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Tuesday, December 18, 2018

Court scraps Gutnick's deal to sell $174 million mine to sister for $1

Former bankrupt mining tycoon Joseph Gutnick has suffered another setback in his turbulent career after a court tore up a deal to spirit away a mining project worth as much as $174 million from creditors to one of his companies by selling it to his sister for $1.

Liquidators to Legend International chalked up a major win for the mining exploration group against its once mining magnate director Mr Gutnick in the Supreme Court of Victoria late last week.

The corporate regulator is also believed to be reviewing the matter, and it could lead to regulatory action against the former Melbourne Football Club president.

Late last week, Associate Justice Rodney Randall found the sale of Legend International's ownership in a potentially lucrative mining project in North Queensland to a company operated by Mr Gutnick's Sydney-based sister Pnina Feldman and nephew Shalom Feldman "uncommercial", "insolvent" and "voidable".

Mrs Feldman, the wife of Bondi's Yeshiva Centre leader Rabbi Pinchus Feldman, famously took her brother to court in 2003 over a separate loan disagreement.

The recent court case brought by liquidators to Legend was part of a wider complex dispute between Mr Gutnick, Legend and the multi-billion dollar company that signed a deal with Legend, the Indian Farmers Fertiliser Cooperative (IFFCO).

The legal battle sparked Mr Gutnick's shock bankruptcy in June 2016 and led to Mark Korda and Craig Shepherd from KordaMentha acting as liquidators to Legend International that month.

Mr Gutnick was discharged from his bankruptcy in June this year after striking a sweetheart deal with his trustees in bankruptcy to clear his $175 million in debt for less than one cent in the dollar.

Mr Gutnick and Legend's dispute with IFFCO links back 2008 when Legend inked a $103 million contract with IFFCO to supply phosphate to IFFCO.

Under the deal, IFFCO was to invest the $103 million over two years through shares and options in Legend International Holdings.

However, the deal fell apart when Legend failed to deliver any phosphate, a key ingredient in fertiliser.

In 2015, IFFCO later sought to recoup its investments by suing Legend and Mr Gutnick in Singapore and later in Australia.

The legal stoush culminated in the Supreme Court of Victoria finding on December 21, 2015 that IFFCO was owed more than $80 million by Legend and Mr Gutnick.

But four weeks before Supreme Court of Victoria handed down its decision in IFFCO's case, Legend executed a new deal that transferred Legend's main assets - its 100 per cent ownership of one-time ASX hopeful Paradise Phosphate - to entities linked to the Gutnick family. This included a company Queensland Phosphate, that was set up a week earlier.

Queensland Phosphate appointed a receiver over Paradise a few months later when Mr Gutnick lost his appeal. That receiver, Christopher Palmer of O'Brien Palmer, then sold Paradise's assets to Queensland Phosphate for $1.

Associate Justice Randall is expected to hand down orders that the asset be transferred to liquidators acting on behalf of creditors to Legend in early January.

As a result of the Gutnicks losing the case, Australia's largest phosphate deposit is expected to come up for sale early next year. Maverick MP Bob Katter testified during the trial that he planned to assist the funding of the development of the mine in Mount Isa.

Sunday, December 16, 2018


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How The Satmar Mafia works!

Satmar is estimated to be one of the largest Hasidic dynasties in the world.

This dynasty is said to consist of 119,000 members spread throughout the communities of Williamsburg, Kiryas Joel, Borough Park, and Monsey, New York.

Oddly enough, these are the same areas that keep getting raided by the FBI in the past few years. Sources say there are no formal arrests at this time but this is linked to an ongoing investigation.

In the mind of a Satmar member, they fiercely believe the Jews should wait for G-d to send the Messiah to return the Jewish people to the land of Israel.

The Satmars are ultra-Orthodox anti-Zionists, who believe that the State of Israel is a secular abomination that usurps the holy relationship between God and the Jewish people.

They are taught from a young age they are to establish a network of businesses which provided an economic base for the community’s own social institutions free from the secular world.

You could compare this lifestyle similar to that of the Amish, but yet the amount of money this community can produce is nowhere even close to the same.

Many notable Jewish and non-Jewish sources view that anti-Zionism has become a cover for modern-day antisemitism.

This would appear to be true when we look at the financial figures coming out of Brooklyn.

When T.O.T. Private Consulting researched the database of Brooklyn New York list of Jewish Nonprofit Organizations and Religious Organizations the figures are as follows:
• Organization Count 15,368

• Assets Total $15,068,528,843

• Income Total $15,019,500,173

Just to prove our point, we even decided to break it down into a well know Satmar zip code of 12111.

That brings us to the following numbers:
Organization Count 1,093

· Assets Total $218,135,224

· Income Total $192,628,243

These numbers are astonishing considering this community is swarming with Satmar members who are worldwide known as an Antizionist organization.

These communities are built with the mindset that they are the chosen people to decide what to do with the land of Israel.

For people who love and want to protect Israel, this is the part where you should be concerned.

If this mafia group can raise this much money, then WHAT IS BEING FUNDED?

To shine the light on how this mafia works, you need to understand their operations are connected from hubs.

One of Satmar’s most famous hubs is located at 199 Lee Ave, Brooklyn NY. 12111

For years, there has already been a lot of controversy that slum lords are attached to this one street address in Brooklyn NY.

199 Lee Ave is said to be the home of 350 brass mail boxes and over 1300 different active LLC’s.

Our research shows we need to add an additional 111 Non Profits/Religious Organizations to this property address.

That means the IRS might want to investigate these mailboxes too.

In order to be considered a religious organization, you must have a place to worship.

I don’t believe a brass mailbox will suffice when comes to tax evasion and false websites.

Law Enforcement Agents were last seen seizing property and contents of the mailboxes May 3rd, 2016 but again no arrests have been made.

That’s because there is such an overwhelming amount of crime to unravel from each and every hub. It could take years to unravel this mess.

It’s astonishing that one hub is a 3500 square foot building, comprised of 1500 mixed Hassidic real estate management companies, religious organizations, and charities.

One of the most popular real estate CEO’s is Satmar member Yoel Goldman of an ALL YEAR MANAGEMENT, LLC. When reviewing the deed records, we find property deeds being transferred back and forth between 4 additional LLC’s all under the same alias ALL YEAR.

The State of NY issued the following Dos ID numbers under this entity: 3609299, 4339354, 4030656, 4677304 (which is All Year Holdings, LLC).

Reviewing deeds has also shown us that “All Year” has been known to work with W Capital for “bridge loans”, while they process the deed from one management LLC to the other.

This same company has been investigated by the SEC and has issued the following civil complaint.

After extensive review of deeds stemming from Lee Ave, hundreds of mortgages are paid but the deeds keep churning just as fast as the new LLC’s are formed.

The hunt to find the true owner of these corporations and nonprofits becomes a manhunt unless you understand where all this crime and corruption stems from its leadership of Moshe Gabbai, Moshe Friedman, and Leo Friedman, and Jacob Teitelbaum.

Satmar proves to be the most powerful religious Mafia that cares little about the American system of justice.

They will use any means available to undermine it when they think it serves their purposes. Legal or otherwise.

Their mafia tactics include: brainwashing, deception, and intimidation, fraud, and cyber biometric capabilities.

Their mafia connection allows them to buy and sell properties within their community under fake identity names.

One of the most significant connections to that is listed on the deed on 5316 New Utrecht Ave, Brooklyn, NY 11219.

The world headquarters for the charity Meir Panim.

This transfer of deed between “Rita and Mordechi Friedman” with “Chaim Streicher” on 10/7/1997 doesn’t add up.

You won’t find either party wanting to step out and discuss this transfer because they are alias names.

Meir Panim’s board of directors is listed on their website; you will find the Administrator of this charity goes by the name of Chaim Buchinger not Chaim Streicher.

For those living in the Satmar mafia communities, the FBI and other government agencies seem to be on to you.

March raids in Monsey and Brooklyn show your attachment to the massive amount of Erate fraud that stems from your yeshivas.

Add the amount of men dressed as Hassidic Jews being arrested and charged with money laundering, sexual abuse, and drug trafficking. Your disguise is no longer working for you.

If there is one thing we know, history has a way of repeating itself. Every empire known to man has fallen for one reason or another.

If this empire doesn’t fall quickly, then what kind of world are we leaving the next generation to face?

