PREC14A 1 prec14aEnBancAppeal_c.txt 2007/2009 REHASH WITH NEW EN BANC SUBMISSION FOR REMEDY text of Preliminary filing to SEC January 2012 *http://www.secinfo.com/xxxxx Lindner Peter * PRE 14A * American Express Co * On Jan 25, 2012 Filed On Jan 25, 2012 12:15pm ET * SEC File 1-07657 * Accession Number 1394849-7-2 As Of Filer Filing As/For/On Docs:Pgs Issuer 1/25/2012 Lindner Peter PREC14A 1:10 American Express Co Preliminary Proxy Solicitation Material -- Contested Solicitation * Schedule 14A Filing Table of Contents Document/Exhibit Description Pages Size 1: PREC14A Peter Lindner 1st Draft of Proxy 10 38K 1 proxyverb.txt 142380792 142380792 PREC14A 1 draftproxy.htm FIRST DRAFT OF NON-MANAGEMENT PROXY SCHEDULE 14A INFORMATION (Rule 14A-101) INFORMATION REQUIRED IN PROXY STATEMENT SCHEDULE 14A INFORMATION Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934 Filed by the Registrant [ ] Filed by a Party other than the Registrant [X] Check the appropriate box: [X] Preliminary Proxy Statement [ ] Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) [ ] Definitive Proxy Statement [ ] Definitive Additional Materials [ ] Soliciting Material Pursuant to Rule 14a-12 AMERICAN EXPRESS COMPANY (Name of Registrant as Specified In Its Charter) PETER LINDNER (Name of Person(s) Filing Proxy Statement, if other than the Registrant) Payment of Filing Fee (Check the appropriate box): [X] No fee required. [ ] Fee computed on the table below per Exchange Act Rule 14a- 6(i)(1)and 0-11. (1) Title of each class of securities to which ransaction applies: (2) Aggregate number of securities to which transaction applies: (3) Per unit price or other underlying value of transaction computed pursuant To Exchange Act Rule 0-11 (Set forth the amount on which the filing fee is calculated and state how it was determined): (4) Proposed maximum aggregate value of transaction: (5) Total fee paid: [ ] Fee paid previously with preliminary materials. [ ] Check box if any part of the fee is offset as provided by Exchange Act Rule 0- 11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. (1) Amount Previously Paid: (2) Form, Schedule or Registration Statement No.: (3) Filing Party: (4) Date Filed: PRELIMINARY COPY, SUBJECT TO COMPLETION DATED January 25, 2012 PROXY STATEMENT OF PETER LINDNER IN CONNECTION WITH THE 2011 ANNUAL MEETING OF STOCKHOLDERS OF AMERICAN EXPRESS COMPANY Prec14a filing for American Express by Peter Lindner as plaintext Wednesday, January 25, 2012 I am resubmitting my proposal of 2009/2010 basically since I have sued American Express (Amex) in the SDNY (Southern District of New York) in Was: case 10cv2228 (JSR-JLC) which is on appeal as Is: case 11-3594-cv to the 2nd Circuit Court of Appeals en banc My central point in this appeal is that under NY Judiciary section 487 on "intent to deceive" any Court in NY State, which I provide the excerpts from the sworn testimony of Joe Sacca, Esq in 2009, and contrast it with the previously sealed transcript of Mar/Apr 2007. Mr. Sacca of Skadden(alongside Ms. Jean Park of Kelley Drye Warren, and Amex General Counsel's VP Jason Brown, Esq.) told USDJ Koeltl that Amex had not attempted to stop my communications with the SEC. At the time, I protested, but Mr. Sacca and his colleagues did not modify their statement which I believe is factually incorrect, as one can tell from the 2007 transcript. Here is how I plan to inform the 2nd Circuit Court of Appeals why this criminal misdemeanor should be remedied via a Specific Performance: to wit, placing my Shareholder Proposal on the proxy, along with my nomination as a Director. I note that in 2009, USDJ Koeltl (rightly) felt in His Honor's ORDER that there would be much confusion and expense to change the proxy a few days before the meeting (April 23 for the April 29, 2009 meeting, I believe). Thus, I am requesting this in January 2012, which is prior to Amex printing the proxies, and clearly before those proxies are distributed. My reasoning is that what may be legal in other States, is illegal for lawyers in NY State, and that is "intent to deceive" the Court, which Mr. Sacca did perhaps inadvertently in April 2009. But despite repeated oral and written requests to Mr. Sacca to inform the Court that he made a mistaken comment (repeatedly), Mr. Sacca has not modified his rebuttal to me that Amex did not stop me from communicating with the SEC. I am not a lawyer, but as I understand the law, NY Judiciary section 487 on "intent to deceive" any Court in NY State is a criminal misdemeanor, which later can be sued for treble damages in a civil suit. I feel the SEC laws are written so that criminal conduct should not be allowed to affect whether a Shareholder Proposal is voted on. Thus, I asked that the offending lawyers (Sacca, Park, Brown) be disbarred if found by our Courts to have intended to deceive the Courts, whether successful or not, but in this case successful. I assert with the transcripts of 2007 (Jean Park and Jason Brown) and 2009 (Joe Sacca) I provide a factual foundation for a full look by the 3 entities: Amex, me and Amex Shareholders (and Shareholder Employees, of which I was one, via the EEOC standard enunciated by the US Supreme Court ruling that former employees count as employees). I recognize that