The mystery over the whereabouts of the Kimmage Defense Fund cash took another turn this week as a new website sprang up purporting to offer refunds to donors.
The Kimmage Defense Fund was originally set up by the satirical cycling website Cyclismas to help Paul Kimmage fight against a defamation lawsuit brought by the UCI. The fund quickly raised the best part of $100,000 before the lawsuit was dropped.
However, things went awry when the money was transferred from the PayPal account of Cyclismas editor Lesli Cohen by her business partner Aaron Brown, better known to many by his twitter handle of @UCI_Overlord, into his own bank account. The subsequent falling out resulted in a lawsuit between the two and the revocation of Brown's Canadian passport; he reloacted to Girona shortly before the scandal surfaced and so far as we're aware is still there.
The Kimmage Fund Refund site purports to originate from Brown and allows you to enter your PayPal transaction details and receive a 70% refund on your donation. The site makes it clear that this is proportionate to the amount left in the fund after monies already used in Kimmage's defence, and is in broadly line with the fact that CHF21,000 from the fund has been used for its original intended purpose.
All well and good then? Well, no. For a start there's no explicit statement on the website that it's authored by Brown, although you'd certainly get that impression from the FAQs. Contact details are conspicuous by their absence.
Secondly, donors are required to "abide by the terms and conditions" in order to receive a refund. However, there aren't any terms and conditions on the site. A post from 7 October states that "You will have an opportunity to review the terms and conditions prior to the completion of the refund process", it's a novel approach to start the process of capturing data before the terms and conditions are set. In any case, they'd be legally unenforceable since you can't agree to abide by something you haven't seen.
Thirdly, and perhaps most worryingly, the site requires all donors to provide all details of their transaction – including their PayPal email address and transaction ID – in order to receive their refunds. The site claims that "Having the ability to cross-reference your name, donation amount, and the transaction number gives the legal basis to prove you are the one making the request" but assuming that the refunds would be made from PayPal, that's clearly not the case. PayPal's own administration tools and security are a far better guarantee of authenticity. This further raises the question: If Brown has access to the entire list of PayPal transactions in order to 'cross check' them, why does he not just refund them? The site's assertion that after a year "You may not have the PayPal account anymore" is surely only going to be true of a tiny majority of cases which can be dealt with on a per-donor basis.
As it is, donors are expected to enter sensitive information on a site with no legally-established provenance, agree to terms and conditions that don't exist and then wait to hear. Some online commentators have likened the process to a Nigerian email scam, or suggested that it's fraudulent and not authored by Brown at all. Certainly the site, if it is by Brown's hand, falls so far short of the ideal that it's unlikely to attract many refund requests.
Updated: we've received this statement from Cyclismas Editor Lesli Cohen this evening explaining the current legal situation and addressing some of the statements on the Kimmage Refund site:
On October 8, 2013 Bill Hue of Johnson Creek, Wisconsin served on Aaron Brown’s attorney, Andrea Goldman, a Motion to Intervene in the Massachusetts lawsuit between Lesli Cohen and Aaron Brown.
Bill brought his motion on behalf of donors who contributed to the Paul Kimmage Defense Fund. The Motion asks the Court to require Brown to account for all contributions and disbursements, and to place the remaining funds in the hands of a neutral third-party to be used according to the original purpose or else returned to donors.
Under the Court process, donors will be notiﬁed and given information to submit claims. Brown will be required to explain how much was collected, how much has been spent and what the money was used for. The remaining funds will be distributed under the Court’s supervision.
Bill Hue, who is a Circuit Court Judge in the State of Wisconsin, brought the motion in his private capacity as a citizen at his own expense without any expectation that he will receive more than his proportionate share of the eventual refund. He has asked the Court to allow him to serve as a representative of other donors to assure that donors are treated fairly and given accurate information.
Lesli Cohen, who brought the original lawsuit against Brown, has consented to the Motion to Intervene. Paul Kimmage has consented to become a party so that the Court will be able to make a ﬁnal determination on how the money should be handled.
The Motion is not yet public because Brown’s attorney asked to delay the ﬁling and Bill agreed to give her more time as a professional courtesy. However, the Court records include a Notice of Motion which explains that the Motion is pending.
The Motion and supporting documents should become public shortly, and will be made available to all donors as soon as possible. Bill has established a website, http://kimmagefunddonors.tumblr.com, to keep donors informed of the status, share legal ﬁlings with them, and to invite their comments and questions.
In a blog entry that was posted earlier today, Brown falsely accused Bill and Lesli Cohen’s attorney Jim Donnelly of “bullying” but the facts will speak for themselves. This entry has since been removed from the website, but the text that Brown posted reads as follows:
Demands to suspend the website
There were demands yesterday to shut down the website and turn over the funds to a Massachusetts court in order for the court to disperse the funds. This came from Jim Donnelly, lawyer for Lesli Cohen, and also from Bill Hue, who has filed a motion to intervene in the business dissolution on behalf of a very small portion of donors.
This latest bullying tactic would diminish the amount of the refund available to the donors as both individuals could then claim costs for their efforts against the fund. There also would be court costs associated with the turnover. If the refund process is being handled appropriately, why does the opposition want to diminish the amount of money to be returned rightfully to the donors? Why are they fighting a process to which in theory is agreeable to everyone?
Again, the legal action in process is a business dissolution. This isn’t a class action suit based on the Kimmage Funds, or a lawsuit about the Kimmage Funds. The characterisations being made on social media are incorrect and defamatory.
I will continue to battle these efforts to ensure the donors receive their rightful refund and a rightful amount. The demands and “offers” have been summarily rejected.
The Court papers, when public, will show that Bill is acting on behalf of all donors, not just the “very small portion of donors” suggested in Brown’s blog post. Furthermore, contrary to Brown’s blog post, Hue is acting without any expectation that he will be compensated for his efforts. Because the average Defense Fund contribution is only $33 the most practical approach is for Bill to act as a volunteer class representative on behalf of all donors. The only demands are that Brown must (1) provide veriﬁable ﬁnancial information, (2) place the remaining funds in the hands of a neutral party, and (3) allow the Court to supervise an accounting and distribution of the remaining funds. Future updates will be posted on the website.
Dave is a founding father of road.cc and responsible for kicking the server when it breaks. In a previous life he was a graphic designer but he's also a three-time Mountain Bike Bog Snorkelling world champion, and remains unbeaten through the bog. Dave rides all sorts of bikes but tends to prefer metal ones. He's getting old is why.