Joining VeloClub not only supports the work we do, there are some fantastic benefits:
by Shane Stokes
August 18, 2014
Fifteen months after the journalist Paul Kimmage received notification that the fund set up to help him fight former UCI presidents Hein Verbruggen and Pat McQuaid in court had gone missing, the clock continues to tick for Aaron Brown, the individual who was long known by his Twitter persona @UCI_Overlord.
In May 2013 it emerged that Brown had taken control of the fund and was refusing to hand it over to either Kimmage or his former Cyclismas business partner, Lesli Cohen. Repeated requests for an accounting to prove the fund still existed were ignored and a class action suit was initiated by Bill Hue last September.
Hue, who was a donor to the fund and who works as a Wisconsin judge, was told in January by a Massachusetts court that he had been given a green light to represent the Class, namely the other donors. Cohen also pursued her own case.
In the same month the court ordered the fund frozen and commanded Brown and his attorney to provide an accounting and statement of whereabouts of the fund by February 25th. This was not complied with; in addition to that, Brown disobeyed court orders and issued refunds to at least two donors.
On July 9th he was found in contempt of court. In that initial ruling, the judge handling the case, David Ricciardone, said that the court had concluded, “that there is clear and convincing evidence that the defendant violated a clear and unequivocal order to provide information regarding the whereabouts of the funds and not to make disbursements.”
Brown was given an additional 30 days to comply with the request to provide full details of the location of the fund. He did not do so, and also ignored an instruction by the judge to pay Cohen her costs and attorney’s fees to the amount of $11,169.16.
In recent days the court set a final Pre-Trial Conference date of October 10, 2014; both Hue and Cohen expect that if he fails to appear then, that the judge will order Brown to return the fund to the donors and also to pay Cohen’s legal fees.
Hue spoke at length to CyclingTips about the situation and said that roughly $60,000 dollars of the fund will have to be handed over. “About a third of the money was legitimately given to Paul Kimmage for his defence [the original fund totalled over $90,000 – ed.], and so about two thirds is unaccounted for,” he stated.
He said that he was greatly frustrated by the situation and would see if it was possible to have additional penalties handed down to Brown.
“I think if there is a way to ask for a damage penalty, I will try to figure that out,” he said. “What I have to do is I have to get into my Massachusetts law books. I am a Wisconsin lawyer and a Wisconsin judge, so I am more trained in Wisconsin law. But we will get into the Massachusetts statutes and see if we can get some penalties.
“I’d really like him on his contempt charge to have something more punitive, because I think in my experience I have never seen a guy who flipped off the court as much as Aaron has.”
Once the judge issues a final ruling against Brown, Hue said that measures would be put in place to try to compel him to turn over whatever money is due.
“I think we can execute in a variety of ways,” he said. “We can docket our judgement in other countries. Under the Hague Convention, if there is a judgement in one country there are methods for other countries to recognise that. We are allowed to do it.
“The first thing we will probably do is we will docket it in Canada somewhere, because I think if he ever surfaces back around, he has to touch base with Canada.”
Hue said that he had been contacted by lawyers in various different countries, each of whom has pledged their help to execute the demand for payment. Brown has lived in Girona, Spain, although it is unclear if he is still in the area.
“Lawyers have contacted us from Spain. They have said, ‘if you docket it here, we will know how to execute on it,’” he told CyclingTips.
“A number of other people have been saying, ‘we are lawyers in Europe and if you can get this executed here in Europe, then we can do some work here in Europe too.’ So if he is Spain, we can figure out a way to docket it in Spain. If he is France, we can figure out a way to docket it in France.”
Brown has proved so difficult to contact that his own attorney repeatedly requested to be allowed to leave the case. She asked permission to do so in October of last year, and again in February and March. She was finally allowed to do so in June, although she was requested to communicate the case status to Brown as a condition, and also to notify the court of his address and phone number.
However his Girona address proved useless as he was evicted for non-payment of rent, and the phone number provided was non-operational. Brown also did not respond to emails sent at the time.
CyclingTips contacted Brown on Friday requesting comment for this article. Emails were sent to four addresses; two bounced back, while the other two did not result in a failed delivery report.