my Proposals may be challenged by Amex, and that I am subject to SEC laws on statements I make, even though I believe them to be true under Rule 14A9 and under section 14A. I understand the Company may challenge my statements, and that any question about conflict on illegality of my proposals can be settled by a Court of competent jurisdiction Thus I seek the 2nd Circuit Court of Appeals to remedy the flaw of 2009 by not allowing Amex to do so again, and specifically by having Amex put on (as stated before) my Shareholder Proposal on EEOC rights, hopefully via a Truth Commission, so that past and present wrongs can be fixed. Here is what I basically wrote / am writing the Court, subject to change: I hereby am suing American Express and now ask for a "Specific Performance" remedy by the 2nd Circuit Court of Appeals, enforceable by an ORDER that Amex must put my Shareholder proposal and nomination on the Proxy, since they committed a violation of NY Judiciary section 487 on "intent to deceive" any Court in NY State in April 2009 by (repeatedly) denying (whether successful or not, but in this case, successful) that Amex stopped me from communicating with the SEC prior to 2009. This allegation was made on "April 23, 2009 6:30 p.m." by Joe Sacca, and was on the brief filed by Mr. Sacca (of Skadden Arps) and Ms. Jean Park (of Kelley Drye & Warren), with Amex's General Counsel's VP "Jason Brown, Attorney for Defendant". As the next pages will show, Mr. Brown specifically put in the record on "Thursday, March 29, 2007" that I could not what Ms. Park calls my "shareholder activities", and Mr. Brown enumerates as "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". Since this alleged "intent to deceive" was ruled by USDJ Koeltl to not include my "shareholder proposal in the company's proxy materials" and "proxy materials seeking to elect himself as a director including his shareholder proposal". USDJ Koeltl went on to say that since the meeting was only four (4) days later, it would cause Amex to "suffer considerable disruption between upon the issuance of the plaintiff's requested preliminary injunction. Rescheduling or postponing the April 27, 2009, shareholder meeting and reissuing or amending the proxy materials would result in significant expense, among other things. " It is now January 2012, 3 months prior to the meeting, and thus no need to reschedule or postpone the "shareholder meeting and reissuing or amending the proxy materials". I note that I was given only 14 days after the rejection of my Appeal by the 3 Judges of the 2nd Circuit Court of Appeals, dated January 11, 2012. In the paragraphs below, I provide the "factual foundation" as required by SEC "Rule 14a-9 -- False or Misleading Statements." I understand that Amex may challenge my proposal, and I am subject to SEC laws on statements I believe to be true under section 14A, which relates to Shareholder Proposals . Specifically, "As the Commission stated in Exchange Act Release No. 40018, proposals that relate to ordinary business matters but that focus on "sufficiently significant social policy issues . . . would not be considered to be excludable because the proposals would transcend the day-to-day business matters." Thus, my complaint alleges facts showing that Amex' attorney Joe Sacca misled USDJ Koeltl by claiming that Amex did not stop me from going to the Securities and Exchange Commission (SEC) prior to 2009, when Amex, Jean Park and Jason Brown wrote a document that detailed how I could not go to the SEC (paragraph 15 of the IFP Attachment in Exhibit 3). This is what Amex wrote on March 2007 that said I can not "submit any shareholder proposal under Rule 14(a)(8)" to the SEC. Joe Sacca lied about that in print and verbally, with Ms. Park and Mr. Brown being present in Court but not correcting this information, despite my repeated requests in the Court and via email. "MS. PARK: 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." [Case No. 06cv3834 (JGK-THK), Lindner v American Express and Qing Lin, Thursday, March 29, 2007, TR 4, lines 2-19] My complaint alleges that Amex lawyers Park, Sacca and Brown had intent to deceive the Court by denying to USDJ Koeltl in this case's predecessor and not admitting it to USDJ Rakoff or Magistrate Judge Cott, which should have been done, which is a criminal misdemeanor under NY Judiciary section 487 on "intent to deceive" any Court in NY State, subject to their disbarment and treble damages under a separate civil lawsuit. By such conduct of the attorneys, I was denied due process in my judicial proceedings. This is a basis in law and in fact and clearly brings my complaint, and my appeal, outside the grounds for dismissal under 28 U.S.C. section 1915(e). Clearly, by improper, if not unlawful conduct, by adversary counsel, I should not be denied the ability to pursue my claims for relief. Here is one of the several times that Amex has said that Amex did not make "misrepresentations to the Court about Mr. Lindner's ability to communicate with the SEC. There is in fact no evidence in the record that Mr. Lindner was under any prohibition from responding to the SEC" "14 MR. LINDNER: Thank you, your Honor. I appreciate 15 that you've read everything. I guess the question is what 16 constitutes irreparable damage when this same thing keeps 17 happening year after year. I had hoped in 2006 when I attended 18 the shareholders meeting that my words to Ketchen Oltin in the 19 question and answer period, how seriously does American Express 20 take its code of conduct, and he replied very, very seriously. 