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Sent: Monday, September 08, 2008 8:56 PM
Subject: CA management response to request for Examiner's
report on management integrity
As indicated in the communications copied below, CA has not publicly
released the court-appointed Examiner's report in time for shareholder
consideration of its findings about the
issues raised last week
before voting for directors at tomorrow's annual meeting.
CA's Chairman responded to the Forum's September
4 request the next day, September 5, with a letter saying that
he'd been told that CA cannot make the Examiner's reports available
because they "were filed under seal pursuant to federal court order."
(His letter, with copies to CA's CEO and chief legal officer, appears
below as the first of three that are presented in inverse
chronology.) I replied
initially, the same afternoon, with a request for references to any
court records establishing the previously unknown court seal.
Another letter was sent today
to advise CA's Chairman that nothing could be found in the court
docket that appeared to supersede the original provisions of the
Deferred Prosecution Agreement and a court order for the Examiner's
reports to be free of any confidentiality restrictions. CA has not
yet responded with an explanation of either the existence of a seal or
the confusion about it.
The formal shareholder request for release of the Examiner's reports
is expected to be submitted to CA tomorrow morning, as soon as papers
can be officially executed. As indicated in my letter today and in
last week's original request, this formality should provide a clear
foundation based on
Section 220 of the Delaware General Corporation Law for management to provide shareholders
with information that is clearly relevant to investor interests,
assuming there is in fact no existing court order sealing the
records. The formal request, as well as any further company
responses, will of course be distributed and posted on the CA
Forum web site.
- GL
Gary Lutin
Lutin & Company
575 Madison Avenue, 10th Floor
New York, New York 10022
Tel: 212/605-0335
Email:
gl@shareholderforum.com
September 8, 2008
By email
Mr. William E. McCracken
Chairman, Board of Directors
Computer Associates International, Inc.
One Computer Associates Plaza
Islandia, New York 11749
Dear Mr. McCracken:
After receiving
your letter on Friday reporting that you’d been told that
the Examiner’s report had been filed under seal pursuant to
federal court order, I obtained a current copy of the
court’s docket report of all filings in the case. A copy of
that report has been posted on the Shareholder Forum’s web
site for your reference, together with the listed filings
that appeared relevant to the confidentiality of the
Examiner’s report:
http://www.shareholderforum.com/ca/Library/20080905_USAvCA-docket.htm
I could not find any filing of a motion or order to seal, or
see anything else that appeared to supersede either the
Deferred Prosecution Agreement’s provision in section 21
that specifically excepts from confidentiality the
Examiner’s reports submitted to the U.S. Attorney’s Office
and the SEC, or the April 13, 2005 court order (Docket #2,
filed 4/19/05) ordering “any and all” filings “to be and
remain UNSEALED.” Please let me know if you think I may
have overlooked or misunderstood anything.
Under these circumstances, to provide a foundation for the
company’s public release of the Examiner’s report, we will
be submitting the previously suggested formal demand as soon
as papers can be prepared, possibly this afternoon but at
least by tomorrow. Please let me know if there is anything
else I can do to support your encouragement of the report’s
release in time for shareholder consideration before
tomorrow’s annual meeting.
Sincerely yours,
/s
Gary Lutin
cc: Ms. Amy Fliegelman Olli
Mr. John A. Swainson
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----- Original Message -----
To: William E. McCracken
Cc: John A. Swainson ;
Amy Fliegelman Olli
Sent: Friday, September 05, 2008 4:38 PM
Subject: Status of Examiner's report
Mr. McCracken -
Thank you, very much, for your response to my request.
I appreciate your reference to the Special Litigation Committee Report
as an alternative source of information on the subject of director
conduct. As you'll see, the Forum had reported on it at the time of its
release:
(April 13, 2007)
Regarding the Examiner's report, I was not aware of any motion to seal
it. When the Examiner started his work, it was my understanding that
there was no provision for restricting public release of his reports and
that the final version would be made available upon its filing with the
court. I will appreciate your provision of the motion and order to seal,
and any other information that would help me understand the change.
I realize that both you and Ms. Olli became involved with CA long
after my communications with the company and the US Attorney's Office on
the subject of the Examiner's report, and assume that you may therefore
have just as many questions as I do about its confidential status. Please
let me know how you think we can most effectively resolve this.
GL
Gary Lutin
Lutin & Company
575 Madison Avenue, 10th Floor
New York, New York 10022
Tel: 212-605-0335
Email: gl@shareholderforum.com
From: McCracken, William
Cc: Swainson, John ;
Olli, Amy F
Sent: Friday, September 05, 2008 3:09 PM
Subject: Letter to Chairman of the Board of Directors
Mr.
Gary Lutin
Lutin
& Company
575
Madison Avenue - 10th Floor
New
York, NY 10022
Dear
Mr. Lutin:
Thank
you for your letter. I believe that the recent news reports to which you
refer concern reports of the investigation by the Special Litigation
Committee, rather than the reports of the Independent Examiner. As you
may be aware, the reports of the Special Litigation Committee have been
made publicly available.
In any
event, the reports of the Independent Examiner were filed under seal
pursuant to federal court order. Therefore, CA is not in a position to
make such reports available.
Sincerely,
William E. McCracken
Chairman
cc: John Swainson
Amy Olli
William
E. McCracken
Chairman
CA, Inc.
[deleted]
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