Questions about our lawsuit:
As of June 25, 2012, we have filed an Action in the Court of Queen’s Bench of Alberta to advance a claim on behalf of all investors and/or limited partners and/or shareholders in the projects listed above. If you were an investor in one or more of those projects, our Statement of Claim contemplated your investment loss and will be advancing on your behalf. We have separate sub-classes in our lawsuit for each investment, which is generally listed above. Our Statement of Claim names many more parties, to incorporate the various corporations at issue with each investment. This is being advanced upon a class action basis, which further contemplates sub-classes for each limited partnership.
We have representative plaintiffs for each investment, so each project has a voice. That is to ensure that in advancing our claim, no one investment is preferred at the expense of another. Given the particular facts involved in this situation and with these projects, this is a necessary point to be made.
Some frequent questions and our answers to them are listed below, to help you understand our claim, and your situation in relation to it.
What if I was in more than one project? Should I use different lawyers for different projects?
This seems to be a recurring question because lots of people tend to be in more than one investment. That would be a duplication of legal costs. Our claim contemplates advancing your claim in each investment. We have sub-classes for each investment, so that someone who contributed monies to 5 investments can move forward in seeking return of their investment and further damages. The importance of our approach for this type of investor is that we are not preferring one of your investments over another. There will be no concern that one sub-class benefits at the expense of the others.
Even if you were in one investment, you benefit from sharing or leveraging of legal costs. We have a large number of total investors assisting with coverage of litigation costs. We will be seeking restitution of some or all of those legal costs in this action. As we have one action for everyone, and all investments, we ensure that one investment is not advanced at the detriment or expense of another. Additionally, because legal costs are leveraged, we are facing the issues as a consolidated group of investors, such that legal costs are leveraged and shared.
Another lawyer/person told me that an all-encompassing lawsuit will not work and that we need to advance on an investment-by-investment basis. Why is your advice different?
In looking at these matters, we originally hoped to deal with just two of the specific investments and intended to follow that same approach. We were looking at making specific claims for two specific projects. So we did not originally disagree with that same advice. But our initial agreement with that same approach was based upon the assumption that each limited partnership was run separate, the funds were kept separate, and it would be easier to move forward each separate investment, as the issues were much more common, and damages more focused.
However, in preparing and advancing claims, it has been clear to us, in the documents we have obtained, that co-mingling has occurred. Financial statements for certain projects have been produced that disclose “owing to” and “owing from” other projects. Title to some buildings clearly demonstrates co-mingling of buildings, when security is given Some of the investors in Barron were offered to be transferred into another project, where paying investors saw no consideration being provided for being diluted by these “new investors”. There is one building that is arguably owned by two different groups.
More importantly, the few distributions made here make it clear that funds were being co-mingled and not kept separate. As a result, we have concluded that it would be impossible to separate the projects. And suing separate projects would put investors at odds with one another. That is not reasonable, nor fair, nor appropriate.
Our approach is predicated upon the representations made to entice people to invest. We believe we have evidence to demonstrate that such documentation misrepresented investments, in particular ways. The same documentation was being used in many projects, such that some of the same misrepresentations were reoccurring. We believe that there is a commonality of issues, and damages, that will provide this situation with the foundation for certification upon the many common issues. Certification will allow us to provide all investors a powerful tool to advance their claims for restitution of their investments, interest, costs, proper accounting, and damages.
How do I participate?
You can send us your information by completing the questionnaire form on this website and emailing it to us. We will then respond to you as quickly as possible.
What happens if I do not want to participate?
You can opt out, which is standard in any class action proceeding. We will still be advancing a claim on behalf of investors in your class, but you do not have to share legal costs and advance with us.
We believe that working together will enable us to pool the evidence we have, on separate investments, to prove liability and to justify damages, for all investments. We urge you to consider joining our claim.
What is my cost requirement?
We are asking for people to retain us for 1% of their total investment losses on all projects. If you were in one investment for $50,000.00 and have lost it all, your retainer is $500.00. If you were in 5 investments for $300,000.00 but have been paid $100,000.00, your retainer is $2,000.00. You do not have to contribute anything for any money indicated to have been paid to you in a T5. Note that if you have been paid partial funds, you will not be considered until all other investors in the same investment have caught up to you. That is to follow a principle of fairness and equity to ensure that all investors are treated equally. More specifically, we know that the defendants specifically and intentionally created issues by paying some investors, but not all. And in some cases, paid some investors partially. To alleviate the conflict that creates, we propose investors in each project will be compensated to an equal level. So if someone already received payment on an investment, they will not participate in distribution on it, until other investors have been paid the same amount.
