From: RDShatt
To: kdarcy@theecoa.org
Sent: 3/22/2008 3:34:38 P.M. Central Daylight Time
Subj: Continued interest in ECOA as forum
Dear Mr. Darcy,
I continue to plug away (today's blog entry) and continue to seek the ECOA as a forum.
Maybe that will never be offered to me because I don't have credentials; if so, I will just have to accept that.
In any event, I see the "call for speakers" item on the website for the Annual Conference, and I will send Mr. Hansen an email suggesting myself.
Thank you.
Sincerely,
Robert Shattuck
From: RDShatt
To: JHansen@theecoa.orgCC: kdarcy@theecoa.org
Sent: 3/22/2008 3:40:36 P.M. Central Daylight Time
Subj: call for speakers
Dear Mr. Hansen,
I propose myself as a speaker at the Annual Conference.
I don't have credentials or a CV to submit, except for what you care to extract from my blog, starting with this.
Thank you.
Sincerely,
Robert Shattuck
From: RDShatt
To: rholmes@southernco.com
CC: kdarcy@theecoa.org
Sent: 4/1/2008 10:19:19 A.M. Central Daylight Time
Subj: Fwd: call for speakers; solicitation for interview
Dear Mr. Holmes,
I believe my name is known to you by now.
Per the below email, I have solicited the ECOA to be a speaker at this year's conference. Inasmuch as you are in Birmingham and I am in Birmingham, I would be desirous of an interview with you, in order to evaluate my potential as a conference speaker. If this is something that you are willing to do, please contact me. My telephone number is 967-5586.
Thank you very much.
Sincerely,
Robert Shattuck
From: RDShatt@aol.com
Sent: Sunday, July 27, 2008 12:20 PM
To: Keith T. Darcy
Subject: Request for waiver of conference fee
Dear Mr. Darcy,
I would like to attend the annual conference. I am retired and receive no compensation for anything I do in the corporate ethics field. You know of my efforts in that field, including particularly my trying to communicate with ethics officers and academics related to certain argumentation I am trying to propound. I applied to the ECOA to be a speaker at the conference and solicited an interview with Mr. Holmes regarding the same, but received no reply to either communication. I have asked the ECOA to allow for some publication of my article on its website or be allowed to avail myself in some way of its email list of its members, but I have not been able to obtain any of that. I would like to gain access to the materials in the member resource center on the ECOA website to see what is there that may have bearing on my argumentation, but, for the same reasons that I am requesting waiver of the conference fee, I cannot justify paying to be an ECOA member in order to find out that information by that means. I have extensively solicited from ethics professionals comment and evaluation about my argumentation, but have not received any substantive feedback that I would consider meritorious of reciting here. I have some understanding of the credentialistic environment in which I am trying to make headway, and also that many ethics professionals are subject to constraints either of their corporate masters or of their marketplace. The ramifications of the foregoing factors and considerations are not likely to deter me in carrying on. I would like to do so in person at the Annual Conference, but I cannot justify to myself paying the conference fee, and rather than pay the fee to attend I would continue and extend my current mode of communication to professionals in the ethics field. For the foregoing reasons, and in the foregoing circumstances, I respectfully request of the ECOA that I be allowed to attend the conference without payment of the conference fee.
Thank you very much your attention to this request.
Sincerely,
Robert Shattuck
From: kdarcy@theecoa.org
To: RDShatt@aol.com
Sent: 7/27/2008 1:02:13 P.M. Central Daylight Time
Subj: RE: Request for waiver of conference fee
Mr. Shattuck,
Thank you for your email.
As a matter of policy, we do not waive conference fees.
Regarding access to our member resource center, it is only available to our Sponsoring Partner members.
As I have previously mentioned, we do not make available our member mailing lists.
I have previously reviewed your material and concluded that, while it is a thoughtful argument, it would not of interest to our members either at our conferences or through our newsletter. I believe that the lack of response despite having “extensively solicited from ethics professionals” supports my conclusion.
You have been writing to myself, directors and others now for an extended period of time. I would respectively ask that you cease making these repeated requests of the ECOA. We are simply not interested.
Thank you, and best wishes in your endeavors.
Keith Darcy, Executive Director
From: RDShatt
To: kdarcy@theecoa.org
Sent: 7/27/2008 4:08:08 P.M. Central Daylight Time
Subj: Re: Request for waiver of conference fee
Thank you very much for replying, Mr. Darcy.
If I make a thoughtful written argument going in one direction, surely I should be able to find a thoughtful written argument arguing in the other direction. Can you cite me something? In my extensive communications, I have explicitly or implicitly been soliciting anyone to say anything or cite anything that argues to the contrary of the thrust of my argumentation, but have not gotten anything to that effect.
Do you have any idea why that is?
I have some ideas.
One is what I have referred to as "credentialism." My argumentation is not rocket science. It is based on common sense and common human knowledge and experience. The last thing credentialed experts want thrown at them is something that undermines their self-image as being a specialized repository of knowledge and expertise that makes them the only qualified persons to speak intelligently related to their subject and to have worthwhile opinions, and heaven forbid that there is something brought before them that is within the competency of the lay public to have an intelligent view about.
Second, I mentioned your corporate masters. The law may egregiously undermine the objective of corporate ethics officers to nurture and inculcate ethical conduct by the employees of corporations in exactly the way I argue, but that is venturing into a much bigger domain than is occupied by corporate ethics officers, and they are not going to say or do diddly squat except as fits within the big picture strategy and tactics of corporate management in responding to and dealing with the travesties of our nation's civil liability system. (If you would like more insight into that matter, I would be pleased to engage you on it.)
So, Mr. Darcy, you may profess lack of interest, and further I suspect your lack of interest will carry the day for and within the ECOA, and I will try not to bother you or your directors any further. If, however, I choose to email corporate ethics officers and others and say the same to them as I say to you in this email, I am sure you will not hold it against me.
With all best wishes,
Robert Shattuck
Friday, August 1, 2008
Friday, June 20, 2008
I replied to Mr. Liu
From: RDShatt
To: Don.Liu@xerox.com
Sent: 6/20/2008 6:46:34 P.M. Central Daylight Time
Subj: Re: Xerox securities lawsuit: request to contact independent directors
Dear Mr. Liu,
Thank you very much for responding to me.
