SecProbe.io

CORRESP
1
filename1.htm

    Unassociated Document

    WES
CONSULTING, INC.

    2745
Bankers Industrial Drive

    Atlanta,
GA 30360

    Telephone:
(770) 246-6400

    November
22, 2010

    VIA  EDGAR AND
FEDERAL EXPRESS

    United
States Securities and Exchange Commission

    Division
of Corporation Finance

    100 F.
Street, N.E.

    Washington,
D.C. 20549-6010

    Attn:
William H. Demarest IV, Attorney – Adviser

              RE:

              Wes
      Consulting, Inc.

              Amendment
      No. 1 to Preliminary Information Statement on Schedule
  14C

              Filed
      November 25, 2009

              File No.
      000-53314

    Dear Mr.
Demarest:

    Set forth
below are the responses by WES Consulting, Inc., the surviving entity from a
merger between Liberator, Inc. (“Liberator”) and WES Consulting, Inc. (“WES” or
the “Company”) effective October 19, 2009, to the comments received from the
staff (“Staff”) of the Securities and Exchange Commission (the “Commission”) in
the letter dated December 11, 2009.  We have reproduced the Staff’s
comments for your convenience and have followed each comment with our
response.  References in this letter to “we,” “our,” or “us” mean the
Company or its advisors, as the context may require.  Capitalized
terms not defined herein have the meaning set forth in the Amendment No. 1 to
Preliminary Information Statement on Schedule 14C referenced
above.

    General

    1.
     We note your response to comment 1 of our letter
dated November 17, 2009 that you have incorporated the necessary financial
information by reference. Your response does not appear to address our original
request for your basis for not providing the disclosure required by Item 14 of
Schedule 14A. As such, we partially reissue our prior comment. Please refer to
Note A and Item 14 of Schedule 14A and discuss your basis for not providing the
disclosure requested by the noted Items.

    Response: The response letter from
the Company to the Staff dated November 25, 2009 was prepared by the Company’s
former legal counsel, and we have no knowledge of the basis for not originally
providing the disclosure required by Item 14 of Schedule 14A.  We
amend the preliminary proxy statement by Amendment No. 2 to include the
information required by Item 14 of Schedule 14A.

    William
H. Demarest

    Securities
and Exchange Commission

    November
22, 2010

    Page 2 of
3

    2.
We note your response to comment 2 that shareholder approval was obtained.
Please revise to clarify how you obtained shareholder approval and tell us your
basis for not filing an information statement related to such
approval.

    Response: As mentioned above in
response to comment #1, we have no knowledge of the basis for not originally
having filed an information statement relating to the approval of the merger
between the Company and Liberator, Inc.  Amendment No. 2, however,
includes disclosures related to the merger.

    3.
We note your response to comment 3 that you relied on Section 4(2) of the
Securities Act of 1933 in issuing the securities to the shareholders of
Liberator.  Please tell us the factual basis for such
exemption.

    Response:   First, the
issuance of securities in the merger between Liberator and the Company was a
transaction by the Company, the issuer of the common stock and preferred stock
issued in the merger.

    Second,
the transaction involved a private offering. In Securities and Exchange Commission
v. Ralston Purina Co. (1953), the Supreme Court said that “[a]n offering
to those who are shown to be able to fend for themselves is a transaction ‘not
involving any public offering.’” The Court focused on the need of
offerees for the protection afforded by registration under the Securities Act to
determine whether the offering in that case was a public or private offering. We
filed Form 10 information in a Current Report on Form 8-K filed with the
Commission on October 22, 2009, which includes the kind of information
made available in a registration statement. Since that Form 8-K is filed
publicly as part of our securities filings with the Commission that are
available via EDGAR, all of the Liberator shareholders had access to that public
information and did not need the protection of the Securities Act.

    In Doran v. Petroleum Management Corp.
(5th Cir., 1977), the United States Court of Appeals for the Fifth
Circuit considered four factors that it considered relevant to whether an
offering qualifies for the Section 4(2) exemption. The four factors are (1) the
number of offerees and their relationship to each
other and the issuer, (2) the number of units offered, (3) the size of the
offering, and (4) the manner of the offering. As the court said that “these
factors serve as guideposts to the court,” we acknowledge that all four of these
factors do not weigh heavily in favor of the private status offering, but we
urge the Staff to
consider the weight of factors 1 and 4 in favor of our position. As to factor 1,
the offering was only available to the holders of Liberator common stock and
preferred stock, of which there were only 53. We believed each of the Liberator
shareholders to be a sophisticated investor with such knowledge and experience
in financial and business matters that he is capable of evaluating the merits
and risks of a prospective investment. We based this belief on the following (i)
the representations of the 40 investors from Liberator’s private placement that
closed on June 26, 2009, which representations were contained in the
subscription agreements entered into by such investors and Liberator; (ii) the
representations of 7 of the shareholders, in written documents signed in
connection with a private placement financing between such persons and OneUp
Innovations, which Liberator acquired on June 26, 2009; and (iii)
representations from Liberator shareholders and management. As to factor 4, we
believe that the manner of the offering supports our belief that the issuance in
the merger was a private offering as the issuance was only to persons who held
shares of Liberator’s common stock and preferred stock immediately prior
to the
merger. We did not offer or sell the securities by any form of general
solicitation or general advertising, all communications being directly with the
parties to the merger transaction, nor was an underwriter
involved.

    William
H. Demarest

    Securities
and Exchange Commission

    November
22, 2010

    Page 3 of
3

    For the
reasons described and factors cited above, we relied on Section 4(2) as the
exemption from registration for the issuance of securities in the
merger.

    4.
         Please revise your Item 3
of Schedule 14C disclosure to discuss the interest of persons required to be
identified in that item.

    Response:  We have added a
section on “INTERESTS OF DIRECTORS AND OFFICERS IN THE MERGER” on page 5 of
Amendment No. 2.

    5.           We
note that prior to the merger, Liberator had previously merged with Remark
Enterprises Inc. We also note that Liberator received comment letters from the
staff dated July 9, 2009 and July 28, 2009. Please note that because Liberator
is currently your operating business, the comments previously provided continue
to apply even though Liberator filed a Form 15. As such, under separate cover,
for each of the prior comment letters, please provide your responses to all of
the outstanding comments. Please note that we will not be in a position to clear
our review of this information statement until you have resolved the issues
previously raised in the July 9 and July 28, 2009 letters.

    Response: We acknowledge that the
Staff will not be in a position to clear its review of this information
statement until we have resolved the issues raised in the Staff’s letters
regarding Liberator. On
November 19, 2010, we received correspondence from the Staff that it had
completed review of the filings that were the subject of those letters, and that
the Staff did not have any further comments at this time.

    *     *     *     *     *

    In
connection with the foregoing responses, the Company acknowledges
that:

              ·

              the
      Company is responsible for the adequacy and accuracy of the disclosure in
      the filing;

              ·

              Staff
      comments or changes to disclosure in response to Staff comments do not
      foreclose the Commission from taking any action with respect to the
      filing; and

              ·

              the
      Company may not assert Staff comments as a defense in any proceeding
      initiated by the Commission or any person under the federal securities
      laws of the United States.

    If you
have any questions or further comments, please do not hesitate to contact our
legal counsel at Richardson & Patel LLP, Attention: Peter Hogan or Jamie H.
Kim at (310) 208-1182 or via fax at (310) 208-1154.

                                Sincerely,

                                WES
      CONSULTING, INC.

                                /s/
      Ronald P. Scott

                                Ronald
      P. Scott

                                Chief
      Financial Officer