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NATSAP TESTIMONY TO CONGRESS IN 2007

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Lest we forget ...  NATSAP never investigated any program.  Letters of complaints by unsuspecting novices thinking NATSAP will/would help them, still go unanswered; "we don't police our programs."

"One death is more than should be tolerated." Congressman McKeon

"What the Hell do you do?" Congressman Miller.

"We are a trade organization..."  Jan Moss
"We do not do our own investigations..." Jan Moss

WARNING :  A MEMEBER OF NATSAP STILL MEANS NOTHING.  THEY ARE A TRADE ORGANIZATION WITH NO "GOOD HOUSEKEEPING STAMP OF APPROVAL."

SUPPORT H.R. 3126

BREAKING NEWS: PARENTS ADVOCATES AND CHILDREN FIND VINDICATION SUBSTANTIATION SOLACE IN THE GEORGIA ADVOCACY OFFICE INVESTIGATIVE FINDINGS REGARDING THE FORMER RIDGE CREEK SCHOOL FACILITY AND GEORGIA'S DHS ORCC AGENCY FAILURE TO PROVIDE ADEQUATE OVERSIGHT

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To all those children and their families that were harmed due the State of Georgia’s agencies’ continued obfuscation of the truth, negligence, and incompetence with regard to their oversight of the former Ridge Creek School facility, its former affiliate entities such as Hidden Lake Academy and Ridge Creek Wilderness, this is for you.

To those citizen advocates, one teacher,  an admission’s administrator, a counselor, and only one DFCS employee, decent human beings, tirelessly fighting to expose the truth and ensure the safety and welfare of the children at the Ridge Creek School facility, while being continually vilified by Ridge Creek School, Inc.'s hierarchy - a machine of spineless attorneys, staff lackey’s,  incompetent clergy, town groupies, and the like, this is for you.



To those individuals at the State level that were contacted by families for help, only to have their pleas fall on your insensitive, lying, condescending, placating, deaf ears and stone hearts, for over a decade - ignoring children's rights - this is for you.

For those individuals that ignored the safety and well-being of our children, and to those parties that did not take personal responsibility for their own egregious behavior as mandated reporters, this is for you.



For those in power within the State of Georgia that ignored our cries, the cries of our children, and did not take needed divisive action to remedy the imminent disaster and debacle of the Ridge Creek School facility, take a bow with your co-horts:

All staff under the Ridge Creek School, Inc. corporate entity as mandated reporters; Georgia’s ORS/ORCC under DHS, including DFCS, DBHDD, and the DJJ; ADVANC-ED-SACS, Lumpkin County Police Department, Local, State, and Federal Judges, the GBI, the FBI, Gov. Nathan Deal, Gov. Deal’s Office of the Child Advocate, Children and Youth Committee, the State Attorney General’s Office, Lumpkin County District Attorney, Secretary of State Kemp, ORCC Commissioner Clyde Reese, and lastly, the pathetic Georgia Board of Examiners of Psychologists – this is for you.

Special recognition to NATSAP, the National Association of Therapeutic Schools and Programs and IECA, Independent Educational Consultants Association, trade associations, both of which continued to be blinded by their own greed and  totally incompetent when it comes to understanding that they, too, are mandated reporters. Educational Consultants continued to send children to this facility, in
spite of damning, documented state evidence. NATSAP ignored complaints. Take a bow. This is for you.

Recalling the first conversation in the Spring of 2011 with the GAO Director of Investigations, the conversation moved to the number of  children that attempted suicides by hanging at the Ridge Creek School facility. He replied, “A hanging?” Response,“No, Sir, at last count six.”  Shocked, he repeated, "Six, you say?” Reply, “Yes, Sir.”  He responded, “One is enough.” Apparently, it was not enough for the State of Georgia to intercede.  But, hey, after all, “He is politically connected in downtown Atlanta.” Our final count before closure of this facility, within one year, was in the double digits.
 
Below is a summary of the findings stemming from the investigation in 2011 of the former Ridge Creek School facility in Georgia, the ORCC, and State of Georgia agencies by the Georgia Advocacy Office (GAO), Protection and Advocacy for the State of Georgia which is mandated by Congress.  *Note: Permission was given by the GAO to share this document.  It has been formatted for this article.  The addressed individual has been deleted; Mr. McDaniel's signature did not transfer in formatting.

GAO FINDINGS:

 GAO

 
  GEORGIA
  ADVOCACY  TheProtectionand  AdvocacySystemforPeople  withDisabilitiesinGeorgia
  OFFICE

 

November15,2012

Re:  RidgeCreekSchool,Dahlonega,Georgia

Dear-

 
 
ThankyouforyourinquiryregardingthefindingsoftheGeorgiaAdvocacyOffice(GAO)with regardtothefacilityformerlyoperatedbyRidgeCreekSchoolinDahlonega,Georgia. Asyou know,RidgeCreekSchoolprovidedwhathasbeendescribedasatherapeuticschoolto incorporatebotheducationandcounselinginaresidentialprogramforchildrenexperiencing emotionaldisturbances.Multiplestatehumanservicesagenciesutilizedthisprogram,including theDepartmentofHumanServices/Divisionof FamilyandChildrenServices(DFCS)andthe DepartmentofJuvenile Justice(DJJ). Oversightwastheresponsibilityoftheseagencies,in additiontothelicensingresponsibility exercisedbytheDepartmentofHumanServices/Officeof Residential ChildCare(ORCC)andtheDepartmentofEducation.  Theschoolwasaccredited bytheSouthernAssociationofCollegesandSchools(SACS).

 
Overthecourseofseveralyears,ORCCidentifiedmultipleandseriousdeficienciesin performanceattheschoolinthecourseofinvestigatingcomplaintsandincidentsandduring annualreviewsofthefacility.RidgeCreekSchoolwascitedbyORCCrepeatedlyformultiple regulatoryviolations includinginsufficientstaffing,medicationsnotadministeredaccurately, failuretoprovideprotectivecareandoversightandfailuretoreportincidents.Oftentherewere multipleandrepeatedcitationsforthesamedeficiency,therebydemonstrating RidgeCreek's failuretoidentify,correct,andmaintainimprovements. ORCCfailedtofollowthroughto ensurethatthedocumented deficiencieswereultimatelyremediedandthechildrenconfined therewereprotectedfromharm.

 
ManyofthechildrenatRidgeCreekwereinthecustodyofDFCSorDJJandwere confinedto RidgeCreekundertheauthorityofthoseagencies.  ItisuncleartowhatextentDFCSandDJJ weremadeawareofthemultipleandrepeateddeficienciesofthefacility.  Insomecases,DFCS andDJJweremadeawareofincidentsatthefacilityalongwiththeDepartmentofBehavioral HealthandDevelopmentalDisabilities.Insomecases,investigations werecarriedout,yetno agencyfocusedonthepatternofongoingissuesthatcontributedtotheunsafeenvironment whichledtoabuseandneglectofchildrenwhowereinthecareofRidgeCreekSchool.

 
RidgeCreekSchoolalsofrequentlyrequestedassistancefromLumpkinCountyPolicefor multipleincidentsincludingpropertydestruction,elopement,fights,sexualassault,andriots.  In oneinstanceinJanuary2011,LumpkinCountyPolicereportedthatapproximately11students werecausingdamagetotheschoolbuildingsbybreakingoutwindows,settingofffire

            

1SOEastPoncedeLeonAvenue,Suite430,Decatur,Georgia  30030

TEL  404.885.1234  VOICEandTDD800.537.2329FAX 404.378.0031  WEBwww.thegao.org


   November15,2012


   Page2



 

extinguishers,makingentryintoabuildingwithoutpermission,andknockingoveroffice equipment.


Althoughitisclearthatoversightwasinadequate,thediffusionofresponsibilityacrossagencies alsoraisessignificantconcernsforthecontinuingoversightofotherresidentialprogramssimilar tothatofRidgeCreek.  Wewillbeconductingadditionalinquiriesintosimilarprogramsin Georgiatoidentifyongoingproblemsandopportunitiesforimprovement. Accordingto informationprovidedbytheGeorgiaDepartmentofHumanServices,thereareapproximately tenotherfacilitiesthatoperatesimilarprograms-residentialtreatmentserviceswithanonsite schooloperatedbytheprovider-withsimilarcompetingoversightagencies,  withinGeorgia.


ProblemswithRidgeCreekSchoolareemblematicofthemultipleoversightagenciesthathave jurisdiction, andthelackofcoordinationamongtheagencies.  Thislackofcoordinationhas resultedinmultipleincidentsthatposedathreattothehealthandsafetyofchildrenaswellas incompleterecordsandcouldrepeatinothercircumstances.


Ifyouhaveanyadditionalinformationthatwouldexpeditefurtherinvestigation,pleasecontact usassoonaspossible.


Sincerely,


 
TobinMcDaniel

   DirectorofInvestigations

ADVOCATES :

We remain hopeful that this will be a wake-up call for the State of Georgia, although their record is well-known to be less than stellar in child care and transparency.  Perhaps the State of Georgia will look at these findings in a positive light, as grace given, from those that were given none.  It's a stretch, but miracles happen. 
 
Documents attest to the fact that this is a systemic problem. Change has to come from the top down, instead of promoting incompetence and  nepotism. The mandate held that investigative reports and documents can be subjectively altered by supervisors under the DHS needs to cease immediately.

What was allowed to transpire at the Ridge Creek School facility and the harm it brought could have been stopped years back by the State of Georgia. If their leaders had any backbone, it would have saved far too many hardships. The State was complicit and therefore, culpable, with or without state immunity, which they utilize to shelter themselves. An image of our forefather's tear droplets comes to mind ... Thankfully, we have something they apparently do not have or lost - heart.

We expect reforms from the State of Georgia's DHS and its sister agencies as documents currently reflect systemic troubles in other like residential facilities for children currently operating in Georgia.

To date, there still has been no responsibility taken; state employees, who were mandated reporters, were promoted, no charges. Former staff that were mandated reporters have not been charged and continue to operate with their professional licenses  intact - with children. 

We are eternally grateful to the Georgia Advocacy Office (GAO) who truly believe that everyone has the right to live their life surrounded by hope, aspirations, respect, love, and community, despite their developmental disabilities.  The GAO faces each day that dawns with new challenges; committed, professional, and forever in  heart-felt service, they fight for the oppressed and vulnerable who have no voice such as our children. They mentor citizen advocates in their stature, honesty, and dedication.  A trait that was quite refreshing after a  decade of eye-opening cover-ups and incompetence.

Thank you to Director McDaniel and the entire staff at the GAO.


"For the Children Left Behind" and those to come ...

 I am, Jill Ryan
 Citizen Advocate

* A true copy of this document can be obtained by contacting jilliestake@live.com.

http://thegao.org/who-we-are/


http://thegao.org/

Please comment below by hitting "comments." A box will open. 
 

State of Florida Files Petition to Shut Down Unlicensed Southeastern Military Academy

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When the State of Florida is done with the unlicensed Southeastern Military Academy, there are more of them.

 

And, exactly who is at fault that facilities like Southeastern are not required to be licensed?  The State of Florida. The Governor's Office states they are aware of the problems.

 

Not only are the military academies unlicensed, but so are the so-called Therapeutic Boarding Schools that enroll at risk teens and Special Needs children. 

 

Vanguard Academy is one such facility. There is no oversight by the State. According to documents obtained, nothing appears to get out of Vanguard, unless it is leaked - like an alleged gang rape. Apparently the director and staff didn't understand mandated reporting.

 

Psychotropic meds are administered in these unlicensed facilities in Florida with no oversight.

 

Educational consultants continue to recommend placement of teens in unlicensed residential facilities for teens in Florida and elsewhere.

 

Hell, it's surprising the state isn't flooded with these unsavory facilities ...  unlicensed ... hmm ...prospects are looking up ...

 

 

GEORGIA - DHS AND DFCS - CHANGING OF THE GUARD DOES NOT EXACTLY CLEAN HOUSE

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Georgia - The summer brought changes to the hierarchy at Georgia's Department of Human Services and the Department of Family and Children's Services.
 
Clyde Reese - Out as DHS Commissioner - In as Commissioner at the Department of Community Health (DCH)

No tears here... Our dealings as parents and advocates with former DHS Commissioner Clyde Reese were less than stellar, actually non-existent, although repeatedly attempted by advocates, during the Ridge Creek School fiasco.

DHS/ORCC lack of accountability, lack of oversight, and  lack of transparency allowed the debacle to continue. However, moving Mr. Reese to the DCH is not exactly proactive, nor progressive in an administrative attempt to fix the problems repeatedly cited in reports such as Kenny A.,  the Children's Rights Org, and the Georgia Advocacy Office.

Ron Scroggy - Out as DFCS Director - In as Executive Director of Georgia Association of Homes and Services for Children (GAHSC)


Ron Scroggy heralded from Inner Harbour Youth Villages as the former CEO, where ORCC survey reports on Youth Villages provided egregious incidents of non-compliance. Hiring Mr. Scroggy as Director of DFCS appeared to be a conflict of interest to begin with, offering up just another avenue for the "fox to guard the henhouse." Mr.Scroggy is now at GAHSC, which is far from comforting.

Both gentlemen appeared to do a remarkable job insulating Georgia's DHS and DFCS from any transparency and accountability.  Under Mr. Scroggy's tenure, DFCS offices were raided by the FBI and charges were brought against underlings.  Advocate's general opinion - the FBI raided the wrong offices.

Do not bang the drums quite yet... Governor Deal just shifted the players around to different departments providing each player with a different venue for the same apparent inepitude, lack of integrity, and complicit behavior.

Dave Statton,  former Director of the ORCC, who aburptly cleaned out his desk in 2011, the morning after our parent/advocate conference call, holds the trump cards relating to his immediate exit - among other issues. Were you really given a RIFF? Perhaps it is time to release the conference call... what say you Mr. Statton?
How do you really feel about subjectively changing survey reports before release?


http://www.childrensrights.org/news-events/press/metro-atlanta-backslides-on-protecting-kids-in-foster-care/
 

UPDATE - ATLANTA - ETHICS COMMISSION - STACEY KALBERMAN , SHERILYN STREICKER, AND NATHAN DEAL SAGA

DIAMOND RANCH ACADEMY - CONFIRMATION - ANOTHER CHILD'S LIFE IS LOST - "SUICIDE COMPLETION"

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DIAMOND RANCH ACADEMY
http://www.diamondranchacademy.com/
UTAH DHS LICENSE #  20018

"WE ARE DIFFERENT - BY DESIGN"


HURRICANE, UTAH - 11-01-2013
 
Recently, there have been several inquiries and testaments from parents regarding placement of their children in various facilities across the U.S.  Diamond Ranch Academy (DRA) is one such facility, as there have been numerous Internet postings alleging a recent death of a child at DRA.
 
 
The State of Utah's DHS Licensing Division has confirmed that approximately six weeks ago, there was another child's death at Diamond Ranch Academy.  This time, a young boy (name withheld out of respect for the young man and his family), perished after completing a suicide attempt.
 
Since prior postings have alluded to or described his suicide attempt, it has been confirmed by a Utah State Official that his precious life ended in a shower, hanging from a belt attached to a shower rod.
 
According to the State, the police and DHS investigations are near closure.  DHS recommended
corrective action at DRA, which has taken place.  One corrective act  was installing collapsible shower rods and shower heads, so that they remain innocuous.
 
Excuse:  "The staff gets complacent." Another word for negligent.
 
A State source conveyed, "the child that completed  his suicide attempt was taken off suicide watch by the tending Psychiatrist/Psychologist two days before."  Negligence?
 
Question:  Why was a suicidal child at DRA to begin with?  Why was he not transferred to a Mental Health facility?
 
DHS stated that their county receives "on average,  one call a year relating to a child's suicide."
 
Since the investigation is near finalized,  whether charges shall be filed remain to be determined. 
 
Another quote from a State Official, who was very professional and kind, yet seemingly naive, "DRA is one of the better ones. I believe they can make a difference with these children."
 
 
Jilliestake response:  
 
 
DRA surely did "make a difference." 
 
"We are different - by design" -  as in shower rods and shower heads?  
 
DRA appears in dire need of a fresh marketing campaign to bounce back from apparent, egregious negligence. One imagines, DRA  and its adjunct mental health care providers,  pray the death of this young man is kept "under wraps."
 
But, hey, they can always count on Dr. Drew Pinsky (aka Dr. Drew) for a stellar recommendation.
 
Quoted  from the DRA website, "As seen On Dr. Phil's Life Changers"
 

"I don't make this recommendation casually;
this is from years of experience in dealing
with people with behavioral problems.."

 
http://www.youtube.com/watch?v=9v0YojzS9KU#t=37

 
http://www.diamondranchacademy.com/

 

It is more than evident, that the laws in Utah and across the country regarding Teen Residential Treatment Facilities, Wilderness Programs, and the like,  must change to protect our young.

There is no accountability.

Educational Consultants that send children and youths to these facilites, still do not fathom that they are mandated reporters.

This is not the first child's life that was lost or destroyed, nor will it be the last, if there is no accountability or humanity.

 

As advocates for children, DRA is not recommended for placement.
 

WE EXTEND OUR SINCERE SORROW TO THE FAMILY, UPON THE LOSS OF YOUR SON.

 

 

 

 

Notes:

In all fairness to  Dr. Drew Pinsky, Josh Shipp also arranged for a teenager to attend DRA on his former show, "Teen Trouble."

According to Diamond Ranch Academy's website, they are a licensed youth "residential treatment center."

Owners/Founders:

Rob and Sherri Dias
 
Utah administrative code for Licensed treatment facilities.
 
 Definition of a licensed residential treatment center in Utah. 

http://www.planning.utah.gov/Index_files/PDFs/ut3.57.pdf

UTAH DHS

http://www.dhs.utah.gov/

Hurricane, Utah Police Department

http://www.cityofhurricane.com/categories/departments/police-dept/

UTAH - WAS HURRICANE HIGH SCHOOL BASKETBALL COACH BRIAN VAIFANUA, FORMER OWNER OF "PARADISE COVE" TEEN GULAG, FINALLY FIRED?

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HURRICANE HIGH SCHOOL
HURRICANE, UTAH
http://www.hhs.wash.k12.ut.us/




Brian Vaifanua 
HURRICANE, UTAH - How does the likes of Brian Vaifanua become the basketball coach and athletic director of Hurricane High School? Apparently, he is not the "Lone Ranger." If reports ring true and Mr. Vaifanua was indeed fired, how long did the Board of Education and the Superintendent of Schools take to render such a decision? Were they not apprised of Mr. Vaifanua's background?  Questions need to be answered by whomever hired Mr. Vaifanua, their vetting process for hiring, and whether Mr. Vaifanua disclosed his past.

Ms. Jodi Rich is the current Principal... "Ms. Rich... what is your professional take? Nepotism? Ineptitude? Negligence?"

By the end of August 2013, congratulations were extended to the new coach of Hurricane High School, Mr. Todd Langston. On November 5, 2013, the Deseret News reported twenty-two teams for the 2013-2014 basketball season will have new coaches.

What one will not find in the Deseret News, is an answer as to, "Why was Mr. Vaifanuua  fired? Or, was he allowed to resign?"  It is doubtful whether this would be reported on FOX 13 NEWS KSTU as family is employed at FOX. Not to mention friends with the last name of Lichfield... Ring any bells?

A survivor of Paradise Cove reported on Reddit TroubledTeens that Ms. Rich confirmed Mr. Vaifanua had indeed been fired (via a telephone call to him on November 27, 2013-- near three months later).
He wrote, "I got a phone call today from Jody rich the principal of hurricane high school confirming that basketball coach Brian vaifanua the sick bastard that ran paradise cove a teen torture camp in Western Samoa that hog tied and beat at least a thousand of us "troubled teens" has official confirmied he has been fired thanks to the work of me and the other guys that were imprisoned there."
Another question:  With all these connections, how did the Board of Education pull this off?  In Southern Utah, no less.

It appears Mr. Vaifanua's 'connections' to the horrific Troubled Teen Industry are quite numerous, including extended family, friends, and colleagues (Duane Lee, brother-in-law and former Director of Paradise Cove; Richard Darrington, Darrington Academy Georgia, closed, arrested 2009 for abuse; Dace Goulding, owned/co-owned Casa by the Sea, Mexico, shut down for child abuse allegations; High Impact, Mexico shut down for child abuse allegations, and Darrington Academy shuttered amidst child abuse allegations.)[1] [2] [3] [4]

Mr. Vaifanua, heralds as the former owner and director of the noted abusive Paradise Cove facility in Western Samoa (under the former WWASPS that was headquartered in St. George, Utah).  Paradise Cove was closed by the Samoan government for credible allegations of child abuse - no thanks to the US who just issued a warning to US parents. Question? Why were there no indictments of Mr. Vaifanua and the lot of them? The DOJ states it was Samoa and they had no jurisdiction.  However, these children were US citizens, abused under Mr. Vaifanua's (a US citizen of Samoan heritage) care, according to reports. Instead, Mr. Vaifanua was free to do a stint as the Director of Midwest Academy in Iowa.

     PARADISE COVE - SAMOA - AS REPORTED ON CBS NEWS "48 HOURS"

It appears Mr. Vaifanua was not alone in seeking employment after the closing of a teen facility such as Paradise Cove...

According to media reports, his buddy, Mr. Darrington, after the closing of Darrington Academy in Georgia (holding only a substitute teaching license in Nevada), sought employment at Whittell High School and was hired as the Dean of Students. Until, Whittell H.S. found existing battery charges and a "23 count indictment" awaiting him in Georgia. Nevada revoked his substitute
teaching license.  [5] [6]

Obviously, the "23 count indictment" was not enough to keep him in Georgia.

More important questions... Where are they now? Why are they not forbidden to be around children?

Why are they not in jail, along with the entire WWASPS predators and creators, the Lichfield family?

It is simple: Money, power, politics, corruption, and a majority of those in the governing body in Washington that could care less about the quality of life and rights of our children--unless... it is their offspring.




Note:  Jilliestake reached out to the below entities for this article to no avail on November 27, 2013.  Jilliestake welcomes their comments.

The School Board of Washington County could not be reached for comment and/or confirmation. There was no answer.

Hurricane High School could not be reached for comment and/or confirmation. A recorded message:  "Due to the apparently high volume of calls..."


Resources:

[1] http://wwaspsurvivors.com/wwasp-programs/paradise-cove/
[2] http://wwaspsurvivors.com/wwasp-programs/casa-by-the-sea/
[3] http://wwaspsurvivors.com/wwasp-programs/high-impact/
[4] http://wwaspsurvivors.com/wwasp-programs/darrington-academy/
[5] http://www.heal-online.org/wwasp120609.pdf
[6] http://www.cafety.org/solutions-and-successes/763-school-official-arrested-ga-darrington-academy

Reddit Troubled Teens:
https://www.facebook.com/RedditTroubledTeens?fref=ts
Note: Quote left in tact with grammatical errors for authenticity.

Desert News:
http://www.deseretnews.com/article/865589970/High-school-boys-basketball-Team-by-team-2013-14-schedules.html

Hurricane High School:
https://www.facebook.com/pages/Hurricane-High-School-Boys-Basketball/215606452995
"Congratulations to Todd Langston the new head coach of the Hurricane Tiger boys basketball team."


WWASPS - World Wide Association of Specialty Schools:
http://en.wikipedia.org/wiki/World_Wide_Association_of_Specialty_Programs_and_Schools

Utah Washington County School District:
http://www.washk12.org/
435-673-3553

Hurricane High School, Hurricane, Utah:
435-635-3280



TONYA BOGA RESIGNS AS GEORGIA'S DIRECTOR OF THE OFFICE OF THE CHILD ADVOCATE

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Tonya Boga


Georgia - Tonya Boga has resigned as Director of the Office of the Child Advocate. An attorney in her own right, perhaps Ms. Boga will return to practice, as her license to practice law is active.
 
In 2012, Ms. Boga stated in an interview with Channel 2 News investigative reporter Aaron Diamant, "I see us as a voice for the children of the state of Georgia." Ms. Boga went on to say, "I think there needs to be more training, and DFCS is working on that training." [1] [2]
 
These statements indicate more smoke and mirrors. Blame the work force, not  the upper echelon of supervisors and directors. How proactive is it to train more DFCS/CPS investigators/agents, if it is the supervisors, who are afforded carte blanche in subjective editing of final survey reports? 
 
In  a 2011 interview, a DFCS/CPS/ORCC investigator disclosed, off the record for fear of reprisal, that a report the investigator submitted was ignored, and this was not the first time.  "You stay in line. You don't ask questions; not if you wish to keep your job." There was no question the fear factor was overwhelming. 
 
As 'real' child advocates, we found that several of our complaints filed with the ORCC under DHS, including DFCS and the subsequent finalized survey reports generated by those entities, were either missing in the final survey report, changed, or the original complaint was not addressed in the final survey report with coinciding complaint identifiers.
 
As 'real' child advocates, we met with Tonya Boga in the Fall of 2011. On our own time, we went to the Governor's Office. We offered documented evidence and testimony to the Governor's Office, along with Ms. Boga and her entourage at the OCA -- including recommended oversight reforms and regulations based on our experience with the  "kid gloves" handling of a facility.  We found nepotism, ineptitude, and apparent corruption-rampant. All of which, indicated the problems are systemic as other facilities generate reports with the same failures and 'nothing' is done. "We are not in the business to shut these facilities down," as one Director stated. 

 "We the People" thought the creed for agencies under the arm of  DHS, such as DFCS, the ORCC,  and CPS, was to protect the children, not the facility. Think again.
 
We found the directors to be incompetent, not the investigators/agents. If the directors and supervisors are not incompetent, then their plight of containment, an insular quest, shines a worse light toward their embracement of corruption.

Governor Deal: “It is one of those oversight areas, where I think any time we have an extra set of eyes that are looking at a situation, perhaps we can avoid bad things happening,” he said of the office. [1]

Governor Deal's politics and rhetoric aside, in our advocacy for the safety of children and transparency, obviously his 'blanket' statement did not apply. "DEAL would not deal with Ryan and Dunne and get the deal done," retorts a child advocate.
 
When the Georgia Bureau of Investigation raided the Muscogee County DFCS alleging "false statements and writings, concealment of facts, fraudulent documents in matters within jurisdiction of state or political subdivisions, and subornation of false swearing," industry people were shocked.  Georgia goes after one of their own?  Why Muscogee?  Our postion, "they raided the wrong office."[3]
 
Two years later, "We are still investigating."  Now, Ms. Boga is gone.
 
If one is hopeful that a new Director of the Office of the Child Advocate will be a visionary, do not hold ones breath.

Oversight with no accountability, simply will not work.



[1] http://wabe.org/post/deal-expand-office-child-advocate-agency-head-resgines
 
[2] http://www.wsbtv.com/news/news/local/child-advocate-puts-pressure-dfcs-over-child-cruel/nLMfC/

[3] http://www.wtvm.com/story/19460720/2012/09/05/dfcs-employees-arrested-for-allegedly-falsifying-child-abuse-reports

DHS -    Department of Human Services
DFCS -  Department of Family and Children's Services
CPS   -   Child Protective Services
ORCC - Office of Regulatory Child Care
OCA -   Office of the Child Advocate
 



FAMILY SUES PHIL MCGRAW (Dr. PHIL), BAIN CAPITAL, CRC HEALTH/ASPEN EDUCATIONAL GROUP, AND ISLAND VIEW "ACADEMY" IN UTAH

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It is about time. Earlier this month, reports leaking out of Island View indicated an allegation that a "wrist" was "broken" of a young girl during a restraint administered by staff, which obviously went south... Island View markets themselves as a "Compassionate and comprehensive therapeutic academy for struggling teens."*
 


Dr. Phil McGraw arrives at the Museum of Television and Radio's annual gala in Beverly Hills, Calif., in this Oct. 30, 2006, file photo. The family of a teen girl who claims she was berated on television by Dr. Phil and then sent to a Utah residential treatment center where she was falsely imprisoned, has filed a civil complaint in federal court. (Matt Sayles, Associated Press)
Phil McGraw

Family sues Dr. Phil, Utah treatment center

Published: Wednesday, Jan. 29 2014 5:03 p.m. MST

SYRACUSE — The family of a teenage girl who claims she was
berated on television by Dr. Phil and then sent to a residential treatment center in Utah where she was falsely imprisoned, has filed a civil lawsuit. Terri and David Myers, on behalf of their 15-year-old daughter, filed the complaint
in federal court in Salt Lake City on Monday against the Dr.
Phil Organization, Bain Capital, CRC Health Group,
Aspen Educational Group, Island View Academy in Syracuse and a teacher at the academy.

