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Post by goodolboy on May 2, 2011 12:51:10 GMT -5
So, you have become bhollenegg then. You refuse to discuss facts, because one doesn't simply follow 100% in your footsteps. Where's the objectivity in that? And, why would it be important for me to be swayed backwards 10 steps? I already have found peace of mind and wish only the same for you. But, you choose to act like a 12 year old, who takes his ball and goes home only because you think you should be able to take all the shots in the game. I mean really! Bobby has an excuse for his behavior... he's just your run of the mill drunk. What's your excuse for acting exactly the same way as he? When you want to understand the facts, let me know. I'd be happy to discuss it with you and your attorney any time. GOB, I have long ago realized when I come up against a person I cannot sway, I let them go. I wish you good luck with Tyler.. They have served you well so far. I will let it to Mr. Fryar to clear the air, once and for all. This discussion is over, as far as I am concerned, and I will not reply to further posts about this. Jerry WB
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Post by wolfbela on May 2, 2011 13:31:23 GMT -5
Shareholders,
I invite you to review this Exhibit from the Roger Glenn case. This file is of meeting notes of the CMKX Board of Directors rewarding themselves with share purchase options..
I find this very interesting, being there is no real value in the company..www.zshare.net/download/897044347652386d/I hope someone can explain this to me.. Sincerely, Jerry
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Post by goodolboy on May 2, 2011 14:19:28 GMT -5
Shareholders,
I invite you to review this Exhibit from the Roger Glenn case. This file is of meeting notes of the CMKX Board of Directors rewarding themselves with share purchase options..
I find this very interesting, being there is no real value in the company..www.zshare.net/download/897044347652386d/I hope someone can explain this to me.. Sincerely, Jerry It has it's own thread now. Answer provided.
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Post by wolfbela on May 2, 2011 15:12:10 GMT -5
GOB,
Don't buy it.. That is not an answer.. that is speculation..
How about the speculation that they know there is money waiting for us and they want to load up on shares without the other shareholders knowing so they can cash in..
You know, at some point, when you support suspect activity endlessly without any objective viewpoint, we will show you the door.. PERIOD..
Agendas will not be tolerated here or the pushing of illegal activity. We have an honest action coming up.. This should have been made public... Why wasn't it.. Cause obviously they didn't want to make it public.. The Board has time for this, but can't investigate Hodges.. give me a break...
J WB
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Post by goodolboy on May 2, 2011 15:52:45 GMT -5
GOB, Don't buy it.. That is not an answer.. that is speculation.. How about the speculation that they know there is money waiting for us and they want to load up on shares without the other shareholders knowing so they can cash in.. You know, at some point, when you support suspect activity endlessly without any objective viewpoint, we will show you the door.. PERIOD.. Agendas will not be tolerated here or the pushing of illegal activity. We have an honest action coming up.. This should have been made public... Why wasn't it.. Cause obviously they didn't want to make it public.. The Board has time for this, but can't investigate Hodges.. give me a break... J WB Of course you don't. That's because you still believe in a $3.87 trillion trust fund. As I said, you are biased, which will not serve to your benefit.
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Post by wolfbela on May 2, 2011 16:10:36 GMT -5
GOB,
Don't tell me what I believe and know.. I never said I believe there is a 3.87 trillion dollar trust.
I do believe there is something for us, trust, settlement, call it what you like, that various entities already have their hands on and/or are waiting us out to get to it...
You speak of Tyler being a public upstanding company. There was no effort on Tyler's part to make this public, because they knew exactly what the reaction would be.
Are you their PR guy now??
Must be a thankless job..
J WB
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Post by siriusnews on May 2, 2011 16:36:25 GMT -5
Goodolboy,
wow you have all the answers. that is great. do tell us more
siriusnews
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jimmyd
Bonafied Millionaire
Posts: 25
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Post by jimmyd on May 2, 2011 16:55:07 GMT -5
The minutes of most companies are not made public. Why should this be any different?
