OF JOHN K. POITRAS|
I, JOHN K. POITRAS, declare:
1. I am a retired businessman with my principal residence in the County of San Mateo. Over the past several years I have spent a considerable amount of time in the Santa Barbara area while engaged in social activities and in anticipation of living here permanently. These activities have included participation in and sponsorship of a non-profit organization which promotes and produces performances by contemporary musicians. In 1997, while working for this group, I met Reed E. Slatkin ("Slatkin"), a personable, middle-aged man. Mr. Slatkin's comments about his professional life were oblique, but suggested that he was involved in high profile business activities. Out of curiosity, I searched his name on the Internet, and found that he was a director of Earthlink with the stated professions of venture capitalist and private investor.
2. Over time my relationship with Slatkin became increasingly cordial. As I myself had experience in the venture capital field a number of years ago, from time-to-time we would discuss business and investments. In the first half of 2000, I told Slatkin I was in the process of selling my home in the Bay Area. Slatkin said words to the effect that when the sale was completed, we would have fun investing together.
3. In November, 2000, my Bay Area home was sold, and in December at his home at 4480 Esperanza in Hope Ranch, Slatkin told me of a computer program he claimed to have developed which, based on observing decreases in trading volume, allgedly predicted
short-term price increases in securities. Slatkin demonstrated for me how the program worked and indicated a desire to train me in its use so that we could jointly benefit from shared investments.
4. Further, in December, 2000, Slatkin started to press me to invest a substantial sum of money with him. At a meeting I had with him at his house in December, 2000, Slatkin told me that he was forming an investment fund which would utilize his computer program to generate 50% to 60% per annum returns on security trading. Slatkin told me that two other acquaintances of his had committed $5,000,000 each to the venture, that he had committed $5,000,000 for his own account, and that he had put in $5,000,000 to hold a place for me. Slatkin mentioned no risks to me. I told Slatkin that I would need to see something in writing.
5. Shortly thereafter I received in the mail a document entitled Operating Agreement for Fanfare, LLC ("Operating Agreement"), a true and correct copy of which is attache3d hereto as Exhibit 1. The Operating Agreement purported to set for the terms by which I would become a member in a Limited Liability Company ("LLC") which would engage in the "purchase, investment, trading in and sale or other disposition of investments in securities and financial instruments of every kind and character." While I anticipated that Slatkin would make most of the investment decisions on a day-to-day basis, I was reassured by the provision of the Operating Agreement stipulating that "the business of the Company shall be managed by all of the Members." Moreover, the Operating Agreement required that "all funds of the Company shall be deposited in one or more accounts with one or more recognized financial institutions in the name of the Company" and that such
funds could not be withdrawn except by "the signature of such person or persons as a majority of the Members may designate." I fully trusted Slatkin and believed these procedures provided reasonable safeguards against any improper disposition of my funds.
6. While I was considering the Operating Agreement, Slatkin was urging me to expedite my investment, telling me that funds invested before year end would earn a special premium. I set aside whatever reservations I may have had and told him I was ready to proceed.
7. On December 7, 2000, Slatkin sent me by facsimile a signature page for the Operating Agreement and wire funds transfer instructions for transmittal of my $5 million investment to an account in his name at Union Bank of California in Irvine. A true and correct copy of this facsimile transmission, with Slatkin's account number redacted for security purposes, is attached hereto as Exhibit 2. The Court will remark that I appended my signature to the signature page as Trustee for echo Trust, the revocable Trust of which I am trustee and on whose behalf I was transmitting the $5 million. I then faxed this signature page back to Slatkin.
8. On the same day that I sent the signed signature page to Slatkin, I gave written directions to my brokerage representatives at Solomon Smith Barney, Inc. ("SSB") in Menlo Park to transmit the $5 million as requested by Slatkin. A true and correct copy of this writing (with account numbers redacted for security purposes) is attached hereto as Exhibit 3. The hand written notation on Exhibit 3 -- "Will go out first thing tomorrow" -- are notes I took of a telephone conversation with a brokerage representative.
9. In or about December 29[19?], 2000, I received written confirmation from an assistant vice president at SSB that the $5 milliion had been transmitted as instructed. A true and correct copy of this confirming letter is attached hereto as Exhibit 4.
10. During January 2001, I continued to have intermittent social and telephone contact with Slatkin. To the extent we discussed my investment, Slatkin assured me that everything was progressing well. I believed that Fanfare LLC had been properly formed as an LLC and that my finds were properly segregated and invested in the entity. Slatkin said nothing to suggest anything to the contrary. I felt so positively about the decision I had made, that I was receptive whe, in late January, 2001, Slatkin raised the issue of placing additional funds in Fanfare, LLC, however, this time as a "due on demand," "money market" type deposit, rather than an equity investment. In specific, during a meeting at his home, Slatkin told me that he and a fellow investor had $180,000,000 in a money market fund on Wall Street and that, because of the size of this position, Slatkin could secure short-term rates 25 to 30 basis points above those generally paid by money market funds. Slatkin told me that, since I was already invested in Fanfare, LLC, the new deposit of funds could be funneled into Fanfare, LLC and from Fanfare, LLC into the money market account, where it could be invested in "cash instruments." Slatkin assured me that because of the high liquidity of the money market fund, any deposit which I made could be refunded with interest in forty-eight (48) hours. I believed Slatkin absolutely, and told him I was willing to transfer an additional $10 million to Fanfare on the terms he had described.