Reference links are as follows:

Wednesday, December 12, 2018

Libel suit against ex-anonymous Rockland blogger raises 1st Amendment concerns

A libel lawsuit against a formerly anonymous Rockland blogger is now raising some First Amendment concerns after the writer's identity was outed in court and the case kept sealed.

For two years, Rockland corporate fraud attorney Julie Globus has been writing anonymously about alleged crimes and misdeeds in the Rockland Hasidic community under the blog name "Lost Messiah."

"I have this weird ability to connect dots and find dots," she says.

Earlier this year, those "dots" led Globus to the state Supreme Court in a libel lawsuit that outed her identity, filed by Brooklyn based real-estate titans Louis and Joel Kestenbaum, for two articles she wrote about them in 2016.

"There were underlying lawsuits that were cited and there was an underlying article that was cited, all of which, at the time, I viewed as credible,” said Globus.

Globus' attorney calls the case a "triple assault" on the First Amendment, with the "unmasking" of her identity, the alleged failure to prove malicious intent and the court’s sealing of the case.

That last part in particular garnered the attention of UCLA law professor and Washington Post columnist Eugene Volokh.

"In American law, litigation is supposed to be out in the open so the public can monitor what's going on,” says Volokh.

According to statements made by Kestenbaum's attorney, unsealing the case would "re-victimize" his clients.

Volokh disagrees, saying, “Secrecy is seen as even more dangerous because it increases the risk that the judicial process won't go the right way."

A Supreme Court judge is currently reviewing arguments about whether or not to unseal the case.

The attorney for Louis and Joel Kestenbaum declined to comment for News 12’s story     

Tuesday, December 11, 2018

Bidder for Long Island College Hospital Has Checkered Record in Role of Rescuer

Seven years before its emergence as a possible savior for Long Island College Hospital, which has been on the verge of closing for almost a year, a Brooklyn development group was expected to play a similar role for a hospital in New Jersey.

The developer, Fortis Property Group, met several times in 2007 with the mayor of Bayonne to discuss taking over Bayonne Medical Center. The hospital was in bankruptcy and threatened with closing. But Fortis decided not to go through with the purchase.

After hopes of a sale to Fortis were dashed, the hospital’s creditors painted Fortis’s interest as part of a development play, a quid pro quo in which the true prize was the right to redevelop a defunct military terminal on the Bayonne waterfront. (Bayonne is on a peninsula jutting into the Hudson River.)

Fortis said that it had never signed a formal document to buy Bayonne Medical Center, and that an intermediary, Robert Miller, had signed a $22.5 million purchase agreement without Fortis’s authorization.

“Mr. Miller overstepped his bounds and inappropriately misstated the facts surrounding Fortis’s consideration of the Bayonne Medical Center,” Lee Silberstein, a spokesman for Fortis, said. “At every turn, Fortis directly and explicitly rejected the opportunity to acquire B.M.C.”

But Mr. Miller said that he had negotiated the purchase agreement in good faith, based on meetings and phone calls with Fortis executives and Bayonne city officials.

“I didn’t put a gun to their head,” Mr. Miller said in a recent interview. “I never even had a meeting with the city without somebody from Fortis there.”

Fortis has now stepped forward as a bidder for Long Island College Hospital, which has become a symbol of an epidemic of closings of small, money-losing hospitals. Community groups, hospital workers’ unions and elected officials, including Mayor Bill de Blasio, tried for months to block the closing, fearing that the property, overlooking the Statue of Liberty from the gentrified neighborhood of Cobble Hill, Brooklyn, would be sold to a developer and turned into luxury apartments.

In December, a screening committee for the State University of New York, which owns LICH, chose Fortis as the most viable of about a half-dozen potential buyers. But the SUNY trustees tabled the plan after community groups and unions protested that rival bids had been kept secret, and Mr. de Blasio chimed in that the Fortis plan put too much emphasis on luxury housing.

After a court settlement, the bidding was extended until Wednesday and the terms were changed to favor bidders who would keep a full-service hospital on the site. Fortis remains in the running, with an offer of $185 million to $230 million, depending on the mix of affordable and market-rate housing, and a free-standing emergency room to be run by NYU Langone Medical Center. Fortis officials declined to say whether they would change their bid to include a full-service hospital.

SUNY officials said they were not aware of Fortis’s experience in Bayonne, but that they would expect it to come out and be considered later in the process. “In accordance with standard New York State procurement rules and regulations, once an award is made but before a contract is signed and approved, there is a due diligence process known as ‘vendor responsibility,’ which of course SUNY would adhere to,” said David Doyle, a spokesman for SUNY.

Founded in 2005, Fortis has acquired or developed more than $3 billion of commercial real estate across the United States, including rental and condominium buildings in Brooklyn and Manhattan.

The company’s chairman, Louis Kestenbaum, has a health care background. His father, Zvi Kestenbaum, a rabbi, founded a federally subsidized health care center, ODA, in 1974, that is well known for serving the Satmar Hasidic community of South Williamsburg.

Louis Kestenbaum is the unpaid chairman of ODA, which had about $21 million in revenue, including $16.7 million from Medicaid, in 2012, according to tax filings. Its highest compensated employee, Dr. Afshin Shahkoohi, a family physician, earned $732,525 that year, which ODA said was because of his popularity; he has 15,000 to 16,000 patient visits a year.

The abortive purchase of Bayonne Medical Center revolved around a falling-out between Louis Kestenbaum and Mr. Miller, who described himself as a finder who used his charm and connections to scout out opportunities and shepherd deals. “I had the ideas, Fortis had the money,” he said.

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By the summer of 2007, Mr. Miller had gone to Mr. Kestenbaum with a new project: The city of Bayonne wanted to attract developers to its pier.

Mr. Miller also learned that the city was eager to save Bayonne Medical Center, a major employer, thought to be critical to future development because it was the only hospital on the geographically isolated peninsula.

“Heaven help you if you have a heart attack during rush hour to get to one of the hospitals in Jersey City,” said Terrence Malloy, who was Bayonne’s interim mayor and is now the city’s chief financial officer.

Mr. Malloy recalled, in an interview, meeting with Mr. Miller and two Fortis executives, Akiva Kobre and Terrence Storey, about the hospital. “From Fortis’s end, they absolutely felt that they could play a role in keeping the hospital open,” Mr. Malloy said.

On Nov. 1, 2007, Mr. Miller told the bankruptcy court he was there representing a joint venture with Fortis, and that day he signed an agreement for Urban Suburban, a holding company he ran, to buy the hospital for $22.5 million. Judge Morris Stern approved it, with some trepidation. “Let’s not kid ourselves,” Judge Stern, who died last month, chided the lawyers at the time. The proof of Fortis’s commitment, Judge Stern said, would come when it put down the 10 percent deposit, or $2.25 million.

The down payment never materialized. Five days later, Anthony Coles, a lawyer for Fortis, sent a statement to local news media and a letter to Mayor Malloy, saying that Fortis had never entered into an agreement to buy the Bayonne hospital and that reports that it had were wrong.

Mr. Miller said he never understood what had happened. “They all just disappeared, leaving me hanging,” he said. Mr. Kestenbaum did call him some time later. “He said, ‘You’re dead to me.’ I was like, ‘You’re deader to me.’ ”

Hospital creditors later sued Fortis, Mr. Kestenbaum, Urban Suburban and Mr. Miller for breach of contract and damages. In court papers, the creditors asserted that Fortis’s interest in Bayonne Medical Center was to “develop good will in Bayonne which could then assist them in gaining approval for their plan to develop the Peninsula.”

Judge Stern dismissed the case against Fortis and Mr. Kestenbaum, saying that since they had not signed the deal, they were not bound by it. The creditors dropped the claims against Mr. Miller, who never appeared in court.

The hospital was sold to the runner-up bidder, IJKG, which had offered much less cash; CarePoint Health, IJKG’s for-profit parent, operates it today. As to the waterfront, the city ended up favoring another bidder, Mr. Malloy said.

Mr. Silberstein, the Fortis spokesman, denied any quid pro quo between Fortis’s interest in the waterfront and the hospital. Fortis evaluated them separately and found that neither was “safe and profitable,” he said. “Therefore, Fortis decided not to pursue either opportunity.”

