Chapter 11 bankruptcy

Rob’s just joshing – it’s only CA law that makes him say, “An organization that is listed as delinquent is not in good standing and is prohibited from engaging in conduct for which registration is required, including soliciting or disbursing charitable funds” – 3July2023 CA Attorney General letter to Pacifica

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Exactly one month ago:

. . . “DELINQUENCY NOTICE AND WARNING OF ASSESSMENT OF PENALTIES AND LATE FEES, AND SUSPENSION OR REVOCATION OF REGISTERED STATUS” – at the Registry depository, https://rct.doj.ca.gov/Verification/Web/Search.aspx?facility=Y, pump in ‘Pacifica Foundation’, then on the generated webpage, at the bottom of Filings & Correspondence, click on “RCT-451-S Delinquency Notice – 1st”, a ‘451’ . . .

Nothing to worry about: PacificaWorld has nothing to do with RealWorld – especially as the directors sleepwalkers are too busy sleepwalking.

Rob’s just being difficult, awkward. Rob’s just being pedantic, letter of the law & all that. Rob’s just going thru the motions, mechanically pumping out letters, justifying the size of the department – nothing’s going to happen. RealWorld law is for other people, not the directors sleepwalkers.

When CA AG Rob Bonta effectively tells the directors sleepwalkers that they must instruct Executive Director Steph ‘The Breeze’ to instruct all Pacifica employees to stop working, & to freeze all Pacifica’s bank accounts, & to stop asking for money, & to stop paying creditors – when Rob says Pacifica “is prohibited from engaging in conduct for which registration is required, including soliciting or disbursing charitable funds”, Rob’s just joshing.

The directors sleepwalkers can just carry on like Trump.

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. . . “Delinquent” & “Delinquent”: the 1st & 2nd webpages brought up when applying ‘Pacifica Foundation’ to https://rct.doj.ca.gov/Verification/Web/Search.aspx?facility=Y . . .

[UPDATE: same status one week later, Th10Aug . . . UPDATE OF THE UPDATE: ditto, two weeks later, Th17Aug (despite the verbal assurance of ED ‘The Breeze’ to that evening’s PNB – well, at c. 0042 EDT, F18Aug (sic; 2h51 into the meet), with still having to go back into a closed meeting (sic) – ‘The Breeze’ simply making an assertion (the weakest kind of declaration there is), citing neither documentary evidence, public or otherwise, nor anything as precise as a date, such as when Rob gave Pacifica the 👍 or when she thinks she ‘cured’ the delinquency) . . .]

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This is nothing new: the reality arose in Aug2022, & even now it hasn’t been acknowledged in any Pacifica public meeting or document by an employee, or a director, or any other delegate – deliberate concealment by some, lamentable ignorance by the rest, all persisting for more than 11 long months . . . with only the occasional ray of transparency delivered in a rare remark from the attending plebs. And the silence lies heavy on this 3July letter – it being studiously kept out of the slops served to the public, floating in neither the so-called ‘ED report’ to the PNB nor the ‘Chair’s announcements’ to the PNB Finance Cttee. Despite these obstructions, these practices in opacity, readers of this blog are well aware of the reality: it was last noted in the 21May2023 post, & it was fully explained on 4May2023, in passages replete with all those irritating links to those irritating rules & documents (please see the 2nd section).

https://pacificaradiowatch.home.blog/2023/05/21/10-topics/, & https://pacificaradiowatch.home.blog/2023/05/04/recommending-ed-wells-to-pnb-as-the-so-called-interim-nes-w3may2023-pnb-elections-cttee-plus-missing-audio/

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[UPDATE: despite the denial by ‘The Breeze’ in Aug, sure enough, Pacifica was sent a second delinquency notice, a ‘451A’, dated 15Sep. That’s what happens when a delinquency isn’t cured.

[It’s an escalatory notice: “NOTIFICATION TO THE FRANCHISE TAX BOARD [original caps & bold]”. Oh. What does that mean? “The California Franchise Tax Board will be notified to disallow the tax exemption of the above-named entity and may revoke the organization’s tax exempt status at which point the organization will be treated as a taxable corporation (Rev. & Tax. Code, § 23703) and may be subject to the minimum tax penalty.”

[It repeated the key part of the first notice: “An organization that is listed as delinquent is not in good standing and is prohibited from engaging in conduct for which registration is required, including soliciting or disbursing charitable funds. (Cal. Code Regs., tit. 11, § 999.9.4.)” – emphases & bold added.