In February of 2013, Terri Myer went on the "Dr. Phil" show
with her daughter. In the episode, the daughter admitted to having sex with adult men she met online,
which the family called "bizarre and dangerous conduct"
in their lawsuit.

The family claims Dr. Phil, Phil McGraw, subjected the mother
and daughter to "his brand of blunt ridicule." He offered to help the family by paying for the daughter to enroll at Island View Academy, a co-ed residential treatment center for troubled youth located in Syracuse.

The parents enrolled the girl. In their suit, they now call the facility a "private prison" and claim their daughter was placed there "for the purpose of forcing her to become obedient instead of truant by depriving her of freedom,
privacy, education, and subjecting her to involuntary servitude, and unjust unusual punishments."

In one incident, the daughter apparently refused to obey staff members who told her to get off of her bed. When staff members tried to pull her off,her right arm "was badly and perhaps irreparably broken, and its main nerve severely damaged," the lawsuit states.

The family also claims their daughter's constitutional rights were violated and she was falsely imprisoned, as well as conspiracy and fraud.
Attempts to reach the Island View Academy and the "Dr. Phil" show or comments were unsuccessful.

Email: preavy@deseretnews.com                                   
Twitter: DNewsCrimeTeam
Copyright 2014, Deseret News Publishing Company
http://www.deseretnews.com/article/print/865595153/Family-sues-Dr-Phil-Utah-treatment-center.html
http://islandview.crchealth.com/
http://www.courthousenews.com/2014/01/30/64963.htm








 
 

Is Justice Forthcoming for Survivors of New Bethany Home for Girls?

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One day the storms will lift and I shall soar free.


Jilliestake supports the survivors of abuse at the hands of Mack Ford and his New Bethany Home for Girls in Arcadia, Louisiana (closed 2001). Additionally, it is reported that Mack Ford owned other abusive facilities in Longstreet and Waterboro, S.C. [1]

Indictments, adjudication, vindication, and peace for his victims is warranted.

To read further and offer ones' support, please use these links:

http://www.nola.com/crime/index.ssf/2014/04/to_new_bethany_and_back_one_wo.html

http://www.nola.com/crime/index.ssf/2014/04/new_bethany_home_for_girls_end.html#incart_river_default


[1]  http://louisianavoice.com/2013/09/18/questions-abound-as-more-horror-stories-emerge-from-new-bethany-home-for-girls-and-boys-in-arcadia-and-longstreet/

GRAND JURY FAILS TO INDICT NEW BETHANY HOME FOR GIRLS FOUNDER MACK W. FORD

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New Bethany Home for Girls Arcadia Louisiana

We are sincerely heartbroken for all these brave, brilliant, dedicated women who deserve far more than this... who stood up not for just their 'Sisters', but for those rights of children to follow, and for those precious lives that were[ lost] thanks to the likes of Mack W. Ford. 

Statute of limitations? Nary a soul listened for how many years?????!!!! 

Please click link below for article and share:

http://www.nola.com/crime/index.ssf/2015/01/grand_jury_declines_to_indict.html


DIAMOND RANCH ACADEMY RECEIVES ANSWER TO THEIR COMPLAINT—AND THEN SOME!

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UTAH – January 30, 2015  ATTORNEYS AT BALLARD SPAHR LLP HIT COURT FILING OUT OF THE PARK WITH DEFENDANT’S ANSWER TO DIAMOND RANCH ACADEMY’S COMPLAINT


It is not often that one reads court filings with a grin. Ballard Spahr LLP submitted a brilliant, even humorous response to the complaint filed by Diamond Ranch Academy’s (DRA) attorneys against Ms. F----, alleging  defamation—including both libel and slander.
                                                                
The Bazelon Center for Mental Health Law? Spice things up, eh? We shall savor every bite.

If one is familiar with the burgeoning, multi-billion dollar so-called Therapeutic Teen Industry, this  case is worth a read... Seriously, there is humor to be found in this filing, which is welcome by children’s rights advocates in what they rightly view as a sinister, dark industry. An industry, where accountability appears virtually non-existent.



The “Thirteenth Defense” in this filing actually defines slander to DRA’s attorney’s and the Court, as not applicable, because slander is oral, not written.  “Plaintiff’s Amended Complaint and the slander and slander per se causes of action asserted therein are barred because Plaintiff’s alleged defamatory statements are all written—not spoken.” Go ahead chuckle. It is pretty comical.



The “Twenty-Fourth Defense” in the filing is a gift that would keep on giving for the defense and those individuals referred to as “Survivors of DRA,” if this case goes to court. “Some or all of the damages of which DRA complains were the result of the fault and/or actions of DRA itself, were the result of the fault and/or actions of persons or entities over whom or over which Ms. ----- has no control, and/or were the result of intervening causes.” Advocates are hearing potential witnesses for the defense are wishing for a subpoena to give testimony—such testimony...that apparently no sane facility would welcome in the public arena, let alone their own lawsuit.



Ballard Spahr, in its filing, cites California’s Anti-SLAAP law, Utah’s Anti-SLAAP Act, along with the First and Fourteenth Amendment, the Utah Constitution et al. The Counterclaim – touché.


Whatever the outcome, it is clear the Ballard Spahr LLP group is quite capable,  assembled quite an army with foresight, and the “JV” team in DC could benefit from them. One can only hope that the cognitive capabilities of the Court far exceed attorney’s having to define “slander.”



If you wish to read the original complaint:


ANSWER TO THE COMPLAINT:

 * Note: Court document was modified into MS Word.  Some identifiers were removed.


Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 1 of 25



Anthony C. Kaye ()
Zaven A. Sargsian ()
BALLARD SPAHR LLP
201 South Main Street, Suite 800
Salt Lake City, Utah 84111-2221
Telephone: --------; Facsimile: --------
kaye@ballardspahr.com
sargsianz@ballardspahr.com

Daniel M. Benjamin (admitted pro hac vice)
Edward Chang (admitted pro hac vice)
BALLARD SPAHR LLP
655 West Broadway, Suite 1600
San Diego, California 92101-8494
Telephone: (619) ---------; Facsimile: -------
benjamind@ballardspahr.com

Ira A. Burnim (admitted pro hac vice)
Jennifer Mathis (admitted pro hac vice)
Julia Graff (admitted pro hac vice)
Andrew Christy (admitted pro hac vice)
BAZELON CENTER FOR MENTAL HEALTH LAW
1101 15th St. NW, #1212
Washington, DC 20005
Telephone: --------; Facsimile: ----------
irab@bazelon.org
jenniferm@bazelon.org
juliag@bazelon.org
andrewc@bazelon.org
Attorneys for Defendant, C------ F----

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
DIAMOND RANCH ACADEMY, INC.,
Plaintiff,
v.
C------ F----,
Defendant.


ANSWER OF DEFENDANT C------ F---- AND COUNTERCLAIM
Case No.: 2:14-CV-00751-TC
Judge Tena Campbell

Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 2 of 25

Defendant C------ F---- (“Ms. F----” or “Defendant”) hereby responds to the Amended Complaint (Dkt. No. 23) filed by DIAMOND RANCH ACADEMY, INC. (“DRA” or “Plaintiff”) as follows:

FIRST DEFENSE
Ms. F---- responds to the individually numbered paragraphs of the Amended Complaint as follows:

NATURE OF THE ACTION
1. Ms. F---- admits that Plaintiff purports to bring an action as described in Paragraph 1 and Ms. F---- speaks publicly and continues to make public statements about Plaintiff. Ms. F---- denies that she has made statements that were and are false, unsupported, offensive, defamatory and injurious to DIAMOND RANCH ACADEMY’s professional reputation. Ms. F---- is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 1, and, on that basis, denies those allegations.

JURISDICTION
2. Ms. F---- states that, to the extent the allegations in Paragraph 2 are legal conclusions, they require no answer. Ms. F---- admits that Plaintiff seeks damages in excess of $75,000 and that Plaintiff and Ms. F---- are citizens of different states. Ms. F---- denies that she caused damages in any amount to Plaintiff. Ms. F---- denies the remaining allegations in Paragraph 2.
3. Ms. F---- states that, to the extent the allegations in Paragraph 3 are legal conclusions, they require no answer. Ms. F---- denies the remaining allegations in Paragraph 3.
Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 3 of 25
4. Ms. F---- states that, to the extent the allegations in Paragraph 4 are legal conclusions, they require no answer. Ms. F---- denies the remaining allegations in Paragraph 4.

VENUE
5. Ms. F---- states that, to the extent the allegations in Paragraph 5 are legal conclusions, they require no answer. Ms. F---- denies the remaining allegations in Paragraph 5.

PARTIES
6. Ms. F---- is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 6, and, on that basis, denies those allegations.
7. Ms. F---- admits the allegations in Paragraph 7.

FACTUAL ALLEGATIONS
8. Ms. F---- admits the allegations in Paragraph 8.
9. Ms. F---- is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 9, and, on that basis, denies those allegations.
10. Ms. F---- denies the allegations in Paragraph 10.
11. Ms. F---- states that, to the extent the allegations in Paragraph 11 are legal conclusions, they require no answer. Ms. F---- admits that certain statements were posted on the website located at http://www.drasurvivors.com, as discussed further below. Ms. F---- is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 11, and, on that basis, denies those allegations.
(a) Ms. F---- denies that, on August 1, 2014, she posted a comment that “DRA is not a legitimate treatment facility and that its methods are unethical and illegal” on the Facebook page entitled “I survived Diamond Ranch Academy.” Between May

Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 4 of 25

and June 2012, the statement “Diamond Ranch Academy is NOT a legitimate treatment facility and their methods are unethical, illegal and abusive” was posted on the website located at http://www.drasurvivors.com. Ms. F---- admits that, on January 26, 2014, the statement “They end up paying tens or even hundreds of thousands of dollars for ‘treatment’ that is at best ineffective and at worst abusive, neglectful, and even fatal, and that often creates new problems or exacerbates existing problems rather than fixing any issues that the child may have” was posted at http://drasurvivors.com/diamond-ranch-academy-show-its-true-colors/. Ms. F---- denies that the “abusive, and fatal” statement was posted in “Letter to DRA Parent” on June 28, 2013 or “About Diamond Ranch Academy, Overview.” Ms. F---- admits that “Letter to DRA Parent” posted on June 28, 2013 was removed from the public website before the Complaint was served on Ms. F----. Ms. F---- denies that “About Diamond Ranch Academy, Overview” was republished. Changes, if any, to “About Diamond Ranch Academy, Overview” were not substantive and not material and changes, if any, occurred before service of the Complaint on Ms. F----. Ms. F---- denies the remaining allegations in Paragraph 11(a).
(b) Ms. F---- admits that on January 26, 2014, the statement “They end up paying tens or even hundreds of thousands of dollars for ‘treatment’ that is at best ineffective and at worst abusive, neglectful, and even fatal, and that often creates new problems or exacerbates existing problems rather than fixing any issues that the child may have” was posted at http://drasurvivors.com/diamond-ranch-academy-show-its-true-colors/. Ms. F---- denies that the “DRA physically, emotionally and psychologically abuses its students” statement was posted in “Letter to DRA Parent” posted on June 28,

Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 5 of 25

2013. Ms. F---- admits that, on June 19, 2012, the statements “However, that is not what former students of this school are saying… They indicate that children who have attend DRA were “physically, emotionally and psychologically abused” were posted at
http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- admits that “Letter to DRA Parent” posted on June 28, 2013 was removed from the public website before the Complaint was served on Ms. F----. Ms. F---- denies that “About Diamond Ranch Academy, Overview” was republished. Changes, if any, to “About Diamond Ranch Academy, Overview” were not substantive and not material and changes, if any, occurred before service of the Complaint on Ms. F----. Ms. F---- denies the remaining allegations in Paragraph 11(b).
(c) Ms. F---- admits that the statement “Former students report that DRA owners and staff completely disregard the rights, individual needs and welfare of the children in their care” was posted at http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- denies that the “DRA owners and staff ‘completely disregard the rights, individual needs and welfare’ of its students” statement was removed from the website located at http://www.drasurvivors.com. Ms. F---- denies the remaining allegations in Paragraph 11(c).
(d) Ms. F---- admits that the statement “Tuition for DRA can cost roughly $6000 a month and anywhere from $72,000 - $200,000 (or more) simply to unlawfully incarcerate a child” was changed to “Tuition for DRA can cost roughly $6000 a month and anywhere from $72,000 - $200,000 (or more)” on October 18, 2014 and then to “Tuition for DRA can cost roughly $6000 a month and anywhere from $72,000 –

Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 6 of 25

$200,000 (or more) depending on the length of time the child is enrolled” on October 24, 2014 and posted at
http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- admits that the statement “It is the opinion of DRA Survivors that these strip searches are not only unnecessary and overused (multiple times a day) but used as a means of humiliation and dehumanization” was posted at http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- denies that the “dehumanizes children” statement was posted in “Letter to DRA Parent” on June 28, 2013. Ms. F---- admits that “Letter to DRA Parent” posted on June 28, 2013 was removed from the public website before the Complaint was served on Ms. F----. Ms. F---- denies the remaining allegations in Paragraph 11(d).
(e) Ms. F---- admits that the statement “Deceptive marketing techniques are nothing new to the troubled teen industry, often when explaining the aspects of the program they use commonly known words to describe their program in order bring credibility to methods” was posted at http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- denies that “About Diamond Ranch Academy, Overview” was republished. Changes, if any, to “About Diamond Ranch Academy, Overview” were not substantive and not material and changes, if any, occurred before service of the Complaint on Ms. F----. Ms. F---- denies the remaining allegations in Paragraph 11(e).
(f) Ms. F---- admits that the statement “According to former students, ‘Restraint’ (which DRA claims to be use as a last resort only) is actually a violent and painful form of torture” was posted at http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- denies that “About Diamond Ranch Academy, Overview” was

Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 7 of 25

republished. Changes, if any, to “About Diamond Ranch Academy, Overview” were not substantive and not material and changes, if any, occurred before service of the Complaint on Ms. F----. Ms. F---- denies the remaining allegations in Paragraph 11(f).
(g) Ms. F---- admits that the statements (i) “Restraining a student may happen for any violation of the school’s rules, and is doled out by unlicensed, therapeutically unqualified staff members that many former students refer to as ‘grown up bullies,’” (ii) “Although DRA does employ licensed social workers and a small population of trained therapists, the majority of staff responsible for the children in their day to day activities are NOT licensed- many have little education beyond a high school diploma,” (iii) “According to licensing records, there are no licensed Ph.D’s or Psy.D’s on campus,” (iv) “DRA does not employ a resident supervising physician, their Clinical Director has only a license in Social Work,” and (v) “No staff on campus have certifications in Child Development, Abnormal Psychology or Applied Behavior Analysis” were posted at http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- also admits that the statement “Are you aware that the staff employed by DRA who are responsible for the children’s daily activities are all unqualified, improperly trained and underpaid” was posted at http://drasurvivors.com/dra-survivors-utah-dhs-licensing-office-complaint/ on May 5, 2013. Ms. F---- admits that the statements “Most will describe them as overgrown bullies, unqualified and unfit to be working with children” and “I also think their parents don’t deserve to be lied to and sold a bill of goods that is simply impossible for such unqualified people to deliver” were posted in “Letter to DRA Parent” on June 28, 2013. Ms. F---- admits that “Letter to DRA Parent” posted on June 28, 2013

Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 8 of 25

was removed from the public website before the Complaint was served on Ms. F----. Ms. F---- denies that “About Diamond Ranch Academy, Overview” was republished. Changes, if any, to “About Diamond Ranch Academy, Overview” were not substantive and not material and changes, if any, occurred before service of the Complaint on Ms. F----. Ms. F---- denies the remaining allegations in Paragraph 11(g).
(h) Ms. F---- admits that on August 23, 2012, the statement “In reality, it is nothing more than a private prison, where due process of the law and even the most basic of human rights are violated without any reason other than their parents felt they needed help and ‘it looked nice in the brochures’” was posted at http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- also admits that the statement “It is a privately-run teen prison, where due process of the law and even the most basic human rights of children may be violated without cause, legal repercussion or the ability for a student who has become the victim of abuse to voice their grievance” was posted at http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- denies that “About Diamond Ranch Academy, Overview” was republished. Changes, if any, to “About Diamond Ranch Academy, Overview” were not substantive and not material and changes, if any, occurred before service of the Complaint on Ms. F----. Ms. F---- denies the remaining allegations in Paragraph 11(h).
(i) Ms. F---- admits that the statement “Is sending your child away worth the risk that they will be abused… or that they will never come back at all” was posted at http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- denies that “About Diamond Ranch Academy, Overview” was republished. Changes, if any, to “About

Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 9 of 25

Diamond Ranch Academy, Overview” were not substantive and not material and changes, if any, occurred before service of the Complaint on Ms. F----. Ms. F---- denies the remaining allegations in Paragraph 11(i).
(j) Ms. F---- admits that the statements (i) “It is the opinion of DRA Survivors that these strip searches are not only unnecessary and overused (multiple times a day) but used as a means of humiliation and dehumanization” and (ii) “Still considered an experimental therapy and outlawed as cruel and unusual punishment in some states, Aversion Therapy is cautioned to be used with reservation in adequately regulated environments and only by responsible mental health professionals” were posted at http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- also admits that the statements (iii) “Are you aware that strip searches are used often and for little to no reason at all,” (iv) “Considering contraband is nearly impossible to acquire in DRA, this is not used for safety reasons, it is used as punishment and humiliation,” (v) Are you aware that the meals provided in this stage consist of nothing but plain oats and “burnt” rice and lentils,” (vi) “Are you aware that this meager meal plan could last anywhere from 3 weeks to several months,” and (vii) “Are you aware that this meal plan constitutes starvation” were posted at http://drasurvivors.com/dra-survivors-utah-dhs-licensing-office-complaint/ on May 5, 2013. Ms. F---- admits that the statement “Not to mention that the ‘therapy’ used in DRA, called Aversion Therapy, has been outlawed in most state prisons, because it has been deemed to be ‘cruel and unusual punishment’” was posted in “Letter to DRA Parent” on June 28, 2013. Ms. F---- admits that “Letter to DRA Parent” posted on June 28, 2013 was removed from the public website before the Complaint was

Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 10 of 25

served on Ms. F----. Ms. F---- denies that “About Diamond Ranch Academy, Overview” was republished. Changes, if any, to “About Diamond Ranch Academy, Overview” were not substantive and not material and changes, if any, occurred before service of the Complaint on Ms. F----. Ms. F---- denies the remaining allegations in Paragraph 11(j).
(k) Ms. F---- admits that, on August 23, 2012, the statement “This leads to many incidents going unreported, and the children being denied adequate medical care if the medical staff is not on duty” was posted at http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- admits that the statement “All he needed was an extra dose of the medication he was already on and that was already in the possession of the DRA staff, but rather than give it to him, they neglected his requests for medical attention” was posted at http://drasurvivors.com/diamond-ranch-academy-show-its-true-colors/. Ms. F---- admits that the statements “Are you aware that a child died in Diamond Ranch Academy?” and “Do you know that they refused him medical care and all he needed was an extra dose of his medication and that family would still have their son?” were posted in “Letter to DRA Parent” on June 28, 2013. Ms. F---- admits that “Letter to DRA Parent” posted on June 28, 2013 was removed from the public website before the Complaint was served on Ms. F----. Ms. F---- denies that “About Diamond Ranch Academy, Overview” was republished. Changes, if any, to “About Diamond Ranch Academy, Overview” were not substantive and not material and changes, if any, occurred before service of the Complaint on Ms. F----. Ms. F---- denies the remaining allegations in Paragraph 11(k).

Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 11 of 25

(l) Ms. F---- admits that the statement “The truth is, Diamond Ranch Academy is not a therapeutic boarding school, it is a behavior modification program that employs techniques of seclusion, forced labor, physical violence, fear based control and brainwashing methods that violate all basic human rights and could certainly be considered child abuse, if not actual torture” was posted at http://drasurvivors.com/dr-drew-endorses-diamond-ranch-academy/ on August 17, 2012. Ms. F---- denies the remaining allegations in Paragraph 11(l).
(m) Ms. F---- admits that the statement “They end up paying tens or even hundreds of thousands of dollars for ‘treatment’ that is at best ineffective and at worst abusive, neglectful, and even fatal, and that often creates new problems or exacerbates existing problems rather than fixing any issues that the child may have” was posted at http://drasurvivors.com/diamond-ranch-academy-show-its-true-colors/ on January 26, 2014. Ms. F---- denies the remaining allegations in Paragraph 11(m).
(n) Ms. F---- admits that the statement “They do not provide real therapy, they do not follow clinical standards, they physically and psychologically abuse children and they scam their parents out of millions of dollars” was posted at http://drasurvivors.com/10-m-in-dra/ on June 28, 2013. Ms. F---- admits that “Letter to DRA Parent” posted on June 28, 2013 was removed from the public website before the Complaint was served on Ms. F----. Ms. F---- denies the remaining allegations in Paragraph 11(n).
(o) Ms. F---- admits that the statements (i) “Restraining a student may happen for any violation of the school’s rules, and is doled out by unlicensed, therapeutically

Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 12 of 25

unqualified staff members that many former students refer to as ‘grown up bullies,’” (ii) “Although DRA does employ licensed social workers and a small population of trained therapists, the majority of staff responsible for the children in their day to day activities are NOT licensed- many have little education beyond a high school diploma,” (iii) “According to licensing records, there are no licensed Ph.D’s or Psy.D’s on campus,” (iv) “DRA does not employ a resident supervising physician, their Clinical Director has only a license in Social Work,” and (v) “No staff on campus have certifications in Child Development, Abnormal Psychology or Applied Behavior Analysis” were posted at
http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- also admits that the statements “Are you aware that the staff employed by DRA who are responsible for the children’s daily activities are all unqualified, improperly trained and underpaid?” and “Are you aware that their medical staff is not usually present on campus and that the staff member tasked with administering medication is not a licensed medical professional?” were posted at http://drasurvivors.com/dra-survivors-utah-dhs-licensing-office-complaint/ on May 5, 2013. Ms. F---- denies that “About Diamond Ranch Academy, Overview” was republished. Changes, if any, to “About Diamond Ranch Academy, Overview” were not substantive and not material and changes, if any, occurred before service of the Complaint on Ms. F----. Ms. F---- denies the remaining allegations in Paragraph 11(o).
(p) Ms. F---- admits that the statement “With a long history of abuse, dangerous policies and a wrongful death, Diamond Ranch Academy is absolutely no place for a depressed child with suicidal tendencies” was posted at http://drasurvivors.com/paris-jackson-to-be-sent-to-diamond-ranch-academy/ on July 9,

Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 13 of 25

2013. Ms. F---- also admits that the statement “Are you aware that former clients of DRA have reported that they/ their children were systematically abused in DRA” was posted at
http://drasurvivors.com/dra-survivors-utah-dhs-licensing-office-complaint/ on May 5, 2013. Ms. F---- denies the remaining allegations in Paragraph 11(p).
(q) Ms. F---- admits that the statement “What is called ‘The program’ of Diamond Ranch Academy is not a clinically approved or evidenced based method of rehabilitation, but an experimental form of behavior modification that utilizes the response to fear to ensure submission to the program’s doctrine” was posted at http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- also admits that the statement “This experimental therapy is not clinically approved treatment, but quite simply a form of corporal punishment” was posted at http://drasurvivors.com/paris-jackson-to-be-sent-to-diamond-ranch-academy/ on July 9, 2013. Ms. F---- also admits that the statement “Are you aware that the ‘therapy’ provided by DRA is NOT a clinically approved treatment, but an experimental therapy called ‘behavior modification’ based on the principals of Aversion Therapy, or in more simple terms, corporal punishment” was posted at http://drasurvivors.com/dra-survivors-utah-dhs-licensing-office-complaint/ on May 5, 2013. Ms. F---- denies that “About Diamond Ranch Academy, Overview” was republished. Changes, if any, to “About Diamond Ranch Academy, Overview” were not substantive and not material and changes, if any, occurred before service of the Complaint on Ms. F----. Ms. F---- denies the remaining allegations in Paragraph 11(q).

Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 14 of 25

(r) Ms. F---- admits that the statement “Our message is clear; Diamond Ranch Academy is NOT a legitimate treatment facility and their methods are unethical, illegal and abusive” was posted at http://www.drasurvivors.com between May and June 2012. Ms. F---- denies that the “sidebar of Diamond Ranch Academy Survivors website” was republished. Changes, if any, to the “sidebar of Diamond Ranch Academy Survivors website” were not substantive and not material and changes, if any, occurred before service of the Complaint on Ms. F----. Ms. F---- denies the remaining allegations in Paragraph 11(r).

12. Ms. F---- denies the allegations in Paragraph 12.
13. Ms. F---- denies the allegations in Paragraph 13.
14. Ms. F---- denies the allegations in Paragraph 14.
15. Ms. F---- denies the allegations in Paragraph 15.
16. Ms. F---- denies the allegations in Paragraph 16.

FIRST CAUSE OF ACTION
(Libel against all Defendants)

17. Ms. F---- repeats and reincorporates by reference her denials and admissions of Paragraphs 1 through 16 as if set forth fully herein.
18. Ms. F---- denies the allegations in Paragraph 18.
19. Ms. F---- denies the allegations in Paragraph 19.
20. Ms. F---- denies the allegations in Paragraph 20.
21. Ms. F---- denies the allegations in Paragraph 21.
22. Ms. F---- denies the allegations in Paragraph 22.

Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 15 of 25

23. Ms. F---- denies the allegations in Paragraph 23.
24. Ms. F---- denies the allegations in Paragraph 24.
25. Ms. F---- denies the allegations in Paragraph 25.
26. Ms. F---- denies the allegations in Paragraph 26.

SECOND CAUSE OF ACTION
(Libel Per Se against all Defendants) 

27. Ms. F---- repeats and reincorporates by reference her denials and admissions of Paragraphs 1 through 26 as if set forth fully herein.
28. Ms. F---- denies the allegations in Paragraph 28.
29. Ms. F---- denies the allegations in Paragraph 29.
30. Ms. F---- denies the allegations in Paragraph 30.
31. Ms. F---- denies the allegations in Paragraph 31.
32. Ms. F---- denies the allegations in Paragraph 32.
33. Ms. F---- denies the allegations in Paragraph 33.
34. Ms. F---- denies the allegations in Paragraph 34.
35. Ms. F---- denies the allegations in Paragraph 35.
36. Ms. F---- denies the allegations in Paragraph 36.
37. Ms. F---- denies the allegations in Paragraph 37.
38. Ms. F---- denies the allegations in Paragraph 38.
39. Ms. F---- denies the allegations in Paragraph 39.
40. Ms. F---- denies the allegations in Paragraph 40.

Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 16 of 25

THIRD CAUSE OF ACTION
(Slander against all Defendants) 

41. Ms. F---- repeats and reincorporates by reference her denials and admissions of Paragraphs 1 through 40 as if set forth fully herein.
42. Ms. F---- denies the allegations in Paragraph 42.
43. Ms. F---- denies the allegations in Paragraph 43.
44. Ms. F---- denies the allegations in Paragraph 44.
45. Ms. F---- denies the allegations in Paragraph 45.
46. Ms. F---- denies the allegations in Paragraph 46.
47. Ms. F---- denies the allegations in Paragraph 47.
48. Ms. F---- denies the allegations in Paragraph 48.
49. Ms. F---- denies the allegations in Paragraph 49.
50. Ms. F---- denies the allegations in Paragraph 50.

FOURTH CAUSE OF ACTION
(Slander Per Se against all Defendants) 

51. Ms. F---- repeats and reincorporates by reference her denials and admissions of Paragraphs 1 through 50 as if set forth fully herein.
52. Ms. F---- denies the allegations in Paragraph 52.
53. Ms. F---- denies the allegations in Paragraph 53.
54. Ms. F---- denies the allegations in Paragraph 54.
55. Ms. F---- denies the allegations in Paragraph 55.
56. Ms. F---- denies the allegations in Paragraph 56.

Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 17 of 25

57. Ms. F---- denies the allegations in Paragraph 57.
58. Ms. F---- denies the allegations in Paragraph 58.
59. Ms. F---- denies the allegations in Paragraph 59.
60. Ms. F---- denies the allegations in Paragraph 60.
61. Ms. F---- denies the allegations in Paragraph 61.
62. Ms. F---- denies the allegations in Paragraph 62.
63. Ms. F---- denies the allegations in Paragraph 63.
64. Ms. F---- denies the allegations in Paragraph 64.

FIFTH CAUSE OF ACTION
(Intentional Interference with Prospective Economic Advantage against all Defendants) 

65. Ms. F---- repeats and reincorporates by reference her denials and admissions of Paragraphs 1 through 64 as if set forth fully herein.
66. Ms. F---- is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 66, and, on that basis, denies those allegations.
67. Ms. F---- is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 67, and, on that basis, denies those allegations.
68. Ms. F---- denies the allegations in Paragraph 68.
69. Ms. F---- denies the allegations in Paragraph 69.
70. Ms. F---- denies the allegations in Paragraph 70.
71. Ms. F---- denies the allegations in Paragraph 71.
72. Ms. F---- denies the allegations in Paragraph 72.
73. Ms. F---- denies the allegations in Paragraph 73.

Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 18 of 25

74. Ms. F---- denies the allegations in Paragraph 74.
75. Ms. F---- denies each and every allegation in the Amended Complaint that is not expressly admitted herein.

SECOND DEFENSE
Plaintiff’s Amended Complaint and the causes of action asserted therein fail to state a claim upon which relief can be granted.

THIRD DEFENSE
Plaintiff’s Amended Complaint and the causes of action asserted therein are barred by the applicable statutes of limitations.

FOURTH DEFENSE
Plaintiff’s Amended Complaint and the causes of action asserted therein are subject to California’s anti-SLAPP statute, Code Civ. Proc. § 425.16, and Ms. F---- intends to file an Anti-SLAPP motion under that statute at the time required.

FIFTH DEFENSE
Plaintiff’s Amended Complaint and the causes of action asserted therein are barred because Plaintiff’s alleged defamatory statements are true or substantially true.

SIXTH DEFENSE
Plaintiff’s Amended Complaint and the causes of action asserted therein are barred because Plaintiff’s alleged defamatory statements are privileged and concern matters of legitimate public interest.

SEVENTH DEFENSE
Plaintiff’s Amended Complaint and the causes of action asserted therein are barred because Plaintiff’s alleged defamatory statements were made by Ms. F---- without actual malice.

Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 19 of 25

EIGHTH DEFENSE
Plaintiff’s Amended Complaint and the causes of action asserted therein are barred because Plaintiff’s alleged defamatory statements were not made by Ms. F---- with knowledge that they were false or with reckless disregard of whether the alleged defamatory statements were false or not.

NINTH DEFENSE
Plaintiff’s Amended Complaint and the causes of action asserted therein are barred by the common law fair comment and/or fair report privileges.

TENTH DEFENSE
Plaintiff’s Amended Complaint and the causes of action asserted therein are barred because Plaintiff’s alleged defamatory statements are incapable of conveying defamatory meaning, constitute nonactionable opinion, and/or constitute rhetorical hyperbole.

ELEVENTH DEFENSE
Plaintiff’s Amended Complaint and the causes of actions asserted therein are barred by the doctrine of laches, waiver, estoppel, and/or other equitable defenses.

TWELFTH DEFENSE
Plaintiff’s Amended Complaint and the causes of action asserted therein are barred under Utah Code §§ 45-2-3 and 45-2-10 and/or California Civil Code § 47.

THIRTEENTH DEFENSE
Plaintiff’s Amended Complaint and the slander and slander per se causes of action asserted therein are barred because Plaintiff’s alleged defamatory statements are all written—not spoken.

Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 20 of 25

FOURTEENTH DEFENSE
Plaintiff’s Amended Complaint and the causes of action asserted therein are barred under 47 U.S.C. § 230 and/or Utah Code § 45-2-5

FIFTEENTH DEFENSE
Plaintiff’s Amended Complaint and the causes of action asserted therein are barred under the First and Fourteenth Amendments to the United States Constitution.

SIXTEENTH DEFENSE
Plaintiff’s Amended Complaint and the causes of action asserted therein are barred under Article I, Sections 1 and 15 of the Utah Constitution and/or under Article I, Sections 1 and 2 of the California Constitution.

SEVENTEENTH DEFENSE
Plaintiff’s injuries, if any, are the result, in whole or in part, of its own actions and contributory fault.

EIGHTEENTH DEFENSE
Plaintiff failed to mitigate any damages that it allegedly suffered.

NINETEENTH DEFENSE
Plaintiff’s claims are barred, in whole or in part, because Plaintiff’s alleged damages, if any, are speculative.

TWENTIETH DEFENSE
Plaintiff failed to adequately plead and/or cannot prove special damages.

TWENTY-FIRST DEFENSE
This Court lacks personal jurisdiction over Ms. F----.


Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 21 of 25
TWENTY-SECOND DEFENSE
Venue in this Court is improper.

TWENTY-THIRD DEFENSE
DRA has suffered no compensable damages as a result of Ms. F----’s alleged conduct.

TWENTY-FOURTH DEFENSE
Some or all of the damages of which DRA complains were the result of the fault and/or actions of DRA itself, were the result of the fault and/or actions of persons or entities over whom or over which Ms. F---- has no control, and/or were the result of intervening causes.

TWENTY-FIFTH DEFENSE
At all times relevant to this action, Ms. F---- exercised the requisite degree of care and prudence in undertaking any of Plaintiff’s alleged defamatory statements.

TWENTY-SIXTH DEFENSE
Plaintiff’s Amended Complaint and the causes of action asserted therein are barred under the single publication rule.

TWENTY-SEVENTH DEFENSE
Plaintiff’s Amended Complaint and the causes of action asserted therein are barred under the Noerr-Pennington doctrine.

TWENTY-EIGHTH DEFENSE
In accordance with Rule 11 of the Federal Rules of Civil Procedure, Ms. F---- reserves the right to assert additional defenses as the case proceeds.

Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 22 of 25

COUNTERCLAIM
Counterclaim Plaintiff C------ F---- (“Ms. F----” or “Counterclaim Plaintiff”), hereby counterclaims against DIAMOND RANCH ACADEMY, INC. (“DRA” or “Counterclaim Defendant”) as follows:

PARTIES
1. DRA is a corporation organized and existing under the laws of the State of Utah.
2. Ms. F---- is a citizen and resident of the State of California.

JURISDICTION AND VENUE
3. The Court has jurisdiction over this matter under 28 U.S.C. § 1332 because there is complete diversity between Counterclaim Plaintiff and Counterclaim Defendant and the amount in controversy exceeds $75,000.00, exclusive of interest and costs.
4. Assuming (without conceding) that venue is proper as to DRA’s Complaint, then venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(1).

GENERAL ALLEGATIONS
5. This is a precautionary counterclaim stated in the alternative to the California Anti-SLAPP motion Ms. F---- intends to separately file. Ms. F---- believes that California law should control as the Anti-SLAPP law applicable to this case. Under California’s law, that issue is addressed via motion, not a counterclaim. However, in the event that Utah law controls as the applicable Anti-SLAPP law, Ms. F---- will pursue this counterclaim under Utah law.
6. On January 7, 2015, DRA filed its Amended Complaint against Ms. F---- [Dkt. No. 23].

Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 23 of 25

7. DRA alleges Ms. F---- made, inter alia, the following defamatory statements: “[t]hat DRA employs an unqualified, underqualified, and improperly trained staff” [Dkt. No. 23 at ¶ 11(g)]; “[t]hat DRA engages in improper strip searches, . . . humiliation, . . . and the starvation of its students” [Dkt. No. 23 at ¶ 11(j)]; “[t]hat members of DRA’s medical staff are not licensed medical professionals or are underqualified” [Dkt. No. 23 at ¶ 11(o)]; “[t]hat DRA has a ‘history of abuse’, ‘dangerous policies’ and a ‘wrongful death’” [Dkt. No. 23 at ¶ 11(p)]; and “[t]hat DRA’s therapy techniques are not ‘clinically approved’, ‘but quite simply a form of corporal punishment.’” [Dkt. No. 23 at ¶ 11(q)].
8. According to DRA’s Amended Complaint, these statements are from “DRA Survivors Utah DHS Licensing Office Complaint” prepared by Ms. F---- and emailed by her to to KRAnderson@Utah.gov and kstettler@Utah.gov and posted on May 5, 2013. [Dkt. No. 23 at ¶ 11]
9. On or about May 5, 2013, Ms. F---- contacted the Utah Department of Human Services, Office of Licensing about the state’s licensing of DRA and DRA’s operations.
10. On or about May 5, 2013, Ms. F---- posted a copy of her e-mail to the Utah Department of Human Services, Office of Licensing to the Diamond Ranch Academy Survivors website at the following URL: http://drasurvivors.com/dra-survivors-utah-dhs-licensing-office-complaint/.
11. Ms. F---- exercised her protected right of freedom of speech under the United States Constitution, the California Constitution and the Utah Constitution to influence legislative and executive decisions.

Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 24 of 25

12. By filing its lawsuit, DRA seeks to prevent Ms. F---- from exercising her right to freedom of speech protected by the United States Constitution, the California Constitution and the Utah Constitution, participating in a process of government (i.e., licensing of treatment facilities), and speaking out to protect the public’s interest.

FIRST CAUSE OF ACTION
(Violation of Utah’s Anti-SLAPP Act Utah Code §§ 78B-6-1401 to 1405)
13. Ms. F---- incorporates all other paragraphs of this Counterclaim as if fully set forth here.
14. Ms. F---- made statements to the Utah Department of Human Services, Office of Licensing questioning the licensure of DRA and seeking to influence the process of government.
15. DRA filed its lawsuit against Ms. F---- to prevent her from participating in the process of government.
16. DRA’s lawsuit against Ms. F---- has prohibited Ms. F---- from exercising her right to freedom of speech protected by the United States Constitution, the California Constitution and the Utah Constitution and participating in the process of government in violation of Utah’s Anti-SLAPP Act, Utah Code §§ 78B-6-1401 to 1405.
17. DRA commenced or continued their lawsuit against Ms. F---- for the purpose of harassing, intimidating, punishing, or otherwise maliciously inhibiting her from exercising her rights granted under the First Amendment to the United States Constitution.
18. As a result of DRA’s strategic lawsuit against public participation, Ms. F---- is entitled to costs and reasonable attorneys’ fees.
19. Additionally, Ms. F---- is entitled to compensatory damages.

Case 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 25 of 25

REQUEST FOR RELIEF
WHEREFORE, having answered the allegations and claims in the Amended Complaint, Ms. F---- respectfully requests the following relief:
1. That the Amended Complaint be dismissed with prejudice and that DRA take nothing thereby;
2. That Ms. F---- be awarded her attorneys’ fees and costs as permitted by law; and
3. That Ms. F---- be awarded such other and further relief as the Court deems just and equitable.

WHEREFORE, on her Counterclaim, Ms. F---- requests that judgment be entered in her favor as follows:
1. For a judgment in favor of Ms. F---- and against DRA for Ms. F----’s costs, attorneys’ fees, and interest on such amounts as permitted by law;
2. For compensatory damages as permitted by law; and
3. For such other and further relief as the Court determines is just.

JURY DEMAND
Ms. F---- hereby demands a jury trial of all issues in this action triable as of right by a jury.
DATED this 30th day of January 2015.

/s/ Edward Chang
Anthony C. Kaye, Esq.
Zaven A. Sargsian, Esq.
Daniel M. Benjamin, Esq. (admitted pro hac vice)
Edward Chang, Esq. (admitted pro hac vice)
BALLARD SPAHR LLP
Attorneys for Defendant, C------ F----
 

LADY JUSTICE, THE THERAPEUTIC TEEN INDUSTRY, AND CHILDREN'S RIGHTS ADVOCATES—ABSOLUTE CONFLICT

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Lady Justice



A PERSPECTIVE


Sculptors throughout the ages created various depictions of Lady Justice, (Themis, a goddess in Greek mythology). Whether nude, scantily draped, or blindfolded, Lady Justice embodies celestial order on Earth. Holding her infamous scales of justice, she represents the personification of righteousness.

Lady Justice and Children's Rights Advocateswould agree with Albert Einstein, "If I were to remain silent, I'd be guilty of complicity."


Even though justice is sought within our court system, it does not always prevail. Within the Therapeutic Teen Industry (TTI), that encompasses so-called residential treatment facilities and wilderness programs (aka boot camps) for tweens, teens, and youths, it is no secret that accountability and oversight is negligible, even if under the façade of oversight.  Documents attest to deaths, attempted suicides, rapes, physical and emotional abuse of children within these facilities, yet accountability remains close to nil.  These facilities run rampant, afforded carte blanche in doing so, often protected by a township or county where the facility resides, often protected by various state entities charged with protecting our children, or wrongly given free reign because of religious affiliation. Who is going to stop negligent facilities and their staff, staff and student perpetrators (due to a facility hiring staff without appropriate background checks; accepting a student in violation of their own admission’s guidelines for the ‘bang of the buck’), or hosting states that violate the Interstate Compact for the Protection of Children (ICPC)—who?  


Each year, Departments of Human Services and Child Protective Services across the country, log hundreds upon hundreds of investigative reports where abuse has transpired against our children with in the TTI—that is if a ‘supervisor ‘does not deem, “it is within her job scope to change reports”; or, the facilities themselves operate under a ‘containment’ policy. If DHS responds, “We are not in business to put facilities out of business…” Why bother with investigative reports? How many children at one facility who attempted suicide within 10 months are enough to justify a facility intervention by a state? Lady Justice might deem one child was too many… Georgia’s DHS apparently thought 16 children (two, a re-attempt) attempting suicide within 10 months was chicken feed at the former Ridge Creek School.  Where is the outrage? Each complicit individual walked away, unscathed with licenses intact. Ring a bell? It should! Why? It is the modus operandi in states dealing with allegations of egregious abuse and negligence, even fraud, apparently inherent in the TTI facilities.


The TTI industry is growing at an enormous rate.  Healthcare conglomerates are building assets within the TTI industry, as the financial gain is more than palatable.  We find our Special Needs children targeted in marketing campaigns for the last few years, as Autism became the in Vogue diagnosis replacing the previously sought after children diagnosed with ADD, then ADHD, and ODD. 
The TTI industry players are perceptive; they follow trends quite astutely—now on the gain are alcohol and drug rehabs, plus mental health facilities…  Essentially, nothing has changed, accept the TTI has upped the ante and bounty on children’s heads—the TTI still markets to treat any anomaly known to adolescents and now younger children—still a  one-stop drop off service.  Across our nation, the strong TTI lobbies and markets to our judges, juvenile justice departments, psychiatrists, psychologists, boards of education, our Department of State, and to our Congress—where [they] are apparently deaf, too.  Or, perhaps, simply too tied to their investments?


Who can stop this madness? A burgeoning multi-billion-dollar industry, where educational consultants were already daydreaming of bank deposits with the dawn of Obamacare. Does it matter to them that a 12-year-old Special Needs child is sharing a bedroom with a 17-year-old sexual predator? What? You forgot to disclose to the child’s parents that the offender was adjudicated for rape? Cha-ching.  It is not Lady Justice blinded by greed here.


Dedicated advocates and activists for children exist for a reason.  They seek justice that does not come for the abused, as there are no checks and balances, or oversight, and certainly no accountability.  Giving voice to those who cannot speak is righteous in a ‘just’ society. The TTI appears determined to silence children’s rights advocates and survivors of an apparent, abhorrent industry.  Silence is not an option. The intrinsic reward is the safety and well-being of our children; it is not a financial, residual bounty. Moreover, yes, Lady Justice carries a double-edged sword, another embodiment that reminds us… to listen, give credence, and rights to all sides, which includes our most precious children, not just their captors.  Conglomerates may not subsidize our lobby, but child advocates and activists remain determined to expose the truth to protect our future—our children.  


Florida’s Dozier School Children had no voice. Hell, America did not even know they existed, until they were unearthed.  There is no licensing or oversight in Florida to this day. The Judge Rotenberg Center in Massachusetts still shocks children… they have no voice… even the Department of State recommends the facility, while the UN equated the facility program to torture. Then, we have the former New Bethany Home for Girls of Arcadia, Louisiana. Their cries—silenced for over 30 years. The owner, Mack W. Ford, was never prosecuted for allegations of rampant abuse and rape; he got off easy—he died.


TTI defamation lawsuits will no doubt continue against child advocates and activists for children’s rights, as numerous facilities and their minions appear beyond narcissistic. Who could blame them?  After all, an oligarchy is First Amendment free.


Lady Justice is watching one such defamation lawsuit filed against a child advocate; actually, one of three current lawsuits involving Diamond Ranch Academy (DRA), deemed a therapeutic boarding school in Utah. Diamond Ranch Academy vs. ------- ----- aka ------- -------.


A ‘Dream Team’ –a stellar group of attorneys represents the defendant, Ms. -------, including Ballard Spahr LLP of Salt Lake City, Utah and the Bazelon Center for Mental Health Lawin Washington, D.C.  


On 03-09-2015, attorneys for the defense filed a motion to dismiss, along with six affidavits in support of the motion, including Ms. ­­_______’s affidavit and those affidavits of ‘survivors’ of DRA. The ‘survivor’ affidavits appear damning and read like a horror tale, but of no surprise to those familiar with the TTI.


Additionally, the defense invoked California’s anti-SLAPP and Utah’s own one-year statute of limitations for defamation.For those familiar with law, an instantaneous smile of acknowledgment tantamount to veteran MSM anchor Chris Matthews’ exhortation, “I felt this thrill going up my leg.”

One might have imagined attacking a lone advocate for children’s rights might have appeared as aslam dunk to DRA’s attorneys. That is, until Lady Justice and ‘her’ minions arrived… a Dream Team indeed.


But, again, this is Utah. However, it would be a welcome surprise if any Utah judge ruled for the defense in a TTI case, as it will be a win ‘for the children left behind and those to come.’

Read the Defense Motion to Dismiss, The Defendant's Special Motion to Strike, and Two of the Six Affidavits in Support of Defendant's Special motion to Strike (links provided below "Motion to Dismiss.")

   * Note: Court filings were formatted into MS WORD. Errors may have occurred.  Reasonable effort was made to remove Identifiers as courtesy, although the filings are in public domain.

MOTION TO DISMISS


Case 2:14-cv-00751-TC Document 29 Filed 03/09/15 Page 1 of 27

 Anthony C. Kaye  
Zaven A. Sargsian
BALLARD SPAHR LLP
One Utah Center, Suite 800
201 South Main Street
Salt Lake City, Utah 84111-2221
Telephone: ----------; Facsimile: -----------
kaye@--------------------
sargsianz@--------------------
Edward Chang (admitted pro hac vice)
BALLARD SPAHR LLP
655 West Broadway, Suite 1600
San Diego, California 92101-8494
Telephone: --------; Facsimile: ------------
benjamind@--------------
change@--------------

Ira A. Burnim (admitted pro hac vice)
Jennifer Mathis (admitted pro hac vice)
Julia Graff (admitted pro hac vice)
Andrew Christy (admitted pro hac vice)
BAZELON CENTER FOR MENTAL HEALTH LAW
1101 15th St. NW, #1212
Washington, DC 20005
Telephone: -------------; Facsimile: ------------
irab@------------
jenniferm@------------
juliag@-----------
andrewc@----------------

Attorneys for Defendant and Counterclaim Plaintiff, ------- -------
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION DIAMOND RANCH ACADEMY, INC.,
Plaintiff and Counterclaim Defendant,
v.
------- -----,
Defendant and Counterclaim Plaintiff.

DMWEST #11886830 v3



Case 2:14-cv-00751-TC Document 29 Filed 03/09/15 Page 2 of 27

DEFENDANT’S RULE 12(C) MOTION FOR JUDGMENT ON THE PLEADINGS AND MEMORANDUM IN SUPPORT
Case No.: 2:14-CV-00751-TC
Judge Tena Campbell
 
     Defendant ------- -------1 (“Defendant” or “Ms. -------”), through counsel, Ballard Spahr LLP, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, submits this Motion for Judgment on the Pleadings (the “Motion”) and moves the Court to dismiss Plaintiff Diamond Ranch Academy, Inc.’s (“Plaintiff” or “DRA”) claims with prejudice. 


INTRODUCTION 

     Ms. ------- advocates on behalf of youth admitted into residential treatment programs. She has long been active in this space. During her efforts to combat abuses against adolescents, she learned of DRA’s facility and programs in Hurricane, Utah. Based on perceived and documented abuses at DRA, Ms. -------, around May 2012, established a website, www.drasurvivors.com (“the website”), to inform and educate the public. Much of the content on the website was created in June and July of 2012. The website has been updated periodically, but since 2013, few changes have been made to its content. This Motion addresses the reality that Plaintiff has slept on its rights.

     Plaintiff’s claims for defamation are barred by Utah’s one-year statute of limitations. Plaintiff filed its complaint on October 16, 2014. Utah has a one-year statute of limitations for defamation; therefore, any claims based on statements published before October 16, 2013, are time-barred. At least 17 of the 18 statements included in Paragraph 11, which Plaintiff paraphrases, are based on source statements that were posted on the website outside the statute of limitations period. Plaintiff became aware of these statements sometime between June 2012 and
____________________________________

1 Ms. ----- legally changed her name to ------- in August of 2014 and shall herein be referred to as Ms. -------. 

 DMWEST #11886830 v3

Case 2:14-cv-00751-TC Document 29 Filed 03/09/15 Page 3 of 27

February 2013. Having failed to timely commence an action, Plaintiff may not rely on these statements, and to the extent it does, Plaintiff’s defamation claims must be dismissed. 

     Separately, Ms. ------- requests that Plaintiff’s third and fourth causes of action for slander be dismissed. Aside from one conclusory allegation concerning an alleged defamatory oral statement, Plaintiff makes no attempt to allege facts supporting a slander claim. Plaintiff has therefore failed to state a claim for which relief may be granted, and its claims should be dismissed. 

ARGUMENT 

     A motion for judgment on the pleadings under Rule 12(c) is treated as a motion to dismiss under Rule 12(b)(6). Thayer v. Washington Cty. Sch. Dist., 781 F. Supp. 2d 1264, 1267 (D. Utah, Feb. 14, 2011). In other words, a “court is to presume, for purposes of considering the motion, that all well-pleaded allegations by the non-movant are true and all reasonable inferences are made in favor of the non-movant.” Id. The Court should not, however, give any presumption of truth to “[l]egal conclusions, deductions, and opinions couched as facts,” Heffner v, Delta Air Lines, Inc., No. 2-02-cv-1378-DS, 2003 WL 23354484, at *1 (D. Utah Oct. 21, 2003), nor “to ‘allegations that contradict matters properly subject to judicial notice’ or to material attached to or incorporated by reference into the complaint.” Ford v. Artiga, No. 2:12-cv-02370, 2013 WL 3941335, at *3 (E.D. Cal., July 30, 2013) (unpublished) (citing Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). 

     In considering this Motion, the Court may consider not only “the complaint, but also ‘documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.’” Hogan v. Winder, No. 2:12-cv-123 TS, 2012 WL 4356326, at *3 (D. Utah,
DMWEST #11886830 v3

Case 2:14-cv-00751-TC Document 29 Filed 03/09/15 Page 4 of 27

Sept. 24, 2012) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)). This Court should take judicial notice of the date when the allegedly defamatory content was published. As the Tenth Circuit has said, “[i]t is not uncommon for courts to take judicial notice of factual information found on the world wide web.” O’Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1225 (10th Cir. 2007) (holding that “[u]nder the circumstances . . . the district court abused its discretion by failing to take judicial notice of the actual earnings history provided by Northrop Grumman on the internet as required by Rule 201(d).”). 

     Here, the Court should take judicial notice of three things: (1) the specific language that Plaintiff alleges is defamatory and its location on the Internet;2 (2) the information contained in the website logs;3 and (3) information on the “Wayback Machine.”4 The information contained in the website logs and the Wayback Machine provide the date on which each alleged defamatory statement was originally published and, where applicable, the date on which certain alleged defamatory statements were changed. These dates will assist the Court in determining whether the alleged defamatory statements were published outside the statute of the limitations
__________________________________________

2 Because Plaintiff paraphrased the alleged defamatory statements in the Amended Complaint, it is important that the Court take notice of the specific language underlying Plaintiff’s allegations.
3 Although the website logs provide the specific dates when the publications or updates occurred, information on the wayback machine is sufficient to evidence the date of publication or update, and, where relevant, that the update did not substantively modify the language of the original publication. 

4 As one court stated, “[t]he ‘wayback machine’ refers to the process used by the Internet Archive Company, www.archive.org, to allow website visitors to search for archived web pages of organizations.” See Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, n. 29 (D. Md., 2007) (noting that a court ruled the Wayback Machine a reliable source).
DMWEST #11886830 v3

Case 2:14-cv-00751-TC Document 29 Filed 03/09/15 Page 5 of 27

period. A judicial finding of these dates is appropriate in this case. See Mitchell v. Lewis, No. 0:11-2860-CMC-PJG, 2012 WL 137471, n.2 (D. S.C. Jan. 4, 2012) (taking judicial notice of the date Plaintiff was booked into a correction facility); Wilson v. City of Phil., No. 04-5396, 2010 WL 1254111, n.4 (E.D. Pa., Mar. 31, 2010) (taking judicial notice of biographical information, specifically an employment date, located on a law firm’s website). 

     The Court may also consider the webpages where the alleged defamatory statements were published, and the content within them, because Plaintiff refers to the website as the source of each of Ms. -------’s allegedly defamatory statements. (Compl. ¶¶ 10–11 (alleging that Ms. ------- attacked Plaintiff “through her website (www.drasurvivors.com), Facebook pages (https://www.facebook.com/groups/ 314152158598304/?ref=br_tf) and others”).) Because the “referenced websites are incorporated by reference in the Complaint, they may be considered on a motion to dismiss.” C.M. v. Fletcher Allen Health Care, Inc., No. 5:12-cv-108, 2013 WL 4453754, n.1 (D. Vt. Apr. 30, 2013); Gorran v. Atkins Nutritionals, Inc., 464 F. Supp. 2d 315, 319 & n.1 (S.D.N.Y. 2006) (taking notice of a website on a motion for judgment on the pleadings where the website was incorporated by reference in the complaint); Atl. Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d 690, 694, n.3 (S.D.N.Y. 2009) (“Some of the facts are drawn from the Court’s own review of [a referenced] website. Because the website is incorporated by reference into the Complaint, the Court may consider it on a motion to dismiss.”).

DMWEST #11886830 v3

Case 2:14-cv-00751-TC Document 29 Filed 03/09/15 Page 6 of 27

I. PLAINTIFF’S COMPLAINT ALLEGES DEFAMATORY STATEMENTS THAT ARE OUTSIDE THE STATUTE OF LIMITATIONS PERIOD AND CANNOT THEREFORE FORM THE BASIS OF A DEFAMATION ACTION AGAINST MS. -------. 

     A significant number of the alleged defamatory statements of which Plaintiff complains were posted to the website outside the one-year statute of limitations. Plaintiff’s First Amended Complaint paraphrases all of the alleged defamatory statements in Paragraph 11’s lettered subparagraphs (“Alleged Defamatory Statements”). With the exception of sub-paragraph (m), the underlying source statements for sub-paragraphs (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (n), (o), (p), (q), and (r) were all published outside the applicable statute of limitations period.5 See infra Section III.
5 The remaining allegations, in sub-paragraphs (e), (m), and (o), should be dismissed under California’s anti-SLAPP statute. These allegations are likewise subject to, and barred by Ms. -------’s counterclaim against Plaintiff. 

     In Utah, an action for libel or slander “may be brought within one year.” Utah Code Ann. § 78B-2-302(4). The one-year limitation period begins “to run [when] the libel is known or is reasonably discoverable by the plaintiff.” Treff v. Kearns-Tribune Corp., No. 981053-CA, 1998 WL 1758417, at *1 (Utah Ct. App. 1998). Here, Plaintiff filed its complaint against Ms. ------- on October 16, 2014. Thus, any Alleged Defamatory Statement published before October 16, 2013 was published outside Utah’s one-year statute of limitations provided Plaintiff either knew about the statements or the statements were reasonably discoverable to Plaintiff. First, all the Alleged Defamatory Statements were published before October 16, 2013. Second, Plaintiff knew or should have known about the Alleged Defamatory Statements well before October 16,
________________________

5 The remaining allegations, in sub-paragraphs (e), (m), and (o), should be dismissed under California’s anti-SLAPP statute. These allegations are likewise subject to, and barred by Ms. -------’s counterclaim against Plaintiff.  

