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Silence is the civil strategy for global chemicals shipper Stolt-Nielsen SA. It’s banking the attorney client privilege can mute — and moot — a wrongful discharge suit filed by its former Greenwich, Conn.-based general counsel, Paul E. O’Brien. But in fighting criminal prosecution on the underlying price-fixing conspiracy charges that O’Brien claims led to his forced resignation, the company took the opposite tactic of speaking up loud and clear, by cooperating with Department of Justice and European authorities in the matter. O’Brien says Stolt-Nielsen can’t have it both ways. By talking to the DOJ, the company itself waived the attorney-client privilege it is asking O’Brien to honor, he asserted in a legal brief bolstered by blockbuster disclosures from Erik Nilsen, a convicted vice president of rival Norwegian shipper Odfjell ASA. Nilsen’s affidavit, however, remains off-limits to Stolt-Nielsen stockholders or anyone else outside of the O’Brien case. Ruling last month, Stamford, Conn., Superior Court Judge Taggart D. Adams concluded that private interests in secrecy outweigh the public interest in disclosure — even in a case involving one of the largest international antitrust investigations in modern history. THIRD PARTIES In his wrongful discharge suit, O’Brien contends he was forced to resign his $210,000 a year job after his opposition to an international price-fixing conspiracy in 2002 fell on deaf ears within the company. Stolt-Nielsen is seeking summary judgment against O’Brien, contending that, even if he were permitted a trial, as general counsel he couldn’t ethically say anything against Stolt to support his claims. Although Nilsen’s affidavit is sealed, other court documents fill out a striking story: Nilsen and another Odfjell executive allegedly met with former Stolt Vice President Richard Wingfield in London in June 2002 and were told not to worry about O’Brien talking. O’Brien’s motion claims “Wingfield assured [Odfjell] that … O’Brien would not be able to disclose any information about our understanding not to compete,” due to attorney-client privilege. O’Brien submitted Nilsen’s affidavit as proof the privilege was blown by talking to third parties. David S. Golub, of Stamford, Conn.’s Silver, Golub & Teitell, represents O’Brien. His brief cited the Restatement of the Law Governing Lawyers for the rule that anyone who would assert attorney-client privilege must “take effective steps against even partial disclosure.” The affidavit was “lodged” with the clerk in charge of the complex litigation docket in Stamford Superior Court, pending public arguments. Stolt defense lawyer Peter Carney, of White & Case in Washington, D.C., argued vigorously that it must stay officially sealed. O’Brien did not oppose the sealing bid. But David R. Scott, of Colchester, Conn.’s Scott + Scott, did. He represents stockholder Joel Menkes and is seeking to qualify a securities class action in U.S. District Court in Hartford, Conn. Briefs drafted by Scott and fellow Scott + Scott lawyer Erin Green Comite claim Stolt and its president, Samuel Cooperman, “engaged in a proverbial race to the U.S. Department of Justice to receive immunity for cooperation in the DOJ’s investigation of an international shipping cartel.” In an interview, Scott said he was “shocked” by Adams’s ruling to seal the affidavit. “This is a case with huge public interest. With price-fixing on an international scale, everyone is affected,” he said. Under the 1995 Private Securities Litigation Reform Act, Scott must delay discovery until he receives a ruling on Stolt’s motion to dismiss. He intervened to oppose the sealing of the Nilsen document, before it was lost as evidence. Scott contended Stolt waived attorney-client privilege when it talked to the DOJ, and furthermore can’t assert the privilege under the exception for criminal acts. Stolt, he added, is wrongfully seeking to use the privilege as both sword and shield, and “to selectively waive the privilege when it helps them and enforce it when it protects them.” According to the docket summary in the case, Adams has ruled to seal at least a half dozen other sensitive documents. He’s provisionally granted one protective order, while denying another. AMNESTY REVOKED Stolt obtained immunity from the DOJ, under its corporate leniency program. It announced on Feb 25, 2003, it was disclosing knowledge of the price-fixing cartel, and promising immediate cooperation with U.S. and European Union antitrust authorities. However, earlier this year Stolt’s amnesty was revoked — a previously unheard-of development. Last year, Nilsen pleaded guilty to the price-fixing scheme and served three months in prison. His affidavit, submitted in lieu of a deposition, conflicts with Stolt’s vow of cooperation. Individuals familiar with the affidavit say it alleges that, in August 1998, Stolt CEO Samuel Cooperman was present when executives in the two companies exchanged lists of current customers. They reportedly agreed not to compete for certain of each other’s customers, either by not bidding at all or by submitting bids too high to win. Stolt-Nielsen’s world headquarters are in London, and it is registered as a Luxembourg company. Its top shipping executives are based in Greenwich, Conn.

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