Monday, October 7, 2013

Smoking Gun Evidence that Bergeron Case Was Unfounded in Law or Fact




The above email chain dates back to the beginning of the $25 million Xyience lawsuit filed against me in Las Vegas District Court back in 2007 by Attorney Jamie Cogburn. These exchanges came from an email recently sent to me by the brother of Xyience Founder Russell Pike, who is currently incarcerated due to a conviction for tax evasion. I will be publishing a large cache of other insider emails in the near future.

At the time these emails originated, Pike was working feverishly to get more investors to come in to keep Xyience viable. My reports were making those efforts nearly impossible. The lawsuit described investors willing to enter into financing with Xyience, but only if my articles were removed from the Internet. As soon as the case resulted in a preliminary injunction against me, Russell Pike sent a representative out to deliver copies of the injunction order to local investors. This rep wrote the following statement in an affidavit I filed in my counterclaim:


The Fertittas always denied through their attorneys that they had anything to do with the suit against me, but it's obvious from this testimony that they forced Xyience's hand. Dana White didn't end up investing anything, but before Fertitta Enterprises went through with their loan package they did get White's approval.

This email chain will be the main exhibit in a new case against Attorney Cogburn in Nevada. There will be much more to come on this front in the days and weeks ahead. Stay Tuned. 

Saturday, October 5, 2013

Xyience Dismisses Claims Against Rich Bergeron; Accepts Summary Judgment on Counterclaim

orderdismissingcaseacceptingclaimxyience


By: Rich Bergeron

It's been a long time, but even a six-year legal battle did not deter me from continuing to report the truth about the history and current operations of Xyience. Today I can look back knowing I finally managed to get the claims against me completely dismissed. Four different judges oversaw the case over those six years, and multiple law firms and attorneys for the opposition.
The above order also allows for a summary judgment request on my counterclaim against Xyience to go unopposed, so it marks the first major judgment on my behalf in any legal action I've ever been involved in. It's all the more impressive since the opposing lawyer admitted the now-dissolved $25 million case against me had no merits.  
Though this order officially releases me from any liability and confirms my efforts to expose the truth, it does not end the litigation entirely. I still have an extensive sanctions motion in play with multiple affidavits supporting that motion. My own affidavit and evidence files explain the whole situation, but after a September 19th, 2013 hearing I can honestly say I don't think that presiding Judge Lloyd King bothered to read any of that content. 
Judge King certainly did not even consider the fact that the judge prior to him (Judge Mike Nakagawa) allowed me to amend the motion for the record. Judge Nakagawa would not allow me to amend a motion which had already been decided, which was the contention of the Fertitta lawyers going into this hearing.
The hearing resulted in an indefensible decision I will appeal to the 9th Circuit. That hastily-made ruling proved Judge King is biased against me to the point of believing everything the opposing lawyers contend, even if it happens to be a lie. Judge King actually made the effort to locate and read out loud an order on the motion before him, and that moment will be a major basis for my appeal. If it was a "senior moment" for the aging federal judge, his capacity to continue in such an important judicial role should be seriously questioned at this stage of his career. 
Now, I'm no law school graduate, but the last time I checked a summary judgment denial is not in the same legal ballpark as a complete claim dismissal. How could any acting federal judge get as far as Judge King has without knowing the difference between those two distinctions? 
Judge King read the decision on a 2008 summary judgment request in my case like it was a smoking gun for the Fertitta lawyers during the September 19th hearing. The motion he referred to is actually the most viewed document I currently have on Docstoc.com and can be accessed HERE. The Fertitta lawyers also tried to represent at the September 19th hearing that the same motion was dismissed on the merits, but the actual dismissal order concludes the dismissal is mandated by technicality, because I did not properly serve the motion on all creditors involved in the bankruptcy. I would have had to file my own bankruptcy petition in order to pay the postage alone on such notifications. I don't have the kind of budget most lawyers and law firms typically bring to the legal process. Everything I do is fueled by extremely minimal financial resources. 
So, Judge King read this order denying summary judgment on my sanctions claims. He read it right out loud in court for the record right after trying to explain that it meant the whole issue had already been litigated and dealt with. Why even have a hearing in the first place if his conclusions were true? If he reviewed the record and came to the decision that the Fertitta lawyers were correct in their false representation of the record, there would not even be any basis for holding the hearing where he made this huge mistake. I immediately corrected him at the hearing, but that only made things worse for me. He continued to betray an overwhelming bias against me along with a willingness to praise and commend the opposing lawyers. He even rejected a legally feasible and logically sound request for a default judgment against all parties who did not answer the claims and did not have any representation at the hearing. 
I gave Judge King multiple chances to hold a more comprehensive hearing when I could physically attend, asking for the hearing on September 19th to be considered a scheduling conference. Instead, he allowed the telephonic appearance to be my final say in the matter, and I had a great deal of issues with the court hanging up on me and not being able to hear me clearly. Judge King couldn't even be bothered to come up with any official legal background for his denial of my claims. He left that up to the main opposing attorney and his law firm. 
Gordon Silver is a high-class Las Vegas law firm, and the main guy they put on this case is a managing partner named Greg Garman. This shark is a well-trained and experienced lawyer with a very esteemed position at his firm and in the legal community. So, how could he really confuse the record himself to the point that he put such incredible misrepresentations in print and then repeated them in open court after I corrected him in my reply brief? The most logical answer is that he was never confused at all and just purposely painted the record in a false light to make his case look like it could be easily dispatched on a technicality instead of actually being examined on the merits. Lawyers seem to love winning legal battles on technicalities. It saves them the trouble of actually defending against or pressing claims based on actual facts and evidence. 
This time, the basis for giving Garman the win on a technicality was completely fabricated. His argument that a technicality existed at all made Judge King look like a fish out of water when he tried to take the bait. 
Once again, the September 19th hearing proved to me that justice is an evil bitch. The judicial system in this country is hopelessly bogged down by patronage, abuse, waste, and incompetence. People like me were not intended to be able to even make it this far into the legal process. I jumped through every hoop my opposition put in front of me, and by some miracle I remain standing more than six years into this extensive litigation that went from an obscure district court claim to a major bankruptcy adversary proceeding. I simply could not make it to this point if I did not have the truth on my side. 
Over time I learned to realize that pointing out serious flaws in the opposition's arguments and legal citations did not mean those points would even register with a judge who came into the process as a biased party. I came to appreciate how twisted the system is when it comes to pro-se (self-represented) parties. I knew at some point only an appeal examined by competent and unbiased federal judges would set the record straight. At this point, Mr. Garman hasn't even filed any order to appeal, but I'm eagerly awaiting the moment when I can actually see what the court's official decision will use for a basis in law. 
Perhaps the most interesting aspect of the hearing came in the response to my opening comments (which went largely unheard due to a bad connection). Mr. Garman began his statement by confessing that the Fertitta brothers are already suffering due to my work. He did not get into specifics, but he claimed I was responsible for their recent issues with the Nevada Gaming Control Board. If their trouble with the gaming authorities is my doing, I wonder what else about the Fertittas gaming officials might need to know. I haven't even really investigated Station Casinos as much as I have researched the Fertitta involvement in Xyience.  
Garman's remarks proved to me what I've always known in the back of my mind: courts are far too slow at delivering justice. Real justice comes from the court of public opinion. Exposure of inherent evil is often fatal to its ability to fester and grow out of control. Station Casinos has a history of leaving victims behind as the Fertitta brothers continue to hoard their billions in personal assets. As a gaming licensee in Nevada, these casino barons ought to have a much cleaner background than they currently do. The fact that the Fertittas brought Ultimate Poker into legal status as the first official online poker outfit in the state of Nevada is disturbing when you look at what Fertitta Enterprises is really capable of when it comes to fraud. Their connections to the illegal Full Tilt Poker operation through their ownership of Strikeforce is also egregious considering they should have known the illegal status of online poker when they made decisions to retain their sponsorship agreement with the company when it came under Zuffa control. Even worse, US prosecutors labeled Full Tilt Poker a Ponzi Scheme since the outfit's owners were allegedly pocketing player funds
The Station Casinos expansion as a management firm into California casinos governed by Native American tribes is even more troubling under the circumstances. Their indirect financial connections to California senators are telling. Senate Majority Leader Harry Reid also has a son named Key Reid who is on the board of directors for the Fertitta-run Meadows Bank
It makes sense that even a federal judge would be afraid to rule against people with this kind of power and access. They are virtually untouchable. Still, Judge King also refused to sanction me despite saying in open court that he actually felt I was the one who deserved sanctions. So, basically he admits he is not willing to even rule in favor of what he feels is actually justified. 
The appeal process should be intriguing, but I also plan to report Judge King to the state bar for displaying a complete lack of ability to do even minimal research into the claims he decided so hastily. The most important development at this stage is regarding my long break from working on this site. The litigation process leading up to my departure from Las Vegas was draining and stressful, and I needed a break from all of it. The hearing designation and dismissal of all claims against me opened new doors and brought me back to the heart of the story and the need to expose the real truth here. 
With no legal obstacles, I can now pursue a non-fiction book project on the case. I can also begin to plan out a documentary. At the rate I'm going, such projects will have a better potential to benefit burned Xyience shareholders than any legal action I could possibly undertake. I am also compiling an extensive report to deliver to Nevada, California, and Native American gaming authorities, which could do more to bring the Fertittas to justice than any judge in any court in this land. Someone must show these ruthless robber barons that there is a price to pay for screwing over innocent people and destroying their investments needlessly and thoughtlessly. 
Although I should be disappointed upon losing the decision on the most important motion in my case thus far, I am actually thrilled. My passion for this story is renewed. My prospects for a successful appeal are promising. Judge King's bias was more pronounced than ever at this latest hearing. Over the next few weeks I will be working to revamp this site to include all the relevant information and documentation detailing the irresponsible and corrupt history behind the Fertitta family facade. Stay Tuned for more frequent updates in the days and weeks to come.
EDITOR'S NOTE:
All stories on this site are now free to read with no subscription fee required. I will be spending some time updating broken links on the site in the next few days. This is mostly due to an unfortunate issue with the loss of all customer files hosted on fileden.com. We had a ton of material hosted there that now needs to be relocated to another public server. Some of these files are now hosted HERE. We will make a formal announcement when all bugs are fixed. 

