currently Headquartered at
6 300 Renaissance Center, Detroit, MI] f/k/a General Motors Corporation (“Old”) which was
7 the intra-company (“GM Family”) which by Cause of Action;
8 (19d) directly employed GM engineer Kris J Kordella on June 9th, 2009 (19e) who did 9 commit (and privately apologized/admitted) the aforementioned and detailed herein torts/crimes 10 while at work (19f) using GM equipment, and via inner-corporate GM Family “GMAC” 11 privately regulated, "protected computer," per 18 U.S.C. § 1030(e)(2), which designates the 12 private and highly secured Internet Service Provider (“ISP” registered as GMC-20) as accessed 13 from within most GM owned and/or operated engineering offices throughout the Greater Detroit, 14 Michigan area. 15
16 (19g) “Old GM” k/n/a “MLC” and each successive version of “new GM” (herein called
17 “GM”) continue to receive monetary benefits after the initial and continued destruction of new
18 American Automakers (specifically Mealer Companies LLC) AND
19 (19h) “GM” was considered financially distressed, bankrupted and frustrated and did
20 require a large “financial loan” on or about June 9th, 2009, at a critical financial time for the GM
21 automaker AND 22 (19i) when GM required on June 9th, 2009 any available or possible, whether lawful or 23 unlawful competitive strategic advantage in the automobile trade, AND 24
25
, -12- (19j) while promoting, protecting, paying, aiding & abetting their employee-agent Mr. 1 Kordella on June 9th, 2009 and to date. 2 (19k) “GM” engineers and manufactures some of the highest quality automobiles in 3
4 existence. (19l) “GM” is a global leader in automobile sales.
5 (19m) Due to agency/employer (“GM”) MLC's tortious behavior and ongoing quasi-
6 criminal conduct and negligent entrustment of their employee(s)/agent(s) Mr. Kordella and
7 others (specifically [thus far determined to be] Mr. Joseph Burgel and Ms. Christie Garwood
8 who appear to be GM employees and GMAC agents) on June 9th, 2009, this plaintiff is currently 9 considered by law, “a preferred creditor” to the MLC Southern District of New York bankruptcy 10 No. 09-50026 (REG) and has been accepted and entered as such by the presiding Honorable 11 Robert E Gerber pending motion of protocol and the outcome of this instant case while under the 12 bankruptcy code: 13 (19n) 11 USC § 503(a)(1)(A),(3)(A)(3) whereby (a) An entity may timely file a request 14 for payment of an administrative expense, or may tardily file such request if permitted by the court for cause. (b) After notice and a hearing, there shall be allowed administrative 15 expenses, other than claims allowed under Section 502(f) of this title including-- (1)(A) 16 the actual, necessary costs and expenses of preserving the estate including-- (3) the actual, necessary expenses, other than compensation and reimbursement specified in 17 paragraph (4) of this subsection, incurred by-- (A) a creditor that files a petition under section 303 of this title; (B) a creditor that recovers, after the court's approval, for the 18 benefit of the estate any property transferred or concealed by the debtor; (C) a creditor in connection with the prosecution of a criminal offense relating to the case or to the 19 business or property of the debtor.
20 (19o) 11 USC § 101(10)(A)(B): whereby “(10)” The term “creditor” means-- (A) entity that has a claim against the debtor that arose at the time of or before the order for relief 21 concerning the debtor; (B) entity that has a claim against the estate of a kind specified in 22 section 348(d), 502(f), 502(g), 502(h) or 502(I) of this section. 348 (d) A claim against the estate or the debtor that arises after the order for relief but 23 before conversion in a case ...
24 (19p) In addition to this obvious legal standard (the law), plaintiff relies on exemption to “MLC”f/k/a GM (old) with EXEMPTION TO DISCHAGE 11 USC § 523(a)(6) “for 25
, -13- willful and malicious injury by the debtor to another entity or to the property of another 1 entity.”
2 (19q) The intentionally destructive, malicious crippling attack and libelous assault by 3 GM employee and GMACM agent (via GMAC “ISP”), Mr Kordella and his associates late 4 morning on June 9th, 2009 against this plaintiff on his professional business growth oriented 5 website certainly fit the category of “willful and malicious injury by the debtor (Old GM, k/n/a 6 MLC and also as New GM) to another entity (this plaintiff) or to the property of another entity 7 (this plaintiff's good business/trade reputation and the Mealer Automobile and other Mealer 8 Companies products). Old GM cannot become MLC and New GM in order to escape their quasi- 9
10 criminal activity against this plaintiff simply by changing their name or declaring bankruptcy.
11 (19r) It appears from the beginning (06/09/09) of this grossly disparaging attack upon
12 this victimized plaintiff GM has constantly referred to their non-culpable status as “GUILTY but
13 NOT RESPONSIBLE BY REASON OF BANKRUPTCY”. This plaintiff believes the law
14 clearly states the opposite view of what “Old GM” n/k/a MLC et al has claimed on prior
15 occasions, by this line of GM Family reasoning any other common thief, unlawfully earned 16 monopolistic entity, child rapist, mass murderer, or typical miscreant could simply claim 17 bankruptcy and/or change their name to escape their criminal and/or tortious behavior and avoid 18 their own responsibility. 19 GM ENGINEER KRIS J KORDELLA 20 UNDER PUBLIC AND PRIVATE CAPACITY
21 20. Defendant, GM Engineer Kris J Kordella , Cause of Action (20a) who on June 9th, 2009 22 while at work at his GM office location, did enter and trespass (20b) with malicious intent to 23 injure and destroy (against the will of, wishes and without permission from this plaintiff), 24 plaintiff's privately held business, professional website [which was created, clearly and obviously 25
, -14- put in place for business growth investments between various qualified prospective investment 1 parties, banks, and venture capitalists, customers, etc], and (20c) per Mr Kordella's self-described 2 plan, to cause and create the most damage as possible to this injured, victimized plaintiff, 3
4 “...Anyway I wish you ALL the worst the the world can give to such a.... [this plaintiff]...”
5 [Emphasis kept] (See Exh ______)
6 21. Mr Kordella did create through intentional acts of willful and wanton misconduct and
7 (21a) did publish a series of ultra-inflammatory, injurious (21b) maliciously and strategically
8 worded, (20c) untrue, unwanted, (21d) grossly defamatory of this plaintiff's character and trade, 9 (21e) globally visible and (20f) RSS fed “blogs” (21g) under the clever moniker “MONEY01”, 10 on this plaintiff's prospective investor oriented website, whereby Mr. Kordella's untrue damaging 11 libelous attack (21h) was followed up with private email messages to other prospective clients, 12 engineers, potential investors and Pre-MFG Mealer BV buyers interested in all of Mealer 13 Companies LLC with direct and blatantly derogatory emails berating and (21i) defaming the 14 good character and honesty of this plaintiff and (21j) the over-all credibility of the pending mass 15
16 manufacturing of the Mealer Automobile through intentional slander of title.
17 (21k) Mr. Kordella visited plaintiff's professional and funding growth oriented website
18 using a GM computer and IP address 198.208.251.24 from his GM office in or near (yet with the
19 IP registered to GM in) Bloomfield Hills, MI., concurrently and with what appears to be the
20 assistance and “goading” of both Mr. Joseph Burgel “[email protected]” using IP address
21 198.208.251.22 out of his GM place of work located in or near (yet with the IP registered to GM 22 in) Farmington, MI. and Ms. Christy Garwood “[email protected]” using IP address 23 198.208.251.23 out of her GM place of work located in or near (yet with the IP registered to GM 24 in) West Bloomfield, MI . on June 9th, 2009. (See Exh ______). 25
, -15- 22. Mr. Kordella must answer this complaint honestly in both his private (“severely”) 1 capacity and public capacity (“jointly” as employee/agent GM Engineer, GMACM, ResCap) as 2 he is being sequestered herein as both/all entities. (22a) Mr. Kordella has received employment 3
4 and 'private agent' payroll from all versions of “GM” (22b) prior to AND (22c) following this
5 intentional tortious event 6/9/09, creating multiple Respondeat Superior issues of
6 employer/agented culpability. (22d) To this plaintiff's belief prior to Disclosure, Mr. Kordella
7 may have been acting as agent for the entire GM Family in partial joint capacity whether by
8 direct or indirect agreement or on his own volition due to the GM Family financial woes on June 9 9th, 2009. (See Appendix II) 10 DEFENDANT RESIDENTIAL CAPITAL LLC 11 23. Defendant, Residential Capital LLC (“ResCap”) who has the responsible CEO of 12 Thomas Marano [Headquarters at One Merdian Crossings, Minneapolis, MN], Cause of Action 13 (23a) is the parent company for GMAC Mortgage, (23b) was formed as direct subsidiary to 14 GMAC LLC which is public record, (23c) did actually suggest, inspire and instigate these gross 15
16 deviations of honest banking and mortgage procedures to create “aggressively strategic
17 servicing” techniques [procedures which are unlawful to this plaintiff] for the GM Family as
18 both negligent and intentional acts of willful misconduct in variate degrees against this plaintiff
19 [Specifically, by ResCap's and GMACM's new loan servicing plan-- Any potential mortgage
20 asset which may create intra-corporate “...business risk...” would then require “...reducing...”
21 Specifically, this plaintiff's mortgage and this plaintiff's risky competitive business required 22 direct and abrupt “reducing” in order to provide security for the GM Family of businesses. 23 Whom, through a preponderance of inculpatory evidence, appear to have been acting as 24 GMACM servicing agent while GM engineering was at a stand still, in an effort to maintain the 25
, -16- aggressive reduction of business risk as per ResCap (and GMAC Mortgage) inner-corporate 1 agreements and publications. (See Appendix III, Broad Allegations and Exh _____). 2 (23d) Through a preponderance of evidence, this plaintiff expects to prove that by and 3
4 through ResCap's inspired plan (used by subsidiary GMAC Mortgage) to cut costs and increase
5 GM Family viability, certain aggressive asset management actions were instigated, determined
6 and utilized to “... respond aggressively by further reducing...” “...business risk...” (See
7 Exh_____)
8 To help explain the ResCap and GMACM (and other newly contracted inner-corporate 9 businesses and banks) publicly stated and agreed methods of mortgage contract servicing and 10 plans for GM Family survivability, the following terms quoted from ResCap CEO public 11 statements are below: 12 (23e) The definition of “Aggressive[ly]” according to Merriam-Webster dictionary 13 means, “Tending toward or exhibiting aggression.”
14 (23f) The definition of “Aggression” according to Merriam-Webster dictionary means, 1: a forceful action or procedure (as an unprovoked attack) especially when intended to 15 dominate or master 2: the practice of making encroachments; especially: unprovoked violations 16 by one country of the territorial integrity of another 3: hostile, injurious, or destructive behavior or outlook especially when caused by frustration. 17 (23g) The definition of “Reduce” according to Merriam-Webster dictionary means, 18 1: to draw together or cause to converge: CONSOLIDATE b(1): to diminish in size, amount, extent, or number b(2): to decrease the volume and concentrate the flavor of by boiling c: to 19 narrow down: RESTRICT d: to make shorter: ABRIDGE 2: to restore righteousness 3: to bring to a specified state or condition 4a: to force to capitulate b: FORCE, COMPEL 5a: to bring to 20 a systematic form or character b: to put down in written or printed form 7a: to lower in grade or rank : DEMOTE b: to lower in condition or status :DOWNGRADE 8a: to diminish in 21 strength or density b: to diminish in value ... 22 (23h) The definition of “Business” according to Merriam-Webster dictionary means, 23 1: purposeful activity 2a: role, function b: an immediate task or objective: MISSION c: a particular field of endeavor 3a: a usually commercial or mercantile activity engaged in as a 24 means of livelihood: TRADE, LINE b: a commercial or sometimes an industrial enterprise; also: such enterprises c: dealings or transactions especially of an economic nature : PATRONAGE 25 4: AFFAIR, MATTER 5: CREATION, CONCOCTION 6: movement or action by an actor
, -17- intended to establish atmosphere, reveal character, or explain a situation – stage business 7a: a 1 personal concern b: RIGHT 8a : serious activity requiring time and effort and usually the avoidance of distractions b: maximum effort 9a: damaging assault b: REBUKE, TONGUE- 2 LASHING c: DOUBLE CROSS 10: a bowel movement 3 (23i) The definition of “Risk” according to Merriam-Webster dictionary means, 4 1: possibility of loss or injury: PERIL 2: someone or something that creates or suggests a hazard 3a: the chance of loss or the perils to the subject matter of an insurance contract; also: 5 the degree of probability of such loss b: a person or thing that is a specified hazard to an insurer c: an insurance hazard from a specified cause or source, war risk. ... 6 (23j) The obvious meaning of ResCap and GMACM publicly stated loan servicing 7 program (definitions noted above) was created to utilize the over-all GM-GMAC (GM Family) 8 political and financial strength to forcefully master by any means -including hostile, injurious 9
10 destructive behavior (tort violations) - in fact, and done per the GM Family of businesses claims
11 of “while frustrated” in order to systematically force, compel, restrict and demote competitive
12 trades who may pose a a possibility of loss or injury to the GM Family.
13 (23k) This plaintiff and the Mealer Automobile and other Mealer products certainly fit
14 the category of RISK for the GM Family that GMACM and ResCap has proclaimed they must
15 reduce in order to stay viable as a bank and connected automaker. The defendant's self- 16 proclaimed means, motive and intent to survive in the business sense while doing so with at this 17 unlawfully in connection with this plaintiff and at this plaintiff's intentional gross injury and 18 expense while this critical “creditor to debtor competitive business relationship” became the 19 culminate factor which destroyed this plaintiff and his competitive trade. 20 (23l) The aforementioned seemingly 'broad allegations' involving ResCap's instigating 21
22 efforts as both negligent and intentional acts of willful misconduct will be proven through a
23 preponderance of evidence including ResCap, GMAC and other inner-corporate published
24 documented inculpatory evidence, and other official press releases and/or documents without
25 altering or affecting the absolute fact that GM Employee, GMACM agent, Mr. Kordella did
, -18- already commit (and did previously admit to) publishing the destructive injurious libel in a 1 malicious manner noted herein while at work and while utilizing the GMAC LLC maintained 2 private “ISP”. 3
4 UNITED STATES TREASURY (Department of)
5 24. Defendant, The Department of the US Treasury (“UST”) Cause of Action
6 (23a) through negligent, reckless misconduct [i.e lack of due care] is the main pecuniary
7 source for co-defendant's AND who engaged in gross negligence during the various tortious acts
8 against this plaintiff (ongoing) and allowed; 9 (24b) These co-defendants to begin and to maintain this crippling series of strategically 10 worded injurious falsehoods which amount to both civil and criminal behavior and have been 11 allowed since June 9th, 2009 to continue on this plaintiff's website to the severe business and 12 personal reputation crippling, injurious detriment (herein noted) [via “UST” funding of plaintiff's 13 general operating costs, specifically the GMAC HQ maintenance for the GMAC LLC located 14 and "protected computer," per 18 U.S.C. § 1030(e)(2) , which designates the private and highly 15
16 secured Internet Service Provider (“ISP”)] without a subsequent “GM Family” corporately stated
17 apology (neither public nor private) for the damaging libelous tyrade nor any sort of “GM
18 Family” corporately stated request (neither public nor private) to have this attack removed.
19 [However, to be fair and clear, the lack of public apologies from GM-GMAC, prior to the date of
20 service of this lawsuit or the preceding final notice certified letter to Secretary of the UST
21 Geithner on 8/1/2010, is no fault of the UST], 22 (24c) LET IT BE KNOWN: The US Treasury is now, on this date of service, formally 23 and officially fully aware of these criminal and tortious activities by both GM and GMAC and 24 (24d) if they do not immediately halt all such funding and retract all monetary backing of said 25
, -19- companies whereby any UST funds are continued to be used, whether whole or in part, to 1 perpetuate these crimes, AND 2 (24e) to force immediate legal and remedial actions upon GM, GMAC whereby the UST 3
4 requires GM, GMAC to remove and issue a public corporate apology for said oppressive libelous
5 tactics used against and to destroy this plaintiff and (24f) because, in fact, GM, GMAC via UST
6 funding, have and continue to destroy this plaintiff and interfere with this plaintiff's business in
7 clear violation of federal and state laws, (Specifically ARS Codes noted at ¶ 24l, ¶ 24m) .
8 (24g) The UST may from this day onward be held accountable as a knowing and willing 9 (aiding and abetting) accomplice to the tortfeasors and crimes against this plaintiff noted herein. 10 (24h) WHEREFORE the United States Treasury (“UST”) BY LAW must from this point 11 forward be held accountable as a full criminal partner (see complaint herein) and direct tort 12 associate on these criminal activities. (23i) Please be aware that plaintiff's next claims and 13 allegations will be proven as (24j) Willful and Wanton Misconduct to replace this plaintiff's 14 current claims for damages and allegations through what is currently, 15
16 (24k) Reckless Misconduct, by the UST against this plaintiff which is classic guilt by
17 association amounting, in either circumstance in regards to ¶ ¶ ¶ 24h,24i,24j herein , to aiding and
18 abetting the perpetuation of these seriously damaging tortious action[s] and crime[s] against this
19 plaintiff by and through the agreed UST as lender status and delivery of GM, GMAC TARP and
20 other funding on a “committed basis”.
21 (24L) Arizona Revised Statutes § 13-1003 and by law of conspiracy and pure 22 unmitigated complicity, the UST can no longer continue to provide funding in a quasi-fiduciary, 23 wholly pecuniary manner or in any other committed basis for co-defendants as they are acting 24 unlawfully and with unclean hands to destroy this victimized plaintiff through the improper use 25
, -20- of lender UST funds in regards to the maintenance of and protection of the privately owned 1 "protected computer," per 18 U.S.C. § 1030(e)(2), which designates Internet Service Provider 2 “ISP” which is the basis of perpetuating the crimes and torts noted herein. 3
4 (24m) Arizona Revised Statutes § 13-2303. Financing extortionate extensions of
5 credit, Refers to exactly what the UST is participating with from this point forward and this
6 plaintiff expects to be compensated by the UST separately for damages incurred after this date.
7 “A person who knowingly advances money or property, whether as a gift, loan, investment,
8 pursuant to a partnership or profit sharing agreement or otherwise, to any person, with 9 reasonable grounds to believe that it is the intention of that person to use the money or property 10 so advanced, directly or indirectly, for the purpose of making extortionate extensions of credit, 11 is guilty of a class 2 felony.” The Honorable Secretary Geithner must regretfully be held 12 personally liable for his own negligence from this day forward if GM-GMAC continue to receive 13 funding or benefit from UST actions or in-actions to have this blackening,damaging injurious 14 libel and falsehoods including but not limited to trade libel removed from this plaintiff business 15
16 and funding related website. Plaintiff does not make these claims against the UST or Secretary
17 of Treasury Geithner with satisfaction, but with a heavy heart.
18 (24n) Plaintiff is making it very clear to the UST, this honorable court and all parties, that
19 for the UST and/or the US Government to go any further in working with GM, GMAC or any
20 new corporate names this company may invent (herein called the “GM Family”) while the “GM
21 Family” continues to commit the crimes and torts noted herein against this plaintiff, THEN the 22 UST and USG will be held fully culpable as willing accomplice. 23 (24o) Reserved. 24
25
, -21- (24p) Potential-additional culpable parties within the UST or elsewhere are not being 1 served at this time, since they are unknown until this honorable court grants Discovery. 2 (24q) A legal point that must be understood by the UST, is that now that you are aware 3
4 of these issues, the UST will be held liable for protecting and not participating in the further
5 destruction of this plaintiff's constitutional protected rights to be detailed as needed and in
6 court, (24r) specifically, the right to free agency, the right to NOT be deprived of life, liberty
7 and pursuit of happiness, et al (24s) [which for this plaintiff is the goal of creating a business that
8 expands the US workforce and creates jobs while promoting and selling the Mealer Automobile 9 and other Mealer Companies LLC US made products]) from being further reduced and eroded by 10 the companies you are funding (specifically GM and GMAC and whatever corporate name 11 changes they invent. 12 (24t) The UST has no protection from any law to allow the funding of co-defendant's 13 gross abrogations of rights and tortfeasors against this plaintiff. 14 (24u) Wherefore, United States Treasury, you are on notice, do what the law commands 15
16 and stop funding this illegal activity. (24v) And yes, I am ready for that series of audits, you will
17 probably now throw at me and my now destroyed business(es).
18 FACTUAL ALLEGATIONS
19 25. Defendant, Mr. Kris Kordella, on information and belief, resides at 1575 Honert Rd.,
20 Ortonville, MI (48462) (24a) Mr. Kordella's current phone number is (248)-627-3631
21 (25b) Mr. Kordella was a seasoned and experienced loyal member of the GM Family 22 from “May 1986 to September 2009” (23 yrs, 5 mos.)” 23 (25c) Mr. Kordella served for a time as Senior Engineer for GM and is 24 (25d) now “self-employed” (24e) with UAW and GM benefits as a 25
, -22- (25d) “Quality Engineering & Education and Training Development” [instructor] for 1 (25g) GM related 'classes' 2 (25h) at various GM owned and/or leased locations (25i) since October 2009 3
4 (25i) at least partially from within GM facilities and GM maintained classroom setting
5 for the benefit of GM, (25j) and at least partially to benefit of “NEW GM”.
6 26. Mr. Kordella, while signing up and creating his simulated character “MONEY01” who,
7 by the very moniker, while appearing to profess himself a highly rated investor “guru” or “know-
8 it-all” (and engineer per “MONEY01” proclamations) 9 (26a) did publish untrue, derogatory injurious falsehoods about the Mealer Automobile 10 and plaintiff, Mr. JL Mealer himself, 11 (26b) on June 9th, 2009 and also through direct email messages to “MONEY01” blog 12 related parties. 13 27. Mr. Kordella's return email address as entered into his MONEY01 blog on plaintiff's 14 professional website in what he made appear to be a new financial, professional engineering 15
16 opinion blog was/is “[email protected]” and originated from GM registered IP address
th 17 198.208.251.24 in or near Bloomfield Hills, MI., while at work on June 9 , 2009 by and through
18 the GMAC LLC, HQ maintained, protected and privately owned "protected computer," per
19 18 U.S.C. § 1030(e)(2), which designates Internet Service Provider “ISP” “GMC-20” which is
20 jointly owned by all corporate defendants through contracts as noted herein.
21 28. Defendant's willful and malicious conduct and conscious disregard of this plaintiff's 22 safety and business goals and personal reputation and through gross deviation of conduct 23 creating irreparable injury to this plaintiff (specifically defendant, Mr. Kordella) who was on 24 June 9th, 2009; 25
, -23- (28a) a GM employee AND (28b) a subsequent GMACM agent [which is subsidiary of 1 ResCap, which is subsidiary of GMAC LLC and under contract for cross-collateralization of all 2 negotiable instruments and mortgage interests with each other] while utilizing jointly owned 3
4 GMAC LLC Corporate HQ maintained “ISP” while at his place of work for GM in a GM
5 building on a GM Family network computer (specifically registered to GM the automaker),
6 (28c) did personally use his self-created “MONEY01 Blogging Account” on plaintiff's
7 privately owned business growth website, in order to immediately globally publish maliciously
8 planned denigrating attacks against this plaintiff and have viewed by prospective future 9 customers and funding agents and to be implied with extreme significance, via; exclusive RSS 10 fed and automatically emailed “news updates.” 11 (28d) Phony news updates and untrue commentary which Mr. Kordella created through 12 his MONEY01 blog were immediately published globally on this plaintiff's “private business 13 funding and product growth website” known as “http://mealercompanies.com” whereby the 14 actions and damages noted herein, did occur and continue to occur to the extreme detriment of 15
16 this plaintiff and this plaintiff's automaker business;
17 (28e) While under Mr. Kordella's professional capacity, (27f) While at work for GM,
18 (28g) While using the GMAC et al private “ISP,” (27h) While trespassing with intent to destroy
19 on this plaintiff's professional business website, which was;
20 (28h1) Created to influence multiple qualified prospective investors, clients, customers,
21 employees, banking institutions, US Military and US Border Patrol prospective interests, 22 governmental prospects, etc., 23 (28h2) Created for privately owned independent automaker “Mealer Companies LLC,” 24 (28h3) In order to gather $200,000,000. of prospective B-Round trade growth investment 25
, -24- funds, and, (28h4) Created to gather $30,000,000. worth of prospective pre-MFG sales of the 1 Mealer BV (slated for 2000 units) AND, 2 (28i) did effectively publish on a global scale; 3
4 (28i1) Multiple grossly disparaging, derogatory, injurious falsehoods, and
5 (28i2) Gross trade libel. (28i3) By and through a derisive AND effective tortious design
6 to intentionally interfere with prospective advantageous fund investors and future product sales;
7 (28j) Which created these exact pecuniary and compounding daily damages AND
8 (28k) Other irreparable harm to this plaintiff's; 9 (28k1) through Personal defamation of good character AND (28k2) destruction of 10 Professional reputation AND 11 (28k3a) unprofessional, aggravated willful and wanton misconduct (which is ongoing 12 and intentional) resulting in improper influence and intentional tortious interference regarding 13 the prospective investment viability and trade libel specifically regarding the Mealer 14 Automobile, 15
16 (28k3b) and other Mealer products for domestic manufacturing trade and to be marketed
17 for sale publicly and governmentally as detailed herein.) (See Appendix II) (See Exh.______)
18 (28l) Mr. Kordella did in fact visit this plaintiff's professional website and while and after
19 and during signing up to blog and actually “blogging” with ill intent the injurious falsehoods and
20 trade libel per se under moniker MONEY01, did also open an Internet “window” to view and
21 read the actually defined and detailed webpage of mealercompanies.com entitled “WHAT WE 22 ARE REALLY ABOUT” [“http://mealercompanies.com/?page_id=2”] and did personally 23 review the actual reasons for the existence of this plaintiff''s prospective funding website 24 multiple times prior to and during his malicious and intentional acts of willful and wanton 25
, -25- misconduct whereby he did in fact publish a series of ultra-inflammatory, injurious, maliciously 1 and strategically worded, injurious falsehoods about this plaintiff and his automotive 2 manufacturing trade creating trade libel, intentionally and explicitly to destroy this plaintiff's 3
4 notoriety, ability, plans, goals and desires to gather funding and expand manufacturing of the
5 Mealer Automobile and other Mealer products and to destroy pre-MFG sales and the total
6 destruction of the Mealer name. (See Exh______)
7 (28m) Defendant Mr. Kordella while at work for GM and while using the private, jointly
8 owned and "protected computer," per 18 U.S.C. § 1030(e)(2), which designates Internet Service 9 Provider “ISP” [By and through the cross-collateralization under the Omnibus Security 10 Agreement and other documents and agreements whereby granted a security interest to the 11 Omnibus Agent in any cash or other property posted or required to be posted as collateral 12 (REFER TO ALL OF “ ¶ # 63 ” herein)] while on this plaintiff's professional business and 13 funding website creating the injurious falsehoods and trade libel, did also participate with two 14 other GM employees and did share interactions and communication with Mr. Joe Burgel and Ms 15
16 Christie Garwood who were also at work for GM at separate locations and were simultaneously
17 visiting the same website pages of this plaintiff from the defendants' private, jointly owned and
18 "protected computer," per 18 U.S.C. § 1030(e)(2), which designates Internet Service Provider
19 “ISP” [By and through the cross-collateralization under the Omnibus Security Agreement and
20 other documents and agreements whereby granted a security interest to the Omnibus Agent in
21 any cash or other property posted or required to be posted as collateral (REFERENCE ALL OF 22 “¶ #63” herein)] and sharing suggestions on exactly what untrue and unwarranted methods and 23 injurious falsehoods terminology to use to publish and permanently destroy this plaintiff. 24
25
, -26- 29. General Motors Corporation (“GM” a/k/a “GMC”) was founded on September 16, 1908, 1 in Flint, MI., as a holding company for Buick. (28a) In the mid 1920's “GM” HQ was moved to 2 Detroit, MI. 3
4 30. General Motors Acceptance Corporation (“GMAC”) was a wholly owned subsidiary of
5 General Motors Corporation“GM” when it was formed in 1919 as the “GM” financial arm
6 mainly to provide funding for GM vehicles.
7 (30a) “GMAC” has multiple inner-corporate branches, such as;
8 (30b) GMAC Financial Service(s) (“GMACfs) created specifically for home loans), 9 AND (30c) GMAC Commercial Finance (“GMAC CF”) created specifically to maintain dealer 10 vehicle supplies, credit and vehicle stock on GM Lots), (30d) In July 2006, General Motors 11 Acceptance Corporation changed its name to GMAC, LLC 12 31. On May 15th, 2009, GMAC's banking unit enhanced/changed their corporate presence 13 with a new name whereby they planned to become publicly recognized as the new Ally Bank 14 (a/k/a Ally Financial), 15
16 (31a) and agreed to accept and offer loans for Chrysler vehicles specifically so that they
17 could receive funds from GM after the GM - “UST” - T.A.R.P. funding AND
18 (31b) as publicly stated, specifically so that the defamed “GM” title would not become a
19 blemish to “GMAC” (31c) AND as GMAC's banking unit would thus become re-branded as the
20 new “Ally” financial, a bank and lending unit.
21 32. On May 21st, 2009, the US Treasury announced it would invest an additional $7.5 Billion 22 in GMAC LLC which gave the US Government the majority stake. 23 33. GMAC, LLC (GMAC), previously known as General Motors Acceptance Corporation, 24 was incorporated in 1919 as a wholly owned subsidiary of General Motors Corporation (GM). 25
, -27- 34. GMAC Global Relocation Services LLC, a member of the GM Family, changed it's name 1 to Brookfield Relocation Services LLCs, in 2009. 2 35. Residential Capital LLC was formed as a subsidiary of GMAC LLC to provide 3
4 Residential Funding Corporation (“RFC”) and GMAC Mortgage with a revolving credit facility.
5 36. The “credit facility” mentioned in “¶ #35” is secured by “RFC's” and GMAC Mortgage's
6 servicing rights and related contractual rights under certain pooling and servicing agreements and
7 loan servicing agreements with respect to pools of mortgage loans and home equity lines of
8 credit. 9 37. Residential Funding Corporation “RFC” and GMAC Mortgage, LLC entered into a Loan 10 and Security Agreement with GMAC LLC October 23rd, 2008 11 38. Under the terms of the Loan and Security Agreement, RFC and GMAC Mortgage were 12 permitted to request loans from the lender until October 17th, 2008, at which point the loans 13 would mature, unless refinanced or repaid earlier. 14
15 39. On June 1, 2008 “ RFC”, GMAC Mortgage (“GMACM”) and GMAC LLC entered into
16 an amendment to increase GMAC LLC maximum lending commitment under the Loan and
17 Security Agreement from $750 million to $1.2 billion.
18 40. Residential Funding Company, LLC (“RFC”) and GMAC Mortgage, LLC announce
19 extension of mortgage loans and home equity lines of credit facility to July 31st, 2009.
20 41. Residential Capital LLC is the parent company for GMAC Mortgage.
21 42. GMAC Mortgage is licensed to do business in Arizona under an Arizona Mortgage
22 Banker License # BK-0908590 and is an indirect wholly owned subsidiary of Ally Financial Inc.,
23 one of the largest financial services companies in the world.
24 43. GMAC Mortgage is a leader in customized subservicing programs, offering a full range
25 of branding options to support the servicing of multiple products across multiple asset grades,
, -28- 1 including first mortgages, home equity loans and lines, and unsecured consumer credit.
2 Originators, servicers or investors can maximize profits with GMAC Mortgage by:
3 (43a) decreasing costs, (43b) moving into new markets quickly and efficiently,
4 (43c) mitigating operational risk, (43d) increasing focus on core business, and
5 (43e) executing various secondary market options. (43f) GMAC Mortgage works with
6 businesses to develop a cost-effective servicing solution tailored to individual business
7 objectives.
8 (43g) With their state-of-the-art systems and operations, they assist companies in
9 protecting assets and maximizing returns so they can focus on their core revenue producing
10 activities.
11 44. On April 18th, 2008, Residential Funding Company, LLC and GMAC Mortgage, LLC
12 (GMACM) (each of which are subsidiaries of ResCap), entered into a Loan and Security
13 Agreement with GMAC Inc., as lender, to provide company and GMACM with a revolving
14 secured credit facility, which is secured by RFC's and GMACM's servicing rights and related
15 contractual rights under certain pooling and servicing agreements and loan servicing agreements
16 with respect to pools of mortgage loans and home equity lines of credit. On June 30, 2009, the
17 loan repayment dates for each of the MSR Facility, the November Facility and the June Facility
18 were extended from June 30, 2009 to July 31, 2009.
19 45. GMAC Mortgage, LLC engages in originating and servicing residential mortgages.
20 (45a) The company operates three primary business units: (45b) GMAC Mortgage,
21 (45c) GMAC Home Services, and (45d) GMAC Bank. (45e) GMAC Mortgage business
22 unit originates first and second lien residential mortgage loans through a network of retail
23 offices; direct lending centers; and Internet sites, such as http://www.gmacmortgage.com and
24 http://www.ditech.com. (45f) GMAC Home Services LLC business unit provides real estate
25 services directly to customers. (45g) GMAC Global Relocation Services LLC is a subsidiary of
, -29- 1 GMAC Home Services business unit and offers GM Family and associate members specialized,
2 private member relocation services. (45h) GMAC Bank business unit provides online banking
3 services, which include money market savings accounts and fixed-term certificates of deposit.
4 (45i) GMAC Mortgage, LLC was formerly known as GMAC Mortgage Corporation. (45j) The
5 company was founded in 1985 and is headquartered in Horsham, Pennsylvania. (45k) It has
6 additional offices in the United States and Canada. GMAC Mortgage, LLC operates as a
7 subsidiary of GMAC Mortgage Group, LLC.
8 46. The “GMAC” umbrella group of mortgage and it's inner-related finance companies is
9 one of the nations largest residential mortgage lenders. (46a) GMAC originates and services
10 loans for customers nationwide and (46b) has earned a reputation for offering high-quality
11 service to it's customers. (46c) GMAC (et al) once strong reputation as a family-oriented lender
12 is now of a lender who places more stringent, unyielding standards against its customers to
13 benefit it's new shareholders and their “bottom dollar”.
14 (46d) GMAC's family of lenders (specifically GMACM) is a member of the GM Family
15 and provides GM Family benefits to other members of the GM Family and benefits from other
16 members of the GM Family.
17 47. GMAC Mortgage Corporation is a division of the General Motors Acceptance
18 Corporation. (47a) GMAC Financial Services, which is the parent organization of GMAC
19 Mortgage, encompasses (47b) insurance, (47c) real estate, (47d) auto loans, and
20 (47e) commercial finance. (47f) This international company has been part of the General
21 Motors Family since the late 1910s.
22 48. GM Family First is a program offered to GM employees and its related companies.
23 (48a) The program waives appraisal costs and guarantees that GMAC will hold mortgage
24 for the life of the policy.
25
, -30- 49. GM Family First eligibility includes employees (active, retired and surviving 1 spouses/domestic partners of retired employees) of the following companies: (49a) General 2 Motors, EDS, Delphi, The Raytheon Company, Hughes Electronics. Eligible family members of 3
4 employees include: Spouses, Children (including step), Grandchildren (including step), Parents
5 (including step), Grandparents (including in-law and step), Siblings (including full, half and
6 step), In-laws (including mother, father, son, daughter, brother and sister), Same-sex domestic
7 partners (where applicable). (49b) GM Family First is also available to GM dealership
8 employees and their eligible family members. This includes employees of non-GM dealers who 9 are part of a multi-dealer group that includes a GM dealership. 10 50. GMAC was renamed Ally Financial in 2010, and was founded in 1919 as the General 11 Motors Acceptance Corporation (GMAC) to be a provider of financing to automotive customers. 12 Since then, the business has expanded to include insurance, online banking, mortgage operations 13 and commercial finance. 14 51. Reserved 15
16 52. Per GMACM loan servicing agreements with ResCap and through various ResCap's
th 17 publicly released statements, the GM Family cabal was, on June 9 , 2009, employing what the
18 ResCap CEO consciously termed and expressed as an “...aggressive...” response for mortgage
19 debt collection and as loan servicing guidelines, which did qualify and eliminate certain
20 competitive businesses (specifically the Mealer Automobile) “... by further reducing...” the
21 ResCap, GMACM, GMAC LLC, and GM Family, “...business risk...” standards in order to 22 increase profits and decrease loss for the entire GM Family. 23
24
25
, -31- 53. GMAC purchased plaintiff's home mortgage loan from the Arizona based mortgage 1 company “Amerifirst Financial Inc.” This transaction was made without consultation or by 2 choice of this plaintiff and became effective according to GMAC(M) on April 1st, 2008. 3
4 54. On December 29th, 2009, the UST invested $5 Billion in GMAC from its Troubled Assets 5 Relief Program (TARP). 6
7 55. On July 15th, 2010 [TG-777] Treasury Secretary Timothy Geithner remarked on the
8 passage of the “Wall Street Reform and Consumer Protection Act”, in part: 9
10 “...He [US President Obama] called for a restoration of responsibility, for a more stable banking system with stronger protections for American families and businesses. And 11 last spring as President, he called for comprehensive reform – not changes at the margin – because failures of our financial system were so devastating to the lives and dreams of so many 12 Americans....” “...They will help restore the great strength of the American financial system which – at its best – develops innovative ways to provide credit and capital, not just for our great 13 global companies, but for the individual with an idea and a plan...”
14 (55a) Although this currently pending law (as this first amended document is drafted) is 15 supposed to prevent the too “big to fail” situations such as with GM and GMAC, it is apparent 16 that banks such as GMAC et al will be required to act with prudence and care and follow the law 17 of the land with and without contracts and not with the intentional recklessness, wanton 18 malfeasance with criminal intent as GMAC Mortgage, GMAC et al has put upon this injured 19 plaintiff, simply to self-serve and to support their own interests. Albeit, the laws protecting the 20 new businessman from anti-competitive and direct creditor misconduct including banking fraud 21
22 and a host of tortious offenses do actually already exist, Mr. Geithner has restated that Congress
23 will further protect the “...individual with an idea and a plan...”
24
25
, -32- 56. Intentionally Interfering With [an individual's or a businesses'] Prospective Advantage is 1 also referred to as tortious interference by legal standards in most American States, specifically 2 in Arizona. 3
4 57. Reserved
5 58. “GM” has retained approximately $20 Billion in automobile financing through the new
6 GMAC (aka Ally) in their dealing with Cerberus worth an estimated $4 Billion over three years.
7 59. On December 29, 2008, the United States Department of the Treasury invested $5 billion
8 in GMAC from its $700 billion Troubled Asset Relief Program (TARP). 9 60. As of May 15, 2009, GMAC's banking unit officially changed its name to Ally Bank. 10 61. On May 21, 2009, the U.S. Treasury announced it would invest an additional $7.5 billion 11 in GMAC LLC which gave the U.S. government the majority stake in the new company. 12 62. On May 10, 2010, GMAC Inc announced that it re-branded itself as Ally Financial Inc. 13 63. PER the SEC filing readable at [“http://www.secinfo.com/d12TC3.sFg8.htm”] 14 (63a)“On March 18, 2009, Residential Capital, LLC (“ResCap”) and two indirect 15
16 subsidiaries of ResCap, Residential Funding Company, LLC (“RFC”) and GMAC Mortgage,
17 LLC (“GMAC Mortgage”), each entered into an ISDA 2002 Master Agreement (collectively and
18 together with the schedules, annexes and swap transactions relating thereto, the “ISDA
19 Agreements”) with GMAC Investment Management LLC (“GMAC IM”), a subsidiary of GMAC
20 LLC (“GMAC”), whereby ResCap, RFC and GMAC Mortgage each agreed with GMAC IM to
21 enter into foreign exchange and interest rate hedging transactions. On March 18, 2009, GMAC 22 Mortgage entered into a Master Securities Forward Transaction Agreement (together with the 23 annexes and swap transactions relating thereto, the “Forward Agreement” and together with the 24 ISDA Agreements, the “Derivative Agreements”) with GMAC IM whereby GMAC Mortgage 25
, -33- agreed to sell certain mortgage backed securities to GMAC IM from time to time on a forward 1 basis.” 2 (63b). “On March 18, 2009, ResCap, RFC, GMAC Mortgage, and two indirect 3
4 subsidiaries of ResCap, Passive Asset Transactions, LLC (“PATI”) and RFC Asset Holdings II,
5 LLC (“RAHI” and together with ResCap, RFC, GMAC Mortgage and PATI, the “ResCap
6 Entities”) entered into a Guarantee and Master Netting Agreement (the “Master Netting
7 Agreement”) with GMAC and GMAC IM whereby the parties agreed to aggregate, net and set
8 off against GMAC IM across the following related agreements: (i) the Derivative Agreements, 9 (ii) the Loan Agreement dated as of November 20, 2008 (the “November Loan Agreement”) by 10 and among the ResCap Entities, GMAC as lender agent (in such capacity, the “November Lender 11 Agent”), and GMAC as initial lender, and (iii) the Loan and Security Agreement dated as of 12 April 18, 2008 (the “MSR Agreement”) by and among ResCap, RFC, GMAC Mortgage and 13 GMAC as lender (in such capacity, the “MSR Lender”).” 14
15 (63c). “In connection with the Derivative Agreements and Master Netting Agreement,
16 on March 18, 2009, the ResCap Entities as grantors entered into an Omnibus Pledge and Security
17 Agreement and Irrevocable Proxy (the “Omnibus Security Agreement”) with GMAC as omnibus
18 agent (in such capacity, the “Omnibus Agent”), the November Lender Agent, the MSR Lender,
19 GMAC as a secured party and GMAC IM as a secured party, whereby the ResCap Entities
20 agreed to cross-collateralize their respective obligations under (i) the Derivative Agreements, (ii)
21 the November Loan Agreement and the Pledge and Security Agreement and Irrevocable Proxy
22 dated as of November 20, 2008 (the “November Security Agreement”) by and among the ResCap
23 Entities and the November Lender Agent, and (iii) the MSR Agreement. To secure such
24 obligations, the ResCap Entities granted a security interest to the Omnibus Agent in any cash or
25 other property posted or required to be posted as collateral by ResCap, RFC and GMAC
, -34- 1 Mortgage to GMAC IM pursuant to the terms of any Derivative Agreement and all right, title and
2 interest of each of ResCap, RFC and GMAC Mortgage in, to and under any Derivative
3 Agreement, and in the collateral previously pledged to the November Lender Agent and the MSR
4 Lender, including (i) RFC’s receivables under certain warehouse loans it has made to third-party
5 lenders; (ii) a secured note issued to PATI by Flume (No. 8), (iii) 100% of the equity of PATI A,
6 LLC and 100% of the equity of RAHI A, LLC, and (iv) RFC’s and GMAC Mortgage’s servicing
7 rights and related contractual rights under certain pooling and servicing agreements and loan
8 servicing agreements with respect to pools of first- and second-lien mortgage loans and home
9 equity lines of credit.”
10 (63d). “In connection with this cross-collateralization under the Omnibus Security
11 Agreement, on March 18, 2009, the ResCap Entities and GMAC entered into the Fourth
12 Amendment to the November Loan Agreement and the First Amendment Agreement to the
13 November Security Agreement; and ResCap, RFC, GMAC Mortgage and GMAC entered into
14 Amendment No. 8 to the MSR Agreement.”
15 (63e). “The Omnibus Security Agreement and each of the Derivative Agreements
16 contain representations, warranties and covenants customary for such agreements. Other
17 provisions of the Omnibus Security Agreement include limitations on creating liens, incurring
18 debt, transactions with affiliates, sale/leaseback transactions, engaging in new lines of business
19 activity, paying dividends, and mergers and sale of substantially all assets. In addition, on March
20 18, 2009, the Loan Repayment Dates for the MSR Agreement and the November Loan
21 Agreement were extended to June 30, 2009.”
22 64. Reserved.
23 65. Reserved.
24 66. Reserved.
25 67. Reserved.
, -35- 1 68. GMACM, GMACLLC, RESCAP and defendant's GM have been aware of their willful
2 and malicious misappropriation of funds used unlawfully against and to the detriment of this
3 plaintiff within 15 days of the unlawful incident and have not yet responded or made an attempt
4 to have removed the content of their destructive, aggressive behavior, which is a perpetuation and
5 continuation of their destructive tortious and criminal and inner-corporate collusive activity.
6 INITIAL OUTLINE OF ALLEGATIONS, VIOLATIONS, TORTS 7 69. These instant “fully plausible allegations” detailed herein according to case law noted on 8
9 Pgs 98, 99 are highly extraordinary, yet are in fact, true and provable albeit seemingly bizarre
10 and rare. (69a) These fully plausible, factual and documented statements and the resulting claims
11 caused by and intentionally perpetuated by defendants' actions against this victimized plaintiff
12 include a letter of intent and admission by defendants' (specifically Mr. Kordella).
13 (69b) Plaintiff is well aware and expecting the defense counsel to claim these facts are 14 merely broad allegations, wild accusations and baseless claims, but as is proven by the GM 15 Family of defendants (as detailed herein) this improper means was/is standard operating 16 procedure for defendant's as a bank, as an automaker, as a mortgage company and as a loan 17 servicing company, and 18 (69c) this plaintiff looks forward to our day before a jury in this honorable court so that 19 this may be proven through testimony, inculpatory evidence and direct government documents 20
21 created by and filed by defendants..
22 70. Plaintiff contends that even without full disclosure from plaintiff's this complaint may
23 stand in court and (70a) by all legal ramifications the plaintiffs both individually and
24 (70b) collectively are culpable for the 100% of the damages, losses and irreparable harm
25 including but not limited to defamation of character, trade libel and tortious interference, et al
, -36- made unconscionable and with malice against this plaintiff through (70c) respondeat superior 1 “severely” (Master and Servant) and/or 2 (70d) “jointly” as working in concert. (70e) Through a preponderance of evidence and a 3
4 prima facie letter of confession by GM these claims have been proven and the all defendants'
5 inner-corporate associates who may have participated with the injury of this plaintiff will be
6 brought forth at trial during discovery.
