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<FILENAME>RedactedLindnervAmEx032907.txt
<DESCRIPTION>REDACTED TRANSCRIPT OF 2007 W AMEX RESTRICTIONS ON LINDNER TO SEC
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
.


AMERICAN EXPRESS CORPORATION


PETER W. LINDNER, . Case No. 06cv3834 (JGK-THK)
.
Plaintiff, .
.
vs. .
.
New York, New YorkThursday, March 29, 2007

.
and QING LIN, .
.
Defendants. .
. . . . . . . . . . . . . . . .


TRANSCRIPT OF SETTLEMENT CONFERENCE
BEFORE THE HONORABLE THEODORE H. KATZ
UNITED STATES DISTRICT JUDGE


APPEARANCES:


For the Plaintiff:
Thomas John Luz, Esq.
PEARCE & LUZ, LLP
1500 Broadway, 21st Floor
New York, New York 10036


For the Defendants:
Jean Young Park, Esq.
KELLEY, DRYE & WARREN, LLP (NY)
101 Park Avenue
New York, New York 10178


 Jason K. Brown, Esq.
AMERICAN EXPRESS CO.
American Express Tower
200 Vesey Street
New York, New York 10285


Audio Operator:
Electronically Recorded
by Court Personnel


Transcription Company:
Rand Transcript Service
80 Broad Street, Fifth Floor
New York, New York 10004


(212) 504-2919
www.randtranscript.com
Proceedings recorded by electronic sound recording, transcript
produced by transcription service.



(Proceedings commence.)


THE COURT: -- and the parties in Lindner vs. American
Express, 06-cv-3834 have been here since was it 10 or 11? 10
this morning.


After much discussion, I'm pleased that they've worked
out the terms of an agreement, which we're going to put on the
record now. It's going to be embodied in a writing that I
expect to be executed sometime next week.


Ms. Park is going to take -- you're going to draft the
document and send it to Mr. Luz?


MS. PARK: Yes, Your Honor.


THE COURT: Okay. Ms. Park, do you want to outline
the terms of the agreement?


MS. PARK: Yes, Your Honor. The material terms of the
settlement agreement and relief will include the issuance of -or
settlement payment of xxxxxx to Mr. Lindner, which will
include his attorneys' fees. And this payment will issue on a
1099 basis. To the extent that Mr. Lindner would like his
attorneys' fees of xxxxxx paid in a separate check, we agree
and are amenable to issuing a separate check to Thomas J. Luz,
as attorney for Peter W. Lindner, and a Form 1099 would issue
for that, I believe it's $xxxxx, to Mr. Luz or his firm, as
well as Mr. Lindner.


We would want, obviously, a stipulation of
discontinuance to be filed with the Court within ten days of



Mr. Luz's receipt of a signed agreement and settlement of
payments from American Express and, in exchange for which, we
would like some standard clauses: The agreement to withdraw
any and all pending or other charges; a non-admission
provision; comprehensive release of any and all claims up
through the date of the execution of that release; and a no-
application and no re-employment provision which would include
-- which would prohibit or preclude Mr. Lindner from working
for the company or any of its subsidiaries or affiliated
companies in any capacity, whether as an employee or an
independent contractor or consultant. He would also agree that
we would -- if he became employed in violation of this
provision, that we would have the immediate right to terminate
his employment.


This no-employment and no-application provision would
not preclude Mr. Lindner from working as a consultant for a
company who does business with American Express; it would
simply preclude him from working on any American Express of
American Express affiliate project.


We would also agree -- the company would agree, in
exchange for -- also, we -- I'm sorry.


The company would also require Mr. Lindner's agreement
to irrevocably -- with respect to Mr. Lindner's shareholder
activities -


MR. BROWN: And I'll read this. This is Jason Brown,



counsel for American Express.


That Mr. Lindner, acting alone or in concert, directly
or indirectly, will not submit any shareholder proposal under
Rule 14(a)(8) under the Securities and Exchange Act of 1934, or
any other rule under that Act, as amended, or any successor
rule;


He will not under American Express Company's bylaws
nominate himself or anyone else to run for board of directors;


That he cannot bring any item for action before any
meeting of shareholders of American Express Company;


He cannot attend any shareholders meetings;


He cannot engage in any solicitation of proxies under
any regulation or rule of the Securities Exchange Act of 1934
in opposition to the company's own proxy solicitation;


He cannot request a shareholder list under any
Securities laws, being federal laws or state laws;


He must remove his website regarding his proxies or
any, I guess, shareholder activity and will not in the future
post any such website.


