home
***
CD-ROM
|
disk
|
FTP
|
other
***
search
/
AOL File Library: 9,300 to 9,399
/
9300.zip
/
AOLDLs
/
Legal Documents
/
Fortune Libel Complaint
/
GUT.txt
next >
Wrap
Text File
|
2014-12-11
|
13KB
|
275 lines
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------------------X
:
JOHN H. GUTFREUND, : Index No. 95-109669
Plaintiff, :
:
-against- : Complaint
:
TIME INC., :
Defendant. :
:
--------------------------------X
Plaintiff John H. Gutfreund, by his attorneys,
Howard, Darby & Levin, for his Complaint alleges as follows:
1. This is an action for defamation and libel.
2. Plaintiff John Gutfreund is the former
Chairman of Salomon Inc., a worldwide securities firm. He now
works as an adviser in international securities and financial
transactions.
3. Fortune magazine is a biweekly publication of
Defendant Time Inc. Fortune is one of the preeminent
business publications in the United States and around the
world. It has a circulation of about 860,000 copies.
Fortune describes itself as "the world's premier global
management magazine" that "draws the world's most successful
business people into every issue." The principal place of
business of defendant Time Inc. is New York City.
4. The May 1, 1995 issue of Fortune, in a box
prominently displayed on page 54 as part of the cover story,
states that John Gutfreund has been "barred from the
securities business for life." The statement is false: John
Gutfreund has never been barred or suspended from the
securities business, not even for one day.
5. The Fortune statement is libelous per se. The
false and defamatory statement gravely injures plaintiff's
reputation and severely impairs his ability to retain and
attract clients.
6. The Fortune article, entitled "Famous Failures
-- Where They Are Now," concludes that Mr. Gutfreund has "no
chance" for a comeback. Fortune's publication of the false
statement asserting a non-existent "bar from the securities
business," and all that it implies to the world's business
leaders reading Fortune, goes far to ensure the result that
Fortune confidently predicts.
Background
7. John Gutfreund began his career at Salomon
Brothers in 1953, immediately after leaving military service
in the Korean War, and worked there for 38 years. He was
Chairman of Salomon Brothers from 1978 until August 1991.
8. In August 1991, John Gutfreund resigned from
Salomon amid wild public speculation over the possible
involvement of Salomon's senior management in a series of
fictitious bids by a Salomon managing director, Paul Mozer,
in government Treasury auctions. In fact, as later found and
publicly announced by the SEC, Mr. Gutfreund was not involved
and did not acquiesce in Mozer's scheme.
9. The facts behind Mr. Gutfreund's resignation
are largely a matter of public record. In late April, 1991,
John Gutfreund received a report from three of Salomon's most
senior officers, including Salomon's chief legal counsel,
that Mozer had come forward and admitted to submitting one
fictitious bid in a Treasury auction two months earlier. In
this report to Mr. Gutfreund, the incident was explained as
an aberrational act, committed in the heat of the auction,
without personal benefit to Mozer or monetary injury to the
Treasury.
10. Salomon's chief legal counsel told Mr.
Gutfreund that there was no legal duty to report the
incident, but it was decided that, as a matter of good
business relations with the Federal Reserve Bank of New York,
Mr. Gutfreund and another senior officer would tell the
Federal Reserve of Mozer's unauthorized bid.
11. Several weeks later, before the report was
made, another incident occurred involving the government bond
desk. Salomon began an internal investigation into that
incident, hiring a respected law firm, Wachtell, Lipton,
Rosen & Katz, to conduct the inquiry. In this investigation,
Salomon discovered that Mozer had lied to the executives when
he said that the earlier unauthorized bid was an aberration.
Mozer had, in fact, submitted seven fictitious bids between
July, 1990 and February, 1991. Mozer's motivation was
apparently not monetary self-interest, but an egotistical
effort to subvert Treasury bidding guidelines he disagreed
with.
12. On August 9, 1991, before its investigation
was complete, Salomon voluntarily reported all that it then
knew to government authorities and made a public disclosure
announcing Mozer's bids. Immediately upon Salomon's
announcement, the press began speculating that John Gutfreund
must have approved Mozer's bidding violations, because,
according to Wall Street myth, he "oversee[s] all trading
activity." The rumors of management involvement appeared to
be confirmed by the fact, disclosed by Salomon, that Mozer
had admitted to a single false bid some three months earlier.
Speculation that "management knew" quickly drowned out the
fact that it was Salomon's management that had uncovered
Mozer's scheme and voluntarily disclosed it.
13. Federal officials, embarrassed that Mozer's
bidding scheme had evaded regulatory detection, fostered this
sinister view of "management involvement" by falsely
suggesting that Salomon had disclosed Mozer's scheme only
because it was about to be "caught" by federal regulators.
In fact, at the time, the government had no clue that Mozer
had submitted any fictitious bids. One high Treasury
official later described these false suggestions as "damage
control" to try to "spin things our way" and divert attention
away from why the government itself hadn't detected Mozer's
unauthorized bids: "[W]e were concerned we were going to be
accused of being asleep at the switch."
14. As the false rumors spiralled out of control,
John Gutfreund decided to resign in an effort to prevent a
potentially debilitating loss of confidence in Salomon, the
8,000-employee firm to which he had devoted his entire 38-
year professional life. Salomon's principal outside counsel,
Martin Lipton, strongly counseled against such resignation
since, based on his firm's extensive investigation, Mr.