Saturday, February 16, 2013

The Choice of a NOS Generation

By: Rich Bergeron


It's only fitting that Xyience's star is falling and the brand is collapsing into debt just as Coca Cola's NOS brand of energy drinks cements a spot as the top sponsor of The Ultimate Fighter. TUF is the show that put Xyience on the map in the first place, so it's a strange coincidence.

News is trickling in lately surrounding the stable of fighters Xyience once sponsored, and it sounds like Xyience and Xenergy are at DEFCON X. Virtually all of the current UFC fighters on "Team Xyience" were cut from their sponsorship deals in recent days and weeks, and inside sources say the company owes at least 1.5 million dollars to Cott, the beverage giant responsible for creating and canning Xenergy. Without a bailout from the same Fertitta Family that owns the majority of the UFC, the company could be headed for a second bankruptcy or a fire sale. Fertitta Enterprises still owns and operates the brand, but a recent ultimatum from Frank Fertitta III and Lorenzo Fertitta forced the brand to make attempts to stand on its own without further financing from the billionaire brothers.

Inside sources also report that the Fertittas and UFC President and Part-Owner Dana White recently tried to convince Coca Cola's NOS brand to replace Xenergy as an official UFC sponsor. Right now NOS does not appear in any other octagon outside of the one on the TUF series. It's a relationship that the company fostered more with the Fox network than with the UFC itself. Yet, Dana is always drinking from his can of NOS whenever the show's camera crew catches him with one in hand. That's pretty interesting considering in past years fighters were sometimes caught "drinking" from closed Xyience cans. Dana's can is always open, much like his mouth.