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2013. In fact, Plaintiff created a competing website6 to rebut Ms. -------’s website, www.therealdrasurvivors.com, on February 22, 2013.7 Plaintiff unquestionably knew about the site as early as February 22, 2013, if not earlier. Further, this Court can rule, as a matter of law, that the alleged libel was “reasonably discoverable by the plaintiff” at the time it was published online. See Russell v. Standard Corp., 898 P.2d 263, 264–65 (Utah 1995).8

6 This website was registered to Andrew Vance, a current DRA employee who previously held the position of Public Relations Director. See Bio of Andrew Vance, DIAMOND RANCH ACADEMY (last visited on Mar. 5, 2015) at http://www.diamondranchacademy.com/staff/andrew-vance-2, attached hereto as Exhibit 1. Besides the similarity between www.DRAsurvivors.com and www.therealdrasurvivors.com, Plaintiff lifted language directly from www.drasurvivors.com and placed it on its competing website.

7 See Screenshot of the Real Diamond Ranch Academy Survivors Website captured from Wayback Machine on December 12, 2013 at http://web.archive.org/web/20131212033306/http://www.therealdrasurvivors.com/, attached hereto as Exhibit 2. 

8 The court in Russell held that “an alleged defamation is reasonably discoverable, as a matter of law, at the time it is first published and disseminated in a newspaper that is widely available to the public.” Russell v. Standard Corp., 898 P.2d 263, 264-65 (Utah 1995). Although Russell dealt with a newspaper, if a newspaper, with subscribers, is widely available to the public, then a fortiori a publicly available website is “widely available to the public.” Russell applies with equal applicability in this case.

II. THIS COURT SHOULD APPLY THE SINGLE PUBLICATION RULE, AND SHOULD BAR THE PLAINTIFF’S CLAIMS THAT ARE BASED ON ALLEGATIONS OF DEFAMATORY STATEMENTS THAT OCCURRED OUTSIDE THE LIMITATIONS PERIOD.

     Plaintiff’s claims cannot rely on the Alleged Defamatory Statements because, as explained above, the Alleged Defamatory Statements were published outside the one-year limitations period and have not been substantively modified since. First, this Court should apply the “single publication rule” and reject the “continuous publication rule.” The single publication

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rule provides that the “one-year limitations period begins to run when publication of the libelous statement is complete.” Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137, 142 (5th Cir. 2007). In contrast, the “continuous publication rule” states that “each time a viewer accesses [an] article from [a] website a ‘republication’ occurs for statute of limitations purposes.” Id. As the Fifth Circuit noted in a recent case, the “continuous publication rule” is “virtually always rejected” by courts and “[e]very case to consider the issue has applied the single publication rule to publicly available Internet articles.” Id. at 143, 144 (emphasis added) (“strong policy considerations support application of the single publication rule to information publicly available on the Internet.”). Although Utah courts have not decided this issue,9 the vast majority of courts, including the Tenth Circuit, have found the single publication rule to be controlling.10

9 It appears that no Utah case has decided whether the “single publication rule” applies in Utah. Yeager v. Frot Knox Sec. Products, No. 14-4011, 2015 WL 525688, at *6 (10th Cir., Feb. 10, 2015) (unpublished) (stating that the parties “spar[ed] over such unsettled issues as . . . whether the Utah courts would recognize [the single publication rule] for the type of state torts alleged here.”). Id. A federal court here in Utah did, however, recently reject the continuous publication rule. See Mathison v. CLC Consumer Servs., 2013 WL 632108, *7 (D. Utah, Feb. 20, 2013) (rejecting plaintiff’s argument, in response to a statute of limitations defense, that defendant “continued to republish defamatory statements well into 2010.”).

10 In McBride, “[s]ome of the allegedly defamatory statements [were] blocked by Wyoming’s one-year statute of limitations.” McBride v. Peak Wellness Ctr, Inc., 688 F.3d 698, 710 (10th Cir. 2012). There, the Tenth Circuit stated that “[a]lthough McBride argue[d] the statements form[ed] a pattern constituting a single ‘continuing tort’ that survives the statute of limitations, the continuing-tort doctrine [was] inapplicable . . . because each statement was a discrete, potentially actionable occurrence.” Id. (citing Flowers v. Carville, 310 F.3d 1118, 1126 (9th Cir. 2002)). 

     Although the vast majority of courts across the country have adopted the single publication rule, a number of those jurisdictions have recognized an exception to the single

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publication rule, known as “republication.” Importantly, the republication exception is construed narrowly. Clark v. EA Entertainment Tele., LLC, No. 3:13-00058, 2014 WL 5106897, at *2, 3 (M.D. Tenn., Oct. 10, 2014) (noting that the republication doctrine is “narrowly construed”); see also Salyer v. So. Poverty Law Ctr., Inc., 701 F.Supp.2d 912, 914 (W.D. Ky. 2009) (noting that republication is a narrow exception to the single publication rule). In the Internet age, parties have litigated whether “non-substantive modifications . . . constitute ‘republication’ so that the statute of limitations commences anew upon ‘republication.’” Clark v. Viacom, Int'l, Inc., No. 3:12-0675, 2013 WL 1245681, at *4 (M.D. Tenn. March 23, 2013). “As a leading treatise [has] observed, ‘[m]odifications . . . , such as minor changes or addition of material irrelevant to the alleged defamatory material, or changes in the manner in which the material may be accessed, do not ordinarily constitute a new publication.’” Id. (citing Sack on Defamation: Libel, Slander, and Related Problems § 7:2.1) (emphasis added).11 In other words, republication occurs only when (1) the alleged defamatory material complained of (2) is substantively modified. See Salyer v. Southern Poverty Law Ctr., Inc., 701 F. Supp. 2d 912 (W.D. Ky., Dec. 7, 2009). This is because a broad exception to the single publication rule would implicate the “potential for
______________________________

11 See also Salyer v. Southern Poverty Law Ctr., Inc., 701 F.Supp.2d 912, 918 (W.D. Ky., 2009) (stating that “[t]raditional republication occurs when the substance of the previously published defamatory statements are altered . . . . Neither of those methods of republication occurred in this case. The hyperlinks, while adding a new method of access to ‘A Few Bad Men,’ did not restate the allegedly defamatory statements and did not alter the substance of that article in any manner.”) (emphasis added); In re Phil. Newspapers, LLC, 690 F.3d 161, 175 (3d Cir. 2012) (“Websites are constantly linked and updated. If each link or technical change were an act of republication, the statute of limitations would be retriggered endlessly and its effectiveness essentially eliminated.”); Shepard v. TheHuffingtonPost.com, Inc., No. 12-1513 (PAM/SER), 2012 WL 5584615, at *2 (D. Minn., Nov. 15, 2012) (holding that adding “hyperlinks to the original article, . . . do[es] not restart the statute of limitations.”).

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endless retriggering of the statute of limitations, multiplicity of suits and harassments of defendants,’” and may have a “serious inhibitory effect on the open, pervasive dissemination of information and ideas over the Internet.” Nationwide Bi-Weekly Admin., 512 F.3d at 144.


     Two cases are instructive on this issue. In Salyer, the plaintiff (an individual) brought an action against the Southern Poverty Law Center (“SPLC”) alleging that SPLC published defamatory statements about him online. Salyer, 701 F.Supp.2d at 913. The alleged defamatory statements were found in an article that was posted to SPLC’s website around 2006 and was not altered until 2008. Id. at 914. Although the court adopted the single publication rule, the issue was whether “a narrow exception to the single publication rule called ‘republication,’ could provide a way for Plaintiffs to avoid dismissal.” Id. (emphasis added). The court noted the difficulty in “applying the traditional republication exception in the context of material published on the internet.” Id. at 915 (“Very little case law . . . directly addresses these issues.”). In its discussion, the court said that other courts had found that republication occurs when “new substantive information was added to the actual webpage defaming the plaintiffs.” Id. at 917 (emphasis added). The court held that there was no such republication by SPLC. It said that the defamatory material “was never modified in any manner until Plaintiff’s name was removed.” Id. It further said that “[w]hile other portions of the . . . website may have changed, those portions were unrelated to the defamatory statements,” and that there were no “substantive changes that [would] trigger[] republication.” Id. at 917–18 (emphasis added). The court concluded by stating that “the lack of substantive changes strongly suggests the absence of republication.” Id. at 918 (emphasis added).

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     In another case, plaintiff alleged “twenty-seven (27) libelous statements published by Defendants on the Internet.” Clark v. Viacom Int'l, 2013 WL 1245681, at *1. The court first noted that the “single publication rule applies to information published on the Internet.” Id. at *3 (citations omitted). It then addressed whether “certain non-substantive modifications to the Defendants’ website at issue constitute ‘republication’ so that the statute of limitations commences anew upon ‘republication.’” Id. at *4. The court, first, said that plaintiffs had “earlier conceded the absence of substantive material to the alleged defamatory articles”—and this alone was sufficient. Id. The court, however, continued on to state that, “[i]n any event[,] courts have rejected this republication argument.” Id. It noted that, “[a]s a leading treatise [has] observed,” “‘[m]odifications of a website, such as minor changes or addition of material irrelevant to the allegedly defamatory material . . . do not ordinarily constitute a new publication.’” Id.

     Here, as explained below, certain of the Alleged Defamatory Statements have not been updated or edited at all since their original publication (much less substantively). The source statements for the following have not been changed since before October 16, 2013: Paragraph 11 (a), (k), (l), (n), (o), (p), (q), (r). The allegations in these specific sub-paragraphs were published outside the limitations period, and were never updated. Of the remaining Alleged Defamatory Statements, where there have been changes, such changes were non-substantive or simply were not changes to the Alleged Defamatory Statements that Plaintiff specifically complains of. Sub-paragraphs 11(b), (d), (g) were updated, but the updates were to delete language that Plaintiff alleges is defamatory and were otherwise not substantively modified. Only the Alleged Defamatory Statements in sub-paragraphs (c), (e), and (h) had something added to them. If, 

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however, the Court focuses on the “specific language complained of,” it will observe that additions to original posts were not substantive and did not go to the specific language Plaintiff alleges is defamatory. In short, Plaintiff should not be allowed to rely on the Alleged Defamatory Statements in claiming libel.

III. ALL OF THE ALLEGED DEFAMATORY STATEMENTS WERE PUBLISHED OUTSIDE THE LIMITATIONS PERIOD AND WERE EITHER NOT MODIFIED AFTER PUBLICATION OR WERE NOT SUBSTANTIVELY MODIFIED AFTER PUBLICATION.

     Ms. ------- restates12 the Alleged Defamatory Statements found in Plaintiff’s Amended Complaint and responds to them below:

12 Plaintiff paraphrases many of the statements it alleges are defamatory. For this reason, as explained earlier, the Court should take judicial notice of the actual source statements as found on the website. 

13 Declaration of ------- ------- in Support of Defendant’s Rule 12(c) Motion for Judgment on the Pleadings (hereinafter “------- Decl.”) ¶ 2(a)(i), Filed concurrently herewith. Plaintiff also claims that this was based on a “comment dated August 1, 2014, directed to several people on the Facebook page entitled ‘I survived Diamond Ranch Academy.’” (Compl. ¶ 11(a).) It is unclear what Facebook post Plaintiff is referring to.

(a) DRA is not a legitimate treatment facility and that its methods are unethical and illegal, abusive, and fatal.

     This Alleged Defamatory Statement is based on two posts. The first post states, “Our message is clear; Diamond Ranch Academy is NOT a legitimate treatment facility and their methods are unethical, illegal and abusive.” This statement was originally published in 2012.13 Plaintiff alleges that this statement was “posted on Diamond Ranch Academy Survivors website, June 28, 2013, but removed from [sic] site following the filing of the original Complaint in this

___________________________
12 Plaintiff paraphrases many of the statements it alleges are defamatory. For this reason, as explained earlier, the Court should take judicial notice of the actual source statements as found on the website.

13 Declaration of ------- ------- in Support of Defendant’s Rule 12(c) Motion for Judgment on the Pleadings (hereinafter “------- Decl.”) ¶ 2(a)(i), Filed concurrently herewith. Plaintiff also claims that this was based on a “comment dated August 1, 2014, directed to several people on the Facebook page entitled ‘I survived Diamond Ranch Academy.’” (Compl. ¶ 11(a).) It is unclear what Facebook post Plaintiff is referring to.  

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matter.”14 (Compl. ¶ 157(a).) Logic dictates that removing a post cannot be considered a “substantive modification.” Based on the original publication date, this Alleged Defamatory Statement was published outside the limitations period and cannot form the basis of a defamation claim. 

14 A ruling by the Court that deletion of language alleged to be defamatory results in “republication,” will cause perverse incentives. In the future, defendants that are asked by potential plaintiffs to remove language will refuse to do so at the fear of triggering “republication.” This cannot be the result. Defendants should be allowed to freely remove language without fear of causing republication. 

15 ------- Decl. ¶ 2(b)(i).

16 Id. ¶ 2(b)(ii). 

17 The indented language tracking the Alleged Defamatory Statement, indicates what language was added and what language was deleted. The language in bold was added, the language with a strikethrough was deleted. 

18 ------- Decl. ¶ 2(b)(ii).
(b) DRA physically, emotionally and psychologically abuses its students. 

     This Alleged Defamatory Statement is based on two posts. One post was originally published on June 28, 2013, and stated, “They do not provide real therapy, they do not follow clinical standards, they physically and psychologically abuse children . . . .”15 This post has not been modified. The second post was published originally on June 19, 2012, and at that time stated, “However, that is not what survivors of this school are saying … They indicate that children who have attend[ed] DRA were ‘physically, emotionally and psychologically abused.’”16 This second post was updated on October 24, 2014 to state:17 

     However, that is not what survivors former students of this school are saying …, They indicate that these advertisements are nothing short of a lie and that the children who have attend DRA are were “physically, emotionally and psychologically abused.”18
___________________________

 14 A ruling by the Court that deletion of language alleged to be defamatory results in “republication,” will cause perverse incentives. In the future, defendants that are asked by potential plaintiffs to remove language will refuse to do so at the fear of triggering “republication.” This cannot be the result. Defendants should be allowed to freely remove language without fear of causing republication.

15 ------- Decl. ¶ 2(b)(i).
16 Id. ¶ 2(b)(ii). 

17 The indented language tracking the Alleged Defamatory Statement, indicates what language was added and what language was deleted. The language in bold was added, the language with a strikethrough was deleted. 

18 ------- Decl. ¶ 2(b)(ii).  
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     As is apparent, the October 24, 2014 update did not substantively modify the alleged defamatory language. This Court should therefore look to the original publication date of June 19, 2012 for purposes of the statute of limitations. Based on the original publication dates, this Alleged Defamatory Statement was published outside the limitations period and cannot form the basis of a defamation claim.

(c) That DRA owners and staff “completely disregard the rights, individual needs and welfare” of its students. 

     This Alleged Defamatory Statement is based on one post, which was originally published on June 19, 2012. It stated: “This program employs MANY policies that have been determined to be abusive and they completely disregard the rights, individual needs and welfare of these children . . . .” 19 On October 27, 2014, it was updated to state: 

     This program employs MANY policies Former students report that have been determined to be abusive DRA owners and they staff completely disregard the rights, individual needs and welfare of these children in their care.20

     The October 27, 2014 update did not substantively modify the alleged defamatory language. This Court should therefore look to the original publication, which was on June 19, 2012. Based on the original publication date, this Alleged Defamatory Statement was published outside the limitations period and cannot form the basis of a defamation claim.
__________________________
19 Id. ¶ 2(c)(i).
20 Id.  
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(d) DRA unlawfully incarcerates children and dehumanizes children.

     This Alleged Defamatory Statement is based on two posts. One post was published on June 19, 2012 and stated that “[t]uition for DRA can cost roughly $6000 a month and anywhere from $72,000 - $200,000 (or more) simply to unlawfully incarcerate a child and break their will.”21 This post was updated on March 26, 2014, October 18, 2014, and October 24, 2014 to state: 

     Tuition for DRA can cost roughly $6000 a month and anywhere from $72,000 - $200,000 (or more) simply to unlawfully incarcerate and break their will depending on the length of time the child is enrolled .22 

     As is noticeable, the update deleted language Plaintiff alleges is defamatory. A deletion of language, especially language Plaintiff alleges is defamatory, cannot be considered a substantive modification sufficient to trigger “republication.” 

     The other part of the Alleged Defamatory Statement—i.e., the “dehumanizes children” allegation—was part of a post published on June 19, 2012, which stated, “It is the opinion of DRA Survivors that these strip searches are not only unnecessary but used purposely as a means of dehumanization, and humiliation.”23 This post was updated on October 27, 2014 to state: 

     It is the opinion of DRA Survivors that these strip searches are not only unnecessary and overused (multiple times a day) but used purposefully as a means of humiliation and dehumanization, and humiliation.24
___________________
21 Id. ¶ 2(d)(i).
22 Id.
23 Id. ¶ 2(d)(ii).
24 Id.  
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 Here also, the update did not substantively modify the alleged defamatory language. This Court should therefore look to the original publication of both posts—June 19, 2012. Based on the original publication date, this Alleged Defamatory Statement was published outside the limitations period and cannot form the basis of a defamation claim. 

(e) DRA engages in deceptive and dishonest marketing techniques.
    
 This Alleged Defamatory Statement is based on a post that was originally published on June 19, 2012. That post stated, “Deceptive marketing techniques are nothing new to the troubled teen industry, often when explaining the aspects of the program they use commonly known words to describe their incompetent methods in order to obstruct the truth and make claims to such impossibilities as a ‘miracle cure’ for adolescent behavior.”25 On October 27, 2014, the language of this post was substantially deleted to state:
    
 Deceptive marketing techniques are nothing new to the troubled teen industry, often when explaining the aspects of the program they use commonly known words to describe their incompetent methods in order to obstruct the truth and make claims to such impossibilities as a ‘miracle cure’ for adolescent behavior program in order bring credibility to methods.26
     
As is apparent, the update deleted language that Plaintiff complains is defamatory, and only added “program in order bring credibility to methods.” This update did not substantively modify the language. This Court should therefore look to the original publication date, which was on June 19, 2012. Based on the original publication date,
__________________________
25 Id. ¶ 2(e)(i).
26 Id.  
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this Alleged Defamatory Statement was published outside the limitations period and cannot form the basis of a defamation claim.

(f) DRA employs a violent and painful form of torture as punishment. 

     This Alleged Defamatory Statement is based on a post that was originally published on August 23, 2012. That post stated, “Most importantly, what is called ‘restraint’ and promised to parents to be used as a last resort is in all actuality a violent and painful form of torture used as punishment.”27 This post was updated on October 27, 2014 to state:

     Most importantly, what is called ‘restraint’ and promised According to parentsformer students, “Restraint” (which DRA claims to be used as a last resort only) is in all actuality actually a violent and painful form of torture used as punishment.28 

     As is apparent, the update did not substantively modify the alleged defamatory language. This Court should therefore look to the original publication, which was on August 23, 2012. Based on the original publication date, this Alleged Defamatory Statement was published outside the limitations period and cannot form the basis of a defamation claim.

(g) DRA employs an unqualified, improperly trained staff. 

     This Alleged Defamatory Statement is based on posts that were originally published in 2012 and 2013. The first post, published on June 18, 2012, stated, “Despite the dangerous nature of such techniques and the misuse of them by unqualified, improperly trained staff, ‘restraints’
­­­­­­­­­­___________________________
27 Id. ¶ 2(f)(i).
28 Id.
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have become a staple of the ‘therapy’ administered by DRA.”29 This post was updated on October 27, 2014 to state:
    
 Despite Restraining a student may happen for any violation of the dangerous nature of such techniques schools rules, and the misuse of them is doled out by unlicensed, therapeutically unqualified, improperly trained staff “restraints” have become a staple of the “therapy” administered at DRA, members that many former students refer to as “grown up bullies.”30
      
Although the update added content to the post, it did not substantively modify the specific language Plaintiff alleges is defamatory, i.e., the statement about “unqualified, improperly trained staff.” This Court should therefore look to the original publication, which was on June 18, 2012.
      
There are also two other posts that this allegation may be based on. The first states, “Most will describe them as overgrown bullies, unqualified and unfit to be working with children . . . . I also think their parents don’t deserve to be lied to and sold a bill of goods that is simply impossible for such unqualified people to deliver.”31 This was originally published on June 28, 2013, and has not changed. The second post states, “Are you aware that the staff employed by DRA who are responsible for the children’s daily activities are all unqualified, improperly trained and underpaid?”32 This post was published on May 5, 2013, and, also, has not been changed. Based on the original publication dates, this Alleged Defamatory Statement was published outside the limitations period and cannot form the basis of a defamation claim.
______________
29 Id. ¶ 2(g)(i).
30 Id.
31 Id. ¶ 2(g)(ii).
32 Id. ¶ 2(g)(iii).  
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(h) DRA operates a “private prison, where due process of the law and even the most basic of human rights are violated.” 

     The Alleged Defamatory Statement is based on a post that was originally published on June 19, 2012. The original post stated, “In reality, it is nothing more than a private prison where due process of the law and even the most basic of human rights are violated without any reason other than their parents felt they needed help and ‘it looked nice in the brochures’.”33 This post was later updated, on October 27, 2014, to state:

     In reality, it is a privately-run teen nothing more than a private prison where due process of the law and even the most basic of human rights areof children may be violated without any reason other than cause, legal repercussion or the ability for a student who has become the victim of abuse to voice their parents felt they needed help and ‘it looked nice in the brochures’ grievance.34 

     Although the update added content to the post, it did not substantively modify the specific alleged defamatory language. This Court should therefore look to the original publication, which was on June 19, 2012. Based on the original publication date, this Alleged Defamatory Statement was published outside the limitations period and cannot form the basis of a defamation claim. 

(i) When a parent sends a child to DRA, the child will be “abused”, and may “never come back at all.”
     The Alleged Defamatory Statement is based on a post that was originally published on June 19, 2012. The original post stated, “… and if sending their child away is worth the risk that
_________________________
33 Id. ¶ 2(h)(i).
34 Id.  
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they might be abused, or never come back at all. RIP James Shirley.”35 This post was later updated, on October 27, 2014, to state, “Is sending their your child away is worth the risk that they might will be abused, or that they will never come back at all.? RIP James Shirley.”36 As is noticeable, the update did not substantively modify the allegedly defamatory language. This Court should therefore look to the original publication, which was on June 19, 2012. Based on the original publication date, this Alleged Defamatory Statement was published outside the limitations period and cannot form the basis of a defamation claim. 

35 Id. ¶ 2(i)(i).
36 Id.
37 Id. ¶ 2(j)(i).
38 See supra n. 20 (this is the same post as paragraph 11(d) of Plaintiff’s complaint).
39 ------- Decl. ¶ 2(j)(ii).
40 See http://drasurvivors.com/dra-survivors-utah-dhs-licensing-office-complaint/. 

(j) DRA engages in improper strip searches, “cruel and unusual punishment”, dehumanization, humiliation, and the starvation of its students. 

     This Alleged Defamatory Statement is based on a few posts. The first post was originally published on June 19, 2012 and stated, “It is the opinion of DRA Survivors that these strip searches are not only unnecessary but used purposely as a means of dehumanization, and humiliation.”37 This was updated on October 27, 2014, but was not substantively modified—as explained in (d) above.38 The second source statement for the Alleged Defamatory Statement was originally published on May 5, 2013, and stated “Are you aware that this meal plan constitutes starvation.”39 This post was not updated, and the content remains the same.40 The

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last source statement for the Alleged Defamatory Statement was originally published on June 28, 2013, and stated, “Not to mention that the ‘therapy’ used in DRA, called Aversion Therapy, has been outlawed in most state prisons, because it has been deemed to be ‘cruel and unusual punishment’.”41 This post has not been modified.42 In short, the source statements underlying this Alleged Defamatory Statement were either not substantively modified, or not modified at all. This allegation cannot therefore form the basis of Plaintiff’s claims.

41 ------- Decl. ¶ 2(j)(iii).
42 Id. (This page has been removed).
43 ------- Decl. ¶ 2(k)(i). It is unclear when or where the statement that “DRA’s students are denied adequate . . . food” is published.
44 Id. ¶ 2(k)(ii). 

(k) DRA’s students are denied adequate medical care and food. 

     This Alleged Defamatory Statement is based on two posts. The first post was originally published on June 19, 2012, and was updated on August 23, 2012. Both the original publication date and update are outside the limitations period. The post reads, “This leads to many incidents going unreported, and the children being denied adequate medical care if the medical staff is not on duty.”43 The second post stated, “Are you aware that a child died in Diamond Ranch Academy? Do you know that they refused him medical care and all he needed was an extra dose of his medication and that family would still have his son?”44 This post was originally published on June 29, 2013, and has not been changed. Based on the original publication dates, this Allegedly Defamatory Statement was published outside the limitations period and cannot form the basis of Plaintiff’s defamation claims.
___________________

41 ------- Decl. ¶ 2(j)(iii).
42 Id. (This page has been removed).
43 ------- Decl. ¶ 2(k)(i). It is unclear when or where the statement that “DRA’s students are denied adequate . . . food” is published.
44 Id. ¶ 2(k)(ii).  

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(l) DRA employs “seclusion, forced labor, physical violence, fear based control and brainwashing methods that violate all basic human rights and could certainly be considered child abuse, if not actual torture.”
      
This Alleged Defamatory Statement is based on a single post. The post was published on August 17, 2012, and stated, “The truth is, Diamond Ranch Academy . . . is a behavior modification program that employs techniques of seclusion, forced labor, physical violence, fear based control and brainwashing methods that violate all basic human rights and could certainly be considered child abuse, if not actual torture.”45 This post has not been updated.46 Based on the original publication date, this Alleged Defamatory Statement was published outside the limitations period and cannot form the basis of a defamation claim.

(n) DRA does not provide “real therapy”, does not follow clinical standards, “physically and psychologically” abuses children, and “scams parents out of millions of dollars.”
       
This Alleged Defamatory Statement was published on June 28, 2013. The post reads, “They do not provide real therapy, they do not follow clinical standards, they physically and psychologically abuse children and they scam their parents out of millions of dollars.”47 This content has been removed. As explained above, logic dictates that removal of content that Plaintiff alleges was defamatory cannot be considered a substantive modification.48 Based on the
­­­­­­­­­­­­­­­­­­­________________
45 Id. ¶ 2(l).
46 See http://drasurvivors.com/dr-drew-endorses-diamond-ranch-academy/.
47 ------- Decl. ¶ 2(n)(i).
48 This page appears to have been taken down. See http://drasurvivors.com/letter-to-dra-parent/ (last visited Mar. 4, 2015) (noting that the page cannot be found).  

DMWEST #11886830 v3

Case 2:14-cv-00751-TC Document 29 Filed 03/09/15 Page 23 of 27

original publication date, this Alleged Defamatory Statement was published outside the limitations period and cannot form the basis of a defamation claim.
(o) Members of DRA’s medical staff are not licensed medical professionals.

     This Alleged Defamatory Statement was published on May 5, 2013. The post reads, “Are you aware that their medical staff is not usually present on campus and that the staff member tasked with administering medication is not a licensed medical professional?”49 This post has not been updated and remains the same. Based on the original publication date, this Alleged Defamatory Statement was published outside the limitations period and cannot form the basis of a defamation claim.

(p) DRA has a “long history of abuse, dangerous policies and a wrongful death.”

     This Alleged Defamatory Statement was published on July 9, 2013. The post reads, “With a long history of abuse, dangerous policies and a wrongful death, Diamond Ranch Academy is absolutely no place for a depressed child with suicidal tendencies.”50 This post has not been updated and remains the same.51 A second post described the “abuse” experienced by children. The second post stated, “Are you aware that former clients of DRA have reported that they/their children were systematically abused in DRA? . . . Are you aware that this policy has been directly responsible for the wrongful death of a 14-year-old student?”52 This post was originally published on May 5, 2013 and has not been changed. Based on the original
__________________________
49 ------- Decl. ¶ 2(o)(i).
50 ------- Decl. ¶ 2(p)(i).
51 See http://drasurvivors.com/paris-jackson-to-be-sent-to-diamond-ranch-academy/.
52 ------- Decl. ¶ 2(p)(ii).  