I do not interpret your reply as meaning that the Xerox directors or you disagree with the general proposition that plaintiffs' lawyers have perpetrated and continue to perpetrate an abusive travesty of the legal system in the domain in which they do their work, and this is in order to enrich themselves to a significant detriment of societal interests, economic and otherwise, in having a rational and reasonably functioning legal system. Rather, I interpret your reply to mean that Xerox has been ensnared in the predations of the plaintiffs' lawyers, and any attempt to resist them will either be wholly ineffectual or result in the lawyers increasing the wrongful harm they are inflicting on Xerox and its shareholders and bondholders in their mission to enrich themselves. (If you disagree with the foregoing characterizations, I would very much like to dialogue with you about the matter.)
Assuming you don't disagree, I would like to ask you whether you are in any position to lend me any assistance in my efforts that are revealed in my blog to try to combat plaintiffs' lawyers. If you are interested in particulars of how you might help, please let me know and I will give you more information.
Thank you.
Sincerely,
Robert Shattuck
To: Don.Liu@xerox.com
Sent: 6/20/2008 6:46:34 P.M. Central Daylight Time
Subj: Re: Xerox securities lawsuit: request to contact independent directors
Dear Mr. Liu,
Thank you very much for responding to me.
I do not interpret your reply as meaning that the Xerox directors or you disagree with the general proposition that plaintiffs' lawyers have perpetrated and continue to perpetrate an abusive travesty of the legal system in the domain in which they do their work, and this is in order to enrich themselves to a significant detriment of societal interests, economic and otherwise, in having a rational and reasonably functioning legal system. Rather, I interpret your reply to mean that Xerox has been ensnared in the predations of the plaintiffs' lawyers, and any attempt to resist them will either be wholly ineffectual or result in the lawyers increasing the wrongful harm they are inflicting on Xerox and its shareholders and bondholders in their mission to enrich themselves. (If you disagree with the foregoing characterizations, I would very much like to dialogue with you about the matter.)
Assuming you don't disagree, I would like to ask you whether you are in any position to lend me any assistance in my efforts that are revealed in my blog to try to combat plaintiffs' lawyers. If you are interested in particulars of how you might help, please let me know and I will give you more information.
Thank you.
Sincerely,
Robert Shattuck
Xerox board standing pat
From: Don.Liu@xerox.com
To: RDShatt@aol.com
CC: Don.Liu@xerox.com
Sent: 6/5/2008 4:03:34 P.M. Central Daylight Time
Subj: RE: Xerox securities lawsuit: request to contact independent directors
Dear Mr. Shattuck:
The Xerox Board of Directors has instructed me to respond to the concerns you expressed in your letter dated April 23, 2008.
I can assure you that our full Board of Directors reviewed the Carlson litigation and approved the settlement based on its determination that settling the case was in the best interest of both the Company and its shareholders. Moreover, without debating with you the equity of how and to whom the settlement proceeds should be distributed, because of the composition of the plaintiff class and the allegations made in the complaint, the settlement proceeds can be distributed only to those shareholders who purchased Xerox stock or bonds during the class period, as specified by the terms and conditions of the settlement agreement.
On behalf of our Board of Directors, I want to express our appreciation for your thoughts and comments.
Sincerely,
Don H. Liu
Senior Vice President
General Counsel and Secretary
Xerox Corporation
To: RDShatt@aol.com
CC: Don.Liu@xerox.com
Sent: 6/5/2008 4:03:34 P.M. Central Daylight Time
Subj: RE: Xerox securities lawsuit: request to contact independent directors
Dear Mr. Shattuck:
The Xerox Board of Directors has instructed me to respond to the concerns you expressed in your letter dated April 23, 2008.
I can assure you that our full Board of Directors reviewed the Carlson litigation and approved the settlement based on its determination that settling the case was in the best interest of both the Company and its shareholders. Moreover, without debating with you the equity of how and to whom the settlement proceeds should be distributed, because of the composition of the plaintiff class and the allegations made in the complaint, the settlement proceeds can be distributed only to those shareholders who purchased Xerox stock or bonds during the class period, as specified by the terms and conditions of the settlement agreement.
On behalf of our Board of Directors, I want to express our appreciation for your thoughts and comments.
Sincerely,
Don H. Liu
Senior Vice President
General Counsel and Secretary
Xerox Corporation
My work on Xerox case
As promised, I have spent time working on the Xerox case, including contacting the Xerox board of directors, the U.S. Chamber of Commerce Institute for Legal Reform, law professors specializing in class actions, and the ABA Class Action and Derivative Suits Committee. The below email correspondence indicates what I have done.
From: RDShatt
To: Douglas.Marshall@xerox.com
Sent: 5/15/2008 8:25:38 A.M. Central Daylight Time
Subj: Fwd: May 22, 2008 Xerox Corporate Governance Committee meeting
Dear Mr. Marshall,
I have taken the liberty of communicating directly with the directors and in particular earlier this week sent the below email to Mr. Jordan and Mr. Hunter, for whom I could find email addresses, and used US mail for the other directors and such US mail addresses as I could find that I thought would work for them.
If I have any additional communications I would like to make to the directors, should I send them to you for forwarding, or should I use my direct communication approach?
Thank you.
Sincerely,
Robert Shattuck
From: RDShattTo: vjordan@akingump.comSent: 5/11/2008 2:38:49 P.M. Central Daylight TimeSubj: May 22, 2008 Xerox Corporate Governance Committee meeting
Dear Mr. Jordan,
I am endeavoring to contact directly the directors of Xerox Corporation to inform them of my efforts to protest as loudly as I can against the travesty plaintiffs' lawyers perpetrate on the US economy and US society, and most immediately relative to Xerox and its shareholders and bondholders in the form of the securities class action lawsuit against Xerox which is scheduled to be brought before the Corporate Governance Committee at its May 22, 2008 meeting.