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Post by goodolboy on May 2, 2011 17:08:27 GMT -5
GOB, Don't tell me what I believe and know.. I never said I believe there is a 3.87 trillion dollar trust. I do believe there is something for us, trust, settlement, call it what you like, that various entities already have their hands on and/or are waiting us out to get to it... You speak of Tyler being a public upstanding company. There was no effort on Tyler's part to make this public, because they knew exactly what the reaction would be. Are you their PR guy now?? Must be a thankless job.. J WB But, you still approach this from a biased position. You still believe that a trust exists, that a settlement was made. You have never been provided with the first shred of evidence to support that claim, and neither has Tyler. As for Tyler's PR guy... not a chance. I couldn't possibly deal with the level of ignorance I see in CMKXLAND daily. And no, I'm not referring to you, but you are starting to worry me, lol! J/K
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Post by siriusnews on May 2, 2011 20:32:52 GMT -5
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Post by wolfbela on May 2, 2011 20:38:44 GMT -5
Richard,
Just trying to keep it in a warm fuzzy place..
No more debates..
For me, now.. it is all about Fryar....
J WB
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Post by siriusnews on May 2, 2011 21:20:35 GMT -5
Jerry
Agree, many here just looking for trouble and negativity. get the Fryar Action going and we can sit back and wait for his info and keep in touch with each other a few hours a week on Sunday night, instead of the non sense 24/7 and the rumors.
I'm with you Jerry, i see how they twist things around and attack you, pretty sad, but they are here for many reasons and some have legit questions and others just purposely stirring up trouble with silliness. You & I and others do not have time for debates, rumors and silliness.
I've got your back
Richard
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Post by alrich on May 7, 2011 20:06:00 GMT -5
zeninvestor32 Diamond Guru Emeritus ****** member is offline Joined: May 2005 Posts: 682 Karma: 0 MY LAST WILL AND TESTAMENT « Thread Started on Yesterday at 2:44pm » In case you haven’t noticed, at the current OS of 703B shares, an equitable distribution of the 45M Entourage shares (original 50M minus the canceled 5M) would entitle each shareholder to 1 share of Entourage for every 15, 620 shares. This is effectively a 15,620:1 reverse split. I find it so interesting that for the $34k I laid out for my shares, I will receive a whopping 4800 shares of Entourage valued at .22, or about $1k. Just for the record, prior to revocation, I could have sold my cmkx for $7500 and bought 35k shares of Entourage. But thankfully, I showed loyalty and faith in management and that has been rewarded with KY Jelly and yet another practically worthless, restricted dividend showing an immediate loss of 97% on my money. And this took 18 months to “resolve” ? All I can say is that when the class action lawsuit against UC and others is filed, I’ll be among the first to sign up. The only word that can sum up my feelings at this point is “disgust”. While there is still hope that this was all a sting masterminded by Maheu, I no longer can buy it. I’ve just been beaten senseless by logic and empirical data that suggests otherwise. Accordingly, I am departing the world of message boards permanently. The strain of 18 months that this stock has place on my life could never be worth it no matter HOW MUCH money anyone makes on this stock. I have wasted 18 months of my life on this cesspool of a security and I will not waste another day. My life is FAR more valuable than the torture that CMKX and its incompetent officers, directors, JVs and other associated entities have put me through. NOTHING, absolutely NOTHING is worth this insanity. LAST WILL AND TESTAMENT TO URBAN CASAVANT, I leave a fingernail because even my lifeless, fingernail shaving has more common sense, more integrity, more responsibility, and more courage than your humpty pumpty, gutless performance in this lifetime. TO BOB MAHEU, I leave my testicles because you’ve already had them in a vice for the past year and have kept turning and turning no matter how painful or unbearable it has been. So I am asking that you just cut them off and keep them rather than continuing to torment me in unspeakable ways. TO THE BASHERS, I leave you a slug. After all, everyone needs something to aspire to. TO THE PUMPERS SUCH AS JAY ADOBE, I leave you a prescription for lithium, known to treat bipolar, manic episodes and whatever else may be causing your delusional states. TO THE SHORTS, I leave you bronzing lotion to help develop a deep, dark tan during your eternity in H ell. TO THOSE THAT HAVE WISHED ME WELL OVER THE PAST 18 MONTHS, I leave my sincere thanks and gratitude and my deepest wishes that this resolves itself positively for all of us. Signed: Zeninvestor32 Good luck to those that continue to fight the fight. After 18 months of ruthless savagery, I refuse to waste one more second on cmkx. This has been one of the saddest, most pathetic episodes in our financial markets and more importantly, in our markets’ regulatory bodies. I am truly 100% disgusted at the way I have been treated. Cockroaches don’t even deserve the indignity that I and fellow shareholders have suffered. To anyone and everyone that has stuck it to us shareholders, you are forever a sworn enemy. I will attend Urban’s trial and will only break a smile if the verdict is a mandatory 20 years without parole. I still have hope but it’s only a sliver at this point. There are good people in this stock. What has been done to them is shameful and nauseating.
