The Week from Heck

A week ago, I pushed an OSC (Order to Show Cause) to stop American Express (Amex) from sending out their proxy without my shareholder proposal on stopping discrimination in Amex by having a "Truth Commission" study the problem of Amex's Code of Conduct.

Amex opposed it, and it went before USDJ Koeltl in SDNY (Southern District of New York) federal court. The lead Amex attorney, Ms. Jean Park of Kelley Drye Warren, asked the Judge if she could bring in a "securities lawyer" since her knowledge of securities was "rudimentary." She brought in two partners from Skadden, Arps and Flom. My lead attorney is myself, and I represented my OSC against Joe Sacca of Skadden, who said (words to the effect of -- I have yet to get the transcript) "Amex has never stopped Peter Lindner from communicating with the SEC." To which I replied: "In 2007, Amex got a federal court order from a judge to ask me to withdraw my SEC filing, to take down my website, to not communicate with the SEC, and not attend the Amex April 2007 annual meeting."

So, Amex was probably not prepared.

The judge said I did not prove I had a likelihood of winning the OSC, and that I should have come before him in January 2009. The federal judge then set 3 deadlines for us:

1. Fri, Apr 17: Amex must respond to the OSC (Order to Show Cause) why they should not be compelled to put in my shareholder proposal in their proxy statement
2. Tue, Apr 21: Peter Lindner (that's me) has to reply to Amex's response
3. Thu, Apr 23 at 4:30 pm: Amex and Lindner appear before him at the US SDNY Courthouse at 500 Pearl Street, NY, NY to argue their case. The Courtroom is open if you want to attend: it's 3 blocks from the City Hall subway exit on the 4/5/6 subway line.

Amex said they wanted a slight delay, and the Judge admonished Ms. Park that he was not going to let them "moot" my OSC by having my motion argued after the Mon, Apr 27, shareholder meeting. He gave Amex a half hour to decide if they wanted to speed up the schedule, and they could confer with me. Of course, Amex refused to confer with me, and a half hour later told The Court that they would keep to his proposed schedule.

By the way, did I mention I have a day job (9-5) too?

Then I had to get out 130 copies of my Amex proxy and shareholder proposal to Broadridge, for mailing to shareholders. Broadridge informed me I had to bring it to them personally, since for insurgent shareholders, they do not print versions. I went to the Post Office with a 15 pound box of proxies/voting forms for overnight delivery (Good job, USPS: they have tracking on packages).

On Friday, April 17 was the deadline for Amex to respond to the OSC, which they did with a "memo of law" that had 17 attachments and was about 1-2 inches thick. It mentioned 34 cases, which I know, since I had to go to the Baruch College library to look them up, and email them to myself. (PS: Baruch College has a "friends of the library" plan for $500 that gives you access to their PCs for Lexis/Nexis among other databases.)

Monday, April 21, I had to prepare for my Tuesday reply to Amex's April 17 brief.

The Judge also said I should ask the lower judge (Magistrate Judge who is handling "discovery" of documents for the trial of Lindner v Amex) if I could get documents released from confidentiality so I could present them to the SEC. The Judge issued an Order that said I could on Monday, so Amex did two things:

1. They asked that the Judge not allow me to use transcripts to the SEC which show that Amex did breach my June 2000 agreement with Amex, and that they admitted it.
2. Amex wrote a letter (as opposed to a motion) to sanction me $7,000 for filing a frivolous motion to have Ash Gupta answer all 15 of the questions I was allowed by the Judge to ask him. Mr. Gupta, President of Banking at Amex, is Qing's direct boss. I asked him if he knew of Qing's actions in violation of the June 2000 agreement which Mr. Gupta signed, and what did he do with that knowledge. Mr. Gupta only answered 1 of the 15 questions. Amex further said I filed that motion in bad faith. Strategy: Amex wrote that as a letter instead of as a motion, so it would not appear on the record, in case I appealed to the higher court. And the Judge can ignore it. However, if he decides to agree with Amex, I could get fined $7,000, and that is surely distracting to me while I am preparing for Amex's Apr 27 shareholder meeting in North Carolina and my Apr 23 appearance before the Judge in NYC.

I read in "Judiciary Law 487 Targets Attorneys in Legal Malpractice (March 9, 2009) that NY Judiciary 487 to NY cases. There's a great case Feb2009 where this law prohibits a lawyer from presenting information with intent to deceive the court, whether it's successful or unsuccessful. This case was certified by the 2nd Circuit (Federal Court) overseeing NY, e.g. SDNY (Southern District of NY). Apparently the law dates back 740 years (not a typo: since is the original law was in 1275). What gets me is how readable the words are, and how they are almost identical.

"[a]n attorney or counselor who: . . . is guilty of any deceit or collusion,or consents to any deceit or collusion, with intent to deceive the court or any party . . . [i]s guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action."

Instead, as the Amalfitanos point out, section 487 descends from the first Statute of Westminster, which was adopted by the Parliament summoned by King Edward I of England in 1275. The relevant provision of that statute
specified that

"if any Serjeant, Pleader, or other, do any manner of Deceit or Collusion in the King's Court, or consent [unto it,] in deceit of the Court [or] to beguile the Court, or the Party, and thereof be attainted, he shall be imprisoned for a Year and a Day, [*3]and from thenceforth shall not be heard to plead in [that] Court for any Man; and if he be no Pleader, he shall be imprisoned in like manner by the Space of a Year and a Day at least; and if the Trespass require greater Punishment, it shall be at the King's Pleasure"

(3 Edw, c 29; see generally Thomas Pitt Taswell-Langmead, English Constitutional History 153-154 [Theodore F.T. Plucknett ed, Sweet & Maxwell, 10th ed 1946]).