For those in multiple projects, you are not paying different lawyers to do the same work, or to compete with each other for money. For those in one investment, you do not have to be concerned that one investment is being preferred in payment over yours.
This 1% fee is our retainer, and we are charging an additional percentage at the end of this matter on funds collected. We will seek to have the Defendants pay some or all of our clients’ legal costs.
We are looking for fair and reasonable compensation for all investors. It starts with getting back your money, plus interest and legal costs. And then we will look at damages.
Can I do a hybrid, where I pay a retainer on some of my investments, but not others?
No – that would create a situation of preferences, or hopes that one project is paid before another. To be absolutely fair, and consistent and to avoid an administrative nightmare on our end, it is all or nothing – all tier 1, or all tier 2. People have until August 31 to participate as a tier 1 client.
What happens if I do not want to contribute to legal costs?
You would still be covered under our fee agreement, however, your percentage of what we collect for you to be paid to us for collecting funds on your behalf will be much higher. Those that contribute to legal costs as we go, we are going to be asking for their legal costs to be repaid, as far as the Courts may allow. And we will be looking for a much lower percentage of the amount collected for their legal cost of doing so. We have a tier 2 cost which is based on a much higher percentage of legal cost of what we collect on your behalf, for those that do not contribute to legal costs.
The incentive here is that we expect to have at least a few hundred people contributing to legal costs, leveraging the true cost of advancing this action. We hope that we will not be making a further retainer request in the future, depending on the number of contributors and the progress of the action, including interim steps.
Why should I not just stick with advancing a claim with the people within each limited partnership?
Aside from duplication of legal costs and competition for funds, there are problems with co-mingling here that will not make that approach tenable. We have been working on related matters for many months now, and my approach on how to proceed is predicated upon the evidence we have collected to date.
We have some sense of the anticipated defences and positions that will be taken here and we have a plan and structure for advancing a multi-investment class action. We believe that our proposal for administration will make sense to the Court. We have an approach that will address all possible future contingencies that we have anticipated.
I have spoken with other counsel, or retained other counsel. They are going in a different direction. What are my options?
You can retain us and we can continue to advance your interests. You can seek unused retainer to be returned from other legal counsel and we will advance your claim for you. If you sent money to a lawyer without signing a fee agreement, your ability to get your money back will be much easier. If you did sign a fee agreement, you will have to speak to your retained counsel about getting any unused portion returned.
Alternatively, you can continue working with your current counsel and in the future, there may or may not be conflict issues raised related to their advancement of the claim. If you want to speak to another lawyer, you may consider taking a copy of the style of cause, the first few pages of our Statement of Claim, to your lawyer. You should ask your legal counsel to conduct a conflict check to see if the firm has acted, or acts, for any of the named defendants. And you can discuss that with your lawyer.
In our preparation of matters, it has come to our attention that various defendants have anticipated legal proceedings were coming and will be taking the position that certain law firms cannot advance claims against them because of having acted for these defendants in the past. In other words, the Defendants may raise issues of conflict with certain firms. We will not presume the Defendants’ position. Nor will I presume to tell you what other lawyers will say. However, you need to review this conflict issue and to consider it in deciding how you wish to proceed.
How long do I have to decide what to do?
In order to participate, we are allowing investors until September 30, 2012 to join into the action with the intention of contribution to legal costs. To be clear, in resolution of this matter, we will be looking for full to part indemnification of those contributing to legal costs incurred to advance this claim. And again, the fee percentage imposed on amounts collected is tiered to provide contributors with reduced legal costs upon collection. This is intentional and is intended to provide incentive to investors to contribute to legal costs of advancement.
How do I contact you?
Please contact us through our questionnaire form. We will respond to your email, as quickly as we can.
Please complete one questionnaire for each investment that you hold. If you hold the investment with another person(s), please just complete one questionnaire for the investment. This is to keep the investments separate and distinct from each other. We will then send you an appropriate retainer letter and we can proceed from there.
Do you foresee that forensic accounting will need to be done for all cases? If so will there be an additional charge for this?