7 (70f) With ample inculpatory evidence of defendants' “civil conspiracy” this plaintiff
8 contends that this intentionally grossly destructive, malicious attack will unfold into a series of 9 criminal activity that may shape future case law. 10 (70g) As an attorney for Wolfe & Wyman LLP who represent GMAC Mortgage LLC, 11 stated on this matter while discussing this extraordinairy case over the phone on August 3rd, 12 2010; (somewhat paraphrased), “...This case can be compared to a movie made by producers 13 Michael Moore and Oliver Stone combined...” This plaintiff has to agree with Wolfe & 14 Wyman's initial outlook on this complex yet very simple complaint and the absolutely incredible 15
16 factors involved to create this entire scenario, but as is proven within this complaint, with the
17 inculpatory evidence provided and GM employee Mr. Kordella's admission and reasoning of his
18 injurious falsehoods and intent combined with the SEC filings made by GMACM, GMAC LLC,
19 ResCap, et al themselves and the public announcements made by ResCap's CEO Thomas
20 Marano, that this is not a bad “B” movie, but a fully plausible and real life intentionally arranged
21 anticompetitive drama that has destroyed this plaintiff to the benefit of GM and the GM Family, 22 specifically, the defendants. 23 (70h) The New GM may not have succeeded to the financially respectable and generally 24 recovered manufacturing position as “Old GM” today, if another new US Automaker 25
, -37- (specifically Mealer Companies LLC) had come into the spotlight in the summer of 2009. This 1 plaintiff believes that but for the trade libel and personal character assassination of this plaintiff 2 including the improper and unlawful destruction of the reputation of the Mealer Automobile was 3
4 a necessary, highly unlawful requirement for the General Motors Corp., k.n/a. New GM and GM
5 Family (specifically the defendants) during their critical moment of abject failure in June 2009,
6 (70i) AND the expanded Mealer Automobile and other Mealer Companies' products
7 would have been funded for expansion “but for” the intentional interference by defendants of this
8 plaintiff's prospective advantage and defendants' strategic sabotage which is their published trade 9 libel through published injurious falsehoods which were strategically prepared to cause the most 10 harm and did in fact, expose this plaintiff to public hatred, shame, obloquy, contumely, odium, 11 contempt, ridicule, aversion, ostracism, degradation and disgrace, and did induce an evil, 12 disgraced, uncertain opinion of this plaintiff and the Mealer Automobile in the minds of right- 13 thinking persons, prospective customers and investors which did deprive this plaintiff of the 14 confidence needed from prospective funding groups and family's and/or individuals who 15
16 required trust in plaintiff and the safety of the Mealer Automobile prior to purchasing the
17 automobile and other products whereby future customers required a high level of trust of
18 engineering prior to Mealer Automobile purchases and the placing of loved ones in the Mealer
19 Automobile.
20 (70j) These ultra destructive for and committed by defendants' against this plaintiff on
21 June 9th, 2009 and the subsequent , damaging and injurious falsehoods and irreparable trade libel 22 including defendants' follow up emails to prospective clients and investors by defendants, 23 (specifically Mr. Kordella) have utterly and permanently destroyed the Mealer Automobile name 24 and the trustworthiness and honesty of this plaintiff. 25
, -38- COUNT I 1 GMACM, ResCap, GMAC LLC, MORTGAGE ASSETS MISHANDLING, MISAPPROPRIATION OF MORTGAGE FUNDS Title 18 USC 657, MISUSE OF 2 MORTGAGE PAYMENTS (FRAUD, CONSTRUCTIVE FRAUD), WANTON AND RECKLESS MISCONDUCT, ADVANCEMENT OF ECONOMIC ESPIONAGE 3 THROUGH ELECTRONIC AND PUBLISHED MEANS, WILLFUL MISAPPLICATION 4 OF MONIES, ATTEMPTED THEFT BY CONVERSION , IMPAIRED CONSENT, WICKED EXPLOITATION, UNDUE INFLUENCE, UNCONSCIONABLE DEALINGS, 5 BREACH OF IMPLIED FIDUCIARY RESPONSIBILITY, et al
6 71. GMAC, ResCap, GMACM' (et al) improper conduct, wanton and reckless misconduct
7 and the various wicked exploitation circumstances described herein committed through (71a)
8 perversions of prudence, care, misuse and illegal improper pecuniary misapplication of this
9 plaintiff's mortgage payments did result in the commission of tortious behavior, gross negligence
10 and defendants did willfully perpetuate against this plaintiff, and causing harm, creating hardship
11 and bankruptcy and loss of prospective funding to the detriment of this plaintiff by;
12 (71a1) fraudulent mishandling of assets (specifically the perverted abuse of this plaintiff's
13 mortgage payments to harm this plaintiff while benefiting themselves ), which encompass;
14 (71a2) illegal, unfair and unethical business practices, (71a3) contributory unlawful,
15 unfair competition, (71a4) attempt to unlawfully obtain through lawful foreclosure by improper
16 means, this plaintiff's real estate, via false pretenses (theft by conversion), (71a5) illegal contract
17 manipulation with intent to cause mortgage default (mortgage fraud), (71a6) wrongful
18 appropriation through gross misconduct, resulting in extortion,
19 (71a7) abrogation of banking and creditor standards of fairness and procedure,
20 (71a8) impaired consent through breach of contractual assumption of trust through
21 “equitable lien” and “security interest” (which is the mortgage contract between GMACM and
22 plaintiff which creates a quasi-fiduciary relationship through the duty of trust and care between
23 contractual parties) and
24 (71a9) unconscionable dealings causing breach of fiducial obligation to prohibit (“GM
25 Family”) intra-corporate self-dealings and (71a10) contract breach of implied covenant of good
, -39- 1 faith and fair dealing which directly relates to creditors failure of duty of non-interference,
2 inadequate protection for debtor in respect to this instant mortgage obligation.
3 (71a11) GMACM and ResCap did aid and abet and commit by direct participation a
4 series of irreparably harmful acts tot his plaintiff of gross negligence and dereliction of duty to
5 act fairly while under contract with this plaintiff
6 (71a12) which is but is not limited to; willful and malicious misappropriation of this
7 plaintiff's mortgage funds that are ongoing after the lawful default caused by unlawful means
8 upon this plaintiff by defendants who,
9 (71a13) IN FACT, misapplied a portion of this plaintiff's mortgage funds to initiate and
10 maintain defendants' GMAC LLC, GMACM, ResCap, et al private, jointly owned and "protected
11 computer," per 18 U.S.C. § 1030(e)(2), which designates Internet Service Provider “ISP” [By
12 and through the cross-collateralization under the Omnibus Security Agreement and other
13 documents and agreements whereby granted a security interest to the Omnibus Agent in any
14 cash or other property posted or required to be posted as collateral (REFER TO ALL OF “ ¶ #
15 63 ” herein)] .
16 (71b) GMACM did intentionally participate, aid and abet in the commission and
17 perpetuation of various acts of intentional misrepresentation of this plaintiff and injurious
18 falsehoods to a variety of this plaintiff's pending customers, prospective investors and joint
19 venture business associates and other critical parties at a critical juncture of business growth for
20 their own gain and for the gain of inner and intra-corporate businesses resulting in actual theft by
21 Conversion and Theft by Attempted Conversion by lawful means (foreclosure) through unlawful
22 means (which is, but not limited to; defamation of character, intentional interference with
23 prospective advantage and trade libel, et al) which was defendants' actual and effectual efforts to
24 their intentional exercise of domination and control over a this plaintiff's real property at 6333
25 Gardenia Lane, Show Low, Arizona, which seriously interfered with the right of this plaintiff to
, -40- 1 control this property which is also the legal headquarters for the Arizona registered alternative
2 automaker Mealer Companies LLC which is competitive to the defendants livelihood.
3 (71c) GMACM did intentionally participate in the activity that did, in fact, create an
4 impossibility to perform under the mortgage contract and has intentionally participated in the
5 perpetuation of said impossibility to perform under this mortgage contract which was legally
6 acquired by GMACM possibly for evil intent against the wishes of this plaintiff on April 1st,
7 2008 to the extreme injurious harm to this plaintiff whereby damages and restitution is demanded
8 due the irreperable harm that has been done to this plaintiff and his property and trade.
9 (71d) GMACM does, to this very day intentionally participate in the perpetuation of
10 these crimes and tortious behavior and they have purposely failed to and now refuse to exercise
11 their strong influence within the GM Family to have their contracted equivalent “GMAC LLC”,
12 (aka Ally Financial, aka, Ally Bank) at 200 Renaissance Center, Detroit, Mi to utilize their
13 protected and privately owned "protected computer," per 18 U.S.C. § 1030(e)(2), which
14 designates Internet Service Provider “ISP” and which was the doorway and access point by
15 which these improper transgressions were created and maintained against their contracted client
16 who is this plaintiff.
17 72. In this particular instance, GMAC LLC, GMACM and ResCap have created a national 18 fiducial duty to act in the best interest of all US Taxpayers when they accepted TARP funds and 19
20 other UST funding, whereby their duty to regulate, service and otherwise protect their mortgage
21 contracts (specifically Mortgage #0602003923),
22 (72a) Regardless of defendants' use of public funds, they are required to obey all US
23 and state law including non interference with this plaintiff's legal right to compete with the GM
24 Family (which they are part of) and to allow this plaintiff to provide alternative fuel powered 25 automobiles and other legal products for public consumption and use.
, -41- (72b) Through banking and mortgage defendants' dereliction of their new duty of trust 1 to protect the public's best interest and via any publicly proclaimed, self-prescribed quasi- 2 fiduciary capacity to utilize US Taxpayer funds for good will rather than this deceitful purpose 3
4 against the general public intended give advantage to themselves alone is gross breach of trust
5 and constructive fraud, by giving their own inner-corporate GM Family (specifically GM the
6 automaker) an advantage over Mealer Companies LLC who is also an Arizona registered and
7 licensed alternative fuel powered automaker.
8 A fiduciary's duty must not conflict with another fiduciary duty. Stewart v Layton (1992) 111 ALR 687 Conduct by a fiduciary may be deemed constructive fraud 9 when it is based on acts, omissions or concealments considered fraudulent and that 10 gives one an advantage against the other because such conduct—though not actually fraudulent, dishonest or deceitful—demands redress for reasons of public policy. 11 Breach of fiduciary duty...... if intentional, it may be remedied in equity. Clark v Rowe, 428 Mass. 339, 345 (1998) (dicta). 12 73. This plaintiff does acknowledge that a typical relationship between creditor and debtor 13 does not allow for a bona fide fiduciary relationship, but this is an extra-ordinary matter and a 14 highly unusual relationship where GMAC et al (the creditor) has an imminent pecuniary 15
16 dependency on the viability and survival of their GM Family relationship with both Old and New
17 GM, making their relationship at-the-very-least “quasi-fiduciary” as they share pecuniary risks,
18 loans, accountability and mutual need for inner-business survival, including their fiducial
19 pecuniary link with the US Treasury after the T.A.R.P. loans.
20 74. Fraudulent deceit of a third party in order to elevate one's own pecuniary status through
21 false pretenses to instill a mortgage default is grossly negligent. The actions taken by GMAC 22 LLC, GMACM, (ResCap) is a highly improper, blatantly “bad faith” violation in gross breach of 23 implied good faith contract and the worst version of unfair dealing possible in a mortgage 24 contract. 25
, -42- 75. Whereas, this plaintiff's business is in direct competition with the GM Family of which 1 GMAC LLC, GMACM and ResCap are an integral part (See Exh ______), this plaintiff and 2 his independent automaker business (specifically by the location of Mealer Companies LLC 3
4 headquarters), which is this plaintiff's current home/office and this instant GMAC mortgage,
5 there exists a pecuniary conflict of interest creating a quasi-fiducial conflict of interest.
6 76. By “Fiducial Conflict,” this plaintiff recognizes and is not inferring that GMAC owes any
7 such fiduciary duty through mortgage contract as is done between a shareholder, corporation and
8 accountant, (etc) but merely a strong duty of fair dealing and trust. GMAC breached this trust 9 through gross unfair, bad faith dealings with this injured plaintiff. 10 77. GMACM, GMAC LLC, ResCap misappropriation of this plaintiff/debtor's mortgage 11 payments is a breach of duty and trust as it was used to sabotage this plaintiff's business trade 12 and ability to maintain the mortgage contract between creditor & debtor (causing conversion). 13 78. Whereby, the undisputed fact that this debtor's mortgage payments were lumped, 14 combined and co-mingled into GMAC LLC, GMACM, -ResCap bank accounts, the funds were 15
16 obviously used to pay for, in part, GMAC LL, GMACM and ResCap corporate expenses,
17 including, but not limited to; maintenance of payroll, insurance, security, utilities, janitorial,
18 clerical and specifically overhead to, maintain and secure the privately owned and regulated in
19 GMAC headquarters “ISP” which was used to access this plaintiff's website.
20 (78a) Discovery will provide the clear and convincing evidence needed by this plaintiff
21 and this honorable court to expose the co-mingling of this plaintiff's mortgage funds which were 22 used to harm this plaintiff in the manners described herein. 23
24
25
, -43- COUNT II 1 ALL DEFENDANTS- TRESSPASS WITH INTENT TO DESTROY, DEFAULT CAUSED THROUGH IMPROPER MEANS, INTENTIONAL INTERFERENCE WITH 2 PROSPECTIVE ADVANTAGE, UNFAIR DEALING, BREACH OF GOOD FAITH, BREACH OF DUTY 3
4 79. This intentional breach of contract, breach of duty through intentional sabotage by the
5 GM Family specifically when used as mortgage debt collection procedures by GMACM is not a
6 legal or viable portion of the Mortgage contract between GMACM and this plaintiff. There exists
7 not a single agreement or application of any agreement between this plaintiff and GMACM or
8 ResCap that allows either party to invade and trespass with intent to destroy, injure and abrogate 9 the other party's ability for financial survival, or to injure the other party's reputation and expose 10 the other party to public hatred, contempt, ridicule, and degradation. 11 (79a) BUT FOR the defendants' invasion and trespass of this plaintiff's professional 12 Internet website with intent to sabotage and destroy this plaintiff personally by intentionally 13 publishing injurious falsehoods to blacken his name thus creating irreparable harm, trade libel of 14 the Mealer Automobile, this plaintiff would have been funded by prospective funding groups, 15
16 would have sold the Pre-MFG Mealer Automobiles and would never have defaulted on his
17 mortgage with GMACM who is a co-defendant..
18 (79b) Intentional Interference With Plaintiff's Prospective Advantage, (See Appendix II)
19 80. GMACM and co-defendant's did allow, instigate and participate with the June 9th, 2009
20 (and to date) invasion, trespass, destruction and injury, of this plaintiff's good reputation and that
21 of his automotive trade viability and product credibility while exposing plaintiff to public hatred, 22 contempt, ridicule and degradation which abrogated and destroyed plaintiff's ability to gather 23 business expansion funds for the Mealer Automobile, to support my family and to fulfill the 24 mortgage contract between GMACM and Plaintiff.. 25
, -44- 81. Defendant GMACM “et al” has no authority, nor a vested right to take any legal 1 foreclosure action after their gross contract violation which provided access for GM to destroy 2 and defame the character and utterly devastate the trade reputation this plaintiff's professional 3
4 competitive-business (GM) in order to elevate GM over Mealer Companies LLC.
5 (81a) This plaintiff demands that GMACM produce any portion of a valid contract between
6 GMACM and this plaintiff which allows for improper conduct such as detailed within this
7 complaint. Without this document or contract, GMACM has breached this instant mortgage
8 contract without remedy on their part. 9 82. THEREFORE, this plaintiff demands and requests that if GMACM is to continue to 10 attempt to proceed with foreclosure they must validate their contributory tortious interference 11 and misuse of this plaintiff's mortgage funds (to procure the inner-office ISP) and must produce a 12 legitimate authorized agreement made through Mortgage #0602003923 with this plaintiff, 13 whereby; they were allowed on June 9th, 2009 (continued to date) or otherwise authorized to 14 utilize any malicious tortfeasor (and/or) any gross criminal activity to their favor or for the 15
16 benefit of GM Family inner-corporate entities, (including their shareholders and the US
17 Government) that may give them any legal authority to participate in these crimes (herein)
18 against this plaintiff.
19 83. By and through what appears to be direct gross inequitable willful and wanton
20 misconduct, and as intentionally staged and as executed gross tort violations per se (as gross
21 creditor misconduct against their own client/debtor who is this plaintiff) the defendant GMACM 22 did also; 23 (83a) Misappropriate by unfair equitably perverse distribution of this plaintiff's 24 mortgage payments (including US Treasury T.A.R.P. funds) to assist, benefit, provide, protect, 25
, -45- secure, instigate and negligently procure to date, their inner-corporate owned "protected 1 computer," per 18 U.S.C. § 1030(e)(2), which designates the private and highly secured Internet 2 Service Provider (“ISP”) which was used to attack this plaintiff, per Omnibus and other 3
4 agreements between defendants'. (See Exh_____) for grossly unfair, inequitable conduct, herein:
5 (83b) 1). Which, by vicarious liability specifically through respondeat superior
6 culpability, was utilized as an access point and staging arena (See ¶ # 83a) for co-defendant's
7 grossly disparaging defamation of character resulting in gross trade libel and intentional tortious
8 interference of this plaintiff's private fiscal capacity and this plaintiffs' ability to maintain 9 mortgage payments by utterly destroying this plaintiff's reputable name. (see Damages) 10 (83c) a). Furthermore, this plaintiff contends that GMAC committed an unethical 11 breach of contract by violating their obligation and duty of good faith and fair dealing in respect 12 to this plaintiff's trade, per, 13 (A.R.S. § 47-2306). 14 Section 1-203 sets forth the parties’ general obligation of good faith. For the purposes of § 1-203, good faith is defined as “honesty in fact and the observance of reasonable 15 commercial standards of fair dealing in the trade.” § 2-103(1)(b). 1 Breach of this 16 general obligation of good faith is a breach of the contract.
17 84. GMACM, in order to comply with this Arizona mortgage contract under 47-2306, then,
18 GMAC is required to; (1) be honest in fact, and (2) observe reasonable commercial standards of
19 fair dealing. GMACM has violated both principles above in this instance and continue to
20 disregard reasonable commercial standards of fair dealing by not having removed the
21 MONEY01 postings which were allowed to be posted through the GMAC LLC-GMACM- 22 RESCAP private, jointly owned and "protected computer," per 18 U.S.C. § 1030(e)(2), which 23 designates Internet Service Provider “ISP” [By and through the Omnibus agreement and other 24 documents and agreements whereby granted a security interest to the Omnibus Agent in any 25
, -46- cash or other property posted or required to be posted as collateral (REFER TO ALL OF “ ¶ # 1 63 ” herein)] . 2 85. The very actions taken by these defendants appear to be the equivalent economic moral 3
4 turpitude and subsequently, for anyone to offer legal defense for these defendants who have
5 already admitted their acts and who have intentionally perpetuated their grossly unjust
6 destruction of this plaintiff amounts to a continuation of their malicious, financial and physical
7 devastation of another human being for the sake of a group of inner-corporate businesses which
8 have proven inept and have failed because of their own greed. 9 86. The very fact of GMAC derelict and intentional sabotage of one client and automaker 10 (Mealer Companies LLC) for the financial survival and benefit of a second client and automaker 11 (General Motors) is by all reasonable standards of commercial dealings “dishonest,” 12 “unreasonable,” “unethical,” and as viewed by this plaintiff/debtor (mortgagor) a blatant instance 13 of evilly contrived gross creditor misconduct, inequitable conduct which amounts to fraud, 14 fraudulent creditor dealings and intention to fraudulently transfer ownership of this plaintiff's 15
16 mortgage by negligent and intentional destruction of this plaintiff's ability to maintain mortgage
17 payments.
18 87. GMACM, unfair business dealings connected in part, by fiducial payment accountability
19 standards and creditor-debtor relationship by equitable lien under contract in Arizona, proves
20 gross negligence, fraud and ill-intent which amounts to inner-corporate self-dealing against this
21 competitive plaintiff. Whereby these instant tortfeasors and criminal activity was seemingly 22 created in concert with GMAC LLC, GMACM , ResCap and non-engineering GM engineers and 23 employees and allowed to continue by the GM family banking and finance sector (defendants 24 noted herein) in favor of their preferred debtor and their inner-corporate dependency on the 25
, -47- survival of their competitive automaker, (codependent “GM”) to the severe financial, trade and 1 personal reputation detriment of plaintiff's “Mealer Companies LLC” (an alternative fuel 2 powered automaker). 3
4 (87a) Which is by and in clear violation of the duty to protect their client even if to
5 elevate their preferred client which is illegal misuse of mortgage assets (specifically debtors
6 mortgage payments and TARP funds), creating a clear conflict of interest.
7 (87b) Although case law may allude where a mortgage lender and servicing agent does
8 not have a specific legal bound “fiduciary duty” to protect their debtor/mortgagor, it is clear 9 through even the most basic contract law that neither does any rule or the lack there of, allow for 10 willful and negligent conflict of interest, trust or duty (inequitable conduct) when under even a 11 basic fiducial capacity. 12 (87c) Especially when an FDIC insured bank is involved such as GMAC LLC, 13 GMACM [By and through the Omnibus agreement and other documents and agreements 14 whereby granted a security interest to the Omnibus Agent in any cash or other property posted 15
16 or required to be posted as collateral (REFER TO ALL OF “ ¶ # 63 ” herein)] with the use of
17 GM engineers to subjugate the contract rights of plaintiff (Mealer) in order to elevate by
18 preference, the contract rights for co-defendant (GM) is blatant omissions, concealment,
19 dishonest, deceitful and entirely fraudulent. GMAC et al acted intentional during the entire time
20 they have known about the tortious interference and this claim must be remedied in equity.
21 (87d) This plaintiff reasons that Breach of Trust and dereliction of duty (as inequitable 22 conduct) cannot legally be used for the benefit of a preferred, intra-corporate debtor (GM) and to 23 the detriment of another debtor (plaintiff) who may pose a “...business risk...” for inner- 24 corporate GM Family. 25
, -48- 88. GMAC et al MUST BE held accountable for consequential and punitive damages and for 1 the tortious interference among other tortious and criminal activity they induced and/or 2 participated in upon this plaintiff which occurred and created the total and immediate pecuniary 3
4 destruction of this movant. GMAC, ResCap by vicarious liability under Respondeat Superior
5 have caused financial damages torts of gross negligence leading to intentional defamation of
6 character, trade libel per quod (per se) etc, by and through the GM Family privately owned and
7 accessed "protected computer," per 18 U.S.C. § 1030(e)(2), which designates Internet Service
8 Provider “ISP” and which was the doorway and access point by which these improper 9 transgressions were created and maintained against their contracted client who is this plaintiff. 10 the “ISP” located from within and secured by GMAC headquarters and perpetrated by actual GM 11 employee(s) under the GMAC LLC, GMACM, ResCap “agent” capacity while at work for GM. 12 89. GMACM does not deserve to be awarded default and foreclosure, because this 13 plaintiff's mortgage failure occurred through unconscionable actions instigated and originating 14 from directly within GMAC headquarters and while defendant's have intentionally ignored this 15
16 plaintiff's pleas and demands for GMAC to attempt to rectify the grossly disparaging
17 publications which caused tortious interference and related illegal activity and subsequent
18 mortgage default by this injured, victimized plaintiff.
19 90. Therefore, GMACM, legal ability to foreclose on this plaintiff's real property located at
20 6333 Gardenia Lane, Show Low, Arizona is moot as the contract is void through fraudulent
21 transgressions by GMACM, because this plaintiff's mortgage default was unlawfully induced 22 and the GMAC right to foreclosure was unconscionably acquired. 23 1. Regardless of these “plausible,” yet barely believable claims made herein by this 24 plaintiff, (yet in-line with various historic claims made against this global conglomerate known 25
, -49- as the “GM Family”), and any subsequent and potential excuses(s) the defendants give for these 1 various torts they have admitted to have intentionally committed, the fact is, these torts/crimes 2 have been committed and continue, unabated to-date against this injured, victimized plaintiff. 3
4 (¶ #'s 79,79, 84-89) Moreover, the purpose of the rule this movant proposes is consistent with § 195 of the Restatement (Second) of Contracts (1981), which prohibits contracts 5 exempting parties from intentional or reckless tort liability, and A.R.S. § 47-2719(C) of Arizona's Uniform Commercial Code, which states: “Consequential damages may be 6 limited or excluded unless the limitation or exclusion is unconscionable.” And Arizona has long recognized parties to a contract have a duty to act in good faith. 7 See, e.g., Beaugureau v. Beaugureau, 11 Ariz.App. 234, 236, 463 P.2d 540, 542 (1970). As a matter of public policy, a party should not benefit from a bargain it performed 8 in bad faith. Accordingly, in the absence of any contrary argument or authority, Arizona courts have adopted this sensible rule. 9
10 (All Counts and ¶ # 89) "Every contract implies good faith and fair dealing between the parties to it." Kerrigan v. Boston, 361 Mass. 24, 33 (1972). See Eaton v. Eaton, 233 11 Mass. 351, 376 (1919). The covenant requires "that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to 12 receive the fruits of the contract . . . ." Drucker v. Roland Wm. Jutras Assocs., 370 Mass. 383, 385 (1976), quoting Uproar Co. v. National Broadcasting Co., 81 F.2d 373, 13 377 (1st Cir.)
14 (¶ #'s 79-90) It is well established in Arizona that a covenant of good faith and fair dealing is implied in every contract. Wagenseller v Scottsdale Memorial Hospital, 147 15 Ariz. 370, 710 P.2d 1025 (1985); Rawlings v Apodaca, 151 Ariz. 149, 726 P.2d 565 16 (1986); see also Restatement (Second) of contracts § 205 (1981). The covenant is applied to protect the rights of contracting parties to receive the benefits of their 17 agreement. Hence, the Arizona Supreme Court has recognized that the inquiry necessarily must focus on the contract itself to determine the parties agreement. 18 Wagensellar v Scottsdale Memorial Hospital, 147 Ariz. At 386; Rawlings v Apodaca, 151 Ariz. At 154. 19 COUNT III OUTLINE OF DEFENDANT'S DEFAMATION OF CHARACTER; RESULTING IN, 20 TORTIOUS INTERFERENCE, TRADE LIBEL per se,, CONTINUED AND PERPETUATED CRIMINAL ACTIVITY INCLUDING AIDING AND ABETTING CREATING A COERCIVE 21 MONOPOLY VIA US TREASURY FUNDS. 22 91. All Defendants as combined and as individually responsible for 100% of the damages 23 and suffering of this plaintiff in all items in Count III as noted herein,, 24
25
, -50- 92. Per rules of Arizona law, this plaintiff had made immediate phone calls and have send a 1 series of letters and emails to both GMACM, GMAC LLC and GM (both old and new) to have 2 removed or to have them request that I remove their postings with a public apology following 3
4 this injured plaintiff's demand for a public apology from Mr. Kordella. Defendants refused to
5 respond until after contacting the GM Stockholders services via their GM website contact form
6 did I get a reaction. (June 11th, 2009 emailed to GM Stockholders) GM sent out “special incident
7 handler” from subcontracted firm “Convergys”, Ms. Christine Stein (See Exh. C).
8 93. Reserved. 9 94. No excuse or public apology or public recanting of the injurious falsehoods were offered 10 or have ever been offered as this plaintiff believes that the GM Family (specifically all 11 defendants and employees, et al according to Mr. Kordella) would suffer tremendously if the 12 world knew the truth of their despicable, malicious actions on June 9th, 2009 which have been 13 intentionally perpetuated to date against this plaintiff and his competitive automaker business. 14 95. However, Mr. Kordella did finally offer an insolent private apology on June 15th, 2009 15
16 for his strategic “MONEY 01” BLOG of injurious falsehoods on this injured plaintiff's privately
17 owned professional business funding related website YET no comment private or public
18 whatsoever for his injurious falsehood statements in his direct emails sent to multiple Mealer
19 Companies LLC interest parties and prospective funding groups whereby Mr. Kordella referred
20 to this plaintiff a fraud, (See Exh. B-1),
21 (95a) and no public apology whatsoever has ever been published nor made globally 22 visible until this plaintiff was forced to betray the confidence of his own forthrightness with 23 prospective investors and did finally intervened on Mr. Kordella's “MONEY01” BLOG and 24
25
, -51- posted the insolent “pseudo-apology” in an effort to stem the damage that defendants had done to 1 the Mealer Automobile and this plaintiff's good reputation on June 9th, 2009. 2 (95b) The intended strategically worded and executed damage was too deep to repair and 3
4 this plaintiff has been intentionally financially destroyed, emotionally damaged and with an
5 unrepairable detrimental appearance upon this plaintiff's good reputation especially and
6 specifically to the multiple foreign investment groups who were reviewing the Mealer
7 Automobile and Mealer Companies LLC funding documents. (See Exh______).
8 (95c) AND to the various domestic pre-MFG Mealer Automobile orders that were also 9 pending these prospective investments to expand the Mealer Companies LLC manufacturing 10 capabilities, output and global availability of the Mealer Automobile and other Mealer 11 Companies products as detailed within the Mealer Companies Funding Documents noted above. 12 96. By and through this plaintiff's mortgage holder GMAC LLC Headquarters private, jointly 13 owned and "protected computer," per 18 U.S.C. § 1030(e)(2), which designates Internet Service 14 Provider “ISP” “GMC-20” [By and through the Omnibus agreement and other documents and 15
16 agreements whereby granted a security interest to the Omnibus Agent in any cash or other
17 property posted or required to be posted as collateral] located at 200 Renaissance Center in
18 Detroit, Michigan the following tortfeasor(s) did occur and continue to cause further damages
19 and suffering as defendants have not made any effort to rectify their illegal transgressions which
20 are expected to be commented on by defendants as per this complaint and respond therewith:
21 97. GM engineers (GMAC agents), specifically Kris J Kordella using IP address 22 198.208.251.24 out of Bloomfield Hills, MI., while at work on June 9th, 2009, hunted down 23 plaintiff and entered plaintiff's professional Mealer Automobile investment-oriented website 24 “http://mealercompanies.com” with the admitted intentions to (and which he did, in fact) insert 25
, -52- fraudulent misrepresentations (injurious falsehoods) with specific intent to destroy, defame and 1 blacken plaintiff's good name and to hinder plaintiff from gathering expansion B-Round growth 2 funding and garner the Pre-Manufacturing (“Pre-MFG”) sales for the Mealer Automobile upon 3
4 the initial deposit of prospective growth funding for Mealer Companies LLC [an Arizona
5 registered alternative fuel automobile manufacturing company as of Sept. 19th, 2008 (See Exh
6 ______).
7 98. GM engineer, Mr. Kordella, 'appears to' have acted in concert with at least two other
8 “GM” employees (Joseph Burgel “[email protected]” using IP address 198.208.251.22 out of 9 Farmington, MI. and Christy Garwood “[email protected]” IP address 198.208.251.23 10 out of West Bloomfield, MI.) who were both working to 'aid and abet' these torts in what appears 11 to be a reassigned Public Relations department of GM, 'who appear' prior to June 9th, 2009 to 12 have been acting as either full time or part time “Professional Bloggers” for defendants. 13 Discovery may add these two well defined and documented participants aka “suspects of these 14 alleged but provable and admitted offenses” to the list of defendants (See Exh ______). 15
16 99. FURTHERMORE, GM employee Mr. Kordella acted to intentionally interfere with
17 contractual relations between GMAC and this plaintiff. This claims is backed by the very
18 evidence used to base other claims on in this instant case. (See Appendix II) (See Exh ______)
19 (99a) GM engineer (specifically Mr. Kordella), while acting under GMACM capacity
20 via the corporately owned private, jointly owned and "protected computer," per
21 18 U.S.C. § 1030(e)(2), which designates Internet Service Provider “ISP” “GMC-20” [By and 22 through the Omnibus agreement and other documents and agreements whereby granted a 23 security interest to the Omnibus Agent in any cash or other property posted or required to be 24 posted as collateral] located at 200 Renaissance Center in Detroit, Michigan, signed into the 25
, -53- Internet and did intentionally enter http://mealercompanies.com and signed up as a Blogger to 1 leave a series of professional Investor and engineer rated statements as “MONEY01”. Mr. 2 Kordella then followed up his grossly disparaging, strategically “Blogged” comments portrayed 3
4 as financial expert “MONEY01” a series of wholly untrue libelous attacks and injurious
5 falsehoods and then, actually proceeded to send direct and separate emails to additional
6 interested private individuals, government employees and other parties and Mealer Automobile
7 Pre-MFG sales customers who had commented on Mr. Kordella's “MONEY01” blog which he
8 created on plaintiff's professional funding expansion website and in his direct emails, 9 disparagingly referred to this plaintiff as a fraud, etc. (See Exh ______and Appendix II) 10 (99b) GMAC LLC, GM and the GM Family (specifically the defendants) provided 11 (“ISP”) access to on June 9th, 2009 and “currently holds open the Internet doorway” for the 12 tortious crimes noted herein to be first committed upon this plaintiff and also in order for these 13 torts to continue and are fully culpable as respondeat superior of GM and GM's engineers and 14 public relations (professional Bloggers for GM) who 'punched the keys' and spelled out the exact 15
16 libel which created (and continue the damaging effects to this day, (as it has not yet been
17 removed) the far reaching and irreversible financial loss and future business and emotional-
18 related damages to this plaintiff, his business and his family. (______)
19 (99c) The libel per quod as detailed to per se that was “Blogged” by GM and the GM
20 Family (specifically the defendants) on mealercompanies.com website was done for the explicit
21 and malicious purpose of causing as much damage as possible to plaintiff which acted as a 22 deterrent for various interested parties who were investigating and compiling finalized “due 23 diligence” on plaintiff and plaintiff's business prior to investing in, offering their services for, 24 applying for employment within, planning a future purchase, offering equipment and buildings 25
, -54- for lease or sale to, or otherwise providing funding, backing and/or other support for plaintiff and 1 plaintiff's business and family. The defendant's destructive attack also destroyed the “tentative- 2 to-funding,” prospective Pre-MFG purchases of the MEALER BV (first run of automobiles) of 3
4 which 2000 units were slated as sales to private dealers, collectors, possibly the US Border Patrol
5 (semi private contracted test bed for product durability) and various enthusiasts and multiple
6 celebrities throughout the world.
7 (99d) Worse yet co-defendant (specifically all versions of GM) have refused requests
8 and demands to have removed the various grossly disparaging, derogatory and injurious 9 falsehoods and gross trade libel, slander of title that were strategically placed upon this plaintiff's 10 funding, business growth website by their employee agent Mr. Kordella from work on GM 11 registered Internet Protocol “IP” locations (not to be confused with the private, jointly owned 12 and "protected computer," per 18 U.S.C. § 1030(e)(2), which designates Internet Service 13 Provider “ISP” “GMC-20” [By and through the Omnibus agreement and other documents and 14 agreements whereby granted a security interest to the Omnibus Agent in any cash or other 15
16 property posted or required to be posted as collateral] located at 200 Renaissance Center in
17 Detroit, Michigan).
18 COUNT IV
19 ANTICOMPETITIVE BEHAVIOR, UNFAIR BUSINESS PRACTICES, COERCIVE MONOPLY CAUSED BY THE PERPETUATED TRADE LIBEL AND DEFAMATION. 20 100. GM AND THE GM FAMILY (SPECIFICALLY THE DEFENDANTS) 21 VIOLATED SECTION 2 OF THE SHERMAN ACT BY UNLAWFULLY 22 MAINTAINING ITS MONOPOLY IN AUTOMOTIVE PRODUCTION AND SALES 23 Section 2 of the Sherman Act prohibits a firm with monopoly power from 24 maintaining that monopoly power through means that go beyond competition on the merits. "'The offense of monopoly under § 2 of the Sherman Act has two elements: 25 (1) the possession of monopoly power in the relevant market and (2) the willful
, -55- acquisition or maintenance of that power as distinguished from growth or 1 development as a consequence of a superior product, business acumen, or historic accident.'" Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 480 2 (1992) (quoting United States v. Grinnell Corp., 384 U.S. 563, 570-71 (1966)); see Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 596 n.19 (1985); United 3 States v. Griffith, 334 U.S. 100, 107 (1948) ("The anti-trust laws are as much violated 4 by the prevention of competition as by its destruction.").
5 Under those settled principles of monopolization law, GM and the GM Family
6 (specifically the defendants) used multiple unlawful actions to repel promising efforts to
7 lower the critical barrier to entry into its monopoly market constitute unlawful
8 maintenance of a monopoly. This is a classic example of a case 9
10 "in which a defendant's possession of substantial market power, combined with his exclusionary or anticompetitive behavior, threatens to defeat or forestall the 11 corrective forces of competition and thereby sustain or extend the defendant's agglomeration of power." Eastman Kodak, 504 U.S. at 488 (Scalia, J., dissenting). 12 101. GM AND THE GM FAMILY (SPECIFICALLY THE DEFENDANTS) ENGAGED 13 IN A SERIES OF ANTICOMPETITIVE, EXCLUSIONARY, PREDATORY ACTS TO MAINTAIN ITS MONOPOLY 14
15 Although GM and the GM Family (specifically the defendants) has often seemingly
16 welcomed new automakers and other automaker's products that would offer consumers a wider
17 choice in the automotive market that GM has maintained the leader of in over-all global vehicle
18 sales for decades, it recognized that the ecological global impact of burning fossil fuels and
19 importing crude oil from countries that are set on destroying America and other developments
20 causing what would eventually become known as the Crash of 2008 and the subsequent failure 21 and bankruptcy of the entire General Motors Corporation including the GM financial arm GMAC 22 LLC and subsidiary RESCAP and GMACM and their pecuniary suffering in 2007 to their 23 reformation in June and July of 2009 which gave rise to the conglomerate's predatory loan 24 servicing and anti-competitive, unfair competition attitude towards this plaintiff and his then 25
, -56- expanding Arizona based alternative fuel powered automaker company known as Mealer 1 Companies LLC. 2
3 (101a) GM and the GM Family (specifically the defendants) reacted to the newer 4 company who was actively seeking financial B-Round business and manufacturing growth funds 5 from prospective investors which also would have provided a minimum of 2000 units of the 6 Mealer Automobile Pre-MFG sales orders pending this prospective funding, with a consistent 7 pattern of acts that can be understood only as a deliberate scheme to ensure that its own 8 monopoly will persist. 9
10 (101b) Deploying a wide variety of libelous, defamatory, coercive, and other stratagems, 11 and using its monopoly position and notoriety as a global engineering leader under the new 12 revised Obama administration's plan to rebuild the dying company to exploit Mealer Companies 13 LLC, GM and the GM Family (specifically the defendants) worked actively to prevent this new 14 automaker from gathering the prospective funding and from the Mealer innovations from 15
16 reaching consumers.
17 (101c) It is neither possible nor necessary to tell definitively whether any or all of the 18 automotive technologies retarded or destroyed by GM and the GM Family (specifically the 19 defendants) would have led to the end of the General Motors Corporation (k/n/a “New GM”) 20 monopoly. They would, however, have lowered entry barriers, easing entry for new 21
22 entrepreneurial competition, opening up new possibilities for automotive innovation and future
23 alternative fuel powered automobile competition, and thus promoting consumer choice.
24
25
, -57- B. (101d) GM and the GM Family (specifically the defendants)'s numerous related actions 1 to stifle such competitive developments and restrict consumer choice constituted unlawful 2
3 monopolization.
4 (101e) A Monopolist May Not Deliberately Take Actions That Erect Obstacles 5 To Consumer Choice On The Merits Or Otherwise Make No Business Sense Except For Their 6 Monopoly-Maintaining Effects 7
8 "'Anticompetitive conduct' can come in too many different forms, and is too 9 dependent upon context, for any court or commentator ever to have enumerated all the varieties." Caribbean Broadcasting System, Ltd. v. Cable & Wireless PLC, 148 F.3d 10 1080, 1087 (D.C. Cir. 1998).
11 (101f) And the formulations used to identify unlawful anticompetitive conduct have
12 varied in terminology if not in substance. The objects of inquiry, however, are clear. Equally
13 clear is the illegality of GM and the GM Family (specifically the defendants)'s conduct under any
14 available formulation of the standards for monopolizing conduct, (specifically the publications of 15 injurious falsehoods and direct trade libel and tortious interference against competitive registered 16 rival automaker Mealer Companies LLC who was expanding for global sales of the alternative 17 fuel powered Mealer Automobile and other competitive products). 18
19 (101g) Basic Standards. The second element of a Section 2 claim is the use of anticompetitive means "to foreclose competition, to gain a competitive advantage, or 20 to destroy a competitor." Eastman Kodak, 504 U.S. at 482-83 (quoting United States v. Griffith, 334 U.S. 100, 107 (1948)). The Supreme Court has described this conduct 21 element as prohibiting a monopolist's "scheme of willful acquisition or maintenance 22 of monopoly power." Eastman Kodak at 483 (citing Grinnell, 384 U.S. at 570-71; Aspen, 472 U.S. at 600-05; United States v. Alcoa, 148 F.2d 416, 432 (2d Cir. 1945)). 23 The Court has used the language of "exclusionary" or "anticompetitive" or "predatory" to label the unlawful conduct (Aspen, 472 U.S. at 602) and to 24 distinguish it from the competition on the merits reflected in Grinnell's reference to "superior product, business acumen, or historic accident." 384 U.S. at 570-71 25 (quoted in Aspen, 472 U.S. at 596 n.19, and Eastman Kodak, 504 U.S. at 480); see also
, -58- Eastman Kodak, 504 U.S. at 488 (Scalia, J., dissenting) (Section 2 condemns 1 "exclusionary or anticompetitive" behavior).
2 (101h) The Court in Aspen stated that conduct is anticompetitive if the defendant "has 3 been 'attempting to exclude rivals on some basis other than efficiency.'" 472 U.S. at 605 (quoting R. Bork, The Antitrust Paradox 138 (1978)). The Court directed its attention 4 to the challenged conduct's "impact on consumers and whether it has impaired competition in an unnecessarily restrictive way." Id. at 605 (footnote omitted; 5 emphasis added). The Court quoted with approval the definition from III P. Areeda & D. Turner, Antitrust Law 78 (1978): 6 (101i) Thus, 'exclusionary' comprehends at the most behavior that not only (1) 7 tends to impair the opportunities of rivals, but also (2) either does not further competition on the merits or does so in an unnecessarily restrictive way. 8
9 (101j) Aspen, 472 U.S. at 605 n.32; see also III P. Areeda & H. Hovencamp, Antitrust Law 78 (Rev'd Ed. 1996). That standard properly asks whether the challenged 10 conduct, first, tends to impair rivals' opportunities and, second, can be justified -- at all or in its full restrictive scope -- by "'valid business reasons.'" Eastman Kodak, 504 11 U.S. at 483 (quoting Aspen, 472 U.S. at 605). Such asserted justifications must be tested both for their "validity," assessed in light of (among other things) their 12 consistency with the defendant's other conduct and assertions, and for their "sufficiency" to explain the full extent of the impact on rivals. Id.; see id. at 483-85. 13 (101k) Most recently, the Court in Eastman Kodak applied this approach to hold that a 14 triable issue of monopolization was presented where there were reasons to doubt the 15 validity and sufficiency of the asserted business justifications. 504 U.S. at 482-86. Previously, in Aspen, the Court applied the approach to uphold a jury finding of 16 monopolization. The Court looked to three key factors -- "the effect of the challenged pattern of conduct on consumers;" its effect on the defendant's "smaller rival;" and 17 its effect on "[the defendant] itself." 472 U.S. at 605. First, the conduct deprived consumers of arrangements they provably desired. Id. at 605-07. Second, the conduct 18 inflicted "substantial" "pecuniary injury" on the smaller rival, which had to undertake "prohibitively expensive" efforts to try to meet consumer demand for the 19 withdrawn arrangements. Id. at 607-08. Third, the conduct was costly to the defendant (the defendant "elected to forgo . . . short-run benefits"); and, because 20 none of the asserted efficiency justifications could explain the conduct (considering particularly the defendant's other conduct that was inconsistent with the asserted 21 justifications), it was reasonable to infer that the defendant "was not motivated by 22 efficiency concerns and that it was willing to sacrifice short-run benefits and consumer good will in exchange for a perceived long-run impact on its smaller 23 rival." Id. at 610-11 (footnote omitted).