I hope you will review the below email correspondence on this matter. If you do, and if you would like to ask me any questions about what I have done or tried to do, I hope you will do so. You may use the above email address to communicate with me, or you may reach me by telephone at (205) 967-5586.
Thank you very much.
Sincerely,
Robert Shattuck
3812 Spring Valley Circle
Birmingham, AL 35223
(205) 967-5586
From: RDShattTo: jcoffee@law.columbia.edu
CC: Douglas.Marshall@xerox.com, JEskelsen@USChamber.com
Sent: 5/9/2008 10:50:14 A.M. Central Daylight Time
Subj: May 22, 2008 Xerox Corporate Governance Committee meeting
Dear Professor Coffee,
I have importuned that the Xerox Corporate Governance Committee put on the agenda for its May 22, 2008 meeting consideration (or reconsideration) of a proposed settlement in a class action securities lawsuit against Xerox. Besides other things revealed in the below is email correspondence about this matter, I have contacted the Institute for Legal Reform and was referred to an online paper (quoted below) in which your views are discussed about the "circularity" involved in cases such as the Xerox lawsuit.
I would like to solicit your views on some jurisprudential questions. Do you think there is any basis (e.g., due process, arbitrary loss shifting with no rational justification, other legal basis?) on which a judge could dismiss the lawsuit against Xerox? If there might such a basis, do you feel it has been adequately presented to a judge in a comparable lawsuit of which you are aware? Do you have any views about the propriety of Xerox directors approving Xerox entering into the proposed settlement agreement that gives net favorable treatment to some Xerox shareholders and bondholders and net unfavorable treatment to other Xerox shareholders and bondholders in an arguably arbitrary fashion? Is there a conflict for the plaintiffs' lawyers to represent both shareholders (and bondholders) who will have a net gain and also shareholders (and bondholders) who will have a net loss from the settlement? Do you believe there is a basis for Xerox requesting the court to include other Xerox shareholders and bondholders who are not in the plaintiff class who are also real parties in interest and who should be entitled to joined as parties in the lawsuit and be afforded legal representation?
As the below email correspondence indicates, I am trying to solicit a legal expert such as yourself to provide input to the Xerox Corporate Governance Committee (if Sandra Goldstein of Cravath is limited in the representation she is providing), and I would be excited if you were inclined to do that, either on a pro bono or paying basis (if Xerox or the independent directors were willing to retain you).
I very much look forward to hearing something from you in response to this email.
Thank you.
Sincerely,
Robert Shattuck
From: RDShatt
To: Douglas.Marshall@xerox.com
Sent: 5/8/2008 8:33:52 A.M. Central Daylight Time
Subj: May 22, 2008 Corporate Governance Committee meeting
Dear Mr. Marshall,
For your information, set forth below is email correspondence I have had with various persons related to the submission of my email that has been scheduled for the above committee meeting. If I obtain further useful information from my email correspondence, I will pass it on to you. Also, I will probably copy you on further emails I send out on this matter.
Thank you.
Sincerely,
Robert Shattuck
From: RDShatt
To: JEskelsen@USChamber.com
Sent: 5/7/2008 1:56:58 P.M. Central Daylight Time
Subj: Re: Xerox board of directors
Dear Jon,
Would you or Ms. Rickard or anyone else at the Institute or at the Chamber be in a position to tell me which of the below listed Xerox directors might be most "receptive" and "proactive" for me to approach for purposes of trying to raise a ruckus with Judge Thompson?
From Xerox online info: "Our Board has determined that based upon this standard 91% of our directors are independent. The independent Directors are Glenn A. Britt, Richard J. Harrington, William Curt Hunter, Vernon E. Jordan Jr., Hilmar Kopper, Ralph S. Larsen, Robert A. McDonald, N. J. Nicholas, Jr., Ann N. Reese, and Stephen Robert. The only director who is not independent is Anne M. Mulcahy, our Chairman and Chief Executive Officer."
Thank you.
Sincerely,
Robert Shattuck
In a message dated 5/7/2008 1:29:09 P.M. Central Daylight Time, JEskelsen@USChamber.com writes:
Mr. Shattuck,
Neither I nor would other employees here at ILR be in the best position to engage with Xerox in the manner you have suggested. Nor are we in a position to advise you as to how to best ensuring Judge Thompson understands the problems with the case except to say that judges try to get the law right. We are a public policy organization and while we keep our ear to the ground on what is going on in the courts, we do not represent clients before the court and are not in a position to give advice in that capacity. I have passed on your information to Ms. Evans, in our office. She is out of the office today.
Yours,
Jon
From: RDShatt
To: JEskelsen@USChamber.com
Sent: 5/7/2008 1:16:25 P.M. Central Daylight Time
Subj: Re: Xerox class action securities lawsuit
Dear Mr. Eskelsen,
I went to your links and I see that the Institute has specifically focused on the kind of class action lawsuit that is exemplified by Xerox. (I have copied the particular portion of the Institute's paper that discusses this and I have pasted it below.)
I would like Xerox or the Xerox independent directors or someone to raise as loud a ruckus as possible with Judge Thompson about the Xerox class action lawsuit. Is it all pointless to try to do that? Do judges just plain ignore any and all slamming of the idiocies they perpetrate, and do they just blithely go their idiotic ways?
Would you be in a position to give me the name of the Institute's lawyer who handles securities issues and allow me to be in direct communication with her?
Thank you.
