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Has the other shoe dropped on US CMO’s and CDO’s, per BIS?

Location: Blogs Bud Burrell - Front and Center    
Posted by:   bburrell 6/29/2007 8:27 PM

In its June 24th report, the Bank for International Settlements indicated its analyses had to allow for the forecast of a Global Financial Depression (their word), to be precipitated by a collapse of US Real Estate Markets.  This evening, I received multiple unconfirmed reports from independent reliable sources indicating they had been informed that the positions of CMO’s and CDO’s held by US investment entities had been marked down by as much as 80 (EIGHTY) Percent on Short and Intermediate Term holdings.  This will have to hit the hedge funds and Private Equity markets like a bullet if proven to be only partially true.

 

 

In it's report, the BIS used a controversial word “Depression” (and they avoid inflammatory words like the plague) to describe what they thought might happen if US Real Estate and related financial markets were to meltdown.  It is not exactly rocket science to understand that such horrific mark downs of major portfolio holdings would trigger catastrophic margin calls on leveraged portfolios.  In turn, this would meltdown all securities in the US and globally, in that they would have to be sold in a non-orderly manner on a massive scale to satisfy said margin calls.  This process would be a never ending cascade of more calls triggering more calls.

 

In my previous Blog post, I compared the current US markets’ overall conditions as being very similar to the environment in Japan in the Mid-1980’s.   After 9/11, and in the middle of a major bear market, the Federal Reserve made easy, low cost money very plentiful, and particularly in the period of 2002 to 2005, rates cratered to the lowest levels of 40 years.  Literally trillions of dollars of mortgage and debt obligations were put out by US banks to help avoid a financial depression following the continuing collapse of markets post 9/11. In fact, some 30 mortgage money went out at prices as low as 5%, a level not seen since the 1950’s. 

 

Today, Prime is at 7.5% and these financial assets if properly marked to market are hugely underwater. 

 

Only time will tell, but we may see the impact of how a highly efficient information distribution paradigm could hit this market like a thousand foot tall Tsunami moving at the speed of sound.

 

I can’t come up with a forecast of anywhere to hide, unless the Fed goes into denial, and pulls a Japan Central Bank position out.  Their options are limited to turning on the presses, or moving to Vanuatu for 50 years.  Either position wrecks everything, irrespective of the choice.

 

We all need to say a prayer here, no matter what your religious beliefs.

Copyright ©2007 Bud Burrell
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Comments (52)
Re: Has the other shoe dropped on US CMO’s and CDO’s, per BIS? By gregcable2002 on 6/30/2007 8:17 AM

http://www.telegraph.co.uk/money/main.jhtml?xml=/money/2007/06/26/cnusecon126.xml&CMP=ILC-mostviewedbox

Banks 'set to call in a swathe of loans'
By Ambrose Evans-Pritchard
Last Updated: 7:25am BST 26/06/2007



The United States faces a severe credit crunch as mounting losses on risky forms of debt catch up with the banks and force them to curb lending and call in existing loans, according to a report by Lombard Street Research.


Bear Stearns headquarters in New York


The group said the fast-moving crisis at two Bear Stearns hedge funds had exposed the underlying rot in the US sub-prime mortgage market, and the vast nexus of collateralised debt obligations known as CDOs.

"Excess liquidity in the global system will be slashed," it said. "Banks' capital is about to be decimated, which will require calling in a swathe of loans. This is going to aggravate the US hard landing."

Charles Dumas, the group's global strategist, said the failed auction of assets seized from one of the Bear Stearns funds by Merrill Lynch had revealed the dark secret of the CDO debt market. The sale had to be called off after buyers took just $200m of the $850m mix.

"The banks were not prepared to bid over 85pc of face value for CDOs rated "A" or better," he said.

"God knows how low the price would have dropped if they had kept on going. We hear buyers were lobbing bids at just 30pc.

"We don't know what the value of this debt is because the investment banks shut down the market in a cover-up so that nobody would know. There is $750bn of dubious paper out there in the form of CDOs held by banks that have a total capitalisation of $850bn."

advertisementUS property writer Paul Muolo described the Bearn Stearns crisis as the “subprime Chernobyl”, saying the bank had created a “cone of silence”.

Abandoned by fellow banks, Bear Stearns has now put up $3.2bn of its own money to rescue one of the funds, a quarter of its capital.

This is the biggest bail-out since the Long-Term Capital Management crisis in 1998, which Bear Stearns refused to join at the time. Bear Stearns is now alone, a case of rough justice being served.

Lombard Street’s warning comes as fresh data from the US National Association of Realtors shows that the glut of unsold homes reached a record of 8.9 months supply in May. Sales of existing homes slid to an annual rate of 5.99m.

The median price fell for the 10th month in a row to $223,700, down almost 14pc from its peak in April 2006. This is the steepest drop since the 1930s.

The Mortgage Lender Implode-Meter that tracks the US housing markets claims that 86 major lenders have gone bankrupt or shut their doors since the crash began.

The latest are Aegis Lending, Oak Street Mortgage and The Mortgage Warehouse.

“There isn’t a recovery about to happen,” said Ara Hovanian, head of the building group Hovanian Enterprise.

Nouriel Roubini, economics professor at New York University, said there were now concerns about “systemic risk fall-out” from the Bear Stearns debacle as investors look more closely at the real value of CDOs.

“These highly illiquid securities have been priced so far on unrealistic and distorted credit ratings as the ratings industry has been complicit,” he said.

“They have not been rerated in a way that is consistent with rising subprime default rates. “That is why Wall Street is in a panic. “Losses will be massive once these assets are correctly priced to market.”

Lombard Street said the Bear Stearns fiasco was the tip of the iceberg. The greatest risk lies in the “toxic tranches” of lower grade securities held by the banks.

Much-trumpeted claims that banks had shifted off the riskiest credit exposure on to the asset markets was “largely a fiction”, said Mr Dumas

. The worst of the US property crisis has yet to hit since there is an overhang of $2,000bn of mortgages with adjustable rates which have yet to be reset. Many borrowers could see payments jump by half, or even double.

At the same time, a spike in 10-year US bond yields by 0.65 percentage points over the last six weeks has drastically repriced the cost of fixed mortgages, knocking away a key prop for the US housing market.

“With defaults at their highest in the 37 years that records have been kept, it could be a long hot summer,” said Mr Dumas.


Re: Has the other shoe dropped on US CMO’s and CDO’s, per BIS? By gregcable2002 on 6/30/2007 8:18 AM
750 billion in dubious paper?We are in trouble,BIG trouble,I hope we can nail those who allowed this to happen.
Re: Has the other shoe dropped on US CMO’s and CDO’s, per BIS? By captdale on 7/24/2007 6:19 AM
Hi Bud - Thank you. You said: There is a way to fix that, but I don't have any evidence NFI knows how to do it.
-------------
Someone was thoughtful enough to tell Patrick Byrne about his upcoming challenges when his battle first began. I wonder if someone will try to advise NFi about "how to do it". That would be a nice thing.
Re: Has the other shoe dropped on US CMO’s and CDO’s, per BIS? By captdale on 7/25/2007 7:26 AM
Hi Bud - What exactly does NFI need to to do to fix it.

Reply: NFI's counsel would need to contact me to get that answer in priviliged form.
Re: Has the other shoe dropped on US CMO’s and CDO’s, per BIS? By Valueinvestor on 7/26/2007 10:14 AM
Bud: congtratulations on PVTM's meteoric rise in such a short time...care to explain why this may have happened ?

Back to the ever tantalizing story on USXP...you have been a big supporter of Richard Altomare's position on naked shorting and have advised him on legal matters and matters on naked shorting in the past...the entire subject appears to be getting some real momentum, especially with Senator Bennet's excellent "dummied-down" speech on naked shorting on the senate floor the other day...but the USXP shareholders continue to be bamboozled by the lack of any substantive acquisition or funding by this company, in spite of repeated, forward looking statements by the CEO, many as late as last friday...your thoughts on why he appears to be unable to consummate a single, meaningful transaction that could dramatically increase the revenues for this company once and for all ?...is it the SEC guys breathing hard down his neck ?...is it the funders/interested parties being harassed by the SEC and others ?...most of us feel Richard is figthing a gallant fight with all he has got, quite like a marine would...but we are amazed at the lack of consummation of a single promise he has made repeatedly on funding, acquisitions, etc. Your educated thoughts on this would be greatly valued and appreciated...also, what in your opinion made the stock price rise for this company almost 10,000% last year (in Feb/March) inspite of no real news ? Was it the supposed buying pressure from the middle east, or the fear that the Airnet (ANS) acquisition Richard anounced might actually happen and the company catapult on to the AMEX ? In other words, is the fear of a heavily naked shorted BB company making big acquisitions and thereby qualifying to move on to one of the big three U.S. exchanges a credible enough threat for the shorts running helter-skelter to cover ? Believe me, all of us affected by the scam perpetrated by the big houses would have more faith in the fact that small companies are being naked shorted to death and do more than we currently do ifffff the story on companies like USXP were a bit more transparent...even your friend Mr. Patch cannot understand why Richard is issuing so many shares so fast and thus diluting the positions of the ordinary shareholders...