24 (101L) These decisions used in prior anticompetitive cases have thus focused on several
25 closely related inquiries: whether the conduct is an effort to exclude rivals on some basis
, -59- other than the defendant's own improved market performance, (wherein the GM Family 1 was suffering, failed and bankrupted in June 2009 when their anticompetitive behavior 2 began against this plaintiff to exclude his rival automobile manufacturing business), thus 3
4 impeding rather than enabling or enriching consumer choice; whether the full restrictive
5 impact of the conduct on competition is justified as necessary to further legitimate goals
6 of lowering prices, improving quality, or in other ways promoting or expanding consumer
7 choice; and whether the conduct's costs to the defendant are ultimately inexplicable
8 except on the basis of the monopoly returns expected as a result of the conduct's creation 9 or maintenance of a monopoly. Court of appeals decisions reflect similar standards for 10 distinguishing monopolizing conduct from competition on the merits. Unilateral conduct, 11 such as that at issue in Aspen, as well as exclusive, preferential, restrictive, or otherwise 12 exclusionary contracts, especially when coercively imposed by use of monopoly 13 power, can constitute the requisite anticompetitive acts. 14
15 102. Intent and Effect. These basic monopolization standards embody three important 16 principles about the roles of intent and effect in separating competition on the merits from 17 unlawful monopolizing conduct. First, while an intent to secure a monopoly is not 18
19 "a separate and essential prerequisite to civil antitrust liability" (Ass'n for Intercollegiate Athletics for Women, 735 F.2d at 583), the intent with which a 20 defendant undertook an action is relevant to understanding the nature and economic consequences of the action. In particular, an intent to frustrate customer 21 choice by excluding competition is telling evidence, from a presumptively 22 knowledgeable market participant, that the act was not competition on the merits and made sense for the defendant only because it facilitated realization of monopoly 23 returns. See Aspen, 472 U.S. at 602 ("the question of intent is relevant to both" actual and attempted monopolization; while a separate element of attempt, for 24 monopolization "evidence of intent is merely relevant to the question whether the challenged conduct is fairly characterized as 'exclusionary' or 'anticompetitive' . . . 25 or 'predatory'"); United States v. United States Gypsum Co., 438 U.S. 422, 436 n.13
, -60- (1978) ("consideration of intent may play an important role in divining the actual 1 nature and effect of the alleged anticompetitive conduct"); Chicago Board of Trade v. United States, 246 U.S. 231, 238 (1918) ("knowledge of intent may help the court to 2 interpret facts and to predict consequences"); Ass'n for Intercollegiate Athletics for Women, 735 F.2d at 583 (relevant "insofar as it helps predict the probable 3 competitive impact of a disputed practice"); see U.S. Healthcare, Inc. v. Healthsource, st 4 Inc., 986 F.2d 589, 596 (1 Cir. 1993) (per Boudin, J.) ("Motive can, of course, be a guide to expected effects . . . ."). 5 103. The very fact that GM and the GM Family (specifically the defendants) have known 6 about their acts of intentional interference through trade libel, personal defamation and other 7 unlawful anticompetitive behavior through their perverted acts of intentional sabotage to exclude 8
9 and disrupt the Mealer Automobile from competing in the GM and GM Family (specifically the
10 defendants)'s monopoly by interfering with this plaintiff's prospective advantage of a rival
11 automaker's B-Round growth, for well over a year without making any attempt to remove or
12 have removed the perpetuated crimes and injurious falsehoods from this plaintiff's rival
13 automaker's expansion and growth oriented website predicts the probable competitive impact of 14 their unlawful practice. GM and the GM Family (specifically the defendants) have intentionally 15 prevented and perpetuated this plaintiff from gathering funding for expansion of manufacturing 16 and sales. 17
18 (103a) This is not an accident on the part of the defendants, but a scheme of willful
19 maintenance of their monopoly through acts that created an unlawful coercive monopoly. 20
21 104. Second, no particular degree of already-suffered competitive harm is required to
22 find unlawful monopolization where such harm can be predicted for the future. Indeed, the
23 Supreme Court has repeatedly spoken of the monopolist's intent to monopolize, which can be
24 readily inferred from exclusionary acts, as sufficient for an act to be a Section 2 violation.
25
, -61- (104a) See, e.g., Eastman Kodak, 504 U.S. at 483 (quoting Grinnell, 384 U.S. at 570-71) 1 ("'scheme of willful . . . maintenance'" is illegal)); Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 375 (1927). The Court's holdings are to the same 2 effect. In Aspen, the Court upheld liability without saying anything about the degree of harm to the plaintiff except that it was substantial; it was enough that unjustified 3 conduct contributed to the defendant's monopoly power. In Eastman Kodak, the 4 Court held the Section 2 claim sufficient to go to trial without inquiry into the degree of harm suffered by the plaintiffs who threatened the defendant's monopoly 5 power. Even in a case treated as one of mere attempted monopolization, Lorain Journal Co. v. United States, 342 U.S. 143 (1951), the Court readily found Section 2 to 6 be violated by the defendant newspaper's deliberate actions to take advertising business from its principal, if not sole, rival (radio station), without any analysis of 7 the particular degree of harm to the rival or to consumers in the market. Thus, the Court's articulated standards condemn a monopolist's action that lacks legitimate 8 business justification and "threatens to defeat or forestall the corrective forces of competition and thereby sustain or extend the defendant's agglomeration of power." 9 Eastman Kodak, 504 U.S. at 488 (Scalia, J., dissenting) (emphasis added). United States 10 vs Microsoft
11 105. Third, an action that might not be held to violate Section 1 (though it is concerted action) may nevertheless be held to violate Section 2 because of its threat to competition. Cf. 12 Eastman Kodak, 504 U.S. at 488 (Scalia, J., dissenting) ("Behavior that might otherwise not be of concern to the antitrust laws -- or that might even be viewed as 13 procompetitive -- can take on exclusionary connotations when practiced by a monopolist."); United States v. GM and the GM Family (specifically the defendants) 14 Corp., 1998 WL 614485 (D.D.C. 1998), at *23 ("a monopolist's conduct that does not rise to the level of a § 1 violation may nevertheless violate § 2"). The likelihood that a 15 particular agreement with a harmful impact on rivals will contract consumer choice is 16 greater with a firm that is already a monopolist. By definition, a monopolist has substantial ability to exploit consumers; a monopolist is thus more likely to undertake 17 actions that serve no business purpose other than to protect its monopoly.
18 106. The Conduct At Issue In This Case. No matter what legally available formulation of a
19 monopolization standard is invoked, and no matter what role is assigned to intent, already-
20 suffered consumer harm, or independent illegality of the concerted aspects of GM and the GM
21 Family (specifically the defendants)'s conduct under Section 1, previous court cases and Court's 22 findings establish that GM and the GM Family (specifically the defendants) engaged in 23 monopolizing acts in violation of Section 2. GM and the GM Family (specifically the 24 defendants) clearly had a deliberate plan to use means beyond competition on the merits to 25
, -62- prevent erosion of the applications barrier to entry that protects its automobile manufacturing and 1 sales monopoly. 2
3 (106a) GM and the GM Family (specifically the defendants)'s several actions harmed 4 consumers, harmed promising threats to its monopoly power, and were costly to GM and the GM 5 Family (specifically the defendants) itself. No legitimate business justifications can account for 6 these actions, leaving them inexplicable except on the basis of the willfully sought benefits of 7 maintaining the automobile manufacturing and sales monopoly. 8
9 2. (106b) This is not a case of a firm simply enjoying the fruits of economic forces that 10 may produce a natural monopoly, with entry efforts failing on their own cost-and-quality merits. 11 Nor is this a case where Congress or a State legislature has concluded that a particular market is 12 better subjected to regulatory controls on entry than left to free-market competition. Rather, this 13 is a case in which a monopolist in an unregulated market intentionally set out to squash 14 promising marketplace efforts (specifically Mealer Companies LLC and the Mealer Automobile) 15
16 to lower the critical barrier to entry and expansion in the monopolized market. Whatever GM and
17 the GM Family (specifically the defendants) may think of the value of preserving its vehicle line-
18 up without a rival, its calculated effort to prevent competition is fundamentally anathema to the
19 commitment to competition embodied in the Sherman Act.
20 See National Soc'y of Prof. Eng'rs v. United States, 435 U.S. 679, 695 (1978); see FTC v. 21 Procter & Gamble Co., 386 U.S. 568, 580 (1967); United States v. Philadelphia Nat'l Bk., 22 374 U.S. 321, 371 (1963); see also Otter Tail Power Co. v. United States, 410 U.S. 366, 380 (1973). 23 107. GM and the GM Family (specifically the defendants)'s campaign included at least the 24 following acts:
25 (107a) sabotaging a rival automaker (specifically Mealer Companies LLC);
, -63- (107b) committing gross acts of defamation of character in an effort to squash a 1 competitive automaker from gaining the needed contracts to compete on a level playing field; 2
3 (107c) committing gross acts of trade libel to demoralize a rival product (specifically the Mealer Automobile) and prevent this rival automaker (specifically Mealer Companies 4 LLC) from competing with the GM and the GM Family (Specifically the defendant's);
5 (107d) imposing restrictions on this plaintiff so as to prevent plaintiff from creating an alternative rival automobile under a different corporate name in competition with GM and 6 the GM Family (Specifically the defendant's);
7 (107e) coercing future prospective customers of the Mealer Automobile to support GM and reject products created by Mealer Companies LLC; 8
9 (107f) conditioning and influencing through unlawful means and activity, prospective investors from placing trust and investment funds into businesses owned by this plaintiff; 10 (107g) conditioning and influencing through unlawful means and activity, prospective 11 clients from purchasing the Mealer Automobile in Pre-MFG vehicle sales pending the prospective funding noted above; 12 (107h) conditioning and limiting access to crucial private party engineers and third party 13 suppliers through unlawful means and activity;
14 (107i) conditioning continued development Mealer Companies LLC products and 15 research and development that could have and would have and should have transpired had the GM and the GM Family (Specifically the defendant's) not interfered; 16 (107j) Accepting and misusing US Taxpayer funds to stifle competition and to extend 17 the GM and the GM Family (Specifically the defendant's) monopoly
18 (107k) hampering the development and distribution of Mealer Automobile and other Mealer Companies product technology by eliminating Mealer Companies LLC growth 19 funding potential and perpetuating criminal behavior to the extreme injury of this plaintiff for well over 400 days without reprieve, and preventing Plaintiff's ability to serve as a 20 distribution source for Mealer Companies products and vehicles, pressuring Mealer 21 Companies LLC prospective and current employees, consumers and investors not to support or distribute Mealer Companies LLC technology and products and coercing this 22 plaintiff from competing on a level playing field;
23 108. Prior Court's findings establish the anticompetitive nature of these acts and of the
24 campaign as a whole. The findings compel the conclusion that GM and the GM Family
25
, -64- (specifically the defendants), a monopolist, unlawfully maintained its automotive manufacturing 1 monopoly in violation of Section 2 of the Sherman Act. 2
3 109. To date, the Mealer Automobile manufactured for public use and the public cannot make 4 a choice to buy this rival vehicle BUT FOR the predatory, exclusionary conduct and unlawful 5 restraint of trade whereby GM and the GM Family (Specifically the defendant's) have destroyed 6 this plaintiff and his company as a potential competitor. 7
8 110. But for GM and the GM Family (Specifically the defendant's) unjustified predatory 9 anticompetitive grossly unfair behavior, this plaintiff would have been funded for expansion for 10 both nationwide and global sales of the Mealer Automobile and other Mealer Companies 11 products. Furthermore, but for the unlawful activities of GM and the GM Family (Specifically 12 the defendant's), this plaintiff would not have had his good name blackened and denigrated 13 before the world of entrepreneurs and businessmen/women whereby this plaintiff would be a 14 viable candidate for multiple alternative fuel powered automotive and related high paying jobs. 15
16 111. This plaintiff contends that GM and the GM Family (Specifically the defendant's) knew 17 exactly what they were doing and whether through acting in concert of by Mr. Kordella's fit of 18 rage while under the domain of GM and the GM Family (Specifically the defendant's), has 19 destroyed this plaintiff and have created a situation of irreparable detrimental harm to all 20 projects, goals and products that could have, should have and would have been created by and for 21
22 this plaintiff and Mealer Companies LLC.
23 "'[N]o monopolist monopolizes unconscious of what he is doing,'" and "'[i]mproper 24 exclusion (exclusion not the result of superior efficiency) is always deliberately intended.'" Aspen, 472 U.S. at 602, 603 (quoting United States v. Alcoa, 148 F.2d 416, 25 432 (2d Cir. 1945), and R. Bork, The Antitrust Paradox 160 (1978)).
, -65- Some decisions, following the Areeda formulation, focus on whether the defendant's 1 conduct served a legitimate purpose or impaired the opportunity of rivals more than necessary to serve such a purpose. See, e.g., Data General Corp. v. Grumman Syst. 2 Support Corp., 36 F.3d 1147, 1182 (1st Cir. 1994) (Areeda standard: "Exclusionary 3 conduct is defined as conduct, other than competition on the merits or restraints reasonably necessary to competition on the merits, that reasonably appears capable 4 of making a significant contribution to creating or maintaining monopoly power.") (internal quotation marks omitted); Barry Wright Corp. v. ITT Grinnell Corp., 724 5 F.2d 227, 230 (1st Cir.1983) (Breyer, J.) (same); Home Placement Service, 682 F.2d at 281 (irrespective of motive, "defendant's use of monopoly power to destroy a 6 potential competitor" was illegal where "not supported by a legitimate business reason"); Multistate Legal Studies, Inc. v. Harcourt Brace Jovanovich Legal and 7 Professional Publications, Inc., 63 F.3d 1540, 1550 (10th Cir. 1995), cert. denied, 516 S. 8 Ct. 1044 (1996) (Areeda standard); id. at 1553 n.12 (triable issue whether defendant's action "would disproportionately raise [competitor's] costs" and, if so, had "a 9 legitimate business justification"); Instructional Syst. Devel. Corp. v. Aetna Casualty & Surety Co., 817 F.2d 639, 649 (10th Cir. 1987) ("Predatory practices are illegal if they 10 impair the opportunities of rivals and are not competition on the merits or are more restrictive than reasonably necessary for such competition. . . . [T]he exclusionary 11 conduct must appear reasonably capable of contributing significantly to creating or 12 maintaining monopoly power."); C.E. Serv's., Inc. v. Control Data Corp., 759 F.2d 1241 (5th Cir. 1985) (Areeda standard). 13 Other decisions articulate standards that focus on whether the defendant's conduct makes 14 business sense other than as a means of securing monopoly power. See, e.g., Neumann v. Reinforced Earth Co., 786 F.2d 424, 427 (D.C. Cir. 1986), cert. denied, 479 U.S. 851 15 (1986) ("predation involves aggression against business rivals through the use of business practices that would not be considered profit maximizing except for the 16 expectation that (1) actual rivals will be driven from the market, or the entry of 17 potential rivals blocked or delayed, so that the predator will gain or retain a market share sufficient to command monopoly profits, or (2) rivals will be chastened 18 sufficiently to abandon competitive behavior the predator finds threatening to its realization of monopoly profits."); Stearns Airport Equipment Co., Inc. v. FMC Corp., 19 170 F.3d 518, 524 (5th Cir. 1999) ("Aspen involved a company willingly accepting a real loss because it represented a relative gain."); Great Western Directories v. 20 Southwestern Bell Tel., 63 F.3d 1378, 1386 (5th Cir. 1995), modified, 74 F.3d 613, 21 vacated pursuant to settlement agreement (Aug. 21, 1996), cert. dismissed, 518 U.S. 1048 (1996) (described in Stearns, 170 F.3d at 524 n.3, as imposing Section 2 liability based on 22 "conduct that harmed the monopolist and could only be understood when one recognized that competitors suffered more severe harm," i.e., "raising defendant's 23 costs but inflicting more pain on its cash-starved competitor"); Advanced Health- Care Serv's. v. Radford Community Hosp., 910 F.2d 139, 148 (4th Cir. 1990) ("if a 24 plaintiff shows that a defendant has harmed consumers and competition by making a short-term sacrifice in order to further its exclusive, anti-competitive objectives, it 25 has shown predation by that defendant"); General Indus. Corp. v. Hartz Mountain
, -66- Corp., 810 F.2d 795, 803 (8th Cir. 1987) (act is anticompetitive if "anticipated benefits 1 [are] dependent on its tendency to discipline or eliminate competition and thereby enhance the firms' long term ability to reap the benefits of monopoly power") 2 (internal quotation marks omitted); Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 3 263, 291 (2d Cir. 1979), cert. denied, 444 U.S. 1093 (1980) (action harming competition is unlawful "use of monopoly power" if it is "an action that a firm would have found 4 substantially less effective, or even counterproductive, if it lacked market control"); see also Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 222 5 (1993) (even in an attempted-monopolization predatory-pricing case, "the essence of the claim" is that the defendant has priced its products "with an object to eliminate or 6 retard competition and thereby gain and exercise control over prices in the relevant market"). 7 [Much of Count IV due to applicable standards have been paraphrased from United States vs 8 Microsoft, Dec 6, 1999 ] 9 COUNT V 10 SPECIFICALLY REGARDING AIDING AND ABETTING WHILE KNOWINGLY PERPETUATING THESE CRIMES (HEREIN) WHILE UNDER THE CORPORATE 11 LEADERSHIP POSITION AND LEGAL CAPACITY TO INFLUENCE THE OUTCOME OF AND TO CAUSE THE CEASE AND DESIST OF THESE ONGOING 12 CRIMES AND TORTFEASORS, WHEREIN THE FOLLWING PARTIES INTENTIONALLY AIDED AND ABBETED THE PERPETUATION OF THE CRIMES 13 AND INJURIOUS TORTS, SPECIFICALLY, ALL ALLEGATION NOTED HEREIN 14 112. This plaintiff reaffirms all subject matter and allegations in (¶ #1) through (¶ #111) and 15 (Appendix I and II and II) and further alleges the following reasons and claims against (112a) 16 GM CEO Edward Whitacre Jr. and by and through (112b) Respondeat Superior “Old GM”, 17 (112c) “New GM”,” (112d) “MLC”, (120e) GMACM CEO David Applegate and by and 18 through (112f) Respondeat Superior GMACM, GMAC LLC, (aka ALLY BANK), 19 (112g) CEO, Michael Carpenter and by and through (112h) Respondeat Superior GMAC 20
21 LLC, RESCAP CEO, (112i) Thomas Marano and by and through (112j) Respondeat Superior
22 Residential Capital LLC are responsible for all crimes and torfeasors mentioned herein
23 specifically for the reasons detailed under ALL COUNTS herein, specifically COUNT V herein
24 of this document for the following qualifying Aiding and Abetting and otherwise instigating the
25 perpetuation of these crimes while under the corporate and legal capacity to influence the
, -67- outcome of the cease and desist of these ongoing crimes and tortfeasors specifically, the 1 perpetuation of damages with this plaintiff's prospective advantage, trade libel against the Mealer 2 Automobile and other Mealer Companies products, defamation of plaintiff's good character, 3
4 unfair business practices, unfair competition and other related intentional injurious falsehoods as
5 posted by defendants (specifically Mr. Kordella) and remaining without any public and
6 published corporate apology on this plaintiff's business-growth-funding website, which has
7 utterly irreparably destroyed the financial future and public image of this plaintiff.
8 APPENDIX I CLAIMS CONTINUED/ ”COUNT VI” ACTIONS DEFINED 9
10 113. INTENTIONAL INTERFERENCE WITH PROSPECTIVE ADVANTAGE, cause of action, by the initial invasion of privacy, trespass with intent, trade libel, and injurious 11 falsehoods intentionally placed upon this plaintiff's professional funding website by defendants specifically to destroy and interfere with this plaintiff's prospective funding and subsequent 12 business expansion, in order to prevent a rival competitor from expanding.
13 GM and the GM Family (specifically and notably the defendants under Count V) have
14 created [and have perpetuated, Please see ¶ #'s 11, 13, 17e, 24, 68, 71 b,c, d, 107k, 116, 141,
15 COUNT I, IV, V] this tortious situation against this plaintiff whereby they have either been 16 totally negligent in monitoring their private “ISP” or their employees and agents WHEREBY 17 through vicarious liability, respondeat superior becomes the mitigating factor OR employee and 18 agents and employer(s) worked in concert to; intentionally interfere with this plaintiff's 19 prospective advantage in his automotive manufacturing business. 20 The elements of this cause of action are: 21 (1) The existence of a valid contractual relationship or business expectancy; 22 (2) knowledge of the relationship or expectancy on the part of the interferor; (3) intentional interference inducing or causing a breach or termination of the 23 relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been 24 disrupted. Hirsch v. Cooper, 737 P.2d 1092, 1097 (Ariz.Ct.App.1986).
25
, -68- (113a) “(1)”The once existing business expectancy between this plaintiff and the 1 various parties and qualified prospective investors and a diverse group of credible brokers, 2 banks, and other viable funding sources such as venture capitalists and private investment 3
4 groups, including their own private brokers AND the independent dealers and entrepreneurs who
5 were expecting (and expected) to purchase 2000 Pre-MFG Mealer BV as we gathered contracts
6 from these prospective investors, who were using this plaintiff's professional business website as
7 a final sounding board for their due diligence as well as future high level employees and
8 customers. 9 (113b) “(2)” Defendants clearly in defiance of the Mealer Automobile and this plaintiff, 10 (aka interferor(s)) Mr. Kordella signed onto this plaintiff's professional and investor based 11 website at 10:55:18AM on June 9th, 2009 and signed up to “Blog” under the alias moniker 12 “MONEY01” in order to portray himself as a leading money and investor source which is clear 13 evidence that Mr. Kordella knew the reason for the existence of this plaintiff prospective 14 investment website. Further evidence of “#2 knowledge of the existence of and expectancy”, is 15
16 the fact that Mr. Kordella visited the page #2 of this plaintiff's website which clearly details the
17 reasons for the existence of the website at 10:59:23AM, where he signed on to and did create his
18 “MONEY01” Blog at 11:29:31AM and viewed the “WHAT WE ARE REALLY ABOUT” page
19 #2 of the Mealer Companies professional and funding growth oriented website again at
20 11:30:47AM after making and posting the globally RSS fed (immediately emailed to prospective
21 parties) injurious falsehoods and critically destructive comments that destroyed this plaintiff's 22 ability to sell Mealer products to prospective clients and gather prospective funding in the 23 Summer of 2009. (See APPENDIX II), (See “Exh E” pages 2 through 5) 24
25
, -69- (113b1) Furthermore, the fact that this grossly disparaging attack and posting of injurious 1 falsehoods occurred on this plaintiff's professional investor oriented website where it is made 2 quite clear the reason for this exact website currently listed on the page 2 entitled and linked 3
4 from “WHAT WE ARE REALLY ABOUT”, at http://mealercompanies.com/?page_id=2 which
5 was visited multiple times by Mr. Kordella during his crippling tirade and business destructive
6 libelous attack and clearly states the following reasons for this professional website's existence,
7 (emphasis kept):
8 “ WHAT WE ARE REALLY ABOUT 9
10 Mealer Companies LLC is gathering funding to begin full scale production of our automobile and 220v full power source (combined as one). We have the vehicle, the 11 patents, the key personnel and are now simply procuring the key ingredient... The remainder of our investment money. ” 12 (113b2) The complete destruction of this plaintiff's private and personal credibility and as 13 an automaker and businessman, which created a destruction of earning capacity and business 14 growth was and continues as the blatant intention(s) by the defendants in this matter. Defendants 15 refuse to have removed or request to have removed their injurious falsehoods and attempt to 16 mitigate the financial and repair their intentional damage to this plaintiff's reputation and try to 17
18 lighten their damages due to their libelous attack(s) left on this plaintiff's business website or to
19 attempt damage control for other injurious falsehoods which were later emailed to other
20 interested parties.
21 (113c) “(3)” The tortious crime of defendant's intentionally publishing injurious
22 falsehoods and trade libel per quod (per se as defined) while creating a path for a continued anti- 23 competitive, unlawful monopoly against the MEALER AUTOMOBILE and the gross libel per 24 se, (documented herein and admitted to by Mr. Kordella of GM-GMAC) against plaintiff John 25 Lewis Mealer as grossly irreparable tortious actions taken by GM by and through the privately
, -70- owned "protected computer," per 18 U.S.C. § 1030(e)(2), which designates Internet Service 1 Provider “ISP” as supplied by GM's own creditor (GMAC LLC) which is coincidentally this 2 plaintiff's own creditor, [By and through the cross-collateralization under the Omnibus Security 3
4 Agreement and other documents and agreements whereby granted a security interest to the
5 Omnibus Agent in any cash or other property posted or required to be posted as collateral
6 (REFER TO ALL OF “ ¶ # 63 ” herein)] have created the inability of this plaintiff to close the
7 deal with his prospective investors simply because of defendant's strategic, malicious,
8 defamatory business and trade sabotage resulting in Intentional Interference with this plaintiff's 9 Prospective Advantage. 10 (113d) Defendant (Specifically Mr. Kordella) made it very clear why he had entered 11 plaintiff's professional website and he succeeded in his quest for total destruction of plaintiff's 12 livelihood and prospective B-Round business growth. Plaintiff had prospects who were ready to 13 provide growth funding and pre-purchase the Pre-MFG Mealer Automobiles, and very simply, 14 the global leader and automotive giant GM, by and through the GMAC HQ housed/owned 15
16 Internet doorway, did intentionally and maliciously destroyed plaintiff's credibility with their
17 grossly derogatory, automotive business crippling comments. To this end, the actual interference
18 by libel per se (or per quod upon defining in terms) is clearly and unequivocally tortious
19 interference by the improper motive or means through the use of fraudulent misrepresentations
20 and injurious falsehoods (libel and defamation) of plaintiff and trade libel and slander of title
21 regarding the Mealer Automobile. 22 The most important element in a claim for tortious business interference is the 23 improper “motive or means” of the interference, Wagenseller v. Scottsdale Mem'l Hosp., 147 Ariz. 370, 388, 710 P.2d 1025, 1043 (1985). and the use of fraudulent 24 misrepresentations is one form of improper interference with another’s business potential: 25
, -71- Fraudulent misrepresentations are ... ordinarily a wrongful means of interference 1 and make an interference improper. A representation is fraudulent when, to the knowledge or belief of its utterer, it is false in the sense in which it is intended to be 2 understood by its recipient. 3 (113e) “(4)” The irreparable damages and critical timing against this plaintiff by and 4
5 through GM's employee, GM Family agent. Mr. Kordella, while at work and while utilizing the
6 privately owned "protected computer," per 18 U.S.C. § 1030(e)(2), which designates Internet
7 Service Provider “ISP” as supplied by GM's own creditor (GMAC LLC) which is coincidentally
8 this plaintiff's own creditor, [By and through the cross-collateralization under the Omnibus
9 Security Agreement and other documents and agreements whereby granted a security interest to 10 the Omnibus Agent in any cash or other property posted or required to be posted as collateral 11 (REFER TO ALL OF “¶ # 63” herein)] from work entered the site and signed on as a 12 professional Blogger under the moniker of “MONEY01” to assert his clever masquerade as an 13 elite investor status and as a professional and “real engineer” viewpoint over the viability of the 14 MEALER AUTOMOBILE and this plaintiff from a personal perspective as detailed herein. Mr. 15 Kordella obviously knew as his visits to the website prove he had open for examination while he 16
17 created the injurious falsehoods ”WHAT WE ARE ALL ABOUT”
18 (http://mealercompanies.com/?page_id=2) which clearly details the reason for the Mealer
19 Companies website (http://mealercompanies.com)'s existence and the effect his intentionally
20 destructive and untrue comments about this plaintiff which destroyed this plaintiff's automobile
21 manufacturing business and 25 years of research, design, planning, development and this most
22 recent and critical prospective series of business growth round funds. 23 (113f) Mr. Kordella (“GM” and the GM family noted herein)'s attack utterly and 24 immediately destroyed all Mealer Companies LLC viability and the personal and private work 25
, -72- related capabilities (viability) of this plaintiff and destroyed and ended the prospective investor 1 relations who have since lost all interest with plaintiff and his business, causing loss of funds. 2 Although there is no Arizona law directly on point (i.e., addressing the question whether 3 a claim for tortious interference with prospective contractual relations is dependent upon 4 compliance with the statute of frauds), it appears that under Arizona law, a tort "may be committed even where the plaintiff has no contractual rights but simply the 5 prospect of a contractual relationship." Bar J Bar Cattle Co. v. Pace, 158 Ariz. 481, 486; 763 P.2d 545, 550 (Ariz.Ct.App.1988) (citing Restatement (Second) of Torts § 766B 6 comment c (1979) ("The relations protected against intentional interference by the rule ... include any prospective contractual relations ... if the potential contract 7 would be of pecuniary value to the plaintiff.")).
8 The California Supreme Court has held that a claim for intentional interference with prospective economic advantage is not dependent on compliance with the statute of 9 frauds. See Buckaloo v. Johnson, 14 Cal.3d 815, 822; 537 P.2d 865, 868 (1975). It 10 reasoned: This is a tort theory of recovery rather than contract, and is based on interference with a "relationship" between parties irrespective of the enforceability 11 of the underlying agreement. As stated in the leading California case of Zimmerman v. Bank of America: "The tort of interference with an advantageous relationship, or 12 with a contract, does not ... disintegrate because it relates to a contract not written or an advantageous relation not articulated into a contract. The nature of the tort 13 does not vary with the legal strength, or enforceability, of the relation disrupted. The actionable wrong lies in the inducement to break the contract or to sever the 14 relationship, not in the kind of contract or relationship so disrupted, whether it is written or oral, enforceable or not enforceable." 15
16 Id. (citation omitted) (emphasis in original). Because we believe that the Arizona Supreme Court would find the California Supreme Court's reasoning to be 17 persuasive, we hold that to prevail upon their claim for tortious interference with prospective contractual relations, the appellants need not show that they could have 18 enforced the alleged oral agreement with the RTC. Accordingly, the Arizona statute of frauds is not dispositive of the 12(b)(6) motion as it relates to this claim. 19 The privilege we recognized in Bendix is indeed broad, but not so broad as to 20 encompass, as a matter of law, the conduct alleged here. The question in this case is whether Smith and Hudesman acted acceptably, given the current community 21 standards and the manner in which business persons are expected to conduct their 22 affairs. See Restatement (Second) of Torts 767 comment (1979). This is not a theoretical problem to be resolved by this court according to abstract notions of 23 how society should work. Rather, this is a genuine issue of material fact. As such, it should be determined by the trier of fact, after thorough review of the evidence 24 produced at trial. See C.N.C. Chemical Corp., 690 F. Supp. at 143; Powers v. Leno, 509 N.E.2d 46, 49 (Mass. App. 1987); see also Snow v. Western Savings & Loan 25 Ass'n, 730 P.2d 204 (Ariz. 1986).10
, -73- FURTHERMORE: 1 To prove the tort of intentional interference with contractual relations, a plaintiff 2 must show: [1]the existence of a valid contractual relationship or business expectancy; [2]the interferer’s knowledge of the relationship or expectancy; [3] 3 intentional interference inducing or causing a breach or termination of the 4 relationship or expectancy; [4]and resultant damage to the party whose relationship or expectancy has been disrupted. ... [5]In addition, the interference must be 5 improper as to motive or means before liability will attach. Wallace v. Casa Grande Union High Sch. Dist. No. 82 Bd. of Gover-nors , 184 Ariz. 419, 427, 909 P.2d 486, 494 6 (App. 1995) (citations omitted).
7 (113g) The obvious connection between the GM Family specifically all versions of GM
8 as the globally renowned builder of fine automobiles (excluding the 1973 to 1987 pressed fuel 9 tank pick up trucks) and their anticompetitive outlook on a new automaker (specifically Mealer 10 Companies LLC) and what they may claim as fair business dealings to advance their own 11 competitive interests; We see below that this excuse does not cover the respondeat superior 12 blame nor GM employee and GMAC agent Mr. Kordella's fraudulent and criminally induced 13 tortious interference with plaintiff's prospective economic advantage(s) and unfair trade 14 competition. Defendant's intentional publication of grossly disparaging falsehoods is by Arizona 15
16 court standards, criminal and fraudulent conduct which may somehow be claimed by defendants
17 as fair competition, but Arizona law proves otherwise.
18 (113h) GM and the GM Family (specifically the defendants) did commit through their
19 actions of gross defamation of character while in connection to a debt collecting incident of
20 published irreparable injurious falsehoods against this plaintiff and trade libel per se, did
21 entertain and intentionally commit criminal and fraudulent conduct for the sole purpose of 22 advancing the GM and the GM Family (specifically the defendants) image and to promote their 23 own inner-corporate dealings to benefit themselves while using the private, jointly owned and 24 "protected computer," per 18 U.S.C. § 1030(e)(2), which designates Internet Service Provider 25
, -74- “ISP” [By and through the cross-collateralization under the Omnibus Security Agreement and 1 other documents and agreements whereby granted a security interest to the Omnibus Agent in 2 any cash or other property posted or required to be posted as collateral (REFER TO ALL OF “ 3
4 ¶ # 63 ” herein)].
5 If the defendant's interference is intended, at least in part, to advance its own competing interests, the claim will fail unless the means employed include criminal 6 or fraudulent conduct. Nifty Foods Corp. v. Great Atlantic & Pacific Tea Co., 614 F.2d 832, 838 (2d Cir.1980); Strapex Corp. v. Metaverpa N.V., 607 F.Supp. 1047, 1050 7 (S.D.N.Y.1985).
8 114. This plaintiff further contends that through defendants' publication of their false 9
10 comparative claims, deception, reliance and intentional confusion of the quality of the Mealer
11 automobile and all products related to this plaintiff, the prospective buying public has relied on
12 the false description of Mealer Companies products and the grossly disparaging and damaging
13 injurious falsehoods and unconscionable representations of the mental state of this plaintiff to
14 such a point as they would reject Mealer Companies products.
15 (114a) This plaintiff expects to supply this honorable court with ample evidence of 16 studies, testimony and actual reports that present clear and convincing evidence (although not 17 strictly required) to prove this plaintiff's claims for injunctive relief and entitlement to damages 18 beyond what was intentionally caused by GM and the GM Family (specifically the defendants) 19 intentional Interference With This Plaintiff's Prospective Advantage and investment parties as 20 noted herein. 21
22 "[p]ublication of deliberately false comparative claims gives rise to a presumption of actual deception and reliance....” U-Haul International, Inc. v. Jartran, Inc., 601 F.Supp. 23 1140, 1149 (D.Ariz.1984).
24 In cases brought under 15 U.S.C. § 1125(a), courts traditionally have distinguished the standard that must be met to state a claim for injunctive relief from the 25 standard necessary to establish entitlement to damages. See 1 J. Gilson, Trademark Protection and Practice § 7.02[3], at 7-26.2 to -27 (1985 & Supp. 1986).
, -75- 1 In order to state a claim for injunctive relief, plaintiffs must demonstrate a likelihood of deception or confusion on the part of the buying public caused by the 2 false description or representation. E.g., Burndy Corp. v. Teledyne Indus., 748 F.2d 767, 772 (2d Cir. 1984); Coca-Cola Co. v. Tropicana Products, Inc., 690 F.2d 312, 316 3 (2d Cir. 1982). 4 Actual consumer confusion often is demonstrated through the use of direct evidence, 5 e.g., testimony from members of the buying public, as well as through circumstantial evidence, e.g., consumer surveys or consumer reaction tests. See U- 6 Haul Int'l, Inc. v. Jartran, Inc., 601 F.Supp. 1140, 1149 (D. Ariz. 1984), aff'd in part, modified in part and rev'd in part on other grounds, 793 F.2d 1034 (9th Cir. 1986). 7 courts may engage in "some degree of speculation in computing the amount of 8 damages, particularly when the inability to compute them is attributable to the defendant's wrongdoing." Burndy, 748 F.2d at 771 (citing Stevens Linen Assocs. v. 9 Mastercraft Corp., 656 F.2d 11, 14-15 (2d Cir. 1981)). 10
11 115. Mealer Companies funding documents had been distributed for consideration and
12 investigative prospective consideration whether in whole or in part to multiple prospective and
13 highly interested parties for their investment due diligence procedures (including letters from JL
14 Mealer in order to garner qualified automaker interest from GM, Ford, Chrysler, Toyota, Nissan
15 and Tata Motors), and which was under serious prospective investment consideration with 16 several viable investment and brokerage parties. 17 (115a) Due diligence for these parties included this plaintiff's professional global 18 interface from the Mealer Companies professional and globally accessible website which was 19 also being highly scrutinized and a major factor of face value for the Mealer Automobile and this 20 plaintiff. 21
22 (115b) GM and the GM Family (specifically the defendants) immediately (within
23 40 days) upon the release of this Mealer Companies Funding Document Business Proforma and
24 the creation of the mealercompanies.com automotive MFG growth funding website did provide
25 the pathway and possibly an incentive, as they certainly had multiple motives, for GM engineers
, -76- to post injurious falsehoods and blacken the good name of this plaintiff and Mealer Automobile 1 manufacturing goals. (See Exh Z, Pg 8): 2 (115c) This document titled “MEALER COMPANIES, FUNDING REQUEST 3
4 SUMMARY, CONFIDENTIAL DISCLOSURE, J.L. MEALER, Q2 JUNE 2009” states very
5 clearly the amount of funding that was prospective and under serious consideration and financial
6 advisory at the time of defendant's publication of their injurious falsehoods of plaintiff.
7 “Mealer seeks to raise start-up $95,000,000 in VC capital and lease-back agreements over the first three years for Phase I, not taking into account pre-and post-production sales. After two 8 years, Mealer will require another $105,000,000 of either private capital or loans for Phase II secondary manufacturing purposes. The company will have one major manufacturing facility in 9 either VA or TN and electronics research and developmental center and manufacturing center either in the same state or elswhere. At least four other ideal manufacturing locations are under 10 review and remain highly attractive. The cost of a fund-to-suit conversion of existing facilities 11 proves to be a fast, viable and cost-effective alternative to new site construction. And, since there are a growing number of such facilities coming to market, Mealer is sure to find the right 12 facilities to meet our requirements.”
13 116. The aggravated and direct damages and loss of prospective funding which was caused by
14 GM through the private and bank secured ISP registered to GMAC headquarters is
15 $200,000,000. The actions of GMAC providing for and allowing and perpetuating this incident
16 with their debtor GM whereby entering this plaintiff's professional website with the intent to 17 injure and destroy. 18 117. Defendant GMAC intentionally participated and caused the immediate and future 19 abandonment and discontinuance of financial investment interest from prospective contracts and 20 agreements by this plaintiff's prospective investors, future customers, future employees and other 21 interested parties. The true and actual damages, financial and accrued, are ongoing and no 22 corporate version of GM (and all have benefited financially from these illegal transgressions), 23
24 nor of the (also benefiting) variations of GMAC has offered to remove their grossly damaging
25 libel, nor have they made any attempt to contact the once prospective investment parties or other
, -77- interested parties. The intentional grossly damaging remarks are still on plaintiff's professional 1 website without any public comment or apology from defendants. 2 118. Plaintiff claims that additional immediate $200,000,000. pecuniary value and loss of the 3
4 potential growth funding contract was to be realized upon the prospective funding contracts
5 being completed was immediately and permanently 'taken off the table' due to defendant's
6 intentional and blatantly destructive, libelous falsehoods, blackening, grossly defamatory attack
7 upon this plaintiff PLUS the loss of $30,000,000. Pre-Manufacturing (“Pre-Mfg”) sales of the
8 MEALER Bridge Vehicle (“BV”) which were tentative on prospective funding to prospective 9 private dealers, various celebrities and automobile collector enthusiasts throughout the world. As 10 noted in the Mealer Companies Funding Document (See Exh Z, pg 23): 11 “· Pre Manufacturing Sales: 12 o The current trend with new automakers, especially those automakers that are being funded to manufacture Green Technology vehicles, is that Pre-Mfg Sales are in the 13 thousands of customers. Aptera, the three-wheeled, 2-seater EV as well as Tesla Motors’ compact sedan EV were both reported selling at least 2000 Pre-Mfg new 14 models. This presents a terrific opportunity for additional funding and to service debt. In like manner, Mealer is forecasting 2,000 presales per BV model by Q4’2010, which 15 equates to $30,000,000 gross margin. The Chevy Volt website has nearly 50,000 potential customer signed up and that vehicle will not launch until 2010.” 16
17 APPENDIX II CLAIMS CONTINUED/ GROSS DEFAMATORY INJURIOUS FALSEHOODS 18 PRODUCT DISPARAGMENT, ACTIONS DEFINED, TRADE LIBEL DEFINED
19 119. Trespass with Intent to Destroy, Defamation of Character, False Light, Trade Libel
20 (119a) The defendants (specifically Mr. Kordella) invaded this plaintiff's privacy with
21 intent to injure and did intentionally publish grossly derogatory remarks on this plaintiff's
22 professional business website, “mealercompanies.com”. 23 (119b) Whereby these strategically worded postings acts did occur and were admitted to 24 by Mr. Kordella, the intentions of derogatory remarks which were placed before this plaintiff's 25
, -78- prospective investors, lenders, business partners, interested parties and future clients were 1 specifically meant to interfere with the Mealer Automobile and to destroy this plaintiff. 2 (119c) Defendants posting his various grossly derogatory, untrue, defamatory libel per 3
4 se, and untruths this plaintiff which painted him in false light with Mr. Kordella's series of
5 cleverly worded, wholly fraudulent, deceptive, disparaging, dishonest and effectually
6 destructively defamation of character, fraudulent misrepresentations of business viability and
7 mental capacity, which utterly destroyed Mr. Mealer's ability to maintain any high level future
8 job. Defendants intentional destruction of plaintiff's moral character destroyed the public trust 9 required by this plaintiff as a global automaker in what would have been a globally available 10 Mealer Automobile. 11 (119d) Furthermore, this libelous attack was immediately updated as “Mealer Companies 12 Investor News” when it was delivered through email, (worldwide), to the various interested 13 investing parties who had signed up for automatic updates via the RSS feed (“Really Simple 14 Syndication” also considered a “live news feed” or “real time update”) which interfered with and 15
16 destroyed the prospective investments and product credibility and over-all personal viability of
17 this plaintiff and Mealer Companies and the Mealer Automobile.
18
19 ARS § 20-455 Defamation No person shall make, publish, disseminate or circulate, directly or indirectly, or aid, abet or encourage the making, publishing, disseminating or 20 circulating of any oral or written statement or any pamphlet, circular, article, sales material or literature which is false or maliciously critical of or derogatory to the financial 21 condition of an insurer, and which is calculated to injure any person engaged in the 22 business of insurance, or any domestic corporation or group being formed pursuant to this code for the purpose of becoming an insurer. This provision shall not be deemed to 23 restrict the right, lawfully exercised, of newspapers, magazines, radio and television stations, and similar public media for news dissemination, objectively to publish and 24 disseminate news.
25
, -79- 120. Gross Libel per se, Defamation of Character per se, Trade Libel per se, publication 1 of injurious falsehood, slander of title (“per quod” as “per se” when defined), 2 (120a) While working in concert and in a combined effort utilizing the private, jointly 3
4 owned and "protected computer," per 18 U.S.C. § 1030(e)(2), which designates Internet Service
5 Provider “ISP” “GMC-20” [By and through the Omnibus agreement and other documents and
6 agreements whereby granted a security interest to the Omnibus Agent in any cash or other
7 property posted or required to be posted as collateral] and maintained with company profits and
8 US Treasury Department (T.A.R.P. loans)], and housed Internet Service Provider (“ISP”), GM 9 engineers did enter plaintiff's professional Mealer Automobile company funding website and 10 intentionally, maliciously destroyed over 25 years of planning, research, development and this 11 plaintiff's life's work by intentionally and critically blackening this plaintiff's name including the 12 purposefully damaging injurious falsehoods relating to the Mealer Automobile disparagement 13 under slander of title as to the viability as an automaker and global supplier of Mealer 14 Companies products. 15
16 TRADE LIBEL COMMERCIAL DISPARAGEMENT trade libel and commercial, or product disparagement claims are also referred to as 17 “injurious falsehood” claims See Western Tech., Inc. v. Sverdop & Parcel, Inc., 154 Ariz. 1, 4, 739 P.2d 1318, 1321 (Ariz. Ct. App. 1987). Trade libel and commercial 18 disparagement claims arose from the general law of defamation, and are similar to slander of title claims; but whereas slander of title goes to the property, product, or 19 service, See City of Tempe v. Pilot Properties, Inc., 22 Ariz. App. 356, 363, 527 P.2d 515, 522 (Ariz. Ct. App. 1974) (Slander of Title); Gee v. Pima County, 126 Ariz. 116, 20 612 P.2d 1079 (Ariz. Ct. App. 1980) (trade libel).
21 Trade libel is the “intentional publication of injurious falsehood disparaging the 22 quality of another's property with the resulting pecuniary loss or the publications of matter derogatory to the plaintiff's business which is calculated to prevent others 23 from dealing with him” See Gee, 126 Ariz. At 116, 612 P.2d at 1079; Western Tech., 154 Ariz. At 4, 739 P2d at 1321. “For such a claim one must affirmatively plead 24 actual loss of business customers, that the defamatory statement was false, and special damages”. 83 See Aldabbagh v Dept of Liquor Licenses & Control. 163 Ariz. 25
, -80- 1 121. The following outline details the negligent, and intentionally, strategically, critically
2 damaging and disparaging injurious falsehoods in willful and wanton disregard for this plaintiff
3 in regards to this plaintiff's private and professional character and of the trade character and
4 viability of the Mealer Automobile. Defendants' intentional disruption of what would have, could
5 have and should have been the expected, prospective expansion of the Mealer Companies LLC
6 international automotive manufacturing trade (and other Mealer Companies products) by the
7 unprivileged, unprovoked publication of intentionally false, misleading and defamatory
8 statements made by the defendant's which was “Blogged” in content and placed on plaintiff's
9 professional automotive and business expansion website with the intent to destroy the reputation
10 and funding viability and expansion of manufacturing capabilities and viability of the Mealer
11 Automobile.
12 122. Defendants intentional sabotage of this plaintiff's character and business was a direct
13 assault on a competitive trade, aggressive and unfair competition and the strategic unfair
14 business practices to destroy this plaintiff and his trade. The defendants did, in fact, publish
15 globally and correspond with prospective parties to plaintiff via RSS feed and email including
16 direct intentional email communication after the initial attack) the following series of unwanted,
17 critically arranged per quod (per se which by definition is per se) statements which accomplished
18 their goal which has caused harm and did in fact, expose this plaintiff to public hatred, shame,
19 obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation and disgrace,
20 and did induce an evil opinion of this plaintiff and the Mealer Automobile in the minds of right-
21 thinking persons, prospective customers and investors and did deprive this plaintiff of the
22 confidence needed for Mealer Companies product sales and for investor reasoning.