Sincerely,
Robert Shattuck
[below boldface is copied and pasted from Institute's paper]
Burden on Investors/Cost ShiftingSecurities class actions impose a burden on investors. The structure of this systemis fundamentally flawed and amounts to no more than a cost shifting process with theaddition of a “tax” which is the legal fees paid in such actions. This system is uniquein that one group of shareholders are generally paying another group of shareholders– amounting to cost shifting. Even if the company has insurance, the adverse effectsin terms of higher insurance rates will be borne by the company’s shareholders.The actual wrongdoers are not paying in these actions because the claims areagainst the existing company and the company is the shareholders. This “circularity”problem affects all cases – even those in which the claim is legitimate. Securitieslitigation thus involves a transfer of wealth from one set of investors to another, witha very substantial percentage – approximately one-third according to the datadiscussed above – skimmed off by plaintiff and defense lawyers. Of the 755 casesstudied in The Economic Reality of Securities Class Action Litigation, plaintiffs’ legal feesamounted to over $4.5 billion. Rather than reliably providing compensation toinvestors, the actual economic benefits to injured investors with legitimate claims areunclear.This notion has been discussed extensively in the academic community. Forexample, Professor Jack Coffee, of Columbia School of Law, has written thatsecurities class actions “impose costs on public shareholders in order to compensatepublic shareholders,” characterizing these lawsuits as a “circular process” with “perverseeffects.”And, Professor Donald Langevoort, of Georgetown University Law School, hasnoted that “[b]y all accounts, nearly all the money paid out as compensation in theform of judgments and settlements comes, one way or another, from investorsthemselves. Little if any of the sum is contributed by those who were the primaryauthors of the fraud; a recent study puts the figure at less than half of one percent.”
In a message dated 5/7/2008 11:04:07 A.M. Central Daylight Time, JEskelsen@USChamber.com writes:
Mr. Shattuck,
I appreciate your continued interest in our work. ILR has been very engaged in looking at securities class action settlements and whether they actually remedy the harms that they allege. I will forward your this information to our lawyer who handles securities issues to see if they can be helpful to her work.
I would point you to our website and the research we have done on this issue highlighting the inefficiencies associated with securities class actions. This information can be found at: http://www.instituteforlegalreform.com/issues/issue.cfm?issue=SLI.
Sincerely yours,
Jon Eskelsen
From: RDShatt
To: jeskelsen@uschamber.com
Sent: 5/7/2008 10:31:30 A.M. Central Daylight Time
Subj: Xerox class action securities lawsuit
Dear Mr. Eskelsen,
I don't want to divert you or Ms. Rickard from the subject matter of my previous email, but I was wondering whether the Institute for Legal Reform would be interested in attempting some timely targeting of a class action securities lawsuit that is of a type that I think is deserving of the strongest and loudest condemnation possible. Maybe the Institute has focused on this type before; maybe not.
I have successfully importuned that the Xerox Corporate Governance Committee put on the agenda for its May 22, 2008 meeting consideration (or reconsideration) of a proposed settlement in a class action securities lawsuit against Xerox. Appended below is email correspondence (and links) that should give you and Ms. Rickard adequate information about this matter.
If I could enlist any aid or input from the Institute for Legal Reform on this Xerox lawsuit, I would be excited to receive it.
Thank you.
Sincerely,
Robert Shattuck
From: RDShattTo: [form of email sent to law professors specializing in class actions]
Sent:
Subj: Pro bono request re Xerox class action securities lawsuit
Dear Professor ______,
I believe one of your areas of focus in civil procedure is class actions.
I have written a letter to The Honorable Alvin W. Thompson of the Connecticut federal district court (which letter you can find here) about a proposed settlement in a Xerox class action securities lawsuit. Further, I have contacted the Xerox Corporate Secretary and have gotten the subject matter of my letter put on the agenda for the Xerox Corporate Governance Committee at its May 22, 2008 meeting.
Among other things, I have solicited the Corporate Governance Committee to consider the manner in which the proposed settlement creates at least three categories of Xerox stockholders and bondholders and what the fiduciary obligations of the directors are to these categories of Xerox stockholders and bondholders.
My pro bono request to you is whether you would give me your views about such fiduciary obligations and whether such obligations can all be properly discharged in an approval by the directors of the settlement agreement. Alternatively, could you refer me to me to a law professor whom you would consider as having special expertise in securities law class actions and who might be interested in responding on my request.
Ms. Sandra Goldstein of Cravath, Swaine & Moore represents Xerox in the litigation and I have put the foregoing questions to her and asked her whether she will be in a position to advise the independent directors on them. Ms. Goldstein has replied that she is not at liberty to discuss the matter with me, so I do not know whether she considers herself in a position to render such advice to the independent directors. I would be more than happy to try to convert this pro bono request to a fee paying request to you by passing your name along to the Xerox Corporate Secretary if a lawyer is needed to advise the independent directors.
Thank you for your attention to this email.
Sincerely,
Robert Shattuck
From: RDShattTo: [form of email sent to members of ABA Class Action and Derivative Suits Committee]
Sent:
Subj: Pro bono request re Xerox class action securities lawsuit
Dear __________,
I am writing to you in your capacity as a member of the who is identified as being in the securities law field.
I have written a letter to The Honorable Alvin W. Thompson of the Connecticut federal district court (which letter you can find here) about a proposed settlement in a Xerox class action securities lawsuit. Further, I have contacted the Xerox Corporate Secretary and have gotten the subject matter of my letter put on the agenda for the Xerox Corporate Governance Committee at its May 22, 2008 meeting.
Among other things, I have solicited the Corporate Governance Committee to consider the manner in which the proposed settlement creates at least three categories of Xerox stockholders and bondholders and what the fiduciary obligations of the directors are to these categories of Xerox stockholders and bondholders.
My pro bono request to you is whether you would give me your views about such fiduciary obligations and whether such obligations can all be properly discharged in an approval by the directors of the settlement agreement.
Ms. Sandra Goldstein of Cravath, Swaine & Moore represents Xerox in the litigation and I have put the foregoing questions to her and asked her whether she will be in a position to advise the independent directors on them. Ms. Goldstein has replied that she is not at liberty to discuss the matter with me, so I do not know whether she considers herself in a position to render such advice to the independent directors. I would be more than happy to try to convert this pro bono request to a fee paying request to you by passing your name along to the Xerox Corporate Secretary if a lawyer is needed to advise the independent directors.
Thank you for your attention to this email.
Sincerely,
Robert Shattuck
From: RDShatt
To: Douglas.Marshall@xerox.com
Sent: 5/15/2008 8:25:38 A.M. Central Daylight Time
Subj: Fwd: May 22, 2008 Xerox Corporate Governance Committee meeting
Dear Mr. Marshall,
I have taken the liberty of communicating directly with the directors and in particular earlier this week sent the below email to Mr. Jordan and Mr. Hunter, for whom I could find email addresses, and used US mail for the other directors and such US mail addresses as I could find that I thought would work for them.