What makes the NOS connection even more interesting is the fact that only a little less than six years ago, Dana White was telling NBC Sports that the UFC didn't need Coke's sponsorship:

“I’m cool with Mickey’s and Toyo Tires, man, believe me, you’ll never hear me bitch. The way that we’ve run this business and the way we have come up, think about it… we didn’t have any mainstream press, we didn’t have any mainstream sponsors, and look at how huge we are. I don’t ******* need Coke to keep doing what we’re doing, man. Believe me, the big time sponsors if they come on, of course that’d be fantastic. I don’t need ‘em. 18-to-34 year old males, they’re here hanging out with me. If Coke wants them, Coke needs to come to us.”

Suddenly it seems that White's words have come back to haunt the UFC, and apparently Coke still holds a grudge and won't bite on the league's multi-million dollar price tag to move their branding beyond the reality show. They don't need actual UFC fighters to flaunt their brand, either. The same tired commercial featuring a flashy, overconfident MMA fighter getting dropped with one punch is the new standard for NOS when it comes to marketing to the TUF fan base. And you can tell the winner of the fight in the commercial is really drinking from the can in the TV spot. He chugs it so fast, much of it ends up dripping down his face. Another jab at the UFC, although it seems unintentional, is the fact that the whole made-for-TV fight happens inside a ring, not a cage.

The Fertitta-run Xyience is in crisis mode these days, recently laying off multiple sales personnel and leaving the rest of the staff in fear of an imminent implosion. The company the Fertittas surreptitiously acquired by stealing it out from under hundreds of earnest investors is now a money pit. The Fertittas don't seem to want to spend the capital to keep the operation going despite getting a hold of the company for a song. It's the ultimate payback for all those shareholders who didn't get a dime out of the deal when the Fertittas purposely bankrupted the company and then retained ownership through a scandalous scheme involving former Cott executives pretending to enter into a serious purchase agreement only to later default on that deal.



For a little while the Fertittas made all the right moves to make the brand appear stable and ready to X-pand. Sponsorship deals with top-notch fighters like Jon Jones and Anthony Pettis appeared to be signs of the brand's resurgence as a key UFC sponsor. None of the fighters pictured above represent the brand any longer according to inside sources at the floundering supplement company. For Matt Serra, this marks the second time he's getting screwed for associating with Xyience. His prize for winning The Ultimate Fighter ended up getting wiped out by the company's bankruptcy, and he was the only fighter from that Xyience stable to come back to the brand before Chuck Liddell came out of Xyience retirement in recent months. Since Liddell's sponsorship agreement came with a pre-paid setup, he is among the last of the Mohicans still repping the brand. That's also fitting seeing as his initial Xyience sponsorship was one of the most lucrative deals in the history of the sport at the time of his first signing with the company.

The operation of Xyience once the Fertittas had control of it certainly betrays their attitude toward the fighters they employ in the UFC. It shows these silver-spoon billionaires just don't give a damn about the people who line their pockets. These recent developments illustrate an underlying selfishness on the part of the UFC's royal family that pervades everything they do. Xyience only mattered to them when it was a way to get a HUGE LOAN or a way to pay the UFC with the same money they used to get the chief lien position over the company just before they rigged the bankruptcy process to work in their favor.

At the moment my own legal battle with Xyience and the Fertittas is in limbo. I've been waiting for the right moment to ask for a final hearing on my remaining claim asking for millions of dollars in sanctions against the Fertittas and their associates who made the whole fraudulent bankruptcy possible by silencing my reporting. Should Xyience and Xenergy fold due to the Fertittas failing to put their own money up to bail their UFC sponsor out, it will be the perfect cap stone for the case I've built brick by brick and year by year to prove that Frank and Lorenzo Fertitta only wanted Xyience to be a going concern if it operated as a personal piggy bank. Without any way to siphon money off the brand or use the brand to make the UFC look better than it actually is, the Fertittas just don't need it. Sadly, this has been the trend as long as Xyience has been in business. It's been passed from one abusive management and ownership crew to the next. Everyone seems to find a way to smack it around and treat it like another red headed stepchild with no real identity or meaningful purpose for living and thriving.

What seems to get lost in translation to most of the fans who stumble onto this story is that there are real victims behind this ongoing scandal. As the saga continues to unfold the people who suffered most are only reminded of the savings they invested into the fledgling Xyience. They saw all their hard-earned dollars put into the company get wiped out by a couple of scumbag brothers who have way too much money to begin with. Some of the children of these victims had to forego college. For many, their retirement plans were catastrophically altered. The money some of them spent their entire lives putting away for a rainy day is just gone, flushed down the drain by the careless and ruthless actions of a couple of casino barons who had all their wealth passed down to them from Daddy Dearest. They will never know what it is to truly earn a paycheck, but those they victimized over the years to keep themselves healthy and wealthy will always know what it's like to lose everything and have to start over.  

Let it be known that the Fertittas just don't care about real people with real struggles. They don't have any genuine concern for their own fighters, and they don't get bent out of shape in ruining families just to make themselves a little richer. Making things right for every individual they burned in the Xyience bankruptcy would be a drop in the bucket for these two billionaires with their ever-growing business empires, but they choose to ignore the suffering and act like it never happened.

While I never rooted for Xyience to fail in the past, it seems to be sweet justice to see it failing now. I seriously doubt my fledgling BOYCOTT XYIENCE campaign made a dent, but I'm at least proud that I never really gave up the struggle to educate the public about who the Fertittas really are and where their motivations really lie. I will never forget the people who really put Xyience in position to be successful in the first place, and I will cherish the day I am allowed to put Frank and Lorenzo on the witness stand to answer some real hard hitting questions about the damage they've done and the lives they've destroyed in the name of pure greed.

In all honesty, I hope Xyience doesn't fail just yet. I hope that the Fertittas actually sink a few more million into trying to make it work. I hope they invest just enough so they wind up losing as much as the people they've screwed over the years have lost for believing the brand would be taken care of by the UFC owners. Now that would be real justice. Here's to hoping Karma catches up to these corrupt and spineless scamsters, so even if the burned Xyience shareholders don't get any financial relief they can at least get a little revenge...served with a cold can of Xenergy.   

