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Thursday, December 27, 2007

The Income Trust 300

According to a Dec. 24 email update from Richard Schechter with the NAFTA Trust Claims group, over 300 U.S. investors have now come forward to join a potential $6.5 billion NAFTA claim against the Government of Canada. That’s about 298 more than the group started with when it was founded last spring.

The 300 investors are preparing to seek compensation for the Canadian government’s flip flop on income trusts. In a surprise move on Halloween 2006, Finance Minister Jim Flaherty announced the Conservative government’s intention to eliminate tax benefits in the Canadian oil and gas income trust model. The announcement shocked everyone because the Conservative Party promised during the Jan. 2006 election campaign not to tax the trusts.

In the wake of Flaherty’s announcement, stock prices plunged. American investors lost an estimated $5 billion.

This ad hoc group lead by US investor Marvin Gottlieb claims NAFTA protects foreign investors in signatory countries from the impact of costly broken policy promises.

They cite NAFTA’s Chapter 11 which, in their interpretation (on their website www.naftatrustclaims.com), "allows investors from one NAFTA country to sue the government of another NAFTA country for actions which hurt them or their investments." While a NAFTA Tribunal cannot order the Canadian government to repeal its Tax Fairness Plan (which changed the income trust tax structure) it can order the government to compensate U.S. and Mexican investors for losses resulting from the new tax plan.

Chicago-based Gottlieb and his wife filed the initial NAFTA Notice of Intent against the Government of Canada on October 30, 2007. A full claim could be filed as soon as February 2008.

In a letter to Flaherty on November 5, 2007, Gottlieb maintains he is bringing the claim forward in the interest of "fair play" and not for the money he hopes to recovery. He also insists he's not working with the Liberals to keep the income trust issue in the news as a way to embarrass Harper's Conservatives.

I ask you:

Did the Conservative government hurt its international trade reputation with its decision to eliminate the oil and gas income trust model?

Should US investors be compensated for their losses?

Or is this evidence that NAFTA is a threat to Canadian sovereignty?

By Matthew Johnston

Posted by westernstandard on December 27, 2007 | Permalink


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Could it not be argued that some shifty manoevering by certain companies or groups of commpanies would be against the best interests of the Canadian taxpayers?
Wasnt that the reason for the Governments action?
As I understand it, hasnt that sector recovered all of the initial losses? Panic selling was what lost money, not the action of the government.

Posted by: Lee | 2007-12-27 5:25:55 PM

I'm no expert on this, but it seems to me that the claim is based on reading the document differently from how it was intended. The idea that US (or Mexican) investors can sue the Canadian government for loses, but Canadian investors cannot (and vice versa) only makes sense if the loses that are being considered are ones that are specifically incurred *because* the investers in question are not Canadian. The idea behind the provision is to allow investors to be able to sue should the government try to introduce a policy that has the net effect of being a protectionist one.

But the inclome trust policy change, whether it is a good idea or not, is not one that exposed non-Canadian investors to any loses that Canadian investors were not similarly exposed to. So the policy change was not either by design nor by effect a protectionist one, thus it is not the sort of thing the Chapter 11 wording was designed to address.

Of course, even if I am right in my interpretation of the *intent* of the provision, that might not matter in a courtroom. In a courtroom it might only matter what the chapter says, not its intent (no matter how obvious it might be). But, again, I am *not* an expert, so i could be completely wrong here.

Posted by: Fact Check | 2007-12-27 6:30:39 PM

nic napper is back! You may safely ignore his comments.

Posted by: obc | 2007-12-27 6:32:38 PM

Canada is an interesting country politically in that old people tend to vote left wing, i.e. Liberal. Not many people are aware of that fact but older Canadians supported the Liberals both in absolute numbers and as compared to other Canadians in the last election.

The corollary being that young people in Canada tend to vote Conservative.

That's the status quo based on numbers from an election 2 years ago. On the horizon we see retiring baby boomers, a block not known for their tendency to vote for conservative parties. There is a relevant overlap in the retiree and income trust activist cohorts.

All of which to say the people who complain the most about income trusts didn't vote Conservative, they voted Liberal last election. And I am to have sympathy for a cohort that voted in large numbers for Paul Martin? For a group who voted for a guy who tried to tell people that soldiers would be in the streets and abortion would be outlawed if Harper were elected?