But LICH was different, he said. “At LICH, Fortis has, from the beginning, and repeatedly, demonstrated its commitment to creating a world-class community-based health care facility in a restructured LICH campus. Toward that end, it is once again preparing to submit a proposal for the property’s reuse and has fully expressed a desire to purchase the property.”

Sunday, December 9, 2018

Construction company claims it was wrongfully fired from Fortis’ LICH project

The general contractor working on the conversion of part of the Long Island College Hospital is suing Fortis Property Group, claiming it was wrongfully fired this month.

ICS Builders filed a lawsuit against Fortis, alleging that the firm terminated it from 350 Henry Street in Cobble Hill without cause, Crain’s reported. The construction company also claims that Fortis is trying to cash in on a performance bond — a guarantee that a contractor will complete a project — which would hurt the contractor’s reputation and credit rating, according to the lawsuit.

While Fortis claims that ICS didn’t stick to the construction schedule and failed to provide enough skilled workers for the site, ICS blames the developer, the project’s architect, BKSK, and various subcontractors for deficient plans and unforeseen site conditions.

ICS is seeking at least $3.4 million from Fortis and is asking the judge to block the developer from kicking it off the site.

Fortis purchased the LICH site in 2015 for $240 million. The developer is converting the landmarked Polhemus Building at 350 Henry Street, also known as 100 Amity Street, into a 17-unit condo building. It has a projected sellout of $67.4 million. [Crain’s] — Kathryn Brenzel

Convicted Sexual Pervert "Pre-Prison Party" Attended by Yanky Kanievski

The smiling fellow on the left in this picture is Yisrael Draiman, a chareidi askan who was recently convicted of numerous sex crimes against four female minors. To be abundantly clear, he was charged with tens of counts of molestation, indecent sexual acts, and sodomy of four little girls each around 12 years old.

The man to his right is Yanky Kanievsky, grandson of Reb Chaim Kanievsky. This wouldn't be exceptionally noteworthy except that Yanky is the leading gabbai of Reb Chaim, which means he is one of those who decides who is allowed in, who gets seen and heard, and whose letters gets signed by Reb Chaim. Which means, he is arguably one of the most powerful singular individuals in chareidi litvish Jewry today.

This festive gathering, which took place in the last week, was a party in honor of Draiman, who will be beginning his prison sentence shortly.

Let that sink in for a minute.

The gatekeeper of Reb Chaim Kanievsky, the person who literally choses every haskama he makes and psak he gives, openly supports a man who enjoys raping little frum girls”.

Menachem Stark’s Murder and Fortis Property Group

Police have found a new clue in the unsolved murder of a real estate developer whose burned body was found in a dumpster.

WABC TV is reporting tonight, that a cell phone was found strapped underneath Menachem Stark’s car that was apparently being used as a tracking device. Police are trying to find the phone’s registered owner.

Two masked men grabbed New York City real estate developer Menachem Stark outside his office one snowy night and thrust him into a waiting van. His burned body turned up a day later in a smoldering trash bin, miles away in suburban Long Island.

Stark, a member of an ultra-Orthodox Jewish sect, has been described as an honest family man eager to help his neighbors and friends, a man who had no enemies. But he’s also been called a slumlord. Some of his buildings were in disrepair, and he owed millions to creditors and had declared bankruptcy in 2009.

Stark, nicknamed Max, was a husband and father of seven, the youngest barely 2 years old, the oldest about 16. He lived in a stately brick building in Williamsburg, a neighborhood where hipsters in skinny jeans live alongside ultra-Orthodox men with ear locks and fur hats and women in modest dresses. 

Brooklyn is home to the largest group of ultra-Orthodox Jews outside Israel — more than 250,000. Stark came from a large family, and his funeral this week was flooded with mourners.
“He really was a loving husband and father,” said Abraham Buxbaum, married to Stark’s older sister. “I don’t ever remember getting a ‘no’ from him. He helped people get into the real estate market. He was there for every individual, and the community.”

Stark and his business partners owned and renovated buildings throughout Brooklyn as the borough became increasingly trendy. Court records show they often borrowed money from banks to finance new ventures.

But they filed for bankruptcy in 2009 and landed in court several times. 

He and his primary business partner, Israel Perlmutter, were sued in 2011 after defaulting on a $29 million loan, according to federal court records. In 2012, he was ordered to pay more than $4 million for defaulting on a $2.5 million loan for a separate renovation, court records show.

A bankruptcy judge on Thursday ordered the company to account for $2 million owed to creditors involved in one of his buildings in 2009. They had filed paperwork saying they were concerned about the money being repaid following Stark’s death and his apparent “financial dire straits.”

Stark had about 1,000 tenants, maybe more, his family said, and several described him as a terrific landlord. Jordan Brown, 30, said he’d lived in a building owned by Stark for about three years and he thought very highly of him.

“I knew Max well, and he was actually the only landlord I ever knew who wasn’t a slumlord,” he said.

Another tenant, Melissa Manning, rented commercial space from him and said he was friendly, flexible and responsive.

“We had no conflicts, no disagreements, nothing. He was great,” she said.

But many of his buildings had dozens of serious violations, including working without proper permits. And he was also the target of dozens of complaints of mismanagement, prompting a Sunday headline on the front page of the New York Post that read: “Who didn’t want him dead?”

Heather Letzkus runs a blog about real estate in north Brooklyn, something she described as a “wailing wall” for residents with bad landlord tales, and Stark and his buildings have played prominently. 

There are particular complaints about a hotel of single rooms once raided by the U.S. Drug Enforcement Agency and an industrial building billed as luxury lofts. Stark was fined $25,000 in 2009 for unsafe working conditions at the loft site, according to records. A stop-work order is in place there because of unpaid fines.

“There’s a pattern,” Letzkus said. “One of the things that really jumped out at me is that you had similar complaints and citations,” she said.

Many friends point out that a landlord with 1,000 tenants is bound to have some critics. Buxbaum, the brother-in-law, said it would have been impossible for Stark to maintain such split personalities.

“You can’t hide forever. If you’re a bad person, it comes out,” he said. “No one ever said anything bad; I only heard people say how good he was.”

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Anonymous Anonymous said...
Joel Kestenbaum from Fortis property investment Group purchased the mortgage on 212 -218 N 9th St Brooklyn NY from Broadway Bank, The property was further transferred on 08/16/2013 to a new Corporation named FPG 218 NORTH 9th PROPERTYLLC. C/O FORTIS PROPERTY GROUP LLC 45 Main Street Brooklyn NY 11201 Joel Kestenbaum is notarized as the President / Owner by a Notary named Shem Tov Mayer on 05/05/12 Notary# 01MA5069188 NYS Kings County . Joel Kestenbaum purchased the Mortgage on the building owned by Israel Perlmutter & Menachem Stark. Kings County Section: 8 ,Block: 2313<: .="" 5="" 7="" a="" and="" any="" are="" argument="" as="" authorities="" bank="" battles="" being="" by="" court="" defaulted="" didn="" down="" failed="" fdic="" fights="" first="" foreclosing="" from="" had="" his="" holder="" implicated="" in="" is="" joel="" kestenbaum="" loan="" lot="" made="" max="" menachem="" million="" mortgage="" murder.="" murder="" murdered="" nasty="" national="" on="" opposing="" or="" out="" over="" own="" p="" partner="" perlmutter="" permutter="" prior="" process="" property="" purchased="" questioned="" regarding="" rumors="" shut="" stark="" starks="" subsequently="" t="" that="" the="" there="" this="" to="" want="" wants="" was="" who="" with="" worth="">
January 14, 2014 at 7:47 AM

Two Escapees From Lev Tahor KIDNAPPED in Catskills ON SHABBOS

The horrors of the Lev Tahor cult know no bounds, and they will do anything – including Chillul Shabbos – to maintain their stranglehold on its members.

Authorities in Upstate New York are currently investigating an alleged kidnapping of two of the recent escapees from the Lev Tahor Cult – which occurred on Shabbos.

Sources confirm that two children of the Teller family that recently escaped from the cult in Guatemala were spending Shabbos in the Catskills, when the incident occurred.

Our sources tell us that on Shabbos morning, a 12 year-old girl and a 14-year-old boy were discovered missing.
Police were called, and an investigation is underway.

It has been confirmed that the two children were seen entering a vehicle on Friday night (early Shabbos morning) at around 3:32AM.

The family had been spending Shabbos with professional therapists in the Catskills, along with other previous Lev Tahor escapees.