Reply: With all due respect to other "observers", neither the Company nor its counsel has to explain this to anyone other than a Jury now. The Government could have used a more rational approach, but they chose the path they are on.

There is a lot more going on here than anyone outside the equation is aware of. These facts will come out in due time.
Re: Has the other shoe dropped on US CMO’s and CDO’s, per BIS? By Valueinvestor on 7/26/2007 12:17 PM
Thanks Bud...you are a beacon of hope to many of us...I am sure you knew that...
Re: Has the other shoe dropped on US CMO’s and CDO’s, per BIS? By captdale on 7/30/2007 9:49 AM
Hi bud - you said: NFI's counsel would need to contact me to get that answer in priviliged form.
-----------------
Well - I e-mailed Scott Hartman with a short discussion on this and gave him your phone number and also the contact information for Dr. Trimbath who had told me the same thing. If he will do that or not remains to be seen. Probably not as he is IMHO somewhat arrogant. I reminded him that "no action" by NFI to address this issue could be construed by some as a gross lack of Corporate Due Diligence.

Reply: The very first in depth report I wrote for a client was for a sub-prime mgte lender. I would be happy to speak with him. If he is arrogant, it is a reflection of insecurity. I know more about this than anyone I know, and I know that I don't know half the serious s---. If he can't reach out for help, he is not only a fool, he is guilty of a gross breach of his fiduciary duties. I won't hold my breath. Thanks to you for your efforts either way.
Re: Has the other shoe dropped on US CMO’s and CDO’s, per BIS? By captdale on 7/30/2007 9:51 AM
Good morning Bud - Would you like to discuss the envolvement of the PPT in what is going on at this moment in the market ? In relation to the NSS/FTD issue.

Reply: What is PPT? I may be having a senior moment, but I don't recognize this.

There is a Senate Banking Committee tomorrow, from which I expect nothing. It is a reality of Presidential election politics.
Re: Has the other shoe dropped on US CMO’s and CDO’s, per BIS? By captdale on 7/30/2007 1:17 PM
(PPT) The Working Group on Financial Markets (also, President's Working Group on Financial Markets or the Working Group) was created by Executive Order 12631,[1] signed on March 18, 1988 by United States President Ronald Reagan.

The Group was established explicitly in response to events in the financial markets surrounding October 19, 1987 ("Black Monday") to give recommendations for legislative and private sector solutions for "enhancing the integrity, efficiency, orderliness, and competitiveness of [United States] financial markets and maintaining investor confidence".[1]

As established by Executive Order 12631, the Working Group consists of:

the Secretary of the Treasury, or his designee (as Chairman of the Working Group);
the Chairman of the Board of Governors of the Federal Reserve System, or his designee;
the Chairman of the Securities and Exchange Commission, or his designee; and
the Chairman of the Commodity Futures Trading Commission, or her designee.

[edit] "Plunge Protection Team"
A conspiracy theory regarding the Working Group refers to it as the Plunge Protection Team. This theory claims that the Working Group is a scheme to manipulate U.S. stock markets in the event of a market crash by using government funds to buy stocks, or other instruments such as stock index futures.

The term "Plunge Protection Team" was originally the headline for an article in The Washington Post by staff writer Brett D. Fromson, published on Sunday, February 23, 1997.[2] It is commonly believed that he did not invent the term; that it was added later by a copy desk editor as a sensational nickname for the Working Group.[citation needed]

Upon that suspicion, Plunge Protection Team or PPT for short, has become a catch phrase among those who warn about the danger of monetary inflation being used as a tool to more or less directly support stock market prices.[citation needed]


[edit] Notes
^ a b http://www.archives.gov/federal-register/codification/executive-order/12631.html
^ http://www.washingtonpost.com/wp-srv/business/longterm/blackm/plunge.htm


Reply: I know quite a bit about the Plunger Protection Team, just didn't link the reference to the initials.

Thanks, Bud.
Re: Has the other shoe dropped on US CMO’s and CDO’s, per BIS? By anthony kalantzis on 7/30/2007 1:20 PM
What are the ODDS that Universal Express manages to covince judge lynch for a jury trial ??

Reply: The SEC previously agreed to the trial, but didn't tell Judge Lynch. He made findings of fact that were not within the scope of his authority. If he rules against the trial, he goes to the Court of Appeals.

If I were him, I would cut the nuts off the SEC lawyers, not just sanctions, but disbarment.
Re: Has the other shoe dropped on US CMO’s and CDO’s, per BIS? By captdale on 7/31/2007 8:42 AM
Hi Bud - Maybe the senate hearing on the stock market won't amount to much but the one following that might be interesting. That one will be: Pending Nominations to the Board of Governors of the Federal Reserve System. Maybe finally I will be able to find out who they are.
Re: Has the other shoe dropped on US CMO’s and CDO’s, per BIS? By captdale on 7/31/2007 11:53 AM
Hi Bud - You were correct. The Senate Hearing was just a bunch of political posturing for the most part. I found one item of interest. When Senator Bennett asked SEC Commissioner Cox when the rules changes to Reg SHO would be put into effect, Cox replied, after checking with his staff, "In October". He didn't however say what YEAR.
Re: Has the other shoe dropped on US CMO’s and CDO’s, per BIS? By Valueinvestor on 8/1/2007 12:58 PM
Bud..your thoughts on the SEC's response today to "The consolidated response from defendants Universal Express, Inc. ("Universal Express"), Richard A. Altomare ("Altomare") and Chris G. Gunderson ("Gunderson") (collectively herein "the Defendants") to motions filed by Plaintiff Securities and Exchange
Commission ("SEC") for the appointment of a receiver and for an order finding them in contempt"...these SEC lawyers are pushing extremely hard...I am afraid Judge Lynch has no choice but to side with them...given that this has a good chance to happen, what exactly are the options for Altomare ? Can he file the apeal in the 2nd circuit and thereby keep the wolves at bay ? Or will Judge Lynch's final order for disgorgement and removal of Altomare take effect while the appeal takes its own sweet time to play out ? Thanks as always...

Reply: The SEC has no shame. I am not a lawyer but it seems that the Appeal has to be heard and ruled on before any action could be taken.

Re: Has the other shoe dropped on US CMO’s and CDO’s, per BIS? By Sean on 8/1/2007 6:32 PM
Bud, what happened to the Eagletech case? If you can elaborate please do. I find it peculiar that nothing has been said otr done about this most cetain and proven miscarridge(sp) of justice. I would have expected something in the form of a lawsuit by now!!Something..

Reply: Their amended complaint is in process. The opposition is in no hurry to see it, and has offered them all the time they need to finish it. Eagletech want's it perfect, and they are working with their counsel to that goal.
Re: Has the other shoe dropped on US CMO’s and CDO’s, per BIS? By Valueinvestor on 8/2/2007 1:22 PM
Bud...assuming USXP gets its jury trial, does the company get to do discovery on the lines of Eagletech ? I was under the impression that the 100 or so pages of SEC documents Eagletech got its hands on was purely accidental, due to a clerical error on the part of some SEC employees. In a jury trial, can the USXP lawyers demand from the SEC/DTCC that the records on every trade with respect to USXP be made available to them to track their origin and nature ? if so, with the revoking of the GF clause already being in effect by the time of the trial, would not the naked shorts be in a bind from now to then to cover even before the trial begins ? Thanks as always...

Reply: The SEC produced 49,497 pages, not 100. What needs to happen is for USXP to find out what was produced that was valuable, which in a worst case, they can get from the Eagletech case by subpoena. It is what I would do were I in the shoes of USXP. The SEC badly miscalculated the due diligence capacity for analysis of EATC and its counsel.

For 80% of my career, I was an unqualified supporter of the SEC. I had to change my views only after observing incomprehensible conduct and conflicts of interest waged against the small investor and small public companies.