My question is: does this ancient law, which was reviewed and updated in 1965 in NY, apply to Federal Cases that are tried in NY?

I'd appreciate hearing an answer.

This also raises the question whether the lawyer needs warned 21 days in advance (as per the Federal Rules of Civil Procedure 11), something the NY law does not require. It's almost as if NY had better, tougher laws on lying to the court than the Federal Government.

This is not an academic point: my case 06cv3834 in SDNY was initially filed in NY State, and Amex moved it to SDNY. Should moving it to federal court allow the lawyer to have a 21 day safe harbor?

Truth Commission -- for the USA; Can Amex be far behind?

In an article by Kate Phillips in the NY Times, there's a call for a Truth Commission in the US Senate. This is the type of "thing" I'd like for American Express, so that it can clean up its past transgressions. In South Africa, the Truth Commission helped bring together (what I thought was) a hopeless country. In the less extreme, the US can resolve when and if we Americans should use torture, but only by knowing what has happened in the past. Similarly, and again in a much less extreme way, Amex could see if they/we can resolve its past transgressions and stop it from happening in the future.

The concept is that 'Senator Patrick Leahy, the Senate Judiciary Committee chairman and one of several Democratic senators who challenged Bush administration policies over the last eight years, called today for a truth commission to conduct inquiries into legal oversight at the Justice Department and various other decisions about interrogation procedures and other practices. ... Senator Leahy suggested the formation of a truth commission as a compromise between those Bush critics who want to prosecute former administration officials and Bush loyalists who are opposed to any inquiries: '

"There is another option that we might also consider, a middle ground. A middle ground to find the truth. We need to get to the bottom of what happened — and why — so we make sure it never happens again.One path to that goal would be a reconciliation process and truth commission. We could develop and authorize a person or group of people universally recognized as fair minded, and without axes to grind. Their straightforward mission would be to find the truth. People would be invited to come forward and share their knowledge and experiences, not for purposes of constructing criminal indictments, but to assemble the facts.

If needed, such a process could involve subpoena powers, and even the authority to obtain immunity from prosecutions in order to get to the whole truth. Congress has already granted immunity, over my objection, to those who facilitated warrantless wiretaps and those who conducted cruel interrogations. It would be far better to use that authority to learn the truth.
There is another option that we might also consider, a middle ground. A middle ground to find the truth. We need to get to the bottom of what happened — and why — so we make sure it never happens again.One path to that goal would be a reconciliation process and truth commission. We could develop and authorize a person or group of people universally recognized as fair minded, and without axes to grind. Their straightforward mission would be to find the truth. People would be invited to come forward and share their knowledge and experiences, not for purposes of constructing criminal indictments, but to assemble the facts.

If needed, such a process could involve subpoena powers, and even the authority to obtain immunity from prosecutions in order to get to the whole truth. Congress has already granted immunity, over my objection, to those who facilitated warrantless wiretaps and those who conducted cruel interrogations. It would be far better to use that authority to learn the truth. "

(February 9, 2009, 5:30 pm) Judiciary Chairman Calls for Commission to Delve into Bush Practices

http://thecaucus.blogs.nytimes.com/2009/02/09/judiciary-chairman-calls-for-commission-to-delve-into-bush-practices/

Starting to get interesting in "Lindner v Amex"

I'd like to limit this blog to be viewed by anyone in the world, except those lawyers from KDW

1. Kelley Drye & Warren LLP ("KDW") or
2. anyone employed by them or
3. anyone who gives my blogs to them.

I have a lawsuit against American Express, and it is in US Federal Court SDNY (Southern District of New York). It is on Pacer 2006cv3834 (Pacer="Public Access to Court Electronic Records "). Amex's lawyers are: KDW; my lawyer is: me. (I do not have a law degree, so I am representing myself pro se.)

KDW is a 300+ lawyer firm in "Lindner v Amex & Qing Lin".

I will allow anyone in American Express ("Amex") to view my blog, but they (or anyone else) can not give a copy to Kelley Drye & Warren LLP, without a Court Order or my express written, notarized permission. Hopefully, that will keep the people informed, but the lawyers of KDW in the dark.

So, why is it starting to get interesting in "Lindner v Amex"?

Well, for one, I just deposed and videotaped the "named defendant" in the case: Qing Lin. However, one of the Judges in the case confiscated the videos, and "So Ordered" that the videos can only be used at the trial (and maybe not even then), and that the videos have "no other legitimate use." (click on photo below to see the full, handwritten text of his decision)

Hey, if there are any friendly lawyers or basically anyone who is knowledgeable, perhaps you can help me come up with some other legitimate uses of videos of people in depositions in trial. Like, I wondered if someone had videotaped Ken Lay, now deceased President of Enron, it might have been interesting to get his sworn testimony on Enron. And while the DVDs ought to be immediately available for me (I paid for them, but they were confiscated by the Judge), I can't review which documents I requested from Qing's sworn deposition and request them quickly. Thus, I feel there are other, perhaps many, legitimate uses of videos.

PS: I appealed the Judge's order to the next higher level Judge, and anxiously await his ruling.

PPS: If there is a public interest group or media group (NY Times: I'm talking to you) who wants to do a story on this: I'm available and willing to provide tons of documents, subject to Court constraints.

[click on image to enlarge]