Thursday, December 6, 2018

הנפקת שמן יוצאת לדרך: תנסה לגייס לפי שווי של 700 מיליון שקלים לפני הכסף

חברת חיפוש הנפט, שמן משאבי נפט וגז, הגישה היום (א') תשקיף סופי להנפקה. החברה, המוחזקת על ידי חברת ארנה גרופ 0%, חיים לייבוביץ', אברהם נניקשווילי וג'קי בן זקן תנסה לגייס לפי שווי של 700 מיליון שקלים לפני הכסף. 

החברה מציעה למשקיעים 199,170 יחידות כאשר כל יחידה כוללת 2,276 מניות רגילות, 569 כתבי אופציה סדרה 1 ו-569 כתבי אופציה סדרה 2. המחיר המינימלי ליחידה נקבע על 602.5 שקלים ומתבסס על מחיר מינימלי למניה של 26.472 אגורות. השווי האפקטיבי של החברה עומד על 630 מיליון שקלים. 

רישיון שמן, בניהולו של מנכ"ל ישראמקו לשעבר יוסי לוי, הינו רישיון חיפושי נפט ימי ובעבר נמצא בו נפט. כיום, לאחר אישור מועצת הנפט בחודש יולי האחרון, מחזיקים ברשיון ACC Group של חיים לייבוביץ' (42.5%) בן זקן (11.5%), נניקשווילי (11.5%) וחברת מנופים (23%). כמו כן מחזיקים בחברה חיים שיף האמור להתמנות לסגן יו"ר הדירקטוריון ועבוד בצמוד ליו"ר הרמטכ"ל לשעבר גבי אשכנזי, וחברת Fortis Business Holdings של לואיס קסטנבאום ובנו ג'ואל קסטנבאום. האחרונים הינם חלק מקבוצת ACC. 

שמן גייסה בהנפקה בפברואר כ-126 מיליון שקל ממשקיעים פרטים שביניהם אלי ברקת, רעיה שטראוס בן-דרור (אחותו של מיכאל שטראוס), הקבלנים י.ח דמרי ואבו יחיאל. החברה מחויבת למשקיעים שהשקיעו בה בהנפקה פרטית להנפיק עצמה בבורסה עד סוף נובמבר ואם לא היו זוכים המשקיעים הפרטיים ב-50% מהחברה. 

Wednesday, December 5, 2018

לואיס וג'ואל קסטנבאום - מי אתם ומה אתם מסתירים

"האומרטה" – הוא קוד השתיקה המפורסם המיוחס למאפיה האיטלקית, הינו רק גירסה חיוורת ומודרנית יחסית של קוד השתיקה המקובל בקהילות היהודיות, בעיקר החרדיות. הקוד הנ"ל מחוזק על ידי מה שנקרא "דין מוסר" שבעצם מצדיק הלכתית גזר דין מוות למי שמעז לפתוח את הפה ולחשוף מחוץ לקהילה כל עובר עבירה שהיא. ולא ממש מפתיע שעבריינים בכל הרמות חוגגים בתך הקהילות החרדיות השונות. בין אם מדובר בהתעללות מינית או במעילות. ובעצם כל עבירה שהיא. חומות השתיקה הללו לא רק שמקשות על המדינה לחקור עבירות שבמהותן מחייבות טיפול ברמת אכיפת החוק. הן מטילות חרדת מוות על אלו הנחשפים למידע. ובצדק.