They will pay, here or when they have to face God. The latter should scare them much worse, the amoral scum.
Re: Has the other shoe dropped on US CMO’s and CDO’s, per BIS? By Sean on 8/4/2007 12:46 PM
Bud, I assure you they will pay and this is the start of it!!

Report Says S.E.C. Erred on Pequot
Michael Temchine for The New York Times

Gary J. Aguirre, a former staff lawyer for the Securities and Exchange Commission who was fired in September 2005, testified last year.

Published: August 4, 2007

The Securities and Exchange Commission bungled a promising investigation two years ago into suspicious trading at Pequot Capital Management, a giant hedge fund, according to the final report released yesterday by Congressional investigators looking into the matter

Among the commission’s failings, the report said, were delays in the Pequot investigation, disclosure of sensitive case information by high-level S.E.C. officials to lawyers for those under scrutiny, a detrimental narrowing of its scope after a meeting with a Pequot lawyer, and the appearance of “undue deference” to a prominent Wall Street executive that resulted in the postponement of his interview until after the case’s statute of limitations had expired.

The 108-page report by the Senate Finance and Judiciary committees under the leadership of Charles E. Grassley, Republican of Iowa, and Arlen Specter, Republican of Pennsylvania, caps a yearlong investigation into the S.E.C.’s firing of Gary J. Aguirre, a former staff lawyer, in September 2005.

Mr. Aguirre, who led the commission’s investigation into suspect trading by Pequot and its founder, Arthur J. Samberg, was fired after he complained that superiors had thwarted his efforts by barring his interview of John J. Mack, currently the chief executive of Morgan Stanley and a close friend of Mr. Samberg.

Mr. Mack was asked to testify before the S.E.C. last summer after Mr. Aguirre’s allegations had become public and Congress had begun investigating the commission’s handling of the matter. The S.E.C. closed the Pequot inquiry last fall without taking action against the fund or its management. A Pequot spokesman declined to comment on the report.

The Senate report said there was no evidence that Mr. Mack had provided information to Mr. Samberg or that Mr. Mack had done anything to prevent or delay his testimony.

“The investigation of Pequot Capital Management could have been an ideal opportunity for the S.E.C. to develop expertise and visibility into the operations of a major hedge fund while deterring institutional insider trading and market manipulation through vigorous enforcement,” the report said. Instead, the S.E.C.’s inquiry was undermined by a series of missteps, according to Senate staff workers who took the testimony of 30 people and reviewed 10,000 pages of documents.

Mr. Aguirre responded to the report yesterday, saying that Christopher Cox, the S.E.C. chairman, “can bless” the conduct of those senior S.E.C. officials criticized in the report “or he can protect the capital markets by cleaning house.”

Mr. Cox issued a statement last night saying he looks forward to reading the full report, adding, “The agency’s commitment to prosecuting insider trading has never been stronger, and initiatives such as our hedge fund insider trading task force in the enforcement division will ensure that remains true in the future.”

Pequot Capital came under regulatory scrutiny in 2004 after stock exchange officials had identified 17 to 25 sets of suspicious trades by the hedge fund. Such transactions are routinely turned over to the commission, whose officials then decide whether to investigate them.

One series of trades, which made Pequot $18 million, came just ahead of the announcement in 2001 by the General Electric Capital Corporation that it would buy Heller Financial. Advisers on the deal were Credit Suisse, a firm that was wooing Mr. Mack to be its chief executive at the time, and Morgan Stanley.

But after Mr. Aguirre’s investigation was under way, the report said, lawyers for both Mr. Samberg and Morgan Stanley’s board, which was then considering hiring Mr. Mack as chief executive, received access to high-level S.E.C. enforcement officials — outside the presence of Mr. Aguirre, who was leading the Pequot inquiry. After these contacts, the scope of the Pequot investigation narrowed and Mr. Aguirre was barred from interviewing Mr. Mack.

When Mr. Aguirre complained, the S.E.C. retaliated by firing him, Senate investigators concluded.

The report paints a picture of an agency that does not always treat prospective witnesses equally.

“By allowing the perception that ‘going over the head’ of S.E.C. staff attorneys yields results,” the report said, “the S.E.C. undermines public confidence in the integrity of its investigations and exacerbates the problems associated with ‘regulatory capture.’ ”

For example, on June 26, 2005, Linda Thomsen, the director of enforcement, spoke by telephone about the Pequot case to Mary Jo White, a lawyer at Debevoise & Plimpton, who was representing the Morgan Stanley board and was concerned about Mr. Mack’s possible involvement, the report said.

Ms. Thomsen said she had told Ms. White nothing about the case during the call. But according to Ms. White’s account of that conversation, Ms. Thomsen disclosed that subpoenaed e-mail messages showed that there was “smoke there” though “surely not fire.”

Earlier in the case, in February 2005, Audrey Strauss, a lawyer at Fried, Frank, Harris, Shriver & Jacobson representing Pequot, met with Stephen M. Cutler, then director of enforcement at the commission. Two weeks after the meeting, the report said, the investigation into Pequot was narrowed. “The staff was ordered to investigate only a few of the suspicious transactions” flagged by the New York Stock Exchange, the report said.

A spokeswoman for Mr. Cutler said he could not be reached for comment last night.

This narrowing of the case made an already difficult job of demonstrating a pattern of illicit trading more difficult, the report said.


The report also concluded that Paul R. Berger, then an associate director of enforcement and one of Mr. Aguirre’s supervisors, did not recuse himself from the Pequot case “in a timely manner” once he had expressed interest in working for Debevoise, the law firm hired by Morgan Stanley’s board to vet Mr. Mack before naming him chief executive.
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Related
Text of the Senate Report on the S.E.C. (pdf)

Mr. Berger, who eventually took a job at Debevoise, initially told Senate investigators that he had stopped working on any matters involving Debevoise in early 2006, around the time he first considered seeking employment at the firm. But Senate investigators said they had found that the previous September, just days after Mr. Aguirre’s firing, Mr. Berger authorized an S.E.C. colleague to tell Debevoise that he might be interested in working there.

“Mary Jo just called,” the colleague wrote to Mr. Berger, referring to Ms. White in an e-mail message dated Sept. 8, 2005. “I mentioned your interest.”

Asked why he had failed to tell Senate investigators about this earlier exchange, Mr. Berger said that “I was very concerned about having any discussions without first talking with the S.E.C. and getting authorization.”

The Senate report accused Mr. Berger of giving investigators “incomplete” answers, but says it found no evidence of an explicit link between Mr. Berger’s role in the Mack dispute and his subsequent job at Debevoise.

Mr. Berger said yesterday that any suggestion that he had not properly recused himself is “unfair and inaccurate.” He added: “I did what I was supposed to do. I contacted the chief ethics officer in the general counsel’s office of the S.E.C. and they told me I did not have to recuse myself.”

The Senate report suggested that the S.E.C. had failed to pursue the Pequot investigation vigorously after Mr. Aguirre’s firing. For instance, when the commission took Mr. Mack’s testimony on Aug. 1, 2006, the report said, it did not “seriously test” a theory put forward by Mr. Aguirre that Mr. Samberg had rewarded Mr. Mack for information on the Heller deal by letting him invest alongside Pequot in a private company that was sold for three times his investment in little over a year.

Mr. Mack was the only individual investor allowed to participate in the deal, the report noted. The next trading day after Pequot officials allowed Mr. Mack in the deal, Mr. Samberg began his aggressive buying of Heller Financial stock.

A spokeswoman for Morgan Stanley, where Mr. Mack is chief executive, declined to comment on the report.

The report also stated that Liban A. Jama, a staff lawyer, had complained that he was given less than two days to prepare for “critical” testimony from two witnesses. Without more time, Mr. Jama wrote in an e-mail message to Mark Kreitman, his supervisor and assistant director in the enforcement division, “I would not feel comfortable taking the testimony.” Mr. Jama said he was surprised by Mr. Kreitman’s response. “He said, ‘You don’t need to prepare that much for it,’ which I found strange.”

The report also noted that Mr. Aguirre was not the only S.E.C. official to suffer after complaining about practices at the agency. A second unidentified staff investigator had protested what he believed might have been an inappropriate contact between an outside lawyer and Ms. Thomsen, the enforcement director. This investigator also received a negative re-evaluation of his job performance shortly after he complained in July 2005, the report said.



