From: Kelley Lynch <kelley.lynch.2010@gmail.com>
Date: Tue, Nov 4, 2014 at 1:43 PM
Subject: Re: Cases: BC338322 & BC341120
To: Jeffrey Korn <jeffkornlaw@live.com>, "irs.commissioner" <irs.commissioner@irs.gov>, Washington Field <washington.field@ic.fbi.gov>, ASKDOJ <ASKDOJ@usdoj.gov>, MollyHale <MollyHale@ucia.gov>, nsapao <nsapao@nsa.gov>, fsb <fsb@fsb.ru>, "Division, Criminal" <Criminal.Division@usdoj.gov>, "Doug.Davis" <Doug.Davis@ftb.ca.gov>, Dennis <Dennis@riordan-horgan.com>, rbyucaipa <rbyucaipa@yahoo.com>, khuvane <khuvane@caa.com>, blourd <blourd@caa.com>, Robert MacMillan <robert.macmillan@gmail.com>, a <anderson.cooper@cnn.com>, wennermedia <wennermedia@gmail.com>, Mick Brown <mick.brown@telegraph.co.uk>, woodwardb <woodwardb@washpost.com>, "glenn.greenwald" <glenn.greenwald@firstlook.org>, lrohter <lrohter@nytimes.com>, Harriet Ryan <harriet.ryan@latimes.com>, "hailey.branson" <hailey.branson@latimes.com>, "stan.garnett" <stan.garnett@gmail.com>, police <police@cityofberkeley.info>, sedelman <sedelman@gibsondunn.com>, JFeuer <JFeuer@gibsondunn.com>, "kevin.prins" <kevin.prins@ryan.com>, rwest0@gmx.com, "steve@blottermusic.com" <steve@blottermusic.com>, "steve@radicalmusic.com" <steve@radicalmusic.com>, Sherab Posel <poselaw@gmail.com>
Richard Westin,
I am confirming that you and I never had sex. I never had sex with Oliver Stone either. This was evidently Cohen's first line of defense - stirring up a custody matter with my son's father. Yongzin Rinpoche was present for your brief visit.
For the record, I intend to file motions in the near future and one will include a signed copy of this document confirming what I agree with in Neal Greenberg's Colorado lawsuit. The perjury and fraudulent misrepresentatives are extensive.
I cannot imagine why you settled or what mistake you rectified but based on what I am reading Cohen appears to have taken the position that federal tax returns are fraudulent. I have asked Korn to confirm that. I also intend to file a federal lawsuit and continue to be criminally harassed by a psychopath lawyer known as Stephen Gianelli who argues Cohen's federal tax, corporate, and other matters. He is now writing me about Phil Spector.
The attached document will be signed and I intend to provide you and Greenberg's lawyer, Norman Posel, with a copy. If you read through the factual statements you will see that Cohen and Kory planned to use restraining orders to discredit me. Posel also wrote that Cohen/Kory planned to destroy me and my children.
Kelley Lynch
On Tue, Nov 4, 2014 at 1:39 PM, Kelley Lynch <kelley.lynch.2010@gmail.com> wrote:
(c) http://xrrf.blogspot.com/2005/06 leonard-cohen-mr.-big.html (referencing the quoted statement as “released by Leonard Cohen’s lawyer” and referring to it as the “Attorney Robert Kory Statement”);
Jeffrey,I await your response to the very serious federal tax and corporate matters I have attempted to address with you. Those issues include, but are not limited to, the 2004 IRS required form 1099 Cohen failed to provide me or IRS; LCI illegal K-1s for the years 2003, 2004, 2005 (transmitted to State of Kentucky & IRS showing $0 income - and completely undermining the fraud expense ledger); TH K-1s for the years 2001, 2002, 2003 (transmitted to IRS and others showing income); phantom income TH shifted to me that was not distributed; the "mistake" Westin evidence rectified re. TH (per Cohen's testimony in my 2012 IRS/Phil Spector trial); etc.I am reviewing the handful of documents you provided me re. the Related Case. I would like to point out that my lawyers advised Cohen to pick up his property in their letter to Westin of October 27, 2004. Cohen and his daughter, Lorca Cohen, retrieved all property they felt entitled to from my offices. Cohen understood I worked out of my home every day. I stored old business records for Cohen from the time he renovated his garage (and turned it into a recording studio and guest suite) and he understood that. I did not have Cohen's water color notebook. LASD never found any such notebook. He was the last individual to use that when he scanned the journal from his home. Since his daughter, and others, were caught in my office one evening taking Cohen's property and mine (he should recall this and witnesses were present), perhaps he should speak to those parties.Cohen took all archived materials in the boxes in the office I set aside for him as well. Please see this Brusq's documentary re. those boxes. I took NOTHING to my home after Cohen and I parted ways. Steve Lindsey, who coordinated a custody matter with Cohen and Kory, had not seen me for months and had nothing to do with my business affairs. We separated in 1997 and he did not live with me, have access to my home office, and was not authorized to ransack my garage or review my files and documents. He did find a letter once and felt Cohen was obsessed with me. He also wrote and told me that Cohen/Kory stopped by his office to advise him that i had sex with Oliver Stone while Lindsey and I were together. Oliver Stone was also dragged into my 2012 trial. He and I did not have sex and I explained that to the prosecutor who thought my comments refuting that false accusation were meant to annoy Cohen. Cohen and Kory clearly meant to stir up a custody matter. They also advised Lindsey that I had sex with Richard Wesitn in order to obtain an annuity obligation. The allegation is false, misogynistic, and obscene.For the record, Cohen borrowed or caused to be expended approximately $6.7 million from the TH "retirement account" that was NOT his. It was a corporate account and Cohen continues to argue alter ego.I would appreciate, and have asked this previously, your advising me who the alleged "informant" was. Betsy Superfon advised me that it was her former roommate, Julie Isenberg. Isenberg worked for me for approximately one week in August 2004, was highly supervised, spent a great deal of time on the phone looking for work, and had no ability to review evidence, corporate records, financial statements, etc. She could hardly pack a greeting card order. Superfon also advised me that Isenberg assaulted her maid, stole her jewelry and dog, and was last seen stripping and doing drugs in Vegas. Is that the "informant?' How about the "gigolo?" Can you identify that individual for me?I am finishing up the motions i Intend to file in the near future. It is taking me longer than I anticipated due to the inconceivable perjury, fraudulent misrepresentations, and insane fabricated narrative. Once again, those motions will include a motion to dismiss the fraudulent registration of the Boulder order as a domestic violence order and a motion asking the Court to refer Cohen for a perjury prosecution.Kelley LynchPlaintiff’s Memorandum of Points & AuthoritiesRe: Writ of PossessionCase No. BC341120Filed: October 12, 2005Cohen’s memorandum supporting the issuance of a writ of possession against Lynch re. personal property. Introduction states that Lynch never returned his property. Cohen understood Lynch worked from her home, on a daily basis, in the afternoons and was well aware of the fact that she stored boxes of old records in her garage as a courtesy to Cohen. This does not explain why Cohen failed to respond to Lynch’s lawyers October 27, 2004 letter advising him to make arrangements to pick up his property. He and his daughter picked up whatever they felt entitled to at Lynch’s offices.Cohen Employs Lynch As His Personal Assistant & Business ManagerCohen employed Lynch as his personal assistant and business manager for approximately 17 years. Lynch maintained many of Cohen’s business and personal files and other possessions in her office.See Cohen declaration – CAK matter (personal manager); Steven Machat’s book excerpts (personal manager); other evidence; and Cohen’s statements to Streeter (via email) that Lynch worked as his personal and business manager since 1988. See testimony where Cohen advises jury that Lynch did NOT work as his personal manager. See latest documents Korn filed – Lynch was evidently Cohen’s personal manager. See Richard Feldstein (Cohen’s business manager). Etc.Lynch Is Terminated For Wrongfully Taking Millions Of Dollars From CohenAfter Lynch’s former employee revealed that Lynch had wrongfully misappropriated millions of dollars from Cohen – nearly all of his retirement savings – Cohen reviewed his bank accounts and confirmed extensive irregularities.Alter Ego; failure to address his $6.7 million in loans (to be repaid within 3 years with 6% interest; etc.) Cohen understood Lynch planned to go to IRS, etc.
SCHEDULE OF
FACTUAL ALLEGATIONS & STATEMENTS
NEAL GREENBERG AMENDED COMPLAINT
I, Kelley Lynch, agree with the following factual statements and was
a witness to much of what was addressed in Neal Greenberg’s Amended Complaint
(Denver District Court, Case No. Case 1:05-cv-01233-LTB). Therefore, Neal Greenberg and I are in
agreement with respect to the following facts.
See Neal Greenberg Amended Complaint & Exhibits attached hereto and
made a part hereof. Kelley Lynch opposes
all statements raised in Greenberg’s Complaint and not contained in the
following excepts taken directly from the Amended Complaint. See Amended Complaint
attached hereto and made part hereof.
Dated: 23 October 2014
___________________________________
Kelley Lynch
Neal Greenberg. Vs. [HEADING]
Denver District Court, Case No. Case 1:05-cv-01233-LTB
Judge Lewis Babcock
Defendant Leonard Cohen (“Cohen”), a noted recording artist,
acting directly on his own behalf, and through his agent and attorney, Robert
Kory (“Kory”), has threatened to take or has taken, improper and unlawful
actions, including bribery and
intimidation of a witness, subornation of perjury, defamation …
Cohen’s extortion scheme
was eventually exposed by Lynch and ultimately frustrated …
Cohen has made clear that he asserts rights over certain
investment funds that belong to Traditional Holdings, LLC (“Traditional
Holdings”), a dissolved Kentucky entity that was managed and 99.5% owned by
Lynch and 0.5% owned by Cohen.
From the early 1990s, impressed with a new strategy used by
other Hollywood celebrities to cash in on their future revenue streams from IP
rights and increase short-term income (called a “Pullman
or “Bowie” bond, after the artist David Bowie who first used it), Cohen … worked aggressively with advisors, including Greg McBowman, to auction off portions of his IP to the highest bidder.
or “Bowie” bond, after the artist David Bowie who first used it), Cohen … worked aggressively with advisors, including Greg McBowman, to auction off portions of his IP to the highest bidder.
Lynch arranged for Cohen to have a first meeting with Greenberg
in 1996 to discuss Cohen’s investment options for the proceeds from the
anticipated First Sony Sale.
During this meeting, and at Cohen’s request, Greenberg suggested
ways in which Cohen could structure the investment of his proceeds from the
First Sony Sale so as to reduce tax consequences and generate substantial
income.
Cohen worked with, and began to be represented by, a creative
tax attorney and law professor from the University of Kentucky, Richard Westin
(“Westin”). Cohen also had other
advisors and consultants working with Lynch on his business, music and tax
matters, including Greg McBowman … Ken Cleveland, as well as Stuart Fried and
other attorneys at the law firm of Grubman Indursky & Schindler, P.C.
Ultimately, Cohen decided to transfer some of the income from
the First Sony Sale into charitable remainder trusts. On October 30, 1996,
Cohen established three trusts: the Sabbath Day Charitable Trust (the
"Sabbath Day Trust"), the Cohen Family Charitable Trust (the
"Cohen Family Trust"), and the Cohen Remainder Trust (the
"Remainder Trust") (collectively, the “Trusts”).
Cohen … repeatedly withdrew large amounts of the Trusts’ assets.
On repeated occasions, TAS notified Cohen (both directly, when possible, and
per instruction through Lynch) that Cohen was spending more than recommended
from the Trusts, and thus, was draining down the Trusts’ principal.
On one such occasion, on April 13, 2001, Greenberg, on behalf of
TAS, wrote to Cohen: “I am writing to
you to discuss the income withdrawals you’ve received from your portfolio and
to provide you with some helpful guidelines for the future. When we originally
constructed your portfolio in 1997, you may remember that we had extensive
conversations about how much you required for your annual living expenses.”