[This second notice is in the linked depository, next to the first, & is denoted “RCT-451A-S Delinquency Notice – 2nd”.]

~

[UPDATE OF THE UPDATE:

as of Sa16Dec, Pacifica remains delinquent.

Oh.]

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The last time Pacifica had audited net assets? 10yrs ago, 30Sep2012 . . . So, yes, zombie public charity

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. . . 10yrs on: the last time Pacifica had audited net assets was 30Sep2012 . . . audited net liabilities went as far south as $4 525 638, at 30Sep2016 . . . the latest audited net liabilities are $1 241 649, at 30Sep2021 . . . almost all of the improvement, 99.5%, is due not to operating performance but the auditor agreeing to three adjustments to total liabilities – screenshot of the FY2013 auditor’s report (page 3; page 5 of the PDF), https://pacifica.org/finance/audit_2013.pdf . . .

Zombies? Yes, zombies. https://en.wikipedia.org/wiki/Zombie_company

When did Pacifica last have audited net assets? That was 30Sep2012, $495 924. It was wiped out by the FY2013 loss of $2 824 046.

The zenith for audited net assets had been $7 684 012, at 30Sep2006. (Note that the higher figure in the FY2008 auditor’s report was restated downwards in the following year’s report.) FY2006 was indeed Pacifica’s last annual net income until it earnt an audited one for FY2020 . . .

. . . 13yrs of financial – and political – failure: the times of war against Afghans & Iraqis, of Obama hope & the $$$ crash, of Trump. Year after year when the directors responsible for Pacifica – with all these opportunities before them – proved they couldn’t turn a penny. Not one penny. Failures. All of them. No vision. No plan. No self-awareness that they failed – repeatedly. No recognition of their limitations – the need to ask for help from experts. No humility. No grace. So, arrogant. Zombies too.

One needs to say ‘audited’ coz for FY2019 NETA did present a net income to the auditors, but they effectively rejected it: they refused to express an opinion on the material accuracy of the three financial statements given to them coz they were unable to agree with NETA an evidenced estimate of the pension plans liability. In the jargon, the auditors issued ‘a disclaimer of opinion’ – auditor’s report (p. 2; p. 4 of the PDF), https://pacifica.org/finance/audit_2019.pdf.

(In the consideration here, highs & lows, it’s adequate to use data in money terms, not real terms, coz in the period there hasn’t been enough inflation to distort the meaning of the plain figures.)

The failing of Pacifica found expression in successive annual losses &, as its correlate, falling net assets, & during FY2013 these turned into net liabilities.

The nadir of audited net liabilities was $4 525 638, at 30Sep2016. This sum may even be an understatement because those financial statements had the added uncertainty of receiving a qualified opinion from the auditors – auditor’s report (pp. 1a-1b; pp. 3-4 of the PDF), https://pacifica.org/finance/audit_2016.pdf. Furthermore, until the 2019 Democracy Now! event mentioned below, net liabilities were presumably even greater coz NETA presented a loss for both FY2017 & FY2018, statements that were met by disclaimers of opinion from the auditors (in the URL above, just insert the relevant year).

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Things have since improved. The latest audited net liabilities, at 30Sep2021, are $1 241 649, a shift of $3 283 989. However, this has had little to do with operating performance – 5yrs of trying yielding a mere $16 566, unaudited (coz it involves the FY2019 record that was effectively rejected) – and was all down to three liabilities adjustments agreed to by the auditors, one in each year of the FY2019-FY2021 period:

• $427 677, the ‘KPFA property tax hiccup’ (convincing the California State Board of Equalization to accept that the tax shouldn’t have been levied) – FY2021 auditor’s report (p. 4; p. 6 of the PDF), https://pacifica.org/finance/audit_2021.pdf

• $477 918, provision for the pension plans liability (this portion was eliminated when Pacifica finally rectified the neglect). And now? Is there neglect? Even negligence? Are the two 2019 pension plans audits completed & filed with IRS, etc.? The two for 2020? The two for 2021? Have those auditors been paid in full for their work? . . . Not a word, from the PNB Finance Cttee, or the PNB Audit Cttee, or the directors sleepwalkers . . . The two plans: a 403(b)-defined contribution retirement plan, & a profit-sharing plan (sic); they are known in Pacificese as ‘the 403(b) Plan’, & ‘the Pacifica Retirement Plan’ – FY2020 auditor’s report (pp. 5, 24-6; pp. 7, 26-8 of the PDF), https://pacifica.org/finance/audit_2020.pdf.