If I have any additional communications I would like to make to the directors, should I send them to you for forwarding, or should I use my direct communication approach?
Thank you.
Sincerely,
Robert Shattuck
From: RDShattTo: vjordan@akingump.comSent: 5/11/2008 2:38:49 P.M. Central Daylight TimeSubj: May 22, 2008 Xerox Corporate Governance Committee meeting
Dear Mr. Jordan,
I am endeavoring to contact directly the directors of Xerox Corporation to inform them of my efforts to protest as loudly as I can against the travesty plaintiffs' lawyers perpetrate on the US economy and US society, and most immediately relative to Xerox and its shareholders and bondholders in the form of the securities class action lawsuit against Xerox which is scheduled to be brought before the Corporate Governance Committee at its May 22, 2008 meeting.
I hope you will review the below email correspondence on this matter. If you do, and if you would like to ask me any questions about what I have done or tried to do, I hope you will do so. You may use the above email address to communicate with me, or you may reach me by telephone at (205) 967-5586.
Thank you very much.
Sincerely,
Robert Shattuck
3812 Spring Valley Circle
Birmingham, AL 35223
(205) 967-5586
From: RDShattTo: jcoffee@law.columbia.edu
CC: Douglas.Marshall@xerox.com, JEskelsen@USChamber.com
Sent: 5/9/2008 10:50:14 A.M. Central Daylight Time
Subj: May 22, 2008 Xerox Corporate Governance Committee meeting
Dear Professor Coffee,
I have importuned that the Xerox Corporate Governance Committee put on the agenda for its May 22, 2008 meeting consideration (or reconsideration) of a proposed settlement in a class action securities lawsuit against Xerox. Besides other things revealed in the below is email correspondence about this matter, I have contacted the Institute for Legal Reform and was referred to an online paper (quoted below) in which your views are discussed about the "circularity" involved in cases such as the Xerox lawsuit.
I would like to solicit your views on some jurisprudential questions. Do you think there is any basis (e.g., due process, arbitrary loss shifting with no rational justification, other legal basis?) on which a judge could dismiss the lawsuit against Xerox? If there might such a basis, do you feel it has been adequately presented to a judge in a comparable lawsuit of which you are aware? Do you have any views about the propriety of Xerox directors approving Xerox entering into the proposed settlement agreement that gives net favorable treatment to some Xerox shareholders and bondholders and net unfavorable treatment to other Xerox shareholders and bondholders in an arguably arbitrary fashion? Is there a conflict for the plaintiffs' lawyers to represent both shareholders (and bondholders) who will have a net gain and also shareholders (and bondholders) who will have a net loss from the settlement? Do you believe there is a basis for Xerox requesting the court to include other Xerox shareholders and bondholders who are not in the plaintiff class who are also real parties in interest and who should be entitled to joined as parties in the lawsuit and be afforded legal representation?
As the below email correspondence indicates, I am trying to solicit a legal expert such as yourself to provide input to the Xerox Corporate Governance Committee (if Sandra Goldstein of Cravath is limited in the representation she is providing), and I would be excited if you were inclined to do that, either on a pro bono or paying basis (if Xerox or the independent directors were willing to retain you).
I very much look forward to hearing something from you in response to this email.
Thank you.
Sincerely,
Robert Shattuck
From: RDShatt
To: Douglas.Marshall@xerox.com
Sent: 5/8/2008 8:33:52 A.M. Central Daylight Time
Subj: May 22, 2008 Corporate Governance Committee meeting
Dear Mr. Marshall,
For your information, set forth below is email correspondence I have had with various persons related to the submission of my email that has been scheduled for the above committee meeting. If I obtain further useful information from my email correspondence, I will pass it on to you. Also, I will probably copy you on further emails I send out on this matter.
Thank you.
Sincerely,
Robert Shattuck
From: RDShatt
To: JEskelsen@USChamber.com
Sent: 5/7/2008 1:56:58 P.M. Central Daylight Time
Subj: Re: Xerox board of directors
Dear Jon,
Would you or Ms. Rickard or anyone else at the Institute or at the Chamber be in a position to tell me which of the below listed Xerox directors might be most "receptive" and "proactive" for me to approach for purposes of trying to raise a ruckus with Judge Thompson?
From Xerox online info: "Our Board has determined that based upon this standard 91% of our directors are independent. The independent Directors are Glenn A. Britt, Richard J. Harrington, William Curt Hunter, Vernon E. Jordan Jr., Hilmar Kopper, Ralph S. Larsen, Robert A. McDonald, N. J. Nicholas, Jr., Ann N. Reese, and Stephen Robert. The only director who is not independent is Anne M. Mulcahy, our Chairman and Chief Executive Officer."
Thank you.
Sincerely,
Robert Shattuck
In a message dated 5/7/2008 1:29:09 P.M. Central Daylight Time, JEskelsen@USChamber.com writes:
Mr. Shattuck,
Neither I nor would other employees here at ILR be in the best position to engage with Xerox in the manner you have suggested. Nor are we in a position to advise you as to how to best ensuring Judge Thompson understands the problems with the case except to say that judges try to get the law right. We are a public policy organization and while we keep our ear to the ground on what is going on in the courts, we do not represent clients before the court and are not in a position to give advice in that capacity. I have passed on your information to Ms. Evans, in our office. She is out of the office today.
Yours,
Jon
From: RDShatt
To: JEskelsen@USChamber.com
Sent: 5/7/2008 1:16:25 P.M. Central Daylight Time
Subj: Re: Xerox class action securities lawsuit
Dear Mr. Eskelsen,
I went to your links and I see that the Institute has specifically focused on the kind of class action lawsuit that is exemplified by Xerox. (I have copied the particular portion of the Institute's paper that discusses this and I have pasted it below.)
I would like Xerox or the Xerox independent directors or someone to raise as loud a ruckus as possible with Judge Thompson about the Xerox class action lawsuit. Is it all pointless to try to do that? Do judges just plain ignore any and all slamming of the idiocies they perpetrate, and do they just blithely go their idiotic ways?
