A BuzzFlash Reader Commentary
July 8, 2002
Bush and Harken Energy: The Dog Ate My Homework?
by Claudia Dikinis
I, Claudia D. Dikinis, am a former legal secretary now recovering from 14 years' experience with lawyers in the Santa Monica-Los Angeles, California area.
I freely admit to having filed hundreds of pleadings with the courts and documents with the Internal Revenue Service, Immigration and Naturalization Service and the Securities and Exchange Commission.
I have never have been, nor am I now, a fan of Martha Stewart.
I allege that I do know what I'm talking about when I tell you that there is no way Harken Energy's attorneys could have screwed up Bush's Form-4 filing.
Excuse me while I take a prozac.
I'm having a panic attack over Ari Fleischer who, if you read the transcript of July 3, 2002's White House Press Briefing, craftily alleged that Harken Energy's corporate attorneys were grossly incompetent. No, he didn't "say" they were grossly incompetent, but if you follow Fleischer's logic, you would have to conclude that this is what he meant. Apparently the attorneys neglected to read the deadline and filing instructions printed at the top of SEC Form-4: "This Form must be filed on or before the tenth day after the end of the month in which a change in beneficial ownership has occurred (the term "beneficial owner" is defined in Rule 16a-1(a)(2) and discussed in Instruction 4)." That is the tenth day after the end of the month . . .. Not 34 weeks.
Fleischer stated: "What happened as a result was, it was a mix-up with the attorneys dealing with the Form 4, and it was filed later. But it was, indeed, filed."
No, no, Ari! Get a grip! Any school kid knows you can't tell the teacher that "The dog ate my homework!"
Let's be real. The only dogs I know of in law offices are the attorneys. They eat people. Not SEC filings and deadline calendars. Sorry, but Fleischer's "excuse" doesn't fly. I have never once worked with what I'd call an "upright" attorney who would dare miss a director's SEC filing deadline. In fact, if I were the assigned secretary to that lawyer, I would have been fired had I failed to note the deadline on my own working calendar.
I'm not going to bore you with office procedure, but what I can do is show how easy filing a Form-4 with the SEC really is. Girl, you could do it in your living room So here it goes:
Pretend that George W. Bush knocks on my front door and says, "Citizen Claudia, I need your help. I need you to file my Form-4 with the SEC. If I give you my paperwork, can you do that?"
I crank up my PC and go to: http://www.sec.gov/divisions/corpfin/forms/form4.htm and print out the SEC's Form-4. Using Mr. Bush's documentation as my guide, I type the required information onto the Form. Next, I rush the finished Form to Bush who is leisurely munching on a Sloppy Joe at Polly's House of Pies. "Mr. Bush, could you sign off on your Form-4 for me please?"
Then I run to Kinkos and make 10 photocopies of the fully executed Form. (I, of course, retain copies for Bush's personal files and copies for Harken's corporate files). Next, I hightail it to the Post Office and attach a "certified mail, return receipt requested" postal form to the outside of the SEC envelope. (I make 10 photocopies of the postal slips, too.) I pay the postage fees then slip the envelope into the mailbox. Boom! I'm done!
Once I get home, I place photocopies of the aforementioned in my "tickler file." I monitor my mail everyday because I'm on the lookout for the postal"return receipt" slip which lets me know that an SEC employee received Mr. Bush's Form-4.
What do you think my next step would be if I don't get the "return receipt" slip back within about 14 days? I follow up!
I get on the blower with the U.S. Post Office. They launch a tracking investigation using the serial numbers encoded on the registered mail slip. I also telephone the SEC. I never "assume" that it will be okay with the SEC if Mr. Bush's filing is late! I set up a second SEC package which includes photocopies of the original certified mail receipt. That way the SEC has evidence of Mr. Bush's timely filing. In other words, I stick with it until I know the job is done.
If I can handle this from my living room, there is no way Harken Energy's attorneys could have screwed this up. Standard legal procedure dictates that everyone stay "on the same page." Attorneys and staff are guided by a "working calendar" and a "master calendar" replete with double- and triple-checking mechanisms. This is how attorneys avoid malpractice, because God help you if you blow a statute simply because you didn't bother to check the firm's calendars.
In the case of Bush's Form-4, it is likely that the task would have been assigned to one attorney. No attorney worth his or her salt would have automatically "assumed" that the matter had been addressed by another colleague. To make assumptions in the daily workings of law is the first ingredient in a recipe for disaster. Trust me on this one. Harken Energy's attorneys were not dumb, nor were they incompetent. They may have been something else, but that's a subject for another story.
In light of the foregoing, it stands to reason that the SEC a) did not lose Bush's Form-4 (as Bush originally alleged) because he never mailed it to them; and 2) That Harken Energy's attorneys believed that another one of their colleagues had already taken care of the matter is bogus.
Fleischer's "spin" notwithstanding, federal law mandates that it is the "individual director" who, ultimately, is responsible for SEC Form-4 filings. In Harken Energy's case, it is Bush himself who should have been on the blower with the SEC from the outset.
[BuzzFlash Note: It should be noted that neither George Bush nor his attorneys could have downloaded the form from the Web in 1990 -- the Internet, as we know it, simply did not exist. However, that does not excuse Bush or his attorneys from filing the form on time, because the SEC's Form-4, the post office, tickler files, certified/return receipt mail, illegal and unethical business practices, and greedy businessmen were all part of our world in 1989, just as they are now.]
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