In or about 1999, Cohen put more of his IP up for auction. In
1999, Sony and Cohen … negotiated for a second sale of IP to Sony for about $8
million (the "Second Sony Sale"). The artist royalties to be sold were
represented by Cohen as being held by another … entity, Blue Mist Touring Co.,
Inc. ("Blue Mist"). Cohen was
the Chairman, President, and majority shareholder of Blue Mist, owning 425
shares, while Lynch was the Assistant Secretary and minority shareholder of
Blue Mist, owning 75 shares, or 15% of the company.
Cohen asked Westin, and in the spring of 2000, Greenberg, to
provide advice about how to invest the anticipated proceeds from the Second
Sony Sale and minimize the sale’s tax burden.
Cohen leapt at this opportunity to minimize his tax burden [via
Traditional Holdings, LLC], just as he had explored all possible means of
reducing his taxes in years past, such as by seeking a tax credit for donating
his papers to a Canadian museum [University of Toronto], and using artifices in
dealing with Sony to avoid paying any Canadian taxes (as a Canadian citizen) on
his royalty income earned in Canada.
Westin’s proposed plan had the following basic components: a limited
liability company – which eventually became Traditional Holdings – would be
created. Blue Mist would transfer certain IP assets to Traditional Holdings in
exchange for a deferred annuity, to be paid to Cohen beginning in about 10
years. Traditional Holdings would then sell the assets it received from Blue
Mist to Sony. The tax plan prevented Cohen, the annuitant, from owning more
than a de minimis interest in Traditional Holdings. Therefore, Cohen would own less than 1%, and
another person – who ultimately was Lynch – would own the remaining LLC
interest (more than 99 percent).
Westin outlined this proposal to Cohen and Lynch both orally and
in a series of letters and other written communications between October 2000
and December 2000. See, e.g., Exh. 1 attached.
In these written communications, Westin explicitly warned Cohen
that since the annuity plan gave significant transactional control to Lynch,
and also potentially placed tax and other burdens upon her as majority
shareholder, the plan would work only if Cohen and Lynch maintained (as they
had in the past) a long-term relationship of personal and professional trust
which would secure their mutual obligations as manager of the obligor (Lynch)
and annuitant (Cohen). See, e.g., Exh. 2 attached.
Cohen carefully reviewed, understood, and signed off on the
ownership structure of Traditional Holdings – including the fact that Lynch
would own 99 percent of Traditional Holdings’ membership interests, so as
(among other reasons explained by Westin) to avoid any suggestion of
self-dealing.
First, Cohen reviewed the Traditional Holdings Articles of
Organization, and reviewed and executed the Traditional Holdings Operating
Agreement, which set forth in detail the entity’s ownership structure and
managerial procedures. See Traditional Holdings Articles of Organization and
Operating Agreement (Exh. 3 attached).
Second, Cohen participated, at his request, in conference calls
with Westin and Lynch and/or Greenberg during which the structure was carefully
reviewed.
Third, Cohen talked about the structure of Traditional Holdings
privately with Lynch, including when he forced her to discuss it with him while
he took a bubble bath.
Fourth, in addition to several explanatory faxes he received
from Westin describing Traditional Holdings, Cohen communicated specific
questions, through Lynch, relating to Traditional Holdings’ ownership and
transactional structure, which questions Westin answered in a letter written
directly to Cohen on December 4, 2000, and faxed (as with his prior memos)
directly to Lynch and Cohen. See, Exh. 2.
Moreover, regardless of whether Lynch owned 1 percent or 100
percent of the shares of Traditional Holdings, Cohen knew or should have known
that she had or came to have authority – through a durable power of attorney
and pursuant to her role as Traditional Holdings’ manager – to act, and give
directions, on Traditional Holdings’ and on his own behalf. See, e.g., Exh. 3.
Likewise, no matter who owned the majority of shares of
Traditional Holdings, the obligation to fulfill a deferred annuity obligation
to Cohen remained the same. Thus, Cohen's interests in the firm (the long term
annuity payments) were identical, no matter how his purported ownership
interest in the assets were held and invested in the interim.
In December 2000, Westin created Traditional Holdings as a
Kentucky limited liability company. Lynch was named as the initial manager in
the Articles of Organization, and both Cohen and Lynch were appointed as
managers in the Operating Agreement. Id. Also in December 2000, Cohen signed a
Private Annuity Agreement with Traditional Holdings which document sets forth
Traditional Holdings’ annuity obligations to Cohen. See, Private Annuity
Agreement (Dec. 7, 2000) (Exh. 4 attached). Lynch signed the Private Annuity
Agreement on Traditional Holdings’ behalf. Westin maintained, and continues to
maintain, that the company and its annuity contract with Cohen are legitimate
under prevailing interpretations of the federal tax code.
To purchase her ownership interest in Traditional Holdings,
Lynch was required to submit to Traditional Holdings a promissory note for
$240,000. It was agreed that Lynch would receive a salary and/or distributions
from Traditional Holdings sufficient to pay down the $240,000 promissory note
and to cover tax liabilities. See, Exhs. 2 and 3.
As set forth in the Operating Agreement, Traditional Holdings
was authorized to issue loans to its members, Cohen and Lynch, as long as the
loans were paid back before the annuity obligations commenced. See, Exh. 3.
In April 2001, the Second Sony Sale was completed. The gross
proceeds of the Second Sony Sale were approximately $8 million, less certain
identified costs, expenses, and holdbacks for undelivered work.
Of these proceeds, Cohen had already requested and received $1
million as an advance in November 1999. Cohen was well aware of this $1 million
advance because it became the subject of a tax dispute with the Internal
Revenue Service in 2002.
Of the remaining proceeds of the Second Sony Sale, [certain]
amounts were paid to cover the costs involved in closing and negotiating the
Second Sony Sale:
$350,000 Grubman Indursky & Schindler, P.C. (attorneys for
Cohen)
$333,750 McBowman Consulting Group (consultants for Cohen)
$30,450 Epstein Backer & Green, P.C.
$1,101,250 Stranger Management (commissions to Lynch's company)
Kelley Lynch comments in
bold: The following amounts, as
confirmed in Cohen’s Complaint, should have been fully addressed in Neal
Greenberg’s Amended Complaint. Cohen’s
Complaint, Clause 61, confirms that transaction fees related to the 1st
and 2nd Sony deals totaled approximately $4.7 million and listed the
following amounts:
$1.2 million – Stranger
Management
$350,000 – legal fees
(Grubman, Indursky firm)
$350,000 – consultant
fees (Greg McBowman)
$500,000 – for federal
income taxes and penalties due on Sony’s $1 million advance paid on the sale in
1999.
$100,000 – Richard
Westin legal fees
$200,000 – Leonard
Cohen’s settlement fees re. failed CAK bond deal
Additionally, Cohen
withdrew approximately $592,000 as a “shareholder loan” from the Traditional
Holding account to purchase homes for his son and girlfriend. The Greenberg Complaint confirms that
$2,084,518 belonging to Traditional Holdings, LLC was deposited into Leonard
Cohen’s account. Leonard Cohen also
personally received $1 million advance on the Traditional Holdings, LLC 2001
sale and failed to transfer this amount to the corporate entity. The above expenses, loans, income and
deposits total: $6,376,518.00. In addition to this, a Promissory Note was
prepared and signed by Leonard Cohen.
That Promissory Note addressed an additional approximate amount of
$355,000 Leonard Cohen owed Traditional Holdings bringing the total to: $6,626,518.00 with interest in the amount of
6% per annum.
None of these listed expenses had anything to do with either the
formation of the annuity plan or
with Traditional Holdings’ dealings … Westin did receive a
modest fee for his work on the Traditional Holdings documents, and for consulting
with Sony on Cohen and Traditional Holdings’ behalf.
Agile Group [sent] official monthly statements to Cohen at the
Larchmont Address (the record address for Traditional Holdings) setting forth
the performance of the Traditional Holdings’ funds invested in the Agile Safety
Fund. See, e.g., Exhibit 6 (example of monthly statements sent by independent
outside administrator). In addition, Agile Group, LLC sent monthly letters to
Cohen which, as a courtesy, summarized the deposits into and withdrawals from
the Agile Safety Fund by Traditional Holdings. Id. (example of monthly
summaries sent by Agile Group, LLC).
No sooner had Traditional Holdings been funded, however, than
Cohen – just as he had done with the Trusts’ assets from the First Sony Sale,
and notwithstanding Greenberg’s prior warnings about draining down investment
money – began to dissipate the Traditional Holdings funds, jeopardizing his own
long-term annuity interests, as well as the company’s legitimacy. Greenberg and
others were immediately alarmed by Cohen's desire and tendency to treat this
company like his own personal piggybank, out of which he could borrow or take
distributions against his annuity benefits.
For example, almost immediately after the funding of Traditional
Holdings, Cohen took out a loan for $50,000. This was followed, during 2001 and
2002 alone, by several loans to Cohen … to cover tax liabilities, houses for
Cohen's son and his current girlfriend, and living expenses. These 2001-2002
loans to Cohen –amounting to over $1 million – were deposited directly into
Cohen’s personal bank account at City National Bank in Beverly Hills,
California.
In March 2002, Greenberg [spoke to] Cohen directly by telephone,
Cohen “admitted he was spending too much and seemed a little shaken when
[Greenberg] reminded him how much he had just spent on gifts to friends."
Lynch repeatedly assured Agile Group, LLC and TAS that the loans
from Traditional Holdings were being properly documented with Westin’s assistance.
Cohen’s tax attorney, Westin, also was aware of and in regular communication
with Lynch [Cohen, Greenberg, and Cohen’s other representatives] concerning the
shareholder loans and other aspects of the affairs and management of
Traditional Holdings.
The March 5, 2002 Traditional Holdings Board Meeting Minutes,
prepared at Westin’s direction, state “that the level of borrowing was
undesirable and [the members] expressed their assent that further borrowing was
discouraged, even though the borrower’s [Cohen’s] credit and collateral were
good.”
Cohen, however, gave no sign that he had any intention of
abating his spending habits. In an e-mail to Lynch dated March 4, 2002, Cohen
thanked Lynch for “keeping [him] informed,” and instructed her to “give lots of
money to everyone.”
Because these shareholder loans were to be repaid, and because
it was necessary to protect the entity’s integrity for tax purposes, these
shareholder loans were properly characterized, on Cohen’s tax attorney Westin’s
advice, as Traditional Holdings assets when calculating the entity’s value.
Lynch, on Cohen’s behalf, sent e-mails to Colorado in response
to Greenberg’s warnings, defending the loans, giving assurances that all of the
loans were proper and documented, and assuring that they would be paid off when
Cohen received the money from another, upcoming Sony transaction.
In October 2004, Cohen and Lynch had a major falling out, the
details of which remain unknown to Plaintiffs. As a result of this falling out,
the Third Sony Sale – which appeared to be on the verge of consummation – never
happened.
On October 21, 2004, Cohen personally contacted Greenberg by
e-mail and informed him that Lynch was “busy with other aspects of [his]
career,” and therefore, Cohen had “relieved her of all financial
responsibilities.” Cohen further stated that Lynch “need not be copied on your
statements or reports,” and that Cohen's new accountant would “be in
touch.”
On October 22, 2004,
Cohen sent another e-mail to Greenberg stating that Lynch “no longer represents
me,” and directing Greenberg not to “respond to any of her instructions.”