Re: Has the other shoe dropped on US CMO’s and CDO’s, per BIS? By anthony kalantzis on 8/6/2007 8:04 AM
Bud ..it sounds like wall street is getting ready to short in order to cover at a better/lower price

Elimination of SEC's short-sale price restrictions and rules barring markets from using a "tick" or "bid" test to control short sales will take effect immediately after the rule change is published in the Federal Register, SEC staffers said. Barriers to short sales as prices are moving lower date from the 1930s, when regulators sought to prevent "bear" raids that could send prices spiraling downward. The advent of decimal trading has made it harder to comply with such restrictions, and with better market surveillance, "we've determined that the rule simply is not needed," said SEC Commissioner Paul Atkins.


A second change approved by the SEC modifies its Regulation SHO, adopted in 2004 to curb abusive short sales. The SEC voted unanimously Wednesday to eliminate a controversial exception to the 2004 rule that shielded existing short positions from a requirement to deliver hard-to-borrow shares within 13 days of settlement. Once the change takes effect, 60 days after publication in the Federal Register, short positions previously protected by the grandfather clause must be closed out within 35 days.

Re: Has the other shoe dropped on US CMO’s and CDO’s, per BIS? By Valueinvestor on 8/6/2007 11:53 AM
Bud...Judge Lynch has rejected USXP's motions for a stay of his Feb. judgment and for a jury trial...basically, he has said unless the appeals court overturns his judgment, Richard and Gunderson are gulity as charged, should be disbarred and the company has to pay a hefty fine (that will most likely bankrupt it)...assuming the apeal will now be filed, how long does it usually take for an appeals court judge to rule on this ? Also, meanwhile, does the company have to come up with the 20+ million and keep this in escrow till the appeals court judge has ruled ? It appears Judge Lynch completely ignored the fact that the SEC lawyers did not reveal their prior assurances to Tifford about the SEC having no objections to a jury trial no matter how the summary judgment came out...I understand it was a period of great peersonal bereavement for Tifford, but did Tifford commit a monumental blunder when he agreed to that summary judgment procedure or is this still salvageable ? It appears the shareholders are losing big time, once again, in all of this, inspite of all the "hidden" and as yet untold "mysteries" underlying this company...where are the arabs when we need them the most ??? your thoughts at this critical juncture would be much appreciated...thanks in advance...
Re: Has the other shoe dropped on US CMO’s and CDO’s, per BIS? By bbhindyou on 8/6/2007 6:21 PM
Hi all
I am on a friends computer as I turned in my modem and asked them to discontinue my cable service because the truth wasn't being broadcast by the media anyway.
The funny part is my cable still has not been turned off even though my request was processed on july 23rd and the refund check is supposed to be being processed.
Why?
The babble box still babbles nothing but propaganda but I no longer pay for it.
Funny eh.
I can't help but wonder why.
The cable company said the work order just hasnt been processed even though the cable T.V. truck has been on my street several times in the last week hooking up new lines for a neighbor who decided to go with cable instead of the satilite system she had before.
I think I'll go down in the crawl space and unhook the line into the house myself.
I have a bad case of the cold creepies when I ask myself why it isn't off when I quit paying weeks ago.
Maybe I'll check in on your site next week from a library or other source.
Bye for now
bbhindyou
Re: Has the other shoe dropped on US CMO’s and CDO’s, per BIS? By Valueinvestor on 8/7/2007 5:59 AM
Bud...a question for you...you admitted you are no lawyer...thus, besides yourself, Gunderson and Tifford, can you refer me to any other legal source or reference that concurs with the crucial point in USXP's case against the SEC namely that the bankurptcy judge's ruling allowing the company to issue shares preempts the SEC's authority to authorize the issuance of shares in a public company ? Thanks...

Reply: You can Google the authority of the Bankruptcy Court and its rulings, versus other courts. I have followed other cases where the SEC was spanked for presuming to question this authority.
Re: Has the other shoe dropped on US CMO’s and CDO’s, per BIS? By Valueinvestor on 8/9/2007 8:22 AM
Bud: two questions if I may...the revoking of the GF clause was published in the FR on Aug. 7th...60 calendar days after that it takes effect...within 35 calendar days after that the illegal naked shorters are supposed to cover...that puts the date for D-Day at around Nov. 10 or 11.. is this your reading too and if so how do you see this playing out w.r.t. the heavily naked shorted BB stocks ?

Second...as an engineer/scientist I am used to assigning percentages based on known facts to the probability of events or outcomes...on a scale of 0 to 100%, what percent would you assign the possibility that the naked shorted counterfeit shares in USXP far exceed the issued or legally outstanding share count of 41 billion shares ? Are there any known facts to back this guestimate ?

Reply: Your understanding is of the implementation of the law is correct if the SEC doesn't grant exceptions.

I can't comment on probabilities. I am quite familiar witih expected return analysis, but I haven't tried to apply it here.
Re: Has the other shoe dropped on US CMO’s and CDO’s, per BIS? By captdale on 8/9/2007 7:05 PM
Hi Bud - Well the meltdown is in full force. And now some of the major miscreants are pumping money into the system to keep it from imploding. Just like 1929. It will be close, very close. Can't beat it with a stick. Live entertainment.
Re: Has the other shoe dropped on US CMO’s and CDO’s, per BIS? By Valueinvestor on 8/12/2007 3:06 PM
Bud...I have had no luck googling and finding a case that spells out the authority of the bankruptcy court and its rulings and how they supersede the authority of the SEC relative to the issuance of shares in a company...can you please quote me a case or two that I could locate in the court system ? thanks...it appears the crux of USXP's case against the SEC is based on a clear understanding of this aspect of company law, which I take it Judge Lynch completely missed...

Reply: You will have to go to a Bankruptcy Court lawyer, which is what I did.
The BK Court authority takes precedence over all other Federal Courts, including Tax.
Re: Has the other shoe dropped on US CMO’s and CDO’s, per BIS? By Valueinvestor on 8/14/2007 10:06 AM
Bud: one observation and then some questions pour vous, s'il vous plait...

For over 15 years now I have been following some indicators to gauge the markets for ETFs, mutual funds, and even high flying stocks, the prime factor among these being a simple 50-day moving average..these indicators suggest everything is broken down at the current time, and this coupled with the general picture painted by you, Dr. Byrne and a few others of impending problems in the U.S. markets has led me to be mostly in cash...this simple but elegant rule of adhering to a 50-day moving average has worked wonders for me over the years (when I followed it strictly), especially in avoiding the major psychological pitfalls in the market...as they say "numbers never lie"...your thoughts on such easy remedies to minimize unnecessary anxiety ?

And a few questions about my favorite BB "stock" investment, USXP...in the appeal to be filed in the 2nd circuit court, what is that USXP hopes to impress on the judge that Lynch did not or would not get impressed by ? In other words, since the argument that the bankruptcy judge's ruling that allowed USXP to continue to issue shares ad infinitum in order to maintain capitalization (in the light of the naked shorting situation) trumps the SEC's authority to require USXP to go through them in order to issue any new shares is paramount to USXP's case, would there be additional information for the appelate court judge to be able to review in this regard or is it the same information that was presented to Judge Lynch ? If it is the same, is the suposition that the appeals court judge will read the case differently hopefully from his "unbiased" perspective ? Also, someone asked me to ask you "has USXP retained a bankruptcy court lawyer" in order to get a definitive viewpoint on this rather obtuse matter ? As always, thanks...

Reply: In an earlier life, I did a lot of work with technical analysis, particularly wave and cycle theory, and different forms of relative strength analysis. Without going into too much time consuming detail, I learned one general rule I have stuck with in my limited recent trading advice, which is to ALWAYS trade against the short term trend, and with the intermediate term trend. 50 days is the length of the intermediate term trend, from the Fibonacci cycle.

USXP has gotten repeated legal advice they have relied on concerning BK law, beginning with their original Reorg counsel, and continuing through their very successfull law suits to present. Their position on the authority of the ruling of the BK Court has not been directly challenged, and if it were, only the BK Court could change the ruling.
Re: Has the other shoe dropped on US CMO’s and CDO’s, per BIS? By Valueinvestor on 8/27/2007 9:32 AM
Bud: on the subject of USXP and the claim by its lead counsel that the bankruptcy judge's ruling supersedes any authority exercised by the SEC relative to the issuance of shares by the company, why was it that Mr. Tifford did not cite a single case law from history supporting this pivotal argument ? Is it because no case dealing explicitly with bankruptcy law that was relevant to this case existed ? Also, why did USXP agree to filing S-8s for issuing new shares up to a certain point of time (2002 ?) but take recourse to the interpretattion of the BK judge's ruling instead since then ? Is it because they felt that with the SEC harassment of the company in full vogue by that time, the avenue of S-8 registration was closed ? We are still having a difficult time finding a precedence to this case where the BK judge's ruling has been shown to override the SEC's authority to bless any new share issuance by a publicly traded company...