And the recent cost to the Pacifica members & the other donors? It’s disclosed in the auditor’s reports. To take the FY2017 one, the total is in the functional expenses statement, p. 7 (p. 9 of the PDF), with the previous year’s on the next page; & the sum for each plan is in a note, p. 21 (p. 23 of the PDF). The charge for the last five years (total, 403(b), profit-sharing): FY2017, $150 288, $61 736, $88 552; FY2018, $103 944 (incorrectly given as $103 940), $52 540, $51 404; FY2019, $134 640 (incorrectly given as $134 741), $53 202, $81 438; FY2020, $120 067 (an incorrect figure was given, see below), $58 289, $61 778; FY2021, $126 279 (ditto, see below), $65 439, $60 840. These total as $635 218, $291 206, $344 012. (And the year before this period, FY2016? $425 399, $70 483, $201 941 – with no explanation by the auditor of the unidentified $152 975. An ‘indeed’ – to both the anomalous total charge (x~3), & the absent explanans. And to the 6yr charge being >$1m.)

Note, the FY2020 & FY2021 auditor’s reports give three wrong totals in the functional expenses statements: they’ve solely taken the 403(b) plan figure. Presumably the profit-sharing total was mis-posted to “Employee benefits”. Not spotted either year by the auditors, the PNB Audit Cttee, or the PNB. The FY2020 error was repeated in the ‘copy & paste’ into the FY2021 auditor’s report – will anyone stop them next year? Auditor’s report, FY2020, p. 7, p. 9 of the PDF; ditto, FY2021, pp. 6-7, pp. 8-9 of the PDF.

Odd is the very wide range of per capita 403(b) charge between the operating units (formerly termed ‘the divisions’). For FY2020: WPFW $268, WBAI $283, stepping up to KPFK $640, KPFA $668, KPFT $733, & all contrasting with PNO (includes PAN) $1 953, PRA $2 168. Why? (Sources: auditor’s report FY2020, & Oct2021 NETA-produced net income statements (using the comparative). FY2021 data can’t be used coz the NETA figure is way off the auditor’s: auditor agreed the total charge as $65 439, but NETA has $55 244 (Oct2021 set). Whereas the FY2020 totals are, respectively, $58 289 & $58 317. The unit-level charge isn’t in the auditor’s report, only the monthlies: KPFA $19 026, KPFK $16 317, KPFT $2 200, WPFW $2 282, WBAI $2 119, PNO (includes PAN) $8 787, PRA $7 587. The number of full-time equivalents is computed using $80k (see appendix to the 19Nov2021 post) as the per capita personnel cost: KPFA 28.5, KPFK 25.5, KPFT 3, WPFW 8.5, WBAI 7.5, PNO (includes PAN) 4.5, PRA 3.5, totalling 81.)

• $2 361 828, the write-off of the Democracy Now! debt – FY2019 auditor’s report (p. 4; p. 6 of the PDF), https://pacifica.org/finance/audit_2019.pdf. It was first publicly disclosed by Pacifica Executive Director Maxie Jackson, to the 12Mar2019 PNB Finance Cttee (17:53) – https://kpftx.org/archives/pnb/finance/190312/finance190312a.mp3. No-one asked why Amy waited 5mths to tell Pacifica. And no Pacifica employee or officeholder has described how DN! chose to manage that debt, but it is in their public record (especially the 2017 IRS Form 990, stamped received 20Nov2018): debt at 31Dec2017, $2361828 = 807000 (doubtful debt provision made FY2012, so both removing it as an asset from its balance sheet (but still leaving it money that Pacifica owed: it wasn’t being treated as uncollectible, a bad debt), & charging it as an expense) + 777000 (FY2017, both removing it as an asset from its balance sheet, & charging it as an expense, in the form of a grant) + 777828 (FY2018, ditto). Like in Iraq, a phased withdrawal. (Obvious Q, asked by no-one: has Pacifica Foundation, Inc. been invoiced since 31Dec2017 for airing DN!, now getting on for 5yrs? That Pacifica may be getting it for nowt or close to is suggested by the change in the pattern of DN!’s annual total broadcasting fees, FY2005-FY2020, with the level falling across 2012-14 from $1.1m to <$200k – when it was decided to start to unload Pacifica from the balance sheet, beautifying the accounts receivable figure, putting a stop to its rise, avoiding a flashing red light.)