Wednesday, June 13, 2012

BOYCOTT XYIENCE: SIGN OUR PLEDGE





Thursday, May 17, 2012

X Marks the Sport: Xyience Scam Shows Dark Side of MMA's Most Powerful Promotion


"Where ignorance is bliss, 'tis folly to be wise." Thomas Gray, Ode on a Distant Prospect of Eton College, 1742


From the oldest dimestore novels to the most current TV cop dramas, a classic element of detective stories is the old familiar line about the perpetrator always coming back to the scene of the crime.

As Xyience Inc. limped through a controversial bankruptcy process over the past few years, the Xyience and Xenergy branding was relegated to UFC fighters wielding cans of the energy drink and the Xyience.com and other Xyience and Xenergy logos appearing only on the outer ring of the mat or on the ring bumpers.


Saturday, May 5, 2012, marked a milestone for Xyience: a triumphant return to their old domain. Once again, the brand picked up where it left off, marking the center of the mat space for UFC on Fox 3 with the "Xenergy" (pronounced Zen-ergy) name, focusing on the company's sugar-free energy drink.

Ironically, this is the same strategy employed by Xyience Founder Russell Pike. Now facing July sentencing for being found guilty of tax evasion, Pike's been someone the current company wants to distance the brand from. Yet it was Pike who first decided to take the Xyience bar code off the mat and replace it with a Xenergy can.

Back then Pike's goal was to drum up interest in a potential buyout of the drink label while the rest of the company would continue under the Xyience name.

Though the Fertittas seem to paint Pike as the prototypical fall guy, they went to great lengths to lock the founder and his friends and family out of controlling the operation so they could bankrupt it after promising shareholders that their involvement and intervention would save the company from such a fate.  

On Oct. 2, 2007, Xyience Co-CEOs Adam Frank and Kirk Sanford informed Russell Pike, William Pike and Michael Clark (shareholders who represented 25 percent of the shares outstanding) that if they did not sign the funding consent form for the Fertitta funding and give up their voting rights, Frank and Sanford would put the company into bankruptcy.

On Oct. 3, under duress, the Pikes, Clark and other major shareholders signed the consent forms. Only 11 shareholders, who represent over 50 percent of the shares outstanding, ever saw the funding agreement before it became official.

An email sent by Fertitta Enterprises GM Bill Bullard to Lorenzo Fertitta on Oct. 4, 2007 discussed a $150 million offer from Cott Beverages to buy Xyience. This email was only found due to an intense discovery process initiated by the trustee's counsel, Jon Backman. The full text of that message is below:


By January 2008, the Fertittas perfected their scheme by foreclosing on their loan and speeding the company ship toward the iceberg of bankruptcy.

Instead of letting Cott buy the company at full price, two former Cott executives wound up agreeing to purchase the brand out of bankruptcy for $15 million through a front company called Manchester Consolidated.

Coincidentally, that purchase price was exactly 10 percent of the $150 million mentioned above. Manchester would later default on their payment plan, ceding control back to Fertitta Enterprises.

All the golden parachutes were reserved for company insiders who were in on the scheme, and over the past four years and counting the result of losing their Xyience investments tore apart innocent families, caused individuals who lost everything significant pain and aggravation, and forced a ton of folks to start over on building their once-substantial nest eggs.

The Fertittas rode into the sunset with their own supplement company that is now making record profits.
  
Few Mixed Martial Arts fans know the true extent of what went on behind the scenes at Xyience leading up to and throughout the ongoing bankruptcy. Wednesday, in a Las Vegas courtroom in front of a substitute judge from Hawaii, Attorney Jon Backman, the bankruptcy trustee's counsel for Xyience, settled some contentious issues with Fertitta Enterprises

The re-organized Xyience (Zyen, LLC) staff celebrated the announcement of the settlement recently with a huge catered dinner at Red Rock Casino, the most modern and luxurious casino the Fertittas own in Vegas. They're calling the next phase of the business "Xyience, Round 2."

Meanwhile, 385 original Xyience shareholders will be left with absolutely nothing once the final check is signed distributing the final dollar left in the trust.

Over 65 million shares issued in the company during their early days of rubbing elbows with the UFC will now be worth less than the paper they're printed on. Family trusts, retirement accounts and college funds were wiped out by the Fertitta takeover.  

Some say life imitates art, while others argue it's the other way around. I stumbled upon the Xyience debacle for the first time as an independent investigative reporter covering the sport of MMA in 2006. The resulting project and related litigation eventually became a significant part of my everyday life.

This site will someday make a phenomenal book and/or documentary effort. The experience proves beyond any reasonable doubt that fact is truly stranger than fiction. 

Those MMA fans who might wonder why they should care about scandals like Xyience need to look at the bigger picture. The Fertittas knew they could get away with this from the very beginning when they first pulled the trigger on this scheme. Consider this snippet from a Las Vegas Business Press article printed a month into the bankruptcy:

Attorneys for three unsecured creditors claimed that the deals were part of a "lend to own" strategy pursued by the Fertittas.

The Chicago law firm of Bell, Boyd & Lloyd filed papers alleging that Xyience's "bankruptcy case appears to being run for the sole benefit of Zyen -- the debtor's insider secured creditors."

It added: "Zyen is given a giant axe to hold over the debtor's head, while the debtor's credits are left with no opportunity to defend themselves against improper chopping."

Zyen, a Fertitta company, would have the right to make a bid for the company, the Chicago attorneys contended.

Chicago attorney Jim Morgan told the judge: "There is going to be possibly a forced sale with absolutely nothing left in the estate for unsecured creditors."

Greg Garman, attorney for the Fertitta's Zyen, rejected criticism from shareholders and unsecured creditors, even though his clients' crooked behavior was one of the main reasons why these parties were concerned in the first place. It is unlikely that Xyience shareholders will recover anything from the bankruptcy due to the large amount of debt, Garman said.