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Post by wolfbela on May 13, 2011 7:44:57 GMT -5
New letter posted by Atty. Hodges.. www.scribd.com/full/55327045?access_key=key-13pvkaap2mwr3wd4dv87If you note on the actual letter on scribd..Atty. Hodges says he only represents the plaintiffs in the lawsuit.. none other.. For those on the fence of the Fryar action, this is something to consider. I have forwarded this letter to the Fryar office for further consideration.. I think we need representation now more than ever cculotta@fryarlawfirm.comJerry WB
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Post by alrich on May 13, 2011 11:55:31 GMT -5
Let's NOT get detered from the goal of looking for the Trust, WGS shouldn't be part of that. The Hodges letter looks like an intentional distraction, so the Fryar effort stalls.
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Post by wolfbela on May 13, 2011 12:52:45 GMT -5
Alrich,
The last 6 years have been an intentional distraction..
J WB
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Post by wodan11 on May 16, 2011 10:16:03 GMT -5
paid today me
i am in
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Post by wolfbela on May 16, 2011 10:26:12 GMT -5
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Post by siriusnews on May 16, 2011 10:30:43 GMT -5
ok Wodan, good to hear. hope all the others did also. then we as a small group ( 100 cmkx'ers ) can now move forward to step 2 soon. We will Unite as this small group.
Richard
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Post by siriusnews on May 16, 2011 10:48:39 GMT -5
we are up to $19,150 and climbing. be part of this new CMKX group and the Fryar movement contact Jerry and get involved
cmkxjustice@yahoo.com or go to the cmkxshareholder web site and click on the link Fryar.
Richard
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Post by alrich on May 16, 2011 10:52:59 GMT -5
Federal Case Settled: Can Court Help With Enforcement Disputes? Know the options and manage the risk. Jennifer F. Beltrami ContactAll Articles
New York Law Journal May 16, 2011 Twitterdel.icio.us DiggRedditGoogle BookmarksNewsvineLinkedInMixxStumbleupon PrintShareEmailReprints & PermissionsPost a Comment In reaching a voluntary settlement, parties to federal litigation often want the court to retain jurisdiction for purposes of enforcing the settlement. Unless the court expressly retains jurisdiction, however, federal subject matter jurisdiction may not exist if judicial intervention is needed to enforce the settlement. A dispute arising from settlement of a federal case will not itself confer federal subject matter jurisdiction, unless diversity jurisdiction is present and the parties start a new action.
But will an order retaining jurisdiction effectively transform the settlement into a consent decree, exposing the parties to potential contempt sanctions for any future breach of the agreement? Or can the parties structure the settlement and dismissal to avoid such exposure?
And what if the parties have agreed to keep the settlement terms confidential: Can they do so and still provide for retention of federal jurisdiction?
The answer to the first question is yes, probably, but the parties must carefully craft the settlement and dismissal order. The answer to the second question is yes, but it is ultimately a matter of judicial discretion.
Retaining Federal Jurisdiction
If the parties want disputes over settlement of a federal case to be resolved in federal court, it is not enough to simply so state in a private settlement agreement that is not "so-ordered" by the court.