היות והעידן המודרני הוא עידן של מידע זורם ורציף, שתאורטית לפחות, מדובר בעידן בו חופש העיתונות קדוש. הרי, שמן הסתם, הרבה יותר קשה גם עבור החרדים לשמור על הכביסה המלוכלכת בפנים. וכאן עוברים המאבקים למישורים הרבה פחות סימפטיים והרבה כסף מחליף ידיים על מנת למנוע זליגת המידע אודות עברייני הקהילות החוצה.
אל תוך הסיפור הזה צללה עורכת דין בשם ג'ולי גלובוס. אם לשלושה. יהודיה. עם רקע ישראלי. שבימים אלו נאלצת להגן על ביתה ומשפחתה באמצעות חברת אבטחה ובבית המשפט כנגד משפחת קסטנבאום מהעשירות. והפחות נעימות שבמשפחות קהילת חסידי סאטמר.
ג'ולי היא פעילה חברתית. בעלת בלוג עתיר קוראים בשם "המשיח האבוד". שמטרתו חשיפת עברות. פשעים ושאר רעות חולות בקהילות היהודיות השונות ברחבי העולם.
ה"משיח האבוד" חשף בין היתר: הונאות פיננסיות לפני שנחשפו על ידי רשויות החוק הן בניו יורק והן במדינות אחרות. תקיפות מיניות התעללות בזקנים בדיור מוגן שבבעלות עתירי הון אך מאותגרים מוסרית. הונאות ביטוח רפואי המבוצעות על ידי קהילות שלמות כפרקטיקה יומיומית. אנשי עסקים יהודיים המגלגלים הון עתק על גבם של מדינות העולם השלישי תוך הרס הכלכלה המקומית ועוד.
ג'ולי איננה הכותבת היחידה ואליה חוברים כותבים ותורמי תוכן מכל העולם.
במהלך עבודתה נתקלה ג'ולי. והיא לא היחידה. במשפחת קסטנבאום. מחסידות סאטמר מוויליאמסבורג. ברוקלין. משפחת קסטנבאום היא משפחה עשירה מופלגת ומחזיקה בבעלותה חברת אחזקות בשם "פורטיס" הפעילה גם בישראל. חברת פורטיס מנוהלת על ידי האב לואיס ובנו ג'ואל.
לשמה של המשפחה נקשרו, ולא במפתיע, לעיתים קרובות. פעילות פלילית ועל גבול הפלילי. וזה כולל האשמות לגבי: הלבנת הון. שיחוד פוליטיקאים (באמצעות מימון לגיטימי כמובן) ניגודי עניינים. ועוד… אך היות והכל נעשה תחת מסך העשן של קוד השתיקה החרדי לעיתים נדירות. זלגו פרטי מידע החוצה. אבל את מה שאכן זלג בדקו. ליקטו. וערכו מספר פעילים חברתיים ופרסמו בשישה בלוגים שונים. הפרסומים התבססו על חומר שהיה ידוע לכל וזמין באופן פומבי. אחד הבלוגים הללו הוא הבלוג של ג'ולי גלובוס. והטריגר לפרסומים היה דווקא תקיפה מינית המיוחסת, לכאורה, ללואיס קסטנבאום.
יום בהיר אחד קיבלה ג'ולי דרישה טלפונית מעורך הדין של משפחת קסטנבאום להסרת פוסט מהבלוג שלה. כאן עלתה השאלה. כיצד הצליחה משפחת קסטנבאום לחשוף את זהותה או זהותם של כותבי בלוגים האמורים להיות מוגנים (באופן תאורטי). כסף. הוא כנראה התשובה. ואף אחד איננו מוגן מספיק כדי להתמודד עם כל כך הרבה כסף.
ג'ולי, במחווה של רצון טוב, הסירה פוסט אחד העוסק בעבירה פלילית, שלואיס קסטנבאום אכן הודה באשמה (הונאה) בבית משפט וחתם בעצמו על עסקת טיעון- קישור למסמך עסקת הטיעון הרשמי. מתוך ידיעה שהיא איננה לבד. זאת אחרי שאת הפוסט העוסק בעבירה מינית (לכאורה, כמובן) הסירה למרבה הפלא חברת וורדפרס. מה שהיא לא ידעה הוא שמשפחת קסטנבאום עוסקת מזה זמן מה בנקיון אגרסיבי של האינטרנט מנוכחותה,ובסיוע החוק המחייב את הגוגל להסיר קישורים. הרי שבקרוב מאוד לא ישאר זכר לעלילות הקסטנבאומים. בין אם יש בהם בסיס של אמת ובין אם לאו.
מששת הבלוגים שפרסמו את כתבות אודות המשפחה שניים נעלמו כאילו בלעה אותם האדמה (כנראה שקיבלו הצעה שלא יכלו לסרב לה) מהשלישי נשארו רק קישורים מתים (קישור המוביל לשום מקום – תוצאה של הסרת האתר בטרם יספיק הרובוט של מנוע החיפוש לחזור ולבדוק את אמינות הקישור). מהשניים שנשארו באוויר עם המידע עליהם נכון להיום נשאר רק אחד, שמשפחת קסטנבאום איננה מצליחה לאתר ולחשוף את זהות בעליו.
עקב חשיפת זהותה, ובהמלצת המשטרה, נאלצת ג'ולי גלובוס להגן על ביתה ומשפחתה 24 שעות ביממה. אך משפחת קסטנבאום עדיין לא הגיעה על סיפוקה ובימים אלו תובעת את ג'ולי על הוצאת דיבה. תהליך שנמרח ועולה הון תועפות לאדם מהישוב, וגרוע מכך, כשכבר תתברר התביעה לא ישארו הוכחות על הרשת. שעות ארוכות של חיפושים שביצעתי הניבו הרבה מאוד קישורים מתים. בין היתר קישור לכתבה שפורסמה באתר ה"ניו יורק טיימס". עיתון מכובד לכל הדעות. שהסיר כתבה שאושרה בזמנו לפרסום (סביר להניח שכניעה של עיתון שכזה נובעת מתקציב פרסום של חברת פורטיס המושקע בכתבות תדמית ופרסומים אחרים).
בקיצור משפחת קסטנבאום מנקה את הרשת מנוכחותה (השלילית). רק שני אתרים עומדים כרגע על כנם. והיות והם מפרסם מאמרים של אחרים. ואנונימיות בעליו מוגנת באופן מוחלט. החליטה (כנראה) משפחת קסטנבאום. שג'ולי גלובוס היא בעליו של אחד מהם והמאמרים האמורים הם פרי עטה.
הבעיה המרכזית כרגע היא העובדה, שלא ג'ולי ולא עורך דינה יודעים את כל פרטי התביעה, שכן הכל חסוי בינתיים. מה שמהווה הפרה גסה של זכויותיה של הנתבעת בכל דמוקרטיה שהיא. ולא מאפשר לה להכין את ההגנה כך שבשלב זה היא בעצם רק מוציאה כסף. בלתי נתפס בכל סטנדרד שהוא.
יתכן שמדובר כאן בין היתר באסטרטגיה. שתכריח את המתגונן (היינו ג'ולי גלובוס) לאתר את בעלי האתר בעצמה כדי להוכיח שזו איננה היא. אינני עורך דין, אבל למיטב ידיעתי. בכל העולם וזה כולל את ארה"ב לבית המשפט מגיעים רק עם הוכחות. ומשפחת קסטנבאום איננה יכולה להוכיח שג'ולי גלובוס היא היא הבעלים של webactivism או שהיא אכן כתבה את המאמר. אבל כמו שאמרתי אינני עורך דין. יתכן גם שהאסטרטגיה מיועדת לגרום לנתבעת נזק כלכלי עצום עוד בטרם תתייצב בבית המשפט שיגביר את הלחץ עליה. אחרי הכל ג'ולי נאלצה לשכור עורך דין מהשורה הראשונה עם תג מחיר של 500 דולר לשעת ייעוץ (אחרי הנחה – לא. זו לא בדיחה).
התביעה כנגד ג'ולי גלובוס. והמחיקת המאמרים האובססיבית שמבצעת משפחת קסטנבאום גובלת בפגיעה בחופש העיתונות. וחשיפתם של בלוגרים ועיתונאים העוסקים בחקר האמת פוגעת בבטחונם האישי ומסכנת את משפחותיהם.
למשפחת קסטנבאום יש, כמובן, גם עסקים בישראל ובין היתר היא שותפה (מחזיקת מניות) בחברת שמן. בעלת הרשיון לקידוח בשדה ים 3. רשיון שצל כבד אופף את הצורה בה ניתן ומבקר המדינה ציין זאת בדו"ח השנתי. קידוח ים 3 נראה על פניו כהונאה. במהלך החודשים אוגוסט וספטמבר 2013 הודיע חברת שמן על ממצאים משמעותיים של נפט וגז טבעי בקידוח ים 3. ובעקבות כך גייסה הון לביצוע בדיקת הפקה. באוקטובר כבר התברר כי הבאר יבשה לגמרי ובסוף אוקטובר כבר פרש גבי אשכנזי מתפקידו כיו"ר החברה אחרי שחודש קודם לכן למרות הדיווח הפומבי על מציאת נפט נמנע גבי אשכנזי ממימוש האופציות שברשותו. בימים אלו הוא נתבע בתביעה ייצוגית בנושא קידוח ים 3.
בחברת "שמן" היו שותפים ג'קי בן זקן – המרצה תקופת מאסר בת 3 שנים על פרשית שחיתות אחרת) אברהם נניקשווילי (שהואשם במתן שוחד לבניימין בן אליעזר) וכמו כן גם משפחת קסטנבאום באמצעות חברת פורטיס. המעניין הוא שמשפחת קסטנבאום לוותה את הכסף לרכישת מניות שמן מ…ג'קי בן זקן (מופיע בדו"ח החברה לרשות לנירות ערך). מעבר לזה ? איש לא יודע דבר…או לא מוכן לפצות את הפה. ככה זה בשטעטל.

Louis Kestenbaum vs Pennzoil Co.

Plaintiff Louis Kestenbaum was awarded damages for breach of an employment contract. The trial was had before a jury which found by special verdict that the employment was not terminable at will, but rather was subject to an implied contract requiring a good reason for termination, and that there was no good reason to discharge Kestenbaum. We affirm.

Kestenbaum was employed in March of 1977 by defendants Pennzoil Company and its subsidiary, Vermejo Park Corporation, as the vice president in charge of guest operations at a secluded ranch in northern New Mexico. The ranch maintains guest facilities and services for lodging, hunting, fishing, and other recreational activities.

By anonymous letter in January of 1984, Kestenbaum was accused of sexual harassment, illegal conduct, and mismanagement of the ranch. Pennzoil initiated an investigation *282 in which information was gathered through interviews of Vermejo Park female employees, past and present. Subsequently, the investigators presented to Pennzoil officials an oral briefing and a written report that summarized the evidence. On February 13, 1984, Pennzoil summoned Kestenbaum to its headquarters in Houston where he met with the investigators who confronted him with the allegations concerning sexual harassment, which he denied. Thereafter, Pennzoil officials informed Kestenbaum of the names of the persons interviewed and he was given the opportunity to comment about each. Pennzoil also permitted Kestenbaum to name witnesses who would speak on his behalf. Kestenbaum met one more time with Pennzoil vice-president Rundle and again denied the allegations, but to no avail. On February 17, Kestenbaum's employment was terminated.

Kestenbaum claimed that, without fair investigation and consideration of the allegations and his response, he was terminated on the grounds of sexual harassment for which he was innocent. Pennzoil denied Kestenbaum's claim and affirmatively asserted that Kestenbaum was an employee at will and was dischargeable for any or no reason. Alternatively, if a good reason was required to discharge Kestenbaum, Pennzoil asserted that it had reasonable grounds to believe that sufficient cause existed to justify its actions.

By Instruction No. 8, the jury was instructed on Kestenbaum's claim that, by words and conduct, the parties entered into an employment contract which included among its terms that (1) in addition to a salary for Kestenbaum's labor and best job efforts, he would receive various fringe benefits, including but not limited to a retirement program, a stock purchase program, and health and other insurance; (2) the employment would be of a long-term nature, but subject to the normal contingencies of work life, such as a sale of the ranch, early voluntary retirement, layoffs and so on; and (3) with regard to involuntary termination of employment, Kestenbaum would be terminated only for just cause or, in other words, for a good reason, he would be treated fairly, have the opportunity to know some specifics of the charges against him, be given a chance to defend himself, and his supervisors would not determine whether there was just cause for the termination until hearing and fairly considering Kestenbaum's side of the story. Whether these claimed terms and conditions applied to the employment contract was left for the jury to determine on disputed evidence.