The bigger picture reveals that Xyience's bankruptcy basically served as a practice run for the much larger and more profitable Station Casinos bankruptcy. Both companies sit comfortably on the other side of bankruptcy as reorganized entities at the moment. Station Casinos just announced a $6.8 million profit for the first quarter of 2012.

The Fertittas are still rich and getting richer, but at what cost? The little people paid for it all, from the private jets to the tailored suits to the luxurious mansions.

Pension funds and savings accounts across the nation affecting countless average Americans in multiple locales were impacted negatively by the unethical and irresponsible behavior of the Fertittas and their minions. 

Too many MMA fans and even more MMA media professionals stick their heads in the sand and pretend that the UFC's primary owners are great guys, model citizens, and all-around heroes. If you look into their past, you will see that Xyience is just the tip of the iceberg.

Since their transgressions have gone unchecked for so long, these powerful Las Vegas brothers keep generating bigger and bolder schemes, enlisting high-powered local lawyers to deal with the fallout. They grease the palms of enough national political forces to insulate themselves from any federal probe, too. 

This penchant for pulling off fraud and stepping on the toes of little people most certainly carries over into their operation of the UFC at many levels. Silence is golden for the the Fertittas when it comes to the UFC, and there's millions of reasons for them to keep most of their financials private. 

This is why no fighter is making a million dollars per bout in the UFC while there are a number of boxers who can command that amount and more.

Interestingly enough, Russell Pike reportedly gave Chuck Liddell a million-dollar contract to pimp Xyience back in the early days of the company. Pike's regime also signed multiple high-caliber fighters to the brand across the MMA landscape and not just in UFC circles.

Despite his criminal tendencies, the company founder made bold moves and laid the foundation for the UFC's current symbiotic relationship with Xyience.

The Fertittas have much more cash at their disposal now as owners of Xyience, but they don't have nearly the same number of talented fighters in the sponsorship stable these days. The Fertitta-owned Xyience also now only sponsors the UFC and their own fighters instead of branching out to other MMA leagues and sports as Xyience did in past years.

The little people in the UFC to the Fertittas are the fighters, even though many of the men and women fighting for the top dog in MMA become fiercely loyal to the Zuffa, LLC organization. Few fans and media professionals realize that this is a conditioned response.

The Fertittas and Dana White fostered a leadership environment leading to a whole new class of obedient fighters who rarely rock the boat or call out their bosses for any reason at all.

Over the next ten years as MMA athletes who fought the bulk of their careers for the UFC are retiring, we may begin to see the real toll a UFC career can have on a fighter's health. By then it will be too late for the fighters suffering from the worst symptoms to negotiate for a higher per-fight pay or a piece of the royalties the UFC makes off their past fights and likeness rights

It's time for the truth to trump the lies. It's time for people to realize the Fertittas built their success off the backs of better men and women than themselves. These silver-spoon-fed brothers are much worse than whoever is responsible for JP Morgan Chase's $2 billion miscalculation the FBI jumped all over recently.

Why aren't any federal authorities taking a harder look at the tactics these billionaires are using to continuously get away with ruining the lives of average Americans who get duped into backing these economic hitmen

In reality, Bernie Madoff and Wall Street's worst scam artists are not nearly as bad as the combined negative force of the army of financial wizards in this country like the Fertittas who get away with fraud considered to be legal (or only borderline criminal) and only subject to civil penalties. And those civil penalties only apply if those damaged by the fraud can afford the world's most fantastic lawyers.

Paying law firms to cover up their worst behavior becomes cheaper for businesses and billionaires than it would cost to do business the right way: with respect and responsibility.

The roadmap to riches for the Fertittas ripped apart the lives of regular folks from all walks of life, from firefighters and teachers bilked out of retirement funds, to Xyience investors who had their shares wiped out due to Fertitta greed, to all the fighters the UFC chewed up and spit out for not fighting up to the big dog of MMA's standards.

Don't believe the hype and never forget the people who bought out and rebuilt this league will take care of themselves first and screw the little guy any chance they get if it can make them an extra buck by doing so.

The Fertitta family's Galveston gangster ancestors would be so proud to see what kind of corporate crooks these grown brothers have become. 

Thursday, April 26, 2012

Settling For Nothing: Fertitta Enterprises Gets Off With Slap on The Wrist For Bankruptcy Fraud

By: Rich Bergeron



      It always amazes me to see how much history repeats itself. Nearly the same scene that's depicted in the photo above unfolded at the Fertitta-owned Red Rock Resort and Casino recently. This time around, the banquet featured the entire current crop of Xyience employees celebrating a new settlement agreement to end the company's bankruptcy battle with the trustee's counsel Jon Backman.

    The settlement is disappointing when you look at how long the proceedings dragged on and how much promise there seemed to be in taking the Fertittas to trial. My own relationship with Mr. Backman was sometimes contentious. I often asked him what could be done for the shareholders.  He always told me they would probably recover very little or next to nothing. I pressed my own motion to suspend the bankruptcy before Backman took the case on for Trustee David Herzog.

     There were times Backman seemed to be doing whatever it took to seek justice while at other times I saw the stereotypical lawyer in him. Eventually I grew to understand he was in a tough position, but he amassed a catalog of evidence that began to build momentum leading up to the trial. He won a sanctions motion that he now has to scrap his rewards for to get a lowball settlement approved. Apparently, Backman didn't want to take his chances fighting the case in court, and he eviscerated his chances to prove that case in the settlement motion.

     Reading some of those sentences came as a real shock to me. The language had the tone of someone writing with a gun to his head. I attended a hearing in Las Vegas where Backman wiped the floor with his opposition: Attorney Greg Garman. The tide seem to be turning in the case, and my own experience with Garman led me to believe he really had no idea why his clients should have to pay for stealing the company out from under the shareholders. He knew the law, but he he didn't seem to know the case that well. He certainly didn't grasp the real circumstances that made this bankruptcy a borderline criminal conspiracy.

