Monday, February 9, 2015

Declaration regarding Todd Porter and 2001 Settlement Agreement

If asked to testify under penalty of perjury I would declare the following to be true and accurate.

In 1999 I contracted with Todd Porter, Attorney at Law licensed to practice law in the State of California, to represent me in the matter of fraud perpetrated by Craig Franklin, my former husband, and Dan O'Dowd and others, for the benefit of themselves and Green Hills Software, the corporation where Franklin was then employed as First Vice President and O'Dowd was President.

The fee arrangement was contingency as it had been in our previous dealings. I never suggested that this be modified and would have had no reason to do so since so doing would have materially damaged me. Contingency agreements are signed to ensure that only successful outcomes are compensated. The party taking the risk is the attorney, not the client. Until the morning of March 31, 2001, the question of another form of compensation never arose.

That morning, after we ate breakfast, during which Porter did not raise the question of compensation, Porter opened his brief case and showed me a paper he said was essential to accomplishing the Settlement Agreement. That agreement, he said, was a great deal that he had struggled to get for me. He had discussed 'the deal' with me several times on the phone, never mentioning a change of compensation. He had said during those conversations that he had gotten a real deal for me despite the difficulties he had encountered. I asked once if those were not already mine because of the court order but he said that the court order was not enough to make GHS give them to me. He emphasized that GHS did not have to give them to me. I now know this and other assertions he made to me were untrue.

He immediately went on to tell me that the 'loan' was actually money advanced on the stock that would be exercised shortly when GHS went public. He said several times, emphasizing this, that this was a non-recourse loan and there were no tax repercussions from any part of the Settlement Agreement. He had a guarantee directly from O'Dowd that the IPO would take place before 2004. He represented the paper I was signing as essential to protecting my interests and that GHS, "wanted it done this way." He continued, saying there was a very limited power of attorney with GHS to further protect all parties. He repeated this several times in a conversation that took place five minutes before we went into the offices of Hatch and Parent, linking the paper signed then with the Settlement Agreement. He said the paper he was presenting for my signature was integral to the Settlement Agreement.

The Settlement Agreement was presented to me by Porter as a loan on my options only.

I signed the paper presented but could not read either the document Porter presented to me or the Settlement Agreement, relying solely on Porter to tell me what the documents said. I believed his representations regarding each of the specifics above as accurate on the morning of March 31st. That said, I have now read the document and it does not appear to be the same in length or configuration as that presented to me on the morning of March 31st, 2008. It is entirely different in content if what Porter told me was true. I remember the document as being longer, several pages, that made it impossible for Porter to read it to me in a timely fashion.

I would never have signed the agreement presented by Whitney on behalf of Porter. The alleged, "new compensation agreement," in no particular agrees with what I was told at the time or with the original contingency agreement. In fact, it appears to be written in cooperation with GHS, reflecting a new form of compensation for Porter via the creation of a new kind of stock options, "C," options, which are yet another fiction that is clearly coming from GHS. Porter did not give me a copy of the 'agreement,' instead saying he would send it later. I do not recall having ever received such a document from him.

Retrospectively, I realized that what happened was not usual practice in law, as presented by Porter. Porter dropped all responsibility to act for me to enforce any agreement referring me to direct questions to GHS as my attorney in fact.

I believe that Porter cooperated with GHS to ensure he was paid when he realized he was in over his head and not competent to carry out our agreement. 


Melinda Pillsbury-Foster 

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