DMWEST #11886830 v3


Case 2:14-cv-00751-TC Document 29 Filed 03/09/15 Page 24 of 27

publication date, this Alleged Defamatory Statement was published outside the limitations period and cannot form the basis of a defamation claim.
(q) DRA’s therapy techniques are not “clinically approved”, “but quite simply a form of corporal punishment.”
     This Alleged Defamatory Statement was published on July 9, 2013. The relevant part of the post states, “This experimental therapy is not clinically approved treatment, but quite simply a form of corporal punishment.”53 The alleged defamatory language has not been changed or updated.54 A second post, published on June 19, 2012, states:

What is called ‘therapy’ is not a clinically approved method of rehabilitation, it is an experimental psychological treatment that utilizes the response to fear, intimidation and the human longing for love and acceptance as weapons against their psyche and forced upon them to ensure absolute submission to the program’s doctrine.55 

This post was changed on October 27, 2014 to read: 

What is called ‘therapy’‘The program’ of Diamond Ranch Academy is not a clinically approved or evidence based method of rehabilitation, it is but an experimental psychological treatment form of behavior modification that utilizes the response to fear, intimidation and the human longing for love and acceptance as weapons against their psyche and forced upon them to ensure absolute submission to the program’s doctrine.56 

Although there was language added, the language did not substantively modify the statement. Lastly, there was a third post on May 5, 2013. That stated “Are you aware that the ‘therapy’ provided by DRA is NOT a clinically approved treatment, but an experimental therapy called
____________________________
53 ------- Decl. ¶ 2(q)(i).
54 See supra n. 39.
55 ------- Decl. ¶ 2(q)(ii).
56 Id.
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Case 2:14-cv-00751-TC Document 29 Filed 03/09/15 Page 25 of 27

‘behavior modification’ based on the principals of Aversion Therapy, or in more simple terms, corporal punishment.”57 This statement is similar to the above statement, and was not changed. Based on the original publication date, this Alleged Defamatory Statement was published outside the limitations period and cannot form the basis of a defamation claim. 

(r) DRA is not a legitimate treatment facility and that its methods are unethical, illegal, abusive and fatal. 

      This Alleged Defamatory Statement is based on the same source statements as that of Paragraph 11(a).58 As explained above, this Alleged Defamatory Statement was published in 2012. Based on the original publication date, this Alleged Defamatory Statement was published outside the limitations period and cannot form the basis of a defamation claim. 

IV. DRA’S CAUSES OF ACTION FOR SLANDER SHOULD BE DISMISSED FOR FAILURE TO STATE A CLAIM BECAUSE DRA MAKES NO CLAIM THAT THE ALLEGED DEFAMATORY STATEMENTS WERE COMMUNICATED ORALLY. 

     “Slander and libel are a subset of defamation.” Jensen v. Sawyers, 2005 UT 81,¶ 33, n.6, 130 P.3d 325. Slander is the “publication of defamatory matter by spoken words,” whereas libel “consists of the publication of defamatory matter by written or printed words . . . .” Id. Plaintiff’s complaint includes two causes of action for slander—slander and slander per se. (Compl. ¶¶ 41–64.) Plaintiff, however, does not allege any specific defamatory statements that were published orally. Plaintiff’s third and fourth causes of action should therefore be dismissed.
______________________
57 Id. ¶ 2(q)(iii).
58 Id. ¶ 2(a)(i).  
DMWEST #11886830 v3

Case 2:14-cv-00751-TC Document 29 Filed 03/09/15 Page 26 of 27

     DRA’s Complaint lists in Paragraph 11 all the statements allegedly made by Ms. -------. But Paragraph 11 makes no allegation that Ms. ------- communicated these statements orally. To the contrary, Plaintiff expressly alleges that the Allegedly Defamatory Statements were “originally published and/or re-published by -------, in writing.” In paragraph 12, Plaintiff throws in a conclusory allegation that “[u]pon information and belief, ------- also made other defamatory statements, both in writing and orally.” But Plaintiff fails to identify any oral communication. See Zoumadakis v. Uintah Basin Med. Ctr., Inc., 2005 UT App 325, ¶ 3, 122 P.3d 891 (“Utah law requires a defamation complaint to be dismissed for lack of particularity only where it contains nothing more than general, conclusory allegations of defamation.”); Green v. Lexis-Nexis, 513 Fed.Appx. 772, 773 (10th Cir. 2013) (unpublished) (stating that “‘[t]hreadbare recital of elements of a cause of action, supported by mere conclusory statements, do not suffice.’”). 

     Although a litigant may draft a complaint broadly by including several causes of action, here DRA has thrown in everything but the kitchen sink in bringing this defamation action. But in doing so, it neglected to identify any statements that were actually oral and that could thereby constitute slander. Because DRA does not allege separate facts for its slander claims, and concedes that all the Alleged Defamatory Statements listed in paragraph 11 were written, this Court should grant Ms. -------’s Motion and dismiss DRA’s third and fourth causes of action. 

CONCLUSION
     This Court should dismiss with prejudice Plaintiff’s defamation claims to the extent that Plaintiff’s claims rely on any of the Alleged Defamatory Statements identified above. These statements were published outside the limitations period and either have never been updated or,
DMWEST #11886830 v3

Case 2:14-cv-00751-TC Document 29 Filed 03/09/15 Page 27 of 27

if updated, were not substantively modified. This Court should also dismiss Plaintiff’s third and fourth causes of action. Although Plaintiff claims slander, Plaintiff does not identify any oral communications.
                                     DATED this 9th day of March 2015.
/s/ Anthony C. Kaye ____________________
Anthony C. Kaye, Esq.
Zaven A. Sargsian, Esq.
Edward Chang, Esq. (admitted pro hac vice)
BALLARD SPAHR LLP
Attorneys for Defendant and Counterclaim Plaintiff, ------- ------- 

  
DEFENDANT ------- ------- MOTION TO STRIKE :
 http://jilliestake.blogspot.com/p/blog-page_13.html


AFFIDAVITS OF "SURVIVORS" IN DEFENSE OF DEFENDANT'S SPECIAL MOTION TO STRIKE:
 http://jilliestake.blogspot.com/p/blog-page_62.html

http://jilliestake.blogspot.com/p/diamond-ranch-academy-vs.html 





THE ARMENIAN GENOCIDE OF 1915 -100 YEARS AFTER THE MASSACRE

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April 24, 1915, is a day of remembrance for all Armenians. A day when Christian Armenians peacefully living in Turkey would face the Ottoman Empire's wrath-an ethnic cleansing, a barbaric, systematic extermination of gentle souls.

April 24, 2015, on the 100th Anniversary of the Armenian Genocide, the United States of America has not sought justice, reparations, or acknowledged the Armenian Massacre as Genocide, where an estimated 1.5 million human beings were slaughtered. Additionally, Assyrians, Syrians, Anatolian, and Pontic Greeks were slaughtered.

Genocide is genocide. Say the word Mr. President. Borrow some testicles. Like Turkey, you will 'get over it.'

God spared my grandmother as she trudged through the death march upon the Deir ez-Zor desert, burying her only baby beneath the sand. She lived with unwavering faith, to give witness to the inhumane horrors and atrocities that befell women and children on that desert march. Those atrocities, forever seared into her eyes, would reflect a pain that no human being should ever carry. Her visions were of Ottoman soldiers raping young girls and women; torturing, then murdering them. Infants were tossed into the air and bayoneted for "fun." This was the finale to what my grandmother witnessed in her village where age afforded no boundaries; there would be no males that survived.

My grandfather was working the Panama Canal when the Genocide took place. He mourned the loss of his entire family, until reading a notice placed in the Armenian newspaper (10) years later; it was from his beloved bride. She was alive in France. They would raise a family in the United States.

My generation knew our grandparents, if we were fortunate. I never got to meet my aunt who perished in that desert. As those of Armenian heritage, I carry her memory inside me. A memory given by my grandmother. I know that God has brought them together now, in peace, where they began their journey with unwavering faith.

Mr. Erdogan, President of Turkey, your denial of the Armenian 'Genocide,' like our President, sheds light on your character--er, lack thereof. Vladimir Putin, President of Russia, enjoyed a shirtless photo op on a horse. Perhaps, you should try it on a jackass as befitting.

President Obama... Well... he wears a shirt riding in his golf cart. He smiles--a lot. His speeches--he was a fine orator, quite remarkable on delivering his lines. Hollywood most likely agrees.

On January 19, 2008, during his presidential campaign, Obama released a powerful statement regarding the recognition of the Armenian Massacre as Genocide and we drank the Kool-Aid. Even those that never really liked Kool-Aid--believed.

Statement:

"I also share with Armenian Americans – so many of whom are descended from genocide survivors - a principled commitment to commemorating and ending genocide. That starts with acknowledging the tragic instances of genocide in world history. As a U.S. Senator, I have stood with the Armenian American community in calling for Turkey's acknowledgement of the Armenian Genocide. Two years ago, I criticized the Secretary of State for the firing of U.S. Ambassador to Armenia, John Evans, after he properly used the term "genocide" to describe Turkey's slaughter of thousands of Armenians starting in 1915. I shared with Secretary Rice my firmly held conviction that the Armenian Genocide is not an allegation, a personal opinion, or a point of view, but rather a widely documented fact supported by an overwhelming body of historical evidence. The facts are undeniable. An official policy that calls on diplomats to distort the historical facts is an untenable policy. As a senator, I strongly support passage of the Armenian Genocide Resolution (H.Res.106 and S.Res.106), and as President I will recognize the Armenian Genocide."http://www.anca.org/press_releases/press_releases.php?prid=1365

President Obama, there is no need to step up to the podium today, April 24th, 2015. Nary a soul wishes to hear from a man whose word is not his bond.

And, that is our take.

©2015 Jilliestake

William Saroyan:

“I should like to see any power of the world destroy this race, this small tribe of unimportant people, whose wars have all been fought and lost, whose structures have crumbled, literature is unread, music is unheard, and prayers are no more answered. Go ahead, destroy Armenia . See if you can do it. Send them into the desert without bread or water. Burn their homes and churches. Then see if they will not laugh, sing and pray again. For when two of them meet anywhere in the world, see if they will not create a New Armenia.

Video:
https://youtu.be/5egaJH5NwFY

© 2015 Jillie's Take
William Saroyan Poem about the Armenian Genocide...by albi450

LIFETIME TV'S "TEEN TROUBLE" IS CANCELLED - APPARENTLY, JOSH SHIPP THE HOST, TAKES CREDIT

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Josh Shipp

Lifetime TV of A&E networks affirmed the network cancelled"Teen Trouble" hosted by motivational speaker Josh Shipp.

As of this date, there was no announcement or press release by A&E's Lifetime TV network indicating the show was cancelled. A&E confirmed this.
The unscripted series was originally approved for only eight episodes.
http://www.mylifetime.com/shows/teen-trouble/episodes/season-1

"Teen Trouble" - After months of scrutiny, petitioning the network, articles upon negative articles, voices raised in horror by survivors of the TTI industry and children's rights advocates, this indeed was received as good news. There will be no more episodes of "Teen Trouble."

So how did survivors and child advocates find out "Teen Trouble" was cancelled?

Well, Mr. Shipp. it appears, would like survivors and advocates to believe it was his choice -  his "own personal decision to not do another season of  Teen Trouble."  How heroic of Mr. Shipp - how valiant. He "kept his word?"  Which "word" was that?

 https://www.facebook.com/groups/teentrouble.joshshipp/?fref=ts


"I have chosen to NOT film any more episodes of Teen Trouble."  Who has chosen?  He could film them, for sure, but the network would not be paying for them.

Mr. Shipp, the above statement, if made, is offensive to survivors and advocates.  One does not know if you are suggesting that the cognitive capabilities of advocates and survivors is marginal at best.

THE SCENARIO INFERRED BY MR. SHIPP'S STATEMENT

Okay, so you are not a noted star, but for an individual to cease production of further episodes, by his choice alone on a series, if true, is great"spin" for any network. This is news worthy! This selfless effort is certainly worth a logline from the network lauding you or the network for ones humanity above the almighty dollar. It's Disney! A rarity, but actors have walked away from other series.  Where is it? Where is the network news release? Oh, it's in an undisclosed private "email." However, the gist of it may be shared. Perhaps, the email was misinterpreted? Another "spin" coming?

NETWORK REASONING - THE BOTTOM LINE DICTATES

According to network executives, they pull the plug on a series, when the series does not perform well in the ratings(performance-very poor ratings), negative reviews (Mr. Shipp's self-proclaimed Harvard endorsement did not help, nor the marketing of himself as a "Teen Behavioral Expert et al"), or because of radical or controversial content (sending children to abusive facilities without educating oneself is right up there).

According to A&E's Lifetime, "Teen Trouble" did not perform up to their expectations, therefore the show was cancelled. Whether it is because of the aforementioned network reasoning or Mr. Shipp's take is any one's guess.  However, logic dictates that the reasoning for the cancellation of "Teen Trouble" leans more toward performance and controversy - although to networks, controversy is sometimes thought of as a positive as related to hype.  

"Teen Trouble" did not make it because of the ratings? "Reality bites."

If one believes it was Mr.Shipp's decision to end "Teen Trouble," then one must conclude A&E's Lifetime network would have continued the series with menial ratings, thus sending children to abusive facilities, if Mr. Shipp stayed.  After all the controversy, this wouldn't shed a halo of light on the network - a Disney network. A&E would not be pleased, especially for making the network officials look like imbeciles as the ratings numbers were not there to sustain "Teen Trouble," nor was the advertising. Again, the network only agreed to eight episodes. The episodes were over and apparently, so was the series.

What we take issue with, is using pure of heart individuals, survivors of the TTI industry and children's rights advocates for one's own gain. What worth is that "gain," if it is the result of "a dog and pony show?" 

We deal in the heartbreak of certain realities every day and, yes, it bites. It is not mired in any personal visions of grandeur or "spin." Our visions of grandeur are that of keeping all children safe.

Mr. Shipp, respect is earned and your ten minutes of advocacy is up.

And... that's our take.

Ratings:

http://thefutoncritic.com/ratings/2013/01/28/fridays-cable-ratings-gold-rush-continues-reign-for-discovery-351511/cable_20130125/

http://en.wikipedia.org/wiki/Teen_Trouble









 

Pennsylvania - Prominent Special Needs Educational Consultant Pleads Nolo Contendere to Simple Assault on a Child in Plea Agreement

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Thomas J. Croke


Early Saturday morning, Jilliestakereceived a disturbing email regarding a prominent U.S. Special Needs educational consultant, Thomas J. Croke, owner of Thomas J. Croke Associates, Inc. DBA as Family Light in Greensburg, Pennsylvania; which in turn alerted Jilliestake staff to a comment posted on Jilliestake.




Jilliestake removed the comment post, until further investigation would confirm or disprove the allegations leveled upon Mr.Croke in the comment post. In addition, it was understood and apparent that the post’s author might have had personal motivation for revealing the aspects of a recent criminal case brought by the State of Pennsylvania against Mr. Croke.



After careful consideration, independent consultation, reading of court documents (charges, plea, and adjudication), including discussions with officials knowledgeable of all information related to the case, confirmation was provided.  

Due to the nature and ramifications (known and unknown) of this criminal case, Jilliestake, a children’s rights advocacy driven blog, made the decision to publish the following as children’s rights and safety must come first - forever ensuring child advocates give voice to those children who cannot speak.                            



Posted by Anonymous to Jillie's Take! at June 29, 2013 at 1:13 AM :





"In June of 2012, the grandson of Thomas Crokes wife, alleged that he had been sexually abused by Mr Croke, the president of Family Light of Greensburg, PA. After subsequent investigation by the Pennsylvannia State Police, Mr Croke was charged. In April of this year Mr Croke plead guilty to assault against a minor with menacing intent. He was formally sentenced this month, June of 2013. He was required to undergo psychiatric evaluation and is on two years of supervised probation. He is not allowed during that time to be alone with a minor.
You should take these facts into consideration with respect to any endorsements of Mr Croke that appear on your website."


No one should argue that due diligence and restraint is called for upon receiving this kind of information.  According to officials, this incident took place when the child (complainant) was 8 years old. The complainant is now in his 20’s.


Court documents attest to the following: 

Note: [M1] [M2] [M3] refers to the “Grading” of the indecent assault.



Mr. Croke was originally charged with two counts on April 23, 2013:

Count 1 - Ind. assault on a person less than 13 years of age - 18 § 3126 §§ A7


Count 2 - Corruption of Minors - 18 § 6301 §§ A1
 


On May 10, 2013 – Added by Information Count 3
 
Count 1 - Ind. assault on a person less than 13 years of age - 18 § 3126 §§ A7 - M1


Count 2 - Corruption of Minors - 18 § 6301 §§ A1 - M1


Count 3 - Simple Assault - 18 § 2701 §§ A3 - M2



On June 17, 2013 – Common Pleas Court of Westmoreland County PA

Counts 1 and 2 dismissed.



Mr. Croke plead Nolo Contendere to Count 3 (18 § 2701 §§ A3) which has the same immediate effect as a guilty plea. [Plea agreement to Count 3 “Simple Assault” Grade M2 – “(A3) attempts by physical menace to put another in fear of imminent serious bodily injury.”]  [1]
The Court of Common Pleas Westmoreland County PA sentenced Mr. Croke.


Order - Sentence/Penalty Imposed



“Ct. 3 Supervision for a period of 2 yrs with County; Mental health eval; Actor to have no direct/indirect contact with victim or unsupervised contact with minors; Pleading Nolo Contrendere; Cts. 1 & 2 Dismissed; Defendant permitted to travel for business with prior permission from PO.” [2] 


Officials state that since there was no physical evidence, a lengthy time frame had lapsed, no prior offenses documented (the prosecution did not have knowledge of other cases as no other child, parent, or guardian came forward over the years), the plea agreement was accepted by the Court.


Mr. Croke’s sentence satisfied the victim in this case. In addition, because the case was pleaded out to Count 3 above, Megan’s Lawdoes not apply.[3]  Mr. Croke was able to avoid having to register as a child sex offender.


Officials appear surprised that Mr. Croke earns his livelihood as an educational consultant predominantly for Special Needs children and their families.  Often situations arise that require travel to various facilities/programs to address the needs and meet with children already attending programs.Unless Mr. Croke advises the various facilities and programs he calls upon of the restrictions the court has imposed on him regarding his probation, the facilities will not be aware of the fact that by order of the court, he cannot be alone with any child under the age of 18. Non-compliance of court-ordered restrictions could endanger children enrolled at the facility/program, and expose said facility to legal damages.One would assume Mr. Croke has restructured his consulting firm, as with Skype, and hired additional educational consultants for travel issues that may arise.


Many states require a program/facility to check arrest record histories of their staff. However, educational consultant’s arrest records are not a pre-requisite – placement of a child in a residential treatment program/facility and the generation of funds created by that placement is the primary incentive.


Jilliestake does not offer moral judgment on Mr.Croke, but does takes issue with the transparency obviously lacking on the Family Light website. It is understandable why Mr. Croke is less than forthcoming, but his rhetoric is cagey at best and dishonest at worst. Readers are encouraged to look at the Family Light website, read the reasoning offered by Mr. Croke for staff not wanting to be alone with minors, and reach their own conclusion. There is no reason given for policy changes at Family Light other than “in the current climate we are increasingly uncomfortable…”


Thomas J. Croke and Associates, Inc. DBA Family Light was a member of IECA (Independent Educational Consultants Association) and utilizes facilities affiliated with trade organization NATSAP (National Association of Therapeutic Schools and Programs), which self-proclaims no oversight over their members (Miller Bill Congressional Hearings 2007 Director Jan Moss testimony). http://troubledteenindustry.com/video/natsap-jan-moss-2007-congressional-hearing .


On July 1, 2013, Jilliestake contacted Mr. Croke through a representative. Mr. Croke declined to comment or speak with Jilliestake regarding this expose’.

 
Please find pertinent information, references, footnotes, and links below.


Excerpts quoted from the Family Light website indicate policy changes.


"While we greatly regret this, in the
current climate we are increasingly uncomfortable with our consultant being an adult alone with a minor child riding in a car and otherwise being where a parent or other adult caregiver cannot observe. The vulnerability to false accusations has become an increasing concern. Therefore we need to modify this procedure when the client is a minor child. We are leaving a grace period for families already in dialog with us to proceed as we have promised, but as of June 1, 2013, we are requiring that at all times that our consultant is with your son or daughter under age 18, parent or other customary caregiver be in a location where interaction can be observed.”



"Please note: As of February 13, 2013, we are adding flexibility to our home visit procedure. In some cases, we might conduct similar meetings by Skype but not travel to your home. This adjustment is experimental and is subject to change. Not all of the information below reflects that change. What follows describes the in-person home visits accurately. Skypeand phone "home visits" will follow these procedures as closely as the situation permits. We do not believe this will be as effective as actual in-person work but will consider this alternative in selective situations. "

"Due to our policy change requiring a parent or other customary caregiver to be where their son or daughter is visible at all times, this must be modified for those under 18, but for now we continue this for clients age 18 and up. This provides a relaxed setting to discuss the young person’s basic concerns and to see how the young person views his/her role in the solution.This is a flexible routine that can be adapted as needed."

"For those under 18, we ask parents to help us come as close to the traditional "lunch out" as we can while staying with the new policy (on and after June 1, 2013). We have several alternative approaches:



PA –  TITLE 18 - Crimes and Offenses
COUNT 1 – Ind. Assault of a person under 13 years of age Grade M1 18 § 3126 §§A7
COUNT 2 – Corruption of Minors Grade M1 18 § 6301 §§A1


http://www.legis.state.pa.us/WU01/LI/LI/US/PDF/2010/0/0069..PDF

[1] COUNT 3 - Simple Assault with menace Grade M2 18 § 2701 §§A3

    http://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/18/00.027..HTM

[2] PA Westmoreland County Common Pleas Court Docket – Criminal - Public Record

    Docket Number: CP-65-CR-0001641-2013


    http://ujsportal.pacourts.us/DocketSheets/CP.aspx


Note: Grammatical errors left intact for authenticity.
More reading: "Educational Consultants for Dummies"
 
Copyright © 2013 Jilliestake -  All rights reserved.
 



 

 

BREAKING NEWS - IS ASPEN EDUCATION OWNED BY CRC HEALTH FINALLY BEGINNING TO IMPLODE?

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According to sources, it appears CRC's Aspen Education has plans to close a few of their more notorious programs for teens within the next few weeks.

In addition, it is reported that many staff members were clueless.  Hopefully, families have been informed and this will not be an instant replay of the former Hidden Lake Academy/Ridge Creek School facility closing in Georgia - only on a grander scale.

It would be helpful to inform the U.S. State Department to remove these facilities from their recommendation list for families. Apparently, CRC/Aspen Education has more clout than advocates and children with Washington

Facility programs that sources state have been flagged for closing:

  • Academy at Swift River - Massachusetts
  • Talisman - North Carolina
  • Stone Mountain - North Carolina
  • SUWS of Idaho
  • Adirondeck Leadership - Upstate N.Y.

Although we applaud CRC Health/Aspen Education on their purported decision, if true, sadly, Cooper Canyon and Island View do not appear on the list - along with the rest of the lot.  One can dream.

UPDATE : CONFIRMATION OF CLOSINGS
http://www.strugglingteens.com/artman/publish/AspenEducationGroupBN_130710.shtml

 

Malala Yousafzai - Delivers a Special Speech at the United Nations on her 16th birthday! [Entire Video]

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Malala Yousafzai, is a Pakistani teenager who was shot by cowardly, pathetic, inhumane Taliban fighters. Nearly killed for advocating education and the right of girls to attend school, Malala Yousafzai emerges victorious in mind, body, and spirit as she addresses the U.N. Youth Assembly in New York.
 

ASPIRO GROUP, INC. JUGULAR EXPOSED IN ITS LAWSUIT FILED AGAINST FORMER PRESIDENT AND CO-OWNER…

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…EXACTLY WHAT WAS THE BOARD OF DIRECTORS THINKING ALL THESE YEARS? APPARENTLY, THERE WAS A LACK OF CRANIAL ACTIVITY...




Salt Lake County, Utah -  August 10, 2013

On May 03, 2013, according to court records, Aspiro Group, Inc.
filed a lawsuit (case # 130903097) against former President, CEO,
board member, and co-owner Mr. Charles Randall Oakley.
Aspiro Group, Inc. owns Aspiro Adventure Wilderness,
Vantage Point Wilderness, and their newest venture, Pure Life in Costa Rica.

The plaintiff, Aspiro Group, Inc. asked for relief  to recoup over
$1,000,000.00 and treble damages…

WHILE THE BOARD WAS SLEEPING:

Aspiro’s complaint cited scandalous, egregious allegations of misconduct, conspiracy, misappropriation of funds, and mismanagement of company funds (cooked books). The filing appears to read like a sordid tale with endless possibilities including embezzlement, extortion, and blackmail; implications of possible tax fraud/tax evasion regarding several players are quite apparent. Who knew?

The lawsuit maintains that Mr. Oakley used company funds to the tune of $50,000.00 to pay a “Swingers Club.” What would Draper, Utah be without their "Swingers Clubs?" [1] Lace this soap opera with adultery, well, Hollywood could not have  wished for a better screenplay –“Divorce Aspiro Style.”

Seriously, Aspiro funds a five-month holiday for the betrayed husband costing Aspiro over $90,000.00 plus bonus (according to the complaint) and the Board does not know? One is reminded of the famous Abbott and Costello comedy sketch, “Who’s on First?” “I don’t know…”

It appears the Board’s cranial activity resumed; the Board
fired Mr. Oakley and the alleged, betrayed husband on
February 1, 2013.

Additionally, when the Board awoke from their five-year slumber party, Aspiro’s complaint states they procured services  from a forensic computer expert.  The complaint goes on to allege that the computer expert determined that a laptop’s hard-drive was cleansed three hours  prior to Mr. Oakley returning the laptop to Aspiro.

Sources reveal that Mr. Brian Church, President, co-owner, and co-founder was less than transparent with  educational consultants about Mr. Oakley’s sudden departure from Aspiro.  Additionally, sources state Admissions Director Mr. Joshua Watson  hinted something was askew or clandestine regarding Mr. Oakley’s departure, but did not elaborate further… Who could blame them?

According to the court filing, the Board’s repeated requests for financial reports and  accountability fell on Mr. Oakley’s deaf ears since 2008. In or around 2009, the IRS slapped Aspiro with an invoice for over $100,000.00, since Aspiro had failed to pay any State or  Federal employment taxes for at least a year; the IRS was seeking payment of all back taxes, fees and penalties. The complaint states Mr. Oakley never communicated this to the Board.

QUESTION:

Exactly who was minding and mentoring the children in Aspiro’s care? According to the complaint:

 •"Oakley was aware that Aspiro’s business is specifically dependent upon its reputation for helping individuals struggling with family relationships and impulse control, among other things."

OUTCOME:

What remains even more shocking, well not really, on July 16, 2013 court documents reveal the lawsuit was dismissed with prejudice, barring Aspiro, the plaintiff, from filing another case on the same claim. Why? To say the criminal allegations leveled against Mr. Oakley were severe is an understatement. At this writing, there does not appear to be criminal charges filed against Mr. Oakley by the D.A., nor does there appear to be a counter lawsuit filed by Mr. Oakley. Again, the question "why" remains unanswered.[2]

By filing this complaint, indeed, Aspiro has exposed its jugular regarding company liability under state and federal laws as stated in Aspiro’s own complaint several times over:

•"Oakley received the funds, but failed to provide the proper services to Aspiro. Rather, he caused Aspiro spend funds for non-business related purposes and exposed Aspiro to liability under state and federal law."

•"Oakley owed a fiduciary duty to act in Aspiro’s best interest and not expose Aspiro to liability under federal or state law."

If the IRS can pull themselves away from their own insanity, here is one apparent case of cooked books and then some.

Aspiro Group, Inc. was not contacted for comment, as Jilliestake did not wish to further embarrass the Board; the Board’s clear lack of governance took care of that. Although, Jilliestake does welcome their take, let us be grateful the Board is not minding our stores.