Stephen Harper is the cleanest Prime Minister in Canadian history and he is running the most scandal and gaffe free government in Canadian federal history. He's cut taxes for everyone, not just wealthy retirees. Canada is a large G8 country and the national agenda contains many issues more important than income trusts.
Had Canada's seniors acted and voted like adults rather than Che T-Shirt wearing commies last election Harper might've prioritized keeping his election promise, one of relatively few he has broken it should be noted. However, since they vote Liberal anyway, I can't blame him for reducing the tax burden on Canadians under 55 who tended to support him.

Posted by: Sharp Eyed Analyst | 2007-12-27 7:16:29 PM

"But the income trust policy change, whether it is a good idea or not, is not one that exposed non-Canadian investors to any loses that Canadian investors were not similarly exposed to. So the policy change was not either by design nor by effect a protectionist one, thus it is not the sort of thing the Chapter 11 wording was designed to address."

I was thinking the same thing, Fact Check. Perhaps the senior's income splitting announcement that followed the Tax Fairness Plan shows that the replacement to the income trust model was a tax system that specifically benefited Canadians who may have lost money on income trust investments, but did nothing, naturally, for US investors. It’s a stretch, but it’s the only thing I can think of that would point to a policy that showed preference for Canadian investors.

Posted by: Matthew Johnston | 2007-12-27 7:31:57 PM

I bought income trusts after the conservative government said they wouldn't f**k with them. I bought oil and gas trusts. I lost several thousands of dollars after their promise turned out to be a lie.

I am Canadian and I am still pissed off!

And anyone with a brain should know that NAFTA is absolutely going to erode sovereignty. What did you think it was for ... Isolationism?

Yes their should be compensation

They should reinstate those trusts and grandfather them as they should have in the first place to avoid ripping of my much needed pension income.

Governments should stay the f**k out of the economy. Let the chips fall where they may.

Even though I hate Liberals and NDP. I cannot vote for the Conservatives because they betrayed my trust in them ... directly.

Posted by: John West | 2007-12-27 7:47:06 PM


Why should I pay for your poor investment strategy? Tuff luck dude, your problem not ours.

In any event, your first mistake was to believe anything a Canadian government has to say?

Posted by: missing link | 2007-12-27 8:43:39 PM

Missing link,

It is is investment the enriches a society and allows people like you have believe nothing and trust no one to get your jelly donut.

The countries that don't have people like me funding companies and paying taxes produce people like you who are most often not getting enough to eat and sleep on a dirt floor.

You can sit back be critical, or more likely envious, of those who have a few hard earned bucks to invest in their county's economy, but you don't mind accepting the services provided by that investment.

It may have been a mistake to believe a government promise, but this was one they should not have broken because it was on the backs mostly of retirees or those investing to provide their own retirement incomes. That would leave more at the trough for lazy assholes like you who will rely on government funding to get your fast food with in your retirement years.

Learn to connect the dots and stop indulging in Schadenfreude. It reveals you to be the very small person you are.

Posted by: John West | 2007-12-27 8:56:40 PM

I've also lost thousands of dollars on bad investments and made tens of thousands on good ones.

Suck it up!

If the income trust had kept on proliferating the way they were in 2006, where do you suppose the bureaucrats would have looked for to get more cash?

Personal income taxes on individuals, perhaps?

Posted by: set you free | 2007-12-27 9:05:06 PM


How about reduce the size of government and reduce the duplication and waste.

Also abolish the senate and then lower taxes even further especially capital gain tax.

That would have people running to invest in this country and job growth would rise along with wages, profits and tax income to the blood suckers.

That formula is proven and it is only the loud whining on the left the holds it back. They did this Ireland and that worked very well. Dubbya lowered taxes in the USA and that miracle is still working despite everything else that is going wrong.

You need to learn to connect dots too.

One more thingy that holds back progress (and don't meant that the way the Left does) is that the Gaia crowd and the Global Warming zealots don't want progress or investment, they want a peasant culture where everyone is poor and living the our Indians did a thousand years ago. That also holds things up.

A prosperous country has low birth rates so we actually can both get what we want by doing what I suggest instead simply all acquiesing to a Feudal peasant world.