MS. PARK: Or engage in any disparagement of the
company, including disparaging blogs on the internet, in
exchange for which we would agree to provide Mr. Lindner with a
letter addressed to Fisher Jordan, and that letter would
provide:


"Dear Sirs, please be advised that Peter Lindner and



American Express were parties to an agreement whereby American
Express agreed to instruct and direct the following company
employees not to disclose any information regarding Mr.
Lindner's employment or termination of employment from the
company to any person outside of the company, and to direct all
requests for references or inquiries received by such employees
regarding Mr. Lindner to the appropriate human resource
individuals: Qing Lin. To the extent Mr. Lin said anything
about Peter Lindner's employment, other than referring him to
human resources, we regret such statement. Sincerely, American
Express Human Resources."


In addition -


MR. LINDNER: I'm sorry. Can you read that last line
there, the -


THE COURT: To the extent?


MS. PARK: Yes. "To the extent Mr. Lin said anything
about Peter Lindner's employment, other than referring him to
human resources, we regret such statement."


MR. LINDNER: Okay.


MS. PARK: In addition, the company agrees to provide
-- furnish Mr. Lindner with a neutral letter of reference which
will state:


"To whom it may concern: This is to confirm that
Peter W. Lindner was employed by American Express from --"
whatever start date he became employed to whatever date his



termination was -- "as a computer programmer, senior manager.
Mr. Lindner's annual salary at the time of his separation from
the company's employ was 75,000. Sincerely, American Express
Human Resources."


In addition, the company has committed to use its best
efforts to determine whether Qing Lin had any communication
with a -- his name is David Lin?


MR. LUZ: (Unidentified.) Yes.


MS. PARK: David Lin at CitiGroup. Mr. Lindner has
agreed to provide the company, by and through his attorney Tom
Luz, with the CitiGroup telephone numbers and a period of time,
a discreet period of time over which he believes Mr. Lin, Qing
Lin would have spoken with David Lin from CitiGroup.


Mr. Brown has agreed to then inquire of Mr. Lin
whether any such -


MR. BROWN: Which Lin?


MS. PARK: Will inquire of Qing Lin whether any such
communication with David Lin took place and, also, to review
Mr. Lin's telephone records to the extent that such review is
feasible.


In the event that the company determines that a
conversation between Qing Lin and David Lin took place, the
company would so advise Mr. Lindner by and through his attorney
and will agree to issue to David Lin at CitiGroup the following
letter:



"Dear Mr. David Lin: Please be advised that Peter
Lindner and American Express were parties to an agreement
whereby American Express agreed --" should I read the entire
paragraph again?


MR. LUZ: No, I think it's -


MR. BROWN: If it's in the same form as -


THE COURT: It's the same letter as it -


MS. PARK: It's the same letter, same form, that we
would be issuing to Fisher Jordan.


MR. LUZ: That's fine, thank you.


MR. LINDNER: And it might also be to that other
manager whose name just escapes me. I'm sorry.


MS. PARK: No, it -


MR. LINDNER: At CitiGroup.


MS. PARK: No. There's one person and one person only


that is CitiGroup. That is David Lin.
MR. LINDNER: No. It's Alan Katz (phonetic) or Alan -
MR. LUZ: There was one other person that we were
supposed to get you the name of.


MR. LINDNER: Remember? And I said I couldn't find -but
he was the boss so I said, you know, David Lin might have
already acted in violation of the EEOC rules and violated -so,
you know, that's the person that -- I think it's Alan Katz,
but I forget his name.



MS. PARK: So what are we -


MR. LINDNER: You would be writing the identical
letter to the second person.


THE COURT: If he had communication with him.


MR. LINDNER: If he had communicated -- if Qing admits
it or if Qing says it didn't happen and it turns out he did.


THE COURT: So you would be ascertaining whether Qing
Lin had any contact with either David Lin or Alan -


MR. LUZ: Okay. Can we go off the record for one
second?


THE COURT: What's his name?


MR. LINDNER: It might be Alan Kap -- Alan Katz. I
forget.


MR. LUZ: We'll get you the information.


THE COURT: Do you want to -- can you stop the tape
for a minute?


(Recess taken.)


(Proceedings resume.)


MR. LINDNER: Are we on the record again?


THE COURT: Yes.


MS. PARK: We will agree, as per the settlement of
June 2000, we will re-commit to directing and instructing -actually,
we didn't finalize that -- the list of employees. We
will agree to commit to instructing and directing the list of
employees, presumably, Ash Gupta (phonetic), Qing Lin, Jason



Brown, and Harold Schwartz, not to disclose any information
regarding Mr. Lindner's employment or the termination of that
employment, and we will also direct these individuals so listed
to forward any requests for references or inquiries from
prospective employers to human resources.


We will further commit that we will agree only to
disclose Mr. Lindner's dates of employment, positions held, and
final salary in response to any inquiries from prospective
employers.


We will require of Mr. Lindner a commitment to direct
any and all prospective employers and -- whether he's being
looked at as a consultant or a regular employee, any
prospective employer to refer to human resources. And we will
be providing Mr. Lindner with a 1-800 number which we expect
him to agree to use when advising prospective employers of
reference information from American Express.