Reply: The SEC's authority is specifically subordinate to that of the Bankruptcy Court. There are hundreds of cases where this was shown to be true following the 1986 Tax Reform Act. The SEC thinks they are above the law. I want to be present when an SEC lawyer tells a BK Judge their authority trumps the BK Court. I'd also like to be at their disbarment proceedings.

There is major recent case (2001) where this exact issue was confronted, with the BK Judge threatening sanctions and disbarment against the SEC lawyers.

The SEC is an unflushed toilet, and the American investor is the attendant to their BS.
Re: Has the other shoe dropped on US CMO’s and CDO’s, per BIS? By Valueinvestor on 9/1/2007 11:18 AM
Bud...what do you make of this...does not look good...

Case 1:04-cv-02322-GEL Document 202 Filed 08/31/2007 Page 1 of 24

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------x

:

U.S. SECURITIES AND EXCHANGE :
COMMISSION, :
:
Plaintiff, :
: 04 Civ. 2322 (GEL)
-against:
: OPINION AND ORDER

UNIVERSAL EXPRESS, INC., RICHARD A. :
ALTOMARE, CHRIS G. GUNDERSON, MARK :

S. NEUHAUS, GEORGE J. SANDHU, SPIGA, :
LTD., and TARUN MENDIRATTA, :
:
Defendants. :
:
---------------------------------------------------------------x

Julie K. Lutz and Leslie J. Hughes, Securities and
Exchange Commission Central Regional Office,
Denver, Colorado, and Robert B. Blackburn,
Securities and Exchange Commission Northeast
Regional Office, New York, New York, for plaintiff.

Barry Schaevitz, Jacob Medinger & Finnegan, LLP,
New York, New York, and Arthur W. Tifford, Tifford
and Tifford, Miami, Florida, for defendants Universal
Express, Inc., Richard A. Altomare, and Chris G.
Gunderson.

GERARD E. LYNCH, District Judge:

In light of the alleged failure of defendants Universal Express Inc., Richard A. Altomare,
and Chris G. Gunderson (“defendants”)1 to comply with the orders of this Court, the Securities
and Exchange Commission (“SEC”) has moved for an order finding these defendants in civil

1 Although there are other defendants in this case, Universal Express, Altomare, and
Gunderson are the only three defendants to whom this motion applies.

contempt. For the following reasons, this Court finds that the SEC has met their burden, and
orders these defendants to appear on October 12, 2007, at 2:30 p.m., either to demonstrate
exactly how they have complied with the orders of this Court, or to show cause why they should
not be held in contempt, and, in the case of Altomare and Gunderson, incarcerated to compel
compliance. The SEC also moves for the appointment of a receiver, and in light of the inability
of Universal Express, Altomare, or Gunderson to find qualified individuals to serve as officers of
Universal Express, this Court will appoint a receiver to provide the company with needed
stewardship, help the company satisfy the judgments against it, and determine how the company
should proceed in light of those judgments.

The Court’s opinion today also disposes of all arguments made by Defendants in their
pleadings seeking a stay of enforcement of the judgment against them pending their appeals.
The repeated actions of defendants demonstrate not only defendants’ clear lack of respect for the
orders of this Court and federal securities laws, but also the necessity of this Court’s judgments
remaining in full force pending appeal.

BACKGROUND

I. Parties and Procedural History
Universal Express is a publicly-traded Nevada corporation purportedly involved in
shipping and transportation, and it maintains its prinicipal place of business in Florida and an
office in New York City. SEC v. Universal Express, 475 F. Supp. 2d 412, 415-16 (S.D.N.Y.
2007). Richard A. Altomare has been its chief executive officer and director since 1992, and is
currently the company’s sole officer and director. Id. at 16. Chris G. Gunderson is a lawyer who
has served as in-house counsel for Universal Express since 1995. Id.

In this action, the SEC charged defendants (and several others) with violating various
provisions of the federal securities laws. On February 21, 2007, this Court granted summary
judgment in favor of the SEC, holding that the defendants violated Section 5 of the Securities
Act by issuing unregistered shares absent any applicable exception, Universal Express, 475 F.
Supp. 2d at 424-26, and by violating the antifraud provisions of the federal securities laws, id. at
426-28. Since March 24, 2004, by order of this Court, the defendants have been enjoined from
violating, inter alia, sections 5(a), 5(c) and 17(a) of the Securities Act of 1933 (“Securities Act”)
[15 U.S.C. §§ 77e(a), e(c), and 77q(a)], Section 10(b) of the Securities Exchange Act of 1934
(“Exchange Act”) [15 U.S.C. § 78j(b)], and Rule 10b-5 thereunder [17 C.F.R. 240]. (Order of
March 24, 2004, at 3.) The defendants were also enjoined from violating various related
provisions. (Id.)

The February 21 order granted the SEC’s request both for summary judgment, and for a
permanent injunction against the defendants, finding it clear that “these defendants violated
[federal registration and anti-fraud securities] laws, and if not enjoined, likely would do so
again.” Universal Express, 475 F. Supp. 2d at 428. The Court noted that the defendants “not
only deny culpability but do so with incredible and contorted arguments.” Id. The Court
outlined the sanctions to be imposed against the various defendants, and directed the SEC to
submit an updated, proposed order of final judgment and permanent injunction. Id. at 428-30.

On March 8, 2007, the Court entered judgment against defendants on the SEC’s claims
that defendants violated Sections 5(a), 5(c), and 17(a) of the Securities Act, Section 10(b) of the
Exchange Act, and Exchange Act Rule 10b-5. (Judgment of March 8, 2007, at 1.) The
permanent injunction prohibits (i) violations of Section 5 of the Securities Act, including the
“direct[] or indirect[]” sale, via interstate commerce, of “any [unregistered] security” in the
absence of any applicable exemption2 (id. at 2); (ii) violations of Section 17(a) of the Securities
Act, Section 10(b) of the Exchange Act, or Rule 10b-5 [17 C.F.R. § 240.10b-5], including the
offer or sale of any security via interstate commerce by use of any means “to obtain money or
property by means of any untrue statement of a material fact or any omission of a material fact
necessary in order to make the statements made, in light of the circumstances under which they
were made, not misleading” (id. at 2-3); (iii) Altomare or Gunderson’s participation in an
offering of penny stock (id. at 9); and (iv) Altomare’s acting as an officer or director of any
company, including Universal Express, that issue certain types of securities (id. at 10).

In addition, all three defendants were ordered to pay certain sums to the Clerk of the
Southern District of New York by April 16, 2007: Universal Express was ordered to pay
$21,906,483, consisting of $9,959,828 in disgorgement, $1,986,827 in prejudgment interest, and
$9,959,828 in civil penalties (Judgment of March 8, 2007, at 4); Altomare was ordered to pay a
total of $3,121,123, consisting of $1,419,025 in disgorgement of ill-gotten gains, $283,073 in
prejudgment interest, and $1,419,025 in civil penalties (id. at 6.); Gunderson was ordered to pay
$794,711, consisting of $361,317 in disgorgement, $72,077 in prejudgment interest, and
$361,317 in civil penalties (id. at 8).

2 More specifically, defendants were ordered to refrain, in the absence of an applicable
exception, from “directly or indirectly,” (i) “making use of any means or instruments of
transportation or communication in interstate commerce to or of the mails to sell [unregistered]
securit[ies]”; (ii) “carrying or causing to be carried through the mails or in interstate commerce .
. . [unregistered] securit[ies] . . . for the purpose of sale or for delivery after sale”; and (iii)
“[m]aking use of any means . . . [of] interstate commerce . . . to offer to sell . . . [unregistered]
securit[ies].” (Judgment of March 8, 2007 at 2.) This language is functionally identical to that
of the preliminary injunction that has bound the defendants since March 24, 2004. (See Order of
March 24, 2004, at 4.)

After judgment was entered, Defendants appealed and moved this Court to stay any
proceedings to enforce the judgment entered against them pending appeal. (D. Mot. to Stay.)
That motion was denied, SEC v. Universal Express, Inc., No. 04 Civ. 2322, 2007 WL 2245509,
*3 (S.D.N.Y. August 3, 2007), though the Court noted that certain arguments raised in that
motion would be dealt with in discussing the merits of the instant SEC motions for the
enforcement of the judgment. Id. at *2.