DN! is the commodity of Democracy Now! Productions, Inc., founded in 2002 (per its 990’s). How’s it doing? FY2020, coinciding with the calendar year, per their latest 990 (the auditor’s report wasn’t filed with the NYS Attorney General’s Charities Bureau, https://charitiesnys.com/): total revenue $11 442 800, total expenses $8 267 813, net income $3 174 987; total assets $36 302 179, total liabilities $659 173, net assets $35 643 006. (And Pacifica? FY2020, thru 30Sep2020, link above: total revenue $11 507 060, total expenses $11 241 966, net income $265 094; total assets $3 689 886, total liabilities $4 916 323, net liabilities $1 226 437.)

FY2020 personal incomes from DNPI: Prez Amy, $220 823 (FY2005: $58 786), excluding the coiffeur, beautician, & wardrobe allowance; Secretary Juan, $37 411; Denis Moynihan, $124 146 (Special Projects Coordinator … & Juan’s hubby: https://ladailypost.com/amy-goodman-broadcasts-democracy-now-live-from-fuller-lodge-this-morning/); Thomas Burke, $113 224 (News Director) … then the admin heavies (showing the market-worth of newsgathering): Julie Crosby, $173 410 (General Manager; ex-Free Speech TV, https://www.democracynow.org/about/staff); Miriam Barnard, $152 938 (Director of Finance & Operations); Erin Dooley, $119 727 (Development Director) … & $0 for Chair Karen Ranucci (https://dignityandrights.org/team-member/karen-ranucci/), Director Sarah Jones (https://newrepublic.com/authors/sarah-jones), & Director Dan Silverman (related to Lorin et al.?).

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[DNPI’s last filed 990 is dated 28Oct2021. So with another due soon it makes sense to do a post on the contrasting fortunes.]

Sleepwalking into the chainsaw: Chapter 11 . . . “we’re, you know, in a, you know, near Chapter 11 situation throughout the whole network”, director Dingeman, W28Sep WBAI Finance Cttee

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. . . page 1 of Form B 201, VPFB, voluntary petition for filing for bankruptcy . . . 11 U.S.C., Title 11 United States Code (commonly known as the Bankruptcy Code), & its Chapter 11 is ‘Reorganization’; section-wise, 101-1532 & 1101-1195 – https://www.govinfo.gov/app/collection/uscode/2020/title11 . . .

Chapter 11: protected bankruptcy, for a wannabe phoenix. Forbes puts it succinctly: “[t]he goal is to keep your business afloat and keep creditors at bay while you restructure your debt obligations”. Restructuring to praps slow the speed of repayment, praps even get write-offs. https://www.forbes.com/advisor/debt-relief/chapter-11-bankruptcy/

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“Chapter 11” was mentioned in passing at the W28Sep WBAI Finance Cttee by Jim ‘I know I talk a lot, but I know I’m the best at knocking it out’a the park, OK’ Dingeman (director semi-woke sleepwalker, & WBAI listener-delegate). Hence this post.

The D-Man:

[…] in situations like this, that is, you know, we, we’re, you know, in a, you know, near Chapter 11 situation throughout the whole network, […]

Jim Dingeman (4:31, emphases added), W28Sep WBAI Finance Cttee – https://kpftx.org/archives/pnb/wbai_fin/220928/wbai_fin220928b.mp3

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Pacifica’s 9/11 = 11/11

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The essence of Chapter 11, especially the main effects, will be described in another post, along these lines:

• from the KPFA Protectors to the Fed Protectors: but who’s benefiting?

• the automatic stay of creditor action (including by FJC or, if they sell the debt, by the Marty and Dorothy Silverman Foundation – please note, Miss Grace; even though, by Section 9.1 of the FJC loan agreement, the whole debt, $2 258 821, would otherwise immediately become due)

FJC ‘root’ loan agreement, § 9.1, page 14, being page 15 of the PDF, https://mega.nz/file/AI0iUYga#QzMtaBd0iRTZJ_YNmh2KZ1xKu7Qh_hQ6IcPMVkGWX94 (this agreement has been re-written, for things like maturity at 30Oct2024 – FY2021 auditor’s report, p. 17, being p. 19 of the PDF, https://pacifica.org/finance/audit_2021.pdf)

• Pacifica management functions effectively as a trustee of the assets

• debtor in possession – a concept in bankruptcy law, referring (in part) to the conditioned possession of property, its usage being supervised by the judge

• the exclusive period of 120 days for management to file a plan for reorganisation & debt repayment

• and what can the members do during the whole period – will the judge be their champion? . . . wishing on a star