Without objection, the court instructed the jury on the applicable law of employment contracts, as follows:

INSTRUCTION No. 9 An implied contract is an agreement in which the parties, by a course of conduct, have shown an intention to be bound by such agreement. INSTRUCTION No. 10 Under New Mexico law, the general rule is that a contract for permanent employment, calling only for the performance of duties and payment of wages, is a contract for an indefinite period. It is terminable at the will of either party. A discharge without reason is not a breach of such an at will employment. INSTRUCTION No. 11 In every contract the law implies a covenant of good faith and fair dealing between the parties ... The implied covenant of good faith and fair dealing, however, is not to be used by you in determining whether or not there was a term of an implied contract calling for discharge for just cause only. You must first find from the words and conduct of the parties that they intended that the plaintiff's discharge would be made for just cause only. If you find that there was an implied contract of employment between the parties which included a good-reason standard for termination, then the implied covenant of good faith and fair dealing *283 requires in the traditional sense a moral quality equated with honesty of purpose, freedom from fraudulent intent and faithfulness to duty or obligation.
The jury also was instructed that, for purposes of guidance, it could properly resort to Equal Employment Opportunity Commission guidelines that define what constitutes sexual harassment under the "totality of the circumstances" rule. The guidelines describe the strict responsibility of an employer for the acts of its supervisory employees with respect to sexual harassment and state that an employer should develop appropriate sanctions and take all steps necessary to prevent sexual harassment. The court further instructed the jury that sexual harassment by a supervisor is a violation of law and that, where an employer receives allegations of conduct that could amount to sexual harassment, the employer has a legal duty and obligation to investigate and promptly take appropriate remedial action. Finally, the court instructed that evidence in a case involving sexual harassment is typically contradictory. Nonetheless, the employer still has the duty to take action to prevent sexual harassment.

We address the following issues raised by Pennzoil in this appeal: (1) Whether the claim for breach of an implied employment contract was barred by the statute of frauds? (2) Whether there was substantial evidence to support the jury's finding of an implied employment contract requiring a good reason for termination? (3) Whether the law applied by the court unduly restricted Pennzoil's showing that there was a good reason for the discharge? (4) In terminating employment for good reason, what is the standard for judging the conduct of the employer? (5) Whether the court committed reversible error in refusing to instruct specifically on asserted defense theories as requested by Pennzoil? (6) Whether Pennzoil was entitled to a new trial by reason of inflammatory closing arguments, by reason of the receipt of evidence germane to claims dismissed on directed verdicts, but irrelevant and immaterial to the claims finally submitted, or by reason of a verdict contrary to the weight of the evidence?

Statute of Frauds. Pennzoil contends that the trial court erred in denying its motion for directed verdict on the breach of contract claim. Pennzoil asserts that, because the action was based on an oral employment contract that could not be performed within one year, the action was barred by the statute of frauds. See Skarda v. Skarda, 87 N.M. 497, 501, 536 P.2d 257, 261 (1975). At the least, Pennzoil argues, the court erred in keeping the issue from the jury. Pennzoil maintains that an agreement for employment until Kestenbaum's retirement would have been for a specific term more than one year, rather than for life or for an indefinite period. Pennzoil concedes that the statute of frauds does not apply to a contract under the latter circumstances. See Hodge v. Evans Fin. Corp., 823 F.2d 559, 561-65 (D.C. Cir.1987). Nor does it apply to a contract for employment until retirement.

There is no indication in local law or elsewhere that a permanent employment contract should be construed as a contract for an expressly stated, fixed term of years by virtue of an employee's expectation that he or she will retire at some point. No court or commentator has ever suggested that the possibility of the employee's death within one year would "defeat" rather than "complete" such a contract. To the contrary, courts and commentators have consistently accepted the view that indefinite permanent employment contracts such as Hodge's fall outside the statute because they are capable of full performance within one year. See, e.g., 2 Corbin on Contracts § 446, at 549-50 (Permanent employment contracts fall outside the statute because "[t]he word `permanent' has, in this connection, no more extended meaning than `for life.'"); 3 Williston on Contracts § 495, at 582 ("A promise of permanent personal performance is on a fair interpretation a promise of performance for life, and therefore not within the Statute.").
*284 823 F.2d at 564 (footnote omitted). As with Hodge, Kestenbaum unequivocably alleged a contract for permanent employment, not a contract until he reached a specified age of retirement.

Further, Pennzoil bore the burden of pleading and proving the affirmative defense of the statute of frauds. See SCRA 1986, 1-008(C). As a general rule, determination of the applicability of the defense of the statute of frauds is a question of law for the court, not the jury. Sanchez v. Martinez, 99 N.M. 66, 653 P.2d 897 (Ct.App. 1982). However, a factual question concerning the particulars of a contract may prevent a ruling on the statute's applicability as a matter of law. Sierra Blanca Sales Co. v. Newco Indus., Inc., 84 N.M. 524, 505 P.2d 867 (Ct.App.), cert. denied, 84 N.M. 512, 505 P.2d 855 (1972). That is not the case here. Pennzoil presented no affirmative evidence on the issue, and Kestenbaum's evidence established that his employment contract was indefinite in duration.

Substantial Evidence to Support Jury Finding of Implied Employment Contract Allowing Discharge Only for Good Reason. Seeking support in Gonzales v. United Southwest Nat'l Bank, 93 N.M. 522, 602 P.2d 619 (1979), and Garza v. United Child Care, Inc., 88 N.M. 30, 536 P.2d 1086 (Ct.App.1975), Pennzoil argues that, because Kestenbaum's oral employment agreement was for an indefinite period, he was an employee at will, dischargeable for any or no reason. Although Pennzoil recognizes an exception to at-will employment exists for an implied contract term based on the words and conduct of the parties, it maintains that, in New Mexico, this exception has been based only upon provisions included in an employee handbook or personnel manual. See Forrester v. Parker, 93 N.M. 781, 606 P.2d 191 (1980); Francis v. Memorial Gen. Hosp., 104 N.M. 698, 726 P.2d 852 (1986). Even where a policy manual exists it will not always change the at-will employment relationship if the manual is not sufficiently specific. Sanchez v. The New Mexican, 106 N.M. 76, 738 P.2d 1321 (1987); cf. Lukoski v. Sandia Indian Management Co., 106 N.M. 664, 748 P.2d 507 (1988) (where handbook represented an established policy regarding terminations and failed to alert employees against placing reliance upon it, policy properly could be found part of employment agreement).

Several jurisdictions quite properly have been willing to impose implied contractual duties based upon particular representations or conduct of an employer, without limitation to handbooks or manuals. These courts recognize that oral statements made by an employer may be sufficient to create an implied contract which provides that an employee shall not be discharged except for cause. We agree. See, e.g., Toussaint v. Blue Cross & Blue Shield, 408 Mich. 579, 292 N.W.2d 880 (1980); Pugh v. See's Candies, Inc., 116 Cal. App. 3d 311, 327, 171 Cal. Rptr. 917, 925-26 (1981) ("In determining whether there exists an implied-in-fact promise ... courts have considered ... personnel policies or practices of the employer ... [and] actions or communications by the employer reflecting assurances of continued employment... ." (footnotes omitted)). Other courts that have restricted the right to freely discharge at-will employees because of an employment policy or procedure recognize the traditional at-will rule to be a rebuttable presumption. See, e.g., Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 466, 443 N.E.2d 441, 446, 457 N.Y.S.2d 193, 198 (1982) (at-will rule affords no greater status than that of a rebuttable presumption and trier of fact should consider course of conduct of the parties, including the writings and antecedent negotiations); Leikvold v. Valley View Community Hosp., 141 Ariz. 544, 688 P.2d 170 (1984) (en banc).

In the consolidated cases of Toussaint and Ebling, two employees, one employed for five years and the other for two years, brought wrongful discharge actions against their respective former employers. Toussaint received an oral assurance that "he would be with the company `as long as I did my job,'" and Ebling "was told that if he was `doing the job' he would not be discharged." Each employee asserted that the statements made by the employer constituted *285 an agreement not to discharge except for good cause. 408 Mich. at 597, 292 N.W.2d at 884. The employers argued, as does Pennzoil, that employment contracts for an indefinite term are terminable at the will of either party unless the employee has furnished consideration independent of his services to his employer.

Toussaint's case was strengthened because upon being hired he was handed a personnel manual that reinforced the oral assurance of job security. The court, however, did not rest its decision on the presence of the personnel manual. It ruled that (1) a provision of an employment contract providing that an employee shall not be discharged except for cause is legally enforceable although the contract is not for a definite term, and (2) such a provision may become part of the contract either by express agreement, oral or written, or as a result of an employee's legitimate expectations grounded in an employer's policy statements. The court further held that "[e]mployers are most assuredly free to enter into employment contracts terminable at will without assigning cause. We hold only that an employer's express agreement to terminate only for cause, or statements of company policy and procedure to that effect, can give rise to rights enforceable in contract." 408 Mich. at 610, 292 N.W.2d at 890. The court concluded that when a prospective employee inquires about job security and the employer agrees that the employee shall be employed so long as he does the job, a fair construction is that the employer has agreed to give up his right to discharge at will and may discharge only for "good or just cause." Id.