23 123. When, on June 9th, 2009 GM Engineer Kris J Kordella who signed on as “MONEY01” in
24 order to elevate himself in what he portrayed as an investor who appears to have superior
25 knowledge in all matters of funding by the very term of moniker “MONEY01” (which by
, -81- 1 terminology, precedes MONEY 101 as in college class English 101 and specifically with Mealer
2 Automobiles), which in turn adds to the preponderance of evidence that Mr. Kordella and the
3 defendants did IN FACT know the exact purpose of this plaintiff's funding expansion website.
4 124. Defamation: A statement which causes harm to reputation.
5 A statement is defamatory if it "tends to injure the plaintiff's reputation and expose the plaintiff to public hatred, contempt, ridicule, or degradation." Phipps v. Clark 6 Oil & Ref. Corp., 408 N.W.2d 569, 573 (Minn. 1987). 7 When the defamatory meaning is not apparent on its face, the plaintiff has the burden of pleading and proving such extrinsic facts. Anderson v. Kammeier, 262 8 N.W.2d 366, 371 (Minn. 1977).
9 125. Below, this plaintiff will prove the extrinsic facts of this intentional blackening libelous
10 defamation, unrelenting character assassination and the defendant's complete destruction of this
11 plaintiff's business funding through their wholehearted destructive attack on this plaintiff's 12 professional business and funding growth for the Mealer Automobile website, 13 http://mealercompanies.com on June 9th, 2009 by the defendants. The 'standard of conduct' for 14 defamation is met as is the 'standard of proof' including the defendant's insolent letter of apology 15 (which is an admission of their tortious interference). 16 Standard of Conduct. Punitive damages are appropriate only where the defendant’s 17 wrongful conduct was guided by evil motives or willful or wanton disregard of the interests of others. An “evil mind” may be shown by evidence that defendant 18 pursued a course of conduct knowing that it created a substantial risk of significant 19 harm to others. Rawlings v.Apodaca 726 P.2d 565 (Ariz. 1986); see also Warner v. Southwest Defect Images, LLC, 2008 Ariz.App. LEXIS 47 (Ct.App.2008); Medasys 20 Acquisition Corp. v. SDMS, PC, 203 Ariz. 420 (2002).
21 126. The evil mind and willful intent of defendants (specifically Mr. Kordella) is outlined
22 clearly in the actual wording of the disparaging attack as well as in the letter of apology where
23 he admitted why the injurious falsehood attacks were made. (See Exh______P.____Line_____)
24 Standard of Proof. The standard of proof is one of clear and convincing evidence. 25 See Hyatt Regency Phoenix Hotel Co. v. Winston and Strawn, 907 P.2d 506 (Ct. App. 1995), cert. denied, 517 U.S. 1234, 116 S. Ct. 1877, 135 L.Ed.2d 173; Linthicum v.
, -82- Nationwide Life Insurance Co., 723 P.2d 675 (Ariz. 1986). See also Thompson v. Better- 1 Bilt Aluminum Prods. Co., 171 Ariz. 550 (1992); Saucedo v. Salvation Army , 200 Ariz. 179 (Ct. App. 2001). 2 127. This evidence and the GM engineer's (specifically Mr. Kordella) letter of admission 3
4 cannot make this more clear for both the immediate attack, the prolonged negligence of the
5 defendants as a whole and individually whereby, other than Mr. Kordella's private insolent
6 apology, the defendants' have refused to remove or attempt to make amends and have thus
7 gained immense monetary gains (enrichment and engorgement) from the never removed and
8 unrelenting attack where they have totally ignored this fellow automaker and debtor for the sake 9 of their financially connected and interdependent globally renowned automaker (GM) who is 10 also their preferred debtor and also under the GM Family of businesses which are under 11 agreement and witnessed by the SEC filings and other documentation referenced herein. 12 128. The injurious falsehood comments below as highlighted, italicized in quotes, and 13 “extrinsic meanings” of this portion of defendant's comments from modern everyday dictionary 14 definitions are underlined in quotes. This baseless disparaging attack which destroyed this 15
16 plaintiff were posted in their entirety (yes, there's more, including emails sent directly to this
17 plaintiff's future customers and prospective employees and investors), and immediately sent out
18 to many highly interested qualified prospective investors, prospective future customers and
19 future engineering and other employees who had signed up for RSS feed from the Mealer
20 Companies LLC interim, qualified Investor based website known as mealercompanies.com;
21 1a. (Meriam Webster Dictionary), ...“Mealer Automobiles? America's next major 22 automobile company??” “ Question Marks and multiple usage of Question marks meaning: a: Something 23 unknown , unknowable, or uncertain b: someone (as an athlete or an automaker) whose condition, talent,or potential for success is in doubt.” 24
25
, -83- (128a) The statement above “1a.” make it blatantly clear the evil intentions of defendant 1 (GM) Mr. Kordella can only allude to and which were perceived by this now irreparably injured 2 and grossly damaged, disgraced, shamed and disparaged victim and as obviously perceived by 3
4 the prospective clients and investors, as signaling and making it clear to plaintiff's prospective
5 investors, clients and engineers that the viability, condition and potential for success of Mealer
6 Automobiles is in serious doubt and “MONEY01” makes it clear that all readers of his
7 disparaging Blog should be wary of this unknown company (Mealer Companies LLC) with it's
8 uncertain automobile product (Mealer Automobile), by casting and creating a feeling of highly 9 disparaging doubt as a major investment while portraying oneself as a financial guru 10 (“MONEY01”) and a “real” engineer. This is clearly a proven issue of blatant intentional 11 interference with a prospective advantage. 12 1b. (Collins English Dictionary), “...HAH!!!!!!!!!!!!!!!!!!!!!!”... 13 “ HAH abbreviation of HA meaning an exclamation denoting surprise, joy or grief. Both uttered and as written, it expresses as great variety of emotions, determined by the tine 14 or the context. When repeated,ha,ha, it is an expression of laughter, satisfaction, or triumph, sometimes derisive laughter; or sometimes it is equivalent to “Well, it is so.” 15 Ha-has, and articulate hootings of satirical rebuke. Carlysle 16 1c. (Stuart Jeffries, "The Joy of Exclamation Marks!" The Guardian, Apr. 29, 2009) 17 "There is surely a point after which exclamation marks no longer express friendliness. In this post-literal time, exclamation marks become signs of sarcasm a s witty 18 correspondents rebel against their overuse. Hence: 'I loved your last email! OMG did I LOVE it!!!!!!' The point is they didn't. They were being IRONIC." 19 1d. Use of multiple Exclamation Points with exclamation point defined as: “as a 20 symbol of factorial function, or (in logic) occurring with an existential quantifier”
21 (128b) The blatant statements and strategic use of punctuation at “1b., 1c., 1d” as
22 Blogged by Mr. Kordella under the moniker “MONEY01” is clearly a successful attempt to
23 create an expression of disparaging, derisive and comical rebuke through intentional injurious
24 falsehoods which singles out the Mealer Automobile as a laughable joke, uncertain, aversion of a 25 product so as to actually and effectively persuade prospective investors, employees, engineers
, -84- and other interested parties and Pre-MFG “Mealer BV” clients to steer clear of the company and 1 the man (this plaintiff). Plaintiff believes the objective was to intentionally interfere with and 2 destroy interest or otherwise ostracize the Mealer Automobile, Mealer products to those who 3
4 may have had anything financially or productively to do with the Mealer Automobile as it would
5 also reduce these interested parties to the same ridicule.
6 (128c) Mr. Kordella portrayed and intentionally inflected disparaging shame and loss of
7 face upon this plaintiff. In defendant's successful efforts to interfere with funding and business
8 growth and the over-all competition that Mealer Automobiles would give to GM automobiles, 9 the strategic damage must be far reaching and complete. The exclamation marks and over-use of 10 this particular punctuation drives the point home to these same parties who are looking for the 11 smallest weakness to put their hard earned investment money, time and efforts elsewhere. 12 2. (Cambridge Idiom Dictionary), “...You're a legend in your own head and notice I 13 didn't say mind because it's obvious you don't have one...” [commonly referred to as out of your mind]: 14 “extremely stupid or mentally ill.”
15 (128d) This blatantly crippling, injurious falsehood and disparaging comment creating 16 public disgrace and humiliation while making this plaintiff out to be evil and shameful, was 17 another coupe de gras by adding to the doubt of this plaintiff's mental capacity, defendants' 18 insinuated insanity and uncertainty of this plaintiff and his ability to function as any form of 19 normal human being let alone as a businessman running a company that is requesting 20 $200,000,000. of investment funds from prospective parties, and/or the same businessman 21 running a company expecting to sell many viable products and hiring additional, multiple and 22
23 highly competent engineers. This is clearly a gross and blatant attempt (that proved successful)
24 to dissuade prospective investors and clients from putting efforts and funding into the growth of
25 a competitive to GM automaker.
, -85- (128e) After-all, what serious engineer or other long term qualified employee would 1 want to taint their resume by working with a man or company whom GM and “MONEY01” 2 (engineer Mr. Kordella) claims (this plaintiff ) “has no mind” ? Everyday, commonplace market 3
4 results and basic research and long time purchasing habits sheds light on the fact, that very few
5 people would commit to buy a high dollar product (specifically a supposedly family-safe
6 automobile) from a man who is mentally ill, thereby exposing this plaintiff to public hatred.
7 3. (A closing statement by Mr. Kordella, which indicates exactly the intentions of the destructive, strategically-worded tirade made by Defendant, “...Anyway I wish you ALL the 8 worst the the world can give to such a [this plaintiff by gross injurious falsehood terms 3a,b,c].”
9 (128f) The meaning of the defendant's clear and concise statement above provides ample 10 evidence, and which was globally published upon this professional business finding related 11 website, to essentially provide proof of a “non-beneficial, anti-profitable curse towards Mealer 12 products specifically the Mealer Automobile” [authored by an “executive money guru” under 13 moniker “...MONEY01...” who is a self proclaimed “...real engineer of real automobiles...”] 14 which is put upon all projects forever attempted or to be accomplished by this plaintiff and his 15 business. 16
17 (128g) These evil words were placed in front of and sent via RSS fed email updates to
18 the very prospective investors, future customers and employees and provides a factual basis for
19 the pure contemptuous hatred for this injured, defamed and victimized plaintiff. These words
20 alone acted a proverbial nail in the coffin to deter prospective interest in the Mealer Automobile
21 and this plaintiff himself and clearly show defendant’s evilly contrived, strategically planned and 22 executed wrongful improper conduct was guided by malicious motives and willful, wanton 23 disregard of the interests of plaintiff. This statement alone caused the entire $200,000,000. 24 prospective funding investors and Pre-MFG sales $30,000,000. to lose complete interest because 25
, -86- no tentative investor or careful brand new product purchaser wants to deal with “outsider drama” 1 connected to what has now become a cursed and doomed new automaker. 2
3 3a. (Merriam-Webster Dictionary), “...self serving...” 4 “ S erving one's own interests often in disregard of the truth or the interests of others .”
5 (128h) As defendants (specifically Mr. Kordella) noted above in “3a.” further
6 disparaging plaintiff with injurious falsehoods as “self-serving” and this blackening statement is
7 so far from the truth that it should fit in a category of lies and a crime all on it's own. This grossly
8 deviant behavior on the part of GM and the GM Family (specifically Mr. Kordella and all
9 defendants)'s use of this disparaging term is used to signal to the world of prospective clients,
10 investors, employees, suppliers, fellow business owners, future business partners, Pre-MFG 11 purchasing clients and others, that plaintiff cares for no one but his companies bottom dollar and 12 will do whatever it takes to make a profit including the very acts and mistakes that General 13 Motors has done to create their own self serving world of bankruptcy and failure. This is a 14 critically destructive and untrue portrayal of Mealer Companies LLC which is an Independent, 15 Alternative Fuel Powered Automaker which exposes this man and his automobile to public 16 hatred. 17
18 3b. (Merriam-Webster Dictionary), “...pathetic...” “Pitifully inferior or adequate” 19 (128i) As defendants clearly intentionally disparagingly misstate above in “3b.” an effort 20 to cleverly sabotage and seal the fate of this plaintiff's future by further dissuading his 21 prospective investors from finalizing and closing the funding agreements for Mealer Companies. 22 The term “...pathetic...” is used to portray this plaintiff as inferior and inadequate, exposing him 23 to public hatred and ridicule for the prospective parties time, efforts or prospective investment 24
25 funds, which is another blatant and successful injurious falsehood used to destroy the validity of
, -87- funding for the Mealer Automobile to prevent this plaintiff from competing in and rivaling in an 1 open market with General Motors vehicles. 2 3c. (Merriam-Webster Dictionary), “...MORON...” 3 “ 1. a person affected with mild retardation. 2. a very stupid person. ” 4 (128j) As defendants clearly and intentionally lied about in “3c.” in order to destroy, 5 expose this plaintiff to odium, contempt, obloquy and to disparage the upstanding business 6 reputation of this plaintiff by referring to him as someone with mild retardation, who is very 7 stupid and have intentionally created a life-changing outlook on this plaintiff's credibility as a 8 viable candidate for the workforce or as an investment opportunity with his own business. No 9 reasonable person would buy or rely on the safety of an automobile supplied by an automaker 10
11 who is mildly retarded or very stupid, nor would they hire a disgraced man, exposed to public
12 hatred as defendants' have intentionally created as an abject, untrue and unwanted observation of
13 this plaintiff.
14 4. (Merriam-Webster Dictionary), “...good riddance CLOWN...” “ 2. rude ill-bred person. 3. A person who habitually jokes and plays the buffoon. 15 (128k) By using the phrase, “...good riddance...” Mr Kordella made it clear that this 16 plaintiff is destined to fail and would not be a worthy investment, which in effect, interfered with 17
18 the prospective clients and investors by negating this plaintiff's viability and longevity. As
19 defendants clearly and intentionally deceive this plaintiff's prospective clients through published
20 injurious falsehoods and thwarted investors in “4” and intentionally misguide and mislead this
21 plaintiff's future employees, future domestic and international customers, prospective clients and
22 business partners by intentionally and incorrectly referring to this plaintiff as a CLOWN which is
23 by definition a “rude, ill-bred person” which ridiculed this plaintiff, and someone who by the 24 defendant's untrue description of this plaintiff caused this plaintiff to “lose face” with his 25
, -88- prospective Japanese and Korean investment groups who now want nothing to do with this 1 “CLOWN” per MONEY01 and real engineers from a real engineering firm noted below in “5”. 2 5. (Merriam Webster Dictionary), “...real...” used twice to explain that Mealer was in 3 fact, not “real”. 4 “ 1 . Not artificial, fraudulent, or illusionary. 2. GENUINE. 3. Genuinely good or capable of success. 5 (128L) As defendants unequivocally intentionally misstate in order to dissuade plaintiff's 6 prospective investors, et al. by inferring and disparaging that the Mealer Automobile and JL 7 Mealer are not “real” and in fact by definition are no more than “a fraudulent and illusionary, 8 non-genuine entity,” “who is incapable of success”. This alone is a major prospective deal 9 breaker and as has been proven, Mr. Kordella and fellow defendant's have succeeded in their 10
11 quest to utterly destroy, disparage, assassinate and crush this plaintiff's character and did commit
12 gross trade libel upon this plaintiff's business (specifically the Mealer Automobile) and other
13 injurious falsehoods upon this plaintiff's reputation creating obloquy, odium, ostracism and
14 disgrace which is irreparable harm.
15 129. Intentional Infliction of Emotional Distress, (specified three elements noted below)
16 Defendants' (specifically Mr. Kordella) did (1) and (2) trespass with intent to totally 17 destroy this plaintiff personally and to crush over 25 years of the Mealer Automobile research, 18 development and prototyping through (3) but not limited to, intentional infliction of emotional 19 distress by the very actions of interference, trade libel and other grossly intentional torts and 20 crimes noted herein. 21 130. Defendant's (Specifically Mr. Michael Carpenter the CEO of GMAC LLC aka Ally Bank, 22
23 Ally Financial AND
24 (130a) Mr. David Applegate, the CEO of GMAC Mortgage, AND
25 (130b) Thomas Marano CEO of ResCap, AND
, -89- (130c) Edward Whitacre, Jr., the CEO of the New GM 1 (130d) by and through the private, inner-corporate owned and governed per 2 18 U.S.C. § 1030(e)(2), which designates Internet Service Provider “ISP” [By and through the 3
4 Omnibus agreement and other documents and agreements whereby granted a security interest to
5 the Omnibus Agent in any cash or other property posted or required to be posted as collateral
6 (REFER TO ALL OF “ ¶ # 63 ” herein)] have (1) outrageously refused to remove or have
7 removed the injurious falsehoods and (2) have intentionally not made any attempt to ease the
8 intentionally inflicted emotional distress by responding to the multiple phone calls, letters and 9 emails sent to their respective companies and themselves personally (3) while the entire 10 development goals and plans of this plaintiff's future and family have literally dissolved around 11 him due to the defendants' conduct. These improper motives and means not only add to the 12 perpetuation of all crimes and tortfeasors noted herein, but multiply the injurious falsehoods and 13 compound the intentional infliction of emotional distress all the while GMACM and ResCap are 14 lawfully foreclosing on this plaintiff's home through grossly unlawful means as detailed herein. 15
16 In Arizona, three elements are necessary to establish a claim for the tort of intentional infliction of emotional distress: (1) the conduct by the defendant must be extreme and 17 outrageous; (2) the defendant must either intend to cause emotional distress or recklessly disregard the near certainty that such distress will result from her 18 conduct; and (3) severe emotional distress must in fact occur as a result of the defendant's conduct. Ford v. Revlon, Inc., 734 P.2d 580, 585 (Ariz. 1987). 19 130. All defendant's noted at (¶ #129) above have also caused aggravated damages where 20 damages may be assumed including but not limited to severe emotional and other severe stress 21
22 related physical suffering(s) of this plaintiff, his wife and two young sons, by and through the
23 constant stress of being publicly assaulted and grossly defamed, crippled and placed in an
24 economic choke-hold while the abusive tactics used against this plaintiff will not abate, and by
25 having his family placed in harms way when this plaintiff and his family have clean hands in this
, -90- matter. Not only is this family being forced from our home, but the unlawful actions by 1 defendants' have forced this plaintiff to loose escrow accounts and once in a life-time 2 opportunities with funding as well as with properties and MFG site locations.. 3
4 APPENDIX III 5 DEFENDANTS BANK / LENDER VIOLATION OF LAW AGAINST THIS PLAINTIFF CAUSE OF ACTION and MEMORANDUM EXCLUSIVE POINTS and AUTHORITIES 6 131. Due to the interstate commerce application specifically for GMAC LLC, GMACM and 7 ResCap, (et al) for banking, mortgage and lending practices and other fiduciary related and 8 legally binding requirements, these federal housing and banking laws which are in effect as state 9
10 laws and statutes must be taken into consideration. These blatantly illegal, tortious transgressions
11 by the defendant (creditor and mortgage holder GMAC, ResCap, et al) did occur in clear
12 violation of banking laws, creditor-debtor relationship standards, and blatant violations of
13 housing laws;
14 132. RESPA (12 USC 2601, 2616 et al), these laws simply state that State laws are in full 15 effect for RESPA violations. 16 FDIC Debt Collection Practices: 17 A. § 805 Communication in connection with debt collection [15USC 1692c(a)(1)] 18 (b) COMMUNICATION WITH THIRD PARTIES. Except as provided in section 804, 19 without the prior consent of the consumer given directly to the debt collector, or the ex- press permission of a court of competent jurisdiction, or as reasonably necessary to 20 effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than a consumer, his 21 attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the 22 attorney of the creditor, or the attorney of the debt collector.
23 B. 15 USC 1692e, False and Misleading Representations, [Specifically]: ( 1 4) The use of any business, company, or organization name other than the true name of the debt 24 collector’s business, company, or organization.
25
, -91- [This is not merely a “bold assertion” by this plaintiff, but a conceivable result of 1 defendant's actions as per a M.O. stance made public by GMAC and ResCap and 2 submitted as evidence]. When GMAC and ResCap utilized GM's engineers and 3
4 employees as collections agents (specifically Mr. Kordella) who was an engineer, yet for
5 an unknown reason was researching this plaintiff's mortgage and website to, in fact,
6 disparage and destroy this plaintiff so as to create and absolve a situation as stated by
7 ResCap chairman Tom Marano to “...strategically...” “...respond aggressively...” by
8 “...further reducing ... business risk...” Certainly, this independent, competitive, 9 alternative fuel powered automaker who was making mortgage payments and not yet in 10 default to GMAC was a business risk to the GM Family. GM and GMAC knew full well 11 who this plaintiff is and his business practices. (See Exh______, ______) 12 C. 15 USC § 806. (1692d), Harassment or abuse 13 A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. 14 Without limiting the general application of the foregoing, the following conduct is a violation of this section: (1) The use or threat of use of violence or other criminal means 15 to harm the physical person, reputation, or prop erty of any person. (2) The use of obscene 16 or profane language or language the natural consequence of which is to abuse the hearer or reader. 17 NOTE: The intentional damage to this plaintiff's reputation is obvious and has been 18 explained in detail (See Section “APPENDIX II” of this document). 19 D. 15 USC § 807. (1692e) False or misleading representations , A debt collector 20 may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. [Specifically]: (7) The false representation or implication 21 that the con sumer committed any crime or other conduct in order to disgrace the 22 consumer. [Specifically]: (9) The use or distribution of any written communication which simulates or is falsely represented to be a docu ment authorized, issued, or approved by 23 any court, official, or agency of the United States or any State, or which creates a false impression as to its source, autho rization, or approval. [Specifically]: (14) The use of any 24 business, company, or organization name other than the true name of the debt collector’s business, company, or organization. 25
, -92- 133. NOTE: Defendant's written and globally distributed misleading representation and claims 1 under moniker “MONEY01” comes to perspective as a false implication and impression as to 2 MONEY01's fiduciary capacity as a related fiduciary source, who's very authorization, or 3
4 approval was falsely represented and used to disgrace this consumer (plaintiff) in a clear blatant
5 tortious action(s). GM is not GMAC or ResCap by their own corporate paperwork, so they must
6 be acting in concert against this plaintiff.
7 E. 15 USC § 808. (1692f ) Unfair practices , A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt.[Specifically]: (6) Taking 8 or threatening to take any nonjudicial action to effect dispossession or disablement of property if— 9 (A) there is no present right to possession of the prop erty claimed as collateral 10 through an enforceable security interest; (C) the property is exempt by law from such dispossession or disablement. 11
12 NOTE: This Plaintiff was not in mortgage default until after the tortious interference and
13 crippling and untrue libelous inequitable activity was instigated and committed by the defendants
14 and thus was created to destroy this plaintiff's ability to maintain mortgage payments.
15 134. F. Fair Debt Collection Practices Act (“FDCPA”) § 803. [15 USC 1692a] 16 Definitions: 17 (6) The term "debt collector" means any person who uses any instrumentality 18 of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, 19 directly or indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding the exclusion provided by clause (F) of the last sentence of this 20 paragraph, the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third 21 person is collecting or attempting to collect such debts. For the purpose of section 22 1692f (6) of this title, such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal 23 purpose of which is the enforcement of security interests. (F) any person collecting or attempting to collect any debt owed or due or asserted to be owed or 24 due another to the extent such activity (i) is incidental to a bona fide fiduciary obligation or a bona 25 fide escrow arrangement;
, -93- (ii) concerns a debt which was originated by such person; 1 (iii) concerns a debt which was not in default at the time it was obtained by such person; 2 COUNT VI 3 Declaratory Relief 4 135. Mealer repeats and realleges the allegations and continued in paragraphs 1 through 134. 5 136. The mortgage agreements executed between "GMACM" and Mealer to be released free 6 and clear of encumbrances to Mealer, which is for the real property between "GMAC" and 7 Mealer detailed herein. 8 137. Through their unlawful actions, or lawful actions for an unlawful purpose, GM and the 9
10 GM Family (specifically the defendants), have caused losses, irreparable damages, missed
11 opportunity and severe emotional distress to this plaintiff.
12 138 Accordingly, this plaintiff seeks a declaration pursuant to as described by this plaintiff at
13 the time of trial, that permits and requests this plaintiff to remove all objectionable content that
14 was placed through GM and the GM Family (specifically the defendants) onto this plaintiff's
15 professional business website, including a much needed publicly known and globally published 16 and verbal apology and retraction of all complaints, comments, derogatory remarks and 17 defamation of this plaintiff's good character which may be distributed and rendered as this 18 plaintiff deems fit. 19 (138a) Financial and emotional and punitive damages and other Loss incurred by this 20 plaintiff is not limited to defamation of character, trade libel, prospective funding, Pre-MFG 21
22 sales, but should include governmental contracts and vertical sales as outlined in the Mealer
23 Companies LLC Funding Documents.
24
25
, -94- DEMAND FOR RELIEF 1 139. WHEREFORE, this plaintiff demands a judgement in its favor on all Counts of the 2 Complaint. In addition, this plaintiff demands: 3
4 A. Compensatory damages in an amount to be determined at trial, demanded jointly
5 and severally including but not limited to:
6 (1) The actual Mealer Family private residence, real property and all
7 encumbrances thereto, located at 6333 Gardenia Lane Show Low, Arizona
8 released by GMAC Mortgage LLC to this plaintiff. 9 (2) The costs incurred by Mealer to Date, due to the Defendants' wrongful 10 conduct, recovery of his property and rectify the damage to his goodwill, loss 11 of face, and prospective advantage for pending investors and customers of 12 the Mealer Automobile and other Mealer Companies products that the 13 Defendants have caused to be lost. 14 (3) Full and complete restitution for the irreparable damage done to this 15
16 plaintiff's good name through injurious falsehoods and defamation of character.
17 (4) Full restitution to the full extent of the law for all losses and future losses
18 due to defendants' improper conduct resulting in trade libel and anticompetitve
19 behavior which created serious detrimental harm through the publications of
20 injurious falsehoods.
21 (5) Full restitution to the full extent of the law for all losses and future losses 22 for the perpetuation of the injurious falsehoods by the applicable parties under 23 respndeat superior, jointly and severally. 24
25
, -95- (6) Full restitution to the full extent of the law for all losses and projected 1 future losses for the direct emails sent out after the initial injurious falsehoods 2 which created a second act of injurious falsehoods, trade libel and intentional 3
4 interference with this plaintiff's prospective advantage.
5 B. Injunctive relief, including but not limited to an order requiring the Defendants '
6 official and main corporate authorizing parties:
7 (1) To supply Mealer with written explanations of why they failed to properly
8 maintain this debtor's mortgage and at what point they were instructed to 9 trespass upon this debtor's professional website to cause the impending 10 default in this instant mortgage and a full list of all inner-corporate and 11 associated employees and agents involved. 12 (2) To permanently delete and to request in writing for Mealer to erase and 13 remove all contact or references about Mealer from "GMAC" and their 14 inner-corporate associates from Mealer's professional business website. 15
16 (3). To cease and desist from any further use or attempts to cause damage,
17 harm, ridicule or derogatory remarks or innuendos as disclosure of any of
18 Mealer's business or the Mealer Automobile or other Mealer products or
19 desires.
20 (4). To cease and desist from contacting any Mealer or Mealer Companies
21 LLC potential and pending and prospective investors, customers, 22 engineers, employees or interested business partners, associates, suppliers, 23 distributors or other interested parties. 24 C. Pre-Judgement and post-judgement interest; 25
, -96- D. Punitive damages; 1 E. The equivalent of attorneys' fees for this pro se plaintiff/movant (debtor); and 2 F. Such other relief as is just and appropriate. 3
4 CONCLUSION
5 140. This debtor PRAYS that this Honorable Court through it's inherent powers grants
6 entitlement to relief upon lack of response by defendants and that during this course of trial, to
7 use it's inherent power to further forestall the GMACM illegal foreclosure on this plaintiff's real
8 property (my family's home) and to allow this active civil case to decide pecuniary damages and 9 other damages and awards for the creditor's misconduct against this debtor. Or for the civil case 10 to be adjudicated as the jury deems proper. If Not, then the defendants should be willing to play 11 fair pool until this case is absolved as they have nothing to lose by waiting for justice to be 12 served. And, JUSTICE MUST BE SERVED. 13 141. This plaintiff wishes to make it clear that his recently diagnosed with colorectal cancer 14 wife (I Swear) and sons are in a seriously hazardous situation caused by GM and the GM Family 15
16 (specifically the defendants) has placed this injured family in mortal danger and without the
17 means of survival (exclusive to resorting to complete pauperism), when, in fact, GMACM has
18 already shown it's unconscionable and unethical contract management methods to this court, the
19 world and against this plaintiff that they are not willing to work out the real-life destructive,
20 damaging, unlawful gross and egregious conduct that they have innately created and
21 intentionally perpetuate against this plaintiff. 22 142. This honorable court must intervene to preserve justice and integrity, quality, and respect in 23 our judicial system. 24
25
, -97- 1 AFFIDAVIT OF JOHN LEWIS MEALER
2 143. I, John Lewis Mealer, do hereby swear that the testimony and content of this complaint
3 are true and factual to the best of my knowledge and that I am personally responsible to the full
4 extent of the law as a Pro Se litigant for the content herein. I do not lie and I will not deceive this
5 court nor any other court nor human being regarding this case nor for any reasonable context
6 regarding this case or the references and quotes and evidence used within these documents or
7 other documents regarding this matter. So help me God. Dated ______
8
9 ______John Lewis Mealer, In Propria Persona, Pro Se 10
11 POINTS AND AUTHORITES 12
13 VERIFIED COMPLAINT specificity:
14 CASE LAW RELATING TO (¶ #1)
15 A well-pleaded complaint must contain more than mere labels and conclusions. See Ashcroft v. Iqbal,129 S.Gt. 1937 (2009); Bell Atlantic Corp. v. 16 Twombly, 550 U.S. 544 (2007). When determining whether dismissal is appropriate, the court conducts a two-part analysis. Fowler V. UPMC Shadyside, 578 F.3d 203, 210 (3d 17 Gir. 2009). First, the factual and legal elements of a claim are separated. Id. The court must accept all of the complaint's well-pleaded facts as true, but may 18 disregard any legal conclusions. Id. at 210-11. Second, the court must determine 19 whether the facts alleged in the complaint are sufficient to show that plaintiff has a "plausible claim for relief." Id. At 211; see also Iqbal, 129 S.Ct. at 1949; Twombly, 550 20 U.S. at 570. In other words, the complaint must do more than allege plaintiffs entitlement to 21 relief; rather it must "show" such an entitlement with its facts. Id. A claim is facially plausible when its factual content allows the court to draw a reasonable inference 22 that the defendant is liable for the misconduct alleged. Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. At 570). The plausibility standard "asks for more than a sheer 23 possibility that a defendant has acted unlawfully." Id. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the 24 line between possibility and plausibility of 'entitlement to relief.'" Id. 25
, -98- Arizona Supreme Court in Long v.Arizona Portland Cement Co. explicitly determined 1 that the tests under Arizona Rule 8 and the Federal Rule 8 were the same.45 There, the court stated: “[t]his Court and the United States Supreme Court have recently held 2 that the test as to whether a complaint is sufficient to withstand a motion to dismiss is whether enough is stated therein which, if true, would entitle plaintiff to some 3 kind of relief on some theory, and the court should not grant a motion to dismiss 4 unless it appears certain that plaintiff would be entitled to no relief under any state of facts which is susceptible of proof under the claim as stated.” 5 In 2007, the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly markedly 6 reinterpreted the pleading standard under Rule 8 of the federal rules, atleast in the antitrust context. 127 S. Ct. 1955 (2007). Notably, the Court phrased the scope of its 7 review as addressing “the proper standard for pleading an antitrust conspiracy through allegations of parallel conduct.” Id. at 1963. There, the Court explicitly 8 rejected Conley’s “no set of facts language,” reasoning that such language, when read literally or in isolation, would permit a wholly conclusory statement revealing the theory 9 of the claim to survive a motion to dismiss unless the statement itself was a factual 10 impossibility. Twombly, 127 S. Ct. at 1968−69. Consequently, if there remained any possibility that undisclosed conjectural facts supporting the plaintiff’s claim might later 11 be unearthed, Conley’s formulation of Rule 8 precluded dismissal. In relegating Conley’s formulation to a “phrase best forgotten as an incomplete, negative gloss on an 12 accepted pleading standard,” the Court in Twombly held that a complaint must reveal sufficient facts to “plausibly suggest” the claims alleged. Id. at 1965−66. The Court’s 13 analysis of Federal Rule 8 seemed to be tailored to the antitrust context. The Court noted, for example, that judicial supervision cannot adequately ferret out discovery abuse, 14 and the cost of discovery in an antitrust action can be unusually high. Id. at 1966−67. The Court’s criticism of Conley, however, was not limited to its application in an antitrust 15 action. See id. at 1968−69 (observing that “a good number of judges and commenters 16 have balked at taking the literal terms of the Conley passage as a pleading standard” and citing cases arising out of many different causes of action”). 17 Consequently, whether Twombly’s “plausibility” standard has application outside of the antitrust context, or whether Conley is authoritative in other causes of action, remains 18 unclear. As a practical matter, however, federal courts are applying Twombly outside of the antitrust context. The Court clarified that under this “plausibility standard,” the 19 plaintiff need not engage in heightened fact pleading of specifics, but it is necessary to plead enough facts such that the plaintiffs claim for relief “is plausible on its 20 face.”
21 The Arizona Rules of Civil Procedure 9(b) is identical with the federal rules and 22 imposes a heightened pleading standard for fraud, specifically that the circumstances constituting the alleged fraud must be stated with particularity. Ariz 23 R. Civ. P. 9(b) One reason for this requirement is that the fraud embraces “such a wide variety of potential conduct that a defendant needs a substantial amount of 24 particularized information about plaintiffs claim in order to understand it and effectively prepare a defense.” See Bakeway v Texas Bus. Invs. Co., 12 Ariz. App. 390, 25 393, 470 P .2d 710, 713 (Ariz. Ct. App. 1970) quoting 5 Wright & Miller, Federal
, -99- Practices and procedure, § 1296 at 400 (3d ed 1969). Failure to plead fraud with 1 particularity may be grounds for dismissal, but AZ courts generally are liberal in allowing amendments to pleadings when rule 9(b) is violated. See Parks v Macro- 2 Dynamaics, Inc., 121 Ariz. 517, 520, 591 P.2d 1005, 1008 (Ariz Ct. App. 1979). In pleading the claim for fraud, no formal language is required, but all nine 3 elements of fraud MUST be found in the complaint as a whole: See Hall v Romero, 4 141 Ariz. 120, 124, 685 P2d 757, 761 (Ariz. Ct App, 1984); Parks 121 Ariz. At 520, 591, P.2d at 1008. 5 1. A representation, 2. its falsity, 3 it's materiality, 4. the speaker's knowledge of its falsity or ignorance of its truth 5. his intent that is should be acted upon by the 6 hearer, and in the manner reasonably contemplated, 6. the hearer's ignorance of its falsity, 7. the reliance on its truth, 8. his right to rely thereon, 9. his consequent and 7 proximate injury. See Services Holding Co, Inc v Transamerican Occidental Life Ins. Co., 180 Ariz. 198,208,883 P.2d 435,445 (Ariz. Ct. App. 1994) “To sustain a claim for 8 fraud, there must be a concurrence of all nine elements.” 9 ALL ALLEGATIONS WHEN NOT WORKING IN CONCERT (per Defense claims): 10 MASTER SERVANT RELATIONSHIPS 11 The four factors to be used in evaluating whether employee conduct is within the 12 scope of the employee's employment are: 1) it is of the type and nature for which the employee was hired to perform; 2) it occurs substantially within the authorized time 13 and space limits; 3) it is conducted to serve the employer; 4) where force is intentionally used by an employee against another, the use of force is not unexpected 14 by the employer. Restatement (Second) of Agency § 228; R.A. v. First Church of Christ, 748 A.2d 692 (Pa.Super. 2000). Johnson v. Dudenak & Geibig t/d/b/a Sassy's, 60 15 Som.L.J. 333 (2002) (Gibson, J.).Restatement (Second) of Torts § 317 states: A master 16 is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming 17 others or from so conducting himself as to create an unreasonable risk of bodily harm to them if a) the servant i) is upon the premises in possession of the master or 18 upon which the servant is privileged to enter only as his servant, or ii) is using a chattel of the master, and b) the master i) knows or has reason to know that he has 19 the ability to control his servant, and ii) knows or should know of the necessity and opportunity for exercising such control. Johnson v. Dudenak & Geibig t/d/b/a Sassy's, 20 60 Som.L.J. 333 (2002) (Gibson, J.).
21 Such language suggests that our legislature intended to limit an employer’s dram shop 22 liability to those circumstances in which the employer has the right and ability to control an employee’s actions—during working hours and “in connection with . . . 23 employment.”10 The Restatement of Torts similarly anchors the scope of an employer’s duty for the actions of an employee to the employer’s right to control the employee. See, 24 e.g.,Restatement (Second) of Torts § 317 (employer liable for actions of employee outside scope of employment when employer has (1) right to control employee’s actions, 25 (2) right to control instrumentality used by employee to commit tort, or (3) right to
, -100- control premisesupon which employee commits tort); § 414 (person employing 1 independent contractor liable for tortious actions of contractor when employer retains control of any part of work and fails to exercise reasonable care in exerting that control). 2
3 A claim of vicarious liability exists where the plaintiff shows an agency relationship or an employee-employer relationship between the actor and the defendant. Cugini 4 v. Kearcher and Mardis Ford-Lincoln-Mercury, Inc., 60 Som.L.J. 402 (2002) (Cascio, J.).
5 ALL ALLEGATIONS WHEN NOT MASTER-SERVANT RELATIONSHIPS ALONE
6 ACTING IN CONCERT
7 “acting in concert” in the same vague open-ended way in which the court had used in White: acting in concert meant “pursuing a common plan or design to commit a 8 tortious act and actively taking part in it.” Cf. Restatement (Second) of Torts § 876 9 (1979) Acting in concert means entering into a conscious agreement to pursue a common plan or design to commit an intentional tort and actively taking part in 10 that intentional tort. Acting in concert does not apply to any person whose conduct was negligent in any of its degrees rather than intentional. A person’s conduct 11 which provides substantial assistance to one committing an intentional tort does not constitute acting in concert if the person has not consciously agreed with the other to 12 commit the intentional tort. A.R.S. § 12-2506(F)(1) Given this definition, cases of joint and several liability for acting in concert will be rare. Except in criminal 13 enterprises, people seldom enter into “a conscious agreement” to commit an “intentional tort.” See, e.g., Bishop v. Pecanic, 275 Ariz. Adv. Rep. 7 (App. 1998) 14 (group of young men acted in concert in brutally beating the plaintiff). As a practical matter this exception to several-only liability has been all but repealed. 15
16 DEFENDANTS' CLAIMS OF RESPONSIBILITY OR NON RESPONSIBILITY
17 Conjecture by this plaintiff relating to (¶ #8) :
18 *C.O.I.T.U.S. Interruptus – A legal maneuver and dodging attempt by the “GM Family”;potentially created in an attempt to effectively excuse inner-corporate, anti- 19 competitive behavior whereby a competitive automaker to GM (specifically Mealer Companies LLC), who is also a mortgagor to GMACM and was intentionally 20 “interrupted” from securing various prospective funding agreements, prospective sales contracts and the pecuniary capacity (upon gathering growth-funds), to compete globally 21 with GM in the sale of the Mealer Automobile and other Mealer Companies products, 22 and subsequent “GM Family” blame being passed to a lone employee in order to further avoid GM corporate responsibility.[In this Instant Case # CV201000316 M ealer v 23 GMAC-GM, et al ]
24 The respondeat superior theoretical basis for the doctrine is a fiction created in furtherance of the public policy of giving an injured party a cause of action against a 25 financially responsible defendant. E.g. Herman v Magnusan, 277 N.W.2d 445, 455 (N.D.
, -101- 1979). An employer may be liable for injuries caused by an employee under the doctrine 1 of Respondeat Superior. Santiago v. Phoenix Newspapers, Inc., 164 Ariz. 505, 794 P.2d 138. (1990); Haralson v. Fisher Surveying, Inc., 201 Ariz. 1, 31 P.3d 114 (2001). The 2 employer is liable for the foreseeable acts committed by an employee acting within the scope of the employee's employment in furtherance of the employer's business. Pruitt 3 v. Pavelin, 141 Ariz. 195, 685 P.2d 1347 (1984). An employer may also be liable for the 4 employee's torts that occur outside the scope of employment when the employer entrusts the custody and control of a dangerous instrumentality to the employee. Macneil v. 5 Perkins, 84 Ariz. 74, 324 P.2d 211 (1958). Thus, an employer may be vicariously liable for torts committed by an employee that cause injury to another's property or person 6 even if the employer did not have any part in the commission of the tortious act. If an employer has the right to control or controls an employee's actions, then the 7 employee is an “employee” and the employer is potentially subject to vicarious liability for the employee's tortious acts. McDaniel v. Troy Design Services Company, 186 Ariz. 8 552, 925 P.2d 693 (1996). 9
10 (¶ #13 and # 24) RELATING TO THE UST if Secretary Geithner insists on not appealing to their federal jurisdiction to prevent these crimes from perpetuating against this US Citizen. 11 COUNT III and COUNT V
12 ARS § 13-301. Definition of accomplice
13 In this title, unless the context otherwise requires, "accomplice" means a person, other than a peace officer acting in his official capacity within the scope of his authority and in 14 the line of duty, who with the intent to promote or facilitate the commission of an offense: 15
16 1. Solicits or commands another person to commit the offense; or
17 2. Aids, counsels, agrees to aid or attempts to aid another person in planning or committing 18 an offense.
19 3. Provides means or opportunity to another person to commit the offense.
20 MISAPPLIED and MISAPPROPRIATED FUNDS, “Perpetuation of”: 21 Case Law relating to (¶ #17e, 24k, 68, 71b,c,d, Count V, ¶ #130d), 22 “Persons who, as officers of a corporation, received money and notes belonging to a 23 third person, and knowingly misapplied and misappropriated the same, are liable to him. Virginia-Carolina Chemical Co. v Floyd. 158 N.C. 455. 72 SE465 (where the 24 officers apparently did not convert the funds to their own use but used them for the benefit of the corporation). 25
, -102- ALL ALLEGATIONS RELATED TO MISUSE AND MISAPPROPRIATION OF FUNDS 1
2 ARS § 44-403. Damages A. Except to the extent that a material and prejudicial change of position before acquiring 3 knowledge or reason to know of misappropriation renders a monetary recovery 4 inequitable, a complainant is entitled to recover damages for misappropriation. Damages may include both the actual loss caused by misappropriation and the unjust enrichment 5 caused by misappropriation that is not taken into account in computing actual loss. In lieu of damages measured by any other methods, the damages caused by misappropriation 6 may be measured by imposition of liability for a reasonable royalty for a misappropriator's unauthorized disclosure or use of a trade secret. 7 B. If willful and malicious misappropriation exists, the court may award exemplary 8 damages in an amount not exceeding twice any award made under subsection A.
9 ACTIONS BEING ATTEMPTED BY DEFENDANTS” AMONGST OTHER TORTS 10 AND CRIMES
11 (¶ #17, 18, 23, 24, 130, Count V, et al )
12 ARS § 44-1211. Fraudulent conveyance or other transaction with intent to defraud others or defeat creditors; classification 13 A person is guilty of a class 2 misdemeanor who: 14 1. Is a party to any fraudulent conveyance of any lands, tenements or hereditaments, 15 goods 16 or chattels or any right or interest issuing therefrom, had, made or contrived with intent to 17 deceive and defraud others, or to defeat, hinder or delay creditors or others of their just debts, damages or demands. 18 2. Is a party to any bond, action or judgment, or execution, contract or conveyance had, 19 made or contrived with intent to deceive and defraud others, or to defeat, hinder or 20 delay creditors or others of their just debts, damages or demands. 21
22 3. Is a party as provided in paragraph 1 or paragraph 2 of this section, and
23 (a) At any time knowingly puts in, uses, avows, maintains, justifies or defends such transaction as true, and had or made in good faith, or 24
25
, -103- (b) Upon good consideration aliens, assigns or sells any of such lands or goods or 1 other things which have been so conveyed to him. 2
3 ARIZONA REVISED STATUTES EQUIVALENTS ON ANTICOMPETITIVE LAWS 4 COUNT SII, III, IV, V and other 5
6 ARS § 44-1402. Contract, combination or conspiracy to restrain or monopolize trade
7 A contract, combination or conspiracy between two or more persons in restraint of, or to monopolize, trade or commerce, any part of which is within this state, is unlawful. 8
9 ARS § 44-1403. Establishment, maintenance or use of monopoly The establishment, maintenance or use of a monopoly or an attempt to establish a 10 monopoly of trade or commerce, any part of which is within this state, by any person for 11 the purpose of excluding competition or controlling, fixing or maintaining prices is unlawful. 12 ARS § 44-141. Joint and several liability of parties to joint obligations 13 A. All parties to a joint obligation, including negotiable paper and partnership debts, shall be severally liable also for the full amount of such obligations. An action may be brought 14 against such parties jointly or separately, joining one or more, and judgment may be given in each such action without barring an action against any party to the obligation not 15 included in the judgment, and without releasing any party against whom the action was not brought. 16 B. The court may, upon its own motion or upon the application of any interested party, 17 require that the plaintiff bring in as defendants all parties jointly liable on the obligation upon which the action is brought, in which event any subsequent judgment shall be for 18 the amount unsatisfied.
19 BREACH OF DUTY
20 COUNT II, and other
21 The three prong test of duty, breach of duty and damages proximately caused by that breach is uniformly applied in every state; however, a subrogation professional, 22 depending on the jurisdiction where the claim arises may find that additional 23 criteria should be considered in investigating proximate cause. These criteria or tests may be defined as the “but for” rule, “the substantial factor rule” and/or “the 24 foreseeability rule”. The standard for negligence in each state is treated in the state- by-state reference section of this text. States vary in the application of these rules in 25 the standard for negligence. For example, the standard for negligence in Arizona includes a “but for” rule i.e. the damages would not have occurred “but for” the
, -104- defendant’s conduct. Markowitz v. Arizona Parks Bd ., 146 Ariz 352, 354-59, 706 P.2d 1 364, 366-71 (1985).