In one such SEC motion for enforcement, the SEC seeks an entry of civil contempt
against these defendants, for the following alleged violations of this Court’s orders:

(a) Universal Express, with the participation of Altomare and Gunderson, has issued
over 5.4 billion shares of Universal Express stock during the first three months of
2007 and issued an additional 15.5 billion shares since April 2, 2007;
(b) Altomare and Gunderson have continued to participate in the offering of penny
stock;
(c) Universal Express and Altomare have continued to make materially false and
misleading statements in reports filed with the Securities and Exchange
Commission;
(d) Universal Express, Altomare, and Gunderson have failed to pay disgorgement and
prejudgment interest by April 16, 2007;
(e) Altomare has remained as an officer of Universal Express.
In a separate motion, the SEC also moves the Court to appoint a receiver to take control of the
assets and operations of Universal Express, arguing that appointing a receiver is also necessary
to enforce the Court’s judgment.

DISCUSSION

I. Legal Standards
A. Civil Contempt
In the Second Circuit, to support a finding of contempt, “a movant must establish that (1)
the order the contemnor failed to comply with is clear and unambiguous, (2) the proof of
noncompliance is clear and convincing, and (3) the contemnor has not diligently attempted to
comply in a reasonable manner.” Perez v. Danbury Hosp., 347 F.3d 419, 423-424 (2d Cir.
2003), quoting King v. Allied Vision, Ltd., 65 F.3d 1051, 1058 (2d Cir. 1995); EEOC v. Local
638, 753 F.2d 1172, 1171 (2d Cir. 1985) (internal quotation marks omitted). Though the
violation need not be willful, the movant seeking the contempt order must demonstrate that “the
contemnor was not reasonably diligent in attempting to comply.” City of New York v. Local 28,
Sheet Metal Workers’ Intern. Ass’n, 170 F.3d 279, 282-83 (2d Cir. 1999), quoting EEOC v.
Local 638, 81 F.3d 1162, 1171 (2d Cir. 1996), in turn quoting U.S. v. Local 1804-1, 44 F.3d
1091, 1096 (2d Cir. 1995) (internal quotation marks omitted).

B. Receivership
Section 22(a) of the Securities Act [15 U.S.C. §77v(a)] and Section 27 of the Exchange
Act [15 U.S.C. § 78aa] confer general equity powers upon the district courts, SEC v. Manor
Nursing Ctrs., Inc., 458 F.2d 1082, 1103 (2d Cir. 1972), and “despite the absence of explicit
statutory authority” the district court may appoint a receiver “to effectuate the purposes of the
federal securities laws.” Id. at 1105. See also SEC v. Am. Bd. of Trade, Inc., 830 F.2d 431, 436
(2d Cir. 1987); SEC v. Materia, 745 F.2d 197, 200-01 (2d Cir. 1984).

The appointment of a receiver is an “extraordinary remedy to be invoked only in cases of
necessity and upon a clear showing that an emergency exists.” SEC v. Am. Bd. of Trade, Inc.,
645 F. Supp. 1047, 1052 (S.D.N.Y. 1986), quoting Petersen v. Federated Development Co., 387

F. Supp. 355, 361 (S.D.N.Y. 1974). However, federal district courts “ha[ve] the equity power to
appoint a receiver when necessary to prevent a diversion or waste of assets to the detriment of
those for whose benefit . . . [the] injunctive action is being brought.” Id. (internal quotations
omitted).
II. The Standards Applied
A. Civil Contempt
1. Issuance of Unregistered Shares
As was explained in the Court’s opinion on summary judgment, see Universal Express,
475 F. Supp. 2d at 422, Section 5 of the Securities Act prohibits any person from offering or
selling an unregistered security in interstate commerce.3 In that opinion, this Court rejected the

3A person violates Section 5 when that person uses interstate transportation,
communication, or the mails in connection with the offer to sell or the sale of a security when no
registration statement was in effect for the securities being offered or sold. SEC v. Cavanagh,
445 F.3d 105, 111 n.13 (2d Cir. 2006); Europe & Overseas Commodity Traders, S.A. v. Banque
Paribas London, 147 F.3d 118, 124 n.4 (2d Cir. 1998); SEC v. North Am. Research & Dev’t
Corp., 424 F.2d 63, 65 n.1 (2d Cir. 1970). Registration is “transaction-specific”– the
requirement of registration applies to each act of offering or sale. SEC v. Cavanagh, 155 F.3d
129, 133 (2d Cir. 1998).

Liability for Section 5 violations extends to those who participate in an offer to sell or
engage in steps necessary to the distribution of the securities. SEC v. Chinese Consol.
Benevolent Ass’n, 120 F.2d 738, 741 (2d Cir. 1941); SEC v. Murphy, 626 F.2d 633, 650-51 (9th
Cir. 1980); SEC v. Holschuch, 694 F.2d 130, 139-40 (7th Cir. 1982). The participation must be
necessary and substantial, and not de minimis. Murphy, 626 F.2d at 650-52; accord SEC v.
Softpoint, Inc., 958 F. Supp. 846, 860 (S.D.N.Y. 1997). A plaintiff need not show scienter to
prove a Section 5 violation by an attorney. SEC v. Spectrum, Ltd., 489 F.2d 535, 541-42 (2d Cir.
1973); Swenson v. Engelstad, 626 F.2d 421, 424 (5th Cir. 1980).

Once the SEC makes out a prima facie case, the burden shifts to the defendant to show
that the securities transactions at issue fall within one of the exemptions from registration. SEC
v. Cavanagh, No. 98 Civ. 1818, 2004 WL 1594818, at *16 (S.D.N.Y. July 16, 2004), citing SEC
defendants’ contention that they were exempt from having to register over 500 million securities
allegedly issued pursuant to an employee stock option plan approved by the bankruptcy court as
a part of Universal’s 1994 plan of reorganization. Id. at 425-26.

The SEC contends that defendants have issued billions of additional unregistered
securities in continued violation of this Court’s orders. The SEC submits evidence,
unchallenged by any defendant, that Universal Express has not filed any registration statements
with the SEC since January 22, 2002. (Decl. of Leslie J. Hughes, dated June 29, 2007, (“Hughes
Decl.”) 7.) The SEC also submits overwhelming evidence that since that time, Universal
Express has issued billions of shares (see PX 1 at 10; PX 7)4, and done so with the central and necessary involvement of Altomare and Gunderson (PX 8, 9).

By the SEC’s calculations, from January 2007 to March 2007, in apparent violation of
this Court’s preliminary injunction, Universal Express issued 5.4 billion shares in exchange for
money or services, with the vast majority of the shares, 4.7 billion, being exchanged for deferred
services. (P. Mot. for Contempt at 7 n.3.) The SEC also submits persuasive evidence that from
April 2, 2007, through June 18, 2007, in apparent violation of this Court’s permanent injunction,
Altomare instructed the transfer agent of Universal Express to issue billions more new shares of
Universal Express stock. (Hughes Decl. 17; PX 7, 8.) The SEC also provides evidence that
Gunderson helped to facilitate the issuance of the securities by offering opinion letters to
accompany Altomare’s instructions to the transfer agent, and by faxing both the instructions and
the opinion letters to the agent. (Hughes Decl. 17-18; PX 8, 9).

v. Ralston Purina Co., 346 U.S. 119, 124 (1953), and Cavanagh, 155 F.3d at 133; North Am.
Research, 424 F.2d at 71-72.

4 The designation “PX” refers to exhibits to the SEC’s motion for contempt.

Defendants do not contest that these shares were issued or that Altomare or Gunderson
facilitated their issuance. Further, notwithstanding representations to the contrary in certain
Altomare instructions and Gunderson opinions (Hughes Decl. 17; PX 8), no defendant now
claims that these securities are exempt from registration because they were issued pursuant to the
option plan contained in the bankruptcy plan of reorganization. They cannot do so, because this
Court explicitly rejected, months before billions of these shares were issued, this purported
exemption. Universal Express, 475 F. Supp. 2d at 425-26.

Defendants instead argue that much of the unregistered stock issued was not “sold” but
exchanged for services. (Ds. Resp. to Mots. for Contempt and Receiver at 5-6.) Specifically,
defendants claim that: (1) the 5.4 billion shares issued between January 1, 2007, and March 31,
2007, mentioned in Universal Express’s Form 10Q for the period ending March 31, 2007, were
not “sold” (id. at 5); (2) the 68 million shares issued between June 1, 2006, and March 31, 2007,
were not “sold” but issued in exchange for various services (id. at 6); (3) the 15.5 billion shares
issued after April 2, 2007, were not sold, but exchanged for the services of “public relations
firms” (id.); (4) and some 670 million shares that defendants admit were sold between June 1,
2006, and March 31, 2007, “involved only restricted shares that were part of a single
subscription agreement” (id. at 5-6).

