A contributor to the Paul Kimmage Defense Fund has brought a motion to intervene in the civil lawsuit between Aaron Brown and his former business partner, Lesli Cohen, editor of the Cyclismas website.
The motion, which if granted would result in a class action, has been filed on behalf of all of those who donated to the fund.
It was established to raise money for the defence costs of Irish journalist and former pro cyclist Kimmage in a lawsuit brought against him by the UCI and its former presidents Hein Verbruggen and Pat McQuaid.
That action was suspended last year and appears likely to be withdrawn following Brian Cookson’s election as president last month.
However, controversy has surrounded the whereabouts of the money raised for Kimmage’s defence. Some was disbursed to him to pay for legal fees and other costs, but most - approximately $64,000 - remains unaccounted for.
As we reported yesterday, a website set up by Brown – who was previously highly active on Twitter under the pseudonym UCI Overlord – has outlined how donors can obtain a partial refund of their money.
Our article, which details the background to the dispute between Brown and Cohen and the mystery over the whereabouts of the money raised, also highlights concerns raised over why donors to the fund should not rush to seek reimbursement.
It’s perhaps worth noting that the contributor who has filed the motion to intervene in the Massachusetts action between the former Cyclismas business partners knows a bit about the law; Bill Hue is a Circuit Court judge in the state of Wisconsin.
In this instance, however, he is acting in his private capacity and at his own expense, and is asking that he be allowed to represent all those who donated to the fund.
According to a press release issued yesterday,
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.
Cyclismas editor Cohen has agreed to Hue’s motion, while Kimmage himself has consented to become a party to the case, with a view to letting the court make the final decision on how the money should be dealt with.
Hue has also set up a website “to keep donors informed of the status, share legal filings with them, and to invite their comments and questions.”
The press release also repeated the text of a post published earlier yesterday (but subsequently deleted) on the website Brown has set up to offer refunds, in which he said:
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.
Responding to the accusations of “bullying” on his blog, Hue revealed that Brown’s lawyer was seeking to terminate her involvement with the case, saying: "Unfortunately, Aaron failed to communicate or cooperate with his lawyer, to such an extent that she sent me pleadings asking the Court to allow her to withdraw as Counsel.
"That request would stay the case for 30 additional days.
"Yesterday [Monday] I talked to Aaron’s attorney again and we resolved to try to work out a resolution that would protect the donors, Paul Kimmage and ironically Aaron himself, by abandoning the unmonitored scheme Aaron published in favor of a system in place in the Massachusetts Court System.
"Aaron might believe I am a bully but I believe in truth, verification and monitoring through a neutral, here a Court.
"I did not intend to bully him by trying to work something out with his attorney that would benefit all concerned. And, importantly, our suggestions and efforts WERE NOT conditioned on him taking his site down."
For now then, the controversy over the fund, and in particular whether donors will ever see any of their money returned, continues to drag on - although the motion to intervene, if granted, means that a solution of sorts may be in sight as the legal process continues.
Born in Scotland, Simon moved to London aged seven and now lives in the Oxfordshire Cotswolds with his miniature schnauzer, Elodie. He fell in love with cycling one Saturday morning in 1994 while living in Italy when Milan-San Remo went past his front door. A daily cycle commuter in London back before riding to work started to boom, he's been news editor at road.cc since 2009. Handily for work, he speaks French and Italian. He doesn't get to ride his Colnago as often as he'd like, and freely admits he's much more adept at cooking than fettling with bikes.