Posted by: John West | 2007-12-27 9:28:37 PM

Government involvement in business is fascism which should be illegal anyway. The "Free Trade Agreement" is anything BUT Free. Taxation of earned monies is legalized theft, extortion and racketeering... "by law". Once we understand these very simple concepts the rest becomes a moot point. It all needs to change and it will...the thing is, its going to get worse before it gets any better. I'm buying real silver for when paper money becomes just that....paper.
I hope I'm wrong. But the way its going....

Posted by: JC | 2007-12-27 9:59:25 PM

Why raise the issue of "what would have happened if companies continued to convert to income trusts" when as previously mentioned all that was needed was a moriatorium to conversions. Then those people who DIDN'T invest in income trusts would have to "suck it up" but at least a Conservative government would have avoided the issue Liberal governments are famous for----broken pre-election promises. I have always voted conservative but in the upcoming election I won't be voting; and don't say then I deserve what I get because like a lot of us western seniors who voted conservative last time, we got screwed anyway.

Posted by: Al-Lea | 2007-12-27 10:16:49 PM

Those of you who lost money.
What would your position be today if you hadnt sold?

Posted by: Lee | 2007-12-27 11:17:47 PM

Al Lea,

I agree with everything you said. I won't vote either. I cannot vote Left, but Harper lost my vote when he double crossed investors.

When a government fails to do something they said they would do then all remains the same.

When they do something they said they wouldn't do, then shit happens.

It is always best when governments just do nothing and the let the people run their own affairs.


I have not sold out of the market. I took my licks and moved on to other investments. That doesn't change the fact the government directly and deliberately cost me a lot of money, whey continuing to tax the shit out of me as a fee for their services.

No wonder there is a growing underground economy.

Posted by: John West | 2007-12-27 11:38:16 PM

What a blast! You ask three good questions. Lemme shoot three good answers to you.

(1) Did the Conservative government hurt its international trade reputation with its decision to eliminate the oil and gas income trust model?

Yes, the Harper Tory government broke a tax treaty, and has hurt Canada’s international trade reputation. Flaherty said that because the foreign investors only pay 15% withholding, Canada suffers tax leakage. What the Fool didn’t tell us is that the U.S. suffers the same type of tax leakage to Canada. The 15% is not an act of God. Parliament set that rate purposely low to attract foreign investors. The U.S. Congress has done exactly the same thing to attract Canadian investors. Canadian investors are under-taxed in the U.S. – until they bring the income home at which time they pay full-blow Canadian tax net of foreign tax credits.

The Fool did NOT tell us that in 2004, Canadians paid $1.1 billion of taxes on their foreign source income. This tax revenue gain is 5 times more than the alleged income trust tax loss.

(2) Should US investors be compensated for their losses?

For sure. Anytime a government breaks its own laws or tax treaties, the person harmed by the unlawful act deserves to be compensated.

(3) Or is this evidence that NAFTA is a threat to Canadian sovereignty?

No; NAFTA is just saying “We must use the same rules for citizens and foreign investors”. Harper and his Fool broke this tit-for-tat arrangement. They are the problem, not NAFTA.

Posted by: Petros | 2007-12-28 7:23:40 AM

Income Trusts: Treachery, Treason And Plot

An inexcusable, abhorrent CON policy of social, financial and economic ruin that has:

1)wiped out $35 billion of Canadians' savings
2)caused losses in the Canada Pension Plan, other pension plans, RRSPs, RRIFs and various mutual funds
3)placed a punitive new tax on Canadian publicly traded income trusts (while no such tax applies to private trusts)
4)eliminated a viable and desired investment choice for ordinary average Canadians (while favouring wealthy private interests)
5)placed seniors, retirees and other Canadians' futures in jeopardy
6)increased the cost of capital for Canadian businesses structured as trusts
7)reduced the ability of these Canadian businesses to make acquisitions
placed restrictions on the ability of these Canadian businesses to grow (while US and other foreign-based entities face no such restrictions)
9)eliminated a competitive Canadian advantage and a natural hedge against foreign takeovers
10)encouraged US and other foreign takeovers, especially in the trust sector
11)allowed US and other foreign-based entities to remove income from Canada entirely tax free
12)eroded the Canadian tax base.

To all Canadians:


Posted by: CONS are CRAP | 2007-12-28 7:51:56 AM

Social, financial, economic, personal and psychological injustice.

Treachery and treason.

