Sun may be setting on another empire

Whistleblower in the US has won a $US14 million ($14.8 million) reward for providing tips to the Securities and Exchanges Commission.

By · 12 Oct 2013
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clock 12 Oct 2013
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Whistleblower in the US has won a $US14 million ($14.8 million) reward for providing tips to the Securities and Exchanges Commission.

The information led to enforcement action by regulators and the recovery of funds for investors who had suffered losses in the scam.

The commission has set up a new agency, Office of the Whistleblower, to catch white-collar crims.

It eliminates a resounding double standard, and one which persists in Australia. If you dob in a terrorist or a bank robber here, a reward might be on the cards, but not if you dob in a fraudster.

The official advice is that if you are a whistleblower you may not be protected by the law but you do pay. You pay because the official advice is: get a lawyer.

If, from sheer civic duty, you take the other option and leak to the press as a secret source - a la the Leighton Holdings imbroglio - the press pay. It is they who have to defend the defamation threats - a la Leighton Holdings.

Beneath these big fish in the market swarm the plankton. And down in these understudied depths there has been a rise in the incidence of companies suing their own shareholders to muzzle dissent.

Hopefully, events in recent days should help to put paid to the noxious practice.

Over the past year we have chronicled the travails of shareholders in Empire Oil & Gas, who not only lost their savings in the shares but were also sued by Empire directors for making critical comments on the internet.

An email from an Empire employee to a shareholder says: "The cost for lawyers is not a company cost. The board of directors take this as a personal cost, that is, they pay their own legal representation."

The latest Empire annual report, however, states: "The company incurred legal costs under an indemnity provided to directors in a defamation action against certain shareholders of the company and other parties."

So chief executive Craig Marshall and his co-directors Bevan Warris and Neil Joyce are indemnified by Empire. Effectively, shareholders who sought to toss them - and said why on chat site HotCopper - are funding a legal action against themselves. One is Susanne Devereux, a 68-year-old retired nurse from Queensland, who, having lost her savings, is now being dragged through the West Australian courts.

But there is more, much more.

Apart from the $673,000 in legal costs for the year, there is a note to the accounts which shows "other income ... legal settlement fees" of $22,000.

Not only is Empire suing Devereux, another shareholder, Darren Watson, and activist Eddie Smith - who had the temerity to try to roll the board - it also issued "concerns notices" to a slew of others.

The letters from Perth lawyer Martin Bennett demanded shareholders who had posted allegedly defamatory material on HotCopper apologise, remove "offending posts" from the internet, and pay Bennett's legal bills. But the piece de resistance was the demand to "make an appropriate offer to compensate for the damages caused to date, [saying that] in Western Australia since 1984 the award for nominal damages is $5000 per publication".

Some paid up, hence the $22,000 in "settlement" proceeds. One, a policeman from Victoria, Peter Griffiths, confirmed he had paid because he feared being dragged through the courts.

For his part, Smith has returned fire with two suits: one against Marshall's daughter, Brooke, who does PR, and another against Marshall's son, Kane, who runs Key Petroleum, counterparty in a related party transaction with Empire.

Amid the morass of lawsuits, which would never have transpired had Empire not bullied its shareholders in the first place, has come a corporate interloper.

Brisbane-based oil and gas group ERM has amassed a 10 per cent stake and requisitioned a meeting. Empire directors face another battle for survival.

Interestingly, three days after the requisition lobbed at Empire headquarters, the annual report emerged. Marshall has accepted a new five-year employment contract which looks to be worth a couple of million.

What is not evident, however, is the termination deal. What does Marshall get if ERM rolls the board at the impending meeting?

Norwegian magazine Dagens Naeringsliv has the details - if your Norwegian is fluent. Here, however, we are bound by a suppression order in a Sydney court this week so we can't report the proceedings.

Suffice to say the story concerns the "Enron of Norway", a company called Fast Search & Transfer (FAST) which was sold to Microsoft in 2006.

FAST was a young bolter in the enterprise search market and Microsoft was looking to tackle the ubiquitous hegemony of Google.

Shortly after the deal was done, the Norwegian press broke the story that FAST had booked $50 million in fake revenue and $20 million in fictional contracts. Further, former executives linked to CEO Markus Lervik had siphoned off $6 million to shell companies they controlled.

FAST deployed some fast accounting practices which would make Eddie Groves and his ABC Learning proud, such as giving customers free trial periods and booking memoranda of understanding as revenue. One of these MOUs - FAST's biggest, and indeed the swing factor in its revenue appeal for Microsoft - was an $18 million deal with Telstra. It was booked as "revenue" but subsequently failed to materialise. Stay tuned.
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