Would you be in a position to give me the name of the Institute's lawyer who handles securities issues and allow me to be in direct communication with her?
Thank you.
Sincerely,
Robert Shattuck
[below boldface is copied and pasted from Institute's paper]
Burden on Investors/Cost ShiftingSecurities class actions impose a burden on investors. The structure of this systemis fundamentally flawed and amounts to no more than a cost shifting process with theaddition of a “tax” which is the legal fees paid in such actions. This system is uniquein that one group of shareholders are generally paying another group of shareholders– amounting to cost shifting. Even if the company has insurance, the adverse effectsin terms of higher insurance rates will be borne by the company’s shareholders.The actual wrongdoers are not paying in these actions because the claims areagainst the existing company and the company is the shareholders. This “circularity”problem affects all cases – even those in which the claim is legitimate. Securitieslitigation thus involves a transfer of wealth from one set of investors to another, witha very substantial percentage – approximately one-third according to the datadiscussed above – skimmed off by plaintiff and defense lawyers. Of the 755 casesstudied in The Economic Reality of Securities Class Action Litigation, plaintiffs’ legal feesamounted to over $4.5 billion. Rather than reliably providing compensation toinvestors, the actual economic benefits to injured investors with legitimate claims areunclear.This notion has been discussed extensively in the academic community. Forexample, Professor Jack Coffee, of Columbia School of Law, has written thatsecurities class actions “impose costs on public shareholders in order to compensatepublic shareholders,” characterizing these lawsuits as a “circular process” with “perverseeffects.”And, Professor Donald Langevoort, of Georgetown University Law School, hasnoted that “[b]y all accounts, nearly all the money paid out as compensation in theform of judgments and settlements comes, one way or another, from investorsthemselves. Little if any of the sum is contributed by those who were the primaryauthors of the fraud; a recent study puts the figure at less than half of one percent.”
In a message dated 5/7/2008 11:04:07 A.M. Central Daylight Time, JEskelsen@USChamber.com writes:
Mr. Shattuck,
I appreciate your continued interest in our work. ILR has been very engaged in looking at securities class action settlements and whether they actually remedy the harms that they allege. I will forward your this information to our lawyer who handles securities issues to see if they can be helpful to her work.
I would point you to our website and the research we have done on this issue highlighting the inefficiencies associated with securities class actions. This information can be found at: http://www.instituteforlegalreform.com/issues/issue.cfm?issue=SLI.
Sincerely yours,
Jon Eskelsen
From: RDShatt
To: jeskelsen@uschamber.com
Sent: 5/7/2008 10:31:30 A.M. Central Daylight Time
Subj: Xerox class action securities lawsuit
Dear Mr. Eskelsen,
I don't want to divert you or Ms. Rickard from the subject matter of my previous email, but I was wondering whether the Institute for Legal Reform would be interested in attempting some timely targeting of a class action securities lawsuit that is of a type that I think is deserving of the strongest and loudest condemnation possible. Maybe the Institute has focused on this type before; maybe not.
I have successfully importuned that the Xerox Corporate Governance Committee put on the agenda for its May 22, 2008 meeting consideration (or reconsideration) of a proposed settlement in a class action securities lawsuit against Xerox. Appended below is email correspondence (and links) that should give you and Ms. Rickard adequate information about this matter.
If I could enlist any aid or input from the Institute for Legal Reform on this Xerox lawsuit, I would be excited to receive it.
Thank you.
Sincerely,
Robert Shattuck
From: RDShattTo: [form of email sent to law professors specializing in class actions]
Sent:
Subj: Pro bono request re Xerox class action securities lawsuit
Dear Professor ______,
I believe one of your areas of focus in civil procedure is class actions.
I have written a letter to The Honorable Alvin W. Thompson of the Connecticut federal district court (which letter you can find here) about a proposed settlement in a Xerox class action securities lawsuit. Further, I have contacted the Xerox Corporate Secretary and have gotten the subject matter of my letter put on the agenda for the Xerox Corporate Governance Committee at its May 22, 2008 meeting.
Among other things, I have solicited the Corporate Governance Committee to consider the manner in which the proposed settlement creates at least three categories of Xerox stockholders and bondholders and what the fiduciary obligations of the directors are to these categories of Xerox stockholders and bondholders.
My pro bono request to you is whether you would give me your views about such fiduciary obligations and whether such obligations can all be properly discharged in an approval by the directors of the settlement agreement. Alternatively, could you refer me to me to a law professor whom you would consider as having special expertise in securities law class actions and who might be interested in responding on my request.
Ms. Sandra Goldstein of Cravath, Swaine & Moore represents Xerox in the litigation and I have put the foregoing questions to her and asked her whether she will be in a position to advise the independent directors on them. Ms. Goldstein has replied that she is not at liberty to discuss the matter with me, so I do not know whether she considers herself in a position to render such advice to the independent directors. I would be more than happy to try to convert this pro bono request to a fee paying request to you by passing your name along to the Xerox Corporate Secretary if a lawyer is needed to advise the independent directors.
Thank you for your attention to this email.
Sincerely,
Robert Shattuck
From: RDShattTo: [form of email sent to members of ABA Class Action and Derivative Suits Committee]
Sent:
Subj: Pro bono request re Xerox class action securities lawsuit
Dear __________,
I am writing to you in your capacity as a member of the who is identified as being in the securities law field.
I have written a letter to The Honorable Alvin W. Thompson of the Connecticut federal district court (which letter you can find here) about a proposed settlement in a Xerox class action securities lawsuit. Further, I have contacted the Xerox Corporate Secretary and have gotten the subject matter of my letter put on the agenda for the Xerox Corporate Governance Committee at its May 22, 2008 meeting.
Among other things, I have solicited the Corporate Governance Committee to consider the manner in which the proposed settlement creates at least three categories of Xerox stockholders and bondholders and what the fiduciary obligations of the directors are to these categories of Xerox stockholders and bondholders.
My pro bono request to you is whether you would give me your views about such fiduciary obligations and whether such obligations can all be properly discharged in an approval by the directors of the settlement agreement.