However, because of the sums involved, I requested a written confirmation of how the transferred funds would be invested. In response to this request, on January 30[?], 2001, Slatkin sent me by facsimile the letter, a true and correct copy of which is attached hereto as Exhibt 5. Exhibit 5 recites in pertinent part that "when we receive your wire in the amount of $10,000,000 on Feburary 3[?], 2001, we will add it to your Fanfare LLC [sic] holdings for investment in cash instruments only."
11. On or about mid-February I informed Slatkin that I was ready to proceed with the "money market" deposit. On February 20, 2001 Slatkin sent me the Wire Instructions, a true and correct copy of which is attached hereto as Exhibit 6, with the account number redacted for security purposes. Exhibit 6 provides for transfer of funds to an account in the name of Reed Slatkin with the reference Fanfare LLC/Poitras -- 12550.
12. On the same date I sent to SSB a request for transfer of $10 million to Slatkin's account as described in the Wire Instructions. A true and correct copy of this request is attached hereto as Exhibit 7. SSB subsequently orally confirmed to me that the transfer was promptly made.
13. Several days after transfer of the $10,000,000 I started to have second thoughts about the transaction. Accordingly, I sent Slatkin by fascimile an instruction to "[p]lease 'liquidate' my short-term investment position and make a wire transfer from my account in the name of $10,000,000 (Ten Million Dollars), plus accrued interest/dividends to [my account at Vanguard Admiral Treasury Money Market Fund]." A true and correct copy of this directive (with account numbers redacted for security
purposes is attached hereto as Exhibit 8.
14. Contrary to the express oral assurances that Slatkin had made to me, I did not receive a refund of my $10 million plus interest within forty-eight (48) hours. Each time I spoke to Slatkin during the week of February 25, Slatkin assured me the funds would be transferred "soon." During the week of March 4th, Slatkin made a definite oral commitment that the funds transfer would be completed by Friday, march 9, 2001. When no such transfer occurred I sent Slatkin the letter dated March 10, 2001, a true and correct copy of which is attached hereto as Exhibit 9. The letter comments on my discover in the meantime that no LLC by the name of Fanfare had ever been created -- a fact which Slatkin never subsequently denied.
15. Because of Slatkin's continuing failure to transmit funds as agreed, on March 20, 2001, I sent Slatkin by fasimile the follow-up demand, a true and correct copy of which is attahced hereto as Exhibit 10. Exhibit 10 confirms that when Slatkin and I "discussed the safe investment of my short-term funds needed to pay taxes and purchase a home in Santa Barbara, you promised a higher than market rate of earnings and liquidity within 48 hours." Slatkin has never denied that such a promise was made. Exhibit 10 further requestss that Slatkin "describe to me the routing of thes [$10,000,000] upon arrival in your account on February 20; the instruments purchased and earnings accrued to date; and the location of my funds as of today's date." None of this information has ever been forthcoming.
16. After sending Exhibit 10, I also relayed telephone demands to Slatkin threatening to institute suit. Apparently in
response to these messages, on March 23, 2001, Slatkin sent me the facsimle note, a true and correct copy of which is attached hereto as Exhibit 11. Exhibit 11 denies none of my prior descriptions of our dealings, offers no explanation for Slatkin's inability to return my funds other than the excuse that "a delay is occurring," and suggest a willingness to "make you secure if, God forbid, this delay should continue."
17. Later the same day I received a note from Slatkin, a true and correct copy of which is attached hereto as exhibit 12, promising to send me "a document with details by the end of the day." Howver, by the end of the day I received nothing but an additional note stating Slatin's willingness to give me a "promissory note/personal guarantee, secured by assets in excess of the amount due you (e.g., securities, real property, etc." A true and correct copy of this note is attached hereto as Exhibit 13. In response I sent Slatkin the letter, a true and correct copy of which is attached hereto as Exhibit 14, renewing my demand for an accounting of the disposition of my funds "with business-like detail if not a complete audit trail," and suggesting a willingness to consider a pledge of security on appropriate terms.
18. Subsequently, I requested written confirmation from SSB that all Fifteen Million Dollars had been transferred to Slatkin's account as previously represented to me. SSB made such confirmation to me by means of the correspondence, a true and correct copy of which is attached hereto as Exhibit 15.
19. In or about late March 27th, I instructed my attorneys, Musick, Peeler & Garrett LLP, to attempt to negotiate a resolution with Slatkin along the lines Slatkin had stated were acceptable to him -- ample security for erpayment during a period of brief delay. As recounted in the accompanying Declaration of Richard S. Conn[?], these efforts have met with a complete failure of cooperation on the part of Slatkin.
11. The Fifteen Million Dollars which I entrusted to Slatkin represents the better part of a life's labor. Slatkin's real estate holding within this state appear to me sufficient to pay only a fraction of the debt which is owed me. Unless securities held for his benefit are attached, I am convinced that I will never receive return of the monies that are owed me. However, such securities are among the most liquid and disposable form of asset known in our society. I respectfully submit that unless an order for right to attach is issue ex parte allowing attachment without further notice of such securities, there is the greatest risk that any judgment I may receive in this action will prove nugatory.
21. In requesting such relief, I ask nothing more than what Slatkin has stated _in his own words_ is an appropriate protection against the risks of further delay in repayment.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed this 12th day of April, 2001, at Santa Barbara, CA.
/s/ JOHN K. POITRAS