Unaccountability and untrustworthiness.

Deceit and dishonesty.

Stephen Harper, Jim Flaherty and Mark Carney:

These are thy names!

Posted by: Harper Cannot Be Trusted | 2007-12-28 7:58:57 AM

As some historical figures and many others have pointed out:
"Tell a lie often enough, and people will believe it as fact."

Conservative Party politicians are especially adept at using this philosophical approach. Repeat a lie and use disingenuous spin to justify a policy, rather than creating or adjusting a policy based on facts and evidence. Continue, even if the facts, evidence and consequences prove the policy to be in error, so as to avoid embarrassment and the appearance of incompetence.

Harper, Flaherty and the other CONServative minions are too embarrassed and worried about the political fallout should they actually admit their mistake and incompetence.

Following George Bush's Republican regime playbook, they continue to damn the torpedoes (irrespective of the results and consequences) and repeat the scripted lies, assuring themselves that they have pulled the wool over the eyes of uninformed Canadians and voters.

Posted by: Anonynous | 2007-12-28 8:07:19 AM

I suspect all these new nics are really some of our regular trolls in disguise.

Posted by: obc | 2007-12-28 8:08:16 AM

The Harper, Flaherty and CON Party philosophy is to insidiously plunder from the ordinary, average Canadian in order to perversely advance the rich, foreign collective.

Steal from the poor to give to the rich.

Treachery, treason and plot indeed!!!

Posted by: Harper Is A Liar | 2007-12-28 8:16:39 AM

Yup - new nics but the same old farts.

Posted by: obc | 2007-12-28 8:19:24 AM

IT For Income Trusts

Remember, Remember
The 1st Of November
The Conservative's Income Trust Treason And Plot

I Know Of No Reason
Why The Income Trust Treason
Should Ever Be Forgot

Posted by: IT For Income Trusts | 2007-12-28 8:22:10 AM

Let the record show that the Western Standard opposes the Conservative Party of Canada and so do most of its readers.

Since there are only two parties that can form the next government, the Western Standard and its readers are clearly and unambiguously Liberals, nothing else is possible.

I just wanted to point that out, and I look forward in 2008 to exploring the gap between the Western Standard's professed conservatism and its shabbily concealed liberalism and Liberalism.

Posted by: Conservative | 2007-12-28 8:29:58 AM

One has to laugh or contain his/her extreme indignation every time we hear Harper or his corrupt cronies unabashedly claim that their Conservative government is "clean".

What a fascist farce!

Posted by: Anonymous | 2007-12-28 8:33:23 AM

Who gives a rat's ass?

Harper haters have at it. Most Canadians could care less.

Posted by: Paul | 2007-12-28 8:34:30 AM

Stephen Harper:

A fascist dictator masquerading behind the veils of democracy, if there ever was one.

Posted by: Aggreed | 2007-12-28 8:37:57 AM

To quote numerous others:

"[Flim-Flam] Jim Flaherty is out of his depth."

And Jimmy's "depth" is as shallow as a child's wading pool.

Posted by: Flim-Flam Jimmy | 2007-12-28 8:39:25 AM

Paul ~

This is obviously a concerted and coordinated effort. Not that they'll have any success in their obvious attempts, but I guess they have nothing better to do during their Christmas vacation.

Couldn't expect them to actually show how much they care for the unfortunate by visiting a children's hospital, for example.

Then again, they'd probably scare the kids.

Posted by: obc | 2007-12-28 8:40:00 AM

The CON Party's income trust tax policy has shifted the benefit of owning businesses in the trust structure away from ordinary retail investors to wealthy (foreign) private equity firms and pension funds, which can duplicate the trust structure without attracting tax.

Unfortunately, there are a great number of uninformed people who fail to realize this.

Posted by: Put The Pieces Together | 2007-12-28 8:49:24 AM

And the coordinated troll attacks continue.

Posted by: obc | 2007-12-28 8:51:55 AM

Given that Harper, Flaherty and the other CONServative cronies have been shown to be willing to do anything for power and votes, I would posit that their income trust treachery is an illusive attempt to gain support from uninformed and/or so-called left-leaning voters and international interests, regardless of the damaging monetary and economic consequences.

This is truly a deceitful, dishonest, disingenuous and dishonourable government indeed!