MR. LINDNER: Can you repeat that because, you know,
I'm not allowed to call that 800 number. I tried calling it
and they don't speak to the employees. They only speak to
employers, and they have to pay money. So -


THE COURT: That's what the requirement is, is that's
the number you're to give the prospective employer.


MR. LINDNER: Yeah. I have no problem giving it. But
I'm -- you know, if they ask about whom, you know, who I work
with, I'm not going to, you know, lie, or I'm not going to



withhold the name of Qing Lin or anything like that.


THE COURT: That was not requested in that provision.


MR. LUZ: That's not part of the -- yeah. That was
never part of the agreement.


MR. LINDNER: Okay. The -


MR. LUZ: Let her finish, please.


MR. LINDNER: Okay. I thought she said that already.


MR. LUZ: Let her finish.


(Counsel confer.)


MS. PARK: The company, finally and further, agrees to
a prevailing party provision which will provide that if the
company breaches in any material aspect the neutral reference
provisions of the agreement, and Mr. Lindner thereafter brings
suit as a result of such material breach and prevails at trial,
the company would agree to pay Mr. Lindner on top of whatever
contract damages he would have a liquidated damage amount of
$xxxxx.


THE COURT: Anything else?


MR. LUZ: Just that the terms that were discussed on
the record, or the language used, may be modified by the
attorneys in writing.


MS. PARK: Well, specifically, with respect to the
cease and desist, the standstill provision, which we need to -


THE COURT: Yeah. There's some detail they need to
get from people who aren't there today, but that will be worked



out with the attorneys.


MS. PARK: Right. But the letters as read into the
record, those are final. The verbiage in the letters to Fisher
Jordan, the neutral reference, that language is final.


THE COURT: Did you also indicate that the terms of
this agreement would be maintained as confidential?


MS. PARK: Yes. There would be -- all the other
standard terms and conditions of the agreement would be -- I
guess of the prior agreement. So there would be the non-
admission; there would be a requirement that the agreement be
kept confidential. I see there's an indemnification provision
and a hold-harmless provision. If the taxing authorities
determine that we have not properly characterized the
settlement payment, we would ask that that indemnification
provision also apply to this agreement.


We would want a no-further-consideration provision and
choice of law provision, State of New York, and -


MR. LUZ: Your Honor, would the Court retain
jurisdiction for enforcement of this agreement?


THE COURT: Well, this is what we're going to do, if
that's what you want. That would have to, I guess, be in the
stipulation of discontinuance. But if you want the agreement
itself to be confidential, then the Court can't really sign the
agreement.


MR. LUZ: But they could drop the confidentiality.



MR. BROWN: That's not going to happen.


MS. PARK: No.


THE COURT: So what you would do is, you know, you
have a confidential settlement agreement, you have a separate
stipulation of discontinuance, and if the parties are agreeable
that any violation of the agreement the Court would retain
jurisdiction to enforce the terms of the agreement, that could
be in the stipulation that Judge Koeltl signs, without him
having to sign the actual agreement so you can maintain the
confidentiality of the agreement.


MS. PARK: We would be amenable to that, Your Honor.


MR. LUZ: Okay, good. Thank you.


THE COURT: Anything else?


MR. LUZ: We have -- no.


Your Honor, those are acceptable to us. As Mr. Brown
said, we'll work out the language in the agreement.
THE COURT: Okay. So, Mr. Lindner -(
Counsel confer.)
MR. LUZ: Why don't we see what you draft, and if
there's anybody we think of, we'll add to the list.
THE COURT: So, Mr. Lindner, are these terms
acceptable to you?


MR. LINDNER: Yes. I mean, as you said, both sides
walk away unhappy. I'm certainly unhappy, but I see the merit
in what you said in that it would -- you know, I can get on



with my life.


THE COURT: So you're agreeing to this?


MR. LINDNER: Yes, I am.


THE COURT: Okay. And, Mr. Brown, on behalf of
American Express, you're agreeing to the terms of this
agreement?


MR. BROWN: Yes, Your Honor.


THE COURT: Okay. I'm very happy that after all this
time you were able to work it out, and what I'll tell Judge
Koeltl is that he should expect, hopefully, a stipulation by
the end of next week. And let me know if there's any issues,
okay?


(Proceedings concluded.)


*****


CERTIFICATION


I certify that the foregoing is a correct transcript
from the electronic sound recording of the proceedings in the
above-entitled matter to the best of my knowledge and ability.



(Stamp comment
Cathy Steve
4/3/2007 2:11:38 PM
blank)
______________________________________ April 3, 2007
Cathryn Lynch, N.J. Cert. No. 565
Certified Court Transcriptionist
For Rand Transcript Service, Inc.



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