21 So, I thought that might be a type of wake- up call for the 22 people under him so that they would use the code of conduct, 23 which actually would have settled my whole problem with a memo 24 and a phone call. Although -- and exchange of money, too, for 25 violation of a contract. That did not happen. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 94n3linc Motion 1 And when I wanted to go to the shareholders meeting in 2 2007, again this time I filed on the SEC Web site, AmEx got a 3 court order to stop me from communicating with the SEC, to ask 4 me to withdraw my filing from the SEC, to take down my Web 5 site, to not attend the shareholders meeting, to not ask my 6 questions. 7 And what's more amazing is that in the last week's 8 April 14 meeting in front of your Honor, Joe Sacca said AmEx 9 has never tried to stop communication with the SEC. I stood up 10 and corrected his misimpression. So I was quite surprised to 11 see in his brief that Ms. Park said that American Express never 12 tried to stop me from communicating with the Securities and 13 Exchange Commission. I don't know why they keep saying that. 14 And in fact it's even in their own exhibit where they quote 15 from my filing with the SEC. I note that AmEx, on Defendant's 16 Exhibit 17, that I think it's 17. I'm sorry. Anyhow, they 17 note that I was stopped from communicating with the SEC. 18 So, that's one -- the inconsistencies bother me. It's 19 when they make a wrong statement and then they're corrected, 20 you would think that they would not want to be corrected again. 21 But I'm forced to do that." So, the above excerpt says that I tell The Court (which is located in NY State, and thus under the protection of NY Judiciary section 487 on "intent to deceive" any Court in NY State - a criminal misdemeanor subjecting the lawyer to disbarment) that "Joe Sacca said AmEx has never tried to stop communication with the SEC. I stood up and corrected his misimpression." "And what's more amazing is that in the last week's April 14 meeting in front of your Honor, Joe Sacca said AmEx has never tried to stop communication with the SEC. I stood up and corrected his misimpression. So I was quite surprised to see in his brief that Ms. Park said that American Express never tried to stop me from communicating with the Securities and Exchange Commission. I don't know why they keep saying that." Mr. Sacca then responds by saying that he'd like to "address just a couple points. One is the accusation that we've made misrepresentations to the Court about Mr. Lindner's ability to communicate with the SEC. There is in fact no evidence in the record that Mr. Lindner was under any prohibition from responding to the SEC in response to American Express' request for no action. " "9 MR. SACCA: Good afternoon, your Honor. I will be 10 very brief. I don't intend to repeat anything that was in our 11 papers, unless your Honor would like clarification. 12 I would like to address just a couple points. One is 13 the accusation that we've made misrepresentations to the Court 14 about Mr. Lindner's ability to communicate with the SEC. There 15 is in fact no evidence in the record that Mr. Lindner was under 16 any prohibition from responding to the SEC in response to 17 American Express' request for no action. In fact, although 18 Mr. Lindner has asserted that it wasn't until March 23 of this 19 year that Magistrate Judge Katz freed him to respond to the 20 SEC, we have put into the record as Exhibit 9 to my declaration 21 a letter to Mr. Lindner from the chief counsel of the SEC dated 22 April 8, 2009, in which he says he is responding to four 23 letters from Mr. Lindner, one of which was dated February 25 of 24 2009. So we do have evidence that Mr. Lindner was 25 communicating with the SEC during a period he now says we were 11 94n3linc Motion 1 prohibiting him from doing so. I did just want to respond to 2 that accusation briefly. 3 The last point I'd like to make is in reference to 4 Mr. Lindner's -- what he says are recent conversations with 5 Mr. Be of the SEC staff. Mr. Lindner did make to the SEC, and 6 we have put before the Court as Exhibits 10 and 11 to my 7 declaration, two of his submissions to the SEC where he asked 8 them to reconsider their no-action letter. He argued that his 9 proposal dealt with the issue of discrimination which he argued 10 was a significant social policy. And April 8 the SEC said, 11 having considered his position, it declined to reconsider its 12 decision. So, the SEC has heard and considered the argument 13 that this proposal relates to a significant shareholder issue. 