     Paying out anything to the trustee came at a price for the Fertittas, I suppose. I wouldn't doubt the negotiations featured discussions on how the settlement motion would be written to absolve the Fertittas and their employees of all possible implications of guilt or culpability. Just like the gangsters in suits depicted in the photo above, the Fertitta brothers have to appear respectable and spotless in the public eye while running their rackets behind the scenes.

   Mr. Backman seemed ready for trial recently, and he let me know at one point that I'd probably read about it in the papers before he could tell me how it was going. He didn't quite get that one right, because I'm the one writing about what happened rather than reading about it anywhere. If I weren't around, the Fertittas might have slipped this one right under the radar. That's unfortunate, but it's the world we live in. Thanks to people who continue to look the other way and let crooks be crooks, crime really does pay for gangsters in business suits these days. Just take a few hours and sort through this blog someday. Research the Fertitta bloodline. 50 cent was over at Floyd Mayweather's gym Tuesday being a ham for the cameras, but if he really wanted to find out how to be a gangster he should have been talking to Lorenzo and Frank Fertitta III. From their machine gun-toting security details to their stubble-ridden tough-guy mugs, these guys are the picture of organized crime in Las Vegas evolved to a totally new dimension.

   It really is depressing to see a company stolen right out from the investors who built it, but even more disgusting is how the Fertittas are planning to fold Xyience into Zuffa. They are literally and figuratively driving it like they stole it.

Russell Pike (parody)
     The company's current PR staff even made it a point to disavow any connection to the company's original founder, Russell Pike, when Pike was recently convicted of Tax Evasion to the tune of owing an estimated $1.5 million to Uncle Sam. Pike will be sentenced in July. By then, the Fertittas will be making millions emulating his original model of doing business: sponsor the UFC's fighters and the UFC to sell more low-rate supplements and other assorted overpriced items. The only thing they didn't do that Pike did was seek investors. The Fertittas and their insider friends wanted all the spoils for themselves. The UFC brass wanted a supplement company tied to the organization for a long time. Now they have one.

Xyience "Round 2" will flash the new marketing model at us all on free television soon by posting the Xyience logo back in the middle of the mat once again on May 5th for the UFC on Fox 3 card. It will be the first time the company's held that position on the mat since I helped expose how the Fertittas created a false bidding war for the middle of the mat space. Xyience defaulted on a multi-million dollar payment plan for that ad space while they were steaming toward bankruptcy, and the Fertittas had to know the company couldn't meet the terms of such a deal when they put ink to paper on it.

Money coming out one Fertitta pocket and going back into another would be a common theme through the case, and I kept finding new areas where the Fertittas found ways to pay themselves without any intention of their moves ever being made public. Yet, even when I exposed much of this behavior, they managed to get away with it all and did not even have to suffer a real civil penalty. These guys have become the kings of insider dealing, influence peddling, and lawyering up to beat the band.

      Lorenzo and Frank Fertitta managed to erase billions in Station Casinos debt through the bankruptcy courts, and they bought all their over-leveraged properties back for a bottom dollar bid at the tail end of the process. They used Xyience as a trial run, an experiment of sorts. It wasn't long before the lesson learned came to be: bankruptcy can be extremely profitable if you play the game correctly. I arrived in Vegas on my last trip out during a time period where Station Casinos was still on the way out of bankruptcy. They were advertising a car a day give-away. Later on I read some reorganization paperwork that showed Station Casinos simply defaulted on the payments to the dealerships involved. The dealerships no doubt wrote off the losses as part of their insurance program, and the folks with the free cars made out like bandits. It's the kind of magic that can only happen in Las Vegas.



This is why the Fertittas themselves are very rich individuals who always make the Forbes list. This is what business-suited gangsters do. There's nothing better than selling something you got for free. As casino owners, the Fertittas must maintain a resolute appearance as upstanding young men who are law-abiding citizens. Billions of dollars could literally be at risk if they were ever caught up in any kind of criminal charges. Bankruptcy fraud seemed like a fair charge when I first levied it against them with a motion to suspend the bankruptcy. Their juice and my lack of an attorney led to a judge paying my motion no heed. The Fertittas steamrolled the company through bankruptcy with relative ease. It was like a bank robbery broadcast on national television where a million tips come in because everyone knows the robbers. Yet, nobody gets cuffed in the long run. Nobody is told to pay for their transgressions or provide any relief to those who suffered through these long years hoping something tangible would come out of the court process.

 I currently have a motion seeking $150 million in relief for sanctions against a wide array of parties implicated in the bankruptcy. There has never been an appropriate hearing on that motion, and it would require a ton of testimony to do it right. It's not a task I take lightly, and it would be a gargantuan effort to bring that hearing to fruition. Still, I am determined to do what it takes to play my part in this and provide whatever shred of justice I can.

Friday, October 7, 2011

Xyience Bankruptcy Hearing Yields No Decision On Sanctions For Now: Lorenzo Fertitta Suit May Be In Pipeline

By: Rich Bergeron


CLICK HERE FOR AN ARTICLE ON THE LATEST LEGAL WRANGLING IN THE LAS VEGAS REVIEW JOURNAL


An adversary case filed in Nevada bankruptcy court by the trustee's counsel for Xyience against Fertitta Enterprises, Zyen, and Zyen's General Manager William Bullard is suddenly getting very interesting. A contentious hearing Friday, October 30th in the case addressed a sanctions request for discovery violations. The hearing gave way to suggestions from Trustee's Counsel Jon Backman that Lorenzo Fertitta could be named in an entirely new future complaint as a result of what his recent, last-ditch discovery efforts uncovered.



Bankruptcy Judge Lloyd King seemed to take some limited interest in the sanctions motion and made some remarks indicating he agreed with Backman's factual take on the situation. Still, he made no final decision on the motion and asked for supplemental briefs from both sides regarding the procedural technicalities involved. Judge King also indicated that a follow up hearing featuring witness testimony would likely have to be held to determine the direction and breadth of any sanctions that could possibly apply. The judge also later set a proposed trial date for the existing case in April, 2012.