Those under the impression that they can, as a matter of right, go back to a federal judge and seek enforcement of a settlement agreement that resulted in the dismissal of the case are mistaken. In Kokkonen v. Guardian Life Ins., 511 U.S. 375 (1994), the U.S. Supreme Court delineated clear guidelines for the retention of federal jurisdiction.1
In Kokkonen, the Court found that the district court lacked jurisdiction to enforce a private settlement agreement resulting in the dismissal of the action. If the parties want the district court to have such authority, the Court held that they need to make "the parties' obligation to comply with the terms of the settlement agreement…part of the order of dismissal, either by separate provision (such as a provision 'retaining jurisdiction' over the settlement agreement) or by incorporating the terms of the settlement agreement in the order."2
Thus, there are at least three ways to ensure that a federal court retains jurisdiction after settlement. The parties may:
1) include a provision in the dismissal order that the court is retaining jurisdiction; 2) provide in the settlement agreement itself that the court is retaining jurisdiction and expressly incorporate the agreement in the dismissal order by reference; and/or 3) provide in the settlement agreement itself that the court will retain jurisdiction, and have the court "so-order" the agreement. Contempt and Attorney's Fees Risks
But what if one or more of the parties wants to avoid subjecting themselves to contempt sanctions for any alleged violation of the settlement agreement? And what if the parties want to avoid potential liability for "prevailing party" attorney's fees? Will the steps needed to retain federal jurisdiction give the settlement the force and effect of a consent decree and create such exposure?
Obviously, the latter issue, "prevailing party" attorney's fees, may be resolved as part of the substantive settlement. However, absent such agreement of the parties, the law in the Second Circuit is clear that if the court retains jurisdiction through any of the above mechanisms, the settling party "who has been awarded some relief by the court" will be entitled to prevailing party attorney's fees.3
In Roberson v. Guiliani, the dismissal order expressly stated that the court was retaining "jurisdiction over the settlement agreement for enforcement purposes" but did not otherwise incorporate or refer to the settlement agreement's terms.4 The settlement agreement provided that it was not effective unless and until a dismissal order was entered in which the court retained jurisdiction. In the settlement agreement, the defendant denied liability, but agreed to certain procedural changes.
The Second Circuit found that under those circumstances the plaintiff was entitled to prevailing party attorney's fees, because even though the court "had not specifically reviewed or approved the terms of the settlement agreement," the settlement represented a "judicially sanctioned" change in "the legal relationship of the parties."5
Thus, it would appear that in the Second Circuit there is no procedural mechanism for avoiding "prevailing party" attorney's fees and also retaining federal jurisdiction in circumstances otherwise giving rise to such an attorney's fees claim.
As for the impact of retention of federal jurisdiction on potential contempt sanctions, this question is not as clear; the Roberson court called it an "open question" in the Second Circuit.6
Notably, in Roberson, the appellate court did not disagree with the district court's finding that it lacked authority to impose contempt sanctions. The district court had so found based on a prior Second Circuit ruling, Hester Indus. Inc. v. Tyson Foods Inc., which held that a district court could not enforce a settlement agreement through its contempt power.7
In Hester, however, the district court had not retained jurisdiction to enforce the settlement agreement by one of the mechanisms specified in Kokkonen, meaning that the settlement terms did not have the force and effect of a court order, and, in turn, meaning that the court lacked authority to enforce the settlement by means of contempt sanctions.8
What if the court does properly retain jurisdiction? Would that be enough to subject the parties to contempt for violation of the settlement terms? The Roberson court suggested that the court might "need to take an extra step by first ordering specific performance and then, if a party does not comply, finding that party in contempt."9
The party seeking to avoid potential contempt sanctions would be advised to opt for the mechanism whereby the court retains jurisdiction by a provision so stating in the dismissal order, without expressly incorporating the settlement agreement into the dismissal order, without conditioning effectiveness of the settlement agreement upon entry of the dismissal order, and without "so ordering" the agreement. Even so, the question of whether contempt sanctions would be available under such circumstances appears to be an open one in the Second Circuit.