14 According to the document that's appendix I to 15 Mr. Lindner's reply submission, his conversation with Mr. Be 16 was apparently entirely hypothetical. Because he says in his 17 letter to Mr. Be, "Despite the fact that you can't address 18 hypotheticals, you pointed out that significant social policies 19 can be included." That's something we don't dispute. The SEC 20 rules are what the SEC rules are. The argument here is, and 21 why Mr. Lindner has no likelihood of succeeding on the merits 22 of any claim here, is that his proposal does not deal with a 23 significant social issue. The text of the proposal makes clear 24 he wants a commission appointed to institute mandatory 25 penalties for violation of American Express' code of conduct 12 94n3linc Motion 1 which covers an enormous range of conduct. And on its face 2 does not relate to a significant social policy. That's the 3 essential point. That's why there is no likelihood of success 4 on the merits here. 5 And just finally, on the issue of irreparable harm, we 6 would submit that someone who has been pursuing this issue 7 since 2007 but never come to court to seek the relief that he 8 now seeks clearly did not suffer irreparable harm. Thank you. 9 THE COURT: Okay. 10 MR. LINDNER: May I answer, your Honor? 11 THE COURT: Very briefly. You are entitled to. 12 MR. LINDNER: Thank you. I'm sorry. I don't know if 13 Ms. Park even speaks to Joe Sacca. But if Ms. Park were saying 14 that, I would be quite upset. I think there is no doubt that 15 Magistrate Judge Katz made an ex parte communication with me 16 and told me that I would be under contempt of court if I did 17 not withdraw my filing from the SEC and not communicate to the 18 SEC. I don't know if Mr. Sacca is aware of it or whether he 19 even speaks to his co-counsel. Or maybe if that's a scheme 20 that they are doing here. 21 As to whether American Express had tried to stop my 22 communication with the SEC, in order to do a proxy filing and I 23 want to have directors on a slate so I'm not just -- if I just 24 have myself running for director, the SEC requires me to put 25 down that I'm disenfranchising the voters because they won't be 13 94n3linc Motion 1 able to vote for any of the other people. So I have to get the 2 directors to agree to -- that I list them on my slate. 3 On March 5 of 2009, Judge Katz issued an order, number 4 133, that prohibits Lindner from contacting AmEx and that he 5 wouldn't allow me to speak to the board of directors about my 6 proposal or to run for the board of directors. 7 On March 9, the SEC -- Judge Katz ruled in number 134 8 that I am allowed to speak at the shareholders meeting but 9 prior to that I was not. If I had not been able to speak there 10 under SEC rules, I would not be able to present my shareholder 11 proposal for two more years. 12 On March 13, Ms. Park said that -- a few days later 13 Ms. Park writes to the judge that she wants to -- that I wish 14 to speak to the nominating committee and -- let me strike that. 15 There is like -- I listed 10 different things here. 16 On March 16, Jean Park writes a letter to Katz re 17 sanctions and reconsideration dated March 16. And she wanted 18 me to stop me from communicating to the members of the other 19 board. 20 There are five other diversionary tactics between 21 March 16 and April 14. On April 14, again, Ms. Park tries to 22 schedule the hearing after the meeting. And then the two 23 letters to Judge Katz to slow me down and to not let me include 24 transcripts to the SEC. If not allowing me to include 25 transcripts is not -- and having Ms. Park censor them before I 14 94n3linc Motion 1 upload them to the SEC is not interfering with the 2 communication, I don't know what is. 3 THE COURT: All right. I'm prepared to decide. Thank 4 you all. I've thoroughly reviewed the papers and I've listened 5 to argument and I'm prepared to rule." I set forth particular facts showing that there were levels of bad faith from Amex and their side, including perjury (from a vendor), coverup (by Amex's General Counsel's Office and by 2 outside law firms representing Amex), misleading Shareholders (by Amex CEO Ken Chenault and Stephen Norman), and violations of the Sarbanes-Oxley (SOX) requirements made after Enron's financial scams on the CEO personally attesting to the Code of Conduct filed with the SEC, 1. For 5 years, Amex VP Jason Brown, Esq. covered-up contractual, ethics and Title VII of the Civil Rights Act of 1964 violations by VP Qing Lin, despite General Counsel's Louise Parent being his boss and General Counsel's Office signing the June 2000 Amex-Lindner Contract. 2. As stated above, for 2 years, Joe Sacca, Esq. of Skadden Arps perjured himself to USDJ Koeltl, and then covered it up along with Jean Park, Esq. of Kelley Drye Warren, even though I wrote him for 2 years that he should tell the Judge he misspoke in April 2009 by saying that Amex never stopped me from communicating with the SEC, when Jason Brown and Jean Park both were present when the Court ORDERed me upon Amex's request to not communicate with the SEC, to withdraw a filing to the SEC (which can't be done), and not attend the April 2009 Amex Shareholder meeting in person or via representative (which may be illegal under SEC laws on a single class of Shareholder stocks), and also a violation of NY Judiciary section 487 on "intent to deceive" any Court in NY State, which is a criminal misdemeanor subject to treble damages filed in a separate civil suit 3. Amex's Vendor FischerJordan did perjure themselves by plainly stating that they