I would term the odd mistake negligence.
I would not term a consistent pattern negligence, this would be more likely
defined as deliberate.
When you do something deliberately then it indicates intent.
This should be viewed in the context of the overall billing cycle. If you
register with NetSol how is it that they are never "negligent" and forget to
bill you. By contrast when you are not (or no longer) their customer they
remember to bill you.
But it does not matter how you look at it, negligence or not, the fact is
they are defrauding the public by issuing invalid invoices and it does not
appear that they will alter their business practice unless someone takes
action.
It should also be noted that they are fully aware that they are issuing
invalid invoices as it has been brought to their attention many times and
they have gone as far as to say it is the way the system is set up (refer to
a previous thread on this list) - this would be very hard to classify an
negligence, it could easily be argued as intentional.
You cannot say just because they are negligent therefore they can continue
to defraud the public. Fraud is fruad is fraud and should not be tolerated.
The bottom line is :
- a company is extending a service to the public on behalf of the USG
- the company is issuing false requests for payment
- the company is accepting payments against the false requests for payment
- the company is aware it is issuing false requests for payment
- the company knows what is causing the problem of issuing the false
requests for payment
- the company knows how to fix the problem of issuing false requests for
payment
- the company chooses not to fix the problem of issuing false requests for
payment
Hardly sounds negligent to me - I might buy gross misconduct. IMHO it could
be deliberate practice to bill people. Oh they will refund you if you ask,
but it may just be worth it because many people may not bother with the
refund or they make getting the refund too hard to bother.
Even if the act of issuing the invoice is "negligence" how would one define
the act of accepting payment against the phony invoice - negligence?
Oh and don't forget that since they are rendering a service to the public on
behalf of the government it is a bit like Uncle Sam is ripping you off
without even knowing about it - not good for Uncle Sam. However all is not
lost as in their role NetSol must not run foul of anti-trust laws, which
they could be in breach of by these actions. A possble avenue is therefore
to write to DoJ (or whichever authority they are contracted through - forget
ICANN) for each instance this occurs with copy of invoice and envelope.
After about 500 complaints (which should only take a month) you can bet DoJ
will put the heat on NetSol.
If nothing else, any action brought against it in a "public" manner is bound
to have an effect on NetSol and force it to clean up its act - which should
be the real aim.
A. I. Sinclair
-----Original Message-----
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED]]On Behalf Of William X. Walsh
Sent: Saturday, 09 Dec 09, 2000 2:13 AM
To: A. I. Sinclair
Cc: [EMAIL PROTECTED]; [EMAIL PROTECTED]; [EMAIL PROTECTED]
Subject: Re[2]: Net Sol invoices
Hello A.,
Friday, December 08, 2000, 4:18:54 PM, you wrote:
> Remember the movie The Firm with Tom Cruise.
> I believe the law is that if you issue a "fraudulent" invoice and send it
> through the mail, it is classified as a fedreal offence by virtue of the
> fact that you use a federal service (the postal service) to deliver the
> invoice.
> I am not a US citizen so I would leave it to the US RSPs to handle this.
There are a lot of major legal differences between the NSI case, and
the fictional case in the movie. The biggest one being that this is
real life :)
The second one is that the "Firm" sent out invoices knowingly with the
INTENT to fraud. The last time I asked an attorney about this topic,
I was told quite clearly that the intent to fraud was an absolutely
necessary element.
It is for this reason that I think any cased based on this premise
will fail. NSI has a plausible defense to the "intent" portions.
Negligence, even if inaction occurs after being made away of the
negligence, doesn't rise to the level of "intent to fraud."
Without clear intent, there is no mail fraud.
And remember, the burden to prove intent is on the prosecution, who
must do so beyond any reasonable doubt "and to a moral certainty." In
a civil case, the burden is lower, only requiring that intent be
proven to a "preponderance of the evidence." A civil case, however,
will require that a plaintiff or set of plaintiffs bear the brunt of
the legal expenses to bring that case, and in any event, without some
kind of "smoking gun" to prove intent would probably be just as
unlikely to succeed.
I find the prospect of the mail fraud investigation interesting, but I
doubt it will ever amount to any serious challenge to NSI, beyond
maybe providing the final needed step to require them to fix their
systems once and for all.
--
Best regards,
William mailto:[EMAIL PROTECTED]