2 BREACH OF DUTY 3 COUNT II, and other 4 The three prong test of duty, breach of duty and damages proximately caused by 5 that breach is uniformly applied in every state; however, a subrogation professional, depending on the jurisdiction where the claim arises may find that 6 additional criteria should be considered in investigating proximate cause. These 7 criteria or tests may be defined as the “but for” rule, “the substantial factor rule” and/or “the foreseeability rule”. The standard for negligence in each state is 8 treated in the state-by-state reference section of this text. States vary in the application of these rules in the standard for negligence. For example, the standard 9 for negligence in Arizona includes a “but for” rule i.e. the damages would not have occurred “but for” the defendant’s conduct. Markowitz v. Arizona Parks Bd ., 146 10 Ariz 352, 354-59, 706 P.2d 364, 366-71 (1985).
11 Breach of Duty ...... best described as standard of care "proceed[ed] with such reasonable caution as a prudent man would have exercised under such 12 circumstances." Vaughn v Menlove (1873) 13
14 NEGLIGENCE DUTY OF CARE if not acting in concert 15 ALL COUNTS 16
17 The 2006 Supreme Court case of Farabaugh is instructive in regards to the interpretation and application of Section 414 of the Restatement (Second) of Torts, “Negligence in 18 Exercising Control Retained by Employer.” Nielsen Sjolander, Administratrix of Estate of Niels Otto Andersen Sjolander v. Vestas Wind System A/S, 64 Som. L.J. 280 19 (2009) (Klementik, J.).
20 The vicarious liability determination in this matter is governed by Arizona’s “loaned servant” or “lent employee” doctrine. Williams v. Wise, 106 Ariz. 335, 337, 21 476 P.2d 145, 147 (1970). Under this doctrine, an employee of a “general” employer who is “loaned” to a “special” employer is treated as the employee of the special 22 employer rather than the general employer for purposes of respondeat superior. Id. 23 at 337-38, 476 P.2d at 147-48. Thus, generally only the special employer would be held vicariously liable for the employee’s torts. Id. 24 However, the general employer may be held vicariously liable for a lent employee’s 25 tortious conduct if it had “control of or the right to control the performance of the lent employee’s work.” McDaniel v. Troy Design Servs. Co., 186 Ariz. 552, 553, 925
, -105- P.2d 693, 694 (App. 1996). The “right to control, rather than the actual exercise of 1 control” is the key factor in determining whether the general employer may be held vicariously liable. Williams, 106 Ariz. at 338, 476 P.2d at 148. The focus is on whether 2 the general employer had “control of the details of the particular work being done at the time of the injury causing incident” and “which employer had the right to 3 control the specific injury-causing activity.” Ruelas, 199 Ariz. at 346, 347, ¶¶ 5, 11, 18 4 P.3d at 140, 141
5 14 Several of our cases addressing this doctrine have looked to the Restatement (Second) of Agency § 227 as an additional authority. E.g., Williams, 106 Ariz. at 337-38, 476 P.2d 6 at 147-48; Larsen v. Ariz. Brewing Co., 84 Ariz. 191, 198- 99, 325 P.2d 829, 834 (1958); Ruelas, 199 Ariz. at 346, 347, ¶¶ 5, 11, 18 P.3d at 140, 141. The Restatement (Third) of 7 Agency § 7.03 has since superseded § 227, which failed to provide “a consistent answer to the question of allocation of liability between general and special employers.” 8 Restatement (Third) of Agency § 7.03 (2006). Section 7.03 and Arizona law both recognize the “right to control” test. McDaniel, 186 Ariz. at 554, 925 P.2d at 695 9 (“Arizona follows the ‘control or right to control’ test to determine if a general 10 employer is vicariously liable for the negligent acts of a lent employee.”); Restatement (Third) of Agency § 7.03. The comment to § 7.03 propounds further on this 11 test:
12 Liability should be allocated to the employer in the better position to take measures to prevent the injury suffered by the third party. An employer is in that position if 13 the employer has the right to control an employee’s conduct. When both a general and special employer have the right to control an employee’s conduct, the practical 14 history of direction may establish that one employer in fact ceded its right of control to the other, whether through its failure to exercise the right or otherwise. 15
16 The 2006 Supreme Court case of Farabaugh is instructive in regards to the interpretation and application of Section 414 of the Restatement (Second) of Torts, “Negligence in 17 Exercising Control Retained by Employer.” Nielsen Sjolander, Administratrix of Estate of Niels Otto Andersen Sjolander v. Vestas Wind System A/S, 64 Som. L.J. 280 18 (2009) (Klementik, J.).
19 Restatement (Second) of Torts § 317 states: A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his 20 employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them if a) the 21 servant i) is upon the premises in possession of the master or upon which the servant 22 is privileged to enter only as his servant, or ii) is using a chattel of the master, and b) the master i) knows or has reason to know that he has the ability to control his 23 servant, and ii) knows or should know of the necessity and opportunity for exercising such control. Johnson v. Dudenak & Geibig t/d/b/a Sassy's, 60 Som.L.J. 24 333 (2002) (Gibson, J.).
25
, -106- Arizona Revised Statutes § 12-2506(D) Master and Servant Relationship (Joint and several 1 liability abolished; exception; apportionment of degrees of fault definition.
2 1. Liability remains joint and several between a party and another person “if both the 3 party and the other person were acting in concert.” 2. Liability remains joint and several between a party and another person “if the other person was acting as agent or servant of 4 the party.”
5 The Arizona Constitution in Article 18, Section 3 provides as follows:
6 It shall be unlawful for any person, company, association, or corporation to require of its servants or employees as a condition of their employment, or otherwise, any contract or agreement 7 whereby such person, company, association, or corporation shall be released or discharged from liability of [sic, or] responsibility on account of personal injuries which may be received by such 8 servants or employees which [sic, while] in the service or employment of such person, company, 9 association, or corporation, by reason of the negligence of such person, company, association, corporation, or the agents or employees thereof; and any such contract or agreement if made, 10 shall be null and void.
11 TRESPASS WITH VIOLENT or MALICIOUS INTENTIONS
12 ( ¶ #'s 10, 20, 79, 80, 119, 129, 135 ) ALL COUNTS
13 Justice Holt stated for the court in regards to Keeble v Hickeringill, (1707) 103 Eng. Rep. 1127, styled as a “trespass on the case” "where a violent or malicious 14 act is done to a man's occupation, profession, or way of getting a livelihood, there an action lies in all cases." 15
16 UNLAWFUL CONVERSION of PLAINTIFF'S REAL PROPERTY
17 (COUNT I)
18 CONVERSION (attempted conversions as applied herein prior to full judicial release of mortgage to GMACM-ResCap dominion which will initiate a complete and illegally 19 induced foreclosure of this plaintiff's Real Property at 6333 Gardenia Lane Show Low, Arizona) is the “intentional exercise of domination or control over a chattel which is 20 so seriously interferes with the right of another to control it that the actor may be required to pay the other the full value of the chattel]. Miller v Hehlen, 209 Ariz. 462, 21 ¶ 34, 104 P 3d 193, 203 (Ariz. Ct. App. 2005). The seriousness of the interference is 22 determined by consideration of the following factors: (1) the extent and duration of the alleged exercise of dominion and control, (2) the defendant's intent to assert a 23 right inconsistent with the plaintiff's right of control, (3) the extent of the duration of the resulting interference with the plaintiff's right of control, (4) the damage 24 done, and (5) inconvenience and expense. Focal Point, Inc. v U-Haul Co. of Ariz. 318, 320, 746 P.2d 488, 490 (Ariz. Ct. App. 1986) These are the same factors set forth in 25 the Restatement (Second) of Torts, § 222 (A)(2), except unlike Restatement,
, -107- Arizona does not consider good faith belief or intention is not a defense to a 1 conversion action under Arizona Law. (50See Focal Point, 155 Ariz. At 320, 746 P.2d at 490; see also Patton v First Federal Sav & Loan Ass'n of Phoenix, 118 Ariz,473, 479, 2 578 P.2d 152, 158, (Ariz. 1976); Jabczenski v S, Pacific Memorial Hosp., 119 Ariz. 15, 20, 579 P.2d 53, 58 (Ariz. Ct. App. 1978). 3
4 To bring an action for conversion, the plaintiff must have “a right to immediate possession of the chattel at the time of the alleged conversion,” Miller, 209 Ariz. At 5 472, A conversion claim may only be brought to recover tangible personal property or “intangible property that is merged in, or identified with, some document.” 6 Miller, 209 Ariz. At 472, ¶ 35, 104 P.3d at 203, quoting 18 Am.Jur. 2D, Conversion § 7 (2004) 7 When a mortgage is procured by fraud, the instruments can be canceled and 8 foreclosure denied. Meyerson v. Boyce, 97 So.2d 488 (Fla. 3d DCA 1957). Fraud only invalidates contracts of debtor. In the absence of fraud, every contract of a debtor is 9 valid against all his creditors, existing or subsequent, who have not acquired a lien on the 10 property affected by such contract. R.L. 1910, § 2894. Unless displaced by the provisions of the Uniform Fraudulent Transfer Act, the principles of law and 11 equity, including the law merchant and the law relating to principal and agent, estoppel, laches, fraud, misrepresentation, duress, coercion, mistake, insolvency, or 12 other validating or invalidating cause, supplement the provisions of the Uniform Fraudulent Transfer Act. Added by Laws 1986, c. 100, § 11, eff. Nov. 1, 1986. 13 In addition to Arizona’s strong constitutional protections of the right to bring 14 common-law tort claims and to receive full compensation for any damages, see Cronin v. Sheldon, 195 Ariz. 531, 538-41 ¶¶33-51, 991 P.2d 231, 238-41 (1999) 15
16 I, John Lewis Mealer, hereby assign my signature and affirmation that these additional 17 pages of pertinent case law and code were added by myself to the best of my Pro Se ability and 18 do represent my views on the legal issues detailed herein this complaint. 19
20 Dated______21
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, -108- John Lewis Mealer, Pro Per (Pro Se) 1 6333 Gardenia Lane Show Low, Arizona 85901 2 [email protected] [email protected] 3 IN THE SUPERIOR COURT OF THE STATE OF ARIZONA 4 IN AND FOR THE COUNTY OF NAVAJO
5 JOHN LEWIS MEALER ) 6 ) CASE_NUMBER_CV201000316 ) 7 PLAINTIFF vs ) ) 8 ) GMAC MORTGAGE LLC and CEO DAVID NOTICE AND ) CERTIFICATE OF SERVICE 9 APPLEGATE, GMAC FINANCIAL ) SERVICES, GMAC LLC and CEO ) 10 MICHAEL CARPENTER, GENERAL ) MOTORS CORPORATION., GENERAL ) 11 MOTORS COMPANY and CEO EDWARD ) WHITACRE JR, MOTORS LIQUIDATION ) 12 COMPANY, RESIDENTIAL CAPITAL LLC ) and CEO THOMAS MARANO, UNITED ) 13 STATES TREASURY DEPARTMENT, GM ) ) 14 ENGINEER KRIS J KORDELLA, JANE DOE, JOHN DOE, et al. 15 DEFENDANTS 16 NOTICE AND 17 CERTIFICATE OF SERVICE
18 I, John Lewis Mealer do hereby declare that: On August ______, 2010, I deposited the
19 original and copies of the following documents and otherwise served via the US Postal 20 Service, First Class Mail to be delivered to the following persons and addresses: 21 CASE_NUMBER_CV201000316, CIVIL COMPLAINT FOR TORT , CRIMES 22
23 I declare under penalty of perjury that the foregoing is true and correct and that this declaration
24 on August ______, 2010 at Lakeside, Arizona.
25 ______
, -109- SERVICE LIST 1 ORIGINAL: 2 State of Arizona, County of Navajo Superior Court Hand Delivered to Clerk of the Court 3 100 East Carter Drive S Hwy 77, (PO BOX 668) Holbrook, AZ 86025
4 COPIES:
5 Michael Carpenter, CEO, GMAC, LLC 5/09 to Current in his personal and professional capacity, jointly and severally, 200 Renaissance Center, Detroit, MI 48265-2000 6 (And GMAC LLC in care of CEO Michael Carpenter above) 7 (And GMAC Financial Services in care of Michael Carpenter above) 8 David Applegate CEO GMAC Mortgage (“GMACM”), in his personal and professional capacity, jointly 9 and severally, 1100 Virgina Drive Fort Washington, PA 19034 10 (And GMACM in care of David Applegate above) 11 Thomas Marano, CEO Residential Capital LLC (“RESCAP”) in his personal and professional capacity, 12 jointly and severally, One Meridian Crossings, Minneapolis, Minn 55423 (And Residential Capital LLC in care of Thomas Marano above) 13 Edward E. Whitacre, Jr., CEO, “New” GM in his personal and professional capacity, jointly and 14 severally, 300 Renaissance Center, Detroit, MI 48265-3000 Mail Drop 482-Z39-B10
15 (And New GM in care of above, and Old GM in care of CEO Edward Whitacre above,)
16 Motors Liquidation Company C/O Albert Koch 500 Renaissance Center, Ste 1400. Detroit, Michigan 48265 17 Kris J Kordella in his personal and professional capacity 18 1575 Honert Road Ortonville, Michigan 48462
19 US DEPARTMENT OF US TREASURY C/O OFFICE OF GENERAL COUNSEL 740 15th Street NW, Suite 510, Washington, DC 20220 20 U.S. TREASURY IN CARE OF: 21 U.S. DEPARTMENT OF JUSTICE Room No. B-103 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 22 US ATTORNEY, DISTRICT OF ARIZONA 23 Dennis K. Burke, Two Renaissance Square 40 North Central Ave., Suite 1200 Phoenix, AZ 85004-4408 24 ARIZONA ATTORNEY GENERAL 25 Honorable Terry Goddard 1275 West Washington Street Phoenix, Arizona 85007
, -110- John Lewis Mealer, Pro Per (Pro Se) 1 6333 Gardenia Lane Show Low, Arizona 85901 2 [email protected] [email protected] 3 IN THE SUPERIOR COURT OF THE STATE OF ARIZONA 4 IN AND FOR THE COUNTY OF NAVAJO
5 JOHN LEWIS MEALER ) 6 ) CASE_NUMBER_CV201000316 ) 7 PLAINTIFF vs ) ) NOTICE OF PROOF OF SERVICE 8 ) GMAC MORTGAGE LLC and CEO DAVID ) 9 APPLEGATE , GMAC FINANCIAL ) SERVICES, GMAC LLC and CEO ) 10 MICHAEL CARPENTER, GENERAL ) MOTORS CORPORATION., GENERAL ) 11 MOTORS COMPANY and CEO EDWARD ) WHITACRE JR , MOTORS LIQUIDATION ) 12 COMPANY, RESIDENTIAL CAPITAL LLC ) and CEO THOMAS MARANO , UNITED ) 13 STATES TREASURY DEPARTMENT, GM ) ) 14 ENGINEER KRIS J KORDELLA, JANE DOE, JOHN DOE, et al. 15 DEFENDANTS 16 NOTICE OF PROOF OF SERVICE 17
18 I, ______, declare that:
19 I am employed in the county of Navajo, Arizona. My business address is:
20 ______, 21 I am over the age of eighteen years and not a party to this cause. 22 On August ______, 2010, I served the (1) CIVIL COMPLAINT FOR TORT CRIMES 23 JURY TRIAL DEMANDEDFIRST AMENDED COMPLAINT, APPENDIX I, II, II (2) AFFIDAVIT 24 OF PLAINTIFF JOHN LEWIS MEALER, (3) PROOF OF SERVICE RESPONSE BY MAIL in said 25 cause by placing a true and correct copy thereof enclosed in a sealed envelope with postage thereon fully
, -111- prepaid in the United States Mail in ShowLow, Arizona addressed as follows: SEE ATTACHED 1 SERVICE LIST. 2 I declare under penalty of perjury that the foregoing is true and correct and that this declaration 3 on August ______, 2010 at Lakeside, Arizona. 4
5 ______6
7 ______8
9
10 …...... 11 SERVICE LIST 12 ORIGINAL: 13 State of Arizona, County of Navajo Superior Court Hand Delivered to Clerk of the Court 14 100 East Carter Drive S Hwy 77, (PO BOX 668) Holbrook, AZ 86025
15 COPIES:
16 Michael Carpenter, CEO, GMAC, LLC 5/09 to Current in his personal and professional capacity, jointly and severally, 200 Renaissance Center, Detroit, MI 48265-2000 17 (And GMAC LLC in care of CEO Michael Carpenter above) 18 (And GMAC Financial Services in care of Michael Carpenter above) 19 David Applegate CEO GMAC Mortgage (“GMACM”) in his personal and professional capacity, jointly 20 and severally, 1100 Virgina Drive Fort Washington, PA 19034
21 (And GMACM in care of David Applegate above)
22 Thomas Marano, CEO Residential Capital LLC (“RESCAP”) in his personal and professional capacity, jointly and severally, One Meridian Crossings, Minneapolis, Minn 55423 23 (And Residential Capital LLC in care of Thomas Marano above) 24 Edward E. Whitacre, Jr., CEO, “New” GM in his personal and professional capacity, jointly and 25 severally, 300 Renaissance Center, Detroit, MI 48265-3000 Mail Drop 482-Z39-B10
, -112- (And New GM in care of above, and Old GM in care of CEO Edward Whitacre above,) 1 Motors Liquidation Company C/O Albert Koch 2 500 Renaissance Center, Ste 1400. Detroit, Michigan 48265
3 Kris J Kordella in his personal and professional capacity 1575 Honert Road Ortonville, Michigan 48462 4 US DEPARTMENT OF US TREASURY C/O OFFICE OF GENERAL COUNSEL 5 740 15th Street NW, Suite 510, Washington, DC 20220
6 U.S. TREASURY IN CARE OF: U.S. DEPARTMENT OF JUSTICE 7 Room No. B-103 950 Pennsylvania Avenue, NW Washington, DC 20530-0001
8 US ATTORNEY, DISTRICT OF ARIZONA Dennis K. Burke, Two Renaissance Square 9 40 North Central Ave., Suite 1200 Phoenix, AZ 85004-4408
10 ARIZONA ATTORNEY GENERAL Honorable Terry Goddard 1275 West Washington Street Phoenix, Arizona 85007 11
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, -113- John Lewis Mealer, Pro Per (Pro Se) 1 6333 Gardenia Lane Show Low, Arizona 85901 2 [email protected] [email protected] 3 IN THE SUPERIOR COURT OF THE STATE OF ARIZONA 4 IN AND FOR THE COUNTY OF NAVAJO 5
6 JOHN LEWIS MEALER ) ) CASE NUMBER CV201000316 7 PLAINTIFF ) ) 8 vs ) REQUEST FOR JURY TRIAL ) GMAC MORTGAGE LLC and CEO DAVID 9 ) APPLEGATE, GMAC FINANCIAL ) 10 SERVICES, GMAC LLC and CEO ) MICHAEL CARPENTER, GENERAL ) 11 MOTORS CORPORATION., GENERAL ) MOTORS COMPANY and CEO EDWARD ) 12 WHITACRE JR , MOTORS LIQUIDATION ) COMPANY, RESIDENTIAL CAPITAL LLC ) 13 and CEO THOMAS MARANO , UNITED ) ) 14 STATES TREASURY DEPARTMENT, GM ENGINEER KRIS J KORDELLA, JANE ) 15 DOE, JOHN DOE, et al.
16 DEFENDANTS
17 REQUEST FOR JURY TRIAL
18 Plaintiff hereby demands a trial of this action by jury.
19
20 DATED: July ______, 2010
21 ______
22 John Lewis Mealer
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, -114- John Lewis Mealer, Pro Per (Pro Se) 1 6333 Gardenia Lane Show Low, Arizona 85901 2 [email protected] [email protected] 3 IN THE SUPERIOR COURT OF THE STATE OF ARIZONA 4 IN AND FOR THE COUNTY OF NAVAJO 5
6 JOHN LEWIS MEALER ) ) CASE NUMBER CV201000316 7 PLAINTIFF ) ) 8 vs ) CERTIFICATE OF ) GMAC MORTGAGE LLC and CEO DAVID COMPULSORY ARBITRATION 9 ) APPLEGATE, GMAC FINANCIAL ) 10 SERVICES, GMAC LLC and CEO ) MICHAEL CARPENTER, GENERAL ) 11 MOTORS CORPORATION., GENERAL ) MOTORS COMPANY and CEO EDWARD ) 12 WHITACRE JR , MOTORS LIQUIDATION ) COMPANY, RESIDENTIAL CAPITAL LLC ) 13 and CEO THOMAS MARANO , UNITED ) ) 14 STATES TREASURY DEPARTMENT, GM ENGINEER KRIS J KORDELLA, JANE ) 15 DOE, JOHN DOE, et al.
16 DEFENDANTS
17 Comes now plaintiff(s), pro per and pro se by this honorable court's description, and hereby certifies that this case is not subject to the Uniform Rules of Procedure for Arbitration, 18 because equitable relief is sought. DATED THIS ____DAY OF ______, 2010 19 Submitted on ______20
21 Signature Witnessed this ______day of ______, by
22 ______23 Notary Public/ Deputy Clerk
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, -115- John Lewis Mealer, Pro Per (Pro Se) 1 6333 Gardenia Lane Show Low, Arizona 85901 2 [email protected] [email protected] 3 IN THE SUPERIOR COURT OF THE STATE OF ARIZONA 4 IN AND FOR THE COUNTY OF NAVAJO 5
6 JOHN LEWIS MEALER ) ) CASE NUMBER CV201000316 7 PLAINTIFF ) ) 8 vs ) SUMMONS ) GMAC MORTGAGE LLC and CEO DAVID 9 ) APPLEGATE, GMAC FINANCIAL ) 10 SERVICES, GMAC LLC and CEO ) MICHAEL CARPENTER, GENERAL ) 11 MOTORS CORPORATION., GENERAL ) MOTORS COMPANY and CEO EDWARD ) 12 WHITACRE JR, MOTORS LIQUIDATION ) COMPANY, RESIDENTIAL CAPITAL LLC ) 13 and CEO THOMAS MARANO, UNITED ) ) 14 STATES TREASURY DEPARTMENT, GM ENGINEER KRIS J KORDELLA, JANE ) 15 DOE, JOHN DOE, et al.
16 DEFENDANTS
17 The plaintiff John Lewis Mealer to defendant(s):
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21 YOU ARE HEREBY SUMMONED and required to serve upon this plaintiff, pro per, an 22 answer to the complaint which is herewith served upon you, within twenty (20) days, exclusive 23 of the day of service, after service of this summons upon you if served within the State of 24 Arizona. Direct service is complete when made. Arizona Rules of Civil Procedure. Rule 4. 25
, -116- YOU ARE HEREBY NOTIFIED that in case of your failure to appear and defend within 1 the time applicable, judgment may be taken against you for the relief demanded in the 2 Complaint. 3
4 YOU ARE CAUTIONED that in order to appear to defend, you must file an Answer or
5 other proper response in writing with the Clerk of this Court, accompanied by the necessary
6 filing fee, within the time required, and you are required to serve a copy of any Answer or other
7 response upon the Plaintiff, pro per. Arizona Rules of Civil Procedure, Rule 10.
8 The name and address of the Plaintiff 9 John Lewis Mealer 10 6333 Gardenia Lane Show Low, Arizona (85901) 11 [email protected] [email protected] 12
13 REQUESTS FOR REASONABLE ACCOMODATION FOR PERSONS WITH DISABILITIES
14 MUST BE MADE TO THE DIVISION ASSIGNED TO THE CASE BY APRTIES AT LEAST
15 THREE (3) DAYS IN ADVANCE OF A SCHEDULED COURT PROCEEDING. 16
17 SIGNED AND SEALED this ______day of ______, 2010 18
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22 Deputy Clerk/ Clerk of the Court
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, -117-
MEALER COMPANIES
Funding Request Summary
Confidential Disclosure Submitted By J.L. Mealer
Q2 June 2009 Table of Contents
Funding Request Summary Overview of Request and Purpose 3 High Level Product Outlines 4-6 Funding Request Roadmap 3,7
Market Overview 8 Opportunity 9-10 Competitive 10-15
Mealer Technology 16-21
Financial Pro Forma, Budget 22-24 Forecast Analysis 25-27
Launch Plan & Roadmaps 28-34
Next Steps 35
Proposed Start-up Team 35-38
Appendix 39…
Mealer Companies Confidential Disclosure Page 2 I. FUNDING REQUEST SUMMARY
“Everything from the tightening credit crisis to lower consumer confidence to environmental sustainability to the auto industry’s lack of talent management with green technology planning and development will inevitability lead to smaller, more innovative auto manufacturers gaining ground in the industry.” - Vice Chairman Michelle Collins of the Deloitte & Touche USA, LLP a financial advisory firm, 2008 Cross Industry Outlook, US Automotive Sector Leader
J.L. Mealer, Founder of Mealer Companies (Mealer) is seeking an initial funding $95,000,000 as well as non-union manufacturing and assembly plant locations within the United States. Mealer has spent years developing and designing an ingenious “green” automobile renewable power source with an innovative, robust drive train combination believed to be highly competitive and desirable to consumers around the world. After all, what if an automobile could produce its own energy? What if that automobile could even produce enough energy to remove an entire home from the power grid – to run the home whose very garage it is parked in? What if the production of such an automobile would classify its industrial maker as a producer of Zero Carbon Tax products? And these products would be stylish, functional, reliable, powerful, and expandable into vertical categories. Yes, this is a true breakthrough that will be recognized as such by consumers and fleet owners the world over. Funding Road Map: Use of Funds Initial Funding Start Up, Launch Bridge Vehicles Production Funding R&D Future Vehicles Future Vehicles $95,000,000 $105,000,000
Presale Orders: Presale Orders: Bridge Vehicles Future Vehicles
First Product Ship: Bridge Vehicles
First Product Ship: Future Vehicles
Q2 3 4 Q1 2 3 4 Q1 2 3 4 Q1 2 3 4 Q1 2 3 4 2009 2010 2011 2012 2013
Mealer Companies Confidential Disclosure Page 3 Mealer has given over 20 years of research and design into engine and drive train combinations. A rough functioning prototype was built nearly 15 years ago by Mr. Mealer. The prototype was destroyed in order to protect this breakthrough intellectual property and to wait for the proper timing to enter the market. Enabling technologies also had to be proven by suppliers and the cost of materials needed to come down. Since that time, new solutions to old problems have been worked and reworked in favor of a most efficient design, enabling technologies have been perfected, and materials are now affordable and readily available. There is no longer a reason to delay the full development of these cost-effective vehicles that consumers and industry will eagerly anticipate upon learning of their existence.
Mealer is a designer and engineer of at least three green-engineered and proven designs of high- demand product technologies, whose research and development is located in Show Low, Arizona (and can be relocated where necessary). Mealer expects to provide all patents, patent pending, developed products, developmental projects and plans to further this business venture and immediately move into manufacturing. Profits should be realized from presales as our first vehicle will roll down the production line within the first year of manufacturing.
The primary thrust of Mealer is to produce the specialty components and systems required to assemble and produce a finished product that rolls off the assembly line in a highly marketable package of features and benefits that consumers will line up to purchase. Here is a high-level glimpse of the initial Mealer product roadmap (see Roadmaps section for more detail):
Mealer Companies Confidential Disclosure Page 4
Phase 1: Bridge Vehicles (BV) Bridge Vehicles (BV) provide interim revenue during development of the Future Vehicles (FV) Bridge Vehicle: Model 1 Bridge Vehicle: Model 2 • MPG: 100+ • A 4-door, mid-sized sedan, 4-5 • Fuel: BioDiesel/Diesel • Seating: 2 passenger coupe passenger version of Model 1, but • Speed: 0-60mph <6 sec utilizing a different standard chassis • Range: 1,500 miles per tank and industrial design • Emissions: Minimal • Chassis: New ID components added to a standard • Price: $22,999 USD chassis from an existing US auto manufacturer • Systems Management: Onboard computer (combat • Availability: Q4’2010 grade laptop) with specialized operating system to manage: – Biometric ignition – GPS – Cameras that display front, rear, interior – WiFi for automatic highway tolls and taxes – Tire pressure monitoring – Emergency systems – Communication systems – HVAC systems • Other Standard Amenities: – All power features – Heated front seats, rear seats and steering wheel – Heat-reflective paint – Sound system • Price: $19,999 USD • Availability: Q4’2010
Mealer Companies Confidential Disclosure Page 5
Phase 2: Future Vehicles (FV) FV2 Mid-sized 4-door sedan Other Models, Similar Specs • MPG: Unlimited • Fuel: Heavy air plasma, recycles in system • FV1 Compact $20,000 • Power: Regenerative power source and outlet distribution panel that can Power a • Crossover $25,000 Home, also charges the FV’s batteries • Batteries: AGM (Absorbed Glass Mat) – no hazardous chemicals, inexpensive, recycled • Pickup $28,000 materials, long life • Seating: 4-5 passenger sedan • Minivan $26,000 • Speed: 0-60mph, <6 seconds • Range: unlimited • Large SUV $38,000 • Drive Train: STS (Sequential Turbo Shaft engine), OSSOPOS, Hydrostatic Drive • Luxury SUV $56,000 • Emissions: Zero • Chassis: Custom to Mealer specs • Systems Management and Amenities similar • Large Sedan $28,000 to Bridge Vehicles • Price: Launch $39,999 USD, then decline to • Luxury Sedan $44,000 next tiers of price sensitivity to find mass adoption point (similar 4dr non-hybrids today sell ASP $22,500) • Availability: see Roadmaps • Availability: Q4’2012
Mealer Companies Confidential Disclosure Page 6
Phase 3: FV Verticals
Vertical Workhorse Applications • With unlimited MPG, low maintenance, a very strong drive train, and no design constraints, the Mealer STS and OSSOPOS technologies are ideal for workhorse applications for public utility, transportation, delivery, construction, military, and more • Pricing: TBD per opportunity • Availability: Post-consumer launch of FV models • Mealer will find vertical customer development partners early on
As one can see from the roadmap charts (see Roadmap section for further details), a Phased production and release approach will allow Mealer to produce and sell interim or “Bridge” Vehicles (BV) to provide immediate cash flow during the final R&D and production of the ultimate Future Vehicle (FV) line. We will see our first BV roll off the assembly line within 300 days of outfitting the production facilities. Testing and road worthiness will have already been proven as per Title 49 US Code and as per our corporate insurance carriers.
Mealer expects to contract with a well-known US company that specializes in exactly the type of fund- to-suit venture capital agreements required for our business development. This firm controls a variety of U.S. manufacturing locations and is willing to fund as Mealer leases to own our initial locations. Each location shall have preferred access to rail service, interstate highways, airports, and an available, qualified, non-union workforce.
Our proposed manufacturing buildings are existing sites that are ready for final preparation through a tentative agreement with the VC group, who owns the properties and will develop each location to Mealer needs as part of their investment. The outlay for Phase I completion and manufacturing costs for three years is the mainstay of this request for VC partnership and funding. Additional VC investment for overhead covering payroll and utilities, insurance, equipment and tooling, management, training and lease-back and interest payments are all that is required. Due to relatively low overhead and sales from Phase I, Mealer company will be self sustaining by the time Phase II is under way. That is the serial approach. Another approach would be to fund Phase I and Phase II simultaneously, which would bring the FV to market much more quickly.
Mealer Companies Confidential Disclosure Page 7 Mealer seeks to raise start-up $95,000,000 in VC capital and lease-back agreements over the first three years for Phase I, not taking into account pre-and post-production sales. After two years, Mealer will require another $105,000,000 of either private capital or loans for Phase II secondary manufacturing purposes. The company will have one major manufacturing facility in either VA or TN and electronics research and developmental center and manufacturing center either in the same state or elswhere. At least four other ideal manufacturing locations are under review and remain highly attractive. The cost of a fund-to-suit conversion of existing facilities proves to be a fast, viable and cost-effective alternative to new site construction. And, since there are a growing number of such facilities coming to market, Mealer is sure to find the right facilities to meet our requirements.
10-Year Financial Analysis Summary (See Financial section starting page 23) EXPENSES & CASHFLOW Startup Period Startup Period First Full Year Corporate Costs & Expenses 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 Debt / Investment Capital 95,000,000 105,000,000 SG&A 2,000,000 6,000,000 20,509,388 154,218,244 563,006,637 1,166,425,416 1,586,261,712 2,166,761,825 2,800,627,055 3,191,901,364 Manuf. Site Acq., Set Up 10,000,000 22,500,000 105,000,000 50,000,000 60,000,000 60,000,000 60,000,000 Planning and Green Consulting 1,000,000 3,000,000 1,000,000 1,000,000 1,000,000 1,000,000 1,000,000 1,000,000 1,000,000 1,000,000 Political Contributions 250,000 250,000 250,000 200,000 200,000 200,000 200,000 200,000 200,000 200,000 Future Projects / Adv. R&D 10,000,000 40,000,000 35,000,000 40,000,000 40,000,000 40,000,000 40,000,000 60,000,000 60,000,000 60,000,000 Debt Service Interest Paid 8,075,000 7,650,000 8,925,000 6,800,000 4,675,000 2,550,000 Principal Paid 5,000,000 90,000,000 25,000,000 25,000,000 25,000,000 30,000,000 Total Debt Service 13,075,000 97,650,000 33,925,000 31,800,000 29,675,000 32,550,000 Debt Running Balance 95,000,000 90,000,000 - 105,000,000 80,000,000 55,000,000 30,000,000 -
Total Costs and Expenses 23,250,000 84,825,000 154,409,388 300,418,244 688,131,637 1,299,425,416 1,717,136,712 2,320,511,825 2,861,827,055 3,253,101,364
Total Net Revenues - 85,000,000 410,187,770 3,084,364,875 11,260,132,741 23,328,508,326 31,725,234,231 43,335,236,502 56,012,541,101 63,838,027,274
Annual Cash Flow (23,250,000) 175,000 255,778,381 2,783,946,631 10,572,001,104 22,029,082,909 30,008,097,520 41,014,724,676 53,150,714,046 60,584,925,910
An important Mealer goal is to relieve the burden of the original investors prior to realizing any corporate profit. True earnings accrue within three to five years of post-investment business activity. Returns from profits of all products manufactured through Mealer should repay our investors with interest over these first three to five years.
Once funded, Mealer will pursue its Next Steps to immediately set up shop, hire appropriate personnel, and order materials (see Next Steps section). With a growing number of automotive execs and personnel coming to market due to the unfortunate circumstances of their current companies, Mealer anticipates the opportunity to hire the best and brightest (a review of Start-up Team Bios and an Org Chart may be found starting on page 35). Also, it is important to note the company’s final branding approach will be thoroughly researched and developed by an established marketing firm.
Please read further for details on the Market, Technology, Product Road Map, Launch Plans, Financials, and more.
II. MARKET
Overview Today, the entire world is in economic recession. Some governments are unstable. Banking systems have been compromised. Petroleum prices fluctuate between moderate and high. Unemployment is on the rise. Consumer prices remain unstable. Automobile makers the world over are in grave danger with some entire brands becoming extinct while others simply post their largest losses ever and/or declare bankruptcy. Matters of the environment are top of mind for governments, special interest groups, and
Mealer Companies Confidential Disclosure Page 8 consumers alike. Strategies for legislating carbon limits and taxes are on the horizon. As innovation turns away from products based on crude oil, “green” technologies are in growth mode with major investments from both government and private sectors. But which technology and market approach is correct?
Americans have cut back on buying vehicles of all types as the economy continues its slide. But the slowdown has been particularly brutal for hybrids, which use electricity and gasoline as power sources. They were the industry's darling just last summer, but sales have collapsed as the vast majority of consumers refuse to pay a premium for a fuel-efficient vehicle now that the average price of a gallon of gasoline nationally has retreated from last summer’s record highs.
"When gas prices came down, the priority of buying a hybrid fell off quite quickly," said Wes Brown, a partner at Los Angeles-based market research firm Iceology.
Premiums Paid for Hybrid Models Corolla Prius Premium Jetta Jetta TDI Premium $ 15,350 $ 22,000 $ 6,650 $ 17,500 $ 22,700 $ 5,200
Civic Civic Hybrid Premium Touareg 2 Touareg 2 TDI Premium $ 15,500 $ 23,650 $ 8,150 $ 39,300 $ 42,800 $ 3,500
Fusion Fusion Hybrid Premium Cobalt Volt Premium $ 19,270 $ 27,270 $ 8,000 $ 15,700 $ 39,000 $ 23,300 (Based on Manufacturer’s Suggested Starting Price as listed on each manufacturer’s website)
Restated: Early Adopters (and others during extreme circumstances) are the only group willing to pay the high premiums. More importantly is the fact that Mass Adopters refuse to pay a premium for a fuel- efficient vehicle once gas passes a certain threshold in price. Manufacturers of hybrid cars are still charging a high enough premium that mass adoption cannot be reached. This barrier must be broken in order for hybrids and other alternative powered autos to reach serious sales figures. Millions of consumers simply do not see the value of deferring their gas premium paid at the pump into their monthly car payment. In most cases that math takes years for the hybrid car to repay its premium price tag. It is largely for this reason that hybrids have not reached 1 million units per year in the US to date.
Based on five years of sales forecasts and sale data, the only certainty is that sales numbers will defy expectation. Moreover, the car industry bosses believe sales of hybrid cars, as well as other fuel-efficient models, will outpace sales of sport utility vehicles, pickups and luxury models over the next five years.
Opportunity Due to the above factors, there has never been a worse time to operate a currently established automobile company, or a better time to start a new one that provides better technology while connecting with consumers in a more relevant way than the next guy.
“The automobile's future is electronic and green, using alternate fuels and slick technology to protect people and the environment, the industry for Green Transportation is huge. The market is wholly about change.” – Rick Wagoner, head of GM (when quoted), the world’s largest automaker
Mealer Companies Confidential Disclosure Page 9 With market conditions being ripe for more competitive transportation (so as to address the above challenges), several new automobile companies have sprung up in the last 1-2 years. The great majority of these new players base their technology almost entirely on battery power, also referred to as Electric Vehicles (EVs). New EV brands include Tesla, BYD, Detroit Electric, ElBil Norge, Dynasty Electric Car, Fly Bo, Reva, Venturi, Zap!, Lightening Car, Zenn Motors, UEV, Aptera, and Wrightspeed - just to name a few. China is betting big on becoming the world’s leading designer and manufacturer of EVs. Established car makers (like GM, Chrysler, Ford, Toyota, etc.) are still bringing traditional combustion gas+battery hybrid vehicles to market while leaking designs for next generation EVs.
Electric Vehicle technology relies upon charging the auto’s battery via an outside source, such as an outlet in the home garage or elsewhere, but this power ultimately comes from energy produced at a local power plant. Therefore, once there are enough EVs on the road to make a difference, the local power plants will have to increase production to the extent they will be providing electricity to replace the collective power formerly generated by gasoline car engines. Of course, this means those EVs aren’t that “green” at all, because they are simply shifting their environmental burden to the power plants. EVs would then be only as green as whatever local power plant technology is being used. For instance, if most power plants burn coal, which is considered anti-green, then even more coal must be burned to support the local population of EVs that plug into the grid to recharge each night. Increased coal burning means increased demand for coal mining, which includes its own entire set of environmental challenges.
But, what if the tables could to be turned? What if an automobile could produce its own energy? What if that automobile could even produce enough energy to remove an entire home from the power grid – to run the home whose very garage it is parked in? What if the production of such an automobile would classify its industrial maker as a producer of Zero Carbon Tax products? And these products would be stylish, functional, reliable, powerful, and expandable into vertical categories.
The Mealer Future Vehicle (FV) product line will offer these very incredible benefits. Thus Mealer FVs will be in a competitive class of their own, which is a terrific place to be considering the competition is betting the farm on inferior tech and green strategies.
Automobile Consumers are waiting for us to step into the marketplace and liberate them. They need Mealer to act now, and the US economy needs us to deliver on the key issues of this Business Plan. This plan is not simply a gallant effort to create US jobs, but a highly profitable business venture in USA manufacturing where we can take the market and shape it at our will. Just as German-made quality products are always in demand, American ingenuity pushes the world to buy Made in USA products. We plan to economically use the best of the best.
Mealer Companies will focus on presenting our products to the end user as demand will drive our production. People are looking for better cars that use less oil and can actually function in daily activities on rough roads meant for fast, loaded down vehicles. The industry is moving away from strictly gasoline- or diesel-powered vehicles. Plug-in Hybrids seem to be the main objective of the industry, but tiny EVs are replacing the dual-fuel projects of the Green Technology industry.
Competitive Over the past 5 years, there have been a multitude of automobile startups. After all, the market is nearly ripe for a mass-marketed alternative fuel car or light truck that presents an ideal set of features and benefits. But such an automobile does not yet exist in North America, and though several models appear
Mealer Companies Confidential Disclosure Page 10 to be ideal in parts of Europe and Asia, such models still fall short of customer expectations. Of the features and benefits lacking overwhelmingly amongst these new competitors are the following: • Range • Recharge times • Fuel availability (infrastructure, refueling stations away from home) • Crash safety • Passenger space • Cargo space • Freeway speed • A sensibly green fuel source (i.e. not shifting emissions burden to non-green power plants) • Priced for mass adoption (i.e. no perceived premium pricing strategy)
The following slides show startup company Electric Vehicles that are either in production today (the majority) or models soon to be released. Immediately noticeable on this first slide is there are two basic kinds of EV models.
The largest group (A) is too small, unsafe, and still offers less than half the range of even a compact gas- powered car, while many are still price above $30,000. Can anyone imagine one of these vehicles taking on >99% of the cars and trucks on US highways? They don’t stand the slightest chance even in a fender bender. Models like these are appropriate for two reasons, either for negotiating the narrow roads and alleys in places like Geneva, or to serve as concept designs to test and prove principles of engineering yet to be applied to a full-scale, mass-production auto.
The smaller group (B), while styled very sexy and fast, only appeals to the high-end “coupe group,” which models are priced anywhere from $99,000 to $250,000 – well out of the reach of mass market in any part of the world.
(Turn page)
Mealer Companies Confidential Disclosure Page 11 Groups A and B miss the mark completely for a sweet spot with mass consumers in the US.
A
B
Mealer Companies Confidential Disclosure Page 12 When it comes to the competition, there seems to be just a small group of models that appeal / will appeal to a mass market opportunity in the US. There are the Hybrid gas+battery models that are currently at market (group C) but for a premium of anywhere from an extra $5,000 to $8,100. And, for all their complication, hype and premium pricing many of these models do not even exceed 35 or 40 MPG. However, Toyota is betting on the market, as they recently announced a 1,000,000 unit (global) forecast just for their Prius Hybrid model.
C
Mealer Companies Confidential Disclosure Page 13
Competitive Models: Mass Appeal
After the first 40 miles, the combustion engine generator will kick in. This will keep the battery at a 30% state of charge. This 3-cylinder 1L engine will get 50 mpg fuel efficiency.
At a price possibly close to $40,000 it is proposed that the car is too expensive for most people. Not mentioned is the $7500 tax credit already approved for the first 500,000 buyers of the car. Bob Lutz is quoted as saying 2010 Production model “Over time the costs will come down and be competitive with conventional cars, although right now that’s not the case.”
Fuel type: Electric and FlexFuel Price: $40K Range / top speed: 40 miles all EV / 120mph Can charge from 110v outlet Release date: 2010??
Risk: A battery plant may have to be built prior Previously announced to production of the car. Concept model
Widely publicized are the intentions of most market-leading auto companies to pursue EV technology and begin to separate from today’s standard for Hybrid technology. However, please recall the basic requirements for mass adoption as listed above. These competitive models still lack Range, Recharge Time, Fuel Availability, a Sensibly Green Fuel Source, and Non-premium Pricing Strategy. One such example is the announced Chevy Volt. This car seems to have everything needed to be a big hit – except it has a likely $40,000 price tag at launch, which will surely give it a very slow start with early adopters. However, since the US Government is now involved with GM, it is highly likely that heavy tax incentives will be given to consumers to increase sales and preorders as evidenced by the fact they are already offering $7,500 and the car is not even shipping this year.
Mealer Companies Confidential Disclosure Page 14
BYD (Build Your Dreams)
CHINA: BYD has already announced (12/20/008) that it will release a plug-in hybrid four-door - the F6DM - and an all-electric MPV – the e6 - in the US and Europe by 2011.
BYD reckons its batteries are safer, longer lasting and less than half the cost of the lithium-ion batteries favored by other car makers. Of course, they're also a lot heavier - the e6 uses a 600kg (1323lb) battery pack to achieve a 250-odd mile touring range – and can't hold as much energy as their lithium-ion counterparts.
BYD recently hit the financial news when billionaire investor Warren Buffett agreed to buy a ten per cent stake in the company for $230,000,000.
Wang Chuan-Fu, BYD's chairman, said the company is discussing electric car projects with various governments, including that of Israel, as well as regional authorities in China.
Please note BYD’s overall strength and success level is tied directly to the feature-benefit set it has to offer the mass market.
Perhaps the most serious contender for a mass US market is a competitor from China that intends to launch two models at the US market in 2011. The company is called BYD – Build Your Dreams. This company used to be strictly a battery manufacturer, but received permission to purchase a defunct state-run auto plant from its government. BYD has converted the plant and is in process of manufacturing every component except for tires within its walls. One drawback for BYD vehicles is their very heavy battery packs, which weigh over 1,300 lbs. However, this batter pack allows BYD EVs to achieve a 250 mile range – a significant range advantage over other EVs.