did not talk to Qing Lin about me, and especially not negative things, when a. Qing Lin gave a deposition that spelled out the name of FischerJordan's principle Boaz Salik for Qing giving information about me in violation of the June 2000 Amex-Lindner Contract signed by (now Banking President) Ash Gupta, Amex's General Counsel's Office, and me. b. Jason Brown, Esq. noted that Qing admitted to saying that "I don't think Peter Lindner can work at American Express" , where AXP is the NYSE symbol for American Express c. Worse: on this critical point, Jason Brown did not include that in his summary letter to me (and presumably copied to Secretary of the Corporation Stephen Norman, Esq.), even though Mr. Brown told me that in person as "I don't think Peter Lindner can work here." I had written Mr. Brown by email that Mr. Brown admitted this statement, which would be a violation of the June 2000 Amex-Lindner Contract, and Mr. Brown denied in email (all in 24 hours) that characterization / memorialization of what Brown said to me, and blandly replied that it was not mentioned in Brown's April 2006 summary because "There was no reason for me to include it" 4. Surely if Jason said something to me, and I say this is proof of Qing's Contract violation and violation of Title VII of the Civil Rights Act of 1964 and violation of the Amex Code of Conduct, but Jason denies in writing he even said that to me, and 3 years later admits under oath that his hand-written notes are pretty much verbatim what he told me, it is irresponsible (or more correctly a cover-up) to not point out this disagreement in Jason's summary of the dispute to me and to Stephen Norman,Esq. I note that in Dec2005 that Mr. Norman told me that Mr. Norman would get Mr. Brown to again look into Qing Lin's (then) alleged and now admitted violation of the June 2000 Amex- Lindner Contract. a. I stress the word "again" since I made that allegation in Aug2005 that Qing spoke to Boaz Salik of FischerJordan, and Jason Brown said my words were not identical, but then refused to tell me how they differed from what Qing said. b. I note in passing that this matter could have been settled by Jason Brown telling the truth and quoting Qing's words in his summary, which would have proven that i. Qing gave "any information" to Boaz Salik, and ii. that (indirectly) Qing had not referred Boaz to Human Resources (both required by paragraph13 of the June 2000 Amex-Lindner Contract signed by Jason Brown's General Counsel's Office, and Ash Gupta and me). iii. Moreover, since I had filed an EEOC Complaint, Qing's actions were also a violation of Title VII of the Civil Rights Act of 1964. c. This indicates that it was i. a cover-up by one of the signatories of the June 2000 Amex-Lindner Contract, and by two Officers of Amex (VP Jason Brown, Esq. and Qing), and ii. also a violation of the Amex Code of Conduct regarding past / present / future possible ethical problems being reported to one's manager who'd report it to the Secretary of the Corporation. d. What could have been settled in Feb 2006 had Jason Brown honestly confirmed that Qing spoke to Boaz about me i. whether or not Qing said good or bad things about me, ii. but in this case: bad inferences of not being able to work at Amex iii. and, this isn't even true, since I could have worked for FischerJordan as a consultant at Amex 5. It is also doubtful that Banking President Ash Gupta allowed his direct reporting aide of 15 years to leave despite these accusations without having asked why Qing had not reported this breach of the June 2000 Amex-Lindner Contract, signed by Gupta, earlier, as required by the Amex Code of Conduct ("Code") which both Gupta and Qing sign every few years and explain to their (over 100) employees. The Code states that possible ethical problems past / present / future . 6. When confronted about this in the Amex Annual Shareholders' Meeting in successive years, CEO Chenault blandly told the Shareholders misleadingly that the Code of Conduct works, when specifically the General Counsel's Office, the Banking President & his VP, all violated in the past / present / future clause of the Code, and that the General Counsel's covered this up for 4 years despite being signatories. Thus, altogether this shows that the Code is not working, since a. The Code which Qing, Ash, Jason, Ken signed did not stop Qing from violating the June 2000 Amex-Lindner Contract in 2005, b. Nor stop Jason Brown from denying what he told me in Feb 2006 (only to admit it under oath 3 years later) c. Nor stop Ash Gupta to profess ignorance of it all, d. Nor force the General Counsel's Office to enquire why a known violation was noted in Aug2005 and confirmed in Feb 2006 was not included in a report to Jason Brown's superiors nor then reported to the Secretary of the Corporation. 