Despite what Backman described as harsh conditions for collecting evidence, he explained to Judge King that what he did find so late in the game changed the whole direction of his case. Backman argued that the lack of cooperation from his adversaries made the case far more difficult to deal with. The real tragedy, he explained, is the evidence that's just impossible to uncover. "We're never going to see those emails," Backman lamented about a situation in which he sought official Xyience email servers his adversaries somehow could not produce despite rigorous attempts to force them to. "There's nothing left to compel production of."



The complicated scenario that led to the sanctions request left both sides in the legal wrangling claiming the other was being unreasonable. A previous article previewing this hearing explains the nuances of the trustee's claims. Missing and now impossible to recover email communications are at the center of the controversy. A Fertitta right hand man of sorts, William J. Bullard, became public enemy number one for Attorney Backman at Friday's hearing.



Bullard is the General Manager of Zyen, LLC, formed as a Fertitta Enterprises subsidiary to provide a loan to Xyience. Once in the chief lien position over Xyience, the Fertitta side company quickly foreclosed on the debt. Zyen then became Manzen and assumed control of Xyience after the company declared bankruptcy in early 2008. Manzen was actually a combination of the Fertitta group (Zyen) and a company made up of four individuals named Manchester Consolidated. The combined parties coordinated to enter into a payment program in order to allow Manchester to appear to be buying the company out of bankruptcy. The monthly payments from Manchester eventually stopped coming in, giving control of Xyience back to Fertitta Enterprises once again.



To add another layer of intrigue to the complicated scheme, Machester Consolidated consisted of a total of four people with two of them being former executives of Cott beverages. Cott is the manufacturer of Xenergy. Had the bankruptcy resulted in another ownership group acquiring the company, Cott might not be guaranteed a chance to continue doing business creating the company's popular drink product that touts itself as the official energy drink of the UFC.



Friday's hearing discussed emails, some of which were only discovered after the trustee had to resort to delivering a subpoena to Gordon Biersch, a brewery and restaurant chain also owned by the Fertittas and managed by Bullard. Due to what he described as a painstaking process, Backman eventually did get a hold of some crucial emails, including one he described as "one of the hottest smoking guns I've ever seen in litigation." Fittingly called Exhibit G, the email between Bullard and Lorenzo Fertitta mentioned a $150 million offer for the purchase of Xyience from the Cott Corporation. The date of the email was aligned very closely with the first $12 million in financing the Fertittas provided to Xyience to gain control of it down the line.


The offer, if company officials capitalized on it, could have helped Xyience shareholders recover some value for their shares. Instead, it seems the Fertittas were intent on locking the shareholders out at the first opportunity they could, refusing to hold scheduled shareholder meetings and neglecting to pay the first interest payment on their loan with company funds. Hundreds of shareholders lost nearly all hope of any recovery when the Cott offer morphed into a scheme involving former Cott executives and their associates pretending to purchase the company for $15 million as a "stalking horse bidder" in the bankruptcy.



Coincidentally, I have a pending motion in these proceedings under my own adversary case which seeks $150 million in relief to be granted to shareholders burned by a campaign to silence my reporting that was trying to bring the whole Fertitta scheme to light. At the time I filed that motion I had no idea this smoking gun of an email existed, but it certainly fits a pattern I've described time and again for my readers here and at xyiencesucks.com in intricate detail.



Traditional mainstream media surrounding the sport of MMA and the world of finance is really missing the boat when it comes to the meat of this story. Yet, even a publishing entity that painted the Fertittas in a more positive light in the past picked up this vein of the tale surrounding Backman's sanctions request. Forbes Magazine didn't afford the trustee's attorney the courtesy of spelling his name correctly in the piece, and the author falsely asserted there is formal mediation involved in the case, but they did make an attempt to tell the story's most important points.



Forbes didn't send anyone to the actual hearing, though. None of the local papers had reporters there, either. It was not hard to find a seat in the courtroom. This is a story that's still unfolding in a controlled environment of sorts, so damage control for the Fertittas and the UFC so far has been fairly limited.



Backman is on track to make this case into much more of a spectacle if he indeed names Lorenzo Fertitta in any future complaint. The subpoena of Gordon Biersch's email server information led Backman to some documents he professed to never seeing before, documents that could pinpoint Lorenzo Fertitta's role in the conspiracy to bankrupt Xyience and defraud the company's shareholders and creditors.



"Whole cases can turn on single documents," Backman reminded the judge in open court on Friday. Getting a hold of the evidence that turned his case in a completely new direction added enormous excess costs for Backman to absorb on a case he took on contingency. These very documents, had Backman acquired them earlier, could have allowed the estate to make much more progress in the complicated litigation surrounding the estate at a much earlier date in the process. Instead, Backman now has to backtrack and reflect on the countless hours of wasted time spent chasing down company email servers he could never actually obtain.



The destruction, loss, and/or failure to preserve these servers and hard drives sought by Backman leaves a gaping hole in the case. The frustrating scenario caused irreparable damage that Backman had some trouble fully quantifying for the judge Friday. During much of his argument before the court, Fertitta Attorneys Gregory Garman and Joel Schwarz busily took notes, whispered to each other, and appeared to be genuinely agitated by the accusations against them and their clients. There really isn't much hard evidence of a driven, purposeful campaign to destroy the evidence in question, but the situation is about as suspicious as it could possibly be.



Attorney Garman explained away the accusations from Garman as "outrageous" and personally referred to Exhibit G sarcastically with the same "smoking gun" label Backman applied to it. Garman provided a basic timeline and list of efforts he personally undertook to assist the trustee in finding evidence. He vehemently disputes the claims that his actions constituted the hindering of Backman's discovery efforts. Instead, he explained that he did everything in his power and his clients assisted to the best of their abilities to voluntarily provide every shred of evidence they possibly could. Garman, at one point citing his high blood pressure, seemed clearly disturbed that his reputation might take a hit because of this case. Deep into one of his rants about how cooperative and misunderstood he is, he actually had to apologize when he almost uttered my name instead of Backman's.