Defendants’ primary argument, made without legal support, is that exchanging
unregistered shares for services is somehow different, for purposes of federal securities law and
this Court’s order, than exchanging unregistered shares for money. Even accepting defendants’
version of the facts, their legal assertions fail. The Securities Act makes clear that the exchange
of unregistered securities for services which have value constitutes a sale. Section 2(3) of the
Securities Act defines the term “sale” or “sell” to include every contract of sale or disposition of
a security or interest in a security “for value.” 15 U.S.C. § 77b(a)(3). See Falkowski v. Imation
Corp., 309 F.3d 1123, 1129-1130 (9th Cir. 2002) (“The grant of an employee stock option on a
covered security is . . . a ‘sale’ of that covered security.”); West v. Innotrac Corp., 463 F. Supp.
2d 1169, 1180 (D. Nev. 2006) (exchanging stock options for three years of employment
constituted a transfer for value, and was therefore a sale); Stephenson v. Deutsche Bank AG, 282

F. Supp. 2d 1032, 1065 (D. Minn. 2003) (“the definition of ‘sale’ under Section 2 of the 1933
Act is quite broad”); see also McKesson HBOC, Inc. v. New York State Common Retirement
Fund, Inc., 339 F.3d 1087, 1092 (9th Cir. 2003) (“the term ‘offer’ has a different and far broader
meaning in securities law than in contract law”), citing Hocking v. Dubois, 885 F.2d 1449,
1458-59 (9th Cir. 1989) (en banc); S.E.C. v. Cavanagh, 155 F.3d 129, 135 (2d Cir. 1998) (the
definition of “offer” in 15 U.S.C. § 77b(a)(3) “extends beyond the common law contract concept
of an offer”); S.E.C. v. Cavanagh, 1 F. Supp. 2d 337, 368 (S.D.N.Y. 1998) (the definition of
“offer” goes “well beyond the common law concept of an offer” because the “creation of legally
enforceable contracts for the sale of unregistered securities” is often “immaterial for purposes of
determining whether the harm with which Section 5 is concerned occurs.”)
Defendants do not suggest that these alleged services did not provide “value” to the
company. (Cf. Decl. of Chris G. Gunderson, dated July 26, 2007, (“Gunderson Decl.”) 24,
describing “[d]eferred [c]ompensation” where the stock issued is “valued at market price on the
date of issuance.”) These stock transactions, which inject unregistered securities into the
marketplace to the detriment of the investing public, are precisely the types of transactions that
this Court’s orders, and the federal securities laws, are intended to prevent.5

Thus, the preliminary and permanent injunctions against the sale of unregistered
securities are clear and unambiguous, and the SEC has demonstrated defendants’ violations of
those injunctions by clear and convincing evidence. The SEC has also demonstrated the
defendants’ complete lack of reasonable diligence. Defendants do not contest that in the months
after the Court’s grant of summary judgment against defendants for their issuance of millions of
unregistered securities, Universal Express, 475 F. Supp. 2d at 416-17, 439, they issued billions
more unregistered securities. The substantial increase in the issuance of unregistered securities,
combined with the specious justifications that the defendants now attempt to hide behind,
demonstrate not only lack of reasonable diligence on behalf of the defendants, but active and
willful disobedience of court orders.

2. Violation of Penny Stock Bar
Gunderson and Altomare, by order of this Court entered on April 2, 2007, were
“permanently barred from participating in an offering of . . . any equity security that has a price
of less than five dollars,” except as provided in non-applicable provisions. (Judgment of March

5 Notwithstanding defendants’ baseless argument that billions of unregistered shares
exchanged for services were not in fact sold, defendants admit that at least 670 million of the 8.7
billion shares issued between June 1, 2006, and March 31, 2007, were in fact sold. (Ds. Resp. to
Mots. for Contempt and Receiver at 5-6.) They contend, though, that the sale involved only
restricted shares as part of a subscription agreement sanctioned by the SEC’s Division of
Corporation Finance. (Id.) The SEC contests the existence of such a subscription agreement,
stating that the staff of the SEC’s Division of Corporation Finance never agreed that securities
exchanged for “stock rights” contained in subscription agreements did not constitute an offer to
sell a security. (P. Reply Mot. for Contempt and Receiver at 6.) The SEC further disputes that
any comments by the staff of that division could create such a binding agreement on the SEC.
(Id. at 6-7.) Given the overwhelming evidence that defendants have already violated clear
provisions of the injunction and federal securities laws through the sale of billions of
unregistered securities, it is unnecessary to determine the status of these 670 million securities.
8, 2007, at 9.) By its terms, this injunction was not limited to the sale of unregistered securities,
but prohibited the offering of any penny stock.

The order is clear. The SEC provides clear evidence that Altomare and Gunderson
participated in the offering of penny stock in the form of Universal Express stock in
contravention of the permanent injunction. (Hughes Decl. 17-18; PX 8, 9.) Altomare and
Gunderson do not even attempt to provide any explanation for the violation. Their active
participation in the issuance of billions of unregistered shares of penny stock demonstrates that
their violation of the Court order was due not to lack of reasonable diligence or even
recklessness, but to sheer willfulness.

3. Statutory Fraud
Since March 24, 2004, the defendants have been enjoined from violating certain antifraud
provisions of the securities laws: Section 17(a) of the Securities Act [15 U.S.C. § 77q(a)],
Section 10(b) of the Exchange Act [15 U.S.C. §78j(b)], and Rule 10b-5 [17 C.F.R. § 240.10b-5].
(Order of March 24, 2004, at 3; Judgment of March 8, 2007, at 2-3.) The Court’s Summary
Judgment Opinion sets out in detail the standards for violation of the relevant anti-fraud statutes.
Universal Express, 475 F. Supp. 2d at 422-24.

In that opinion, the Court specifically discussed examples of fraudulent behavior by
Universal Express and Altomare, describing certain statements as “at best misleading and
sometimes wholly fantastical.” Id. at 426. One such example was Universal Express’s “public[]
project[ion] [of] sizeable revenues from businesses with which it actually had no connection.”
Id. at 421. The Court pointed to a Universal Express press release anticipating $9 million in
annual revenue from its “WorldPost Network,” which was described in the press release as “over
9,000 independently owned and operated private postal stores,” but which was in fact every
postal store in the United States that had not somehow known to opt out of it. Id. The Court
noted that there was “no evidence that Universal Express actually had a relationship with any
such store.” Id.

The SEC contends that Universal Express and Altomare continue to make false and
misleading statements in violation of this Court’s orders, relating to: (i) the status of litigation
with the SEC, (ii) Altomare’s status as officer of the company, and (iii) the relationship of
Universal Express to the “WorldPost Network.” (P. Mot. for Contempt at 9-11.) At this point
and on this issue, the SEC does not seek a finding of contempt against Gunderson.

(i) The SEC contends that Universal Express and Altomare made multiple false and
misleading statements about the status of Universal Express’s litigation with the SEC. First, the
SEC points out that Universal Express’s federal securities filings in 2006 and 2007, signed by
Altomare, discuss a “pending” lawsuit filed by Universal Express against the SEC, seeking
damages resulting from the SEC’s failure to prevent the “naked shorting” of its shares. (See PX
1 at 11-12; PX 5 at 5.) The SEC points out that this suit was in fact dismissed on March 30,
2005 (see PX 6), and that the dismissal was affirmed by the Eleventh Circuit on April 18, 2006.
See Universal Express, Inc. v. SEC, 177 Fed. Appx. 52, 2006 WL 1004381 (11th Cir. 2006).
Second, the SEC notes that, in the same filings, Universal Express and Altomare describe
the pleadings before this Court as an “SEC . . . action . . . against certain officers of the
Company.” (See PX 1 at 11; PX 3 at 5.) The SEC notes that the filings fail to disclose that the
Company itself, and not merely “certain officers,” is a defendant in the lawsuit. (P. Mot. for
Contempt at 11.)