Preserving Confidentiality
What about issues of confidentiality? Can the parties keep the terms of their settlement confidential, yet at the same time provide for retention of jurisdiction in the federal court?
The answer is yes, because the settlement agreement itself need not be filed with, or even signed by, the court, in order for the court properly to retain jurisdiction. The judge, however, may insist upon reviewing and signing the agreement over which the court is retaining jurisdiction, even if not actually legally required to approve the settlement (such as would be required in a class action, for example). Under those circumstances, the parties should apply to file the settlement agreement under seal.
The standard applicable to a request to file a document under seal was articulated in United States v. Sattar as follows:
A court must undertake a three-part inquiry to determine whether there is a common-law right of access to a document submitted to the court. First, a court must determine whether the document is a "judicial document," such that a presumption of access attaches. Second, if the document is indeed a "judicial document," the court must determine the weight to be accorded the presumption of access. Finally, after determining the weight of the presumption of access, the court must balance any countervailing factors against the presumption.10
An application to file a settlement agreement under seal should normally be granted, because a settlement agreement is not a "judicial document" (a document filed with the court that is "relevant to the performance of the judicial function," United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995)). As one court observed, a settlement agreement is "probably not a 'judicial document' [if] it was submitted at the Court's request and was not the basis of any decision or action by the Court."11
This argument will, of course, bear more weight in those cases where the terms of the settlement agreement are not incorporated in the dismissal order and where the effectiveness of the settlement is not conditioned upon entry of the dismissal order. The argument is that the settlement agreement was not "presented to the court to invoke its powers or affect its decisions."12 Thus, it is not a judicial document.
Even if a settlement agreement were deemed to be a judicial document to which a presumption of access attaches, any such presumption would be extremely weak.13 And, in any case, even if such a presumption attaches, it is easily overcome.14
As the Second Circuit stated in Glens Falls, in determining whether a presumption of access is overcome, "[o]ne consideration is whether release of the materials is likely to impair in a material way the performance of Article III functions."15 As "fostering settlement of any case or controversy is an Article III function," where the parties' settlement is conditioned on confidentiality, denying a request to seal might impair the settlement.16
Thus, any presumption of access (if such a presumption even exists) is greatly outweighed by the "need of our district courts and civil litigants to facilitate efficient resolution of disputes through negotiated settlements."17
Conclusions
To ensure that the federal court resolves any disputes under a settlement agreement, the parties must be mindful of the procedural requirements for retention of jurisdiction and the fact that such retention may expose them to contempt sanctions for breach of the agreement.
If the parties wish to avoid giving their settlement such force, they should structure the settlement and dismissal to clarify as much as possible that the court has only ordered that it retains jurisdiction, and has not ordered the terms of the settlement itself.
Finally, although issues of confidentiality are always a matter of judicial discretion, in the Second Circuit such issues should be easily resolved by excluding the confidential settlement terms from the filed documents, or by filing under seal.
Jennifer F. Beltrami is a partner in the New York office of Cozen O’Connor.
Endnotes:
1. Kokkonen v. Guardian Life Ins., 511 U.S. 375 (1994).
2. Id. at 381.
3. Roberson v. Giuliani, 346 F.3d 75, 79 (2d Cir. 2003), quoting Buckhannon Bd. & Care Home Inc. v. W.Va. Dept. of Health & Human Res., 532 U.S. 598 (2001).
4. Roberson, 346 F. 3d at 78.
5. Id. at 79, 82-83. The court gave significant weight to the fact that the settlement agreement did not take effect until entry of the dismissal order in which the court retained jurisdiction.
6. Id. at 83 n. 9.
7. 160 F.3d 911 (2d Cir. 1998).
8. Id. at 917.
9. Roberson, 346 F. 3d at 83. In Roberson, the decision did not rest on this question, as the court found the issue of "prevailing party" attorney's fees to be independent of the contempt issue.
10. 471 F. Supp. 2d 380, 384 (S.D.N.Y. 2006) (citing United States v. Amodeo, 71 F.3d 1044 (2d Cir. 1995) ("Amodeo II")).