On or about October 24, 2004, Cohen again communicated directly
with Greenberg by e-mail, stating that his business address was no longer the
Larchmont Address or Keniston Address. With allegations flying fast and furious
from Cohen – and later Kory – that Lynch was acting without due authority from
Cohen, remarkably, a request to change Cohen's record address was left on
Plaintiffs’ general voice mailbox by Anjani Thomas. Only later did Plaintiffs
learn the identity of Ms. Thomas – Cohen’s current girlfriend, and Kory’s
ex-wife. Thus, Plaintiffs demanded an
original signature from Cohen on a document verifying the new address
Given Lynch’s position as manager and 99.5% owner of Traditional
Holdings, and learning of the apparent schism between Lynch and Cohen, Agile
Group, LLC became concerned about whose directions as to the Traditional
Holdings account it was legally obligated to follow. On October 24, 2004, Agile
Group, LLC communicated with Westin – Cohen's attorney who had created
Traditional Holdings – and inquired: “Does Leonard in your view have equal
authority over the accounts that we manage? What if there are contradicting
directive on those accounts that we manage? For example if KL says 'take money
out' and LC says don’t take money, what is your view . . . .” Westin confirmed
that because Cohen held a membership interest in Traditional Holdings, Agile
Group, LLC could share information with him about Traditional Holdings’
investments. Westin could not, however, answer the issue of conflicting
directives, and instead referred Agile Group, LLC to Traditional Holdings'
governing documents (drafted by Westin), which documents provided little, if
any, guidance on the issue.
At or about this same time (October 22-24, 2004), Cohen phoned
Greenberg. Cohen said that he thought Lynch had been taking money from
Traditional Holdings without Cohen's authorization. He claimed that Lynch was
using the money to support a gigolo and
to fund shopping sprees at Neiman Marcus, and suggested that Lynch and Westin
may have colluded to defraud him. When
Greenberg reminded Cohen that Westin had warned Cohen in 2000 that "the
biggest risk" from Westin's tax avoidance plan “was that Lynch would own
his [the] assets and he would have lost control,” Cohen stated that he recalled
that initial warning.
According to Lynch, however, Cohen regularly visited his
management offices, often in Lynch’s presence, and reviewed and discussed his
mail with her, all of which was kept on his desk to facilitate such review,
including all correspondence, reports, and statements from the Agile Safety
Fund’s independent, outside administrators, and from Plaintiffs.
Cohen then turned to his agent and attorney Kory to deal with
Lynch, Westin, and Plaintiffs.
Based on these checks, Agile Group, LLC calculated that, of the
loan money withdrawn from Traditional Holdings:
a. $2,084,518 had been deposited into Cohen’s own personal bank
account;
b. Lynch personally had outstanding loans of approximately
$293,000, which loans she represented had been disclosed to and sanctioned by
Cohen;
Her abrupt termination frustrated Lynch's ability to make good
on any loans through her share of receipts from the Third Sony Sale, the
"Dear Heather" album, a pending sale of original lithographs, or
other sources, and left her in a precarious financial position …
In November 2004, Lynch was asked by [Cohen] to appear without
the benefit of counsel at a meeting with Cohen, Kory, and … Greenberg, Glusker law firm acting as legal
counsel for Cohen, and to sign certain legal documents related, inter alia, to
unwinding Traditional Holdings on the spot [settle with Cohen]. Lynch refused to do so without benefit of
counsel, and subsequently received advice from a variety of legal, accounting
and tax professionals, including but not limited to Mike Taitelman, Dale
Burgess, Dianne DiMascio, and an IRS officer named Betzer, that she was wise
not to sign, because such action could have been fraudulent.
[NOTE: Lynch did not receive this specific advice
from IRS Agent Betzer. Lynch spoke to Agent
Betzer on April 15, 2005 and thereafter about the allegations re. Leonard
Cohen’s tax fraud and numerous corporate entities. Agent Betzer first advised Lynch to bring
this matter into the IRS with an attorney and then later instructed her to
contact the IRS fraud unit.]
Lynch claimed that she had substantial, unsatisfied interests in
Cohen's business entities and/or intellectual property. If Cohen were to attempt
to recover money from Lynch, she would likely assert counterclaims alleging
that Cohen owes her, and has never paid, substantial amounts of money; and,
according to Lynch, and upon information and belief, such possible
improprieties included, but were not limited to, the retention by Blue Mist and
other persons or entities of IP that should have passed through Traditional
Holdings to Sony, the failure to reference or disclose the annuity obligation,
loan obligations, and other important matters on Traditional Holdings’
corporate tax returns, and Cohen’s failure to properly document Traditional
Holdings’ transactions.
Because any attempt to recover money from Lynch was likely to be
both futile and treacherous, Cohen, Kory, and other unnamed co-conspirators
(including Steve Lindsay, Betsy Superfon, and John Doe Nos. 1-25) … conspired
...
Thus, for example, although the attorneys and accountants
involved in the Second Sony Sale structured and received hefty fees for that
transaction, which Kory charged were excessive, Cohen and Kory decided not to
pursue any of those persons because they would not be easy targets, and because
many of them – principally Sony and its law firm and advisors –continued to do
business with Cohen profitably. Instead, Cohen and Kory decided to go after
Plaintiffs, none of whom had any role whatsoever in that Sony transaction
and/or received any benefit therefrom.
[NOTE: In a Memorandum Kory provided to Lynch’s
lawyers, Ira Reiner and Kevin Prins, he raised issues related to fraud in the
inducement against members of the Grubman firm and Greg McBowman. Kory advised Lynch’s lawyers that they were
considering going after Ken Cleveland.
Kory also advised Lynch that she had a cause of action against every one
of Cohen’s representatives and they would assist her with those claims if she
provided testimony against Cohen’s representatives and advisers.]
He [Leonard Cohen] told Greenberg to "be a man" and
contact his insurance company. “Please
do talk to the insurer. A great deal of suffering can be avoided.”
Cohen with affirmative support from Kory, Steve Lindsay and
Betsy Superfon, and John Doe Nos. 1-25, all acting toward a common end and each
for his or her own purposes, began to direct an extortion scheme …
Cohen and Kory indicated that, unless Plaintiffs obtained
insurance funds … Cohen would go out on tour to promote his new album, and
would give interviews to reporters in which he would state or insinuate that he
was touring because he had been bankrupted by the improprieties of his
financial advisors.
Cohen and Kory knew full well that, from Plaintiffs’
perspective, once a celebrity were to raise such allegations of fraud and
breach of duty against them, the damage would already be done, no matter the
ultimate outcome.
Cohen and Kory began to pressure Lynch to assist in the
extortion scheme against Plaintiffs. Specifically, they requested that she
falsely testify … Cohen sought to obtain … testimony from Lynch knowing that
the testimony would be false.
Lynch's cooperation in Cohen’s extortion scheme was critical.
Cohen believed that he could not only use Lynch as a witness against
Plaintiffs, but could also buy or coerce her silence as against himself at the
same time.
Thus, Cohen pressed for private "mediation" as an alternative
to a public lawsuit, knowing full well that with Lynch's cooperation and
silence, many of the critical documents concerning Cohen's financial affairs –
documents that indubitably show … his aggressive tactics to avoid taxes at all
costs, and his desire to capitalize on and benefit from all of his intellectual
property during his lifetime to fuel an extravagant lifestyle – would not be
the subject of discovery
Thus, by deliberate misrepresentations and omissions of critical
facts … Cohen could knowingly and deliberately misrepresent his objectives and
sophistication as an investor, his long history of aggressive tax management,
his long history of exploitation of his IP for immediate gain and profit, his
profligacy …
For example, Cohen affirmatively misrepresented to Plaintiffs
that Lynch had simply forged his signature on various documents, knowing full
well that she had not done so, or had signed with his full authority (as borne
out by his subsequent actions – such as purporting to state claims based on
agreements with TAS bearing his signature, and revoking a power of attorney
bearing his signature that he acknowledged executing).
Cohen likewise falsely asserted that at no time had he
authorized any of the shareholder loans from Traditional Holdings, and made
various accusations against Lynch for which he had no basis in fact …
As one example, he claimed never to have known, prior to
November 2004, that Lynch was the majority shareholder of Traditional Holdings,
thereby implying that he had been deceived by Plaintiffs and Westin. He also denied receiving information about
Lynch's role as managing the obligation to pay his annuity, and denied ever
receiving any information from Plaintiffs other than some monthly email
summaries, even though he was easily able to retrieve Plaintiffs’ other written
warnings, reports and correspondence from [Lynch’s] own Keniston office address
in 2004, and was reported by Lynch to have regularly visited the office,
reviewed his mail, and discussed Traditional Holdings' loans and his other
accounts with her on a regular basis.
In particular, starting in March 2005, Cohen began to assert
that Plaintiffs were responsible for the loss of $8 million, which figure
included many
millions of dollars which they knew Cohen had, in fact,
received and previously spent in support of his own extravagant lifestyle.
… according to Lynch and others, he was prepared to admit or
agree with Lynch that she owed Cohen nothing.
Having garnered the support of Lynch's then-attorney, Dianne
DiMascio (“DiMascio”), Cohen felt
confident enough in January 2005 to misrepresent to Plaintiffs’
counsel, through Kory, that Lynch was then of the view that she, along with
Cohen, was a victim of the misconduct of Plaintiffs and Westin.
Cohen and Kory continually sought to purchase or coerce Lynch’s
cooperation
In a demand letter from Kory to DiMascio, Kory wrote: I want to reemphasize my position that I am
willing to work with you as part of a settlement between Mr. Cohen and Ms.
Lynch in going
after Westin’s and Greenberg’s insurers as a source of restitution.
Thereafter, on January 11, 2005, Kory wrote to DiMascio, telling
her that [Ira Reiner believed] “properly framed letters to Greenberg and to
Westin would cause their insurance companies to show up.”
Lynch declined to attend the meeting in person. Instead,
DiMascio went to the meeting on Lynch’s behalf in early February 2005, after
which she reported to Lynch: “[Cohen and Kory] want your cooperation in pursuing [the
Plaintiffs] and Richard Westin. In this regard, they seem to want you
to acknowledge that you knew that Neal [Greenberg] and Richard
[Westin] wanted to defraud Leonard and that you approved their conduct.”
Repeatedly, from at least November 2004
through April 2005, Kory made known
to Lynch, directly, through counsel,
through Steve Lindsay (the father of Lynch’s youngest child
and one of Cohen’s record producers), through
Lynch’s accountant Dale Burgess, through
accountant Mike Taitelman, and through
others among her friends and relatives, that he had
extraordinary negotiating authority from
Cohen to "forgive" any obligations of Lynch, to treat
them as a gift, to make additional payments
to her or her family members (including disguised as
"palimony" on the pretext that
Cohen is the father of one of her children), to make good on
Lynch's shares of IP rights or legal
entities, or even to dedicate a hefty percentage to her of
whatever funds could be extorted from
Plaintiffs and other advisors with her cooperation.
Kory tried to do this directly in late spring 2005 when he met
Lynch for lunch and tried to persuade her to work with Cohen to “go after”
Plaintiffs [and all of Cohen’s representatives].
Cohen and Kory also worked indirectly. For example, they recruited Lynch’s erstwhile
friend and longtime “friend” of Steve Lindsay, Betsy Superfon, a person of some
notoriety due, among other reasons, to her entrepreneurship in the telephone
sex trade. On numerous occasions, Kory [and Cohen] used Lindsay and Superfon to
try to “broker” deals with Lynch …
In one such conversation, in May 2005, Superfon, according to
Lynch, called Greenberg “the kingpin” and a “criminal” and pleaded with Lynch
to cooperate with Cohen for “[her] heart, [her] health, and [her] kids” and
recommended that Lynch “get out of this.”
Superfon promised that she could “settle this for [Lynch] immediately,”
and stated that “Leonard and Kory [are] trying to get you out of this
situation.”
When Lynch requested a settlement agreement in writing during a
later conversation, Superfon, according to Lynch, stated that when she asked
Kory to fax Lynch a settlement, Kory said “you can’t fax this kind of a deal.
It has to be discussed.” [Superfon
advised Lynch that she personally believed the deal they were offering was
illegal.]
Through Lindsay, Superfon and other friends, relatives and
acquaintances, Cohen and Kory delivered the message that giving in to Cohen’s
wishes would be in Lynch’s best interest.
When these tactics to draw Lynch into his extortion scheme
proved futile, Cohen and Kory – according to Lynch – turned to far more
aggressive means to obtain her cooperation.