As a battery manufacturer, BYD experiences a significant cost advantage over EV car makers who must buy batteries either from BYD or elsewhere. The styling, capacity, and other features mean that buyers will not have to concede functionality or comfort, when compared to conventional cars. BYD is targeting <$30,000 price points. Lastly, Warren Buffet recently purchase 10% of BYD stock for $230,000,000, so BYD is not lacking in financial strength. Though this company is not state-owned, it represents one way of many that China uses to achieve its goal to become the world’s largest producer of EVs.
Mealer Companies Confidential Disclosure Page 15
VW Turbo Diesel (TDI) Models
Volkswagen has a major success on its hands with the latest Jetta TDI. Not only has the fuel efficient machine managed to take home nearly every green car award known to man, it's also been selling in numbers well over its initial sales goal. When the German automaker launched the diesel sedan, it had estimated that about 20% of all units sold would be equipped with an oil-burning engine. In reality, about half of all wagons sold have the TDI mill and about 30% of sedans are so equipped.
For this reason, VW is now expecting that 30% of all 2010 Golf hatchbacks will be sold with the automaker's 2.0L turbocharged diesel engine when it goes on sale in the U.S. later this year. Interestingly, fellow German automakers BMW and Mercedes- Benz have not seen this kind of success with their latest diesel engines. We imagine that the low price of the Jetta TDI in comparison to its gasoline- powered siblings may have plenty to do with its strong sales numbers.
VW’s TDI now accounts for 30% of forecast and sales on Jetta, Jetta Wagon, Touareg, and Golf models. The company, for the time being, continues to bet on its turbo diesel technology, which is very reliable and provides as good as or better gas mileage when compared to most hybrid competitors. The TDI is important to note because Mealer Phase I Bridge Vehicles are based upon biodiesel and diesel technology that will compete directly with the likes of VW and all other automobile technologies – at least until Phase 2 Future Vehicle versions launch a couple years later and disrupt the entire market.
Mealer Companies Confidential Disclosure Page 16 III. MEALER TECHNOLOGY
Technology Focus J.L. Mealer’s commitment to discovery and applied engineered technology has provided this tremendous opportunity to launch a new line of automobiles that solve problems at so many levels. Continued and appropriate levels of investment in R&D and Advanced R&D efforts will assure that Mealer is constantly on the discovery frontier of engineered technologies ascertained within the realm of corporate strategy as determined by our executive committee and board.
In order to best understand Mealer’s approach to the technologies that facilitate these new and breakthrough automobiles, it will be easier to break it down into categories of Green, Power Source, Drive Train and Alternative Fuel.
Mealer = Greener Engineering Mealer is ahead of the game by not concentrating on Green Technology, but instead on what is better termed as Green Engineering. True mechanical terminology speaking, Green Technology for automobiles is simply research into the field of better ways to use oil, coal and nuclear fuel (electricity-producing fuels) in order to move a motor vehicle. Mealer uses Green Engineering to move far away from the oil, coal and nuclear dependency. We made it work, and we have the ability to manufacture a motor vehicle that runs 99% clean and is full-sized, fully loaded, highly dependable, and does not require a premium pricing strategy to succeed.
Mealer has the vehicle that can compete with the heavy weights of the roads and more. We will offer the smooth ride of a heavy luxury car without the fuel bill. Mealer will corner the market on viable transportation that will break the love affair with oil while not polluting our air through the over-use of coal burning electric companies or polluting our land with nuclear power plant waste – all sources of energy needed to recharge the Electric Vehicles our competition is manufacturing.
Our competitive edge will allow Mealer to provide a product unlike any other built for resale worldwide. No other manufacturer offers our vehicle design nor do they use our engineered improvements for the world of transportation. No one has a vehicle with a power source that is engineered and capable of generating a series of power/energy sources for storing and utilizing, and then regenerating, storing and using energy as its own fuel supply on a continual basis.
Power Source Phase 1: Biodiesel / Diesel Fuel Combustion Engine The Phase 1 Bridge Vehicles are to be powered by all forms of biodiesel, diesel, and waste oils (such as old cooking grease from Burger King). Mealer will have a separate temperature-controlled fuel tank along side of the diesel tank to regulate these oils and greases and mix them with diesel at the injectors accordingly as needed. Mealer versions of diesels will include a novel, clean burn module and a re-burn air-injection system that is covered under current Mealer patents.
Power Source Phase 2: Sequential Turbo Shaft (STS) STS is the mainstay of the power source that will be offered on the Phase 2, or Future Vehicles. The exclusive, patent-protected, Mealer-designed Sequential Turbo Shaft engine/chassis, or STS, will prove superior over fossil fuel engines and with higher ecological benefits than can be offered by Electric Vehicles. The STS design is a closed air transfer system and emits no burned or unburned fuels or
Mealer Companies Confidential Disclosure Page 17 fumes. All components of air/fluid recombine and/or separate into their original state, which are then recycled within the closed-loop system.
The Mealer STS system is neither a perpetual motion nor a perpetual energy invention, but it truly is as close as it gets to a "continual storage motion, on-demand, self-generated, fuel storage device". When put together into a single system, the Mealer STS regenerating power supply with OSSOPOS and Sequential Turbo Shaft enables this disruptive engine and chassis system to produce a continuous flow of useful energy that can either be used or stored and then diverted as needed.
No other manufacturer has this technology or offers such benefits through an automobile.
Details below are technical in nature, while the patent drawings are rudimentary, simplified, and vague in appearance as are most patent illustrations.
THIS IS THE NON-NDNC VERSION OF THE PROFORMA, FEW PROPRIETARY DETAILS ARE COVERED HEREIN.
AGM Batteries: Phase 1 & 2 Vehicles Batteries are often a source of criticism and contention when it comes to discussing the green strategy of Electric Vehicles. This is due primarily to the heavy metals, acids, and other caustic, polluting chemicals and materials that comprise a typical battery and issues related to its production and disposal.
Mealer vehicles also require batteries to run all vehicle systems with the exception of the STS engine and drive train. However, Mealer will most likely use a deep cycle absorbed glass mat (AGM) battery. These are 20-year batteries that do not use hazardous chemicals, they are shock resistant, and the costs are very affordable for our use.
Drive Train Phase 1: Automatic Transmission (typical) The Phase 1 Bridge Vehicles are to be driven by today’ typical transmission system.
Drive Train Phase 2: Hydrostatic Drive The Phase 2 Future Vehicles will be driven by the Hydrostatic Drive, which has been in use now for over 130 years. Today, Hydrostatic Drives are typically used in delivery trucks, heavy duty road graders, backhoes, mining equipment, and rack & pinion steering. The advantages of the Hydrostatic Drive are power, reliability, long duty cycle, cost effectiveness, and efficiency.
Normally, a gas or diesel engine or an electric motor would spin a hydraulic pump and power the system such as with today’s UPS trucks for fuel economy. The patented STS system does away with the gas or diesel engines as well as the electric motors by providing ultra strong "heavy-air" or "plasma" created within the system via storage units of highly compressed air to propel a simple series of proven and tested system of pumps that enter a pressure intensifier/diffuser followed by the transmission drive unit(s).
The highly compressed air originates from high pressure screw compressors that run on 220v for approximately 60-second bursts in order to completely fill and pressurize the lightweight storage tanks.
Mealer Companies Confidential Disclosure Page 18 A small amount of compressed air is always available to continuously provide pressurized air to spin an alternator which recharges the batteries.
The power source is a combination of things that by themselves are not patentable; however, the Mealer STS is patented along with the OSSOPOS.
The main system is a hydraulic drive system much like what UPS now uses to cut gas costs. The huge difference is that Mealer vehicles use the patented STS and each of the power storage devices where it regenerates its own power supply (in storage). Somewhat like batteries, yet batteries are not the sole source of stored energy. This engine utilizes the "plasma" mixed HEAVY air components within the STS system constantly pushes the 1/2 PSI of compressed air to spin an alternator which keep the batteries at full power. We also plan to run a solar system to trickle charge the 12v outlets in the vehicle.
This vehicle and the small battery array with amplifiers will become a 3-phase power source, i.e. 220v with amperage enough to power a home. While allowing enough torque and horsepower to turn each wheel with the strength of a tractor as Mealer will also run a power assist unit to the system controlled by the OSSOPOS and STS systems.
The actual drive train is powered not with electric motor power, but by hydrostatic drive, which is supplied from the STS as well as the booster systems that power very heavy duty machinery and tractors, etc. The battery backup is for the normal power system and to provide the continuous flow of recharging the pneumatic system, which in turn powers the STS, which drives the hydraulic pumps/charging features and recharging of the batteries, which in turn enable the 220v and 110v pumps to generate the high-volume air pressure.
Alternative Fuel: Blatt-Soda Bio Fuel This is a fuel design exclusive to Mealer is a ground-breaking bio fuel, which will create a huge impact on future bio fuel- and petroleum-based fuel production. The source for Mealer’s proprietary blend of ingredients is practically unlimited and has been present longer than petroleum has been available. Mealer has no available plans or schedules for product of this fuel, but it should easily surpass ethanol production at a fraction of the cost involved. This fuel source cannot be controlled by patents any more than ethanol production can be controlled under patent protection. Mealer’s methods of extracting, initiating and refining currently secretive raw ingredients to form Blatt-Soda into a useful bio fuel are unique and unprecedented. Mealer will cover this technological engineering process with full patent protection; and, much of the process relies on variations of the STS engine and OSSOPOS patents.
A Word on Carbon Caps and Taxes: I have discussed at length the new trend with the global governments, the USA not excluded regarding the effect of Carbon Caps and Carbon Taxes.
Mealer rises to the environmental challenge with a lineup of FV vehicles that produce zero CO2 emissions and do not recharge on the power grid creating a more deadly consequence. Aside from using only pure solar power to recharge the world’s EVs, Mealer is the only alternative.
Every potential source of fossil fuel used in any way to create or harness power and/or products will be taxed heavily. No company will get away without paying manufacturing carbon taxes from everything
Mealer Companies Confidential Disclosure Page 19 beginning with fuel delivery and usage to production (manufacturing) costs including non-solar electricity. The web is full of information on the subject.
Of course, the solar product companies will be taxed all along the lines to build their products as well, so this will hit hard and will be passed on to consumers of course.
This puts Mealer in the perfect place and at the perfect time. We have the vehicle that is Carbon Tax Free (excluding manufacturing/freight costs) and best of all, the home/office power system that cannot be affected by Carbon Taxes except during manufacturing and freight.
Mealer Companies Confidential Disclosure Page 20 IV. Financial
The following Table 1 is a 10-Year Summary Pro Forma that shows corporate expenses, debt, debt service, revenues, and annual cash flow as projected based upon the supporting detailed tables and assumptions. As the reader can see, Mealer presents significant financial potential and a strong business case. Mealer believes that a healthy company is one that pays cash for assets whenever it is prudent to do so, thus carrying as little debt as possible. The debt service assumes that Mealer will repay all debts as soon as possible, if debt service is required. While the first funding of $95,000,000 is required for start-up, the second capital injection of $105,000,000 is likely to be optional, or at least some percentage will be optional, depending on the cash Mealer has on hand at the time Phase II manufacturing set up is required. Also, the total $200,000,000 injection depends entirely on the arrangement Mealer has for facilities, for instance Lease or Purchase. Another factor is what percentage of the shop floor is reusable and reconfigurable for Mealer needs. Due to the high availability of idle US auto manufacturing facilities, it is highly likely that Mealer will find the proper facilities and thus reduce the capital requirements. (All spreadsheets are available upon request.)
Table 1: 10-yr Financial Summary EXPENSES & CASHFLOW Startup Period Startup Period First Full Year Corporate Costs & Expenses 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 Debt / Investment Capital 95,000,000 105,000,000 SG&A 2,000,000 6,000,000 20,509,388 154,218,244 563,006,637 1,166,425,416 1,586,261,712 2,166,761,825 2,800,627,055 3,191,901,364 Manuf. Site Acq., Set Up 10,000,000 22,500,000 105,000,000 50,000,000 60,000,000 60,000,000 60,000,000 Planning and Green Consulting 1,000,000 3,000,000 1,000,000 1,000,000 1,000,000 1,000,000 1,000,000 1,000,000 1,000,000 1,000,000 Political Contributions 250,000 250,000 250,000 200,000 200,000 200,000 200,000 200,000 200,000 200,000 Future Projects / Adv. R&D 10,000,000 40,000,000 35,000,000 40,000,000 40,000,000 40,000,000 40,000,000 60,000,000 60,000,000 60,000,000 Debt Service Interest Paid 8,075,000 7,650,000 8,925,000 6,800,000 4,675,000 2,550,000 Principal Paid 5,000,000 90,000,000 25,000,000 25,000,000 25,000,000 30,000,000 Total Debt Service 13,075,000 97,650,000 33,925,000 31,800,000 29,675,000 32,550,000 Debt Running Balance 95,000,000 90,000,000 - 105,000,000 80,000,000 55,000,000 30,000,000 -
Total Costs and Expenses 23,250,000 84,825,000 154,409,388 300,418,244 688,131,637 1,299,425,416 1,717,136,712 2,320,511,825 2,861,827,055 3,253,101,364
Total Net Revenues - 85,000,000 410,187,770 3,084,364,875 11,260,132,741 23,328,508,326 31,725,234,231 43,335,236,502 56,012,541,101 63,838,027,274
Annual Cash Flow (23,250,000) 175,000 255,778,381 2,783,946,631 10,572,001,104 22,029,082,909 30,008,097,520 41,014,724,676 53,150,714,046 60,584,925,910
Table 2: Summary: US Car + Light-duty Truck/SUV Market Forecast SUMMARY Car+Truck Sales 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 Total US Market 9,069,480 9,160,175 9,251,777 9,344,294 9,437,737 9,532,115 9,627,436 9,723,710 9,820,947 9,919,157 Total Mealer Share - 4,000 19,139 115,981 401,858 956,535 1,243,518 1,634,705 2,044,878 2,289,575 Total Mealer % 0.00% 0.04% 0.21% 1.24% 4.26% 10.03% 12.92% 16.81% 20.82% 23.08% Net Revenue 85,000,000 410,187,770 3,084,364,875 11,260,132,741 23,328,508,326 31,725,234,231 43,335,236,502 56,012,541,101 63,838,027,274 Total Gross Margin 45,000,000 214,613,529 1,923,951,921 7,105,709,455 10,803,624,391 14,687,189,030 19,852,180,588 25,502,830,524 29,191,985,310 % Gross Margin 52.94% 52.32% 62.38% 63.11% 46.31% 46.29% 45.81% 45.53% 45.73%
• Channel margins, commissions, etc. are TBD, and thus Gross Margin does not include these. This is part of a business case that is still under review. • SG&A: A CFO magazine article reveals that a typical corporation runs between 17% and 20% of revenues for SG&A. 2011 is the first full year of sales, during which time the SG&A is estimated to be 5% of revenue, and for subsequent years thereafter. o Important note regarding Executive Compensation and Corporate Structure: Mealer will not be a heavy, fat corporate structure with multiple management layers, excessive support staff, and exorbitant executive salaries – all are several nails in the coffins of today’s large US automakers. Executives, and all others where appropriate, will have
Mealer Companies Confidential Disclosure Page 21 modest salaries, great benefits, and a reward structure based upon performance metrics of the individual, team, division, and the corporation. . Some of the best and brightest minds in the auto industry are currently shopping for a new car company to work for. Mealer intends to hire the best team available at all levels, and add to the team as needed. It is an employer’s market at present, especially in the automotive world. o Important note regarding the UAW, unions, etc.: Mealer will Not be a union company, period. This is another big nail in the coffin for today’s large US automakers. Such influence reduces the competitive abilities of the corporation in the market place, reduces morale, and in general kills margins. Mealer is only shopping for management and manufacturing facilities within states that support this point of view. • Debt (or Investment) of $95,000,000 for Phase I: This portion is meant to kick off the corporation on through Phase I launch. This also includes R&D for Phase II development – the Future Vehicles. Sales from Phase I vehicles will allow for repayment of this debt. An 8.5% APR is assumed for purposes of this financial analysis. • Planning and Green Consulting: This also includes hiring a top marketing firm to research and establish branding for corporate and models and to develop integrated marketing campaigns. Their number 1 objective is to establish all that is needed to produce and hit Presales goals. As for Planning and Consulting, it is unclear as to how much budget will be needed annually. Mealer will pursue the bid process shortly. • Political Contributions: Mealer knows how important it is to establish the political relationships and support necessary to be successful in today’s environment. This line item is purely a budget for campaign contributions and fundraisers. • Research & Development: While much of the technology and design work has been completed for the BV and FV models, there are several loose ends to tie up. There is industrial design work, testing, crash testing, software OS development, and some specialty components. Suppliers must be qualified and their components tested and cross tested with other components. Future systems advanced R&D work will also begin immediately, though at a lower level of priority when compared to Phase I and Phase II.
When reviewing any forecast in today’s uncertain economy for just 1 year out, not to mention 10 years out, it can be hard to put stock into any one supporting opinion or analysis. While preparing this financial analysis, several forecast sources were consulted. All have reigned in their forecast for the world and indeed the US market as well. Where there were nearly 14 million autos sold in the US last year, recent forecasts have been lowered from between 9.7 and 10 million units based on Q1 results. For the purposes of the Mealer forecast, we took Q1 results and then projected them flat through the end of 2009, which provides just less than 9.1 million units. Then, for the subsequent 9 years, a CAGR of just 1% has been used for projection. The economy is sure to recovery at some point in the next year or two, and when it does, the 10-year CAGR should far exceed the 1% used here. This conservative approach has been taken because, while Mealer is bullish on the future of Mealer products in the market, it is important to project bearishly.
The Mealer forecast requires that several points to keep in mind (scroll downward to Table 6: Forecast Assumptions for more detail) in order to best comprehend the forecast methodology. • Of no small influence is a Wall Street Journal article dated May 1, 2009 that reviewed Q1’2009 results for US auto sales. The author quotes a source www.MotorIntelligence.com from which it pulled several tables and chart describing what happened in 2008 and Q1’2009 by comparison
Mealer Companies Confidential Disclosure Page 22 (see Appendix). Of the data presented, the Top 20 best selling models are displayed by volume and also by category. This information was very helpful in the Mealer forecast and indeed the roadmap exercise, where the future models have been projected. Of course this type of information will be followed and plans can change in the future, but for now, the course has been set according to what is shown in the following analysis, roadmaps, and launch plans. • A Global business case will be created once Mealer secures funding based on the US. • Pricing used in the Forecast: It is important to note that the price points used here are based upon an average taken within each model category amongst direct competitors and averaged from the Suggested Starting Selling Prices as observed on each competitor’s website. Thus the price points shown on the Tables that follow are an average of Starting prices, i.e before adding any up-sell amenities. • Pre Manufacturing Sales: o The current trend with new automakers, especially those automakers that are being funded to manufacture Green Technology vehicles, is that Pre-Mfg Sales are in the thousands of customers. Aptera, the three-wheeled, 2-seater EV as well as Tesla Motors’ compact sedan EV were both reported selling at least 2000 Pre-Mfg new models. This presents a terrific opportunity for additional funding and to service debt. In like manner, Mealer is forecasting 2,000 presales per BV model by Q4’2010, which equates to $30,000,000 gross margin. The Chevy Volt website has nearly 50,000 potential customer signed up and that vehicle will not launch until 2010. o After announcing our initial vehicle, we expect our Pre-Mfg sales to easily reach the multimillion dollar mark within just 3-6 months. Nationwide retailers are showing immense interest for engineered vehicles such as the Mealer line and readily accept models at their dealerships. Mealer has become a member of several Green Industry groups who attend and display vehicles in trade shows and exhibitions. The company’s extensive advertising campaign will be used to create product awareness through the Internet, automotive publications, trade journals, direct mail advertising, public relations, and other cost effective methods. • Phase I Bridge Vehicles: (see Launch Plan for Roadmaps) o To further assure launch success, Mealer has selected to launch two models, where each is derived from the two best-selling US auto categories: Mid-sized Car (47% of total US sales) and Small Car (35%). o The pricing strategy and volume projections for Phase I assumes that, since the BV’s will be classified by the market as “clean diesels,” they will be competing and tracked quantitatively against cars like the VW TDI and others. However, due to their incredible 100 mpg, they will actually be competing against all cars in their class including Hybrids when it comes to the consumer’s choice. Thus by this reasoning the forecast reflects such a forecast. Because it is clear that consumers do not wish to pay a premium for EV and Hybrid technology, and because Mealer wishes to sell as many cars as possible while making a profit, BV’s will be priced within their current category market adoption price points as indicated below. Again, the objective of Phase I is to get to Phase II, where the really serious competitive advantages can be implemented. • Phase II Future Vehicles: (see Launch Plan for Roadmaps) o Mealer plans to sell very well within some taboo categories that will then be revived for consumers. There are several model categories within the 2008-09 data set that suggest that today’s economy does not bode well for larger vehicles, which is obviously due to large price tags and large figures on our receipts at the fuel pump. But, as suggested
Mealer Companies Confidential Disclosure Page 23 earlier, if these barriers to purchase were to be removed from the consumer’s purchase criteria, then they will buy whatever vehicle fits their needs in other areas. It is a fact that in times of low fuel prices and better economic conditions, there is a segment or two of consumers who prefer to purchase larger, more luxurious automobiles from sedans to SUVs. Such consumers will once again be able to purchase according to their desires and needs when Mealer provides FV models in these categories. Since Mealer provides such disruptive technology for these typically gas-guzzling categories, the forecast is very aggressive with regard to market share. o When it comes to pricing strategies for the FV’s, Mealer WILL most likely charge a premium at launch in order to take advantage of a tiered market pricing system, must the same as other breakthroughs have been priced in other consumer categories, such as Plasma TVs, DVRs, DVD players, gaming consoles, and many others. In other words, the early adopters pay the most, and then the price lowers to hit the next group of buyers, and so on until mass adoption occurs. Such a strategy allows R&D expenses to be recovered quickly and also serves to mitigate major issues that can arise with regard to availability, inventory, and production quality. In every case, it is the intention of Mealer to achieve mass adoption and provide the advantages of its technology to as many consumers as possible while making a profit. • Phase III Forecast: These vehicles have been included in the forecast, but pricing does not regard large fleet orders, as this will need to be negotiated on a per-opportunity basis.
Table 3: US Car Market Forecast
Mealer Companies Confidential Disclosure Page 24 MEALER FORECAST (see Assumptions tab for total detail) Annual Growth Rate US Market assumed to be 1.01 (change this growth rate and it will apply to table below) Mealer % = assumed Mealer share per annum for given category CAR FORECAST Unit Sales from Model Type 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 Cars 4,606,749 4,652,816 4,699,345 4,746,338 4,793,801 4,841,739 4,890,157 4,939,058 4,988,449 5,038,334 Midsize 2,149,764 2,171,262 2,192,974 2,214,904 2,237,053 2,259,424 2,282,018 2,304,838 2,327,886 2,351,165 % Mealer 0.00% 0.00% 0.50% 3.00% 12.00% 18.00% 19.00% 19.00% 19.00% 19.00% Units Mealer - 2,000 10,965 66,447 268,446 406,696 433,583 437,919 442,298 446,721 ASP ($USD) 22,500 22,500 33,000 33,000 22,000 22,000 22,000 22,000 22,000 Net Revenue 45,000,000 246,709,604 2,192,754,959 8,858,730,034 8,947,317,335 9,538,834,425 9,634,222,769 9,730,564,997 9,827,870,647 Avg. Cost (Parts+Labor) 11,500 11,500 11,500 11,500 11,500 11,500 11,500 11,500 11,500 Gross Margin 11,000 11,000 21,500 21,500 10,500 10,500 10,500 10,500 10,500 Total Gross Margin 22,000,000 120,613,584 1,428,613,079 5,771,596,841 4,270,310,546 4,552,625,521 4,598,151,776 4,644,133,294 4,690,574,627 % Gross Margin 48.89% 48.89% 65.15% 65.15% 47.73% 47.73% 47.73% 47.73% 47.73% Small 1,602,570 1,618,596 1,634,782 1,651,129 1,667,641 1,684,317 1,701,160 1,718,172 1,735,354 1,752,707 % Mealer 0.00% 0.00% 0.50% 3.00% 8.00% 10.00% 12.00% 14.00% 16.00% 16.00% Units Mealer - 2,000 8,174 49,534 133,411 168,432 204,139 240,544 277,657 280,433 ASP ($USD) 20,000 20,000 18,000 18,000 18,000 18,000 18,000 18,000 18,000 Net Revenue 40,000,000 163,478,166 891,609,916 2,401,402,706 3,031,770,917 3,674,506,351 4,329,793,317 4,997,818,572 5,047,796,757 Avg. Cost (Parts+Labor) 8,500 8,500 8,000 8,000 8,000 8,000 8,000 8,000 8,000 Gross Margin 11,500 11,500 10,000 10,000 10,000 10,000 10,000 10,000 10,000 Total Gross Margin 23,000,000 93,999,945 495,338,842 1,334,112,615 1,684,317,176 2,041,392,417 2,405,440,732 2,776,565,873 2,804,331,532 % Gross Margin 57.50% 57.50% 55.56% 55.56% 55.56% 55.56% 55.56% 55.56% 55.56% Luxury 771,180 778,892 786,681 794,548 802,493 810,518 818,623 826,809 835,077 843,428 % Mealer 0.00% 0.00% 0.00% 0.00% 0.00% 5.00% 8.00% 10.00% 12.00% 15.00% Units Mealer - - - - - 40,526 65,490 82,681 100,209 126,514 ASP ($USD) 44,000 44,000 44,000 44,000 44,000 Net Revenue 1,783,139,447 2,881,553,346 3,637,961,100 4,409,208,853 5,566,626,177 Avg. Cost (Parts+Labor) 18,000 18,000 18,000 18,000 18,000 Gross Margin 26,000 26,000 26,000 26,000 26,000 Total Gross Margin 1,053,673,310 1,702,736,068 2,149,704,286 2,605,441,595 3,289,370,013 % Gross Margin 59.09% 59.09% 59.09% 59.09% 59.09% Large 83,235 84,067 84,908 85,757 86,615 87,481 88,356 89,239 90,132 91,033 % Mealer 0.00% 0.00% 0.00% 0.00% 0.00% 15.00% 20.00% 30.00% 40.00% 42.00% Units Mealer - - - - - 13,122 17,671 26,772 36,053 38,234 ASP ($USD) 28,000 28,000 28,000 28,000 28,000 Net Revenue 367,419,450 494,791,527 749,609,163 1,009,473,672 1,070,546,830 Avg. Cost (Parts+Labor) 14,500 14,500 14,500 14,500 14,500 Gross Margin 13,500 13,500 13,500 13,500 13,500 Total Gross Margin 177,148,664 238,560,200 361,418,703 486,710,521 516,156,507 % Gross Margin 48.21% 48.21% 48.21% 48.21% 48.21% Total US Car Market 4,606,749 4,652,816 4,699,345 4,746,338 4,793,801 4,841,739 4,890,157 4,939,058 4,988,449 5,038,334 Mealer Share - 4,000 19,139 115,981 401,858 628,776 720,884 787,916 856,217 891,903 Mealer % 0.00% 0.09% 0.41% 2.44% 8.38% 12.99% 14.74% 15.95% 17.16% 17.70% Net Revenue 85,000,000 410,187,770 3,084,364,875 11,260,132,741 14,129,647,149 16,589,685,649 18,351,586,349 20,147,066,094 21,512,840,411 Total Gross Margin 45,000,000 214,613,529 1,923,951,921 7,105,709,455 7,185,449,695 8,535,314,207 9,514,715,498 10,512,851,283 11,300,432,679 % Gross Margin 52.94% 52.32% 62.38% 63.11% 50.85% 51.45% 51.85% 52.18% 52.53%
Mealer Companies Confidential Disclosure Page 25 Table 4: US Light-duty Truck/SUV Forecast TRUCK/CROSSOVER/SUV FORECAST Unit Sales from Model Type 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 Light-duty trucks 489,327 4,552,432 4,597,956 4,643,936 4,690,375 4,892,974 4,941,903 4,991,322 5,041,236 5,091,648 Pickup 1,256,022 1,268,582 1,281,268 1,294,081 1,307,022 1,320,092 1,333,293 1,346,626 1,360,092 1,373,693 % Mealer 0.00% 0.00% 0.00% 0.00% 0.00% 15.00% 20.00% 30.00% 40.00% 42.00% Units Mealer - - - - - 198,014 266,659 403,988 544,037 576,951 ASP ($USD) 27,000 28,000 28,000 28,000 28,000 Net Revenue 5,346,371,568 7,466,438,911 11,311,654,949 15,233,028,665 16,154,626,900 Avg. Cost (Parts+Labor) 18,000 18,000 18,000 18,000 18,000 Gross Margin 9,000 10,000 10,000 10,000 10,000 Total Gross Margin 1,782,123,856 2,666,585,325 4,039,876,768 5,440,367,380 5,769,509,607 % Gross Margin 33.33% 35.71% 35.71% 35.71% 35.71% Crossover 1,731,816 1,749,134 1,766,626 1,784,292 1,802,135 1,820,156 1,838,358 1,856,741 1,875,309 1,894,062 % Mealer 0.00% 0.00% 0.00% 0.00% 0.00% 5.00% 8.00% 12.00% 15.00% 18.00% Units Mealer - - - - - 91,008 147,069 222,809 281,296 340,931 ASP ($USD) 24,500 24,500 24,500 24,500 24,500 Net Revenue 2,229,691,126 3,603,180,859 5,458,819,001 6,891,758,989 8,352,811,895 Avg. Cost (Parts+Labor) 14,000 14,000 14,000 14,000 14,000 Gross Margin 10,500 10,000 10,000 10,000 10,000 Total Gross Margin 955,581,911 1,470,686,065 2,228,089,388 2,812,962,853 3,409,310,978 % Gross Margin 42.86% 40.82% 40.82% 40.82% 40.82% Minivan 577,599 583,375 589,209 595,101 601,052 607,062 613,133 619,264 625,457 631,712 % Mealer 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 5.00% 10.00% 20.00% 25.00% Units Mealer ------30,657 61,926 125,091 157,928 ASP ($USD) 25,700 25,700 25,700 25,700 Net Revenue 787,875,876 1,591,509,270 3,214,848,725 4,058,746,515 Avg. Cost (Parts+Labor) 18,000 18,000 18,000 18,000 Gross Margin 7,700 7,700 7,700 7,700 Total Gross Margin 236,056,196 476,833,517 963,203,703 1,216,044,676 % Gross Margin 29.96% 29.96% 29.96% 29.96% Midsize SUV 407,967 412,047 416,167 420,329 424,532 428,777 433,065 437,396 441,770 446,187 % Mealer 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% Units Mealer ------ASP ($USD) Net Revenue Avg. Cost (Parts+Labor) Gross Margin Total Gross Margin % Gross Margin Large SUV 198,093 200,074 202,075 204,095 206,136 312,297 315,420 318,574 321,760 324,977 % Mealer 0.00% 0.00% 0.00% 0.00% 0.00% 10.00% 20.00% 40.00% 50.00% 75.00% Units Mealer - - - - - 31,230 63,084 127,430 160,880 243,733 ASP ($USD) 38,500 38,500 38,500 38,500 38,500 Net Revenue 1,202,341,913 2,428,730,664 4,906,035,942 6,193,870,377 9,383,713,621 Avg. Cost (Parts+Labor) 18,000 18,000 18,000 18,000 18,000 Gross Margin 20,500 20,500 20,500 20,500 20,500 Total Gross Margin 640,208,032 1,293,220,224 2,612,304,852 3,298,034,876 4,996,522,837 % Gross Margin 53.25% 53.25% 53.25% 53.25% 53.25% Small SUV 195,984 197,944 199,923 201,923 203,942 205,981 208,041 210,121 212,223 214,345 % Mealer 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% Units Mealer ------ASP ($USD) Net Revenue Avg. Cost (Parts+Labor) Gross Margin Total Gross Margin % Gross Margin Luxury SUV 95,250 96,203 97,165 98,136 99,118 150,163 151,665 153,181 154,713 156,260 % Mealer 0.00% 0.00% 0.00% 0.00% 0.00% 5.00% 10.00% 20.00% 50.00% 50.00% Units Mealer - - - - - 7,508 15,166 30,636 77,357 78,130 ASP ($USD) 56,000 56,000 56,000 56,000 56,000 Net Revenue 420,456,571 849,322,272 1,715,630,990 4,331,968,251 4,375,287,933 Avg. Cost (Parts+Labor) 24,000 24,000 24,000 24,000 24,000 Gross Margin 32,000 32,000 32,000 32,000 32,000 Total Gross Margin 240,260,897 485,327,013 980,360,566 2,475,410,429 2,500,164,533 % Gross Margin 57.14% 57.14% 57.14% 57.14% 57.14% Total US Light Trucks 489,327 4,552,432 4,597,956 4,643,936 4,690,375 4,892,974 4,941,903 4,991,322 5,041,236 5,091,648 Mealer Share - - - - - 327,759 522,634 846,789 1,188,661 1,397,673 Mealer % 0.00% 0.00% 0.00% 0.00% 0.00% 6.70% 10.58% 16.97% 23.58% 27.45% Net Revenue 9,198,861,177 15,135,548,582 24,983,650,153 35,865,475,007 42,325,186,863 Total Gross Margin 3,618,174,696 6,151,874,823 10,337,465,091 14,989,979,242 17,891,552,630 % Gross Margin 39.33% 40.65% 41.38% 41.80% 42.27%
Table 5: Other Sources of Income Other Income Sources (Demonstration purposes only. These are not included in the financial analysis because a proper cost analysis must be done for each opportunity) Tech Licensing Tie Rate 1.00% 1.00% 1.50% 1.50% 2.00% 2.00% Revenue 112,601,327 233,285,083 475,878,513 650,028,548 1,120,250,822 1,276,760,545 Specialty Components Tie Rate 0.50% 0.50% 1.00% 1.00% 1.50% 1.50% Revenue 56,300,664 116,642,542 317,252,342 433,352,365 840,188,117 957,570,409
Mealer Companies Confidential Disclosure Page 26 As with all other brands, the Mealer brand will not be able to reach all buyers, and its market share will therefore be constrained to whatever the market will bear even with the advanced technology and its associated advantages may be widely applicable in its nature. Therefore, Mealer intends to license its technology to other brands as well as to supply specialty components to the market. It is impossible to tell as this point what sort of tie rates would be appropriate to this business model, so for the time being some very small tie rate percentages have been applied to the forecast model for demonstration purposes only. These revenues have not been included in the financial analysis. One reason for not including them in the analysis is because the appropriate Costs cannot yet be determined.
Table 6: Forecast Assumptions Assumptions and Supporting Information for Forecast 1 All categorical and numerical assumptions are based on a Wall Street Journal, May 1, 2009 article that quotes www.MotorIntelligence.com as its data source under the category of US Light Vehicle Sales. Mealer assumes that if this source was good enough for the Wall Street Journal, then it suits the needs of this forecast and subsequent financial analysis. 2 US Market Only for purposes of this forecast, though Mealer autos and tech applies worldwide 3 2009 US sales are based on Q1'2009 results only, and then applied at that same rate of sales across remaining 3 quarters of 2009 4 CAGR assumed 1% from 2009 to 2010 and from there forward 5 JD Power forecasts 10,000,000 units to be sold in the US, while othe 6 Other brand automakers are sure to license Mealer Technologies or purchase components via contract 7 Mealer vehicles are not Hybrids, though they are alternatives to traditional gas-powered vehicles. Hybrids are specific to gas+battery for the time being until analysts broaden the Hybrid scope to include EVs, bio diesels, and others like the Mealer FV at some point. 8 Mealer Bridge Vehicles (BVs) are bio diesel/diesel and thus forecast as a portion of gas-powered cars. 9 Mealer Future Vehicles (FVs) forecast draws from ALL auto technologies. Due to its disruptive, paradigm-shifting, replacement technology, FVs will not be a category of their own, such as Hybrid or EV, but simply cover the broad spectrum of all competitive categories. 10 Mealer will lead model introductions in the highest selling categories: Small Cars, Mid-sized Cars, and so on through the categories by rank 11 VW is forecasting 30% of all models available in TDI to be sold as TDI (turbo diesel) 12 Large SUVs, Luxury SUVs, and Luxury Sedans categories are assumed to increase in total US forecast once the FV is introduced 13 It is assumed that MPG is a major barrier to purchase of one of these vehicles, as sales are historically tied to the price of fuel 14 Large SUV and Luxury SUV category sales have been increased by 50% overall for the purposes of this forecast 15 Specialized vertical market vehicles are Not included in forecast 16 Average Costs remain somewhat flat because we cannot predict if materials will go up or down over time based on the world market 17 Average Selling Price remains somewhat flat because that will be determined by the Market, i.e. consumers and competitive environment in a given quarter - also unpredictable 18 2010 vehicle launch sales are estimated at 5,000 units per each of 2 model types for BV presales 19 Other model launches assume small initial penetration for reasons for purposes of being conservative 20 Annual category growth is estimated per category based on the substantially more beneficial Mealer value proposition vs. competitive offerings 21 Mealer does not want to assume a total market takeover, but is moderate in its projections 22 The car industry bosses believe sales of hybrid cars, as well as other fuel-efficient models, will outpace sales of sport utility vehicles, pickups and luxury models over the next five years. 23 Based on five years of sales forecasts and sale data, the only certainty is that sales numbers will defy expectation. 24 Hybrid Sales (6.6-8% CAGR) 25 Sales recorded by the global hybrid vehicles market are expected to surge at a CAGR of around 12% during 2008-2015. 26 Hybrid cars sales in the US market are likely to cross 1 Million Mark by 2012. 27 Hybrid vehicle production in Japan is projected to hit a CAGR of 6.6% from 2008 to 2011. 28 HEV battery market is likely to attain a CAGR growth rate of around 10.4% during the period spanning from 2010 to 2015. 29 Hybrid car component market is expected to grow at a CAGR of 17.4% during 2008-2012. 30 Importantly: For categories of lower penetration by Mealer, additional revenues are still to be realized by selling and licensing components and tech to other automakers. 31 ASPs determined by reviewing Suggested Starting Prices as listed on manufacturer's websites. Therefore, ASPs are listed very conservatively, as they are actually presented as an Average Suggested Starting Selling Price in this Forecast.
Mealer Companies Confidential Disclosure Page 27 V. Launch Plan
The Bridge Vehicles can launch within 3 months of completion of the production facility and set up. Simultaneous to the BV preparations, the FV R&D effort will commence, which will provide FV’s within 2 years of the BV first product ship date. Again, referring to the following slide:
Funding Road Map: Use of Funds Initial Funding Start Up, Launch Bridge Vehicles Production Funding R&D Future Vehicles Future Vehicles $95,000,000 $105,000,000
Presale Orders: Presale Orders: Bridge Vehicles Future Vehicles
First Product Ship: Bridge Vehicles
First Product Ship: Future Vehicles
Q2 3 4 Q1 2 3 4 Q1 2 3 4 Q1 2 3 4 Q1 2 3 4 2009 2010 2011 2012 2013
Road Maps Mass market adoption is the intention for every Mealer automobile. Unlike our competitors, technology does not drive specific design requirements – consumers will drive the design requirements. After all, as a new company with new technology, Mealer is not constrained by the large institutional mentality of “this is how we’ve always done things.” Mealer will succeed by manufacturing a variety of top-quality, extremely rugged products with a significant number of money-saving features and options to fulfill the needs of current and future clients and deliver on the feature-benefit mix they desire most. The 3-year and 10-year Roadmaps are represented by body styles that we are all familiar with in today’s market as top sellers; however, these models are only meant to help the reader relate to the targeted Mealer product roadmaps. The Mealer models have not yet been designed, but simply depict the Type of auto that will be released at that estimated time and price.
Mealer Companies Confidential Disclosure Page 28 The order of release by model type has been mapped according to the overall sales of each type of unit in the US. • Mid-sized 4-door sedan (think Jetta, Camry, Accord) • Small (think Rabbit, Fit, Focus) • Crossover SUV (think Venza, Tiguan, Lexus RX) • Pickup truck (think F-150, Tundra Crewmax)) • Minivan (think Routan, Odyssey) • Large sedan (think Lincoln Towncar, Taurus, Lucerne) • Luxury sedan (think BMW 7-Series, VW CC, Audi 8, Cadillac STSv8) • Large SUV (think Suburban, Excursion) • Luxury SUV (think Escalade, Range Rover) • Military, Utility, and other specialty fleets
However, Mealer cautions that there are several examples of vehicles whose sales may be much, much higher if their cost of fuel and overall fuel consumption were to be removed as barriers to purchasing such vehicles. For instance, large SUVs are among the worst selling models in the US; but, with the Mealer Future Technologies installed in large SUVs perhaps 50% of American families might own one. Research will need to provide answers to such demand scenarios. What’s most pressing is that Mealer be allowed to launch its Phase I Bridge Vehicles while completing the development of the Phase II Future Vehicles. From there, the road mapping exercise becomes much easier.
(Please turn to the next page for Roadmaps.)
Mealer Companies Confidential Disclosure Page 29 3-Year Roadmap: As you can see below, the initial Product Roadmap for Mealer products includes 2 Phases of productions and 3 models: (2) Bridge Vehicles (BV), meaning they are to bridge the gap between today’s technology and the (1) Future Vehicles (FV) technology. Mealer will lead with a mid-sized 4-door sedan and a compact because these are America’s 2 best-selling models. We go with what works best, which is a simple principle the competition seems to be missing. Also, the reason prices may increase once the FVs launch is because the benefits they offer are actually worth much more than even this small price increase. Such an increase will not last long, just for the early adopters, and then prices will decrease. Such a move helps to more quickly recoup R&D funds and early adopters will typically always pay much higher prices just to be first owners of the latest technology products. The BV 1 will continue on in the diesel version as a cost-reduced, lower price point once its FV1 counterpart is launched. This allows Mealer to reach down further to a different buyer.
Mealer Road Map: 3-year
$60K
$50K
$40K Phase II
Phase I $30K FV2 BV2 $20K FV1 BV1
$10K (Funding, set up, ramp up) (Funding, set up, ramp up)
2009 2010 2011 2012 2013
10-Year Roadmap: This roadmap depicts 3 Phases of production vehicles, which the reader will note comprises a wide variety of models, but the Mealer models will be released in the order of market size. There are a couple of models that are “TBD” around the 2017 timeframe. Since it is difficult to know what customers will demand so far ahead of time, Mealer assumes that a complete redesign may be in order within this mass market pricing sweet spot in order to remain relevant and competitive. Also of great importance is the Phase III Verticals product line. Remembering that Mealer technology utilizes systems and components designed to work very hard and very powerfully as well as to regenerate their own fuel source, this makes Mealer ideal for several vertical applications, only a few of which are
Mealer Companies Confidential Disclosure Page 30 represented here. Imagine work trucks, taxi cabs, public service fleets, and military vehicles that do not require a gas station or a recharge every 150-300 miles, just regular maintenance at proper intervals. Timing and pricing on these vehicles will need to be determined closer to each opportunity.
Mealer Road Map: 10-year
Futures $60K Phase II Future Verticals Phase III Pricing TBD $50K
$40K Bridges Phase I FVs $30K BV2 ?TBD ?TBD $20K
BV1 ?TBD $10K
2010 2011 2012 2013 2014 2015 2016 2017 2018 2019
By allowing our Bridge Vehicle to enter the market first, Mealer will not only make a reputation for quality automobiles that are versatile, useful, performance oriented and innovative, but also economical and environmentally friendly. In addition to America's demand for a superior MPG internal combustion engine powered auto and our ability to begin building the BV immediately, we also appeal to a global market from the start. Anticipation for our Future Vehicle which provides the ecological solution decried by national governments, California (many times) as well as the United Nations will be immense, though the US market, the world’s largest automobile market, is Mealer’s primary target.
Phase I, Bridge Vehicles: Prior to final design of our non-fossil-fueled, non-EV Future Vehicle, Mealer will begin immediate production of our Bridge Vehicle for the transition. Bridge Vehicles (BV) will be small and mid-sized automobiles that provide between 50 and 100 MPG, and a compact 2-seater offering twice that MPG. In order to build these vehicles we must acquire at least one location for assembly and one location for electrical component R&D finalization and manufacturing. Fund-to-Suit VC-owned locations in Virginia, Tennessee and Florida are under consideration for Phase I BV manufacture. The first BV will roll off the assembly line within 300 days of tooling the preferred locations. We can build the BV immediately with our outside manufacturing sources for each component. Our network of contacts allow for a rapid entry into the market.
Mealer Companies Confidential Disclosure Page 31 The BV frame and chassis is already USDOT approved as per the design and braking system. The braking system can be tested out in a 45-day turnaround along with safety glass requirements, three brake lights, horn, headlights, safety belts, impact bags, crush zones, total weight, windshield wipers, and other typical requirements. These regulations are not all that strict and Mealer will pass easily. (Most of the tough regulations are placed on interstate freight carriers.) The details fall back on the manufacturer to make certain we provide a quality and safe automobile. The whole process is akin to an inspector signing off on a home to a contractor.
Mealer Bridge Vehicle requires very little specialty equipment or high-end tooling other than what is supplied from electrical partners. While all outside hard parts may be ordered to suit from US and European manufacturing facilities, our plan is to manufacture our own electrical components with 95% hard parts also supplied from USA electronics manufacturing sources (surprisingly, at a better cost ratio than imported China components). Our manufacturing costs remain low, since we are ordering the majority of BV components.
In order to better maintain and update the software, remote sensors and other upcoming upgrades on these electronics, we expect to manufacture and market our own combat-grade laptop computer system for each automobile. The rationale behind this simple, multi-use laptop is to avoid a problematic, separate automotive computer, analyzer and programmer unit. We cut costs and offer another product line, which we must build anyway. Maintenance of the vehicle’s computer system just became simpler and cheaper to service. Initially, to assure time to market, we may custom order our laptops directly from foreign suppliers at a marginal price.