And, that's our take... what is yours?

Copyright©jilliestake 2013.  All rights reserved.

Please view "Complaint" below.


REFERENCE LINKS:

ASPIRO GROUP, INC. – ASPIRO PROGRAMS
http://www.aspiroprograms.com/

[1] DRAPER, UTAH – EYEWITNESS NEWS INVESTIGATION – “SWINGERS”
 http://www.ksl.com/?nid=148&sid=254254

[2[DISMISSED WITH PREJUDICE LAW AND LEGAL DEFINITION
 http://definitions.uslegal.com/d/dismissed-with-prejudice/

3RD DISTRICT COURT - SALT LAKE
SALT LAKE COUNTY, STATE OF UTAH
ASPIRO GROUP INC vs. CHARLES RANDALL OAKLEY
CASE NUMBER 130903097 Miscellaneous
CURRENT ASSIGNED JUDGE
JUDITH S ATHERTON
PARTIES
Plaintiff - ASPIRO GROUP INC
Represented by: SCOTT M PETERSEN
Defendant - CHARLES RANDALL OAKLEY
ACCOUNT SUMMARY
TOTAL REVENUE Amount Due: 615.75
Amount Paid: 615.75
Credit: 0.00
Balance: 0.00
REVENUE DETAIL - TYPE: COMPLAINT - NO AMT S
Amount Due: 360.00
Amount Paid: 360.00
Amount Credit: 0.00
Balance: 0.00
REVENUE DETAIL - TYPE: JURY DEMAND - CIVIL
Amount Due: 250.00
Amount Paid: 250.00
Amount Credit: 0.00
Balance: 0.00
REVENUE DETAIL - TYPE: COPY FEE
Amount Due: 5.75
Amount Paid: 5.75
Amount Credit: 0.00
Balance: 0.00
PROCEEDINGS
05-03-13 Filed: Complaint
05-03-13 Case filed
05-03-13 Fee Account created Total Due: 360.00
05-03-13 Fee Account created Total Due: 250.00
Page 1
CASE NUMBER 130903097 Miscellaneous
05-03-13 COMPLAINT - NO AMT S Payment Received: 360.00
05-03-13 Judge JUDITH S ATHERTON assigned.
05-03-13 JURY DEMAND - CIVIL Payment Received: 250.00
05-10-13 Filed: Summons - To File (Charles Randall Oakley)
05-10-13 Filed return: Acceptance of Service (Charles Randall Oakley)
upon H. BURT RINGWOOD for
Party Served: CHARLES RANDALL OAKLEY
Service Type: Personal
Service Date: May 08, 2013
06-04-13 Fee Account created Total Due: 5.75
06-04-13 COPY FEE Payment Received: 5.75
07-15-13 Filed: Notice of Dismissal with Prejudice
07-15-13 Filed: Return of Electronic Notification
07-16-13 Case Disposition is Dismsd w prejudice
Disposition Judge is JUDITH S ATHERTON
Page 2

UTAH COURT DOCUMENTS - CASE NUMBER 130903097 -

The entire complaint may be accessed at the below link. There is a charge for access.The document below was digitally uploaded, converted from PDF format to allow for posting, thus loss of format control. Administrative court lists author as
"Mcnett" omitted  - Case No: and Judge's name.**

https://courtapps.utcourts.gov/XchangeWEB/login

THE COMPLAINT:

Scott M. Petersen, A7599
 Clint R. Hansen, A12108
 FABIAN & CLENDENIN,
 A Professional Corporation
 215 South State Street, Suite 1200
 Salt Lake City, Utah 84111-2323
 Telephone: (801) 531-8900spetersen@fabianlaw.com
chansen@fabianlaw.comAttorneys for Plaintiff Aspiro Group, Inc.

IN THE THIRD JUDICIAL DISTRICT COURT

   SALT LAKE COUNTY, STATE OF UTAH



ASPIRO GROUP, INC.,                         COMPLAINT

                                                     Case no. left blank by court adm.**
Plaintiff,       
 v.                                                 Judge: Left blank by court adm.**

CHARLES RANDALL OAKLEY,

Defendant


Now comes Aspiro Group, Inc. (“Aspiro”) and for complaint alleges against Defendant Charles Randall Oakley (“Oakley”) as follows:

PARTIES AND JURISDICTION

1.                  Aspiro is a Utah Corporation with its principle place of business in Sandy, Utah.
2.                  Oakley is an individual residing in Salt Lake County, Utah.
3.                  Jurisdiction is proper pursuant to Utah Code Ann. § 78A-5-102.
4.                  Venue is proper in this Court pursuant to Utah Code Ann. § 78B-3-307.

 FACTUAL BACKGROUND

5.                  Aspiro is a company that provides adolescent and young adult therapeutic wilderness programs. Programs are designed to help troubled teenagers
between the ages of 13 and 18 as well as young adults between the ages of 18 and 28.
6.                  Aspiro’s programs help teens and young adults suffering from problems relating to, among other conditions, ADHD, anger management, depression,
family relationships, impulse control, and substance abuse.
7.                  Aspiro’s business is dependent upon maintaining the highest level of professional and personal integrity and the cleanest values, such as those it seeks
to inspire in the lives of its participants.
8.                  In or around 2008, Aspiro hired Oakley as its President and Chief Executive Officer. As president and CEO, Aspiro entrusted in Oakley the
management and control of Aspiro, its business, affairs and property.
9.                  As President and CEO Oakley oversaw Aspiro’s hiring, training, and compensation of its employees.  He oversaw Aspiro’s bank accounts and
property, both real and personal.
10.              Oakley was in large respect the face of Aspiro to its clients and vendors, and he maintained control over its operations and the use of its funds.  Aspiro
placed its trust and confidence in Oakley, allowed him access to all of its financial information, and relied on him to oversee and create an accurate financial record.
11.              In return, Oakley was paid a salary by Aspiro, bonuses as approved by Aspiro’s board of directors, and reimbursement for reasonable company-
related expenses.
 12.              At all times relevant, Aspiro’s board of directors was comprised of four directors, Oakley, Brian Church, Chris McRoberts, and Andy Bayola (the
“Board”).
 13.              Throughout Oakley’s time as President and CEO of Aspiro, various Board members requested updates from Oakley regarding Aspiro’s business
direction, financial status, and accounting.
14.              Oakley either refused to provide the Board with the requested information, or the information he did provide was incomplete or misleading.  Often,
Oakley would accuse the Board of not trusting him and of attempting to interfere with his management and operation of the business.

 OAKLEY’S MISAPPROPRIATION & MISMANAGEMENT OF COMPANY FUNDS

15.              Unbeknownst to the Board, almost from the outset, Oakley engaged in conduct which was financially damaging to Aspiro’s business, was damaging to
Aspiro’s reputation, and was directly contrary to the integrity and values that Aspiro stands for.
16.              Among other things, Oakley used company funds for his own personal benefit and not for the benefit of Aspiro.
17.              For example, Oakley regularly used Aspiro’s credit card to pay for lunches, dinners, clothes, car expenses and other purchases for himself and his
friends.  From 2010-2012, Oakley submitted over $185,000 in expenses that he instructed Aspiro employees to reimburse him. In addition, however, during this
same time period, Oakley spent over $350,000 of Aspiro’s funds for himself and others, much of which was not company related or related to company business.
18.              The company credit card was only a fraction of the expenses that Oakley caused Aspiro to pay for him or his family and friends. In addition to these
expenses, Oakley caused Aspiro to pay for many other non-business related items, including but not limited to:

a.                   A payment of $150,000 for the purchase of a home in the gated Pepperwood neighborhood located in Sandy, Utah in the name of Oakley’s
parents,
b.                  $54,000 in payments to Oakley’s parents for a home in Riverton, Utah,
c.                   A $12,000 loan to Oakley’s neighbor,
d.                  A $50,000 payment to a swingers club with a location in Draper, Utah,
e.                   $11,547.02 in payments for remodeling a home in Riverton, Utah,

f.                   Payments totaling at least $28,017.37 for personal trips Oakley took with friends to New York, Napa Valley, Hawaii, and Los Cabos,
g.                  $346,910.00 in payments to entities in which Oakley had a direct or indirect interest or benefit and for which Aspiro received no appreciable value in
return, whether for product or services,
h.                  $30,000 in payments to Marney Sullivan for consulting services that Aspiro never actually received , provided little benefit, or were otherwise not
business related services,
i.                    Payments of salary and other expenses to Oakley’s then-wife, Christina Oakley, who had already terminated her employment with Aspiro, and
 j.                   Other non-business related services, including but not limited to yard care and landscaping services for his homes, equipment for out-door activities,
artwork, furniture, house décor, an automobile for Oakley’s son, loans and assistance to employees and friends, etc.

19.              Aspiro believes that the vast majority of the above expenses Oakley caused Aspiro to make for his benefit or for the benefit of others, were unrelated
to any actual Aspiro business purpose and that Aspiro received little or nothing of value in return for the payments.

20.              At no time did Oakley report these expenses to the Board. And when individual Board members demanded an accounting of the expenses the
company was paying, Oakley simply refused to provide the financial information.

21.              Oakley further caused Aspiro to enter into agreements and engage in transactions which were not approved by the Board and which harmed Aspiro.
These included, among others: promising a newly hired therapist 3% “phantom stock” in Aspiro without board approval.

 OAKLEY CONCEALS HIS MISCONDUCT

22.              Throughout his tenure as Aspiro’s President and Chief Executive Officer, Oakley took active steps to conceal his misconduct from the Board.
23.              Oakley himself kept or oversaw the keeping of Aspiro’s accounting records, and generally failed to include any description of the transactions
recorded or any supporting documentation.  For example:

a.                   the $150,000 payment for Oakley’s Pepperwood home was documented simply as “Company Development,” with no description of the
transaction;
 b.                  the $12,000 loan to Oakley’s neighbor was documented simply as “Remodel;” and
c.                   a credit card charge of $7,000 for Oakley’s trip with friends to an adult- themed resort in Los Cabos was recorded on the expense account titled
“Lodging” with “Los Cabos” as the only description.

24.              Oakley maintained various Aspiro bank accounts, but refused to allow anyone but himself to have access to those accounts.
25.              The Board and other officers were not aware of many of the bank accounts that Oakley established, and Aspiro believes at least some of them listed
Oakley as the sole authorized officer and signatory for some or all of the relevant time period.
26.              Oakley also caused Aspiro’s corporate offices to be maintained in his own private residence.
27.              He controlled who entered and exited the office and did not allow the Board access to much of Aspiro’s company records and information.
28.              In or around 2009, Oakley was notified by the IRS that Aspiro had failed to pay any State or Federal employment taxes for at least a year, and that
the IRS was seeking payment of all back taxes, fees and penalties.
29.              Although the amount in issue exceeded $100,000, Oakley never communicated this information to the Board.
30.              In 2008, Oakley provided financial statements which showed a small profit in the company.
 31.              In fact, the company was severely in debt at the time due to the non-payment of
taxes.
32.              At one point, Board member Chris McRoberts raised at a Board meeting the need for an audit of Aspiro’s books.
33.              Oakley angrily told McRoberts that if the issue of an audit was pressed, he would discontinue all future Board meetings.
34.              In or around November of 2009 or the beginning of 2010, McRoberts attempted to access Aspiro’s QuickBooks accounting files. After successfully
logging on one or two times, McRoberts’ access was blocked.
35.              In or around the second quarter of 2012, the other Board members requested financial information from Oakley, but Oakley intentionally lied and
informed them that new accounting software was coming on line and that no financial data was available while the transition was happening, when he knew that in
fact the information was readily available in the old QuickBooks software.
36.              In or around the third quarter of 2012, Oakley informed the Board that the Aspiro had no funds for distribution, which in fact the company did have
funds and Oakley made a distribution to himself.

 OAKLEY HIRES KEITH PEARSON

37.              In or around February 2012, Oakley hired Keith Pearson as Aspiro’s Chief Operations Officer and Chief Financial Officer. Oakley’s decision to hire
Pearson and make him an officer of Aspiro was not approved by the Board. In fact, until Pearson’s termination from Aspiro on February 1, 2013, the Board was
unaware of Keith’s status as an officer.
38.              At the time Oakley hired Pearson, he caused Aspiro to enter into a written employment agreement with Pearson. Oakley did not negotiate any
meaningful terms favorable to Aspiro, but rather allowed Pearson to add terms very favorable to Pearson, including an unreasonably high severance and benefits
package and termination terms that purport to bind Aspiro to paying Pearson approximately $168,240 in the event of a termination.
39.              Oakley did not seek Board authority to cause Aspiro to enter into this transaction. In fact, he did not even tell the Board that the agreement existed.
Moreover, Oakley sought no legal or other professional advice before executing the agreement on Aspiro’s behalf.
40.              In addition to the employment agreement Oakley executed with Pearson, Oakley engaged in other inappropriate acts on behalf of Aspiro for
Pearson’s benefit. These acts include but are not limited to:

a.       Oakley conspired with Pearson to report to lending institutions incorrect salary and compensation information for Pearson in an effort to increase the amount
of home loan for which Pearson would qualify for his home,
b.      Oakley caused Aspiro to purchase a Chevy Volt that Pearson owned in order to decrease the amount of debt to income ratio for Pearson,
c.       Oakley caused Aspiro to pay for yard care for Pearson’s home,
d.      Oakley caused Aspiro to pay for carpet cleaning for Pearson’s home,
e.       Oakley causes Aspiro to pay at least $4,500 as a down payment on a 2013 Cadillac for Pearson’s use, and
f.       Oakley caused Aspiro to invest $72,700.00 in a company called Kuna, Inc., a Nevada corporation (dba Kiva Squared) in which Oakley and Pearson were
the owners and officers and for which Aspiro received nothing of value in return.
41.              Oakley performed all of these acts without Board knowledge or approval.
42.              In fact, Oakley made conscious efforts to keep his behavior from the Board by, among other things, refusing to report to the Board what he was doing
with Aspiro funds, causing Aspiro to mask the true purpose of Aspiro expenses by making false and incorrect entries into its books and financial records.
43.              For example, Oakley documented the payoff the Chevy Volt without any payee or any description of the transaction and recorded it in the
Quickbooks expense account titled “Development and Research.”
44.              Oakley performed these acts to benefit himself and his friends and to the detriment of Aspiro.

 OAKLEY HIRES KEITH’S WIFE LAURA PEARSON

45.              In addition to Keith Pearson, Oakley hired Keith’s wife Laura Pearson as an executive assistant to Oakley.  Aspiro had other assistants with similar
positions, but Oakley intentionally provided Laura with more pay and benefits than he did the other assistants.
 46.              Moreover, at some point, he became sexually involved with Laura despite Laura reporting to Oakley as her boss and despite the fact that she was
married to Aspiro’s CFO, Keith Pearson.
47.              Oakley’s relationship with an Aspiro subordinate exposed Aspiro to liability under state and federal discrimination and harassment laws. 
Nevertheless, Oakley did not immediately disclose his relationship with Laura to the Board, but continued to keep Laura as his executive assistant. He further
continued to provide her benefits other assistants did not receive and he paid for those benefits with Aspiro funds.
48.              Among the benefits Oakley provided Laura were dinners, lunches, personal items, and trips with Oakley, all paid for by Aspiro.
 OAKLEY SENDS KEITH PEARSON TO NEPAL FOR 5 MONTHS
49.                At some point during Oakley’s relationship with Laura Pearson, Laura’s husband Keith became aware of the relationship. Thereafter, Oakley caused
Aspiro to pay additional non- business related expenses to Laura and Keith with Aspiro funds.
50.              On information and belief, Oakley caused Aspiro to pay these non-business related expenses in order to placate Keith Pearson because of Oakley’s
relationship with Keith’s wife Laura.
51.              In the Summer/Fall of 2012, Oakley caused Aspiro to pay for Keith to take a personal trip to Nepal lasting five months. The purpose of Keith’s trip
was not related to Aspiro, its business purpose or Keith’s role as CFO or COO. Rather, Keith used the trip as a personal
journey to seek emotional and mental stability for himself and to make decisions relating to his relationship with his wife Laura Pearson.
52.              In fact, at one point, Keith wrote an e-mail to Oakley indicating that he was not sure he would return to Aspiro when he was done with his trip.
53.              Notwithstanding, Oakley caused Aspiro not only to pay for Keith’s expenses, but to continue paying his salary and benefits, despite the fact that Keith
was not in the United States and was not performing any work for Aspiro.
54.              After Keith went to Nepal, his wife Laura Pearson moved in with Oakley in his Pepperwood home.
55.              Oakley caused Aspiro to pay at least $90,756.63 for Keith’s trip expenses, salary, and benefits during Keith’s five-month trip to Nepal. In fact, at
one point, Oakley intentionally caused Aspiro to pay Keith a $12,000 bonus while he was in Nepal, despite the fact that Keith was providing no CFO or COO
services to Aspiro.

 OAKLEY’S TERMINATION

56.              On February 1, 2013, Aspiro’s Board removed Oakley and Keith as officers and terminated them from the company.
57.              At the same time, Aspiro demanded that Oakley return to Aspiro the company information, documents, electronic files, and property he possessed
and controlled in the office he had in his Pepperwood home. Aspiro knew that much of this information was located on at least two computers in Oakley’s
possession. Despite multiple requests, Oakley refused to return the property or the computers.
58.              Thereafter, on February 5, 2013, Oakley returned one of the laptop computers. Aspiro had the laptop reviewed and analyzed by a retained computer
and digital forensics expert. The expert reported that three hours prior to returning the computer, Oakley permanently deleted (using a multiple-layer wipe) the
information from the computer’s hard drive.  The expert explained that due to the manner in which the hard drive was wiped, retrieving anything from the hard drive
would be, if not impossible, extremely difficult and expensive.

59.              Thereafter, on February 26, 2013, Aspiro sent Oakley (through counsel) a letter demanding additional specific pieces of property and information in
Oakley’s possession and control.  Oakley has failed or refused to return any of the requested information or respond to Aspiro’s demand.
60.              After terminating Oakley, the Board was finally able to access the company’s financial records that Oakley had kept so closely hidden.
61.              Thereafter, through counsel, Aspiro engaged a forensic accountant and learned for the first time of Oakley’s significant misconduct, as detailed above.

 FIRST CLAIM FOR RELIEF

 (Breach of Contract)

62.              Aspiro incorporates the allegations in the preceding paragraphs as if fully set forth herein.
63.              Aspiro hired Oakley as its President and CEO. It paid him salary and draws in exchange for his services as President and CEO. This arrangement
constitutes a valid, enforceable contract.
64.              Aspiro fully performed its obligations with respect to Oakley by paying him his salary, draws, and other benefits.
65.              Oakley breached his obligations to perform the duties of President and CEO as alleged above by using Aspiro funds for inappropriate purposes
benefitting himself, his family and friends, and not for legitimate business purposes, by exposing Aspiro to legal liability due to his inappropriate behavior with other
employees, and by failing and refusing to return to Aspiro company property and information in his possession or control.
66.              Oakley’s breach of his obligations has caused Aspiro to suffer damages to be determined at trial, but exceeding $1,000,000.
67.              Oakley’s breach has further exposed Aspiro to potential liability under state and federal discrimination laws, and tax laws, including penalties, interest,
costs, and attorney fees, all in an amount to be proven hereafter.

SECOND CLAIM FOR RELIEF

 (Unjust Enrichment)

1.                  Aspiro incorporates the allegations in the preceding paragraphs as if fully set forth herein.
2.                  Aspiro conferred a benefit on Oakley inasmuch as it paid him salary and benefits for his services as President and CEO of Aspiro.
3.                  Oakley received the funds, but failed to provide the proper servicesto Aspiro. Rather, he caused Aspiro spend funds for non-business related
purposes and exposed Aspiro to liability under state and federal law.
4.                  Under the circumstances, it would be unjust for Oakley to retain the salary and benefits he received without returning to Aspiro the value of the
services for which he was compensated.
5.                  Due to Oakley’s unjust enrichment, Aspiro has suffered damages to be determined at trial, plus accruing interest, costs, and attorney fees.
6.                  Aspiro is also entitled to a constructive trust in the salary and other benefits unjustly retained by Oakley and in all of the non-business related property
which Oakley caused to be purchased with Aspiro funds.

 THIRD CLAIM FOR RELIEF

 (Breach of Implied Covenant of Good Faith and Fair Dealing)

7.                  Aspiro incorporates the allegations in the preceding paragraphs as if fully set forth herein.
8.                  As acting president and CEO of Aspiro and in his employment capacity with Aspiro, Oakley owed an implied duty of good faith and fair dealing to
Aspiro.
9.                  This duty required among others, that Oakley affirmatively and truthfully represent all material facts, deal fairly with Aspiro and its shareholders, and
conduct his duties to the Company and its shareholders in the utmost good faith.
10.              Oakley breached his fiduciary duties to Aspiro and its shareholders, and continues to breach his fiduciary duties to Aspiro and its shareholders by,
among other things:
a.       failing to return to Aspiro its property and information;
b.      failing to be truthful in his reports to Aspiro’s Board and in documenting the purpose for Aspiro’s payment of expenses for Oakley’s benefit and the benefit
of his friends and family; and
c.       engaging in conduct, and causing Aspiro to engage in conduct, which damaged Aspiro’s business reputation and was contrary to the company’s core values.
11.              Oakley has done this with the explicit purpose of benefitting himself and to damage Aspiro.
12.              Such breaches by Oakley proximately caused damage or injury to Aspiro in an amount to be proven at trial, together with applicable interest, costs
and attorney fees.

 FOURTH CLAIM FOR RELIEF

 (Breach of Fiduciary Duty)

13.              Aspiro incorporates the allegations in the preceding paragraphs as if fully set forth herein.
14.              Aspiro entrusted Oakley with complete control over all if is employees and management, including its bookkeeping and financial records.
15.              Aspiro entrusted Oakley to act as its agent in using its funds and interacting with its employees.
16.              Pursuant to, among other facts, the trust that was placed in Oakley as its President and CEO, Oakley owed a fiduciary duty to Aspiro not to engage in
acts or do anything that would cause Aspiro harm.  Oakley owed a fiduciary duty to act in Aspiro’s best interest and not expose Aspiro to liability under federal or
state law.
17.              Oakley owed a duty to disclose material financial and liability information to Aspiro’s Board, to maintain accurate and complete records of Aspiro’s
finances, to make only authorized payments, and to implement reasonable, necessary and adequate control functions.
18.              Oakley breached his fiduciary duty to Aspiro by, among other things:

a.       Causing Aspiro to make unauthorized payments and purchases for non-business purposes and for the benefit of Oakley, his friends and family;
b.      Failing to properly record payments in Aspiro’s financial records;
c.       Entering into contracts with employees without approval, legal counsel, and to the detriment of Aspiro;
d.      Failing to disclose to the Board the unauthorized expenditures by Aspiro;
e.       Materially misrepresenting Aspiro’s liabilities in reports to the Board;
f.       Knowingly keeping inaccurate and incomplete accounting records;
g.      Failing to return to Aspiro its property and information as requested;
h.      Engaging in conduct, and causing Aspiro to engage in conduct, which damaged Aspiro’s business reputation and was contrary to the company’s core values;
and
i.        Such other and further breaches as may be proven hereafter.

19.              As a direct and proximate result of the above breaches, Aspiro has suffered and continues to suffer damages in an amount to be proven hereafter.
20.              Furthermore, Oakley’s breaches were willful and/or in reckless disregard of Aspiro’s rights and interests. As a result, Aspiro is entitled to punitive
damages in an amount to be proven at trial.
21.              Aspiro is also entitled to a complete and accurate accounting of Oakley’s use of Aspiro funds.

 FIFTH CLAIM FOR RELIEF

 (Breach of Duty of Loyalty)

22.              Aspiro incorporates the allegations in the preceding paragraphs as if fully set forth herein.
23.              While in the capacity of Aspiro’s President and CEO, Oakley owed Aspiro a duty of loyalty which required, among other things, that he use his
ingenuity, influence, and energy, to preserve and enhance the property and earning power of the corporation, even if the interests of the corporation are in conflict
with his own personal interests.
24.              The duty of loyalty also required Oakley refrain from activity that would harm or injure Apiro, including among other things, that he refrain from
misappropriating Aspiro assets and income.
25.              Oakley breached his duty of loyalty to Aspiro by engaging in, among other things, the following:

a.                   Causing Aspiro to make unauthorized payments and purchases for non-business purposes and for the benefit of Oakley, his friends and family;
b.                  Failing to properly record payments in Aspiro’s financial records;
c.                   Entering into contracts with employees without approval, legal counsel, and to the detriment of Aspiro;
d.                  Failing to disclose to the Board the unauthorized expenditures by Aspiro;
e.                   Materially misrepresenting Aspiro’s liabilities in reports to the Board;
f.                   Knowingly keeping inaccurate and incomplete accounting records;
g.                  Failing to return to Aspiro its property and information as requested.
h.                  Engaging in conduct, and causing Aspiro to engage in conduct, which damaged Aspiro’s business reputation and was contrary to the company’s core
values; and
i.                    Such other and further breaches as may be proven hereafter.

26.              As a direct and proximate cause of Oakley’s breaches, Aspiro has been damaged in an amount to be proven at trial.
27.              Furthermore, Oakley’s breach was willful and/or in reckless disregard of Apiro’s rights and interests. As a result, Aspiro is entitled to punitive
damages in an amount to be proven at trial.

 SIXTH CLAIM FOR RELIEF

 (Conversion)

28.              Aspiro incorporates the allegations in the preceding paragraphs as if fully set forth herein.
29.              As alleged in detail above, Oakley has intentionally converted to his own use and gain money and assets of Aspiro, inconsistent with Aspiro’s rights of
use and possession.
30.              Such conversion was done without Aspiro’s authorization or lawful justification.
31.              As a direct result of Oakley’s conversion, Aspiro is entitled to recover the full value of the converted money and assets, in an amount to be determined
at trial.
32.              Furthermore, Oakley’s conversion was willful and/or in reckless disregard of Aspiro’s rights and interests. As a result, Aspiro is entitled to punitive
damages against Oakley in an amount to be proven at trial.
33.              In addition, as Oakley continues to possess or control Aspiro property and information, the Court should issue an injunction requiring Oakley (1) to
preserve Aspiro property and information and (2) to return its property and information to Aspiro immediately.

 SEVENTH CLAIM FOR RELIEF

 (Fraud and/or Negligent Misrepresentation)

34.              Aspiro incorporates the allegations in the preceding paragraphs as if fully set forth herein.
35.              Oakley made representations of material fact to Aspiro and its Board in connection with the misappropriation of Aspiro money and assets. These
representations include, but are not limited to, his false, misleading and/or incorrect entries into its Aspiro’s books and financial records, and those other facts set
forth above.
36.              Oakley’s representations as described above were untrue when they were made, were known by Oakley to be untrue when they were made, were
made with reckless disregard for their truth or falsity, or were made without reasonable grounds or basis for Oakley to believe them to be true.
37.              Oakley’s representations were made for the purpose of covering up his misappropriation of money and assets and the exposure of liability to Aspiro
that Oakley caused through his inappropriate and illegal acts.
38.              Aspiro and its Board, acting reasonably, and in ignorance of the falsity of Oakley’s representations, relied on the representations in, among other
things: continuing to pay Oakley his salary and benefits and continuing to entrust in him the management of Aspiro, its employees, income, assets and finances.
39.              Aspiro has suffered, and continues to suffer damages as a proximate result of Oakley’s negligent or fraudulent misrepresentations of material fact.
40.              Furthermore, Oakley’s misrepresentations were made in willful and/or in reckless disregard of the truth or of Aspiro’s rights and interests. As a result,
Aspiro is entitled to punitive damages in an amount to be proven at trial.