Even though Garman is an expert litigator and an excellent speaker, Backman's accusations and evidentiary support are clearly bothersome for the Gordon Silver attorney. During my own past interactions with Garman he's come across as overly concerned about how others perceive him professionally. He told me himself at one point earlier this year that he considers the Fertittas one of his least significant clients, but at this point the task of protecting them and their associates seems to be causing him some "xtreme" stress. He even asked the judge for a recess and extra time afterward to argue more points surrounding his purported cooperation with the discovery process that he felt Backman misrepresented. Traditionally, a lawyer bringing a motion introduces it, the opposition gets a chance to refute the claims, and the moving attorney gets the final word. Garman's protests led to another round of back and forth at this hearing, and it seemed to expose the attorney's nervousness.



My personal impression of Garman's tactics--though certainly swayed by my intimate knowledge of the case and his basic character--left me convinced that he is running out of confidence on this one. He let the judge, Backman, and the few in attendance at the hearing see him sweat Friday. Backman, even when he was at a loss for words, came across as perpetually relaxed in his tone, speaking with the conviction of someone who knows he is right.



Backman wore a sharp suit that seemed a little too big for him Friday, but he filled the courtroom with the authority in his voice. He called the evidence debacle "one of the most egregious discovery violations I've ever seen." He seemed to have trouble even fathoming a world where sanctions would not apply to what his opposition's been caught in the middle of. Judge King conceded that there was no question he had the power apply sanctions, but he also said he wanted to know "the source" of that power. There are multiple categories and tiers of sanctions based on certain litigation behavior. Whatever stream of relief is applicable here will be best suited to become the basis for a formal order on the matter. Judge King seems to be thinking ahead about not wanting his order appealed if he sides with Backman.



Backman described the discovery difficulties as a "shocking development" in the case and confessed, "I want this case to be over." He further explained he had no vendetta or personal issues with Garman or his clients. "A serious mistake was made here," he stated plainly at one point.



Garman, in his second crack at a response to the charges against him and his clients, reported that he'd never been engaged in "such contentious litigation." He called Garman's strategy a "fabricated emergency." He insisted Backman's allegations did not mesh with the established record in the case and that he and his clients "did comply" with the discovery process. "I took this case exceptionally seriously," he said before listing off a series of numbers quantifying how many documents were turned over to Backman and when. He argued that some of the same emails Backman recovered from the Gordon Biersch subpoena were volunteered by other defendants in the case on previous occasions.



Garman went on to contend that he's gone out of his way to try to offer Backman concessions in the wake of the discovery mess. He told the court he was willing to expand the discovery process and allow further depositions of key witnesses but Backman refused these options. Garman also spent a considerable amount of time harping on the $150 million Cott offer being insignificant since it never actually materialized.



The question Garman seemed to miss in his explanation of the multi-million dollar Cott purchase offer is why it went away so fast after a meeting between Xyience insiders and the Cott folks in Canada. The deal didn't dissolve for no reason. There's no witness testimony as of this point in this litigation that adequately gives the exact reason why the $150 million offer came off the table and why it's not suspicious that people associated with Cott ended up with an ownership interest in the company anyway. Still, Garman insisted that if there was any conspiracy involved in this case it was "a conspiracy in the light of day" and his clients were open and honest about their intentions and actions.



The record simply doesn't reflect Garman's explanation as the full truth. The shifty approach to discovery adds more suspicion to what's already a clear-cut case of deceptive practices involved in the takeover and bankruptcy of Xyience by the Fertitta group. Garman also made the mistake of calling Former Xyience Co-CEOs Adam Frank and Kirk Sanford cooperating witnesses in Backman's case. Backman clarified that while Sanford and Frank agreed to provide information and evidence without the need for subpoenas and settled their own adversary cases, they are still "co-conspirators" in the case and will be treated accordingly.



Perhaps the most pretentious portion of Garman's argument on Friday was his framing of Backman as being dishonest for not holding up his end of a bargain struck at a previous hearing to split the costs of restoring computer drives that were reportedly destroyed by a system crash at Xyience. The agreement between attorneys came to pass only because the drives were represented to Backman as the ones with the company's crucial email servers contained within them. It turned out the drives were essentially worthless once they were restored and did not contain any email records whatsoever. So, essentially Garman wants full payment on a debt for services provided that were wholly misrepresented by him and his clients.



Judge King admitted not even bothering to read previous filings I presented to the court when it came time for hearings regarding those matters. I came into Friday's hearing not expecting him to give Backman much more of a fair shake. He surprised me when he picked up on a nuance neither side considered up to that point.



Focusing on Bullard's lack of record preservation related to his emails, Judge King pointed out that Bullard was savvy enough to know that being on Xyience's board of directors would require him to fulfill certain fiduciary responsibilities including keeping accurate records. Yet, at the same time, Bullard insisted that he did not save certain material because he did not anticipate being named in litigation. Bullard pointed to the liability issues he would be embroiled in as his reason for not wanting to be on Xyience's board as a formal member. So, the evidence shows Bullard purposely avoided being held accountable for accurate record keeping at one point and yet he still claims not keeping and volunteering crucial emails was an honest and innocent mistake.



Garman did not seem to have any adequate explanation for that reality. He later wondered aloud why both sides were spending so much money on a sanctions motion and requested a trial date at "the earliest possible date." Depending on how dueling summary judgment motions end up impacting the case once they are heard in December, the two sides will face each other at trial the week of April 9th, 2012. Before then, Backman will pursue some other serious evidence issues through additional motions for relief.



It's clear that Backman's approach has Garman flustered and desperate for a rush to judgment before the case gets out of hand. His clients are in a precarious position at this point, and it's not looking like conditions will ever improve. The Fertitta attorney was clearly off his game on Friday, apparently the result of knowing that the longer this case goes on, the worse he and his clients will look in the end.