Gutfreund had done nothing wrong. Nonetheless, on Friday,
August 16, Mr. Gutfreund announced that he would offer his
resignation. At a board meeting on August 18, 1991, John
Gutfreund resigned from the firm.
15. Instead of ending the matter, John Gutfreund's
resignation only added fuel to the fire of speculation. It
was as if his act of self-sacrifice were confirmation that he
had engaged in wrongdoing. Why else, everyone seemed to
assume, would such a prominent executive resign? Several
weeks later, during a congressional hearing, a Congressman
suggested that Mr. Gutfreund and the other top executives
should be in "striped suits sweeping the streets." The
following day, Salomon's board, under enormous pressure to
distance itself from prior management, cut all links and
compensation to Mr. Gutfreund, including his previously
accrued pension and other benefits. For a period, Salomon
even cut off medical benefits to Mr. Gutfreund's family in
violation of federal law.
SEC Findings and Settlement
16. The shameful vilification of John Gutfreund
and other senior Salomon executives, judged guilty before the
SEC investigation even began, was proved baseless when the
SEC investigation concluded more than a year later.
17. In May 1992, Salomon avoided indictment for
Mozer's pattern of misconduct by agreeing in a settlement
with the SEC and the Department of Justice to pay $290
million in fines and restitution. The government complaint
contained no allegation of any willful misconduct by Mr.
Gutfreund. Salomon in its submissions concluded to the SEC
that the former executives were "at most negligent but
certainly not reckless" to have believed that Mozer's act was
an aberration.
18. In December 1992 -- at the end of a 15-month
investigation -- the SEC settled with John Gutfreund and the
other executives. The SEC found no evidence that John
Gutfreund or the other senior executives had done anything
intentionally wrong. Nor did the SEC find that John
Gutfreund and the other executives had broken any SEC rule.
Instead, the SEC issued a report finding that Mr. Gutfreund
and two other senior executives had "failed reasonably to
supervise" Mozer. As to John Gutfreund, the SEC concluded
that "[a]s Chairman and Chief Executive Officer of Salomon,
Gutfreund bore ultimate responsibility" for assuring that
Mozer was adequately supervised.
19. The actual terms of SEC's public settlement
with John Gutfreund are a dramatic contrast to Fortune's
statement that John Gutfreund "was barred from the securities
business for life." In addition to fines, the SEC had a
range of sanctions available to it, including: i) public
censure; ii) suspension from the securities business; and,
iii) being barred from the securities business for life. A
permanent bar is generally imposed only on individuals whom
the SEC finds committed criminal acts. Individuals who have
been barred for life include Michael Milken, Ivan Boesky,
Dennis Levine and Martin Siegel. The opprobrium associated
with a permanent bar from the securities business is well
understood in the industry.
20. In the SEC settlement in which, as Chief
Executive, he took "ultimate responsibility" for reasonable
supervision, John Gutfreund agreed to pay a fine of $100,000.
Mr. Gutfreund did not receive a public censure. Contrary to
Fortune's assertion that he was "barred from the securities
business for life", John Gutfreund was not suspended from the
securities business, not even for one day. Two Salomon
executives did receive short suspensions from the industry of
three and six months. Mr. Gutfreund, however entered into an
undertaking of little practical effect to a man who was then
62 years old: he stated to the SEC that "he has no intention
of serving in the capacity of Chairman or Chief Executive
Officer" of a securities firm, and therefore undertook not to
become Chairman or CEO of such a firm unless he reapplied and
got the approval of the Securities and Exchange Commission.
21. The SEC's Order was available publicly and
widely covered. In a lead article the day after the
settlement, The New York Times headline reported that the
settlement was "A Low-Price Settlement." The Wall Street
Journal reported that Mr. Gutfreund "won't head a securities
firm again without prior SEC approval." These accurate
reports of the resolution of the SEC investigation were and
are fully available to Fortune at the touch of a button on
computerized databases.
Claim for Libel
22. Plaintiff John Gutfreund repeats and realleges
each of the allegations of paragraphs 1 to 21 above, as
though fully set forth herein.
23. The statement that John Gutfreund "was barred
from the securities business for life" is false.
24. The statement that John Gutfreund "was barred
from the securities business for life" constitutes libel per
se, for which damages are presumed. John Gutfreund has also
suffered immediate and continuing injury to his reputation
and business as a result of Fortune's defamation.
25. Defendant published its assertion that Mr.
Gutfreund "was barred from the securities business for life"
either with knowledge of the statement's falsity or with
reckless disregard for the truth of the statement, the
standard for constitutional malice. A finding of knowledge
or recklessness is unavoidable in view of the ready
availability to Fortune of the results of the SEC
investigation and of accurate accounts in the newspapers of
record that are readily available to Fortune through
computerized databases.
WHEREFORE, Plaintiff John H. Gutfreund demands
damages in an amount to be calculated by the Court, including
an amount sufficient to purchase full-page retractions in
major business and general-interest newspapers and
periodicals worldwide. Plaintiff also demands punitive
damages and such other relief as the Court may deem just and
proper.
Dated:. New York, New York
April 18, 1995
HOWARD, DARBY & LEVIN
1330 Avenue of the Americas
New York, New York 10019
(212) 841-1000
Attorneys for Plaintiff
John H. Gutfreund