7. If the Code "works", this would have been prevented in Feb/Mar2005 prior to Qing speaking to Boaz Salik, by having Qing ask Ash Gupta whether Qing should talk about me in violation of the June 2000 Amex-Lindner Contract signed by Ash and the General Counsel's Office, and in Feb 2006 by Jason Brown asking his manager in the General Counsel's Office if it was okay for Qing to have said "Peter is a technical person. I don't think Peter can work at Amex" in violation of paragraph13 and possibly also Title VII of the Civil Rights Act of 1964 and the NYC and NY State Human Rights laws. And given that both Qing and Jason admitted of those violations in Jan2009, should not a working Code have had both of them report to Ash Gupta (Qing's boss) and the General Counsel (Jason's boss) that a past violation occurred, which then would be reported to Stephen Norman for deciding if it was indeed a past violation or even a possible violation back then that was not forwarded to their managers as Qing, Jason and Ash had signed in writing their adherence to the Code? Specifically, Sarbanes-Oxley allows the Code to exempt certain classes of people, and CEO Ken Chenault could have exempted VP's and higher from those restrictions, but pointedly did not, thus placing himself as a violator of the Code by being alerted by me in April 2009 at the Amex Shareholder Meeting of Qing's violation and Qing starting 2 weeks later to work for a competitor after 15 years at Amex reporting to Ash. How come Qing "left" but Jason remained, as did Ash? This is clearly exempting Jason from the reporting requirements, and worse than Qing who committed the act, Jason aided and abetted Qing by not reporting it when he realized that Qing acted in his own self-interest instead of following the law, the contract and the Code. It may arguably be "bad faith" according to USDJ Rakoff and MJ Cott for me to miss a single deadline, but it is a minor bad faith which pales compared to deliberate perjury to the Court by Officers of the Court and sworn witnesses and of the CEO to Shareholders and to the SEC. There are things that are clearly deserving of a public hearing, including the perjury of the witnesses, the cover-up by the Amex General Counsel's VP for several years in defiance of the document June 2000 Amex-Lindner Contract which his office signed with me, by the continued cover-up by CEO Ken Chenault who denied to both the SEC in writing and to the Shareholders verbally at the Annual Shareholder Meetings that the Code of Conduct worked when in fact the General Counsel's Office conspired with Qing Lin and Banking President Ash Gupta to vitiate it by covering up, lying, and making false claims about what ultimately is proven that everything I said was true and that they were "mistaken" or lied about it, in violation of SEC regulations, NY law, rules of the SDNY, and contrary to their sworn oaths via affidavit. These matters should be re-opened and specific questions addressed to the individuals, e.g. Chenault, Brown, Sacca, Park, Gupta, Barran, Salik, Norman, so that they can refuse to make any statement under the 5th Amendment about self-incrimination, and that the Court and prosecutors can use the raw facts to show that they knowingly lied and covered up and retaliated in 2005 and even now in violation of Title VII of the Civil Rights Act of 1964. Moreover, my private property for which I paid several thousand dollars: the tape recordings (on DVD and videotape and audio tape) are being wrongly held by SDNY Courthouse against my wishes even though I paid for them, and have not been reimbursed, which is a violation of the 4th Amendment on seizure of property . In filing my instant appeal, I also filed a 30 page "Attachment to Request to Proceed IFP.pdf", which explains this in detail. Moreover, I have been out of work since Feb 1, 2011 - for 11 months - partially due to the wrongful actions only partly admitted privately, but not publicly by the Defendants. According to the IRS, it costs $4,000 a month to live in my zip code, and my mortgage/maintenance/taxes come to $3,000, and I get $1,400 per month in unemployment. This is clearly a form of being a pauper: unable to pay for my home, let alone thousands for a lawyer and for the Court expenses. When I asked the Court clerk Anna, who checked with her supervisor, there are no written standards in the 2nd Circuit Court of Appeals for what constitutes poverty for IFP: In Forma Pauperis, which would make that a candidate for denial of due process if such decisions are made arbitrarily, and in this, my case without a single reason given. For all the above reasons, it is respectfully submitted that dismissal of my appeal and denial of my motion to proceed in forma pauperis be heard en banc and both the dismissal and denial be reversed. ------------------------- Below are parts of what I submitted in prior years, which are relevant, I believe to the best of my knowledge and ability. To Bill Ford & Geoff Hughes: I have a question which Mr. Hamm of PWC says he doesn't know the answer to. Would there be any financial impact to AXP's financial statements / stock price if Amex fired both the GC and the President for violating SOX? Mr. Hammm is only concerned with violations that have a financial impact, if I understand him right. I'd appreciate a rough estimate. I feel it would; specifically, [A]the stock price could go up, since Amex is showing Amex is ethical and let its wrongdoers go, or [B]the stock price may go down since it sat on this news for 4 years. I can give you my previous sworn statement and the Amex Code of 2010, and of 2005-2006. /s/ Peter Lindner Ward Hamm, Amex Liaison Auditor Price Waterhouse