Pennzoil claims that the evidence presented by Kestenbaum was insufficient as a matter of law to establish an implied contract that required a good reason to terminate the employment relationship. We believe, however, that the evidence was sufficient to overcome the presumption that the employment contract was terminable at will. There was substantial evidence from which a jury reasonably could find that the parties agreed to a contract that permitted termination only for a good reason.

Kestenbaum presented the following evidence to establish that his employment contract was for an indefinite period of time, and allowed involuntary removal only for a good reason. During initial employment negotiations, Kestenbaum's immediate supervisor at Vermejo Park made clear that the employment would be long term and permanent as long as Kestenbaum did his job. This was uncontroverted. Further, Kestenbaum testified that those assurances were consistent with his needs for long-term job security and the fact that he would not have considered the job if offered only on a short-term basis.

Mr. Wolfe, former operations manager at Vermejo Park, testified that Pennzoil only released permanent employees for "a good reason, a just cause." Mr. Lew, an investigator, stated that he presumed that Pennzoil only terminated employees for just cause. Vice-president Rundle confirmed this policy, as did Mr. Charlesworth, Kestenbaum's successor supervisor, who testified that Pennzoil believed it had to "have a good reason to terminate an employee" and that the Houston office always required good cause. Pennzoil presented no evidence that it maintained a "fire-at-will" management practice.

The insurance benefits manual and the policy manual also provided additional evidence regarding Pennzoil's policy and practice to forego its common-law right to fire at will. The insurance benefits manual contained a provision describing conversion privileges after termination of employment. The manual made no mention of a termination without cause. Neither did the severance pay plan in the policy manual address the effect of a without-cause termination of employment.

Pennzoil attempts to refute the sufficiency of the evidence by attacking each element individually. First, Pennzoil maintains that an implied employment contract altering the at-will presumption cannot be premised upon Kestenbaum's subjective understanding about statements made at the inception of the employment relationship. *286 See Thompson v. St. Regis Paper Co., 102 Wash. 2d 219, 685 P.2d 1081 (1984) (en banc). Pennzoil further asserts that the insurance benefits policy and severance pay plan are insufficient to create an implied contract because neither specifically altered the at-will relationship. Finally, Pennzoil contends that management practice has never been recognized in New Mexico as a sufficient basis from which to imply an employment contract allowing discharge for cause only.

We are unwilling to test the sufficiency of each piece of evidence standing on its own in a vacuum and rule, as a matter of law, that each alone fails to support a finding of an implied employment contract. In overcoming the presumption, it is not any single act, phrase or expression, but the totality of all of these, given the circumstances and the parties' situation and objectives, which will control. Weiner, 57 N.Y.2d at 466-67, 443 N.E.2d at 446, 457 N.Y.S.2d at 198; Pugh, 116 Cal. App. 3d at 329, 171 Cal. Rptr. at 927 ("While oblique language will not, standing alone, be sufficient to establish agreement ... it is appropriate to consider the totality of the parties' relationship... ." (citation omitted)). Undoubtedly, under Sanchez v. The New Mexican, the policy statements addressing insurance benefits and severance pay would, without more, be inadequate to alter the at-will relationship. However, when coupled with uncontroverted testimony describing the negotiations between Kestenbaum and Pennzoil's agent and with Pennzoil's concession that there was a management practice followed by Pennzoil not to terminate employment except for a good reason, there is substantial evidence to support the jury finding that an implied employment provision for discharge only for a good reason was in effect between Pennzoil and Kestenbaum.

Law Applied as to Good Reason for Discharge. Pennzoil argues that good reason for discharge existed as a matter of law and contends that the jury was misinstructed on applicable rules of implied contract. In reviewing alleged errors relating to jury instructions, this Court will consider whether all of the instructions, when read and considered together, fairly present the issues and the law applicable thereto. Webb v. Webb, 87 N.M. 353, 533 P.2d 586 (1975). We recognize that the Uniform Jury Instructions contemplate that instructions should be concise and should not comment on the evidence. See SCRA 1986, Judicial Pamp. 13 The Concept of Jury Instructions; Kinney v. Luther, 97 N.M. 475, 641 P.2d 506 (1982).

The first instruction we address that was objected to by Pennzoil is Instruction No. 12, which read as follows:

INSTRUCTION No. 12 Where the terms of an implied contract of employment between the parties include provision for the employer to give the employee a chance to defend himself and to have some specifics of the charge, then you are instructed that the reasons given by the employer at the time of termination are the only reasons that the defendants may rely upon to show there was a good reason for the plaintiff's discharge.
Pennzoil objected to and appeals from the court's refusal to instruct to the contrary that, in an action for wrongful discharge, the employer may claim in defense any sufficient cause for terminating the employment. Pennzoil's requested instruction was based upon the law in Kiker v. Bank Sav. Life Ins. Co., 37 N.M. 346, 23 P.2d 366 (1933), and provided that, "in an action for wrongful discharge, the employer may claim in defense any sufficient cause for terminating the employment, (i) even if it may have been unknown to him at the time of termination, (ii) even if his real reason or motive may have been something else, or (iii) even if another reason was expreslly [sic] given." However, the language quoted from Kiker does not purport to apply to the circumstances of this case. Here, if the jury were to find that the employment contract required Pennzoil to give Kestenbaum notice of specifics of the charge, and a chance for him to defend, indeed, the reasons given by Pennzoil to Kestenbaum are the only reasons that it *287 could rely upon. Where parties stipulate that the employer will terminate by notice specifying cause, "a discharge specifying no cause, or an insufficient cause, would be wrongful. It follows that, under such a contract, a cause not specified would not be available in defense." Id. at 349, 23 P.2d at 368. In the present case, no issue was raised contesting the right to notice and a hearing if the employment were not found to be at will. The trial court was correct to refuse Pennzoil's requested instruction.

Pennzoil's next contention is that the court erred in refusing its requested instruction that any finding of illegal conduct on the part of an employee is good cause for discharge. Pennzoil maintains that its requested instruction was necessary to inform the jury of the possible consequences of Kestenbaum's alleged illegal conduct in connection with the service and consumption of alcoholic beverages by minors. The record indicates that the requested instruction was a proper subject for argument but a misstatement of the law as applied to these facts. Pennzoil presented evidence at trial that Kestenbaum permitted minors to serve and to consume alcohol. Evidence also was presented that this practice existed prior to Kestenbaum's management of Vermejo Park and continued after his termination. Moreover, Kestenbaum's superiors were aware that under-age waitresses served alcohol to the guests, and expressed no concern. Given this evidence, the jury could have found that Kestenbaum's conduct was in the furtherance of the interests of the corporation and authorized by corporate superiors. The trial court properly concluded that the jury could in one context find that illegal conduct in performance of the job is good reason for firing, and in another context find it is not. It would have been error for the court to compel the jury to find that, under these circumstances, this conduct represented a good reason for discharge.

Standard for Judging Conduct of Employer in Terminating Employment for a Good Reason. Pennzoil objected to and appeals from the court's refusal to instruct that, where an employee is terminated for a good reason, the employer does not have to prove that the reason in fact existed. Pennzoil argues that the employer need only in good faith believe that the employee engaged in conduct that was inappropriate in the work place. See Simpson v. Western Graphics Corp., 293 Or. 96, 643 P.2d 1276 (1982) (en banc) (absent evidence of express or implied agreement whereby employer contracted away its fact-finding prerogative, in discharge for good cause, there need only be substantial evidence to support employer's decision and that employer believed evidence and acted in good faith). Pennzoil contends that its requested Instruction No. 15 was essential to inform the jury of the employer's position at the time of Kestenbaum's discharge. Unless a jury is instructed that an employer only is required to demonstrate a good faith belief that cause existed to terminate, Pennzoil seems to suggest that the only alternative is to instruct the jury that the employer must prove good cause in fact.