Ms. Sandra Goldstein of Cravath, Swaine & Moore represents Xerox in the litigation and I have put the foregoing questions to her and asked her whether she will be in a position to advise the independent directors on them. Ms. Goldstein has replied that she is not at liberty to discuss the matter with me, so I do not know whether she considers herself in a position to render such advice to the independent directors. I would be more than happy to try to convert this pro bono request to a fee paying request to you by passing your name along to the Xerox Corporate Secretary if a lawyer is needed to advise the independent directors.
Thank you for your attention to this email.
Sincerely,
Robert Shattuck
Sunday, April 20, 2008
Letter to Judge Thompson
April 20, 2008
The Honorable Alvin W. Thompson
United States District Court
District of Connecticut
United States Courthouse
Abraham Ribicoff Federal Building
450 Main Street
Hartford, CT 06103
Re: Carlson v. Xerox Corporation. 3:00-CV-1621 (AWT)
http://www.gilardi.com/xeroxsettlement
"Error" in litigation
Dear Judge Thompson,
I believe there is a significant "error" in this litigation. If I am correct, I do not know for certain whether you are aware of what that "error" is. I believe that you should be aware of what the "error" is and, if you are, I would assume that you very well intend for the consequences of the "error" to in fact happen. I am writing this letter to try to be sure about your position relative to the "error." If the "error" is intentional and intended on your part, I want to call the matter to the attention of the Senate and House Judiciary Committees for possible legislation to prevent this kind of "error" in the future. Alternatively, there is a possibility that you do not fully understand the "error," and that, if you do get a better understanding, you may consider dismissing the litigation against Xerox, which is what I would do if I were the judge in the case.
Here is the "error":
Some Xerox stockholders and bondholders (collectively, the "Loss Parties") indeed experienced significant financial losses (possibly aggregating multi-billions of dollars) if the allegations in the litigation are true. Virtually on a dollar for dollar basis, such financial losses experienced by the Loss Parties if the allegations are true are windfall gains that were obtained by other Xerox stockholders and bondholders (collectively the "Windfall Gain Parties"). Those windfall gains are already in the pockets of the Windfall Gain Parties and will not be taken out of their pockets by this litigation. Instead, in and through the settlement, there will be shuffled around funds among the Loss Parties and among other Xerox stockholders and bondholders who did not suffer losses (or have windfall gains) (the "Innocent Bystander Parties"), with a net effect that some Loss Parties will have their losses increased, some Loss Parties will have their losses decreased, and some losses will be shuffled from Loss Parties onto Innocent Bystander Parties. This net effect will happen in a random way and to a random degree for the Loss Parties and the Innocent Bystander Parties, although some generalizations might be possible to the effect that Loss Parties with greater losses will be more likely to have those losses reduced, Loss Parties with smaller losses are more likely to have those losses increased, and Innocent Bystander Parties who did not suffer losses will have some of the losses of Loss Parties shuffled onto such Innocent Bystander Parties.
Do you agree with the foregoing analysis, your Honor? If you agree with that analysis, is that what you think this litigation properly should do, to wit, create three categories of Xerox stockholders and bondholders, to wit, Windfall Gain Parties, Loss Parties, and Innocent Bystander Parties, all of whom are innocent of wrongdoing, allow the Windfall Gain Parties to walk away with their very large windfall gains that came out of the pockets of the Loss Parties, and then shuffle funds around among Loss Parties and Innocent Bystander Parties so the losses of some Loss Parties are increased, the losses of some Loss Parties are decreased, and some losses of the Loss Parties are shunted off to be borne by the Innocent Bystander Parties? Maybe you fully understand that, your Honor, and maybe that is what you think that this litigation is properly intended to do and should do.
On the other hand, you could say to the plaintiffs, "Look you may have experienced billions of dollars of losses if the allegations are true, but, if you did, those losses of yours were windfall gains to other Xerox stockholders and bondholders, the money you lost is now in their pockets, they are not parties to this litigation, and neither the law nor this Court can help you get it out of their pockets and returned to you. All this Court can do is shuffle your losses around among yourselves, so that some of you will have your losses decreased, some of you will have your losses increased, and also this Court can drag in other Xerox stockholders and bondholders who neither had gains or losses and have them bear some of your losses. This Court is not going to do that, and it would be proper for you to call this to the attention of Congress for Congress to create a legal remedy so that, in a situation such as this, you can recover from the persons who had windfall gains that came from your losses and get the money back from their pockets."
That, your Honor, is what I would do in this case, and I would dismiss the litigation against Xeroxif I were the judge in this case.
I believe my foregoing analysis is correct. I am going to contact some "experts" to see if they agree with me. I will report back to you what these experts have to say, hopefully before the July 1 objection deadline in this litigation. I will be keeping a record of my progress with the experts, which record will be accessible on the internet at the following link:
K._Xerox class action lawsuit
Thank you.
Sincerely,
Robert Shattuck
The Honorable Alvin W. Thompson
United States District Court
District of Connecticut
United States Courthouse
Abraham Ribicoff Federal Building
450 Main Street
Hartford, CT 06103
Re: Carlson v. Xerox Corporation. 3:00-CV-1621 (AWT)
http://www.gilardi.com/xeroxsettlement
"Error" in litigation
Dear Judge Thompson,
I believe there is a significant "error" in this litigation. If I am correct, I do not know for certain whether you are aware of what that "error" is. I believe that you should be aware of what the "error" is and, if you are, I would assume that you very well intend for the consequences of the "error" to in fact happen. I am writing this letter to try to be sure about your position relative to the "error." If the "error" is intentional and intended on your part, I want to call the matter to the attention of the Senate and House Judiciary Committees for possible legislation to prevent this kind of "error" in the future. Alternatively, there is a possibility that you do not fully understand the "error," and that, if you do get a better understanding, you may consider dismissing the litigation against Xerox, which is what I would do if I were the judge in the case.