Coopers Chairman's Office - US Firm PricewaterhouseCoopers LLP 300 Madison Avenue, 24th Floor New York, New York 10017 Voice: (646) 471 4000 RE: is there a financial impact if Amex's President and General Counsel were let go as a result of SEC / SOX violations? Dear Ward, Thanks for calling me back this afternoon and talking to me for over an hour about the allegation I made that Amex (American Express) filed a false or misleading statement with the SEC namely that the Amex Code of Conduct (which was filed as per Sarbanes-Oxley (SOX) law of 2002) was not being followed for the Amex (AXP) Banking President Ash Gupta, nor by the General Counsel's Office. You stated you had no idea if there are any financial impacts if Amex's President and General Counsel (GC) were let go as a result of SEC / SOX violations. To me, since you (PWC) certified that you followed the PCOAB [see footnote 1] standards, and since the PCOAB follows SOX and SOX mandates that if a [Footnote 1: Google begins by saying: 'Public Company Accounting Oversight Board The PCAOB is a private-sector, non-profit corporation, created by the Sarbanes-Oxley Act, to oversee the auditors of companies in order to protect the...' http://www.google.com/search?sourceid=navclient&ie=UTF- 8&rlz=1T4WZPG_en___US427&q=PCOAB and the PCAOB writes the audits are to 'protect the interests of investors and further the public interest' : 'The PCAOB is a nonprofit corporation established by Congress to oversee the audits of public companies in order to protect the interests of investors and further the public interest in the preparation of informative, accurate and independent audit reports. The PCAOB also oversees the audits of broker- dealers, including compliance reports filed pursuant to federal securities laws, to promote investor protection.' [emphasis added] http://pcaobus.org/Pages/default.aspx I am not only an investor, but also an employee Shareholder, as are tens of thousands of Amex employee Shareholders. [END of Footnote 1] company has a ethics code or code of conduct, it must file it with the SEC and can exempt certain classes of people from said code, therefore it seems clear that to have Amex file a misleading code of conduct ('Code') (CEO Ken Chenault wrote that no one is exempt from the Code) would have a serious financial implication. Specifically, since Qing Lin admitted under oath in January 2009 that he violated 13 of the June 2000 Amex-Lindner contract signed by Amex's GC, Ash Gupta, and me, and since Jason Brown, Esq. of the Amex GC said to me in Feb2006 that Qing [breached the contract where 13 says Qing is among 7 people not allowed to give 'any information' about me to prospective employers ] told my prospective employer that 'I don't think Peter Lindner can work here,', therefore both of them breached the Amex Code by not reporting to their manager any past / present / future potential violations of the code or of the law. If either Qing or Jason had done so, then their GC and Ash Gupta would have been aware in February 2006 or as early as March 2005 or as late as January 2009 that Qing had breached the contract signed by his direct manager, Ash Gupta in June2000. And as managers, under the Code, they would forward this information to the Secretary of the Corporation. Given that I asked CEO Ken Chenault in the Shareholder's meeting in both April 2009 and April 2010 about the Qing incident, and Ken evaded the question by saying he believed in the integrity of the Amex employees and in the management of Corporate Secretary Stephen Norman (transcripts available), it seems to defy credulity that Ken would have been unaware of Qing's misdeeds and also of Qing's departure for competitor Chase Manhattan some 2 weeks after I asked that question in April 2009. And Ken could have taken the April 2010 re-asking to amend his statement to say that almost all of the Amex employees had integrity, but two of those 5 I had mentioned had breached the Code, and possibly Title VII of the Civil Rights Act of 1964, and possibly defamed me by making an untrue statement about me to a 3rd party. It was untrue what Qing said, since I am allowed to work 'here' at American Express as a contractor or as an employee of a vendor. Now, Banking President Ash Gupta signs many documents, including financial instruments, such as Bond issuances for Amex, Centurion Bank (I believe) and other certifications, as well as signing the June 2000 Amex-Lindner contract, where his name is mentioned I think ten times. So, I would think it prudent to suspend Ash from signing his name to any Amex promissory document, given that Amex did not mind when the June 2000 Amex-Lindner contract was violated by his direct employee, and Ash knew about it for months or years and did nothing, and covered it up with the able help of the General Counsel's Office. So, we come now to the question: Given that the Amex Code was violated by at least Amex VP Jason Brown, Esq. of the General Counsel's office and by Qing who managed 100 people in Risk Management at Amex prior to leaving in May 2009, wouldn't it make sense for their bosses to be held responsible for what they knew and when they knew it? And if they knew about it for months or years, wouldn't it make sense to accept/demand