Pennzoil maintains that to require an employer to have a preponderance of evidence establishing good cause in fact prior to making a decision to terminate an employee would place an unrealistic burden on the employer. Pennzoil points out that an employer does not have the benefit of extended discovery but must base his decision on information available at the time of discharge.

We agree, but we do not perceive the issue in the bipolar manner fashioned by Pennzoil. We believe that a middle position exists under these circumstances, and, further, that the jury properly was instructed on this middle position. The issue upon which the jury was instructed was whether Pennzoil "had reasonable grounds to believe that sufficient cause existed to justify the defendants' actions in discharging the plaintiff." Accordingly, the jury could have absolved Pennzoil of liability under its implied contract with Kestenbaum provided that Pennzoil had reasonable grounds to believe that sufficient cause existed to justify his termination. See Crimm v. Missouri Pac. R.R., 750 F.2d 703, 713 (8th Cir.1984) (under Title *288 VII, employer need not prove that employee committed sexual harassment, employer only needs a reasonable belief that sexual harassment occurred). The trial court correctly denied Pennzoil's requested Instruction No. 15 because it erroneously suggested the jury could find good cause from the employer's subjective good faith belief as opposed to an objective standard of reasonable belief.

Furthermore, there was substantial evidence to support the jury finding that Pennzoil did not act upon reasonable grounds. In her deposition, Pennzoil's investigator admitted on cross-examination that her summary was not intended to stand alone, that it failed to differentiate between first-hand knowledge, attributed hearsay, or mere gossip or rumor, and no attempt was made to evaluate the credibility of the persons interviewed. Nevertheless, the only document reviewed by vice-president Rundle before he fired Kestenbaum was his investigator's summary of interviews. Moreover, he did not take a close look at the way the investigation had been handled, but relied upon the professionalism of his investigators. At trial, Kestenbaum presented an expert who testified that Pennzoil's investigators did not observe the standards of good investigative practice and who identified numerous deficiencies in the investigation.

Pennzoil claims further that the court erred in refusing to instruct the jury on "wide latitude" and "great scope" as standards for judging an employer's conduct when dealing with managerial employees. Pennzoil asserts Instruction No. 12 severely limited the potential conduct of the employer. Pennzoil argues that an instruction on "wide latitude" and "great scope," like Pennzoil's requested instruction concerning good faith belief, was necessary to inform the jury of the employer's position when determining the existence of good cause. We hold, however, that the trial court properly exercised its discretion in refusing the instruction because it did not supply any needed guidance to the jury. The requested instruction was properly the subject of argument for counsel. See SCRA 1986, 1-051.

Refusal to Instruct on Asserted Defense Theories as Requested by Pennzoil. Pennzoil challenges the court's refusal of its requested Instruction No. 100, or alternatively, No. 101, and claims the court erred in giving Instruction No. 8 instead. Pennzoil maintains that Instruction No. 8 was prejudicial in that it allegedly permitted Kestenbaum to present a statement of his case, while denying Pennzoil the opportunity to state its theory of the case. Instruction No. 8 explained the burdens of proof and the contentions of the parties in conformity with SCRA 1986, 13-302B. The portion of Pennzoil's requested instructions excluded from Instruction No. 8 were statements asserting that (1) the defendants had an obligation to investigate the charges of sexual harassment and to take appropriate and remedial action, (2) the investigation by Pennzoil was more thorough and was conducted by more experienced investigators than is normal in a personnel investigation, (3) the investigation revealed conduct inappropriate for the workplace which would constitute sexual harassment, and (4) Pennzoil's presentation of the charges against Kestenbaum were in sufficient detail so that he could understand them and he was given adequate opportunity to defend himself. We agree with the trial court that these statements simply constituted denials of the claims articulated by Kestenbaum. The trial court acted within its discretion in ruling that the statement, "[t]he defendants deny the contentions of the plaintiff", was sufficient and it was unnecessary to incorporate Pennzoil's requested instructions into the format of SCRA 1986, 13-302C. It is not error to deny requested instructions where the court gave instructions that adequately covered the issue. Hudson v. Otero, 80 N.M. 668, 459 P.2d 830 (1969). Early in this opinion we discussed the detailed instruction by which the jury was guided on the employer's required response to charges of sexual harassment.

The record indicates that Pennzoil had ample opportunity to express its affirmative *289 theories which were clearly stated in Instruction No. 8. We hold, therefore, that the instructions as given did not deprive Pennzoil of an opportunity to fairly state its theory of the case. Based upon our review of the instructions as a whole, we find that no prejudice resulted to Pennzoil.

Refusal to Grant Pennzoil's Motion for New Trial. The granting of a new trial is discretionary with the trial court. State ex rel. State Highway Dep't v. Robinson, 84 N.M. 628, 506 P.2d 785 (1973). Refusal to grant a new trial will only be reversed where it is found to be an abuse of discretion. Id.

Pennzoil first claims that several remarks during Kestenbaum's closing argument were inflammatory, misleading, and prejudicial. Specifically, Pennzoil refers to remarks made that referred to (1) Pennzoil's relation to the local community, (2) the court's grant of Pennzoil's motion for directed verdict on only six of the eight claims brought by Kestenbaum, and (3) the non-appearance of some of Pennzoil's witnesses. During Kestenbaum's closing, Pennzoil failed to raise any objection. "[A]ny objections to the argument of counsel should be made in time for the court to rule on them, and, if necessary, to correct them before the jury retires... ." Jackson v. Southwestern Pub. Serv. Co., 66 N.M. 458, 474, 349 P.2d 1029, 1039 (1960). This Court has recognized that in the proper case improper remarks made by counsel could necessitate reversal and award of a new trial, notwithstanding a failure to object. Griego v. Conwell, 54 N.M. 287, 222 P.2d 606 (1950). Pennzoil, however, had the burden to demonstrate to the trial court that its rights were prejudiced because the argument was improper and because the remarks were "reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case." Apodaca v. United States Fidelity and Guar. Co., 78 N.M. 501, 502, 433 P.2d 86, 87 (1967) (quoting Aultman v. Dallas Ry. & Terminal Co., 152 Tex. 509, 516, 260 S.W.2d 596, 600 (1953)). It was within the sound discretion of the trial court to conclude that Pennzoil failed to meet its requisite burden. In its order denying Pennzoil's motion for a new trial, the court opined that had Pennzoil timely objected a curative instruction could have been conveyed to the jury. Our review of Kestenbaum's closing argument supports the reasonableness of the trial court's conclusion that any alleged prejudicial effect of the improper remarks could have been cured by proper instruction. See Jackson, 66 N.M. at 474, 349 P.2d at 1039 (any objections to counsel's argument should be timely made, unless they are of such serious nature that a cautionary instruction would not cure the error).

Pennzoil also complains that relevant evidence admitted at trial caused prejudice to its case, in light of the fact that the court ultimately granted Pennzoil's motion for directed verdict on these issues. Pennzoil contends that, because evidence subsequently rendered irrelevant infected the record, it was deprived of a fair trial and, therefore, was entitled to a new one. Pennzoil relies upon (1) testimony regarding Pennzoil's subsequent treatment of certain Vermejo Park employees who were deposed by Kestenbaum and provided testimony unfavorable to Pennzoil's interest and (2) evidence regarding the value of land donated to the United States by Pennzoil and witness testimony which opined that the valuations were excessive and adverse to taxpayers' interests. The transcript references cited by Pennzoil fail to demonstrate evidence sufficiently prejudicial to support a finding that the trial court abused its discretion. Nothing pointed out by Pennzoil convinces us that the trial court acted unreasonably in determining that Pennzoil received a fair trial and was not entitled to a new one. See Paternoster v. La Cuesta Cabinets, Inc., 101 N.M. 773, 689 P.2d 289 (Ct.App. 1984) (abuse of discretion occurs when action taken is arbitrary and capricious or in excess of the bounds of reason).

Pennzoil's remaining claim, that the verdict is contrary to the weight of the evidence, is without merit. We have demonstrated earlier in this opinion that substantial evidence existed to support the jury's *290 decision. The trial court properly denied Pennzoil's motion for new trial. The appraisal of prejudice, if any, and the appraisal of the clear weight of the evidence are most appropriately left to the discretion of the court that observed the trial, heard the complaints and arguments of the movant, and, fortified with the necessary personal judgment and professional skills, passed upon the merits of the motion for a new trial.