Phase II, Future Vehicle: Mealer’s Future Vehicle (FV) solves the problem of burning fossil fuels and the resulting pollution. Global Warming is a valuable topic, but Mealer refuses to touch the subject because our vehicles do not meet the requirements for global climate control regulations. Ours is the clean-powered motorcar that will set the standards for future automobiles. Full-sized and full-powered transportation built for the American lifestyle.
Our vehicles utilize interchangeable bodies made of post-consumer materials, integrated in a safe and attractive style that we expect will also set the standards for the industry. This body style may also be used with the Bridge Vehicles, but in order to get the BV on the market as rapidly as we can, a fiberglass composite may become the initial Mealer body styles. We have a variety of immediate sources for custom injection mold production.
Our Future Vehicle is designed in such a way as to be able to attach to a retrofitted home (directly to the breaker box) and provide power. Meaning, the automobile's power system acts as a power source to the home, removing the home from the grid at night, instead of the home adding an EV to the grid. With its 3-phase power, the FV can also be used to run a shop, an arc welder, other devices – anything a person might need a generator for and requires up to 220v connections.
Channel, Go-to-Market Strategy We expect to allow for thousands of Independent Dealers across the nation as well building models specifically for export. Associate dealerships offering other vehicles for sale will have the opportunity to display and retail our vehicles. We expect direct factory orders and detailed Internet orders to play a
Mealer Companies Confidential Disclosure Page 32 large part of our sales. A small portion of our market will come from showrooms, advertisers, celebrities and other alternative sales sources.
The interest for private dealerships has gained incredible feedback through discussions by Mealer business contacts and associates. We may offer exclusive dealerships while we are in the Pre-Mfg stage of Phase I to greatly increase Pre-Mfg sales revenue. Pre and Post Mfg sales may also be boosted through direct factory orders online. Channel Market Segmentation Target markets include Consumers, Expansion Companies, Industry Product Supply Houses, Retail Business, Independent Auto Sales Associates, Large Dealerships, and Construction Contractors. In addition, a substantial effort will be made in advertising to promote product appeal. Due to the sheer enormity of the combined benefits of our BV and FV automobiles our marketing program will be simple and to the point, thus very cost effective – these benefits speak for themselves.
This Channel portion of the business plan will actually be an entire business plan of its own and as such is still being developed for the US and foreign markets. Thus the pro forma financial analysis assumes a Direct Sales model for now with regard to Gross Margin and the Dealer Channel model is TBD. This entire portion of the business case is our secondary focus next to getting funded. We feel there is still plenty of time to work this out. See Next Steps section.
Many American jobs have been lost for the sake of profit margin and union rights. Mealer hopes to provide for both a reasonable increase in US jobs and a high profit margin. We also expect that with more Americans working in American manufacturing jobs, the faster the US economy may recover. More wealth in consumer's hands means higher sales for Mealer as well.
Mealer will focus its management efforts on the key components of Lean, Green, ROI, and Customer- and Industry-focused Innovation.
Mealer Companies hopes to inspire other US manufacturers to re-invest in this great nation.
Mealer Companies Confidential Disclosure Page 33 Next Steps (high level, many steps may take place in simultaneously)
Identify all location options and make a final selection.
Identify all funding options and make a final selection, most likely to be coupled with previous item.
Finalize team and begin planning.
Finish shoring up all intellectual property.
Identify all regional location options for manufacturing, assembly, distribution, and HQ and make a final selection.
Finalize Channel business case for go-to-market strategy.
Finalize facilities and engage in contracts. If necessary to build any location, then immediately move forward with a development SWAT team as quickly as possible.
Finalize Mealer key personnel team and form temporary or final HQ, set up shop.
Set up global logistics, operations, legal, R&D, approvals, and manufacturing teams.
Finalize industrial designs.
Engage with components and raw materials suppliers, place orders.
Establish lines at production facilities.
Hire a top Marketing firm, who will handle all corporate and product branding, campaign development, collaterals.
Hire a top PR firm, who will handle press engagements, PR campaigns, media training, investor relations, cooperate with Marketing firm in final formulation of marketing campaigns, positioning, and deliverables.
VI. Proposed Start-up Team Members
To reiterate the point, today’s U.S. unemployment rate has hit hard several sectors of the economy; and, one in particular is the U.S. automobile industry at all levels, channels and segments. Thus many key players are either out of work or looking for work with a company such as Mealer. The following information depicts a proposed organizational chart for the start-up team. Opportunity notwithstanding, some of these key players have provided Mealer with their resume, but for purposes of protecting their current jobs have requested that their information be kept confidential until funding is imminent. This section will provide a brief biographical sketch for each team member. Full resumes are to be found together in a separate file. Mealer is open to discussion on making changes to any team member. Also noted is the fact that not all positions are filled at this time. As funding approaches, such positions will be quickly filled.
Mealer Companies Confidential Disclosure Page 34 Start-up Team Bios (listed alphabetically)
Mark Bray, Research & Development 15 years progressive engineering experience with NASA (Space Shuttle), Boeing, Lockheed-Martin, Qualis. Expertise includes rocket motors, thermal protection systems, materials, airframe structures, and problem resolution. Education from BS Aerospace Engineering, Florida Tech and MBA, Operations Management, Rollins Crummer Graduate School, Winter Park, Florida.
Doug Brown, Site Development 40 years experience in commercial real estate development including raw land and commercial building as well as portfolio management. Served as president and vice president roles for many years. Educated at Central Washington State University, BSBA degree.
Francesco Borella, Web/Multimedia/Design 15 years experience in graphics, web design, multimedia and computer science. Recently added automotive design (freelance) to his skills. Education includes Computer Science Engineering, University of Padova, Italy. Languages include Italian, English, Spanish.
Ivan Botti, Research & Development 13 years experice engineering parts and systems for Porsche, Lamborghini, Maserati. Mechanical Engineering degree at Politecnico di Milano. Languages include Italian, English, French, German.
Mealer Companies Confidential Disclosure Page 35 Tom Carney, Chief Sales & Marketing Highly respected 25-year automotive industry veteran who previously held the post of Vice President of Sales and Marketing at American Suzuki Motor Corporation. Also held key executive leadership positions at American Honda Motor Corporation, Volkswagen of America and tier one supplier, Meridian Automotive Systems. While at Suzuki, Mr. Carney maintained 14 consecutive sales records ultimately achieving an annual sales record exceeding 100,000 vehicles. Education includes a BA in Marketing, Eastern Michigan University; an MBA from National University in California; and, additional graduate work in Strategic Management at the University of Chicago.
Gabriele Cossu, Industrial Design & Usability Recognized artist and consumer products designer with 7 years experience. Education includes BS degree Industrial Design, Politecnico di Torino, where he also worked on interior and dashboard designs for futuristic automobiles in partnership with Fiat Auto.
Tom Delano, Chief Engineer Seasoned, 36-year engineering veteran and chief engineer with majority of his experience through General Motors, Ford, and other automotive companies as related to interior and exterior design. Plastics specialty. Chief Body Engineer of GM’s Electric Vehicle. Substantial and proven experience leading engineering teams through successful projects, including 3 Motor Trend Magazine “Vehicle of the Year” awards. Military veteran with 22 years of service, Ret. Lt. Col. Michigan Air National Guard. Earned BS degree in Mechanical Engineering, majored in Plastic and Rubber Processing, General Motors Institute, Flint, Michigan.
Anthony Ferrante, Design and Surface Modeling Extensive automotive exterior and interior product, mold, alias, mechanism, component and tool design expert with 14-year career associated with major brands: GM, Hummer, Subaru, Opel, Chevy, Lear, Volvo and others. Educated with Plastics Mould/Product Design Technician Diploma, St. Clair College of Applied Arts & Technology, Windsor, Ontario, Canada and additional education certificates and training.
Steve Fowler, Product Management 15 years experience marketing major brands such as Coca-Cola, Iomega, Rexnord and others, including launching >20 new technology products related to hardware, software and web solutions. Provided the vision, marketing leadership, customer insight, and product strategy that launched an international division from start-up through maturity. Expert consumer researcher. Lean process expert. Danaher Business System trained. Earned MS degree, Northwestern University, Evanston, IL.
Edward Kowalski, Safety, Testing and Materials 20-year career serving in numerous high-level management and technical positions providing safety testing, product development, tooling, process and materials selection services to major brands GE, GM, Ford, Chrysler, Nissan, Honda, Toyota, Mercedes-Benz, Textron, TRW, Collins & Aikman and Sealy. Expert in thermoplastics, nonwovens, pyrotechnics and foam systems including tooling, process and material selection. Expert in advanced safety systems for the automotive and home furnishing industries. Expert in product validation including life cycle conditioning, vibration analysis and various destructive and non- destructive test methods. Additionally he is an expert in analyzing fire behavior of consumer products. Educated with MBA and BSEE.
Mealer Companies Confidential Disclosure Page 36 Mike Lash, Business Development, Internet and Dealerships 35-year sales and marketing veteran in the automotive and transportation industries, whose experience includes AMC, Iveco, Kia, Autobytel.com and others. Proven track record in meeting and exceeding sales objectives. Expert in internet lead generation for car sales and dealership marketing programs. BA degree International relations, University of Detroit.
Larry Michaels, Business Development, Dealerships Innovative professional with 27 years of progressive experience within the automobile sales industry and the skills to drive business growth, capitalize on new revenue potential and manage all aspects of daily business operations. Provides Mealer with a very solid understanding of the dealership business. Has served in executive management positions at very large dealerships and is experienced with virtually all market segments from economy to exotic. Associates degree, business and marketing, Rockland Community College, New York.
Krista Salas, Strategic Partnerships 16-year sales and marketing background primarily in the OEM navigation business. Excels in formulating and managing strategic partnerships as related to consumer and commercial electronics products. BA degree in Geology, Lawrence University, Appleton, WI.
Tomaso Sesselego, Design Exceptional automotive 3D modeler and sculptor, having designed several interior and exterior components and systems such as dashboards, seating, steering, roofs, front ends and wheels for brands such as Maserati, Fiat, Alfa Romeo, Nissan, Opel, BMW, Mercedes-Benz and Ferrari.
Mealer Companies Confidential Disclosure Page 37 APPENDIX
Mealer Companies Confidential Disclosure Page 38 Data Used for Mealer Forecast
Data for Forecast US Light Vehicle Sales US Sales US YTD Sales Full Year Estimated % Chg from % Chg from (Units) Apr-09 Apr-08 Apr'08 YTD 2009 YTD 2008 YTD 2008 2009** 2008 % Chg Cars 432,939 658,381 -34.24% 1,535,583 2389493 -35.70% 4,606,749 7,168,479 -35.74% Midsize 207,530 302,964 -31.50% 716,588 1,144,709 -37.40% 2,149,764 3,434,128 -37.40% Small 149,822 236,312 -36.60% 534,190 797,299 -33.00% 1,602,570 2,391,896 -33.00% Luxury 67,428 105,852 -36.30% 257,060 398,543 -35.50% 771,180 1,195,628 -35.50% Large 8,159 13,332 -38.80% 27,745 48,590 -42.90% 83,235 145,771 -42.90% Light-duty trucks 386,601 589,989 -34.47% 1,487,577 2436376 -38.90% 4,462,731 7,309,128 -38.94% Pickup 112,632 179,923 -37.40% 418,674 743,648 -43.70% 1,256,022 2,230,945 -43.70% Crossover 149,382 199,176 -25.00% 577,272 794,047 -27.30% 1,731,816 2,382,140 -27.30% Minivan 51,546 83,005 -37.90% 192,533 318,763 -39.60% 577,599 956,290 -39.60% Midsize SUV 29,216 63,238 -53.80% 135,989 305,593 -55.50% 407,967 916,780 -55.50% Large SUV 20,579 29,781 -30.90% 66,031 129,473 -49.00% 198,093 388,418 -49.00% Small SUV 15,262 19,872 -23.20% 65,328 80,851 -19.20% 195,984 242,554 -19.20% Luxury SUV 7,984 15,036 -46.90% 31,750 64,012 -50.40% 95,250 192,036 -50.40% Total SUV/Crossover 222,423 327,093 -32.00% 876,370 1,373,621 -36.20% 2,629,110 4,120,862 -36.20% Total SUV 73,041 127,918 -42.90% 299,098 579,647 -48.40% 897,294 1,738,942 -48.40% Total Crossover 149,382 199,176 -25.00% 577,272 794,047 -27.30% 1,731,816 2,382,140 -27.30% TOTAL UNITS SOLD 819,540 1,248,370 -34.35% 3,023,160 4,825,869 -37.36% 9,069,480 14,477,607 -37.36% Wall Street Journal, May 1, 2009 and www.MotorIntelligence.com **(Multiplied YTD 2009 x 3)
SUMMARY US Light Vehicle Sales US Sales US YTD Sales Full Year Estimated (Units) Apr-09 Apr-08 % Chg 2009 2008 % Chg 2009** 2008 % Chg Total Car 432,939 658,381 -34.24% 1,535,583 2,389,493 -35.74% 4,606,749 7,168,479 -35.74% Domestic Car 139,106 232,089 -40.06% 471,760 872,152 -45.91% 1,415,280 2,616,456 -45.91% Import Car 293,833 426,292 -31.07% 1,063,823 1,517,341 -29.89% 3,191,469 4,552,023 -29.89% Total Truck 386,601 589,989 -34.47% 1,487,577 2,436,376 -38.94% 4,462,731 7,309,128 -38.94% Domestic Truck 238,310 360,247 -33.85% 870,203 1,512,732 -42.47% 2,610,609 4,538,196 -42.47% Import Truck 148,291 229,742 -35.45% 617,374 923,644 -33.16% 1,852,122 2,770,932 -33.16% TOTAL UNITS SOLD 819,540 1,248,370 -34.35% 3,023,160 4,825,869 -37.36% 9,069,480 14,477,607 -37.36% Selling Days 26 26 101 102 303 306 Wall Street Journal, May 1, 2009 and www.MotorIntelligence.com **(Multiplied YTD 2009 x 3)
2009 Model Manufacturer’s Suggested Starting Price (averaged at bottom of table)
Small Small 4dr Midsize Green Small Crossover Truck Minivan Luxury SUV Large SUV Large Sedan Luxury Sedan Toyota Yaris Corolla Camry Prius Venza Tundra Crewmax Sienna Land Cruiser $ 12,200 15350 19395 22000 26000 29000 25000 65000
Honda Fit Civic Accord Civic Hybrid CR-V Ridgeline Odyssey 14750 15500 21000 23650 22000 28200 26355
VW Rabbit Jetta Passat Jetta TDI Tiguan Routan Touareg 2 TDI CC 16300 17500 28300 22700 23200 25200 42800 29000
GM (Dodge) Aveo Cobalt Impala Volt Equinox Silverado 2500 Caravan Escalade Suburban Lucerne STS V8 12600 15700 24600 39000 25000 28000 23500 65000 43000 31000 57000
Ford Focus Coupe Focus Fusion Fusion Hybrid Edge F-150 Flex Navigator Excursion Taurus Towncar 16400 15500 19270 27270 26650 23000 28550 52400 34150 25100 46300
Tesla Roadster Model S 101500 49900
Starting ASP (Average Starting Selling Price is averaged across all auto brands listed above by category. Excludes TESLA due to outlier pricing.) $ 14,450 15910 22513 26924 24570 27050 25721 56300 38575 28050 44100
Mealer Companies Confidential Disclosure Page 39 Premiums Paid for Hybrid Models Corolla Prius Premium Jetta Jetta TDI Premium $ 15,350 $ 22,000 $ 6,650 $ 17,500 $ 22,700 $ 5,200
Civic Civic Hybrid Premium Touareg 2 Touareg 2 TDI Premium $ 15,500 $ 23,650 $ 8,150 $ 39,300 $ 42,800 $ 3,500
Fusion Fusion Hybrid Premium Cobalt Volt Premium $ 19,270 $ 27,270 $ 8,000 $ 15,700 $ 39,000 $ 23,300
Mealer Companies Confidential Disclosure Page 40 Mealer Companies Confidential Disclosure Page 41 Mealer Companies Confidential Disclosure Page 42 Mealer Companies Confidential Disclosure Page 43 Revised J.D. Power & Associates 2009 Forecast
According to a revised report from J.D. Power and Associates, automakers will sell just 10 million cars and trucks in the U.S. this year, making 2009 the worst year in more than three decades. In a previous study, J.D. Power had predicted that total new light-vehicle sales in the USA in 2009 would reach 10.4 million units. The renowned forecaster said that the revision was driven primarily by a projected reduction in retail sales of 230,000 units to total 8.3 million units in 2009, as well as by expected reductions in fleet sales.
"While there are some signs of stability in the automotive market, current sales rates indicate that achieving recovery will not be a quick proposition," said Gary Dilts, senior vice president of J.D. Power's automotive operations.
The forecaster said that while the rate of decline in new-vehicle retail sales in the U.S. slowed down in May compared to the previous 12 months,
Mealer Companies Confidential Disclosure Page 44 consumer uncertainty has led to a flattening of sales with the company now projecting a delay in market recovery of two to three months beyond the spring selling season.
"We remain optimistic that the fundamentals will continue to improve and that we will see an uptick during the summer sales season, which will help the industry stabilize further and help build consumer confidence," said Dilts.
But while it may take a while for the United States to recover, J.D. Power has revised upwards its volume forecasts for global auto sales. "As major international automotive markets continue their recovery, we have increased our outlook for 2009 global light-vehicle sales to 58.6 million units, from 57.5 million units forecasted in March," said Jeff Schuster, executive director of global forecasting at J.D. Power.
Source: J.D. Power, 5/2009
Mealer Companies Confidential Disclosure Page 45 EXHIBIT #8 Mealer Companies LLC funding website from link made in capital letters “WHAT WE ARE REALLY ABOUT” which is page #2. that Mr. Kordella and GM Corp employees were concurrently going back and forth to as a reference while committing intentional tortious interference through their postings of injurious falsehoods. 1 of 2 EXHIBIT #8 Mealer Companies LLC funding website from link made in capital letters “WHAT WE ARE REALLY ABOUT” which is page #2. that Mr. Kordella and GM Corp employees were concurrently going back and forth to as a reference while committing intentional tortious interference through their postings of injurious falsehoods. 2 of 2 EXHIBIT “9” (Page 1 of 5)
Number of Entries: 26 Entry Page Time: 9th June 2009 10:55:18 Visit Length: 37 mins 33 secs Browser IE 7.0 OS WinXP Resolution 1280x1024
Returning Visits: 0 Location: Bloomfield Hills, Michigan, United States IP Address: General Motors Corporation (198.208.251.24) *GM's Kris Kordella [Edit Label] (*PLAINTIFF'S LABEL, NOT FROM STATCOUNTER) Entry Page: mealercompanies.com/ Exit Page: mealercompanies.com/?p=89 Referring URL: No referring link
*((WRITING WITH “*” DENOTES MEALER'S NOTES VIA STATCOUNTER LABELS AND OTHER EXPLANATORY DETAILS.))
VISITOR ANALYSIS Referrer No referring link Host Name IP Address 198.208.251.24 *GM's Kris Kordella's area [Edit Label] Country United States Region Michigan City Bloomfield Hills ISP General Motors Corporation Returning Visits 0 Visit Length 37 mins 33 secs VISITOR SYSTEM SPECS
Browser IE 7.0 Operating System WinXP Resolution 1280x1024 Javascript Enabled
Navigation Path Date 9th June 2009 Time 10:55:18 Type Page View WebPage No referring link mealercompanies.com/
9th June 2009 10:56:24 Page View mealercompanies.com/ mealercompanies.com/?page_id=5
9th June 2009 10:56:50 Page View www.autonews.com/apps/pbcs.dll/article?AID=/20090609/ANA02/906099989/1178 mealercompanies.com/ Exhibit “9” ( Page 2 of 5) 9th June 2009 10:57:27 Page View mealercompanies.com/ mealercompanies.com/?p=48
9th June 2009 10:58:48 Page View mealercompanies.com/?page_id=5 mealercompanies.com/?cat=1
9th June 2009 10:59:17 Page View mealercompanies.com/?page_id=5 mealercompanies.com/?cat=1
9th June 2009 10:59:23 Page View mealercompanies.com/?cat=1 mealercompanies.com/?page_id=2
9th June 2009 10:59:38 Page View mealercompanies.com/?page_id=2 mealercompanies.com/?page_id=5 9th June 2009 10:59:39 Page View mealercompanies.com/?page_id=5 mealercompanies.com/ 9th June 2009 11:00:21 Page View mealercompanies.com/?p=48 mealercompanies.com/?p=74 9th June 2009 11:29:31 *((THIS IS WHEN MR. KORDELLA SIGNED UP AS “MONEY01” INVESTOR BLOG AND ENTRY DATE FOR KRIS KORDELLA)) Page View mealercompanies.com/wp-admin/post.php?action=edit&post=89&message=6 mealercompanies.com/?p=89 9th June 2009 11:30:24 Page View mealercompanies.com/?p=89 mealercompanies.com/ 9th June 2009 11:30:37 Page View mealercompanies.com/ mealercompanies.com/?page_id=5 9th June 2009 11:30:47 Page View mealercompanies.com/?page_id=5 mealercompanies.com/?page_id=2 9th June 2009 11:31:01 Page View mealercompanies.com/?page_id=2 Exhibit “9” ( Page 3 of 5) mealercompanies.com/?cat=1 9th June 2009 11:31:03 Page View mealercompanies.com/?cat=1 mealercompanies.com/?page_id=5 9th June 2009 11:31:28 Page View mealercompanies.com/?page_id=5 mealercompanies.com/?cat=1 9th June 2009 11:31:30 Page View mealercompanies.com/?cat=1 mealercompanies.com/?cat=1 9th June 2009 11:31:30 Page View mealercompanies.com/?cat=1 mealercompanies.com/?cat=1 9th June 2009 11:31:30 Page View mealercompanies.com/?cat=1 mealercompanies.com/?cat=1 9th June 2009 11:31:38 Page View mealercompanies.com/?cat=1 mealercompanies.com/?cat=1 9th June 2009 11:32:00 Page View mealercompanies.com/?cat=1 mealercompanies.com/ 9th June 2009 11:32:12 Page View mealercompanies.com/ mealercompanies.com/?page_id=5 9th June 2009 11:32:33 Page View mealercompanies.com/?page_id=5 mealercompanies.com/?p=1 9th June 2009 11:32:38 Page View mealercompanies.com/?p=1 mealercompanies.com/?p=35 9th June 2009 11:32:51 Page View mealercompanies.com/?p=35 mealercompanies.com/?p=89
*FOLLOWING ARE EXAMPLES of various IP addresses from within General Motors Corporation via GMAC stored ISP, other than Mr. Kordella's GM IP address simultaneously with Mr. Kordella as noted within this printed “statcounter” document.
Number of Entries: 4 Entry Page Time: 9th June 2009 10:49:37
Exhibit “9” ( Page 4 of 5) Visit Length: 7 mins 22 secs
VISITOR ANALYSIS Referrer http://www.autonews.com/apps/pbcs.dll/article?AID=/20090609/ANA02/906099989/1178 Host Name IP Address 198.208.251.23 [Joseph Burgel] [Label IP Address] Country United States Region Michigan City West Bloomfield ISP General Motors Corporation Returning Visits 0 Visit Length 7 mins 22 secs VISITOR SYSTEM SPECS Browser IE 7.0 Operating System WinXP Resolution 1280x1024 Javascript Enabled
Navigation Path Date 9th June 2009 Time 10:51:27 Type WebPage www.autonews.com/apps/pbcs.dll/article?AID=/20090609/ANA02/906099989/1178 10:49:37 Page View mealercompanies.com/ Page View mealercompanies.com/ mealercompanies.com/?p=74 9th June 2009
10:56:48 Page View www.autonews.com/apps/pbcs.dll/article?AID=/20090609/ANA02/906099989/1178 mealercompanies.com/ 9th June 2009 10:56:59 Page View mealercompanies.com/ mealercompanies.com/?p=35 Number of Entries: 4 Entry Page Time: 9th June 2009 10:22:21 Visit Length: 4 mins 9 secs Browser IE 7.0
OS WinXP Resolution 1280x1024 Returning Visits: 0 Location: Farmington, Michigan, United States IP Address: General Motors Corporation (198.208.251.22) [Christy Garwood] Entry Page: mealercompanies.com/ Exit Page: mealercompanies.com/?page_id=5 Referring URL: No referring link
Exhibit “9” ( Page 5 of 5)
VISITOR ANALYSIS Referrer No referring link Host Name
IP Address 198.208.251.22 [Label IP Address] Country United States Region Michigan City Farmington ISP General Motors Corporation Returning Visits 0 Visit Length 4 mins 9 secs VISITOR SYSTEM SPECS
Browser IE 7.0 Operating System WinXP Resolution 1280x1024 Javascript Enabled
Navigation Path Date 9th June 2009 Time 10:22:21 Type Page View WebPage No referring link 9th June 2009 10:22:21 Page View mealercompanies.com/ mealercompanies.com/ No referring link mealercompanies.com/ 9th June 2009 10:23:04 Page View mealercompanies.com/?page_id=2 mealercompanies.com/?page_id=5 9th June 2009 10:26:30 Page View mealercompanies.com/?page_id=2 mealercompanies.com/?page_id=5
EXHIBIT 11 This respondent's June 11th, 2009 emailed to GM Stockholders at the fill in forms located on the following pages linked directly from the General Motors Corporation, corporate website: “http://www.gm.com/corporate/investor_information/contact/” and “http://www.gmacfs.com/us/en/about/investor/contact.html” and “http://www.gmacfs.com/us/en/personal/automotive/index.html” the following letter (as cut and pasted into their form w/typos, no less) to General Motors Corporation & GMAC regarding the comments left on MealerCompanies.com website by employee/agent Mr. Kordella.
To Whom It may Concern;
A member of your Senior Engineering staff has posted LIBEL directly on my company Word Press website in an attempt to defame myself and my company.
He did irreversible harm. I have absolute proof. This individual refuses to offer an apology and recant his rude and harmful comments.
I demand an apology or I will make an effort to recover the damages done through your company for uncalled for attack you Senior Engineer created with this posting.
I run a fledgling automaker company (Mealer Companies LLC). We have patents filed for our disruptive technologies and are shopping our proforma.
GM commited serious libel in your attack against me and Mealer Companies LLC.
Definition of libel:
An untruthful statement about a person, published in writing or through broadcast media, that injures the person's reputation or standing in the community. Because libel is a tort (a civil wrong), the injured person can bring a lawsuit against the person who made the false statement. Libel is a form of defamation , as is slander (an untruthful statement that is spoken, but not published in writing or broadcast through the media).
The ball is in play, and it's your turn to respond.
Yes, I realize I contacted the Stockholder Services with this issue.
Thank you.
JL Mealer http://mealercompanies.com
11 June 2009 http://mealercompanies.com/?p=587 February 2010 Update for Mealer Companies as presented to the public and finally presenting the issue as placed upon JL Mealer by GM and GMAC. 1 of 2 Exh. #12 http://mealercompanies.com/?p=587 February 2010 Update for Mealer Companies as presented to the public and finally presenting the issue as placed upon JL Mealer by GM and GMAC. 2 of 2 Exh. #12 Exhibit #13, Edward Whitacre information 1 of 10 Exhibit #13, Edward Whitacre information 2 of 10 Exhibit #13, Edward Whitacre information 3 of 10 Exhibit #13, Edward Whitacre information 4 of 10 Exhibit #13, Edward Whitacre information 5 of 10 Exhibit #13, Edward Whitacre information 6 of 10 Exhibit #13, Edward Whitacre information 7 of 10 Exhibit #13, Edward Whitacre information 8 of 10 Exhibit #13, Edward Whitacre information 9 of 10 Exhibit #13, Edward Whitacre information 10 of 10 Exhibit #14 Presidential Remakrs on GM and Auto Industry, strategy session... 1 of 6 Exhibit #14 Presidential Remakrs on GM and Auto Industry, strategy session... 2 of 6 Exhibit #14 Presidential Remakrs on GM and Auto Industry, strategy session... 3 of 6 Exhibit #14 Presidential Remakrs on GM and Auto Industry, strategy session... 4 of 6 Exhibit #14 Presidential Remakrs on GM and Auto Industry, strategy session... 5 of 6 Exhibit #14 Presidential Remakrs on GM and Auto Industry, strategy session... 6 of 6
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ------x : In re : Chapter 11 Case No. : GENERAL MOTORS CORP., et al., : 09-50026 (REG) : Debtors. : (Jointly Administered) : ------x
ORDER PURSUANT TO 11 U.S.C. §§ 105, 362, 363, 364(b), 364(e), 365 AND 503(b) AND FED. BANKR. P. RULES 2002, 4001, 6003, 6004 AND 9014(1), AUTHORIZING THE DEBTORS TO ENTER INTO, AND APPROVING, RATIFICATION AGREEMENT WITH GMAC LLC (THE “RATIFICATION ORDER”)
Whereas, the Court has before it the Motion (the “Motion”)1 of General Motors
Corporation (“GM” or the “Debtor”) and its affiliated debtors, each as debtors and debtors-in-
possession (collectively, the “Debtors”), in the above-captioned case (the “Cases”), seeking,
among other things, authorization to enter into, and approval of, that certain Ratification
Agreement entered into between GM and GMAC LLC and certain of its affiliates (collectively,
“GMAC”), made as of June 1, 2009 (the “Ratification Agreement”), pursuant to Sections 105,
362, 363, 364(b), 364(e), 365 and 503(b) of Title 11 of the United States Code, 11 U.S.C. §§
101, et seq. (the “Bankruptcy Code”), and Rules 2002, 4001, 6003, 6004 and 9014(1) of the
Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”) and Rules 4001-2 and 9014-2
of the Local Rules for the United States Bankruptcy Court for the Southern District of New York
(the “Local Rules”); and
1 Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to such terms in the Motion or where applicable the Ratification Agreement.
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Whereas, the inter-related transactions and dealings between the Debtors, on the one
hand, and GMAC, on the other hand, contribute significantly to the success of the Debtors and
GMAC, usually generating efficiencies and enhanced results for each of them, including
business opportunities and referrals, data and resource sharing, economies of scale, leveraging
staff expertise, and administrative conveniences, all of which combined, result in highly valuable and significant organizational, operational, business and financial synergies; and
Whereas, GM and GMAC entered into that certain Master Services Agreement, dated as of November 30, 2006 (as amended, supplemented and otherwise modified prior to May 22,
2009, the “Original MSA”) which, among other things, integrated and supplemented certain agreements under which the parties have provided various services and financial accommodations to one another as set forth therein, including, the terms and conditions more specifically set forth in the Specified Integrated Agreements (as defined therein); and
Whereas, on December 24, 2008, in connection with the conversion of GMAC Bank, a wholly owned subsidiary of GMAC, from a Utah industrial loan company to a Utah commercial bank, the Board of Governors of the Federal Reserve System approved the application of GMAC to become a bank holding company under Section 3 of the Bank Holding Company Act of 1956, as amended. Pursuant to a letter agreement entered into between GM and GMAC, dated as of
December 29, 2008 (the “Letter Agreement”), in connection with the approval, GM and GMAC agreed to amend and restate the Specified Integrated Agreements, including the Original MSA, in accordance with the terms set forth in the Letter Agreement; and
Whereas, to document more formally the terms set forth in the Letter Agreement, the parties entered into that certain Amended and Restated Master Services Agreement dated as of
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May 22, 2009, and made effective as of December 29, 2008 (the “MSA”),2 to, inter alia,
memorialize certain modifications to the existing contractual arrangements and other business
and financial course of dealings, which, together with the amendment of certain of the Specified
Integrated Agreements (as defined and identified in the MSA, the “Specified Integrated
Agreements”), and all implementing agreements arising under or relating to any of the Specified
Integrated Agreements (the “Implementing Agreements”), (the MSA, the Specified Integrated
Agreements and the Implementing Agreements, as such agreements have heretofore or may hereafter be amended, modified and supplemented, collectively referred to as the “MSA
Documents”); and
Whereas, there are other existing contractual arrangements between the Debtors and
GMAC that memorialize the ordinary course of business, financial and operating arrangements between the parties (collectively, as the same may be amended, modified and supplemented from time to time, the “Other Agreements,” and, together with the MSA Documents, the “Operative
Documents”); and
Whereas, GMAC has the right to seek the entry of an order of the Court compelling the
Debtors to immediately assume or reject the Operative Documents and to refrain from providing any financial accommodations to or for the benefit of the Debtors thereunder, but has agreed to refrain from exercising such rights in consideration of the Debtors entering into the Ratification
Agreement subject to the entry of this Order; and
Whereas, entry into the Ratification Agreement and continuation of the Operative
Documents during the period from the date of filing of the Cases (the “Commencement Date”)
2 Contemporaneously with the filing of the Motion, the Debtors have filed a joint motion with GMAC requesting authority to file under seal the MSA and certain of the other main Operative Documents.
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until (i) the closing of the Sale pursuant to the Sale Order (as each of those terms are defined
below) or (ii) an event of termination occurs as set forth in Paragraph 12 below (the “Interim
Period”), are essential to the continued operation of the Debtors’ businesses and in the best interests of the Debtors’ estates, creditors, and other parties in interest, for reasons including, among others, that the agreements at issue (a) are critical to the Debtors’ ability to continue to operate their businesses as a going concern, both from the perspective of their ability to sell vehicles on a wholesale basis to their Dealers (as defined below) and for such Dealers to sell the
Debtors’ vehicles on a retail basis to their customers, and (b) are consistent with the long standing contractual arrangements under which the parties have conducted their businesses over the past many years in the ordinary course; and
Whereas, upon the Affidavit of Frederick A. Henderson Pursuant to Local Bankruptcy
Rule 1007-2, dated June 1, 2009 (the “Henderson Affidavit”), the record of the hearing and all of the proceedings had before the Court (the “Hearing”), it appears that no alternative source of wholesale or retail financing is available to the Debtors to replace, at the levels required, the critical and necessary financing provided by GMAC under the Operative Documents; and
Whereas, it further appears that (i) this Court has jurisdiction over this matter pursuant to
28 U.S.C. §§ 157 and 1334 and the Standing Order M-61 Referring to Bankruptcy Judges for the
Southern District of New York of Any and All Proceedings Under Title 11, dated July 10, 1984
(Ward, Acting C.J.), (ii) this proceeding is a core proceeding pursuant to 28 U.S.C. § 157(b)(2), and (iii) venue is proper in this District pursuant to 28 U.S.C. §§ 1408 and 1409; and
Whereas, no previous application has been made, and after limited notice appropriate under the circumstances and Hearing, and due deliberation and sufficient cause appearing therefore,
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IT IS HEREBY FOUND, ORDERED, ADJUDGED AND DECREED THAT:
1. Jurisdiction: This Court has core jurisdiction over the Cases, this Motion, and the parties and property affected hereby pursuant to 28 U.S.C. §§ 157(b) and 1334. Venue is proper before this Court pursuant to 28 U.S.C. §§ 1408 and 1409.
2. Notice: The notice given by the Debtors of the Motion and the Hearing constitutes appropriate and sufficient notice under the circumstances and complies with
Bankruptcy Rules 4001(a), (c) and 6003(b).
3. Findings Regarding the Ratification Agreement:
(a) Good cause has been shown for the entry of this Order and the relief
requested in the Motion is hereby granted.
(b) The Debtors have an immediate need to continue their respective pre-
petition financial and operating arrangements with GMAC pursuant to the terms set forth in
the Operative Documents in order to, among other things, (i) permit the orderly continuation
of the operation of their businesses, (ii) maintain business relationships, suppliers, wholesale
dealerships and customers, (iii) provide their dealers (the “Dealers”) with certain financing
and services, including, but not limited to, (A) new and used vehicle inventory financing, (B)
capital loans, (C) equipment loans, (D) real estate loans, (E) dealer insurance products and
services, (F) remarketing services, and (G) electronic cash and drafting settlement systems
(collectively, the “Dealer Financing”), (iv) provide certain retail financing to the Debtors’
and the Dealers’ fleet and retail customers (the “Customers”), including, but not limited to,
(A) consumer retail financing, (B) commercial retail financing, and (C) commercial fleet
financing (collectively, the “Retail Financing”), (v) obtain unsecured credit from GMAC,
and (vi) perform such other and further acts as may be contemplated by, or required in
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connection with, the Operative Documents. The Debtors’ continued access to funding,
financial arrangements, credit extensions and other arrangements provided under or enabled
by the Operative Documents is vital to the preservation and maintenance of the going
concern values of the Debtors. The Debtors have demonstrated their need to obtain post-
petition financing pursuant to Bankruptcy Code Section 364 and Bankruptcy Rule 4001(c).
(c) The Operative Documents are necessary to ensure the continued on-going
business of the Debtors.
(d) The Debtors and GMAC negotiated and entered into the Operative
Documents and Ratification Agreement in good faith, at arm’s length and without collusion.
GMAC is a “good faith” lender within the meaning of Section 364(e) of the Bankruptcy
Code.
(e) The Debtors entering into the Ratification Agreement reflects the Debtors’
exercise of prudent business judgment and is consistent with their fiduciary duties.
(f) The Debtors have requested entry of this Order pursuant to Bankruptcy
Rules 4001(c)(2) and 6003(b). The Debtors have demonstrated that, absent granting the
relief sought by this Order, the Debtors’ estate will be immediately and irreparably harmed.
Entry into the Ratification Agreement and continuation of the Operative Documents is
therefore in the best interest of the Debtors’ estates and essential to a successful
reorganization. Pursuant to Bankruptcy Rule 6004(h), this Order shall be immediately
effective and enforceable upon its entry.
4. Authorization to Enter into the Ratification Agreement: Pursuant to Sections 363,
364(b) and 365 of the Bankruptcy Code, the Ratification Agreement is hereby approved in all respects and the Debtors are authorized to perform their obligations arising under the Ratification
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Agreement and Operative Documents during the Interim Period. As provided in the Ratification
Agreement, the Debtors are authorized and directed to continue their prepetition financial and
operating agreements and arrangements with GMAC pursuant to the terms set forth therein and
in the Operative Documents.
(a) In furtherance of the foregoing and without further approval of this Court,
each Debtor is authorized during the Interim Period to perform all acts, to make, execute and
deliver all instruments and documents (including, without limitation, the execution or
recordation of security agreements, mortgages and financing statements), and to pay all fees,
that may be reasonably required or necessary for the Debtors’ performance of their
obligations under the Ratification Agreement and Operative Documents, including, without
limitation:
(i) The execution, delivery and performance during the Interim Period
of the Ratification Agreement and Operative Documents, including any exhibits attached
thereto, and any amendments, modifications and supplements thereunder, as may be
required; and
(ii) The performance during the Interim Period of all other acts
required under or in connection with the Ratification Agreement and Operative
Documents, subject to Paragraph 7 below.
(b) The automatic stay of Section 362(a) of the Bankruptcy Code is hereby
modified to the extent (but only to the extent) necessary to enable the counter-parties to the
Ratification Agreement and Operative Documents to participate in, perform their obligations,
exercise their rights and take actions in accordance with those agreements, subject to
Paragraph 7 below.
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(c) To the extent arising, accruing, payable or incurred during the Interim
Period, the Debtors’ obligations under the Ratification Agreement and Operative Documents
shall constitute administrative expense claims pursuant to Section 503(b) of the Bankruptcy
Code which shall be paid in the ordinary course of business in accordance with the
provisions of the Ratification Agreement and Operative Documents.
(d) No payments made by the Debtors during the Interim Period pursuant to
and in accordance with the Ratification Agreement and Operative Documents, except to the
extent provided under the Operative Documents, shall be (i) stayed, restrained, voidable, or
recoverable under the Bankruptcy Code or under any applicable law (including, without
limitation, under Section 502(d) of the Bankruptcy Code), or (ii) subject, in whole or in part,
to any discharge, defense, reduction, setoff, recoupment, avoidance, disgorgement,
counterclaim, or similar claim by the Debtors and their estates, which are hereby
unconditionally waived and released by the Debtors and their estates.
5. Conditions on the Ratification Agreement and Operative Documents: As provided in Paragraph 4 above, during the Interim Period, the Ratification Agreement and
Operative Documents shall continue in full force and effect between the parties in accordance with their terms, subject to the following requirements:
(a) At the hearing (the “Sale Hearing”), to approve the sale of all, or
substantially all, of the Debtors’ assets (the “Sale”), the Debtors shall seek an Order (the
“Sale Order”) pursuant to Section 365(a) of the Bankruptcy Code which provides for,
among other things, (x) the full assumption by the Debtors and their assignment to and
assumption by the Purchaser (as defined in the Ratification Agreement) of the Operative
Documents and the Pre-Petition Obligations under the Operative Documents pursuant to,
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inter alia, Section 365 of the Bankruptcy Code, and (y) the full release by the Debtors, their
successors and assigns, and the Debtors’ estates in favor of GMAC, as set forth in Section
5.2 of the Ratification Agreement.
(b) The Debtors’ shall maintain warranty programs of new and used vehicles
during the Interim Period in accordance with the Debtors’ ordinary course of business
practices prior to the Commencement Date, and the Debtors shall seek an Order of this Court
authorizing the Debtors to continue to perform under their pre-petition warranty coverage
with respect to new and used vehicles sold prior to the Commencement Date as well as with
respect to new and used vehicles sold after the Commencement Date.
6. Priority of Obligations: At all times during the Interim Period, pursuant to
Sections 364(b) and 503(b)(1) of the Bankruptcy Code, to the extent deemed necessary or applicable, all of the Debtors’ obligations to GMAC, to the extent arising, accruing, payable or incurred during the Interim Period in the ordinary course, including, without limitation, claims for exposure reduction payments under Section 4 of the MSA, pursuant to the Operative
Documents, shall constitute allowed administrative expense claims against the Debtors including, without limitation, all obligations of GM to GMAC arising under any vehicle repurchase agreement that (i) becomes due and payable during the Interim Period or (ii) becomes due and payable after the Interim Period with respect to a vehicle with an invoice date or GMAC floorplan advance date prior to the end of the Interim Period.
7. Setoff: GMAC’s setoff rights against obligations owed by the Debtors to GMAC on the Commencement Date or during the Interim Period, arising under the Operative
Documents shall be preserved; provided, however, that during the Interim Period GMAC is prohibited from exercising any setoff rights under the Operative Documents without first
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obtaining an order from the Court authorizing their right to setoff. Further, GMAC shall provide at least three (3) business days notice to the Debtors, the other notice parties listed in Paragraph
13 below and the attorneys of any official committees formed in the Cases before seeking any such order from the Bankruptcy Court, provided that, during such period, GMAC shall not, to the extent of the amounts sought to be setoff, be required to make any payments otherwise due the Debtors or provide loans, advances, other financial accommodations or other extensions of credit to the Debtors during such period.
8. Preservation of Rights Granted Under the Order:
(a) Nothing contained herein shall limit GMAC’s right to request adequate
protection.
(b) If an order dismissing or converting any of the Cases under Section 1112
of the Bankruptcy Code or otherwise is at any time entered, this Order shall be binding on the
Chapter 7 trustee appointed by the Court.
(c) If any of all of the provisions of this Order are hereafter reversed,
modified, vacated or stayed, such reversal, stay, modification or vacatur shall not affect (i)
the validity of any payments made or obligations of the Debtors arising, accruing, or incurred
in favor of or payable to GMAC pursuant to the Operative Documents during the Interim
Period, (ii) the validity or enforceability of the obligations of the Debtors to GMAC which,
as provided in Paragraph 6 above, shall be treated as administrative expense claims, or (iii)
GMAC’s entitlement to all of the rights, remedies, privileges and benefits granted in Section
364(e) of the Bankruptcy Code, this Order and/or pursuant to the Ratification Agreement
and/or Operative Documents, to the extent applicable.
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(d) Neither the Motion nor this Order shall itself be deemed to constitute a
post-petition assumption by the Debtors of the Operative Documents pursuant to section 365
of the Bankruptcy Code.
9. Governing Law: Except to the extent that the Bankruptcy Code applies, the
Ratification Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York, excluding any conflict of law provisions which would require applications of laws of another state.
10. Order Governs: In the event of any inconsistency between the provisions of this
Order and the Ratification Agreement and/or Operative Documents, the provisions of this Order shall govern.
11. Binding Effect; Successors and Assigns This Order, including all findings herein, shall be binding upon all creditors and parties in interest in these Cases, including, without limitation, the DIP Lenders, any Committee appointed in these Cases, the Debtors and their respective successors and assigns (including any estate representative or any Chapter 7 or
Chapter 11 trustee hereinafter appointed or elected for the estate of any of the Debtors) and shall inure to the benefit of GMAC, and the Debtors and their respective successors and assigns; provided, however, that GMAC shall have no obligation to perform under any of the Operative
Documents or to permit the use of any financing, continue any financial arrangement or extend any financing or credit to any Chapter 7 trustee or similarly responsible person appointed for the estates of the Debtors.
12. Termination: The Interim Period shall terminate if any of the Events of Default as set forth in the Ratification Agreement occur, unless otherwise agreed to by the Debtors and
GMAC.
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13. Notice: The Debtors shall promptly mail copies of this Order, to the extent that
ECF notice is not sufficient to (i) the Office of the United States Trustee for the Southern District of New York, (ii) the attorneys for the U.S. Treasury, (iii) the attorneys for EDC, (iv) the attorneys for the agent under GM’s prepetition secured term loan agreement, (v) the attorneys for the agent under GM’s prepetition amended and restated secured revolving credit agreement,
(vi) the holders of the fifty largest unsecured claims against the Debtors (on a consolidated basis), (vii) the attorneys for the UAW, (viii) the attorneys for the International Union of
Electronic, Electrical, Salaried, Machine and Furniture Workers—Communications Workers of
America, (ix) the United States Department of Labor, (x) the attorneys for the National
Automobile Dealers Association, and (xi) the attorneys for the ad hoc bondholders committee, and (xii) Otterbourg, Steindler, Houston & Rosen, P.C., 230 Park Avenue, New York, New
York, 10169 (Attn.: Daniel Wallen, Esq., Jonathan N. Helfat, Esq. and Steven B. Soll, Esq.), attorneys for GMAC.