He was sent the following questions:
1) Can you give your explanation for not complying with the judge’s request for an accounting?
2) Can you explain where the fund is at present, and how much is left of it?
3) As regards this (from the Cyclismas statement):
“The Court also credits the testimony of Lesli Cohen who received information from at least two donors that they received a refund of a portion of their donations to the fund during the month of March 2014 in direct disobedience of the Court order.”
Can you explain why these refunds were given, despite the court order?
4) Can you explain why you stopped engaging with your lawyer, who told Bill Hue, Lesli Cohen and the judge that you were not replying to her efforts to contact you?
5) Can you confirm if you intend to attend the Pre-Trial Conference date on October 10, 2014, as directed by the judge? If not, why not?
6) Is there anything you would like to say to Paul Kimmage, or those who donated money and now learn that the judge’s orders have not been complied with?
Over 48 hours later, Brown has not replied.
The action against Kimmage began back in January 2012 when then-UCI president Pat McQuaid and his predecessor Hein Verbruggen initiated legal proceedings against him, claiming they were defamed by articles in the Sunday Times and L’Equipe.
He was issued with a summons on September 19th of that year, compelling him to attend a trial in Switzerland on December 12th 2012.
Kimmage was out of work at the time and lacked the financial means to defend himself. A fund was set up by the NYVelocity and Cyclismas websites to try to raise legal backing for him. That campaign was a big success, with a total of over $90,000 being donated by cycling fans and supporters.
A portion of that was paid out in early legal fees, but the remainder of the fund became unavailable when Brown moved it out of the original PayPal account. Cohen, who had formed the Cyclismas site with him, realised this last year and initiated legal action against him.
At the time Brown justified his position by saying that he needed to retain the funds because he was facing a potential tax liability for the money which had been donated due to an error in the way the fund was set up.
He claimed that the fund still existed and rejected suggestions that he had spent the money. However repeated requests for proof of that were not complied with, including by the Massachusetts court.
Hue said that he is now determined to try to take things as far as possible.
“Since it’s not criminal, it’s civil, there is little opportunity to have him arrested. But if I knew back then what I knew now, I could probably take a theft route. When I started, I really thought it was just a matter of getting his attention,” he said.
“A year or more later, you then figure that we should have just gone in a different direction. There was no advantage to thinking the most positive thoughts about him.
“Most people who get their money stolen say, ‘you have stolen my money, I want you in jail.’ That probably was a good hunch there.”
Given that Brown has ignored the court thus far, there seems little guarantee that he will comply once a final conclusion is reached. Hue said that he will study ways to try to have a real enforcement put in place.
“The best way to get someone’s attention is when they present their passport. When they come into a country, somebody takes them by the arm, takes them into a back room and explains to them that there is a warrant for their arrest. That always gets their attention,” he said.
“If I can figure out a way under Massachusetts law to do that, then I will try to do that.”
Hue said that an arrest warrant had previously been requested by him and Cohen. At that time the judge said that he was reluctant to agree unless there was not absolute proof that Brown had been served papers compelling him to come to Massachusetts and answer the contempt charges.
Hue plans to push this further. “I am going to try to convince the judge that what is important here is that Aaron has actual knowledge of what is going on in the court. He had knowledge through his attorney the first time.
“When the attorney withdrew there were some refunds that Aaron did. In conjunction with the refunds he acknowledged that there was an existing US court case, but he said that court case was interfering, that the interference was over and that he could refund formally.
“I think that might convince the judge of the actual knowledge Aaron had of events, such that we could ask a judge who would be convinced to issue an arrest warrant.
“That is going to take some persuasion. I am going to need to do some real research to ask the judge to do that. However I think an arrest warrant is a great way to get somebody’s attention. I just have to figure out the best way to go about trying to get that done. And I definitely will, because I think I owe that to the class.”
– “The many questions about the Kimmage defence fund” by Shane Stokes for VeloNation (May 4, 2013)
– “Court order in class action case compels Aaron Brown to provide full details of Kimmage defence fund” by Shane Stokes for VeloNation (February 1, 2014)