Our initial approach is to look to get parties back their original investments. Plus interest. Plus costs and disbursements. Plus damages. We order them that way so you can see priority. The approach we take is to simplify the liability and damages claim – so we can hopefully avoid accounting costs and investigations. We are firm in our belief that funds have been so vastly co-mingled that it would be impossible to sort them out. And that isn’t the fight we want to have with these defendants.
It is one thing to win the case and another to collect the money. Does your fee include the cost of recovering the funds?
This is our retainer. We are not promising this will cover it all. However, with the large number of groups and committees for various projects that are advising they are going to commit with us, we appear to have more people than we originally expected would be with us at the tier 1 retainer. Accordingly, there is a strong possibility we will not have to seek additional funds to move forward. We are working on an hourly basis, leveraging my cost over a large number of clients so that your actual cost per hour is down to a couple or few dollars per hour. We do not know how much of a fight the defendants will put up, nor can we make that guess. Our claim is structured to seek damages in a way that best circumvents their anticipated attempts to avoid judgment collection.
Obviously with an “all projects” class action there are more people to share the funds recovered. Does your research show there are funds available at the defendants named in the Statement of Claim to recover enough money?
Again, we are naming a large number of defendants, more than you would likely consider in a separate class action per investment, based on our research. We cannot make promises for things we do not control, but we remain confident we are positioned as widely and strongly as we can to maximize our opportunity to succeed and to get clients repaid. That is our first hope. We are chasing people, with the intent of trying to ensure that shell games cannot be used to hide money and claim an inability to pay. There are no guarantees that can be given when such a large number of investors have lost their money and it comprises such a large amount. However, we can assure you that our claim is structured to optimize our chances of getting you paid.
We have some partnerships that have been foreclosed upon and some that have assets that are worth something. Are you expecting the court to award damages to each partnership? If not, how will the recovered funds be distributed?
This is precisely why starting point is to get people their original investments back, many projects were lost in sale or foreclosure. Our research shows many projects are mixed up with others. We are looking at this lawsuit upon a progressive basis. We want to get back investors their original investment, plus interest and costs. Some sub-classes will fall off at that point. If investors want to continue beyond that, then sub-groups may continue. Additionally, some investors may drop out. The class suit we have in place is structured to accommodate such.
Besides my limited partnership investment, is there a chance that we will get a portion of the cash call that Platinum asked for in May of 2010 for $4,238.89 per unit?
These cash calls were made on various investments. For any investor that paid a cash call, please disclose that to us on your investor form. This becomes part of your loss and your 1% retainer fee will have to include 1% of that cash call, since it makes up your loss. We will seek the return of these cash calls.
If we are successful, how do we get paid?
This is somewhat answered above. Of course, the manner of collection will depend on what settlement or judgment occurs with what defendants. Many of the defendants currently have assets, but we do not control what the defendants will do with what assets in the meantime, so this question cannot be precisely answered at this time. Suffice to say that the strongest indication of our confidence that there will be a payment of judgment or settlement is the fact that we are working on a contingency agreement. If there is no collection, we do not get paid that portion of our fee. We do not guarantee success or collection, but we feel that this lawsuit is the best method for investors to pursue to get their money back.
Is this lawsuit my only option? Do you take over all other lawsuits with this class action?
No, you can choose to be a Tier 1 or Tier 2 client of ours or you can pursue your own lawsuit. Once we get to the certification stage, all investors will have the opportunity to “opt out” of this class action lawsuit. This right is provided by the Class Proceedings Act. If you opt out of this lawsuit, you can pursue your own claim, independent of other investors.
Why is there a sample Contingency Agreement on your website? I do not understand some of it.
This is a sample of the contingency agreement that personal representatives have to sign on behalf of all investors in that particular investment. At the recent town hall meeting, an investor asked if we could post it online, so that he could see what the terms of the agreement were, particularly our fee, prior to deciding whether to join our action. As these agreements have to eventually be included in an Affidavit and approved by the Court, we made the unusual decision to post the agreement. Note, that only the proposed personal representative plaintiffs have to sign these agreements, not regular Tier 1 or 2 clients.
This contingency agreement is in the general format suggested by the Law Society of Alberta. As such, it references “structured settlement payments” and other things that do not necessarily apply to this situation, and uses very generic language. If you have questions about the agreement, they are most likely answered in the FAQs above.
We look forward to working with you.