Dated: New York, New York June 1, 2009
S/ Robert E. Gerber UNITED STATES BANKRUPTCY JUDGE
A:\MOTION TO APPROVE RATIFICATION AGREEMENT (FINAL).DOC 12 EXHIBIT 17 (1 of 5) Screen captures from Statcounter EXHIBIT 17 (2 of 5) Screen captures from Statcounter EXHIBIT 17 (3 of 5) Screen captures from Statcounter EXHIBIT 17 (4 of 5) Screen captures from Statcounter and recent website update EXHIBIT 17 (5 of 5) Screen captures from Statcounter and recent website update EXHIBIT 18 (1 of 3 pages)
These emails are concerning the visits from Weil, Gotchal & Manges LLP on June 9th, 10th, 2010 prior to the more recent visits and examples in Screen Capture Ex. 17. Statcounter limitations allow only modified screen capture for attached as Exhibit 19 [_SC_LogSvd[2-22-11]). EXHIBIT 18 (2 of 3) EXHIBIT 18 (3 of 3) EXHIBIT 19 (8 pages)
(Exhibit #20) General Motors Corp selected Liberty Alliance and Oracle to maintain employee security access to the GMC-20 ISP stored and maintained at 200 Renaissance Center, Detroit, MI (The GMAC Headquarters Bld), and as detailed within these exhibits provide for private-corporate access both at work and at home under the same secured GM or GMAC employee ID. 1 of 4 Exhibit #20 2 of 4 Exhibit #20 3 of 4 Exhibit #20 4 of 4 (Exhibit #21) General Motors Corp selects Oblix who was formed from Liberty Alliance and Oracle to maintain employee security access to the GMC-20 ISP stored and maintained at 200 Renaissance Center, Detroit, MI (The GMAC Headquarters Bld), and as detailed within these exhibits provide for private-corporate access both at work and at home under the same secured GM or GMAC employee ID. 1 of 3 Exhibit #21 2 of 3 Exhibit #21 3 of 3 WWW .PROJECTLIBER TY.OR G
Case Study: GM DRIVES FEDERATED IDENTITY
The Company General Motors Corp. (NYSE: GM), the world’s largest automaker, has been the global industry sales leader for 75 years. Founded “We believe that federation is in 1908, GM today employs about 327,000 people around the going to become a mandatory part world. With global headquarters in Detroit, GM manufactures its cars and trucks in 33 countries. In 2005, 9.17 million GM cars of doing business on the Web. and trucks were sold globally under the following brands: Buick, Cadillac, Chevrolet, GMC, GM Daewoo, Holden, HUMMER, For the consumer, it makes their life Opel, Pontiac, Saab, Saturn and Vauxhall. GM operates one of so much easier by reducing the the world’s leading fi nance companies, GMAC Financial Services, which offers automotive, residential and commercial fi nancing need for multiple IDs and passwords. and insurance. GM’s OnStar subsidiary is the industry leader in Federation is also attractive because vehicle safety, security and information services. More information on GM can be found at www.gm.com it provides a way to maintain privacy and secure identity. With all Challenge As a large manufacturer, GM continually looks for ways to the problems around ID theft, this reduce cycle times, improve employee, partner, and customer is very important.” satisfaction, and more tightly integrate business processes. But for a large organization dealing with literally hundreds of environments, identity management has loomed as an John Jackson enormous technical and business issue. In the mid-nineties, Director of Software Technology GM knew they needed to address this mission-critical issue of identity management. GM
Application B2E2B
Starting Up the Liberty Alliance
Technology matters were complicated by the fact there was no de facto standard for identity management across multiple platforms. That’s why GM and fourteen other organizations founded the Liberty Alliance and went on to develop and deliver specifi cations for federated network identity. “General Motors joined Liberty Alliance because we believed that it was important for the industry to have some choice in the technology around identity management,” said John Jackson, GM’s director of software technology. “We never believed that a single provider—regardless of whether it was the federal government, Microsoft, or a large bank—would be able to serve the entire Internet. It was important to us that multiple identity providers be able to work together.”
Why Federation Makes Sense
“Federated identity” is still a relatively new term in the e-marketplace. When organizations use industry standards and specifi cations to establish “Circles of Trust” among trading partners, they are acting as a federation. Federated identity management allows a user to sign on once, and visit multiple Web sites, without having to go through the authentication or authorization process again and again. In most cases, the user allows each Web site or federation member to maintain and control their profi le separately, versus a centralized management approach where one authority controls and disseminates the user’s information as requested. Users are also provided with more control over their personal information and can chose which accounts they want to federate (link). WWW .PROJECTLIBER TY.OR G
GM Deploys Liberty Specifi cations in Employee Intranet Defi nition of Terms
GM is currently testing the Liberty federated specifi cations within its Identity (n) 1. The most basic employee Intranet, called MySocrates. MySocrates provides access to element in a high value relationship. 2. many of the outsourced HR services that GM employees receive including The individual characteristics by which health benefi ts and 401(k) plans. “While MySocrates has always offered a person, business, business partner, government agency or other entity is central access to these services, our employees had to log in and recognized or known. authenticate themselves each time they accessed an individual service. It was time-consuming and onerous,” said John Jackson. “Our goal was Single sign-on (n) 1. having the to make access more seamless and effi cient for our employees—but at capability of accessing an online the same time, protect their privacy. As you can imagine, most people system once and having that authentication honored by other wouldn’t want to share the same password and profi le with their 401(k) system entities, often service providers provider and healthcare provider. Federation makes this employee control possible.” Identity Provider (IdP) (n) 1. a service that authenticates identity, often a trusted party such as a bank, mobile operator or an Internet Service Provider (ISP).
Service Provider (IsP) (n) User 1. a federation partner that Employee App Portal Server provides services to an end user. Service providers typically do not authenticate users but instead request Liberty authentication decisions from an IdInetenrntei t y identity provider. Services Federation (n) 1. an association comprising of any number of service providers or organizations 2. a model based upon trust in which Federated Validation of User user identities and security are individually managed and distributed Federated by the service providers or member ID Server Account federation Single log-on PARTNER NETWORK organizations. 3. where the GM NETWORK Access target page via URL individual organization is responsible Single log-off for vouching for the identity of its Account de-federation own users and the users are able to transparently interact with other trusted partners based on this fi rst authentication 4. resembles the credit THE SOLUTION SPECIFICS card model in that vendors accept an individual’s ability to pay and then that ability is authenticated/verifi ed Solution providers: through a single location Sun Microsystems and Workscape. Circle of Trust (n) 1. a trusted group of identity and service providers Functionality: who share linked identities and The solution is designed to seamlessly link the GM employee have pertinent agreements in place portal, MySocrates, to business partners’ sites. regarding how to do business and interact with identity providers 2. where an individual or a business Goal: inputs a password once and credentials To simplify information access and provide single sign-on are shared among the circle of trust’s and sign-off. members 3. A step strongly linked to federation, where multiple entities Scope: are involved, and there are business, policy and technical relationships in The production system currently supports 180,000 users. place. 4. also known as “trust circle.” WWW .PROJECTLIBER TY.OR G
“On the business side, the effi ciencies and improvements made possible by federation are limited only by our imaginations”
John Jackson Director of Software Technology GM
Extending Federation Throughout the Enterprise: Additional GM Deployments
GM is currently exploring ways to extend federation throughout their enterprise.
DealerWeb: This application provides each of GM’s 14,000 dealers worldwide with access to a variety of applications, such as online auctions. With federations, dealers will have seamless access to applications from GM and GMAC. They will have a foundation in place to enter into federated relationships with other business partners.
OnStar: GM is also looking at ways to incorporate the Liberty specifi cations into OnStar, the nation’s leading provider of in-vehicle safety, security, and communication services using wireless technology and the Global Positioning System (GPS) satellite network. OnStar safety and security services include automatic notifi cation of air bag deployment, stolen vehicle location assistance, emergency services, roadside assistance, remote door unlock, and GM Goodwrench remote vehicle diagnostics. OnStar Hands-Free Calling allows drivers to make and receive hands-free, voice-activated calls from their vehicle.
Supply Chain Applications
As lines among manufacturer, supplier and customer blur, the issue of security becomes increasingly important. That’s why in more intimate electronic trading environments, user access must be segregated and isolated. The federated identity model enables an organization to provide controlled authentication access to only what is needed for the business transaction. By deploying new federated network identifi cation standards, organizations address the issues around:
• transmitting confi dential information • assuring identity • balancing authentication risk and liability among trading partners • segregating access
In this trading model, XML provides the fl exibility to adapt to standards-compliant interfaces and link to internal and proprietary data structures. And corporate purchases can be aggregated through one central relationship with a supplier, leading to stronger buying effi ciencies and improved vendor relationships. WWW .PROJECTLIBER TY.OR G
The Benefi ts of Federation
• Provide your customers, citizens, employees and business partners more control over identity information • Supply superior security, control, and privacy-improving trust • Mitigate against breaches and identity theft with no single point-of-failure • Provision accounts and securely provide access to designated resources both within and outside corporate borders • Build identity into the foundation of all transactions and personal data services activities • Eliminate excess passwords and securely implement single sign-on • Offer a far more satisfactory on-line experience and new levels of personalization • Create seamless and secure business relationships • Improve authentication with existing internal resources • Improve shareholder value and compliance procedures by offering a means for better reporting accuracy • Reduce risk through a more balanced authentication process
Advice from an Early Adopter
GM was one of the fi rst Fortune 50 companies to aggressively deploy federation. John Jackson offers up this advice on federation:
• Recognize that federation will be a mandatory part of doing business on the Web. • Take the time to get your identity infrastructure in order and under control. • Understand that it’s not so much a technical challenge as a business challenge. Be sure to allocate the time to work through the business issues. • Take the time to educate employees on the technology and concepts. Federation sells itself.
About the Liberty Alliance
The Liberty Alliance Project (www.projectliberty.org) is a global alliance of companies, non-profi t and government organizations developing open standards and business, policy and privacy guidelines for federated network identity. Federated identity offers businesses, governments, employees and consumers a more convenient and secure way to control identity information and is a key component in driving the use of e-commerce, personalized data services and identity-based Web services. Liberty specifi cations are deployed worldwide by organizations that include American Express, AOL, BIPAC, General Motors, Fidelity Investments, France Telecom, Nokia, NTT and Sun Microsystems. Membership is open to all commercial and non-commercial organizations. A full list of Liberty Alliance members, as well as information about how to become a member, is available at www.projectliberty.org.
Email: [email protected] Telephone: +1 (732) 465-6475 (8:30am-5:00pm EST) Facsimile: +1 (443) 647-0099 General Motors Social Media Policy
A. Introduction Few industries generate as much passion – or attention – as the automotive industry. Online communities built around emerging media like blogs, wikis, podcasts, user-generated video, and other technologies collectively known as social media, “new media,” or Web 2.0 provide dynamic new communications outlets for the automotive industry. GM recognizes the potential communication synergies they represent, and the concurrent benefit of constructively engaging with these audiences across the world.
Like many companies, GM formally participates in social media communities through authorized corporate channels. Only employees designated by GM have the authority to speak on behalf of the company in these media.
It is also recognized that some GM employees may wish to participate in various forms of social media on an individual basis and communicate their personal opinions and viewpoints concerning GM and/or GM products. Doing so is a personal decision for each employee to make. If you decide to engage in social media communities or begin your own, be sure to adhere to this policy.
B. Guidelines
1. Follow GM’s established business conduct policies as outlined in Winning with Integrity, (http://www.gm.com/corporate/responsibility/reports/06/300_company/2_twenty/320.html) and the Corporate Policy Manual. The established business conduct as outlined in these documents, and GM’s ILM Policies, provide the foundation for GM’s policy on social media. The same principles and rules that apply to GM employees’ activities in general also apply to online communication. Before participating in social media, you should re-familiarize yourself with these principles and rules as well as the penalties for violation of these policies.
2. Identify yourself. Be transparent. If you’re engaging in conversation about GM – on a blog, through a podcast or video, via a wiki, or any other online communication – you must always identify yourself, by name and role within GM. It is never, at any time, acceptable to “cloak” your identity or to try and “plant” statements that appear to be from an objective outsider when they are really made by GM employees. Not only is this a violation of social media etiquette, but it is a violation of the integrity that we expect GM employees to exhibit at all times.
3. Make it clear that you’re speaking for yourself and do not officially represent GM. Use a disclaimer like this one to make this clear: “The postings/recordings on this site are my own, and don’t necessarily represent the positions, strategies or opinions of GM.” “Social media” and online communication are individual interactions, not corporate communications. GM employees participating in these forums do not speak for GM; if you choose to go public with your opinions or beliefs, you are personally responsible for what you say or write. Use of the GM logo is expressly off-limits for use by any party participating in social media except for those specific efforts formally sanctioned by GM. Employees participating in these media should be aware of the fact that what you write or post online will be public for a long, long time – so be mindful of your privacy before you post anything. 4. Be aware of the legal liabilities involved. Some courts have ruled that outside parties can pursue legal action against individual bloggers for postings deemed defamatory, obscene, proprietary or libelous. You should exercise caution, judgment and integrity with regard to exaggeration, colorful language, use of copyrighted materials, unsupported assertions, and derogatory remarks or characterizations. If you are unsure about whether a posting may carry risks of personal legal liability for yourself, you may want to consult with your own legal advisor.
5. Don’t discuss GM Information that is not already publicly disclosed, and don’t discuss GM’s financial performance, competitors or GM Dealers. Keep all GM Information confidential. Even when engaged in social media, all GM employees remain responsible for safeguarding GM lnformation unless it has been previously publicly disclosed in an authorized manner. As such, disclosure of such information is prohibited. If you have any doubt or question as to whether the information has been publicly disclosed, ask your manager or contact the Director of Global Communications and Technology. Also, GM’s policy is not to comment on speculation or rumors, so don’t affirm or deny them.
6. Do not comment about GM financial performance -- ever. You may only comment about information that has already been publicly disclosed. You must never comment on any confidential GM information. That includes confidential financial information – future business performance, business plans, or prospects anywhere in the world. Don’t make statements about upcoming quarters, future periods, or alliances. Doing so can cause both you and GM potential legal issues with various government and/or regulatory bodies around the world.
7. Respect and protect GM customers, employees, business partners and suppliers. Whether in your own efforts or while participating in a discussion in another online community, never discuss or identify a customer, employee, partner or supplier by name without specific permission from them. Don’t publish a person’s photo without their consent, and if you intend to comment about a private conversation, ask permission to do so first. Never discuss details of a business relationship. Be aware of any non-disclosure agreements that may be in place. It should be emphasized that a blog or podcast is not the appropriate place to “conduct business” with a customer, partner or supplier.
8. Respect copyright and fair use laws. Show proper respect for copyright and fair use of copyrighted material owned by others – including GM’s own copyrights and brands. Do not use the GM logo – or any of our divisional logos. If you’re citing or quoting someone else’s work, fair use dictates that you should quote only short excerpts. It is generally considered good social media practice to link to others’ work. Keep in mind that laws will be different depending on where you live and work.
9. Be the first to respond to your own mistakes. If you make an error or inadvertently post inaccurate information, be up front about your mistake, correct it quickly, and move on. If you choose to modify or edit an earlier post or comment, make it clear that you’ve done so. If someone points out an inaccuracy to you, investigate it – and if they’re right, fix the mistake and thank them for bringing it to your attention. This will result in accurate information being conveyed and serve to enhance your credibility with others.
10. Be judicious about using GM Information Resources. If you’ve been designated by the company to speak for GM in these media, you can use GM Information resources to do it. But if you haven’t, use discretion and judgment in using GM resources. Using GM resources when engaging a community or blogging yourself about your work for GM or issues impacting our company, both at work and at home, is permissible – provided your actions are in compliance with the GM Social Media Policy, Winning With Integrity, and the Information Lifecycle Management Policies, and the Information Security Policy and Practices, AND, and your nominal participation does not impact your work productivity and/or ability to fulfill your normal job responsibilities.
Creating content for a site or engaging a community in which the main theme does not affect or impact GM is not an acceptable use of GM resources.
EXHIBIT #24, P. 1 of 5
Posted on http://mealercompanies.com by Kris J Kordella as signed into (trespassed with intent to injure) into an area reserved for prospective investors and agents concerning Mealer Companies LLC funding as “MONEY01” from IP Address 198.208.251.24 which originates from General Motors Corporation Internal Server located in Bloomfield Hills, Michigan on June 9th, 2009 at exactly 11:29:31 from the entire visit beginning at 10:56:50 to 11:32:51 and belongs to GMC-20 registered at 200 Renaissance Center, Detroit, MI which is GMAC Corporate headquarters.:
“TO JL, What a funny guy” Re: Your senseless blog to the Automotive News article on Whitacre. Mealer Automobiles? America’s next major automobile company?? HAH!!!!!!!!!!!!!!!!!!!!!! You’re a legend in your own head. And notice I didn’t say mind because it’s obvious you don’t have one. Anyway I wish you ALL the worst the the world can give to such a self serving pathetic MORON.
Good riddance clown. Sincerely, Kris K ( a real engineer of real automobiles)” EXHIBIT #24, P.2 of 5
Kris J Kordella admission and psuedo-apology sent privately to email address “[email protected]” which is a forwarding email address to “[email protected]” with a carbon copy to a (then) future Mealer Companies LLC customer and/or private investor and/or potential employee Michelle Heckathorn at “[email protected]” from “[email protected]” and from “IP Address 198.208.251.24” which originates from “General Motors Corporation” Internal Server located in “Bloomfield Hills, Michigan” on June 15th, 2009 and belongs to “GMC-20” which is registered at 200 Renaissance Center, Detroit, MI which is GMAC Corporate headquarters [ http://betterconstructed.com is John L Mealer's original Mealer Companies LLC information website and thus forwarded mail to Mealer's general mobile access account with Yahoo Mail © ].
“Dear Mr. Mealer, Obviously you can see how I might get upset after your blog in the Automotive News. It was quite an attack on people like me who work in the trenches for this company every day and hope to continue to have a job once we get (hopefully) through all this bankruptcy. As you know, if things do not work out for GM, I will lose most of my pension, all medical benefits and on, and on. Basically a financial Armageddon for me and hundreds of my friends and family members that have relied on GM for the last 60 plus years. Not to mention the tens of thousands who’ve already lost their jobs. Needless to say you know that Detroit and it’s suburbs, and for that matter all of Michigan, Ohio, Indiana and other Mid West states have been beaten up so badly in the press, by Congress, by most Americans that feel they’re not affected by this automotive crisis, that we’ve developed thin skin. However, the bottom line is I shouldn’t have resorted to the “knucklehead” name calling in my blog and inferring your auto company isn’t legit, because I’m sure it is. Please consider this my apology for the aforementioned actions. Additionally, I wish you and your company great success in the future as any company that can help the United States get more GREEN is a noble company and should be commended for their work. Wishing you the best of luck in the future, Kris J. Kordella “ EXHIBIT #24, P. 3 of 5
From: [email protected] [mailto:[email protected]] Sent: Monday, June 15, 2009 8:25 AM To: [email protected] Subject: Re: [] Comment: "" To JL, What a funny guy "
Do not send me any more correspondence. This is an official warning.
Sincerely, Kris J. Kordella
Shelly
"Michele Heckathorn"
06/15/2009 02:11 PM
To
Subject RE: [] Comment: "" To JL, What a funny guy "
Kris J. Kordella,
I wasn’t aware that I had SENT you any correspondence.
Sincerely, Michele EXHIBIT #24, P. 4 of 5
From: [email protected] [mailto:[email protected]] Sent: Monday, June 15, 2009 12:29 PM To: Michele Heckathorn Cc: mealerco%[email protected] Subject: RE: [] Comment: "" To JL, What a funny guy "
Then why does it explicitly say to respond to you? Maybe your "buddy" Mealer did using your name and internet address without you having any knowledge of it and falsifying he was you. In which case he has committed fraud. How interesting! Thanks for the reply.
"Michele Heckathorn"
Subject RE: [] Comment: "" To JL, What a funny guy "
"Michele Heckathorn"
06/15/2009 02:59 PM To
Subject RE: [] Comment: "" To JL, What a funny guy "
Kris,
I responded to a post on his site. Evidently my response was emailed to you? It’s not every day you give your opinion of a complete stranger and it gets sent directly to them. J My apologies. I’m sure you’re not a jerk ALL the time.
Sincerely, Michele EXHIBIT #24, P. 5 of 5
RE: Your reply to my blog: " To JL, What a Funny Guy " Monday, June 15, 2009 11:29 AM From: "[email protected]"
Hi Michelle, Thanks for the response. I figured you did but Mealer is illegally forwarding on any negative blogs to my original blog. He has now done this with several people, obviously without their knowing or consent. And you're right again, I'm not a jerk ALL the time. Only when the Mealers of the world go to a highly respected and widely read web site like Automotive News and slam with incredibly derogatory and nasty comments General Motors Corporation, where I've worked for over 30 years. Also, I'm not in management and never have been. I'm an engineer (foot soldier). And in my blog, I like you was stating MY opinion, not GM's opinion. Finally, being a foot soldier my entire career, I have had zero impact on the decisions of how GM has been or will be run in the future. Once again, nice talking to you.
Sincerely, Kris Business Benefits of Federated Identity
April, 2003
http://www.projectliberty.org/
Abstract: This paper provides a brief overview of the benefits that implementing the Liberty Alliance’s federated network identity management architecture can offer to busi- nesses. The Liberty Alliance’s vision is one of a networked world in which individ- uals and businesses can more easily interact with one another, while respecting the privacy and security of shared identity information. Business Benefits of Federated Identity Page 2 of 14
1.0 Executive Summary
Web service development represents a burgeoning market opportunity that promises to: • Bring substantial cost savings to enterprises in every industry. • Bring revenue opportunities for service providers. • Provide greater convenience and dynamic offerings for consumers.
At the core of this web service revolution is the concept of identity management, and the market’s need for a global standard that is open, interoperable, and decentralized. In addi- tion, it must allow for privacy safeguards across all markets.
The Liberty Alliance Project was established to address this need. Our goal is to develop standards for federated identity implementations that will allow companies to realize sub- stantial business benefits, including: • Revenue growth through development of strategic offerings • Cost avoidance, cost reduction, and increased operational efficiencies • Stronger security and risk management • Interoperability and decreased time of development
The Liberty Alliance consists of over 160 leading organizations across the globe. Partici- pants include companies in finance, wireless services, telecommunications, security, trans- portation, and infrastructure technology, as well as several universities, governments, and consumer advocate organizations.
2.0 The Current Environment
In today’s economy, burgeoning e-business, outsourcing, and partnership arrangements have dramatically increased the importance of sharing information between businesses and their customers and partners. This has also impacted the amount of information that must be shared and highlighted the importance of adhering to emerging privacy standards and data regulations. The Internet computing challenge has shifted from interconnecting computers to interconnecting applications and services, all of which must be delivered to a growing number of people on an exploding number of devices and access points.
Identity is at the core of any business or data transaction. It is a critical component of the operations of any enterprise, and is interwoven into most business processes, including granting access to information and systems, enabling Customer Relationship Management (CRM) systems, and driving relationships with business partners and suppliers. Besides just presenting credentials for authenticated access to systems and services, an identity includes attributes that make for more targeted and productive use of these systems.
© 2003 by Liberty Alliance Project All Rights Reserved April, 2003 Business Benefits of Federated Identity Page 3 of 14
2.1 The Problem
Ineffective identity management is not only costly, inefficient, and prohibitive to new rev- enue opportunities, it is also a barrier to establishment of trusted business relationships. This “crisis” affects a company’s management of identities at all levels: • Customer identities • Employee and contractor identities • Business partner and supply chain identities
Add into the mix the need to manage these identities across multiple devices and the prob- lem multiplies. Ineffective identity management plagues all organizations on a global basis.
The previously accepted business model for identity and resource management was to limit access to valuable data in the name of security by focusing on keeping the “bad guys” (hackers) out. This was typically accomplished by designing closed and proprietary systems.
The new model calls for an interoperable and decentralized architecture that focuses more on letting the “good guys” (authenticated and trusted employees, customers, and business partners) in, allowing them to access targeted information and web services. Doing so, however, is no simple task, especially when you consider that many businesses already have substantial investments in diverse systems for identity and application management as a result of mergers and acquisitions or piecemeal IT planning.
Furthermore, as companies become more virtual and face greater demands to be less inter- nally focused, they are increasingly challenged to grant access to services and applications to the right people at the right time without sacrificing security or scalability. One means of increasing efficiency is the implementation of a simplified or single sign-on for access to services and applications. This reduces the need for users to remember and re-key a myriad of username/password credentials, which provides an easier user experience while at the same time reducing IT administration and help desk costs. While password-based secure access to services or resources has existed for years, the ability for a user to access services from multiple domains within an enterprise or across multiple companies has remained a challenge that has forced individuals to maintain countless account credentials, thereby limiting the value of services that they receive.
© 2003 by Liberty Alliance Project All Rights Reserved April, 2003 Business Benefits of Federated Identity Page 4 of 14
2.2 The Solution
Fortunately, there is an answer to this crisis: federated network identity management. Fed- erated identity management makes it possible for an authenticated identity to be recog- nized and take part in personalized services across multiple domains. For this concept to become a reality, however, there needs to be a common set of technical and business stan- dards. Without such standards for federated identity, businesses would continue to be held back by many business challenges, such as: • Inefficient, insecure, and expensive enterprise identity management • Lack of streamlined visibility and partner access across a business-to-business value chain • Impediments to the delivery of bundled, context-sensitive services to end-users
The desire of businesses in virtually every industry to develop and deliver federated identity services Good Privacy is Good to address these challenges has rapidly emerged as Business a strategic imperative. The IT industry analyst firm IDC estimates that up to 60% of the identities in 37% of users would be “a lot” enterprise directories or databases may be expired more inclined to make a purchase or “orphan” accounts. This presents a major secu- on a web site that has a privacy rity risk, in addition to creating an unnecessary IT policy (Business Week, 3/00), burden. In addition, according to projections from and 68% of people cite privacy IDC, the total value of the market for enterprise, and security as the top factor that business-to-business, and consumer web services would convert them from will reach $21 billion (USD)1. To date, however, researchers into buyers. only 5% of companies have completed such (Jupiter, 6/99).1 projects; although 80% expect to have these 1. TRUSTe.org website projects underway by 20082. Clearly, there is a great deal of opportunity in the future.
However, a definite impediment remains. One of the gating factors for identity-based web service development has been the lack of coherent standards and business and policy guidelines that will allow the deployment of meaningful web services. The Liberty Alli- ance Project was formed to address this void.
By implementing products and technologies that support the Liberty federated identity systems protocols, a business can capitalize on the promise of web services while gaining greater efficiency with IT expenditures. It can realize new revenue opportunities with its business partners, and expand its product and service offerings to its customers.
1. IDC, U.S. Web Services Market Analysis, February 2003 2. IDC, U.S. Web Services Market Analysis, February 2003.
© 2003 by Liberty Alliance Project All Rights Reserved April, 2003 Business Benefits of Federated Identity Page 5 of 14
3.0 The Need for The Liberty Alliance and Federated Identity Management
The Liberty Alliance was established in December of 2001 by 16 companies with a com- mon goal of creating open, interoperable standards and guidelines for federated identity management that can meet all of the current and future business challenges. The Liberty Alliance is the only global, cross-industry standards effort that is working to address these business challenges. Its membership has rapidly grown to more than 160 leading compa- nies across the globe in a variety of industries, including leaders in finance, wireless ser- vices, telecommunications, security, transportation and infrastructure technology, as well as several universities, national and local governments, and consumer advocate and pri- vacy organizations.
The first phase of the Liberty specifications was released in July 2002 and laid the foundation for The Liberty Vision: cross-domain account linking and federation. Sev- eral leading technology companies have already To enable a networked world in released identity management products to support which individuals and businesses those protocols. Future phases of the Liberty speci- can more easily conduct transac- fications will allow for permission-based attribute tions while protecting the privacy exchange between domains and specify frame- and security of vital identity works for federated identity web services. information. As the web services market evolves, it is critical for companies to be able to implement an identity strategy that is sensitive to privacy issues and instills confidence in its customers. The Alliance’s Public Policy Expert Group is working with governments and leading consumer advocacy and privacy groups around the world to establish the Liberty specifications and business guidelines. This ongoing effort will result in standards and practices that will comply with emerging policies and regula- tions on a global basis.
Federated Identity allows users to link identity information between accounts without cen- trally storing personal information. The user also controls when and how their accounts and attributes are linked and shared between domains and Service Providers. This gives them greater control over their personal data. In practice, this means that users can be authenticated by one company or web site, and be recognized and delivered personalized content and services in other locations without having to re-authenticate or sign on with a separate username and password.
For the federated identity vision to be implemented effectively, there needs to be trust established between all parties involved. Trust has always been at the core of any high- value relationship, and trust credentials are part of our daily lives – from the uniform and badge of a police officer, to membership cards, passwords, and secret handshakes. More advanced trust credentials include smart cards and biometric data such as fingerprints or retinal scans.
© 2003 by Liberty Alliance Project All Rights Reserved April, 2003 Business Benefits of Federated Identity Page 6 of 14
No matter what the credential, once trust is established, doors are opened to a meaningful relationship. While technology can accelerate trust-based relationships, trust can only be established through formal or informal business agreements and contracts.
This vision can also be articulated through the important concept of a Circle of Trust, which is defined as a group of service providers that share linked identities and have perti- nent business agreements in place regarding how to do business and interact with identi- ties. Once a user has been authenticated by a Circle of Trust identity provider, that individual can be easily recognized and take part in targeted services from other service providers within that Circle of Trust.
The Circle of Trust concept is not new to business – there have been Circles of Trust in the offline world for years, ranging from the world’s preeminent insurance company, Lloyds of London (see sidebar on page 7) to affinity partnerships between travel providers to gov- ernment management of citizen records. Bringing the “Circle of Trust” to the online world of identity-based web services, however, is a new concept that the Liberty Alliance is driv- ing through its specifications and guidelines. The concept of a Circle of Trust is shown in Figure 1:
FIGURE 1. Circles of Trust
Figure 1 shows multiple Circles Of Trust. While authentication typically will take place within each Circle, identity attributes remain federated throughout the Circle, and, with the user’s permission, can also be shared between multiple Circles. For example, an individual may use an online travel agency both at work and at home. They can access their attributes whether they are authenticated at home (via an ISP) or authenticated at work (via an outsourced travel agency), or even if they log in directly to the travel site. Note that attributes from the Supply Chain Circle are not shared with the Home Circle.
© 2003 by Liberty Alliance Project All Rights Reserved April, 2003 Business Benefits of Federated Identity Page 7 of 14
LLOYD’S OF LONDON: A 300-YEAR-OLD CIRCLE OF TRUST
The concept of a “Circle of Trust” is nothing new to business; in fact, trust has been at the core of some of the oldest and most successful businesses in the world. An excellent example is that of one of the world’s earliest insurance confederacies: Lloyd’s of London.
Lloyd’s began in Edward Lloyd's Thames-side coffee house in London in the 1680s. Lloyd himself was not involved in insurance but provided a forum whereby ship captains, merchants, and ship owners could carry on their business of insuring ships and their cargoes. These wealthy individuals would sign their names one after another (incidentally, this is the source of the term “underwriter”) on a policy, along with the amount of cargo that they agreed to cover. This list would be available for seafaring business owners to review and to engage for marine insurance.
Over time this list of underwriters grew from a loose confederacy of individuals into the exclu- sive list of Lloyds’ members, growing from several dozen individuals into 122 underwriting syndicates and companies. To this day, only members of the Lloyd’s circle of trust can carry on insurance business under the Lloyd’s name.
The Liberty Alliance realizes that technology specifications only address part of the chal- lenge of implementing federated identity systems. This is why the Alliance also plans to publish business guidelines in conjunction with the specifications. These guidelines will help companies to implement federated identity systems that are sensitive to the latest glo- bal privacy and regulatory issues by highlighting and giving consideration to issues such as: • Mutual confidence between parties to enforce rules for compliance and managing risks of exposure • Liability to all parties, including service providers, network providers, and customers • Risk and fraud prevention • Compliance and information privacy for all parties in a “circle of trust” or federated identity value chain
These guidelines will be provided by the Alliance and will serve as a set of business issues that companies should consider when implementing the Liberty specifications. Many of these considerations are also articulated in the Alliance’s “Privacy and Security Best Prac- tices” document that can be downloaded from the Liberty Alliance web site at: http://www.projectliberty.org.
© 2003 by Liberty Alliance Project All Rights Reserved April, 2003 Business Benefits of Federated Identity Page 8 of 14
4.0 Business Benefits of the Liberty Alliance Architectural Vision
The Liberty Alliance Architecture consists of three key components, or frameworks, that have been developed and released in a phased approach. Each framework focuses on a dif- ferent aspect of the identity puzzle. The Architecture is diagramed in Figure 2 along with details on business benefits of each framework.
FIGURE 2. High-level Overview of the Liberty Alliance Architecture
More detail on the Liberty Alliance Project architecture can be found in the white paper Introduction to the Liberty Alliance Identity Architecture. This can be found at: http://www.projectliberty.org/press.html.
In addition, a growing library of case studies and use scenarios for employee/intranet, cus- tomer, and business-to-business federated identity implementations are available for free public download at http://www.projectliberty.org/press/casestudies. 1. Liberty Identity Federation Framework (ID-FF): ID-FF comprises the Phase 1 Lib- erty Specifications (released in July 2002). It provides the mechanism for single sign- on and linking of separate accounts within a group of service providers in a circle of trust. For example, if a bank and a wireless service provider are part of the same circle of trust, a customer can choose to link those two accounts, allowing the customer to seamlessly take part in online services from both companies without having to log on to
© 2003 by Liberty Alliance Project All Rights Reserved April, 2003 Business Benefits of Federated Identity Page 9 of 14
both sites separately. This could allow the customer to pay its phone bill directly from the bank’s web site, or conversely could allow the customer to transfer funds between a savings and checking account from a mobile phone. 2. Liberty Identity Web Services Framework (ID-WSF): ID-WSF is part of the Alli- ance’s Phase 2 release. It provides an infrastructure for identity-based web services through aspects such as permission-based sharing of users’ attributes, discovery of additional identity-based services, allowing for user security profiles, and support for differing types of client devices. This will allow businesses to implement services that leverage an authenticated user’s attributes and preferences (beyond their basic identity). It also allows the user to have fine-grained control over which identity attributes are shared under specific circumstances. For example, this would enable users to person- ally control what information about themselves is available to other online services that they link to, such as mailing addresses, personal preferences, etc. 3. Liberty Identity Services Identity Specifications (ID-SIS): ID-SIS is a collection of specifications for interoperable identity-based service formats made possible by ID- WSF. These will be part of future releases, and may include support for specific for- mats and functions such as contact books, calendars, geo-locations, or alerts. A com- pany will either be able to implement these services internally, and/or as revenue- generating service offerings to external customers and business partners. 4. Adoption and Adherence to Other Industry Standards: The Liberty Alliance is not only committed to developing and publishing an open standard for federated identity, but it supports and is incorporating other pertinent standards into the Liberty Alliance specifications. This means that a business can implement Liberty-enabled products and services have confidence that they will interoperate with the company’s infrastructure, as well as the infrastructure of its customers and business partners. Proprietary identity systems may or may not support these standards, creating a potential IT pitfall of run- away development time and costs.
© 2003 by Liberty Alliance Project All Rights Reserved April, 2003 Business Benefits of Federated Identity Page 10 of 14
5.0 Business Benefits Summary
Within an enterprise, a Liberty-enabled identity management infrastructure can bring sub- stantial cost savings, operational efficiencies, and increased security. These benefits come in the form of more effective employee provisioning and password management (cost reductions of up to 80%1), focused development efforts on a single standard that will be supported by a variety of technology providers, and the ability to more easily outsource certain employee applications in a more secure and flexible manner. Also, since employee identities can be managed internally and brought online and offline quickly, deployment of a federated identity infrastructure limits a company’s vulnerability to security attacks by current or former employees and contractors.
For technology providers or device manufacturers, there is a burgeoning marketplace of companies looking not only to deploy web services, but federated web services based upon the Liberty specifications. In addition, the Liberty standards allow these companies to focus their product development efforts on offerings that are able to leverage the fact that Liberty was built from the ground up to support identities accessing information from multiple devices.
For service providers, the Liberty Alliance opens a world of benefits including greater efficiency and new revenue opportunities through the development and deployment of bundled services based on the “circle of trust” concept. These valuable services will also decrease the cost of customer retention and acquisition, while at the same time increasing a company’s revenue per user.
To generalize across these three audiences, the benefits of implementing a Liberty enabled federated identity strategy and infrastructure fall into four main categories: • Revenue growth through development of strategic offerings • Cost avoidance, cost reduction and increased operational efficiencies • Stronger security and risk management • Interoperability and decreased time of development
More details on the benefits that a Liberty-enabled federated identity infrastructure, strat- egy, and/or services can bring are shown in the following table:
1. RBC Capital Markets: Safe & Sound - A Treatise on Internet Security - 11/2001
© 2003 by Liberty Alliance Project All Rights Reserved April, 2003 Business Benefits of Federated Identity Page 11 of 14
Benefit: Examples:
Revenue Bundled Offerings: Enables the business infrastructure required for the Growth through development of bundled customer offerings with strategic partners via “cir- Development of cle of trust” relationships. Strategic RPU: Increases customer satisfaction and revenue per user (RPU) by Offerings delivery of value-added, targeted services supplied to customers on a vari- ety of devices in multiple locations. Simplified Outsourcing: Allows service providers to more easily create and offer a variety of outsourced services, ranging from identity-related ser- vices (e.g., authentication or identity management) to more “traditional” value-added services (e.g., HR or payroll) that can be more easily inte- grated into a customer’s enterprise. Accelerated Development: Development in the web services market- place is expected to reach $21 billion by 2008, thereby establishing a huge market for Liberty-enabled infrastructure and service offerings. Differentiation: Use of the Liberty-enabled federated identity infrastructure delivers a competitive edge for companies. Providing Liberty-enabled prod- ucts differentiates them from companies that support only proprietary tech- nologies or closed identity systems. Market Demands: Implementing this technology meets a current market requirement as many government and institutional RFPs already have Lib- erty support as a pre-requisite, a trend that is expected to explode. Cost Avoidance, Increase employee productivity. Productivity is improved by granting Cost Reduction employees faster access to applications and information throughout all of and Increased the business units in an enterprise. Operational Reduce Help Desk Costs. Costs are reduced for employee, business Efficiencies partner, and customer identity maintenance and administration through secure delegation and self-service of identity information. Customer Relationships: Reduces CRM and customer acquisition costs by unifying identity systems, thus providing a more holistic view of the cus- tomer. This allows development of “sticky” web services and “viral market- ing” programs. Standardization: Creates a standard interface for identity services, mak- ing it easier to add and remove outsourced service providers for enterprise services. Product Development: Allows technology and device manufacturers to develop to a standard, driving more focused product development efforts and reducing longer-term maintenance and upgrade costs. Regulatory Support: Provides consideration for regulatory compliance issues, including a strong framework for companies to implement services that support key global privacy policies and regulations including HIPAA, Gramm Leach Blyley Act (GLBA), EU Privacy Directive and others.
© 2003 by Liberty Alliance Project All Rights Reserved April, 2003 Business Benefits of Federated Identity Page 12 of 14
Benefit: Examples:
Stronger Authentication Levels: Provides context-sensitive, gradient levels of Security and authentication and risk management. Risk Security control: Offers integrated and tighter security controls through Management ubiquitous enforcement of security policies. Nonrepudiation support: Reduces security exposure through nonrepudi- ation support (i.e., the ability to ensure that a party to a contract or a com- munication cannot deny the authenticity of their signature on a document or deny the sending of a message that they originated). Fine-grained security: Makes it easier for an enterprise to more effec- tively grant fine-grained access to current employees and to promptly ter- minate “orphan” accounts of ex-employees, contractors and partners. This alleviates a major source of security attacks within an enterprise, which fre- quently come from current or former employees or contractors. Standards and business templates: Provides guidelines for dispute res- olution, audit management, policy-based compliance, and liability assign- men. This reduces the risk associated in implementing federated partnerships, and product and service offerings based on the Liberty speci- fications. Interoperability Speed and Ease of Deployment: Systems can be deployed quickly and and Decreased easily since the components of the solution are based on commonly Development accepted standards and interfaces, eliminating the need to develop to a Time myriad of integration points. Interoperability: Provides for more secure, more seamless interoperability between applications and systems, without the need for gateways; applica- tions can natively “know” how to do this through a web service. Integration: Enables integration of legacy systems without re-engineering their authentication and authorization modules. Reduces Deployment Lags: Deployment delays are reduced because dif- ferent parties in a “circle of trust” don’t have to agree on the same technol- ogy and products at each point of the network, but rather have a common plan from the beginning. New Deployments: Allows service providers to deploy new systems that interoperate and communicate with existing systems, minimizing system and customer downtime.
© 2003 by Liberty Alliance Project All Rights Reserved April, 2003 Business Benefits of Federated Identity Page 13 of 14
6.0 Liberty Alliance Technology in Action
Several leading technology providers and system integrators have developed products and services that support the Liberty specifications and can help your enterprise develop an effective federated identity infrastructure that meets your business needs. A full listing of these companies and services can be found at the Liberty Alliance web site:
http://www.projectliberty.org.
There are already many leading companies that are gaining a competitive advantage by building Liberty technology into their enterprise infrastructures to address business chal- lenges. For example, General Motors, a leading member of the Liberty Alliance, has tack- led identity issues across internal and external identity systems. Chances are that some of these business issues will match those of your own organization. GM’s ongoing business objectives are to: • Reduce design cycle times • Build vehicles to dealer and individual order • Ensure more valid customer demand information • More tightly integrate real-time business processes
For some, this may sound like an easy task, but consider that GM has 362,000 employees and more than 200 manufacturing facilities throughout the world. It sells more than 8.5 million units a year, in 200 countries, through 14,000 dealers. And if that is not enough, GM globally has no common E-mail system, no common desktop environment, and is still continuing to phase out the 7000 legacy IT systems it has had since 1996. Currently, they are still dealing with approximately 3,500 legacy systems.
The Liberty Alliance specifications will make it possible for these identity and infrastruc- ture systems to interoperate so that GM can deliver valuable services to its customers, sup- pliers, dealers and employees. One of the ways GM is incorporating federated identity management and Liberty technologies is within their employee intranet, called MySo- crates. MySocrates provides access to many of the outsourced HR services that GM employees receive, such as health benefits and 401K plans.
“While MySocrates offers central access to these services, our employees have to log-in and authenticate themselves every time they access each service,” explained Rich Tag- gart, director of enterprise architecture for GM’s global technology division. “We want to make access more seamless and efficient to our employees, but you can imagine that some may not want to share the same profile and password with both their 401K provider and their health care provider. Federation makes this customer control possible.”
GM also offers employees a significant discount on AOL's services for home Internet use. Using Liberty's specifications, GM hopes to federate an employee's AOL screen name with their MySocrates ID, thereby allowing employees to move easily between work and home life.
© 2003 by Liberty Alliance Project All Rights Reserved April, 2003 Business Benefits of Federated Identity Page 14 of 14
7.0 Summary and Call to Action
The Liberty Alliance Project has developed a business-ready architecture that will result in cost savings, new revenue opportunities, increased security, and greater technical flexi- bility and efficiency. More information on the Liberty specifications and business guide- lines, as well as information on Liberty-enabled products and services, can be found on the Alliance’s web site at:
www.projectliberty.org.
In addition to implementing a Liberty-enabled identity infrastructure, there are also tangi- ble business benefits to joining the Alliance. There are multiple levels of membership, with membership dues that scale according to the size of your business. By joining the Alliance, your company can actively influence the future of federated identity manage- ment and the activities of the Alliance by: • Participating in the development of market requirements, specifications, roadmaps, and other technical guidelines that guide the work and perspective of the organization. • Networking across member companies and gaining a better understanding of needs that exist across various vertical and horizontal sectors. • Reviewing pre-release specifications and other materials before they are available for public consumption. • Gaining a high-profile opportunity to understand and contribute to developing public policy across the globe.
Membership information can be found on the web site or by sending E-mail to:
© 2003 by Liberty Alliance Project All Rights Reserved April, 2003 Exhibit #26 Chevy Volt discussion by Climate Progress at http://climateprogress.org/2008/01/08/gm-volt-plug-in-hybrid/ pushing the GM need to be the next Electric Vehicle and pressuring GM engineers to do the same. 1 of 6 Exhibit #26 Bloomberg Businessweek Article on Volt, adding pressure to GM and GM''s Engineers. June 2, 2009. 2 of 6 Exhibit #26, Bloomberg Businessweek Article of GM Volt survival adding pressure to GM and GM engineers. June 2, 2009 3 of 6 Exhibit #26 http://www.lockergnome.com/blade/2009/06/03/what-will-happen-to-the-chevy-volt-now-that-gm-is-bankrupt/ article about GM Volt putting pressure on GM and GM engineers. 4 of 6 Exhibit # 26, Re: GM VOLT (pressure for GM and GM's engineers) http://www.lockergnome.com/blade/2009/06/03/what-will-happen-to-the-chevy-volt-now-that-gm-is-bankrupt/ 5 of 6 Exhibit # 26, Re: GM VOLT (pressure for GM and GM's engineers) http://www.lockergnome.com/blade/2009/06/03/what-will-happen-to-the-chevy-volt-now-that-gm-is-bankrupt/ 6 of 6