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I read the article in The Recorder , ” Waiving Goodbye,” [Practice Center, March 31] with interest. As is usually the case, the legal principles discussed in the opinion and article in a rather dry, detached fashion as matters of statutory and constitutional interpretation pale in comparison to the drama behind the facts in the case. I am an attorney whose practice is in large part arbitrations, specifically, labor arbitrations under collective bargaining agreements. In general I appreciate the rapidity, cost-effectiveness and relative predictability of non-jury fora in litigation. In addition, however, I wore two other hats while reading your article: that of a retired FBI agent who investigated white-collar crimes like the one at issue in the Grafton case, and the son of one of the victims of PricewaterhouseCoopers’ (PWC) decision to remain silent after they discovered the investors were being defrauded. My father, 87 years old, lost $2.4 million dollars in the Ponzi scheme that PWC discovered and then covered up. He is now living solely on Social Security, with assistance from my wife and me. His wife divorced him, and he was forced into Chapter 7 bankruptcy. He is a broken man. The appellate court and your article treated the whole matter on a theoretical basis as a contract between the plaintiff partnerships and their auditors and whether the jury waiver was enforceable. In reality, the agreement was between PWC and the general partner of the three partnerships, a malefactor who has since reached a consent judgment with the SEC to pay tens of millions of dollars in restitution for his ill-gotten gains. The other crooks who absconded to the Caribbean on a yacht with the stolen funds or used them to buy a $5 million house for the porn queen girlfriend of the company president and a BMW for her maid (not to mention the lavish dinner with $2,000 bottles of wine) have since been chased down and caught by the FBI. They have all pled guilty to criminal charges. When PWC audited the books of Grafton and the other partnerships they discovered the fraud, but in fear of being fired by the general partner, decided not to alert the SEC, the investors or anybody else. Many millions more poured into the scheme due to their silence. When the facts are presented, rather than just the contract language, it becomes more apparent why the court saw the need to look past a single appellate decision that had upheld such clauses to the purposes behind the constitution. This case reflects the growing sentiment in this country that auditors’ real responsibility is to protect the investing public who rely on their reports, not to collude with management officials to conceal the shenanigans in order to siphon money from the public into the CEO’s personal pockets. Treating CPA firms as just a contracting party ignores their rightful role as watchdogs for the public. The investors never agreed to waive a jury trial. Your article, although quite objective and well written, would have been more informative, and certainly a lot juicier reading, if you had taken the trouble to fill in the back story. Russell Atkinson San Jose

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