11. Schoeps v. Museum of Modern Art, 603 F. Supp. 2d 673, 674, 676 n.2 (S.D.N.Y. 2009) (preserving confidentiality of settlement agreement even where court was of the view that the action and the settlement presented "issues of considerable public import").
12. Amodeo II, 71 F.3d at 1050.
13. United States v. Glens Falls Newspapers Inc., 160 F.3d 853, 858 (2d Cir. 1998) (presumption of access to settlement document is "negligible to nonexistent"); Gambale v. Deutsche Bank AG, 377 F.3d 133, 143 (2d Cir. 2004) ("no established presumption of access" with respect to terms of private settlement agreement; confidentiality of settlement maintained "when the settlement itself was conditioned on confidentiality and when the settlement documents were not filed with the court and were not the basis for the court's adjudication").
14. Gambale, 377 F.3d at 136, 143-144 (absent "further showing of public interest in the disclosure of the settlement amount, [defendant's] reasons for maintaining the confidentiality [simply that the parties had so agreed in a private settlement] easily overcome the markedly weak presumption of access here").
15. Glens Falls, 160 F.3d at 857.
16. Id.
17. Palmieri v. State of New York, 779 F.2d 861, 864 (2d Cir. 1985) (holding that the district court erred in lifting a sealing order that applied to a settlement agreement); see also Schoeps, 603 F. Supp. 2d at 676 ("the Second Circuit strongly endorses the confidentiality of settlement agreements in virtually all cases") (emphasis added); Federal Dep. Ins. Co. v. Ernst & Ernst, 92 F.R.D. 468, 472 (E.D.N.Y. 1981), aff'd 677 F.2d 230 (2d Cir. 1982) (calling "ecrecy of settlement terms" "a well-established American litigation practice").
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Post by siriusnews on May 16, 2011 11:19:04 GMT -5
Alrich
can you give us a quick summary here to what it all means
richard
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Post by alrich on May 16, 2011 11:21:46 GMT -5
Richard, nothing particular, except imo, Hodges could be doing alot more in getting us paid.
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Post by honesty1959 on May 17, 2011 6:55:02 GMT -5
All 7 of us plaintiffs...Or is it five? d**n I am so confused....lol
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Post by alrich on May 18, 2011 9:48:22 GMT -5
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Post by siriusnews on May 18, 2011 10:09:24 GMT -5
Alrich
Rome was not built in a day. Once he legally is representing us, as stated by Jerry we will see it.
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Post by alrich on May 18, 2011 12:42:52 GMT -5
Richard, I paid my $250.00, and when we hit the $25,000 mark imo, we should be allowed to read it. I'd like to know what Hodges has been doing for us lately.
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Post by wolfbela on May 18, 2011 14:07:09 GMT -5
Alrich,
When we hit the 25, we will.. I don't know that we have..
We have to fulfill our terms of the agreement, which we haven't yet..
A little patience, and/or some more money from people who said they committed to Fryar would be the answer at this point..
I am waiting for an update as to our status. Remember, this office has other clients and are not dropping everything because you paid $250 or because we are CMKX shareholders. That's how the real world works. We have to wait our turn, and get to the amount of engagement first..
Obviously not much is going on with Hodges..We are at the same place as we were in 2010.
J WB
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Post by alrich on May 18, 2011 15:04:33 GMT -5
Yes Jerry, appreciate you getting Fryar. So the last email said it looked like 200 people filled out the contracts, if all pay, it will mean $50,000.00/wow. Don't worry, I am not bothering Fryars' Office, I see your our primary contact. I just hate waiting the whole summer for answers. Thank you again.
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Post by wolfbela on May 18, 2011 15:08:11 GMT -5
Alrich,
Just because 200 want to look at the contract doesn't mean they are going to participate and pay up..
I would count on half..
I hope, as per my conversation with Chad the other day, that we know something by the end of August..That is certainly not a long time, considering how many years we have waited.
Jerry WB
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