Defendants concede that these statements were “inartful,” but insist that they were not
“false and misleading,” claiming that the SEC is merely “nit picking” and “splitting hairs.” (Ds.
Resp. to Mots. for Contempt and Receiver at 6-7.) Defendants appear to suggest that these
misstatements, even if false, are immaterial. However, as defendants were reminded in
February, Universal Express, 475 F. Supp. 2d at 423, information misrepresented or omitted is
material if there is a “substantial likelihood that a reasonable person would consider it important
in deciding whether to buy or sell shares.” Azrielli v. Cohen Law Offices, 21 F.3d 512, 518 (2d
Cir. 1994); see also Basic Inc. v. Levinson, 485 U.S. 224, 240-41 (1988). The fact need not
alone have a dispositive effect on the reasonable investor’s decision; for omissions to be
material, there need only be a “substantial likelihood” that “the omitted fact would have been
viewed by the reasonable investor as having significantly altered the ‘total mix’ of information
made available,” TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449 (1976) (explaining
the “general standard of materiality” that promotes the “protection of investors”).

The cited statements were clearly false. They were also clearly material. It would matter
to a reasonable investor that a lawsuit against the SEC was not “pending,” but had been
dismissed. It would also matter to a reasonable investor that the problem at Universal Express is
not limited to one or two rogue officers, but encompasses the corporation itself. Moreover, as
defendants were unquestionably aware of the true facts, the false statements can only have been
intentional.

Defendants claim that it was a matter of “widespread public knowledge” that these
reports were inaccurate (Ds. Resp. to Mots. for Contempt and Receiver at 7), suggesting, without
any support, that this should somehow neutralize the effect of what were, in fact, materially false
filings signed by Altomare in the name of Universal Express. That certain materially false
company filings may be contradicted by publicly available facts merely demonstrates the
brazenness of defendants’ mendacity; it does not absolve defendants of their reporting
requirements under federal securities law. See e.g., In re Apple Computer Sec. Litig., 886 F.2d
1109, 1114 (9th Cir.1989) (“Ordinarily, omissions by corporate insiders are not rendered
immaterial by the fact that the omitted facts are otherwise available to the public.”); see also
Fisher v. Plessey Co., 559 F. Supp. 442, 445 (S.D.N.Y. 1983); Endo v. Albertine, 812 F. Supp.
1479, 1488 (N.D. Ill. 1993).

(ii) The SEC also contends that Universal Express and Altomare further engaged in
statutory fraud through filings made after March 8, 2007, when Altomare signed the filings as
president, CEO, chairman of the board, and chief accounting officer of Universal Express
without disclosing the entry of this Court’s February 21, 2007, order finding Altomare unfit to
remain as an officer at Universal Express, and March 8, 2007, judgment barring him from acting
as an officer or director of a public company. (See Hughes Decl. 9.) Inexplicably and
incomprehensibly, defendants assert that the SEC’s allegation “violate[s] the law of
contradiction.” (Ds. Resp. to Mots. for Contempt and Receiver at 8.)
Failure of Universal Express to disclose this Court’s orders against Altomare in its
securities filings would be a material falsehood even if Altomare were not still at the Company.
But the failure to disclose becomes especially egregious given Altomare’s refusal to remove
himself from Universal Express. Surely, the reasonable investor would want to know that the
individual in charge of the company in which the investor holds stock is doing so in blatant
violation of a court order. Defendants are violating this Court’s injunction not only by allowing
Altomare to remain in office, but also by identifying him as a corporate officer while failing to
disclose to investors that he has been ordered removed.

(iii) The SEC also contends that Universal Express has continued to issue false and
misleading statements discussing “revenue streams” from “9,000 private postal centers in a
network called UniversalPost.” (PX 1 at 10.) This network, defendants concede, is the same
network as the “WorldPost Network” (Ds. Resp. to Mots. for Contempt and Receiver at 6-7), the
network for which this Court found that Universal Express had provided “no evidence that [they]
actually had a relationship with any such store.” Universal Express, 475 F. Supp. 2d at 421.
Contrary to this Court’s previous findings, defendants insist that this network is an
“existing business activity which was the invention of Mr. Altomare and [Universal Express]”
(Ds. Resp. to Mots. for Contempt and Receiver at 6-7), claiming that the Court’s finding is
“simply contrary to historical, well documented facts” (id. at 7, citing Gunderson Decl. and
Cungerson Decl. Ex. (“DX”) 1, 2). However, the “well-documented facts” that defendants can
muster are not contracts with or affidavits from members of the supposed network, or indeed any
credible evidence at all, but: (i) the declaration of Gunderson, an attorney this Court has already
found to have “apparent disregard for the law” evinced by his “repeated[] approv[al] and
contribut[tion] to acts of fraud and noncompliance with investor-protecting registration
requirements,” Universal Express, 475 F. Supp. 2d at 430; (ii) a propaganda piece from an online
publication, filled with self-serving unsworn statements by Altomare, an individual who has
“repeatedly and brazenly committ[ed] fraud and flout[ed] investor-protecting registration
requirements,” id. at 429;6 and (iii) an article from the Miami Herald, filled with unsworn
statements by Altomare, that says absolutely nothing about the “WorldPost” or “UniversalPost”
Network (DX 2).

None of this material plausibly supports the truthfulness of the representations. The
second and third items are essentially inadmissible hearsay. Gunderson, who potentially has
first-hand knowledge of Universal Express’s business, provides no information whatsoever
about actual revenues, offering instead a totally abstract, and rather fanciful, description of a
business model that provides no justification for the challenged revenue projections. (Gunderson
Decl. 8.)

Again, a reasonable investor would want to know that there is much less substance to the
“UniversalPost” Network than defendants and filings would have one believe. Once again, the
statements in question can only have been deliberately false. Defendants were clearly on notice
that their earlier statements about the “WorldPost Network” had been determined to be false.
Moreover, the reports were specifically modified from “WorldPost” to “UniversalPost,”
demonstrating an active and willful effort to repeat the false statements while disguising the fact
that nearly identical statements had been previously found fraudulent.7

6 According to the publication’s disclaimer, “[r]eferences made to third parties . . . are not
guaranteed as being accurate.” (DX 1 at 4.)

7 The press releases at issue in the Summary Judgment Order anticipated revenues of $9
million from the “WorldPost Network.” Universal Express, 475 F. Supp. 2d at 421. The
allegedly fraudulent statements here, made in the Universal Express 10-Q filed on March 31,
2007 described the “UniversalPost” network as producing “growing streams of revenue.” PX 1
at 10. The problem with both statements has not only to do with the estimation of the revenue
booked, but also, and more centrally, with the representations that this network exists at all, and
that it creates any revenue at all.

The injunctions against the commission of statutory fraud are clear. Equally clear are the
fraudulent statements that the SEC identifies. As these repeated false statements were
intentional, or at a minimum highly reckless, it follows that Universal Express and Altomare
failed to act with reasonable diligence to comply with this Court’s orders against the commission
of statutory fraud.

4. Failure to Disgorge
To date, the record reflects no disgorgement payment made by any defendant in any
amount. Defendants have not produced any evidence describing any defendant’s efforts to pay
the Court fines. The Court’s order is clear, as is its violation by the defendants. As a
preliminary matter, in their pleadings on their motion for a stay, defendants claim that
enforcement of the civil-penalty and disgorgement aspects of the judgment will cause Universal
Express irreparable injury, as “the financial demands . . . will bankrupt the company.” (Ds.
Reply Mot. to Stay at 6.) Even if compliance with the judgment would bankrupt Universal
Express, and even if bankruptcy could be viewed as an irreparable injury – although defendants
provide absolutely no authority on this point – a stay on this ground alone would not be
warranted. Defendants have failed to make any showing of a likelihood of succeeding on the
merits or of any other reason to conclude that maintaining the pre-judgment status quo would
constitute anything other than permission to retain millions of dollars in ill-gotten gains. Even if
there were some basis for staying the disgorgement order as to Universal Express, the individual
defendants offer no reason why the order should be stayed as to them.

Defendants bear the burden of producing evidence of their inability to comply with the
Court’s order requiring them to pay disgorgement and prejudgment interest. Huber v. Marine
Midland Bank, 51 F.3d 5, 10 (2d Cir. 1995). To meet this burden, the alleged contemnor must
prove “plainly and unmistakably that compliance is impossible.” U.S. v. Rylander, 460 U.S.
752, 757 (1983). An alleged contemnor who “offers no evidence as to his inability to comply . .
. or stands mute” fails to meet that burden. Huber, 51 F.3d at 10, quoting Maggio v. Zeitz, 333

U.S. 56, 75 (1948).
The SEC contends that defendants have made no efforts to comply with the Court’s
judgment directing disgorgement. (P. Mot. for Contempt at 13). The SEC points to the assets
and income of the various defendants that could be used to make payments toward satisfaction of
the judgment. (Id.) Defendants fail