Indeed, as heard by other witnesses, Cohen and Kory vowed to “crush
her,” and planned to use restraining orders and other means to prevent her from
serving as a credible witness regarding both Cohen's affairs and in regard to
the scheme into which they had tried without success to draw her.
Consistent with that vow and plan, and according to Lynch and
other witnesses, and on information and belief, Cohen and Kory's tactics to
terrorize, silence, or disparage Lynch have included, inter alia, the
following:
a. contacting City National Bank, where Lynch, Lynch’s son ..,
all had personal banking accounts, and convincing City National Bank to put a
freeze on … their accounts;
b. alleging that Lynch's father and mother were depositing funds
for Lynch in secret offshore bank accounts … ;
c. threatening Lynch that she would go to jail if she did not
cooperate, and having her younger son's father, Steve Lindsay, who was also
Cohen’s record producer, repeat these threats in the child's presence;
d. threatening to “go to child services,” encouraging Steve
Lindsay to file legal action to remove Lynch’s younger (and his) son from her
custody, and submitting affidavits (from Kory and Superfon) supporting that
effort;
e. in a coordinated fashion with Lindsay’s child custody
petition, encouraging or directing Steve Lindsay to call in a warning to the
LAPD (not related to Traditional Holdings, but on some other, unknown pretext)
that caused a police team to descend, guns drawn, on Lynch's home, resulting in
her being handcuffed and taken involuntarily, in her bathing suit, to a
hospital psychiatric ward and medicated without her consent, before being
released the next day, during which time Kory attempted to persuade Lynch’s
older son, Rutger, to sell Lynch’s house and provide $3 million; and
f. paying two paroled convicts to make [false] statements [about
Lynch’s older son].
These and other tactics brought Lynch to the point of … financial
ruin.
Cohen’s scheme to force Plaintiffs into a contrived mediation
without discovery or publicity might have succeeded, had not Lynch refused to
cooperate. Instead, she made the unilateral decision to provide to Plaintiffs'
legal counsel a variety of documents and other information that they might not
have otherwise seen … See, e.g., Facsimile Message from K. Lynch to S. Posel
(March 17, 2005) (Exh. 11 attached).
Fortunately, Lynch [permitted Boies Schiller to review] not only
historical files, but also the details of Cohen and Kory's illicit offers made
to her through attorney DiMascio, through accountant Dale Burgess, and through
other intermediaries, and shared every detail of Cohen and Kory's attempts to
negotiate with or threaten her in order to obtain … testimony ...
Cohen and Kory continued to heighten their efforts to bribe or
coerce Lynch into giving … testimony … without knowing that Lynch had already
exposed their scheme …
Cohen and Kory alleged that Plaintiffs “proposed the sale of
Cohen's ‘illiquid assets,’ including Cohen's various royalty interests,” and
contended that “Cohen was convinced by [Greenberg] of the financial necessity
to sell off his royalty interests during his lifetime . . . .”
Cohen and Kory alleged that Plaintiffs were liable for “actual damages
of at least $8 million,” which was an amount even greater than the total
proceeds of the Second Sony Sale. In fact, Cohen and Kory made this allegation
with full knowledge that Cohen had already received at least $1 million in
advance of the Sale closing, that the gross proceeds had been reduced by
specific costs and charges, that were well over $1 million had been paid out to
third parties to cover closing costs from the Sale, and that Cohen had received
at least $2 million of the remainder into his own personal bank account.
Cohen reviewed the Traditional Holdings governing documents
(detailing that arrangement), that he repeatedly received and understood both
oral and written explanations of this very fact, and that [Lynch was not]
behind the formation or structure of Traditional Holdings.
Thereafter, on June 3, 2005, Plaintiffs provided Kory, as
promised, a draft complaint … with extensive documentary support … The draft
complaint also revealed to Cohen and Kory, for the first time, that Lynch and
others had already exposed the extortion scheme. In particular, the draft
complaint demonstrated that Plaintiffs were aware of Cohen’s scheme to use
economic compensation, emotional intimidation, and other forms of undue
pressure to coerce Lynch to provide … testimony …
At all relevant time periods stated herein, Kory acted, at a
minimum, as an agent, attorney, joint venturer, and/or co-conspirator of Cohen
…
Cohen and Kory knew that the false, disparaging, and defamatory
press release was not made in furtherance of any lawful objective or within the
scope of the litigation commenced by Plaintiffs, and that the intended
recipients were not involved in or closely connected with the litigation.
As a result of Cohen and Kory’s improper
and unlawful conduct, the false, disparaging and defamatory press release was
immediately published on, inter alia, the following interactive and other
websites:
(a) www.leonardcohen.com
(the official Leonard Cohen website, which
has a link to the chat room for the Leonard Cohen files, where the statement
was published);
(b) http://www.cmumusicnetwork.co.uk/daily/050616.html
(states that “Kory told CMU” and then
quotes the Cohen and Kory press release);
(c) http://xrrf.blogspot.com/2005/06 leonard-cohen-mr.-big.html (referencing the quoted statement as “released by Leonard Cohen’s lawyer” and referring to it as the “Attorney Robert Kory Statement”);
(d) http://blogs.theage.com.au/malcontent/archives/2005/06/leonard_cohen_s.html
(also referencing the quoted statement as
“released by Leonard Cohen’s lawyer” and referring to it as the “Attorney
Robert Kory Statement”; also later reported by MalContent to have been “emailed
by
an industry rep to MalContent”); and
Leonard Cohen sued by investment company,
alleging civil conspiracy, extortion
June 2005
Musician and
legend Leonard Cohen is being sued by a
Colorado investment company Agile Group, which
alleges Cohen and another person threatened to irreparably damage Agile's
reputation in order to extort millions of dollars from Agile and its insurer.
The case is related to claim by Cohen that Agile bears responsibility for the
alleged misappropriation of Cohen's invested funds by Cohen's former manager.
Read it here.
Don's ask me why, but Cohen's
classic, Everbody Knows comes
to mind.
A statement released by Leonard Cohen's lawyer points to the truth
of this sad state of affairs:
ATTORNEY ROBERT KORY STATEMENT
IN RESPONSE TO AGILE GROUP SUIT
INVOLVING LEONARD COHEN
IN RESPONSE TO AGILE GROUP SUIT
INVOLVING LEONARD COHEN
"The suit filed by the Agile Group Monday, June 6, 2005 is
completely
consistent with Agile's reckless disregard for its client and his
investments.
consistent with Agile's reckless disregard for its client and his
investments.
We had hoped to reach an out-of-court settlement with Agile that
returned to Mr. Cohen some portion of the retirement money the firm was
authorized to administer on his behalf. Instead, in the middle of
negotiations to determine Agile's responsibilities to Mr. Cohen to
compensate him for money lost under their management, Agile launched a
surprise attack in an effort to besmirch the reputation of one of its
notable clients.
returned to Mr. Cohen some portion of the retirement money the firm was
authorized to administer on his behalf. Instead, in the middle of
negotiations to determine Agile's responsibilities to Mr. Cohen to
compensate him for money lost under their management, Agile launched a
surprise attack in an effort to besmirch the reputation of one of its
notable clients.
Agile repeatedly failed to alert Mr. Cohen to true account
balances
while allowing improper and unauthorized withdrawals by Cohen's former
business manager. In doing so Agile failed to protect Mr. Cohen's
interests and retirement savings and knowingly misled him by providing
inaccurate financial reports.
while allowing improper and unauthorized withdrawals by Cohen's former
business manager. In doing so Agile failed to protect Mr. Cohen's
interests and retirement savings and knowingly misled him by providing
inaccurate financial reports.
We will of course file a counter suit that lays out in detail how
Agile
acted in a reckless way that violated the firm's fiduciary
responsibilities towards Cohen and consequently resulted in the loss of
Mr. Cohen's retirement savings."
acted in a reckless way that violated the firm's fiduciary
responsibilities towards Cohen and consequently resulted in the loss of
Mr. Cohen's retirement savings."
·
Posted by: Adrian du Plessis at June 14, 2005 08:07 PM
(e) http://bcbr.datajoe.com/app/ecom/pub_print_article.php?id=58402
(the website for the Boulder County
Business Report, published in Colorado, which references Kory’s posting of the
statement on Cohen’s website, and re-publishes the statement).
181. In addition, Cohen made false,
disparaging, and defamatory statements and republished
false, disparaging and defamatory e-mails
to a reporter for an industry publication known as MacLeans, knowing that the
statements would be immediately published by MacLeans to the general public via
the internet and other print publications. The MacLeans article, published via
the internet on August 17, 2005. SEE ATTACHED. [Excerpt:
Cohen wrote (Greenberg) in November 2004 … “Face up to it, Neal,” the email continues,
“and square your shoulders: You were the
trusted guardian of my assets, and you let them slip away . . . Restore what
you lost, and sleep well.” In his sign-off, Cohen delivered as much a piece of advice as
his own philosophy: “Put this behind you and it will dissolve.”]
The wrongful conduct described herein was
attended by circumstances of fraud, malice, willful and wanton behavior, and
bad faith.
Consistent with their prior threats, Cohen
and Kory have knowingly published or caused to be published false information
concerning [Lynch and possibly others] in the public domain …
The false, disparaging, and defamatory
press release and other statements are not protected by any statutory or common
law privilege because the statements were not made in furtherance of any
objective of litigation, either lawful or otherwise, and because the intended
and actual recipients of the statements were not involved in or closely
connected with the litigation.
The … statements, and other defamatory
statements, were communicated to and understood by third parties to be
defamatory, and have harmed [Lynch and possibly others] reputation in the
community.
Cohen and other co-conspirators not currently named as
Defendants herein (including Robert Kory, Steve Lindsay and Betsy Superfon)
committed one or more unlawful acts in furtherance of these common goals and
objectives.
The unlawful goals and objectives of the
conspiracy included inter alia the following:
(a) The extortion and/or attempted extortion of money or property from
Plaintiffs and their insurers [and others, including Lynch] in Colorado [and
elsewhere] to recover alleged losses sustained by Cohen as the result of his
own exorbitant spending habits, his own neglect and mismanagement of his
financial, legal and personal affairs … The making of substantial threats, that
were reasonably likely to induce [Lynch and possibly others] that the threats
would be carried out, and would cause
significant economic hardship or damage to
the reputation [of Lynch and possibly others] with the intent to induce
[certain parties] to perform acts against their will; The offering of benefits
[to properly compensate Lynch with respect to her ownership interest in
numerous corporate entities; for services rendered; and so forth] to a witness
and/or members of the witness’ family with the intent to influence the witness
to testify falsely or unlawfully withhold truthful testimony; The use of
threats, acts of harassment, or acts of harm or injury to persons [including
Kelley Lynch] or property, directed to or committed upon a witness and/or
members of the witness’ family to intentionally attempt and/or actually
influence the witness to testify falsely or unlawfully withhold truthful
testimony; The intentional attempt to
induce a witness to testify falsely or unlawfully
withhold truthful testimony; The generation
and dissemination of a false, disparaging and defamatory press release and
other similar statements to third persons with the knowledge, intent, and
directive that such statements be disseminated by media publication and the
internet throughout [the world].
Cohen’s conduct described herein was
attended by circumstances of fraud, malice, and willful and wanton behavior.
Cohen and the other co-conspirators not currently named as
Defendants herein (including Robert Kory, Steve Lindsay and Betsy Superfon)
knowingly conducted or participated, directly or indirectly, in such enterprise
through a “pattern of racketeering activity” … The acts of racketeering
activity which Cohen and the unnamed co-conspirators, and the enterprise
committed, attempted to commit, conspired to commit, solicited, coerced or
intimidated others to commit included, inter alia: (a) Mail fraud; (b) Wire fraud; (c) Interference with
commerce by threats; (d) Criminal extortion; (e) Bribing a witness; (f)
Intimidating a witness; (g) Tampering
with a witness. [The witness is Kelley Lynch]
The predicate acts described herein formed
a pattern of racketeering activity, were related to the conduct of the
enterprise, and were related to each other as part of the common plan …
Cohen and his agents and attorneys have
engaged, and are continuing to engage, in a continuous and relentless pattern
of malicious and unwarranted conduct, as described more fully herein [and in
Lynch’s legal documents in various related matters and elsewhere].