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A crucial matter is this. Will the current Pacifica fiduciaries – the passive ED Wells & the Fabian directors – survive scrutiny under Chapter 11 bankruptcy? The judge may be presented with evidence that Pacifica lacks competent fiduciaries for protecting its assets. Glaring evidence since 30June is that the directors have chosen not to hire a suitably qualified & experienced chief financial officer to be responsible for the financial management tasks mandated by California law – albeit a responsibility that ultimately remains with the directors. If persuaded, the judge will issue a rare order to the Office of the United States Trustee to provide a ‘case trustee’: new management in the house – 11 U.S.C., § 1104, https://www.govinfo.gov/content/pkg/USCODE-2020-title11/pdf/USCODE-2020-title11-chap11-subchapI-sec1104.pdf; & https://www.justice.gov/ust-regions-r16 (re federal law, Pacifica is in the Central District of California, & its US Trustee is Peter C Anderson)

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Sources on Chapter 11: law, process

In reading the law itself, the fed website encumbers it with annotations. Better flow is achieved by the Cornell University version, https://www.law.cornell.edu/uscode/text/11.

However, here are the primary sources:

• mom, the fed site that spawns (clicking thru the pluses, ‘+’, gets to the latest version of Title 11, & any paragraph; on the PDF, the section #, like ‘§ 1121’, tops the page), https://www.govinfo.gov/app/collection/USCODE. (On the US Code itself, https://www.govinfo.gov/help/uscode.)

• Title 11, opened up, showing the chapter headings, https://www.govinfo.gov/app/collection/uscode/2020/title11

• handy PDF of its Chapter 11, Reorganization, annotated, free from the feds, https://www.govinfo.gov/content/pkg/USCODE-2020-title11/pdf/USCODE-2020-title11-chap11.pdf

• the official overview, Chapter 11 – Bankruptcy Basics, https://www.uscourts.gov/services-forms/bankruptcy/bankruptcy-basics/chapter-11-bankruptcy-basics

• official guidance on filling in the bankruptcy application form, https://www.uscourts.gov/sites/default/files/instructions-non-individuals-2015.pdf

• the forms (including the one for Pacifica), https://www.uscourts.gov/forms/bankruptcy-forms

• Form B 201 itself, https://www.uscourts.gov/sites/default/files/b_201.pdf

• Pacifica’s local US Bankruptcy Court, Central District of California, https://www.cacb.uscourts.gov/ (especially the ‘Rules & Procedures’ tab)

• the Court’s local rules, https://www.cacb.uscourts.gov/local-rules

• Pacifica’s local Office of the United States Trustee, UST (the body administering the process, the US Trustee Program), Central District of California, Region 16, https://www.justice.gov/ust-regions-r16

• its guide on Chapter 11, Guidelines and Requirements for Chapter 11 Debtor in Possession, effective 1Sep2022, 13 pp., https://www.justice.gov/ust-regions-r16/file/ch11_debtors_possession.pdf/download. (A much more readable guide comes from the Middle District of Florida, the Orlando/Jacksonville area, Region 21, Operating Guidelines and Reporting Requirements for Chapter 11 Debtors in Possession and Chapter 11 Trustees, Oct2022, 14 pp., https://www.justice.gov/ust-regions-r21/file/ch11_guidelines_reporting_req.pdf/download.)

• the MOR (Monthly Operating Report): strikes terror even into CPA’s on top of their game . . . this UST form is a stark indication of the standard of financial reporting demanded by the bankruptcy court – much higher than NETA ever provided – a report that has to be submitted every calendar mth, within 21days. This is the legal expectation of how a fiduciary has to behave financially. It stands in sharp contrast with the abdication of responsibility exercised by successive sets of directors sleepwalkers.

The form (4 pp.), UST Form 11-MOR (reference to Chapter 11), https://www.justice.gov/ust/file/1452406/download (there’s also a Mac version) … the instructions for filling it in (14 pp.), https://www.justice.gov/ust/file/1452396/download. The reporting becomes much less onerous once a reorganisation/repayment plan has both been approved by the judge, “confirmation”, & become “effective”: a calendar quarterly form (3 pp.), UST Form 11-PCR (Post-confirmation Report), https://www.justice.gov/ust/file/1452411/download … instructions (7 pp.), https://www.justice.gov/ust/file/1452391/download. All are linked from https://www.justice.gov/ust/chapter-11-operating-reports.

Secondary source:

• 54 no. Q&A, quite useful, https://arklatexlaw.com/practice-areas/bankruptcy/chapter-11-bankruptcy-reorganization-frequently-asked-questions/

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