Here is the "error":
Some Xerox stockholders and bondholders (collectively, the "Loss Parties") indeed experienced significant financial losses (possibly aggregating multi-billions of dollars) if the allegations in the litigation are true. Virtually on a dollar for dollar basis, such financial losses experienced by the Loss Parties if the allegations are true are windfall gains that were obtained by other Xerox stockholders and bondholders (collectively the "Windfall Gain Parties"). Those windfall gains are already in the pockets of the Windfall Gain Parties and will not be taken out of their pockets by this litigation. Instead, in and through the settlement, there will be shuffled around funds among the Loss Parties and among other Xerox stockholders and bondholders who did not suffer losses (or have windfall gains) (the "Innocent Bystander Parties"), with a net effect that some Loss Parties will have their losses increased, some Loss Parties will have their losses decreased, and some losses will be shuffled from Loss Parties onto Innocent Bystander Parties. This net effect will happen in a random way and to a random degree for the Loss Parties and the Innocent Bystander Parties, although some generalizations might be possible to the effect that Loss Parties with greater losses will be more likely to have those losses reduced, Loss Parties with smaller losses are more likely to have those losses increased, and Innocent Bystander Parties who did not suffer losses will have some of the losses of Loss Parties shuffled onto such Innocent Bystander Parties.
Do you agree with the foregoing analysis, your Honor? If you agree with that analysis, is that what you think this litigation properly should do, to wit, create three categories of Xerox stockholders and bondholders, to wit, Windfall Gain Parties, Loss Parties, and Innocent Bystander Parties, all of whom are innocent of wrongdoing, allow the Windfall Gain Parties to walk away with their very large windfall gains that came out of the pockets of the Loss Parties, and then shuffle funds around among Loss Parties and Innocent Bystander Parties so the losses of some Loss Parties are increased, the losses of some Loss Parties are decreased, and some losses of the Loss Parties are shunted off to be borne by the Innocent Bystander Parties? Maybe you fully understand that, your Honor, and maybe that is what you think that this litigation is properly intended to do and should do.
On the other hand, you could say to the plaintiffs, "Look you may have experienced billions of dollars of losses if the allegations are true, but, if you did, those losses of yours were windfall gains to other Xerox stockholders and bondholders, the money you lost is now in their pockets, they are not parties to this litigation, and neither the law nor this Court can help you get it out of their pockets and returned to you. All this Court can do is shuffle your losses around among yourselves, so that some of you will have your losses decreased, some of you will have your losses increased, and also this Court can drag in other Xerox stockholders and bondholders who neither had gains or losses and have them bear some of your losses. This Court is not going to do that, and it would be proper for you to call this to the attention of Congress for Congress to create a legal remedy so that, in a situation such as this, you can recover from the persons who had windfall gains that came from your losses and get the money back from their pockets."
That, your Honor, is what I would do in this case, and I would dismiss the litigation against Xeroxif I were the judge in this case.
I believe my foregoing analysis is correct. I am going to contact some "experts" to see if they agree with me. I will report back to you what these experts have to say, hopefully before the July 1 objection deadline in this litigation. I will be keeping a record of my progress with the experts, which record will be accessible on the internet at the following link:
K._Xerox class action lawsuit
Thank you.
Sincerely,
Robert Shattuck
Tried this email in March/April
From: RDShatt
To: [previously emailed law professors]
Sent:
Subj: How do you educate judges about plaintiffs' lawyers?
Dear Professor ____________,
In 2004 I endeavored to enlist the expertise of yourself and other tort law professors to enlighten the voting public about plaintiffs' lawyers and tort reform. That was unfortunately not successful. See my blog at D. Law Professors .
Last year I received notice I was a member of the plaintiff class in a class action lawsuit against credit companies and banks related to currency conversion fees in foreign transactions. See In re Currency Conversion Fee Antitrust Litigation. In September I wrote a letter to the judge in the case, one William H. Pauley, III (which letter you can read at Letter to Judge Pauley), in which I said, among other things, he should be ashamed if he puts his stamp of approval on the lawyer shenanigans in the case. The hearing on final approval was scheduled for March 31, 2008.
Progress is slowly being made against plaintiffs' lawyers. It would be nice if being right on a matter of social, legal and economic policy allowed for swifter change, but too many countervailing factors prevent that, and it is simply necessary to keep pushing the right case wherever it can possibly make a difference. In this one, judges can make a difference. I sent my letter to Judge Pauley and I would like to convey a similar message to other judges.
The views of tort law professors (even if limited to issue framing) ought to have some effect with judges and certainly more effect than anything I can say.
If you can offer me any assistance or suggestions in communicating with judges on this subject, I would very much like to hear from you .
Thank you.
Sincerely,
To: [previously emailed law professors]
Sent:
Subj: How do you educate judges about plaintiffs' lawyers?
Dear Professor ____________,
In 2004 I endeavored to enlist the expertise of yourself and other tort law professors to enlighten the voting public about plaintiffs' lawyers and tort reform. That was unfortunately not successful. See my blog at D. Law Professors .
Last year I received notice I was a member of the plaintiff class in a class action lawsuit against credit companies and banks related to currency conversion fees in foreign transactions. See In re Currency Conversion Fee Antitrust Litigation. In September I wrote a letter to the judge in the case, one William H. Pauley, III (which letter you can read at Letter to Judge Pauley), in which I said, among other things, he should be ashamed if he puts his stamp of approval on the lawyer shenanigans in the case. The hearing on final approval was scheduled for March 31, 2008.
Progress is slowly being made against plaintiffs' lawyers. It would be nice if being right on a matter of social, legal and economic policy allowed for swifter change, but too many countervailing factors prevent that, and it is simply necessary to keep pushing the right case wherever it can possibly make a difference. In this one, judges can make a difference. I sent my letter to Judge Pauley and I would like to convey a similar message to other judges.
The views of tort law professors (even if limited to issue framing) ought to have some effect with judges and certainly more effect than anything I can say.
If you can offer me any assistance or suggestions in communicating with judges on this subject, I would very much like to hear from you .
Thank you.
Sincerely,
Previously Tyco; now Xerox
Last year a Tyco class action lawsuit got my attention, which I wrote about here and posted on The Wall Street Journal law blog here. The same thing is now happening in a Xerox class action lawsuit. The deadline for objecting is July 1, 2008. I will be spending time on the Xerox lawsuit, starting with a letter to the judge.
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