Judge Babcock’s December 5, 2005 order
dismissing Robert Kory from this case [due to lack of personal jurisdiction]
contains the following statements. The
tactics and purported thuggery Judge Babcock refers to are ongoing and
ineffective: They tried to compel Ms. Lynch to participate in
their project by, among other tactics, having her arrested on false pretenses
and initiating proceedings to deprive her of her children. The Amended
Complaint does not indicate that this purported thuggery was effective.”
RE: JUDGE LEWIS
BABCOCK’S ORDER
Only the above allegations or statements in
Neal Greenberg’s Amended Complaint are factual.
UNITED STATES DISTRICT
COURT, D. COLORADO.
GREENBERG ASSOCIATES.
INC. v. COHEN
(D. Colo. Dec 05, 2005)
Decided December 5, 2005
GREENBERG ASSOCIATES. INC., d/b/a Agile
Advisors, Inc. a Delaware corporation, TACTICAL ALLOCATION SERVICES, LLC, d/b/a
Agile Allocation Services, LLC, a Delaware limited liability company, AGILE
GROUP, LLC, a Delaware limited liability company, GREENBERG ASSOCIATES
SECURITIES, INC., d/b/a Agile Group, a Delaware corporation, and NEAL R.
GREENBERG, a Colorado resident, Plaintiffs, v. LEONARD COHEN, a Canadian
citizen residing in California, ROBERT KORY, a United States citizen residing
in California, KELLEY LYNCH, a United States citizen residing in California,
and JOHN DOE, Numbers 1-25, Defendants.
Civil Case No. 05-cv-01233-LTB-MJW.
United States District Court, D. Colorado.
December 5, 2005
ORDER
LEWIS BABCOCK, Chief Judge
The defendant Robert Kory moves for dismissal
of all claims against him on the alternate grounds that I have no personal
jurisdiction over him, Fed.R.Civ.P. 12(b)(2), and that the plaintiffs have
failed to state a claim against him, Fed.R.Civ.P. 12(b)(6). The motion is
adequately briefed and oral arguments would not materially aid its resolution.
For the reasons stated below, I find and conclude that I have no personal
jurisdiction over Mr. Kory and I GRANT the motion pursuant to Rule 12(b)(2).
Because Mr. Kory has contested the Court's
jurisdiction, the plaintiffs have "the burden of proving jurisdiction
exists." Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th
Cir. 1995). *22 "Where, as in the present case, there has been
no evidentiary hearing, and the motion to dismiss for lack of jurisdiction is
decided on the basis of affidavits and other written material, the plaintiff
need only make a prima facie showing that jurisdiction exists." Id.
In resolving factual questions:
The allegations in the complaint must be taken
as true to the extent they are uncontroverted by the defendant's affidavits. If
the parties present conflicting affidavits, all factual disputes must be
resolved in the plaintiff's favor, and the plaintiff's prima facie showing is
sufficient notwithstanding the contrary presentation by the moving party.
However, only the well-pled facts of plaintiff's complaint, as distinguished
from mere conclusory allegations, must be accepted as true.
Id. (citations omitted).
I. Allegations The allegations of the Amended Complaint are substantially the
following. In 1997, the defendant Leonard Cohen, a resident of California,
retained the plaintiffs, directed by the plaintiff Neal Greenberg and
headquartered in Boulder, Colorado, to create for him charitable trusts and to
manage the assets placed into those trusts. (Throughout the Amended Complaint
and their briefs, the plaintiffs refer to themselves individually and in the
aggregate as "Greenberg." They do not reveal the nature of their
relationships to each other. I have attempted to be as precise as the pleadings
and the record will allow.) Mr. Cohen allegedly drew extravagant sums from the
trusts, depleting the principal amounts and impeding the plaintiffs' efforts
successfully to invest the funds in profitable ventures. The defendant Kelley
Lynch, Mr. Cohen's manager, oversaw and had power of attorney over, all of Mr.
Cohen's financial dealings. Mr. Greenberg allegedly repeatedly warned Ms. Lynch
and Mr. Cohen that Mr. Cohen was spending too much and that, absent a change of
habit, he would become destitute. *33 In October, 2004, Mr. Cohen and
Ms. Lynch allegedly parted ways and began to issue competing directives to the
plaintiffs. They each blamed the other for Mr. Cohen's financial distress. Mr.
Cohen claimed that Ms. Lynch had deprived him of substantial sums of money.
Thereafter, Mr. Cohen and Mr. Kory, Mr. Cohen's personal attorney and a
California resident, allegedly conspired to extort the lost sums from the
plaintiffs by tarnishing the plaintiffs' reputation, asserting spurious claims,
and coercing a settlement from the plaintiffs' insurance carrier. This they
intended to accomplish by using Mr. Cohen's fame as a prominent recording
artist to publish defamatory statements about the plaintiffs to the press. They
tried to compel Ms. Lynch to participate in their project by, among other
tactics, having her arrested on false pretenses and initiating proceedings to
deprive her of her children. The Amended Complaint does not indicate that this
purported thuggery was effective.
Mr. Kory sent an allegedly defamatory demand letter to Mr.
Greenberg's attorney, wrongly accusing the plaintiffs of fraud and various
breaches of fiduciary duty. After the plaintiffs filed this lawsuit, Messrs.
Cohen and Kory allegedly published defamatory statements on Mr. Cohen's web
site, blaming the plaintiffs for the lost monies, asserting that the plaintiffs
had wrongfully permitted Ms. Lynch to withdraw unauthorized sums, and asserting
that the plaintiffs had provided Mr. Cohen with fraudulent accounting records.
Mr. Cohen and Ms. Lynch now dispute entitlement to the funds remaining in the
trusts. Each seeks immediate acquisition of the funds.
Mr. Kory allegedly submitted to the
jurisdiction of this Court by his purposeful and repeated written and
telephonic communications with the plaintiffs and his direction of Mr.
Greenberg's activities, performed in Colorado. Additionally, Mr. Kory allegedly
reserved a *44 conference room at the Denver International Airport
and scheduled a meeting, which he, Mr. Greenberg, Mr. Cohen, and Mr.
Greenberg's counsel were to attend. Messrs. Kory and Cohen allegedly failed to
appear for the meeting, which Mr. Greenberg attended.
II. The record
A. Kory affidavit
Mr. Kory has provided two affidavits replete with refutations of the
plaintiffs' jurisdictional allegations. He is licensed to practice law in
California, where he resides and has his law practice. He last traveled to
Colorado in 1985 or 1986 for a ski vacation. He has no business or property
interests in Colorado.
In the fall of 2004, Mr. Cohen retained Mr.
Kory to investigate suspected losses from an entity denominated Traditional
Holdings, LLC ("Traditional"), which the plaintiff, Tactical
Allocation Services, LLC ("Tactical") managed for Mr. Cohen under Mr.
Greenberg's direction. In the ensuing weeks, Mr. Kory contacted Tactical's
Boulder, Colorado office on two or three occasions. Tactical responded by sending
information about Mr. Cohen's accounts to Mr. Kory in California. Thereafter,
Mr. Kory communicated predominantly with Tactical's legal counsel, Sherab
Posel, whom Mr. Kory believed to be resident in New York. Though he engaged in
at least one email exchange with representatives of Tactical located in
Boulder, Mr. Kory communicated Mr. Cohen's asserted legal claims against
Tactical and related requests for information to Mr. Posel, who responded on
letterhead imprinted with New York addresses.
In April, 2005, Mr. Kory and Mr. Posel scheduled a mediation for
June 5, 2005, which was to occur in Colorado. Mr. Kory reserved a conference
room at a hotel near the Denver airport in anticipation of that meeting. After
Mr. Posel disputed the veracity of Mr. Cohen's *55 claims and
threatened litigation, Mr. Kory cancelled the room reservation in Colorado and
remained in California.
B. Barnett affidavit
Timothy Barnett, Tactical's Vice President who
works in Boulder, has produced correspondence — emails and letters — between
Mr. Kory and representatives of the plaintiffs in Colorado and New York.
Numerous emails and letters between Mr. Kory and Mr. Barnett throughout the
period beginning in November, 2004 and ending in June, 2005 addressed Mr.
Kory's requests for information about the accounts that Tactical managed for
Mr. Cohen and Tactical's efforts to comply with those requests. Contrary to Mr.
Kory's assertion, these communications number in the dozens. Many of the
communications indicate that copies were sent to Mr. Greenberg and Mr. Posel,
among others. Emails exchanged on December 15 and 16, 2004 detailed plans for a
conference call involving Messrs. Kory, Barnett, and Posel. The three set up
another conference call in March, 2005. Other emails reference telephone calls
between Mr. Kory and Mr. Barnett and calls and conversations between Mr. Kory
and Mr. Posel.
In an April 10, 2005, twenty-seven page demand letter to Mr. Posel,
Mr. Kory asserted claims against "the Agile Group, Neal Greenberg and his
partners" on Mr. Cohen's behalf. Mr. Kory made repeated references to the
"several telephone conversations and e-mails regarding" the claims
that he and Mr. Posel had previously exchanged. He invited a further response
from Mr. Posel. Thereafter, Mr. Kory and Mr. Barnett exchanged emails only
discussing the scheduling of a mediation meeting for June 5, 2005. Mr. Posel
and Mr. Kory continued to communicate in writing about Mr. Cohen's allegations.
On June 4, 2005, Mr. Kory wrote to Mr. Posel by email cancelling the mediation,
but making no reference to the lawsuit that the plaintiffs had
purportedly *66threatened. In a June 9, 2005 email, Mr. Kory expressed
surprise at the contents of a draft complaint that Mr. Posel had sent him the
day before.
By letter on June 2, 2005, Mr. Kory sent to Mr.
Barnett two checks for deposit in Mr. Cohen's accounts. On June 7, Mr. Barnett
responded in writing, noting that Mr. Cohen had terminated his relationship
with the plaintiffs.
III. Discussion
"To obtain personal jurisdiction over a
nonresident defendant in a diversity action, a plaintiff must show that
jurisdiction is legitimate under the laws of the forum state and that the
exercise of jurisdiction does not offend the due process clause of the
Fourteenth Amendment." Far West Capital, Inc. v. Towne,46 F.3d 1071,
1074 (10th Cir. 1995). Because, as set forth below, I conclude that the
Colorado long-arm statute does not reach Mr. Kory, I need not consider the
constitutional question. The plaintiffs argue that Mr. Kory has submitted to
jurisdiction in Colorado by the "commission of a tortious act within this
state." Colo. Rev. Stat. § 13-1-124(1)(b). Colorado courts have held that
the tort provision of the long-arm statute may be satisfied either 1) when
tortious conduct occurs in Colorado, or 2) when tortious conduct initiated in
another state causes injury in Colorado. Wenz, 55 F.3d at
1507; Classic Auto Sales, Inc. v. Schocket, 832 P.2d 233,
235-236 (Colo. 1992).
The plaintiffs first argue that Mr. Kory committed tortious conduct
in Colorado. Directing into Colorado communications by which a tort is
committed constitutes conduct sufficient to satisfy the statute if the tort is
completed by the plaintiff's receipt in Colorado of the communications. Id. at
236; Broadview Financial, Inc. v. Entech Management Services Corp., *77859
F. Supp. 444, 448 (D. Colo. 1994). However, merely communicating with a
person resident in Colorado is, in itself, insufficient to bring a defendant
within the reach of the Colorado statute. Archangel Diamond Corp. v. Lukoil,
___ P.3d ___, 2005 WL 3097588 (Colo. 2005).
Mr. Kory's several communications with Mr.