Posted by: The CON Party Illusion | 2007-12-28 8:52:01 AM

"have been shown to be willing to do anything for power and votes"

Confusing Conservatives with Leftoid Lieberals and Dippers is called projection. :)

Posted by: obc | 2007-12-28 8:53:55 AM

The name of the troll is Robert Gibbs

His Email address is [email protected]

I believe that would be an Ontario Email address.

Let's all sign him to various spam/porn sites so that he can enjoy the company of new friends and keep busy sifting through the new loads of Email.

My guess is that this idiot used his real name on his Email account and now has compromised it by showing himself to be a troll and a stupid one.

Posted by: John West | 2007-12-28 8:59:22 AM

Mark Carney is another CON Party patsy, operating from the same CON Party play-book, unencumbered by truth, justice and the Canadian way.

Wake up, and...


Posted by: TAKE BACK CANADA | 2007-12-28 9:03:47 AM

Good work, John!

Posted by: obc | 2007-12-28 9:05:13 AM

To The CON Party Illusion:
You make a good point when you say "...income trust treachery is an illusive attempt to gain support from uninformed and/or so-called left-leaning voters."

For sure; Harper and his Fool fooled the NDP about income trusts, but that's pretty easy to do. The NDP no longer represents the western farmers or independent business owners who have to make their own pensions. Pretty easy to lean left when there's a comfy security net there.

The big question is: Why has Harper slammed down thousands and thousands retired Canadians?

Posted by: Petros | 2007-12-28 9:05:38 AM


The CPC (Harper) wanted to be seen to be lowering taxes IE the GST from 7 to 5.

Politicians never actually lower taxes they just move the sources around to make themselves look like they are doing something good.

Everyone gets a break with the GST lowering, but only a small percentage of hard working, prudent self-reliant older investors were the main target here. We took the hit.

The companies themselves were hurt, but given time to re-jig and retool. However, a company is not a father, or grandfather or husband who is trying to provide a decent retirement for himself and his family.

Trashing the trusts was evil. They should have been grandfathered and gradually phased out over a generation. That would have spared a lot of older voters. I am one and won't vote for anyone next time around.

It seems it doesn't really matter whose in power we all get screwed all the time. All that changes is the position.

Posted by: John West | 2007-12-28 9:35:08 AM

The big answer? To stop the drain of all the big corps using the loophole to stop paying taxes! Why are you all in favour of Canadian corps getting a tax free ride? Pfffft.... I have $ in income trusts. I didn't freak out and sell like you who are bitter. Two years later, I've almost recovered what I lost. Plus, I can sleep at night knowing the BCE's of the world pay some tax thanks to the crack down on income trusts. There may be some hope I won't have my PERSONAL income taxes increased because of a tax loophole that only benefited the conglomerates.

Shhhsh, you socialists need to get your act together... either you hate big business and think they should pay big taxes (usually the cry of the NDP), or you’re in favour of them getting a free tax ride whilst you personally pick up the slack. Its one or the other, boys. Personally, I’m for the former!

Investments are affected by most any governmental or corporate decision. They are a gamble. If you choose to play the stock market, then don’t go whining when some mucky muck makes a decision that negatively effects your stock. Take the ups with the downs, that’s the way it works. And remember… It was YOU that panicked and pulled your investment on a downswing, those of us in it for the long haul are just fine, indeed.

Posted by: septtwo | 2007-12-28 10:12:44 AM


Absolutely true.

The stock market is another form of gambling, like the race tracks or lottos. There's no guarantee you'll make any money.

If you lose money, too freakin' bad, you greedy bastard. That's the risk you take.

You expect the government to set up a system of tax avoidance by some corporations and not others? Or should all corporations abide by the same taxation rules?

I agree that state enterprise is totally inefficient and, since the folly of my youth voting for Trudeau, have consistently voted for the party that promises to spend the least amount of my money.

And, I have voted in every election. There's no sense holding my breath and stamping my feet.

I like the GST cut to 5% and I believe personal income taxes should also come down.

And, I like the fact that ALL Canadian corporations are subject to the the same tax rules.

Posted by: set you free | 2007-12-28 10:48:04 AM

Septic Too,
You have your facts screwed-in backwards. Under its new owners (Ontario Teachers Pension Fund and private American equity), BCE will pay no tax.