 EIGHTH CLAIM FOR RELIEF

 (Fraudulent Concealment)

41.              Aspiro incorporates the allegations in the preceding paragraphs as if fully set forth herein.
42.              While in the capacity of Aspiro’s President and CEO, Oakley had a duty to disclose to the Board material facts regarding Aspiro’s business, including
among other things, material facts relating to Aspiro’s finances, the use of Aspiro’s funds, the hiring of new officers, and Aspiro’s entry into significant contracts.
43.              Oakley also owed a duty to disclose to the Board his knowledge of any activity that could harm or injure Aspiro, including among other things, any
misappropriation of Aspiro assets and any activity that could expose Aspiro to liability under state and federal discrimination and harassment laws.
44.              Oakley had a duty to disclose the true nature of the financial transactions Aspiro was engaging in.
45.              Oakley had a duty to disclose any significant financial concerns, including the IRS’s demand for unpaid employment taxes.
46.              Oakley had knowledge of the facts set forth above, but intentionally failed to disclose them to the Board.
47.              Aspiro has suffered, and continues to suffer damages as a proximate result of Oakley’s failure to disclose these material facts.
48.              Furthermore, Oakley took active steps, as described above, to conceal these material facts from Aspiro and its Board, going so far as to wipe the
hard drive of his computer clean before turning it over to the Board. As a result, Aspiro is entitled to punitive damages in an amount to be proven at trial.

 NINTH CLAIM FOR RELIEF

 (Intentional and/or Negligent Interference With Prospective Business)

49.              Aspiro incorporates the allegations in the preceding paragraphs as if fully set forth herein.
50.              Oakley was aware that Aspiro’s business is dependent upon its reputation for integrity and honest values.
51.              Oakley was aware that Aspiro’s business is specifically dependent upon its reputation for helping individuals struggling with family relationships and
impulse control, among other things.
52.              Oakley’s conduct, as set forth herein, has damaged Aspiro’s business reputation and interfered with its ability to solicit new clients.
53.              Aspiro has suffered, and continues to suffer damages as a proximate result of Oakley’s conduct described herein.

WHEREFORE, Aspiro demands the following relief;

A.                For an award of actual and consequential damages to be determined at trial, but exceeding $1,000,000.00 plus prejudgment interest;
B.                 For an award of treble damages pursuant to Utah Code Ann. § 76-6-412(2) based on Oakley’s conversion of Aspiro property and assests;
C.                 For an award of punitive damages based on Oakley’s willful and wanton behavior to Aspiro;
D.                For an order requiring Oakley to return to Aspiro its property and information in Oakley’s possession and control;
E.                 For an order establishing constructive trust in the non-business related property that Oakley caused to be purchased with Aspiro’s money;
F.                  For an order enjoining Oakley from destroying or deleting Aspiro information or misappropriating Aspiro trade secrets;
G.                For an order requiring Oakley to provide an accounting of his use of Aspiro funds;
H.                For an award of attorney fees and costs associated with bringing this action as may be provided for by law; and
I.                   For an award of such other and further relief as the Court deems just and equitable.

 JURY TRIAL DEMAND

Pursuant to the Utah Rules of Civil Procedure, plaintiff demands trial by jury.
DATED this 3rd day of May 2013.


/s/ Scott M. Petersen_______________
 Scott M. Petersen
 Clint R. Hansen
 FABIAN & CLENDENIN,
 A Professional Corporation
 Attorneys for Aspiro Group, Inc.

4816-5413-5827, v. 1
https://courtapps.utcourts.gov/XchangeWEB/login




 

A BALBOA PRESS SURVIVOR'S LIVING NIGHTMARE VIA AUTHOR SOLUTIONS, INC. MANAGEMENT SERVICES AND FACADE

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An expose' of how an author unwittingly becomes entrenched in unnecessary, unwarranted, unprofessional muck offered up by Author Solutions, Inc.'s (now under Penguin Random) management of Balboa Press, a division of Hay House.


INTRO

If an author is choosing to go the route of self-publishing their book through a vanity press imprint or print on demand (POD) publisher, it is not an option for those authors whose core values include integrity. Otherwise, the author might find oneself cast into a Rod Serling adventure, sullied in a total set of rules that are inherently foreign to the author.

For first time authors, the publishing industry is complicated enough to navigate, so procuring services from a seasoned vanity press publisher appears a viable option to undertake. However, procuring services from a vanity publisher, in this case Balboa Press/Author Solutions, Inc., does not negate the fact that you will continue to do all the work; after all, it is yourbaby. In addition, the author will need to correct all of the mistakes of the publisher’s staff, as oversight appears virtually negligent at best, in each of the multitude of departments.

Blog authors and industry professionals repeatedly request that the Justice Department and the FBI launch an investigation into the self-publishing monopoly; so far, it appears those requests have been ignored - no surprise there. To file a civil lawsuit, the cost is exorbitant. One recent quote was given at a minimum $25,000.00. - for starters.

For those authors that have unfortunately tasted apparent misrepresentations, lack of transparency, malfeasance, fraud, bait and switch, failed professional services, ineptitude, and reported egregious mishandling of royalties inherent in the vanity publishing adventure - you have an enormous group of brethren... For new authors debating on using a vanity press publisher, this is for you.

Self-publishing is a booming industry as new authors feed the bank accounts of vanity presses most undeserving of the author's talent, blood, sweat, and tears. Authors need to fight back; take control of their precious work - their book.

Independently publish your book. If you cannot fulfill all that is required to get your book ready to independently publish, there are a myriad of book consultants, designers, and illustrators that are knowledgeable, creative, and honest. These individuals will guide you through the publishing process for a reasonable fee, until you take your book live. Network! Do your research and Google “self-publishing complaints and fraud."

If we cannot find remedy in the justice system, we can be victorious by taking our work back, our pride, and drying up the self-publishing conglomerates' financial resources - authors that are plebes to this horrific industry.

An industry with no apparent accountability, which blames their own unscrupulous deeds on “visions of grandeur” held by first time authors. Turning the blame onto the offended does not shed a good light. If any “visions of grandeur” were to apply, the “grandeur” expected is for vanity press publishers to operate with integrity, instilling oversight of their production. The human error excuse only goes so far.

Balboa Press Survivor:

In late October of 2012, publishing services were procured through what was believed to be Balboa Press, a division of Hay House Publishing, for an illustrated children's book. Balboa Press was chosen solely because of the books ethereal quality, meaning, and children's rights advocacy that the book's sales would benefit.

Since the children's book was about angels with combat boots and promoted the importance of family time, Balboa Press appeared to be a perfect fit. Hay House, known as a spiritual publisher, under founder Louise L. Hay, boasted authors such as Wayne Dyer. The choice felt ‘safe’, but it was far from it.

As a first time author, the self-publishing, vanity press venue was chosen to avoid lone navigation through independent publishing. With advocacy, I was simply spread too thin and I needed help. The often opaque, traditional avenue of publishing was obviously not an option. The objective was to expedite the book to market, retain all rights to further marketing ventures benefiting the continued advocacy, establishment, and continuity of a children’s rights foundation. In retrospect, had I not been a novice, I would have independently published with the help of a professional book consultant, designer, and creative illustrator. Lessons learned.

In early 2010 and throughout, I was writing the screenplay from the outline of the book. I started converting the screenplay into book form. I researched Hay House, found Balboa Press, and saved their publishing site. There were no visions of grandeur, other than hope that the book would bring much joy and help build our foundation.

Here it must be noted, that AuthorHouse (brand affiliated with Author Solutions, Inc.) had come up in searching for a self-publishing company. There were an enormous amount of complaints available on the Internet. Deduction - avoid like the plague. Why? Integrity appeared to be lacking, among other issues mentioned by authors, book consultants, literary agents et al.

Regarding Balboa Press, there were no complaints at this time, as their inaugural debut of their first book did not make it to market until July of 2010. On another note, there was a press release by Author Solutions, Inc. and Hay House in April/May of 2010 announcing their partnership with the Hay House imprint, Balboa Press. This press release was not readily available on the Balboa Press website, so I was not aware of the partnership announcement, or that Author Solutions, Inc. was managing Balboa Press. At this time, I had never heard of the entity, Author Solutions, Inc.

When the book was finished, I accessed the Balboa Press link from my computer "favorites" bar. It was the worst lefty reach I would ever make.

The Nightmare Begins:

October 2013 - Initial Sales Contact – Sales Publishing Consultant (SPC)

The SPC was exuberant as she inquired about the book and, why I chose Balboa Press. The answer was simple -“Louise Hay of Hay House, Wayne Dyer.”

Again, I elaborated about why Balboa Press appeared to be the perfect choice. Most importantly, I stated I wanted to avoid, like the plague, vanity publishers such as AuthorHouse. The SPC chuckled.

• SPC stated the book could be published in hard cover.
• SPC stated Balboa Press had their own illustrative department. I would be able to confer with the illustrator, which was of utmost importance, and I stated as such.
• SPC was informed of the manuscript's current page count and she quoted a price of 23.95 to 25.95. I informed SPC that this would need to be lowered as even though it will be for charity that was an awful high price. SPC stated I would have a say in pricing when the time came and the price could be lowered.
• SPC stated the royalty amounts, but only regarding those print books, which were sold through the Balboa Press website. The royalty amount would be approximately 6.79 after the cost of goods (COGS). SPC mentioned the royalty on Ebooks, which was 50% across the board, with no mention of technology costs discounts/
commissions to publisher, retailer, etc. The SPC failed to mention that print books sold through retailers such as Amazon receive as much as a 55% discount to the retailer. SPC did not mention the ever changing/inflated COGS and taxes, which affected the ever changing royalty quotes.
• SPC stated that books may be purchased by the author at a 50% discount through Balboa Press. What SPC failed to state was that this is a graduated discount, depending on the amount of books purchased.
• SPC stated that Balboa Press will review the manuscript to ensure the book is aligned with their editorial standards.
• SPC appeared so kind, generous, and enthusiastic; she was emailed the manuscript.
• SPC emails an "Author Agreement "(Services) "just for your review." Keep in mind there is no contract and this "Author Agreement" is not signed.
• SPC forwarded an illustration document to choose the "level of design" of illustrations.

October 31, 2012 - “The Believe” publishing package was ordered for $1,759.00 + $75.00 for a payment plan over 3 months, not including correction fees later accessed.

Assigned Check In Coordinator (CIC) 11/01/2012
  • CIC - I inquired about illustrative rights.
  • CIC stated the illustrative rights would remain with me, aside from publishing with another company. In her email, it was the first time I saw "Author Solutions Illustrative Program." I thought that must be the name of Balboa's illustrative department, so I thought nothing of it as I did not know Author Solutions, Inc. was was a publishing company affiliate with AuthorHouse. All I cared about at this point was confirmation of retention of the rights to the illustrations for marketing purposes. I was sent an email regarding illustration packages again, along with written confirmation stating illustrative marketing rights.
11/07/2013 - The Illustration package was ordered under "Intricate Design” for
$3,444.00. In addition, $360.00 was paid for an extra illustration plus $75.00 for a 4-month payment plan.
  • There is a hold up with the Illustrative Department – Calls and emails to the CIC ensue. I am notified someone will be in touch with me in a couple of days.
  • CIC needed the manuscript uploaded, so they can review it assuring it reflects their editorial standards ("so you know what we will/won't publish.")
  • CIC email states manuscript was reviewed. "Overall, it looks very good." Asked if CIC read it, "I just glanced over it."
  • CIC states book cannot be ordered in hard cover (untrue according Book Consultant.)
  • CIC states I cannot speak with illustrator.
  • Royalties questioned again. Given as approximately $ 6.79. There was still nothing about Amazon or retailers discount. So I did a search and found various pages with differing quotes explaining royalties and discounts applied via Balboa Press. There was nothing definitive - old web pages and newer web pages offered an “example.” I am now aware of retail pricing on websites such as Amazon and discounting.
ILLUSTRATIVE DEPARTMENT - DISASTER FROM DAY 1 :

The illustrative department has still not called me.

11/17/2012 Custom Illustrations Account Coordinator (CIAC) –

• Emails begin from CIAC directed to "Hello Stephanie." Who is not me. Salutation and signature includes the Balboa Press logo. The email includes an introduction. In addition, there is a request to fill out and submit Required Art Directions (RAD) form.
• CIAC- Email from CIAC stated Balboa Press will "set up artist that best suits your project."
• CIAC - Telephone conversation - I cannot speak with illustrator/artist. Informed me that the CIAC is the liaison between author and illustrator. I reiterated that the SPC
clearly indicated that I could speak with the illustrator, which was of the utmost importance to me when procuring services.
• Lengthy, time-consuming RAD (Required Art Directions) form filled out with diligence and submitted. Pictures were attached to aid illustrator. Manuscript pages and text lines were cited in the RAD and character descriptions for the illustrator to refer to for aid. “Please call if any questions.” No one ever called.
•CIAC telephone conversation - I had to pry the name of the illustrator of my book from CIAC.
• CIAC emails attachment of initial sketches – not right. I telephone CIAC. "Why would I spend due diligence and time filling out a RAD form and character description citing manuscript text, attaching pictures... so no one would refer to them?" Does the illustrator speak and write in English?""It clearly states the character is an ancient, delicate woman, hundreds of years old; it does not state she is a bald-headed man." The list goes on. The illustrative correction form is filled out and returned to CIAC.

*It is important to note here, that the author clearly understands the difficulties facing the illustrator. However, it is important for the author to be allowed contact with the illustrator. No one called with questions.

CIAC-11/28/2012 Email - Ball drops. Signature/closing of email bristles with the "AuthorHouse" logo. Body of letter shows illustrators email @ "author solutions." Address of email shows Balboa Press.

• I place a telephone call to CIAC. I mention her email and the "AuthorHouse" logo in body of the email. I ask exactly what company does she work for? She replies, "It was an error." Mumbling ensued. She was "sorry;" clearly there was evasive avoidance. My response: "I purchased services with Balboa Press, a division of Hay House. If I wanted to procure services from AuthorHouse, I would have." She continues to deny the relationship of Balboa Press with AuthorHouse. CIAC goes on to offer that they "work for Balboa Press”- "the 'illustrator' is sitting directly across from me.”


From:
BalboaPress Illustrations (illustrations@balboapress.com)
Sent:
Wed 11/28/12 1:04 PM
To:
(-----)

Hello -----,

Thank you for your email. I wanted to let you know that I received your materials, and have saved them to your account. We now have everything we need to get started on your project. Soon, our Art Director will be reviewing your materials in order to assign you to the artist we feel will best illustrate what you envision for your project. With that being said, you can expect to receive your initial sketches in about two to three weeks. In the meantime, please let me know if you have any questions or concerns.
Your sketches could come from either of the two illustrations coordinators in this office. It will depend upon which artist your project is assigned to. So be watching for an email from ----- ----- (------@authorsolutions.com), or ---- --- ----
(----@authorsolutions.com.)
Thank you!

-------- --------
Custom Illustrations Account Coordinator
AuthorHouse
1663 Liberty Drive
Suite 200
Bloomington, IN 47403
----------@authorhouse.com
o: 1.800.839.8640 ext. 5540
f:: 812.355-1562
f: 812-349-0710
Please include project ID# with all correspondence, thanks!

12/07/2012 – The Assistant Production Manager (APM)

• The APM, whom I have never spoken with, telephones me out of the blue regarding my conversation with the CIAC about AuthorHouse. The APM states emphatically that “Balboa Press is a division of Hay House, she works for Balboa Press, and Balboa Press is not affiliated with AuthorHouse - "they are separate entities." In truth, the APM was correct. Balboa Press is a division of Hay House. However, what was not mentioned, ever, is the fact that Balboa Press is managed by the Author Solutions, Inc. AuthorHouse being an affiliate brand.

• Since I already have her on the telephone, I then inquire about the COGS and royalties, since there appeared to be several discrepancies. Wherein, I get my third approximation of pricing for royalties. I am now around $3.51.

• APM follows up with an email enclosing a link to FAQ's about royalties. There is no mention of AuthorHouse. She goes on to state, if I have any questions, to feel free to call her. I did, twice. I left two messages to no avail. I am too far in. I am beyond worried about my project.

ILLUSTRATION FIASCO CONTINUES:

The illustrative sketches and colorization were a disaster. It was apparent that there was a problem with adherence to the RAD/character description form. Pictures that were provided, or the coinciding text (page number and line number) from the manuscript provided to aid the illustrator were obviously ignored or subjectively reviewed. It was so evident, to the point where I was wondering if anyone bothered to read, or if they even could read the RAD form. There was clearly no oversight of the illustrator’s work before remittance to me. I had continued to write, please call if you have any questions...

After months of inexcusable errors, it was apparent the Art Director, or whomever, did not adhere to “set up an artist that best suits your project.” The project was/is light, airy, and whimsical. I received “dark.” In most cases, the illustrations were sparse (not intricate detail) with no color consistency, no innovation, wrong genders, wrong race, missing or incorrect features, etc. An ancient woman was drawn as a bald-headed, old man numerous times, despite repeated pleas and request for adherence to the RAD and characterization forms. The little girl’s bed looked like a cot out of an army barracks or prison. Angel wings on a helicopter were inverted, objected to, and objections to the CIAC remained ignored – a lame excuse was offered.

An email arrives from the CIAC with the final color illustrations attached. CIAC states that she and the illustrator have gone over the illustrations and they should be fine now. I open the attachment; viewing the illustrations, tears begin to drop. The illustrations are missing elements that were originally in the artwork. The CIAC and the illustrator could not have “gone over” the final illustrations before remission to me.

Excuse after excuse mounted by the CIAC who offered, "the illustrator is sensitive, he’s young, he draws like that; it’s a difficult project.” My response to the CAIC, "I appreciate that, but this is a children’s book. This does not take place in a bombed out trailer park in Beirut. There is no consistency in colors..."  In my mind, I understood I paid for “intricate design” and the CIAC maintains, “it’s a difficult project.” Why? If it was so difficult, then why accept the project? It was now apparent that there was no professional oversight.

It was also apparent, as sappy as I am, the CIAC accomplished making me feel bad for the young, “sensitive” illustrator. No kidding, right? What a sap. I took a different approach, heaping thank you’s and praise in hope it would help. Well, that did not work either. Still, at all times, I was respectful and professional in my emails and telephone conversations, even humorous, because the situation was beyond insane - until the end.

So much time had been lost and the book needed to get to press. Through this entire process, I was so entrenched in correcting the illustrative mistakes, that I neglected to mention to the CAIC that I had commissioned, “Intricate Design,” which would come back to bite me. I began accepting less. I accepted a cover with drab colors, inverted wings, and a Norman Rockwell village that looked like a military base encampment. I was essentially physically, mentally, and emotionally exhausted from correcting and dealing with staff. Staff that apparently come and go, as if it were a hamburger joint drive-thru. It was as if I entered the “Twilight Zone.”

The Art Director (AD) takes over four months in:

The AD’s initial email arrives with the Balboa Press logo and the AD’s email address reflects, “Author Solutions.com.” Enough was enough. I research all names – the AD’s first. I research all companies and their addresses. I telephone the AD. She comes clean re: AuthorHouse/Author Solutions, Inc./ Balboa Press/ Pearson-Penguin(at the time) “Author Solutions, Inc. provides all managerial support to Balboa Press.” I thank her for her honesty - finally. I hung up - beyond livid; I sat quietly, angry at myself for allowing this to occur. I knew better. I am a researcher! An investigative researcher. Then, I reach into my folder and review all the staff at Balboa Press that lied to me. Why?

I do more research. Again, I feel I am too far in. I find incredulous allegations on the Internet, this time with Balboa Press. Everything I am ensconced in and have been subjected to is on the Internet before me. However, I realize I am fortunate. Since the book was not yet live, I had not yet been exposed to allegations of colorful accounting with regard to royalties. I find an investigation has started into a class action lawsuit against Author Solutions, Inc. and affiliates.

The AD dismisses my lawsuit query, informing me it is “nothing, this has been going on for years.”

My second telephone call to the APM ensues. I leave a message. There was no return call. Just as well, as I was livid. I can take much, but being lied to was unacceptable. For, what was to be gained?

THE TRANSPARENCY ISSUE

The Publisher and Director of Channel Sales for Author Solutions, Inc. (PDCS):

In April 2013, I informed PDCS (he has been referred to as the "gatekeeper" with no power) that Balboa Press/Hay House does not disclose on their website that Author Solutions, Inc (ASI) manages the Balboa Press imprint. I never stated the reverse, that ASI does not disclose their relationship with Balboa Press/Hay House.

Yet, PDCS continued his cagey attempts by email and telephone conversation to reassure me of ASI’s disclosure “we [Author Solutions, Inc./Penguin Random] have made no attempt to hide our relationship with Hay House, as you can see from the press release below.”

http://www.prnewswire.com/news-releases/hay-house-publishing-partners-with-author-solutions-inc-to-launch-self-publishing-division-balboa-press-

PDCS offered several times over, “that if one places ASI in the Balboa Press website search link box the announcement and other articles will come up.” Why would an author do that if they have no clue who on earth ASI was? PDCS never addressed the original complaint, although he stated in an email, "I did send a note out to make sure no one denies the connection between ASI and Balboa Press."

Balboa Press needs to state on their website that they are managed by Author Solutions, Inc. - a Penguin Random company. The truth, but a marketing disaster and damaging to Balboa Press.

EMAILS BETWEEN PDCS AND AUTHOR:


The Director of Channel Sales and Publisher responds to Balboa Press' questionable transparency with regard to managed services by Author Solutions.
________________________________________
Subject: Balboa Press PR
Date: Mon, 22 Apr 2013 18:31:27 -0400
From: ---------- @authorsolutions.com
To: --------------
CC: ------------
Dear -------
It was a pleasure speaking with you. As I mentioned to you, we have made no attempt to hide our relationship with Hay House, as you can see from the press
release below.
http://www.prnewswire.com/news-releases/hay-house-publishing-partners-with-author-solutions-inc-to-launch-self-publishing-division-balboa-press-93763484.html.
I will work with ------- tomorrow to obtain for you the best print options.
All the best,
-------------

RE: BALBOA PRESS PR
From: ( )
Sent: Wed 4/24/13 2:48 PM
To: ( @authorsolutions.com)

Good afternoon. Thank you for speaking with me the other day.

Your attachment of the 2010 press release and your statement indicates there might be some confusion. If I may clarify, it is not Author Solutions (ASI) that appears to be masking their relationship with Balboa Press -a division of Hay House; it is just the reverse.

To reiterate, Balboa Press does not indicate anywhere on their website that their company is aligned with ASI; nor did Balboa Press indicate in verbal or written form that ASI manages and provides publishing services to Balboa Press on their website. Had this been the case, there would be no need of this discussion, as I would not have requested services of Balboa Press; this would not have been in accord with my personal preference and the project.

That being stated, on the Balboa Press website, the company does present/allude to/suggest in its keen marketing strategy that Balboa Press is aligned with Hay House Publishing. Again, there is no mention of ASI et al and Balboa Press as having any relationship whatsoever. In addition, the Author Agreement (unsigned) for services does not stipulate any relationship between ASI et al and Balboa Press.

A 2010 press release by ASI does not negate the fact that Balboa Press representatives in various departments had deliberately negated disclosing the relationship/alignment
with ASI. I trust this is as disturbing to you as it was and remains to me. The proactive question that needs answering is, "Why?"

If an author seeking independent publishing searches the Internet Hay House Publishing, pages upon pages arise, where the press release referring to ASI is not readily found. If one Googles Balboa Press, one will get the same results.

Unfortunately, there are now complaints/warnings readily available relating to the aforementioned entities for the non-disclosure of Balboa Press and its relationship with ASI.

Pertaining to the situation I have encountered, my project services began in October of 2012. The only way I accessed the 2010 press release was through placing ASI with ASI with Balboa Press in an Internet search engine after receiving an email with ASI stamped on the enclosure. This email was received after services were procured with Balboa Press in October of 2012. Now, there would have been no reason to search Balboa and ASI together, since I wasn't aware of their corporate relationship. This relationship was not disclosed during the first sales call, even though I stipulated I was choosing Balboa Press as I did not wish to publish under Author Solutions for this project; nor did I seek services with ASI. Subsequent telephone calls resulted in the same non-disclosure of the ASI managerial component of Balboa Press. Had I been a genie, this would not have been the case; the dots between Balboa and ASI et al would have been connected by me at the time I was seeking publishing services.

This is troublesome for the author, who ascertains from marketing and vocal disclosure that the publishing services the author has purchased will remain carried out by Balboa
Press, in-house, with the oversight by employees aligned with the original values of Hay House Publishing. Although a fine pitch, this was not the case from inception of requested services and I find it quite disconcerting - even mired, to say the least. It became extremely confusing for the me as the author.

Another problematic area that I discussed appears in the disclosure of royalties and the COGS. The COGS have shifted in quotes so many times from representative to representative. With regard to retail sale, there is disclosure that the net royalty profit after retail discount, minus COGS is divided in a fifty-fifty split between the publisher (Balboa) and the author. It is my understanding now, that what is not disclosed to the author, is the inflated COGS price given to the author by Balboa Press (the publisher receiving a discount on the COGS from the printer/distributor); thus, Balboa Press would receive funds on the back end from the COGS (due to discounting), which affects the author's royalty net. Therefore, the disclosure of the pricing of the COGS and Balboa's actual royalty (net) + COGS percentage hike, is not transparent. In truth, there is no fifty-fifty royalty split. It appears this is just another undisclosed, creative accounting venture.

In my case, the approximated quoted royalty (retail sale) has gone from what I thought would be the lowest at $1.52, then lowered to $1.01, and now rests at .51 cents. The COGS originally quoted, have risen several times; the latest from $6.41 to $8.41 when last quoted by ---------- ----. I asked of ------------ what the net royalty for Balboa Press would be for the book sold at retail, he stated ".51." That appears not the case, depending upon the "individual of the day" one speaks with.

On the telephone call, you spoke of first time authors, how difficult it is, and how their eyes are blinded to what the bottom line will be in earnings with respect to their book being published on demand. This does not relate to my conceptual outcome. However, I thought, "How odd to state that - for marketing targets exactly those people."

It is apparent from my experience that representatives under the now Penguin/Pearson conglomerate must be on the same page when communicating with clients.
Thank you for your time and attention in this matter.

Best,
-------------

Subject: ASI mentions on the balboa site
Date: Thu, 25 Apr 2013 16:12:05 -0400
From: ------@authorsolutions.com
To: ------------
Hi ------
http://www.balboapress.com/SearchResults.aspxhttp://www.balboapress.com/SearchResults.aspx?
site=BalBoa_Prod_collection&client=AuthorSolutions_frontend&output=xml_no_dtd&proxycustom&coutput=xml&proxyreload=1&proxystylesheet=AuthorSolu
tions_frontend&q=author%20solutions
---------


------------

Publisher and Director of Channel Sales
Author Solutions Inc.
A Penguin Company
1663 Liberty Drive
Suite 200
Bloomington, IN 47403
@authorsolutions.com
o: 812.334.5442
f:: 812.349.0842
c: 317.603.1788

Note: Emails – names and addresses omitted. Format conversion.

BACK TO THE ART DIRECTOR (AD):

The AD works with me to ‘fix’ the illustrative artwork. I can actually speak with her. “AD, I ordered intricate design. This is a children’s book about angels... It doesn’t take place in a depressed, bombed out trailer park.” The AD corrects errors, along with making illustrative color changes, generally attempting to adhere to the RAD and character form. Again, there were more corrections as some of the illustrations remitted back to me exhibited removal of objects in transference. The AD appears frustrated. I am beyond ill. The sappy heart returns, and I am at a point where I feel bad for her. There was just too much wrong, although she made an effort. Time has run out. Not all designs are intricate detail, but a tad better color wise. Despite all the heart, time, and monetary investment, I should have pulled the entire project then. Instead, I acquiesced and signed off; a monumental mistake.

BOOK DESIGN/FORMAT DEPARTMENT

One would envision formatting would not be an insurmountable task, since there is a formatting department. I was informed by SC, this would be “much easier.” Wrong.

The first galley format came back beyond unacceptable. Again, there was no oversight. The text did not coincide with the illustrations. The margins were all over the place and not congruent from page to page. One would assume the Design department understood that children’s book illustrations bring the ‘accompanying’ text word to life. In some cases, the illustrations were two pages ahead or behind the text, even with an “illustrative insert note” placed within the body of the text that was provided to the format department. I had to explain to the department through SC that the text had to coincide with the illustrations, reiterating that the illustrations make the text pop. The formatter apparently could not figure it out. Of course, that would involve brain exertion and maybe a bit of ingenuity.

Being a novice, I asked the Design department to enlarge the text font (indirectly as the author is not allowed to speak to them either), hopeful, that may have helped. It did not help. Had I been allowed to have access to an unlocked pdf. file, it would have been a breeze to remedy.