Barnett concerned Mr. Kory's attempts to elicit information from Mr. Barnett
that would prove useful to Mr. Cohen. Though the plaintiffs feel that Mr. Kory
solicited their cooperation in bad faith — Mr. Kory used much of the
information the plaintiffs provided to construct claims against them, even as
he repeatedly commended them for their diligence — the gravamen of their claims
against Mr. Kory is that he conspired to defame them and to extort money from
them by asserting frivolous claims. Mr. Kory directed to Mr. Posel in New York,
and not to Mr. Barnett in Colorado, the communications by which he allegedly
accomplished those torts. The plaintiffs have not argued — nor does it appear
from the record — that the exchange of information and documents between Mr.
Kory and Mr. Barnett was tortious. Nor could the plaintiffs premise liability
on Mr. Kory's later-reneged reservation of a conference room in Colorado. I am
left to determine whether the plaintiffs have suffered an injury in Colorado as
a result of Mr. Kory's allegedly tortious acts. Wenz,55 F.3d at
1507. Tortious-activity jurisdiction obtains under the statute when "the
injury itself" occurs in Colorado. McAvoy v. District Court, 757
P.2d 633, 635 (Colo. 1988).
Further, the injury in the forum state must be
direct, not consequential or remote, and loss of profits in the state of
plaintiff's domicile is insufficient to sustain long-arm jurisdiction over a nonresident
defendant. Hence, when both the tortious conduct and the injury occur in
another state, the fact that plaintiff resides in Colorado and experiences some
economic consequences here is insufficient to confer jurisdiction on a Colorado
court. Amax Potash Corp. v.
Trans-Resources, Inc., 817 P.2d 598, 600 (Colo.Ct.App. 1991)
(citations *88 omitted).
The plaintiffs argue that Mr. Kory directed the
injurious consequences of his wrongful activity toward Colorado because they,
who have an office here, were the intended recipients of the harm. They cite D
D Fuller CATV Const., Inc. v. Pace,780 P.2d 520(Colo. 1989) for the proposition
that Mr. Kory could, therefore, have reasonably anticipated being haled into
court in Colorado. However, they have not addressed the prior question where
the injury occurred. Nothing in the record, Mr. Barnett's correspondence from
Colorado included, appears to demonstrate that the plaintiffs suffered an
injury in Colorado. Indeed, the only business the plaintiffs are alleged to
have lost was transacted with Mr. Cohen, who resides in California.
Accordingly, it is ORDERED that
1) Robert Kory's motion to dismiss pursuant to Fed.R.Civ.P.12(b)(2)
[13] is GRANTED; and
2) the plaintiffs' claims against Mr. Kory are
dismissed.
EXHIBIT
MACLEAN’S ARTICLE
August 17, 2005
A 'devastated' Leonard Cohen
The Canadian music icon is broke and the lawsuits are flying. It's a sordid tale involving allegations of extortion, SWAT teams, forcible confinement, tax troubles and betrayal.
KATHERINE MACKLEM
I said there's been a flood
I said there's nothing left
-- Leonard Cohen, from The Letters, on his album Dear Heather
Take an iconic artist, mix in missing millions, hints of tantric sex, a lawsuit replete with other salacious details, and a ruptured relationship with a long-time, trusted associate, and you've got the makings of a Hollywood blockbuster. Except in the case of Leonard Cohen, it's a true tale, with the bizarre twist of a Tibetan Buddhist suing a Zen Buddhist, Cohen. For the 70-year-old poet, singer and songwriter, it's a nasty, rapidly escalating legal battle that on the one hand accuses him of conspiracy and extortion, and on the other has him accusing both his highly trusted personal manager and long-time financial adviser -- the Tibetan Buddhist -- of gross mismanagement of his financial affairs. The case exposes not only private details of Cohen's finances, but also a dramatic tale of betrayal.
The conflict, which Cohen and others have tried to keep out of public view, has left him virtually broke -- he's had to take out a mortgage on his house to pay legal costs -- and facing a multi-million-dollar tax bill. But the artist, who is soon to release a new album with his collaborator -- and current girlfriend -- Anjani Thomas, is today remarkably calm about the potentially embarrassing conflict. Still, when he discovered last fall that his retirement funds, which he had thought amounted to more than $5 million (all figures U.S.), had been reduced to $150,000, he wasn't so sanguine. "I was devastated," Cohen says. "You know, God gave me a strong inner core, so I wasn't shattered. But I was deeply concerned."
So far, only one formal court filing involving Cohen has been made. In June, Boulder, Colo.-based Neal Greenberg, Cohen's investment adviser of almost a decade, launched a hyperbole-laden claim in Colorado against Cohen, who lives in both Los Angeles and Montreal. The suit accuses Kelley Lynch, who was Cohen's manager and is also named in the suit, of siphoning money from the songwriter. It also accuses Cohen and his lawyer Robert Kory of conspiracy, extortion and defamation. It alleges the two, in an attempt to recover at least some of Cohen's lost money, threatened to besmirch Greenberg's reputation and concocted a plan to force Greenberg to give Cohen millions of dollars.
The suit paints an almost preposterous picture of Cohen as an artist who led a lavish celebrity lifestyle and then turned bitter and vindictive when he discovered the money had run out. For example, the suit quotes Lynch describing how Cohen demanded she discuss business matters while he soaked in a bubble bath, and how later he was somehow involved in calling a SWAT team to her home, where she was handcuffed and forcibly taken to a psychiatric ward while in her bathing suit.
None of the allegations have been proven in court. Cohen is expected to file a countersuit this week. More lawsuits are likely to join the fray. And Lynch, who has sent turgid, raw and wrathful emails hither and yon, is threatening to sue just about everyone.
The conflict was triggered last fall when Cohen was tipped off by an insider that a lot of money was missing from his accounts. All that remained of his retirement savings was the $150,000, funds that today he can't get at as a result of the tangled legal web he finds himself in. Greenberg's suit portrays the soulful songwriter as an artist who paid little attention to his financial affairs and so was easily duped by a conniving personal manager. Cohen says he tried quietly, and confidentially, to find out from his various managers where the money had gone. Cohen calls the case "a tragedy," suggesting he was exploited by trusted advisers. He uses words like "greed, concealment, and reckless disregard," and says firmly he did nothing wrong. "I can assure you, within reason, I took every precaution except to question the fidelity of my closest associates."
Untoil Cohen fired her last fall, Kelley Lynch had been his personal manager for almost 17 years. Back in 1988, she'd been working as an assistant to his then-manager, who died that year. Because she was knowledgeable about Cohen's business affairs and recording contracts, he had her take over. Over the years, the two developed a personal and professional relationship. Fifteen years ago, they had a brief affair. "It was a casual sexual arrangement. It was mutually enjoyed and terminated," he says. "I never spent the night." The end of the affair didn't affect their bond. "We were very, very close friends," Cohen says today. "I liked her immensely. Our families were close -- she was helpful when I was raising my daughter; I employed her father." He even named her in his living will, giving her the power to decide, in certain circumstances, if he would live or die. He handed her vast powers of attorney. He trusted her implicitly. And he believed the relationship was mutual. "She wrote dozens of emails to me, thanking me for my help. We used to correspond regularly, relentlessly." He says that in 2004, while he was recording his most recent album, Dear Heather, with a small team at his home-recording studio, Lynch would come by almost daily. "People were very tight. Kelley was taking care of business, I was producing the album. It was all taking place in this little duplex and the garage that was converted into a studio. Kelley would come over, and I would generally prepare lunch for everyone."
The cosy arrangement was shattered one day last October when a young man, the boyfriend of a casual employee of Lynch, spoke to Cohen's daughter, Lorca, who owns an art deco furniture store and who lives downstairs from her father in the L.A. duplex he owns. "Your father really ought to look into his accounts, because he might be surprised at what he finds," he said. Lorca told him that her father trusted everyone involved and that besides, "he's about to retire, anyway." As Cohen senior tells the story, the young man replied, "He won't be able to retire."
Alarmed, Lorca called her father, who was in Montreal. Within a couple of days, he returned to Los Angeles and immediately went to his bank. There he discovered, as he puts it, "improprieties." Lynch had linked her American Express bill directly to his personal chequing account, he says, and just days before his visit to the bank, he'd paid a $75,000 Amex bill on her behalf. He never learned what purchases the card had been used for, but says the credit card company reimbursed him. Cohen immediately removed Lynch's signing powers on the accounts. The next day, Cohen told Lynch she no longer had access to the bank accounts and he fired her. That afternoon, Cohen says the bank notified him that Lynch went to a different branch and attempted to withdraw $40,000 from one of his accounts. He then called a lawyer and brought in a forensic accounting firm, Moss-Adams, which, in an investigation of all of Cohen's holdings, discovered "massive improprieties." In all, the accountants discovered about $8.4 million had over time disappeared from his holdings, Cohen says. His retirement funds had been virtually depleted.
Neal Greenberg, a banker with a thriving investment firm, had been brought in by Lynch to manage Cohen's money in 1996, two years after Cohen went up Mount Baldy to study to be a Rinzai Zen Buddhist monk. But now, he was worried. Over two decades, Greenberg had built a successful company, the Agile Group, and managed more than half-a-billion dollars of other people's money. He enjoyed, as he says in his suit, a "spotless professional reputation." And suddenly, here was Leonard Cohen, not just a prized client but one with a high profile, suggesting that Greenberg was party to the disappearance of Cohen's retirement savings.
Over the years, he says, he warned Cohen that his funds were being rapidly depleted, but it seemed the artist paid no heed. And now, Cohen and his lawyer, Kory, claims the Greenberg suit, were threatening "that Cohen would go out on tour to promote his new album and give interviews to reporters in which he would insinuate that he was touring because he had been bankrupted by improprieties by Greenberg and other financial advisers." Greenberg must have envisioned his business and his career in absolute tatters. He sued.
Greenberg's lawsuit lays out the business background to the dispute. Cohen's success as a singer and songwriter generated millions in royalties, the suit says, and in the 1990s, Lynch, as Cohen's trusted personal manager, began to investigate auctioning his intellectual properties, including copyrights to his song catalogue and continuing royalties for his songs. Lynch, along with a tax consultant named Richard Westin, arranged two deals for Cohen's properties. The transactions were eventually completed, one in 1997, the other in 2001, with Sony Music. From the first sale, about $5 million was transferred to trusts that Greenberg had been enlisted to manage and that would protect Cohen from an upfront tax hit. Greenberg says he invested the proceeds wisely, making lots of money for the trusts. But Greenberg also claims that Cohen's "consistent and prolific spending" to support "his extravagant 'celebrity' lifestyle" eroded the gains he had made on his client's behalf.
The second sale of Cohen's intellectual property, in 2001, was for $8 million. With Westin, Lynch put that money into a newly formed company named Traditional Holdings LLC that also was intended to shield Cohen's earnings from a major tax hit. Lynch was named as owner of 99.5 per cent of the company, leaving Cohen holding just 0.5 per cent. Greenberg alleges that Cohen, well aware of the structure and its dangers, signed off on it. Westin had explained to Cohen, the suit says, that "the plan would only work if Cohen and Lynch maintained (as they had in the past) a long-term relationship of personal and professional trust." Traditional Holdings could also issue loans to its owners, Lynch and Cohen.
As soon as the new company was in place, "Greenberg was immediately alarmed by Cohen's desire and tendency to treat this company [Traditional Holdings] like his personal piggy bank," the lawsuit alleges. It goes on to claim Cohen took a $1-million advance on the second sale of assets to Sony, Lynch took a commission of $1.1 million, and fees for lawyers and accountants ate up another $714,000. And then, over the next few years, Lynch regularly borrowed money from the Traditional Holdings account in amounts of tens of thousands of dollars, sometimes for herself, sometimes acting for Cohen. The lawsuit claims that while Greenberg sent a monthly email statement to Cohen, it was always Lynch who told Greenberg to release the loans.
The Greenberg suit claims Lynch, always acting as Cohen's agent, told Greenberg what to do regarding the funds. For instance, Lynch instructed Greenberg to send Cohen the monthly email status reports, but Greenberg says she directed him to leave out day-to-day activities and the status of Traditional Holdings loans. Because the loans were to be repaid, Greenberg included them in the statements as assets, which meant that it appeared as though nothing had been taken out.