There will be some tax paid when retired ON teachers receive pension payments. But income and capital gains will accumulate untaxed inside that giant pension fund (it has billions and billions in it.)

But your head is totally toadie zonked about the private equity. Using provisions of the 2007 budget, foreign private equity can remove Canadian income tax-free.

Harper and his Fool are anti-democratic and anti-Canadian.

Posted by: Petros | 2007-12-28 11:45:40 AM

I owned income trusts and the Conservative government lied to me. I have voted Conservative/Reform all of my voting life. I probably won't in the next election based on their actions with this subject. I have no problem "taking my licks" over my investment strategy, but having a prime minister and finance minister lie about what they will do is not the same as having the economy or market go down. They could simply have said nothing or grandfathered the present trusts and said there will be no more. I wish this NAFTA claim all the luck in the world. It would be very nice to see that liar Flaherty get his nosed rubbed in it.

Posted by: Tom | 2007-12-28 11:47:13 AM


Be careful what you wish for.

Posted by: set you free | 2007-12-28 11:53:09 AM

Set you free,

"you greedy bastards??"

You want your tax to go down but you will want to continue your government entitlements. Thats greedy!

Investing previously hard earned dollars in Canadian, job producing companies that provide employment even for your lazy ass is being greedy??? Really? What is buying lottery tickets?

'Playing' IE day trading the market is gambling. 'Investing 'in the market is financial planning so one will not have to take welfare later in life.

The Market is there for people who want to take care of their own financial security. That is smart, not greedy. The market is there for companies to share the risk of creating wealth and building our economy. Countries will no market are countries where everyone starves and dies young.

You lefties are so stupid and selfish. You don't anything about the market, finance, or life in general for that matter.

Posted by: John West | 2007-12-28 12:01:52 PM

The oil companies that converted to Income Trusts spent a lot less on exploration. For that reason alone they were bad for the economy.

Posted by: dp | 2007-12-28 12:07:47 PM


I'm hardly a lefty and have a portfolio worth more than $300,000.

Have all your other investments worked out? I doubt it and you have nobody to blame but yourself when you gamble in the stock market and lose.

Like my mom told me, if you hate somebody (in this case Flaherty), he'll never know about it and all you'll end up destroying is yourself.

Take your lumps, move on. Your approach makes you appear bitter and all your bitterness will lead to is worsening mental health.

Posted by: set you free | 2007-12-28 12:20:10 PM

set you free~

"you greedy bastards"...

capitalism and the markets are the tried and true way of ensuring freedom and liberty.

instead of despising human nature, perhaps you can accept and enjoy it.

Posted by: shel | 2007-12-28 12:27:41 PM

You're right but wrong.

Except for deep zone gas along the eatern slope of the Rockies, the majors no longer explore for conventional reserves. The pools are too small for them.

Junior oil companies are the new explorers. But the juniors do not have the size or resources to develop their discoveries. Until the Fool came along, the junior explorers would sell their discoveries to income trusts.

Because of the Fool, income trusts are no longer buying new pool discoveries from the juniors, capital for the juniors has dried up, drilling and service rigs are stacked even though the price of oil is at an all time time.

The situation is completely stupid. The only thing more stupid is the Fool and a few of the posters here.

dp, not too worry. Just get your facts straight and you'll be okay. As for the Fool, nochancey Mr. Whelan.

Posted by: Petros | 2007-12-28 12:27:56 PM

John West~

you stole my thunder.

it's nice to see a Canadian in agreement with logic.

Posted by: shel | 2007-12-28 12:29:36 PM


Am I factually correct and idealogically wrong, or vice versa?

The whole cause and effect argument can be drawn out for days with no conclusion.

Did you get your facts from a shareholder's meeting or the watercooler? Either way, you are probably right about the present situation.

Posted by: dp | 2007-12-28 12:56:52 PM


I do enjoy my $300,000-plus portfolio, thanks very much.

There were many losses along the way, but many more wins.

That's the nature of the market.

I just can't stand the whining when the inevitable losses can be scapegoated onto somebody else.

That's the part of human nature I wish people would recognize in themselves and not succumb to its destructive temptation.

The entire income trust system was being abused. Sure, it works well for junior oil companies, but pizza parlous and well-established telcos? Gimme a break.

Posted by: set you free | 2007-12-28 12:57:36 PM

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