I took the weekend and studied up on formatting. I printed out the book’s pages, combed over the book, shifted pages and margins, then so easily, the answer came to me.

In order to achieve this end, I had them add the cover illustration into the galley of the book, which remedied the illustration and text malady. In addition, I requested that the margins be congruent. The galley would be a done deal.

It is important to note, that the author becomes so entrenched in correcting the publisher’s mistakes, that the author such as myself, misses their mistakes. At no time in any of the process to make my life easier with the corrections, both illustrative and textual did Balboa Press allow me access to an unlocked pdf. file.

Honestly, it would have saved weeks of toil and heartache. The CSR tells me “there is no way to unlock the pdf. - it’s adobe.” Do they make this stuff up as they go along?

Corrections

I missed numerous errors in the text body that were my own. There were publisher error corrections. The author is allowed 50 corrections, aside from publisher error. I went over the allotted correction amount, so I telephoned my CIC and informed her that I needed to make payment for the overage. She stated, “Don’t worry about it, if it’s under 100, it’s okay.” I thanked her. It is important to note, that since there was little oversight, each time the publisher made corrections to the galley text, the author would need to go through the entire manuscript to be sure the referenced text corrections were made.

When the corrected text galley came back, there were more needed corrections. I felt safe as I would be still under 100. The CIC informed me that since this was the third time, there would be a charge. I stated that I thought this would be acceptable, since I was still under 100 corrections. Logic did not dictate. She reiterated that there would be a charge now.

Errors appeared from corrected text submitted online for the back cover elements. I paid to have that change. The publisher corrected the book title for me in the acknowledgement section placing it in italics. I thanked them. In the same paragraph and subsequent paragraphs, the title was left out of italics. I paid for the remaining title errors to be placed in italics.

One lesson I will take with me, is that no matter how many times ones book is edited, it is a crap shoot.  I have read so many traditionally published books with numerous errors, including substantive errors (as of late). Perfection does not exist.

This is a book, professionally edited by a known author, previous editor, and a publisher at a discounted rate of $1,500.00. Afterward, various, kind-hearted individuals edited the book thirty times over, including me. Did the original edit help? Well, if the reader has stayed with this article so far... It made me a better editor of my work, helped me reflect more, and as I learned from screenwriting, the editor’s call is subjective aside from grammatical mechanics, which were obviously missed by the editor. In all fairness, a work coming from a first time author is not exactly inviting. Would I hire another editor? Perhaps, when the taste left behind is more palatable; as a fresh eye can be helpful to a bleary one. I definitely would not hire an editor that questions how a mother can get into a Little Tykes Playhouse, since with two little girls, I practically lived in one!

Online Submissions:

There were several submissions to be uploaded online (early on), under the author's account, which included the synopsis, about the author, the author picture, acknowledgements, etc. The author may edit these submissions, until access by the author is closed out. It was clear, no one bothered to note changes. In addition, my picture that was uploaded was missing from the back cover when I was given the final cover sign-off.

In the dedication section, the formatter could not locate the submitted text dedication online, so I emailed it to my CIC. The corrected galley text remitted to me included the dedication I had forwarded. The dedication showed my spacing error in my email, which told me the formatter just cut the three dedication lines from the email and pasted it into the galley without formatting.

The copyright page exhibited my pen name for copyright, instead of my given name, which was provided in online submissions. An entity I never heard of was cited, "Any people depicted in stock imagery provided by Thinkstock are models, and such images are being used for illustrative purposes only.” “Certain stock imagery © Thinkstock.” I did not know who this entity was, and since the illustrations procured were to be created/original work from the RAD, or so I thought, I asked that this be removed. The CSR complied to remove “Thinkstock” and correct my copyright name.

Throughout the entire debacle I received “surveys” from a male I assumed was in customer service at Balboa Press. I never replied - obviously. Something was troubling me, but I set it aside.

The book was as ready for production as possible. I was told production copy was sent to the printer and distributor. Since there were so many corrections and I did not trust Balboa Press with any oversight, I requested from another CSR a copy of the book file sent to the printer. The cover was signed off on prior with the author picture, the galley appeared correct, but the back cover was not corrected from online corrections filed on the Balboa website. Two commas were still left in. Therefore, at my request, Balboa Press halted production with the printer, I paid $70.00 to have the two commas removed, and I received confirmation as such that the commas were removed.

ROYALTIES - MORE BOMBS DROP

Book Consultant (BC)

The BC telephones, a very amicable individual with a sense of humor. They will send a book for my review. The book arrives and I immediately look at the back cover elements. Relief sets in as my photo is displayed and the two commas have been removed. I scan from the back of the book forward regarding the galley text and all appears corrected. In addition, BC then informs me that the royalty I will be receiving is $0.51. He states that the COGS for my book is $8.41. Balboa Press would receive $0.51cents and so would I. I went quiet, and then stated that this was unacceptable. I asked for confirmation that Balboa Press would only receive $0.51 cents. I was told, “Yes.”

I was beyond disgusted, beyond upset, and went back to research. It appears Balboa Press/ASI inflates the cost of goods, telling the author that the printer is charging stated amount. Under the scenario, Balboa Press/ASI receive a discount from the printer and distributor, so that the COGS quoted to the author is untrue. The publisher essentially receives a “back-end” on the COGS. So, for Balboa Press/ASI to state that they only receive $0.51 is a misrepresentation at the very least. I recalculated the printing and distribution cost from the printer’s pricing chart. Needless to say, the figures I was quoted did not add up. Frequently blamed for the low royalties were Amazon, and Barnes and Noble. The publisher stated that these entities receive a 55% discount, which is true in many cases. However, it is not true in all cases. Another small publishing entity disclosed to me that because they are a customer in good standing Amazon accepts discounting their books by 20%. Balboa Press under Author Solutions, Inc. management and now, the Penguin/Random conglomerate is a large publishing entity. It does not disclose to authors whether they receive a back-end on their quoted 55% discount to Amazon. So, in actuality, Balboa Press/ASI could be charged at a 20% discount from Amazon per book, yet Balboa tells the authors their book is 55% discounted by Amazon. So, figure it out. Where does the 35% end up?

Balboa Press Royalty calculations omit facts:

How does Balboa Press calculate royalty payments?

“Royalties are based on the payments we actually receive from the sale of printed or electronic (e-book) copies of your book, minus any shipping and handling charges or sales and use taxes. Also, we offer discounts to retail and wholesale customers, so the royalty amount you receive depends on what type of customer bought your book and any discount they received. Retail discounts range between 36 and 55 percent.”

Royalty book calculation for my book by Balboa Press/Author Solutions, Inc.

Soft cover Book Price/Retail Royalty (Retail – Amazon, Barnes and Noble, etc.)
42 page – color interior:

20.99
- 11.55 55% Retail discount quoted by publisher (Amazon)
9.44
- 8.41 Cost of Goods (COGS)quoted by publisher
1.03 Divided by 2 =
.515 Royalty paid to author (minus taxes) and publisher

Soft Cover Book Price/Royalty if sold on publisher website:

20.99
- 8.41 Cost of Goods (COGS) quoted by publisher Balboa Press
12.58 Divided by 2 =
6.29 Royalty paid to author (minus taxes) and publisher

Clearly, it appears Balboa Press/Author Solutions, Inc. utilizes a formula. In actuality, this is more in line with what ones royalty should be with adjusted COGS based on Lightning Source fees.

Soft cover book retail book price royalty calculation if sold retail with 55% discount:

20.99
- 11.5445/11.55 @ 55% retail discount
9.44
- 5.70 cost of goods (COGS - Lightning Source) on 20.99 book
3.74 Divided by 2 =
1.87 Royalty to author and publisher

Another discrepancy.

Soft cover book retail book price royalty if sold retail with 20% discount

20.99
- 4.20 @ 20% retail discount
16.79
- 5.70 Actual Cost of Goods (COGS - Lightning Source)
11.09 Divided by 2 =
5.545 Royalty to author and publisher.

There is a huge discrepancy here, between $0.51 cents and $5.545 if indeed Balboa is setting a 20% discount to retailers.

Soft cover book price royalty calculation if sold on publisher website:
20.99
- 5.70 Actual Cost of Goods (COGS - Lightning Source)
15.29 Divided by 2=
7.645 Royalty paid to author and publisher

ROYALTY CALCULATION FOR MY BOOK SUMMATION:

The COGS quoted for my book - $8.41. The actual COGS is $5.70. according to Lightning Source. Balboa Press/Author Solutions, Inc. appears to have inflated the COGS for this book by 2.71. Add $0.51 to the inflated price and it equals $3.22. Balboa Press has inflated the price of the COGS over 30% before quoting the COGS to the author.

On various dates, the retail discount stated on the Balboa website has changed. At times, it has been listed as 48%.

Quoted from the Balboa Press website:

Here's an example of a common sales transaction:

"The cover price (list price) for your book is $17.95. Your Balboa Press royalty rate is 50 percent. A retailer places an order for your book through Ingram Book Company, a wholesaler. Ingram, in turn, purchases your book from Balboa Press at a 55 percent discount (our standard discount to wholesalers). Ingram then resells the book to the retailer. Your royalty on this sale of your soft cover book will be calculated as follows:
Retail Sale Example:
$17.95 (SRP "Suggested Retail Price")
- $9.87 (55% Retail Discount)
= $8.08 (Net Retail Discount)
- $4.97 (COGS "Cost of Goods Sold")
= $3.11 (Net COGS)
x 50% (Royalty Rate)
= $1.56 (Royalty Earned from a retail sale)
Web Sale Example:
$17.95 (SRP "Suggested Retail Price")
- $4.97 (COGS "Cost of Goods Sold")
= $12.98 (Net COGS)
x 50% (Royalty Rate)
= $6.49 (Royalty Earned from a web sale)"

Lightning Source Printer Products and Services Pricing:

For black and white books:
http://www1.lightningsource.com/ops/files/pricing/USPricing.BW.pdf
For color books:
https://www1.lightningsource.com/ops/files/pricing/USPricing.COLOR.pdf

As far as Ebook sales royalties, Balboa Press states :

“You will receive 50 percent of the payments received from the sales of your e-book, less any distribution and technology fees, taxes and returns. Royalties will not be paid on copies provided free of charge or sold to the author.”

MORE BOMBS DROP - April 2013

Do not be shocked if your book shows up as a pdf. file for sale on various websites. Balboa Press CSR stated that the various electronic pdf. versions will carry a separate ISBN.

The CSR states that the book is being converted to digital files for Ebook, etc. I have no clue when the book will go live. I am online setting up a Facebook page for the book. I scan the Internet through Google search to check if it is picking up the title of my book on its Facebook page. I notice two websites are offering my book in all types of versions. I have not seen the digital Ebook conversion files, and I have no idea pdf. file versions would be sold or distributed. My book has not even gone live, yet it is available on Deastore and Lybrary.com. I telephone Deastore at 8:30 PM that night. I asked how it was possible that they are offering my book if it has not been published yet. The gentleman answers, “You will have to speak with the distributor. We get it from them.”

I check out the back cover on these websites. The two commas removed during corrections are still there. Which tells me the book was distributed to Deastore and Lybrary.com before the final Cover Sign-Off (CSO). I go to Amazon.com and Barnes and Noble's website - sure enough the book is available. I telephone Customer Service at Balboa Press and I am informed the book has not gone live yet, that I must be mistaken. “It must be the pdf. copy.” I am aghast, "Huh? How is that possible?The book has not gone live yet. It's still being converted for digital files.” I continue to state further that it is not the corrected back cover; the book is now offered on Amazon.com and Barnes and Noble with the incorrect cover. The CSR states that Deastore and Lybrary.com are aligned with Amazon. So, Amazon is blamed now; yet, Deastore tells me to contact the distributor.

I call the CSR back and request that the book, pdf., and digital files are removed from websites, until published with the corrected back cover.

The CSR complies, stating that she will notify the printer and distributor. Corrections are made to files to correct the back cover. During which time, I am receiving calls to order more books at a discounted price from the marketing/book consultants and the like at Balboa Press/Author Solutions, Inc. After back cover corrections are complete, I request my BC to ship the ten books as part of the ordered package.

The next telephone conversation is with a another CSR, who informs me she is on the Deastore site as we speak, and the various versions of the book have been removed. I was not on the computer at the time of the call. When I hang up the phone, I access the Deastore website and the book in various versions is still on their website.

The next problem arises with the paid for service of ensuring the “Look Inside Feature” of the book is available on websites. It takes Balboa Press weeks, when Amazon offers it will take 24 to 48 hours, but frequently is up within hours. This feature is finally uploaded to Amazon, but cites the end of the book, offering the plot resolution. I call Amazon myself and ask them to pull the “Look Inside Feature,” until the correct pages are given from the beginning of the book - the teaser. Balboa Press blames Amazon.

I have to commend the Amazon staff, for they were very supportive and professional throughout this entire process. It is weeks later and the feature is still not up on the Barnes and Noble website. The manager of the CSR department states that she does not know what is the hold up on Barnes and Noble. “It is clearly a problem with Barnes and Noble.” Right. The "Look Inside Feature" is corrected on Amazon; it is for the Ebook only and sloppy. The manager of the CSR department, in a curt, dismissive fashion, refused to re-submit the files for the “Look Inside Feature” for the print book. She said the feature for the Ebook is sufficient.

BOOKS ARRIVE - A HUGE BOMB DROPS

The ten books arrive. I take the package to church and quickly remove a few books to hand out to the children. Sitting on a bench, two little girls begin to skim through the book, smiling. I watch them as they lift the book, exposing the cover. My eyes mirror a freaked out Roadrunner.

One of the girls asks, “What's the matter?” I gracefully take the books and calmly reply, “You know what, I am going to bring these back when they finish the cover.”

The cover was published with the incorrect title. So focused on the actual published date of the book (denied by Balboa Press), and the incorrect back cover, I missed one important issue.

It never dawned on me that production would err on the title.

Had I not requested the pdf. file from Balboa Press earlier, I would have been up the creek without a paddle. Had I not approved the correct final cover and title with the CSO (cover sign-off) I would have had no recourse. Had I not found a decent human being that actually felt sorry for me...

I received an apology. The BC, referring to management’s decision, said that they would make corrections with all entities. He further offered that I was welcome to make any changes to the text galley that I would like. I replied, “I only wish the book title to be corrected. I do not need the galley to be changed. I only wish for the services I procured.”

I then got nervous. “Is there something wrong with the galley, too?” He replied, “No, just if you want to change anything, we’ll take care of it.”

I had lost weeks in advertising, as planned publicity was at a standstill. Links, blogs, twitters, and pages had to be pulled quickly from the Internet. The foundation website was halted. Worse... a few friends, family, and colleagues either purchased the book with the incorrect title, or were waiting for an autographed copy. I wrote an apology on behalf of Balboa Press on the FB page created where I had over 20,000 views in the few days prior to the book going live. For the Children Left Behind Foundation’s creation would surely take a back seat. Yet, ASI/Balboa Press would make changes to the galley, if I wished.

I sent a reply email off to the PDSC reconfirming the lack of transparency regarding the Balboa Press relationship with ASI. In addition, I notified him that I was thankful I did not place an offset print order of 5,000 books, since the book was published under the wrong title. I am sure he was as elated as I was.

From:
Sent: Tuesday, May 07, 2013 3:59 PM
To:
Subject: RE: ASI mentions on the balboa site/OFFSET PRINT

Dear ------,

Good afternoon.

I did not get to respond to your email below, as I have been busy addressing other fiascos with the publishing of my book with the Balboa Press imprint.

With all due respect and for the record, I honestly feel your response below sends my point home. Nary a soul should find a need to place Author Solutions in the Balboa Press, A Division of Hay House, website search box. That is simply absurd.

I stand by my previous statements. There is no transparency on the part of Balboa Press (website included) to disclose to potential authors requesting publishing services that Balboa Press is in any way aligned with Author Solutions, managerial, or otherwise.

This was not disclosed to me after repeated inquiry to a myriad of individuals in various departments, beginning with the sales department.

Regarding the "Offset Print," I am sincerely thankful I held off ordering 5,000. books from Balboa Press/Author Solutions, since my book was published, marketed, and sold with the incorrect title...

Thank you for your attention.

Sincerely,
----------------------


RE: ASI mentions on the balboa site/OFFSET PRINT‏
5/07/13
To:---------
Cc: ----------
From: ---------@authorsolutions.com).
Sent: Tue 5/07/13 5:34 PM
To: --------
Cc: ------- @authorsolutions.com)

Hi --------

I asked -------- to copy me on the issues you had today and how they were being resolved.

The only reason I sent you the link was to show you that there had been no conscious attempt to hide the relationship between ASI and Hay House with regards to Balboa Press, and that the relationship is referenced 42 times on the site. We also send out press releases about our publishing partnerships that are picked up by both the writers and publishing press. There is no plan to hide the relationships.

I did send a note out to make sure no one denies the connection between ASI and Balboa Press. We have no reason to deny it, and in fact we celebrate it when any of our authors are picked up by our traditional publishing partners.

Please let me know if you do want to proceed with an offset print run in the future.
All the best,
-----------
-----------
Publisher and Director of Channel Sales
Author Solutions Inc.
A Penguin Company
1663 Liberty Drive
Suite 200
Bloomington, IN 47403
-------------@authorsolutions.com
o: 812.334.5442
f:: 812.349.0842
c: 317.603.1788

THE END

Far too tardy, I had to ensure all my ducks were in a row. As a child advocate, I knew the routine. I requested my signed contract/agreement from a CSR as I could not locate a signed copy. I was informed that I do not have one. I asked, “Why?” She offered, “When you pay for services it is assumed you are in agreement.” Seriously? I located the “author agreement” in an email from Balboa Press that was sent along with other attachments.

After more research and much discussion, even with my BC, I decided to pull the book. There was no feasible way the book would recover with this imprint and lack of
managerial oversight. I felt it was a pure effort for a good cause that was diminished by ASI managerial services. Those staff members that were decent are to be commended for their decency, but in actuality, they have no input whatsoever.

I contacted the CSR department to inquire about receiving the production files as I had read nightmares about it. My question was not sufficiently addressed after the first inquiry.

The emails:

From: -----------------
Sent: Thursday, May 23, 2013 2:58 PM
To: Balboa Press ---------------
Subject: RE: _________________

Dear ------------,

Good afternoon. I have some questions regarding the production design files in order to understand fully what to expect.
• How will the production design files be remitted back to me?
Will the cover design file, illustration files, and galley file be released as separate files? In what form is each of the aforementioned files.
• If the production design files are in pdf format, will all 'security' properties (copy, edit, etc) on the files be removed?
• Do the files remitted include the Ebook conversion file?
• Will all files be remitted without watermarks and without Balboa Press logos?

I appreciate the help.

Thank you.
--------------------
Project ID --------

Subject: RE: -------------
Date: Fri, 24 May 2013 11:24:17 -0400
From: -----------@balboapress.com
To: --------------------
Hello -----,
In regards to your questions below. If it is something you have supplied, you can just request the file back from us at Customer Service and we should be able to get it for you. In regards to the designed files we have created, you will have to purchase those. Its $200.00 for both cover, interior and ebook files. All files we send to you will be without any Balboa press logos. I hope this helps to clarify. Thanks and have a great day!
--------
CUSTOMER SUPPORT
Balboa Press
A DIVISION OF HAY HOUSE
1663 Liberty Drive
Bloomington, IN 47403
P: 877-407-4847 ext: 5088
F: 812-355-4557
customersupport@balboapress.com

From: -------
Sent: Friday, May 24, 2013 12:22 PM
To: Balboa Press ------
Subject: RE:------ DESIGN FILE QUESTIONS
Dear -------,

Good morning.

I appreciate your response. However, I have asked specific questions to which I need addressed, other than the Balboa Press logo being removed.

Since your previous email stated the fee for the files, that was not part of my query.

Please review the questions I had earlier submitted (below) and, if at all possible, provide answers so that I can move forward, knowing what to expect.

• How will the production design files be remitted back to me?
Will the cover design file, illustration files, and galley file be released as separate files? In what form is each of the aforementioned files.
• If the production design files are in pdf format, will all 'security' properties (copy, edit, etc) on the files be removed?
• Do the files remitted include the Ebook conversion file?
• Will all files be remitted without watermarks and without Balboa Press logos?

I am sure you understand that I am trying to avoid any further mishaps as in my book being published with the wrong title. At this point, I certainly do not wish to remit payment for files that will be deemed useless because of lack of oversight, watermarks et al. Production design files need be production ready. Essentially, I need to feel secure that this will be the case.

If you need help clarifying/responding to the above questions, perhaps ----- ------- or someone similar in production/design management can address the questions...

Thank you for your attention.

-------
ID --------
Subject: RE: ----DESIGN FILE QUESTIONS
Date: Fri, 24 May 2013 12:30:14 -0400
From: -----@balboapress.com
To: ------

Hello -----,

• Production design files will be given to you as an email attachment.
• The cover design file, galley file will be sent to you in two different forms. They will be sent to you as pdf. Files.
• The pdf files will have all securities removed and you will be able to edit them as you see fit.
• In regards to the eBook. You will receive the mobi., epub., and pdf. Formats of that file. This too will be sent either as an attachment to an email, or using a download transfer website, that allows for the transfer of larger files.

• In regards to the files, all files will not have the Balboa press logo, and will not have watermarks.

I hope this helps to clarify all of your questions. If you have any further questions feel free to contact us at Customer Service. Thanks and have a great day!
---------
CUSTOMER SUPPORT
Balboa Press
A DIVISION OF HAY HOUSE
1663 Liberty Drive
Bloomington, IN 47403
P: 877-407-4847 ext: 5088
F: 812-355-4557

------------
Subject: RE: ---------- DESIGN FILE QUESTIONS
Date: Fri, 24 May 2013 14:59:07 -0400
From: ----------@balboapress.com
To: ---------------------

Hello ----,

We do not send authors who are in production unlocked files. However if you cancel your book project, and purchase the files, we will send you unlocked pdf. files for you to use, without any Balboa Press logos. Also, we do not send out release statements once you purchase the files and cancel your book project. This is because you are under the agreement until you cancel, then you are free to take and use the files however you like. I hope this helps to clarify. Thanks and have great day!
----------
CUSTOMER SUPPORT
Balboa Press
A DIVISION OF HAY HOUSE
1663 Liberty Drive
Bloomington, IN 47403
P: 877-407-4847 ext: 5088
F: 812-355-4557
From: ------- [mailto:------------
Sent: Friday, May 24, 2013 3:07 PM
To: Balboa Press ------------
Subject: RE: -------- DESIGN FILE QUESTIONS

Thank you ------. 'Appears odd, but more than clear.
Will the ISBN and price be removed from the cover files, too?
Thanks.
-------------------
To: -------
Balboa Press ------
From: Balboa Press ----- (----@balboapress.com).
Sent: Fri 5/24/13 3:18 PM
To: ----------------------

Hello ---------,
Yes the ISBN and price will be removed from the cover files.
Thanks,
--------------------
Customer support
Balboa Press
A Division of Hay House
1663 Liberty Drive
Bloomington, IN 47403
P: 877-407-4847 ext: 5088
F: 812-355-4557
customersupport@balboapress.com

Note: Emails have been condensed; format has changed due to conversion for Blogger. Names and addresses have been omitted.

There is more… but first:

REQUESTING A REFUND THROUGH THE RESOLUTIONS DEPARTMENT:

Upon requesting a refund, my BC informed me that I would need to speak with a gentleman in the Resolutions department. My BC gave me his name. Then, it hit me. My survey emails from Balboa Press and the iUniverse individual named in the Author Solutions, Inc. class action lawsuit were the same person. I had heard about this individual from other authors. “There is no way I wish to speak with him.” BC replied, “You have no choice if you wish a refund.”

I will not pass judgment, but will say this individual is no gentleman; he certainly earned his condescending notoriety. After one of the most horrid calls of my career, he offered a refund for the publishing package; he would not refund the Illustrative package as I had signed off on it, even though it was not "intricate design." But, not without interjecting, that the COGS/royalty scenario was about the only thing I had correct.

On the second telephone call, I accepted the refund offer for the publishing package. For me, this illustrated culpability on the part of Balboa Press/ASI, now under Penguin Random.

The Resolutions manager curiously kept stating that the files I would receive after purchase were not production ready files. I then realized he had to have access to my email to Customer Service before him. “My two cents, for what it’s worth, don’t purchase the production files. The files are just pdf. files. Your new publisher will want to reformat the book anyway.” I thought, "That’s odd. Now this individual is humane?” Go figure.

BACK TO THE CSR REGARDING THE PRODUCTION FILES:

I telephoned the CSR that offered up his take on the production files in the above emails. Obviously, he did not take my advice and ask a director. I asked him how he could furbish me with false information. He replied, “I am sorry. I assumed the production files purchased by the author would be usable; they are not. I was corrected.”

This CSR had no clue as to the reliability of the information he was providing me. In all fairness, he probably thought that integrity dictated, “Yes, these are production ready files.” I would like to think he generated false information with good intentions. He learned from the brass otherwise.

I kept logs of all telephone conversations and names. I forwarded emails exchanged between Balboa Press, ASI, and myself to a colleague; later to an attorney. Since my residence is in a two-party state, I did not record the telephone conversations, although there were those present that could attest to the telephone conversations after their shock had subsided... After awhile, even they were no longer entertained.

Closing statement:

To my regretful error, I never connected the dots between Balboa Press, a division of Hay House and Author Solutions, Inc. Did I ask the right questions? Surely a seasoned veteran of this industry would have done better, but in the throws of it all, I tackled the situations that arose to the best of my ability.

The million-dollar question around the net is how Louise L. Hay of Hay House could allow her life’s work to be mired in this fashion. Other authors and book consultants continuously chime, “If Louise Hay knew what Author Solutions, Inc. has done to her name…” Simply stated, the answer to the million-dollar question is, “It is a multi-million dollar venture.”

A colleague interjects, “How could Louise Hay not know all this? If I am ever in her presence I will surely ask!! She's at a conference with other spiritual leaders right now. I mean she publishes for people like Depak Chopra, Wayne Dyer, etc. Do they get special treatment? Or what?” Of course they do.

Another individual offers, “If Hay knows and is not doing anything... I have lost faith in her possessing any goodness and it makes all her spiritual guidance worthless.”

Louise L. Hay is 86-years-old, not that her age alludes to any excuse. It is as if she is a legend amongst spiritual authors and practitioners. She might go into the office once a month... Sources state that Reid Tracy rules her imprint and affiliate empires with "an iron fist." Who knows what is true.

The underlings, like the young CSR's, for the most part were very gracious; a few appeared bored, but it was clear their lack of knowledge was an impediment.

However, when I start to feel empathy for a lovely 86-year-old spiritual icon, possibly being taken advantage of, or intentionally left out of the loop and the 'happy' young CSR's (I envision Muffy, her ponytail or two swinging in the air from the 1950's), I suddenly revert to a reality check. This book was something special, nowhere near perfect, but it was to benefit advocacy and aid for special needs children. That's the reality check. I would rather be thankful for competence, than be stroked with sugar.

It is not that difficult to use a little ingenuity when formatting a book. The author has paid for this service. It is not the author's responsibility to format the book. It is not the author's responsibility to explain to the format department that illustrative text needs to be aligned with the illustrations. If one cannot read the RAD form in the language with which it was written to create illustrations - hey, there is a problem. Or, if there is confusion with understanding what the author was attempting to convey to the illustrator, it does not take a rocket scientist to comprehend that the illustrator needs to be in contact with the author. It would help if there was competent oversight in each department to diminish the issues that arose like, "Oops, the book was published with the incorrect title."

I would have been thankful had the book not been ill-designed and ill-formatted, as one book designer put it as gently as possible, omitting expletives of course, as "something out of the 1950's."

By grace, I have found professional individuals with talent, ingenuity, heart, and integrity to which I am thankful. So can you!

In solidarity,

Jilliestake

Copyright © 2013 Jilliestake - All rights reserved.


Update: Class Action lawsuit April 14-2014:
http://www.gslawny.com/lawyer-attorney-2103286.html

To view the class action lawsuit filed against Author Solutions, Inc. and its affiliates:
http://www.gslawny.com/lawyer-attorney-2103286.html

To view the recent filing amended filing:  http://www.victoriastrauss.com/wp-content/uploads/2013/09/AuthorSolutionsFirst-Amended-Complaint_7.19.2013.pdf




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