Greenberg, who declined to comment for this article, claims in his suit he repeatedly stressed to Cohen that his spending was seriously draining his investments. In one warning letter, Greenberg told Cohen that Traditional Holdings had only $2.1 million left. Considering how quickly the money was leaving the account, Greenberg wrote, "I think you should consider your situation quite desperate." It's not clear if Cohen ever received this letter. On this, Cohen and Greenberg agree: they say many of Greenberg's attempted communications with Cohen were intercepted by Lynch.
On other points, Cohen disagrees. He was vitally interested in his financial affairs, he says. "It wasn't that I wasn't involved -- on the contrary, I took great pains to pay these professionals well and to solicit their advice and to follow it," he insists. "And, I was receiving a report every month from Neal Greenberg indicating that my retirement savings were safe." Cohen insists he was not made aware that Lynch had been named the majority owner of Traditional Holdings; instead, he says that in an early description of the company's structure, he had been told that his two children, Lorca and Adam, would be its principal owners. He says he was shocked to learn that Lynch had almost complete ownership. The mistake Cohen admits to is that "I paid close attention to everything except the possibility that my closest associate would embrace any irregularities in the discharge of her duties."
Cohen also says he learned only recently that the two sales of his intellectual property to Sony were unnecessary. He understands now that those properties earned roughly $400,000 a year, before taxes. That was plenty for him to support what he calls his modest lifestyle. Cohen accuses Lynch of creating the deals in order to boost her own income. He paid her 15 per cent of his income, which generally earned her $90,000 a year, he says. With the sales of his intellectual property bringing in revenue in the millions, it boosted her income to seven figures.
Greenberg's lawsuit becomes more disturbing as it describes what happened after Cohen realized he'd lost millions of dollars. Greenberg says Cohen pressured him to go after his firm's insurance company for the money to repay him. "Be a man," Cohen told Greenberg, the suit says. By threatening his reputation, it appeared to Greenberg that Cohen, on Kory's advice, had decided to target Greenberg's and his insurance company's deep pockets. Then, alleges the lawsuit, Cohen and Kory began to pressure Lynch to join them in "their extortion scheme." From November 2004 to April 2005, the lawsuit says, Kory repeatedly let Lynch know, sometimes directly, sometimes through friends or other intermediaries, that Cohen was ready to "forgive" Lynch's obligations to him, and that she in fact could receive a hefty cut of "whatever funds could be extorted from Greenberg and other advisers with her co-operation."
Greenberg's suit alleges that when Lynch refused to participate, Kory and Cohen vowed to "crush her." It goes on to say their "tactics to terrorize, silence, or disparage Lynch" included threatening her that she would go to jail, and "paying two paroled convicts to make statements that they had observed Lynch's older son brandishing a gun and threatening to kill someone."
Lynch's response, to all of this has been bitter, scattered and in some cases difficult to comprehend. In a rambling exchange of emails with Maclean's last week, she denied any wrongdoing. She also declined to discuss the Agile Group's lawsuit, describing it as "bogus" and "slanderous," while promising to file her own complaints against Cohen and other principal players in the case. She added her phone had been disconnected because she lacked money to pay the bills.
In the meantime, she's been showering Cohen and others with invective-laden emails that alternately voice misery and hurl accusations at friends and former colleagues. Many of these lament losing custody of her 12-year-old son, Ray, to his father, music producer Steve Lindsay. A few devolve into the outrightly bizarre. One missive, sent July 17 and obtained by Maclean's, invites Greenberg in highly explicit terms to Lynch's home for an evening of tantric sex. "First I want to study the inner channels with you," it says. "Why not -- let's see who is better at tantric sex -- you or me."
So troubling have the messages become that several people who know Lynch fear she's become unhinged. "I'm afraid she's suicidal," says Lindsay, her ex-husband, adding that in his judgment she's been acting erratically for the better part of a year. Cohen too sent Lynch a message last fall spelling out his concern in verse: You can't tell the difference between a threat / and a helping hand, he wrote. You can't tell the difference between a threat / and a solemn warning / from one of the few people / who still cares about you and your family.
Lynch's apparent troubles have had punishing legal consequences. Lindsay has obtained a temporary restraining order that prevents her from visiting her son. Tara Cooper, a former employee of a greeting card company Lynch started while still in Cohen's employ, has taken out a similar order after alleging that Lynch sent threatening emails and harassed her by phone. And two of her creditors -- upscale department stores Neiman Marcus and Bergdorf Goodman -- have filed collections claims against her in Los Angeles Superior Court.
This is the mess that Leonard Cohen -- a man many believe floats a few inches above the ground -- finds himself in. These days, he's Zen-like. In the course of a long interview by phone from his home in Los Angeles, the man sometimes called the poet laureate of pessimism sounded almost bemused. "What can I do?" he asks. "I had to go to work. I have no money left. I'm not saying it's bad; I have enough of an understanding of the way the world works to understand that these things happen."
His first choice of action when he learned his money was gone, he says, was to not do anything. Aware of how painful litigation could be, he says he wanted no part of it. "I said, 'I can walk away with nothing.' I said, 'Let me start again. Let me start fresh at 70. I can cobble together a little nest egg again.' " But he ran into a glaring, immediate problem: had he done nothing, he would have legally been responsible for the funds that had gone missing. And on that money, he'd owe millions in taxes, a sum he no longer had.
His next step, "his second-best choice," was to negotiate with his advisers about the missing money. He approached Lynch, asking her to open her books. "She resolutely and unconditionally refused to open her books to any scrutiny whatsoever and instead began a bizarre email campaign to discredit me in some kind of way, which has gone all over the place," Cohen says, adding that he's launching a lawsuit this week with great reluctance. "I don't want anybody hurt. It's not my nature to pursue and to contend with people that way." Cohen says all he wants is to find out where the money went. "I'm not accusing her of theft," he says of Lynch. Still, his countersuit will likely describe how money was removed from his accounts.
Cohen appears to have been blindsided by Greenberg's lawsuit. He insists that he and Kory were in the midst of mediation with Greenberg when the financial adviser's lawsuit was suddenly and unexpectedly filed. He says the mediation had been confidential, at Greenberg's urging, as he feared for his reputation. In an email to Greenberg, Cohen urges him to make good. "Dear Neal, I believed in you. I depended on you," Cohen wrote in November 2004. "When things went wrong, does it make any sense that you would make your warnings available to the only person in the cosmos who had an interest in deceiving me? A single, simple email informing me that my accounts were being emptied would have been enough. I answered EVERY SINGLE EMAIL you ever sent me. Fortunately, I have them all.
"Face up to it, Neal," the email continues, "and square your shoulders: You were the trusted guardian of my assets, and you let them slip away . . . Restore what you lost, and sleep well." In his sign-off, Cohen delivered as much a piece of advice as his own philosophy: "Put this behind you and it will dissolve." There's an irony here, that a man who has struggled much of his life to distance himself from the material world now, at 70, finds himself in an intense battle with it. Still, he's not defeated. "This has propelled us into incessant work," he says of himself and Thomas. He exudes optimism about their new CD. "It's one of the best albums I've heard." It's not closing time quite yet.
With CHARLIE GILLIS and BRIAN D. JOHNSON
http://www.leonardcohenforum.com/viewtopic.php?t=4283A 'devastated' Leonard Cohen
The Canadian music icon is broke and the lawsuits are flying. It's a sordid tale involving allegations of extortion, SWAT teams, forcible confinement, tax troubles and betrayal.
KATHERINE MACKLEM
I said there's been a flood
I said there's nothing left
-- Leonard Cohen, from The Letters, on his album Dear Heather
Take an iconic artist, mix in missing millions, hints of tantric sex, a lawsuit replete with other salacious details, and a ruptured relationship with a long-time, trusted associate, and you've got the makings of a Hollywood blockbuster. Except in the case of Leonard Cohen, it's a true tale, with the bizarre twist of a Tibetan Buddhist suing a Zen Buddhist, Cohen. For the 70-year-old poet, singer and songwriter, it's a nasty, rapidly escalating legal battle that on the one hand accuses him of conspiracy and extortion, and on the other has him accusing both his highly trusted personal manager and long-time financial adviser -- the Tibetan Buddhist -- of gross mismanagement of his financial affairs. The case exposes not only private details of Cohen's finances, but also a dramatic tale of betrayal.
The conflict, which Cohen and others have tried to keep out of public view, has left him virtually broke -- he's had to take out a mortgage on his house to pay legal costs -- and facing a multi-million-dollar tax bill. But the artist, who is soon to release a new album with his collaborator -- and current girlfriend -- Anjani Thomas, is today remarkably calm about the potentially embarrassing conflict. Still, when he discovered last fall that his retirement funds, which he had thought amounted to more than $5 million (all figures U.S.), had been reduced to $150,000, he wasn't so sanguine. "I was devastated," Cohen says. "You know, God gave me a strong inner core, so I wasn't shattered. But I was deeply concerned."
So far, only one formal court filing involving Cohen has been made. In June, Boulder, Colo.-based Neal Greenberg, Cohen's investment adviser of almost a decade, launched a hyperbole-laden claim in Colorado against Cohen, who lives in both Los Angeles and Montreal. The suit accuses Kelley Lynch, who was Cohen's manager and is also named in the suit, of siphoning money from the songwriter. It also accuses Cohen and his lawyer Robert Kory of conspiracy, extortion and defamation. It alleges the two, in an attempt to recover at least some of Cohen's lost money, threatened to besmirch Greenberg's reputation and concocted a plan to force Greenberg to give Cohen millions of dollars.
The suit paints an almost preposterous picture of Cohen as an artist who led a lavish celebrity lifestyle and then turned bitter and vindictive when he discovered the money had run out. For example, the suit quotes Lynch describing how Cohen demanded she discuss business matters while he soaked in a bubble bath, and how later he was somehow involved in calling a SWAT team to her home, where she was handcuffed and forcibly taken to a psychiatric ward while in her bathing suit.
None of the allegations have been proven in court. Cohen is expected to file a countersuit this week. More lawsuits are likely to join the fray. And Lynch, who has sent turgid, raw and wrathful emails hither and yon, is threatening to sue just about everyone.
The conflict was triggered last fall when Cohen was tipped off by an insider that a lot of money was missing from his accounts. All that remained of his retirement savings was the $150,000, funds that today he can't get at as a result of the tangled legal web he finds himself in. Greenberg's suit portrays the soulful songwriter as an artist who paid little attention to his financial affairs and so was easily duped by a conniving personal manager. Cohen says he tried quietly, and confidentially, to find out from his various managers where the money had gone. Cohen calls the case "a tragedy," suggesting he was exploited by trusted advisers. He uses words like "greed, concealment, and reckless disregard," and says firmly he did nothing wrong. "I can assure you, within reason, I took every precaution except to question the fidelity of my closest associates."
Untoil Cohen fired her last fall, Kelley Lynch had been his personal manager for almost 17 years. Back in 1988, she'd been working as an assistant to his then-manager, who died that year. Because she was knowledgeable about Cohen's business affairs and recording contracts, he had her take over. Over the years, the two developed a personal and professional relationship. Fifteen years ago, they had a brief affair. "It was a casual sexual arrangement. It was mutually enjoyed and terminated," he says. "I never spent the night." The end of the affair didn't affect their bond. "We were very, very close friends," Cohen says today. "I liked her immensely. Our families were close -- she was helpful when I was raising my daughter; I employed her father." He even named her in his living will, giving her the power to decide, in certain circumstances, if he would live or die. He handed her vast powers of attorney. He trusted her implicitly. And he believed the relationship was mutual. "She wrote dozens of emails to me, thanking me for my help. We used to correspond regularly, relentlessly." He says that in 2004, while he was recording his most recent album, Dear Heather, with a small team at his home-recording studio, Lynch would come by almost daily. "People were very tight. Kelley was taking care of business, I was producing the album. It was all taking place in this little duplex and the garage that was converted into a studio. Kelley would come over, and I would generally prepare lunch for everyone."
The cosy arrangement was shattered one day last October when a young man, the boyfriend of a casual employee of Lynch, spoke to Cohen's daughter, Lorca, who owns an art deco furniture store and who lives downstairs from her father in the L.A. duplex he owns. "Your father really ought to look into his accounts, because he might be surprised at what he finds," he said. Lorca told him that her father trusted everyone involved and that besides, "he's about to retire, anyway." As Cohen senior tells the story, the young man replied, "He won't be able to retire."
Alarmed, Lorca called her father, who was in Montreal. Within a couple of days, he returned to Los Angeles and immediately went to his bank. There he discovered, as he puts it, "improprieties." Lynch had linked her American Express bill directly to his personal chequing account, he says, and just days before his visit to the bank, he'd paid a $75,000 Amex bill on her behalf. He never learned what purchases the card had been used for, but says the credit card company reimbursed him. Cohen immediately removed Lynch's signing powers on the accounts. The next day, Cohen told Lynch she no longer had access to the bank accounts and he fired her. That afternoon, Cohen says the bank notified him that Lynch went to a different branch and attempted to withdraw $40,000 from one of his accounts. He then called a lawyer and brought in a forensic accounting firm, Moss-Adams, which, in an investigation of all of Cohen's holdings, discovered "massive improprieties." In all, the accountants discovered about $8.4 million had over time disappeared from his holdings, Cohen says. His retirement funds had been virtually depleted.
Neal Greenberg, a banker with a thriving investment firm, had been brought in by Lynch to manage Cohen's money in 1996, two years after Cohen went up Mount Baldy to study to be a Rinzai Zen Buddhist monk. But now, he was worried. Over two decades, Greenberg had built a successful company, the Agile Group, and managed more than half-a-billion dollars of other people's money. He enjoyed, as he says in his suit, a "spotless professional reputation." And suddenly, here was Leonard Cohen, not just a prized client but one with a high profile, suggesting that Greenberg was party to the disappearance of Cohen's retirement savings.
Over the years, he says, he warned Cohen that his funds were being rapidly depleted, but it seemed the artist paid no heed. And now, Cohen and his lawyer, Kory, claims the Greenberg suit, were threatening "that Cohen would go out on tour to promote his new album and give interviews to reporters in which he would insinuate that he was touring because he had been bankrupted by improprieties by Greenberg and other financial advisers." Greenberg must have envisioned his business and his career in absolute tatters. He sued.
Greenberg's lawsuit lays out the business background to the dispute. Cohen's success as a singer and songwriter generated millions in royalties, the suit says, and in the 1990s, Lynch, as Cohen's trusted personal manager, began to investigate auctioning his intellectual properties, including copyrights to his song catalogue and continuing royalties for his songs. Lynch, along with a tax consultant named Richard Westin, arranged two deals for Cohen's properties. The transactions were eventually completed, one in 1997, the other in 2001, with Sony Music. From the first sale, about $5 million was transferred to trusts that Greenberg had been enlisted to manage and that would protect Cohen from an upfront tax hit. Greenberg says he invested the proceeds wisely, making lots of money for the trusts. But Greenberg also claims that Cohen's "consistent and prolific spending" to support "his extravagant 'celebrity' lifestyle" eroded the gains he had made on his client's behalf.
The second sale of Cohen's intellectual property, in 2001, was for $8 million. With Westin, Lynch put that money into a newly formed company named Traditional Holdings LLC that also was intended to shield Cohen's earnings from a major tax hit. Lynch was named as owner of 99.5 per cent of the company, leaving Cohen holding just 0.5 per cent. Greenberg alleges that Cohen, well aware of the structure and its dangers, signed off on it. Westin had explained to Cohen, the suit says, that "the plan would only work if Cohen and Lynch maintained (as they had in the past) a long-term relationship of personal and professional trust." Traditional Holdings could also issue loans to its owners, Lynch and Cohen.
As soon as the new company was in place, "Greenberg was immediately alarmed by Cohen's desire and tendency to treat this company [Traditional Holdings] like his personal piggy bank," the lawsuit alleges. It goes on to claim Cohen took a $1-million advance on the second sale of assets to Sony, Lynch took a commission of $1.1 million, and fees for lawyers and accountants ate up another $714,000. And then, over the next few years, Lynch regularly borrowed money from the Traditional Holdings account in amounts of tens of thousands of dollars, sometimes for herself, sometimes acting for Cohen. The lawsuit claims that while Greenberg sent a monthly email statement to Cohen, it was always Lynch who told Greenberg to release the loans.
The Greenberg suit claims Lynch, always acting as Cohen's agent, told Greenberg what to do regarding the funds. For instance, Lynch instructed Greenberg to send Cohen the monthly email status reports, but Greenberg says she directed him to leave out day-to-day activities and the status of Traditional Holdings loans. Because the loans were to be repaid, Greenberg included them in the statements as assets, which meant that it appeared as though nothing had been taken out.
Greenberg, who declined to comment for this article, claims in his suit he repeatedly stressed to Cohen that his spending was seriously draining his investments. In one warning letter, Greenberg told Cohen that Traditional Holdings had only $2.1 million left. Considering how quickly the money was leaving the account, Greenberg wrote, "I think you should consider your situation quite desperate." It's not clear if Cohen ever received this letter. On this, Cohen and Greenberg agree: they say many of Greenberg's attempted communications with Cohen were intercepted by Lynch.
On other points, Cohen disagrees. He was vitally interested in his financial affairs, he says. "It wasn't that I wasn't involved -- on the contrary, I took great pains to pay these professionals well and to solicit their advice and to follow it," he insists. "And, I was receiving a report every month from Neal Greenberg indicating that my retirement savings were safe." Cohen insists he was not made aware that Lynch had been named the majority owner of Traditional Holdings; instead, he says that in an early description of the company's structure, he had been told that his two children, Lorca and Adam, would be its principal owners. He says he was shocked to learn that Lynch had almost complete ownership. The mistake Cohen admits to is that "I paid close attention to everything except the possibility that my closest associate would embrace any irregularities in the discharge of her duties."
Cohen also says he learned only recently that the two sales of his intellectual property to Sony were unnecessary. He understands now that those properties earned roughly $400,000 a year, before taxes. That was plenty for him to support what he calls his modest lifestyle. Cohen accuses Lynch of creating the deals in order to boost her own income. He paid her 15 per cent of his income, which generally earned her $90,000 a year, he says. With the sales of his intellectual property bringing in revenue in the millions, it boosted her income to seven figures.
Greenberg's lawsuit becomes more disturbing as it describes what happened after Cohen realized he'd lost millions of dollars. Greenberg says Cohen pressured him to go after his firm's insurance company for the money to repay him. "Be a man," Cohen told Greenberg, the suit says. By threatening his reputation, it appeared to Greenberg that Cohen, on Kory's advice, had decided to target Greenberg's and his insurance company's deep pockets. Then, alleges the lawsuit, Cohen and Kory began to pressure Lynch to join them in "their extortion scheme." From November 2004 to April 2005, the lawsuit says, Kory repeatedly let Lynch know, sometimes directly, sometimes through friends or other intermediaries, that Cohen was ready to "forgive" Lynch's obligations to him, and that she in fact could receive a hefty cut of "whatever funds could be extorted from Greenberg and other advisers with her co-operation."
Greenberg's suit alleges that when Lynch refused to participate, Kory and Cohen vowed to "crush her." It goes on to say their "tactics to terrorize, silence, or disparage Lynch" included threatening her that she would go to jail, and "paying two paroled convicts to make statements that they had observed Lynch's older son brandishing a gun and threatening to kill someone."
Lynch's response, to all of this has been bitter, scattered and in some cases difficult to comprehend. In a rambling exchange of emails with Maclean's last week, she denied any wrongdoing. She also declined to discuss the Agile Group's lawsuit, describing it as "bogus" and "slanderous," while promising to file her own complaints against Cohen and other principal players in the case. She added her phone had been disconnected because she lacked money to pay the bills.
In the meantime, she's been showering Cohen and others with invective-laden emails that alternately voice misery and hurl accusations at friends and former colleagues. Many of these lament losing custody of her 12-year-old son, Ray, to his father, music producer Steve Lindsay. A few devolve into the outrightly bizarre. One missive, sent July 17 and obtained by Maclean's, invites Greenberg in highly explicit terms to Lynch's home for an evening of tantric sex. "First I want to study the inner channels with you," it says. "Why not -- let's see who is better at tantric sex -- you or me."
So troubling have the messages become that several people who know Lynch fear she's become unhinged. "I'm afraid she's suicidal," says Lindsay, her ex-husband, adding that in his judgment she's been acting erratically for the better part of a year. Cohen too sent Lynch a message last fall spelling out his concern in verse: You can't tell the difference between a threat / and a helping hand, he wrote. You can't tell the difference between a threat / and a solemn warning / from one of the few people / who still cares about you and your family.
Lynch's apparent troubles have had punishing legal consequences. Lindsay has obtained a temporary restraining order that prevents her from visiting her son. Tara Cooper, a former employee of a greeting card company Lynch started while still in Cohen's employ, has taken out a similar order after alleging that Lynch sent threatening emails and harassed her by phone. And two of her creditors -- upscale department stores Neiman Marcus and Bergdorf Goodman -- have filed collections claims against her in Los Angeles Superior Court.
This is the mess that Leonard Cohen -- a man many believe floats a few inches above the ground -- finds himself in. These days, he's Zen-like. In the course of a long interview by phone from his home in Los Angeles, the man sometimes called the poet laureate of pessimism sounded almost bemused. "What can I do?" he asks. "I had to go to work. I have no money left. I'm not saying it's bad; I have enough of an understanding of the way the world works to understand that these things happen."
His first choice of action when he learned his money was gone, he says, was to not do anything. Aware of how painful litigation could be, he says he wanted no part of it. "I said, 'I can walk away with nothing.' I said, 'Let me start again. Let me start fresh at 70. I can cobble together a little nest egg again.' " But he ran into a glaring, immediate problem: had he done nothing, he would have legally been responsible for the funds that had gone missing. And on that money, he'd owe millions in taxes, a sum he no longer had.
His next step, "his second-best choice," was to negotiate with his advisers about the missing money. He approached Lynch, asking her to open her books. "She resolutely and unconditionally refused to open her books to any scrutiny whatsoever and instead began a bizarre email campaign to discredit me in some kind of way, which has gone all over the place," Cohen says, adding that he's launching a lawsuit this week with great reluctance. "I don't want anybody hurt. It's not my nature to pursue and to contend with people that way." Cohen says all he wants is to find out where the money went. "I'm not accusing her of theft," he says of Lynch. Still, his countersuit will likely describe how money was removed from his accounts.
Cohen appears to have been blindsided by Greenberg's lawsuit. He insists that he and Kory were in the midst of mediation with Greenberg when the financial adviser's lawsuit was suddenly and unexpectedly filed. He says the mediation had been confidential, at Greenberg's urging, as he feared for his reputation. In an email to Greenberg, Cohen urges him to make good. "Dear Neal, I believed in you. I depended on you," Cohen wrote in November 2004. "When things went wrong, does it make any sense that you would make your warnings available to the only person in the cosmos who had an interest in deceiving me? A single, simple email informing me that my accounts were being emptied would have been enough. I answered EVERY SINGLE EMAIL you ever sent me. Fortunately, I have them all.
"Face up to it, Neal," the email continues, "and square your shoulders: You were the trusted guardian of my assets, and you let them slip away . . . Restore what you lost, and sleep well." In his sign-off, Cohen delivered as much a piece of advice as his own philosophy: "Put this behind you and it will dissolve." There's an irony here, that a man who has struggled much of his life to distance himself from the material world now, at 70, finds himself in an intense battle with it. Still, he's not defeated. "This has propelled us into incessant work," he says of himself and Thomas. He exudes optimism about their new CD. "It's one of the best albums I've heard." It's not closing time quite yet.
With CHARLIE GILLIS and BRIAN D. JOHNSON