their resignation, along with putting into place new strictures so that this doesn't happen again? And given that you at PWC (as well as the SEC) has this information as a sworn statement from me for multiple weeks prior to the Amex 9am Monday May 2, 2011 Annual Shareholder Meeting, wouldn't it be appropriate at that time to retract your unqualified approval of Amex's financial and SEC filed documents, and state that you have information that casts doubts upon Ken's certification that SOX was complied with in FY 2010? Sincerely yours, Peter W. Lindner 1 Irving Place, Apt. G-23-C NY, NY 10003 home/fax: 212-979-9647 cell: 917-207-4962 email: nyc10003@nyc.rr.com cc: cfletters@sec.gov Bill Ford, registered broker (I believe) Geoff Hughes, Wachovia / Wells Fargo branch mgr & my broker Joe Sacca, Esq. Skadden STATE OF NEW YORK COUNTY OF NEW YORK Sworn as true on the __________ day of __________, 2010 by __________________________________ Peter W. Lindner From: Peter main email Sent: Friday, April 22, 2011 5:19 PM To: ward.hamm@pwc.com Cc: Joseph N Sacca ; cfletter@sec.gov Subject: American Express - do violations of SOX count as having impact on auditor's okay of Financial Stmts, incl certification by CEO of SOX compliance Ward: Here's my notarized sworn statement that I'm asking my two (past & present) brokers about the financial impact of an auditor disregarding Sarbanes Oxley violations by the Banking President and General Counsel, since that may not necessarily have an impact on the financial aspect (share price, net worth) of American Express. I think if President Clinton can be impeached for lying under oath about a consensual sexual affair that had nothing to do with the government (except the making a sworn statement), then I think Ash, Jason, the General Counsel can all be fired for covering up and not reporting for several months or years a known violation of both the SEC filed Code of Conduct under SOX, and of a contract signed by Banking President Ash Gupta and me and the General Counsel's office in June2000. In the credit card / banking industry, the whole concept is reliance upon one's word (e.g. Amex keeps track of a cardmember's promise to pay, and if the payment does not come in on time as the c/m promised - the check will be sent for $100 in two weeks - then Amex gives a negative mark on the c/m's history internally), then should not I be able to trust the word and then signature of both Amex and of Ash Gupta? And given that they (and I and CEO Ken Chenault and the GC) all signed the Code several times over their years at Amex, shouldn't they have acted in accordance with that dictate of the 2005/2006 Amex code which requires employees to report potential past / present / future violations of the Code or of the law to their manager, who in turn would report it to the Secretary of the Corporation? To me, this is a big deal. And if PWC decides that it is okay for the Banking President to disregard the June 2000 contract he signed with me, and disregard the Code which he signed maybe a half dozen times in 15 years and which he instructed his staff on the meaning of the Code as well as handled alleged violations of such code, then how can PWC say that Ash Gupta's signature is valid on promissory notes issued by Amex and on certifications to the SEC? And since you included that CEO Ken Chenault certified SOX compliance in the annual report filed with the SEC, and * it is clear now that o Ash, o Ken, o Jason and o the GC * all knew that o Qing violated the Code in 2005 and admitted it under oath in Court in January 2009, and that o the GC's Jason Brown, Esq. ? knew of this in Feb2006 and ? told me that orally then, ? but denied it in an email to me the next day, ? only to admit it under oath later in Jan2009, * and that Ken was apprised of that breach / violation in detail with specific names and facts in the Annual Shareholder's Meeting in o April 2009 o April 2010 * and that Ken refused to amend his misleading April 2009 statement in the 2010 meeting o which is SEC sanctioned event ? broadcast over the web ? with transcripts available on the web and by Thomson StreetEvents o and where financial details for the previous fiscal year are highlighted and amended don't you think that this is significant and a cover up and perhaps could cause not only Qing to leave Amex (as he did in May2009, 2 weeks after the Apr2009 meeting where I mentioned his name - a coincidence?)? I feel it's not often that a GC will sign a contract, sign a code of conduct, and be told in Jul2005 and again in Feb2006 of a violation of said Code and said Contract, and then help cover it up in an official summary in April 2006 to me (and perhaps to Secretary of the Corporation Stephen Norman), and not admit it until forced to under oath in Jan2009. I feel it is rare that Skadden would violate NY Judiciary section 487 by having an 'intent to deceive' a Court by falsely writing and saying that Amex did not interfere with me communicating to the SEC prior to 2009, when in fact their co-counsel Jean Park of Kelley Drye Warren authored such a document and enforced it in April 2007 under pain of me being in contempt of court until this alleged oral agreement was overturned by federal USDJ Koeltl in May 2007 (documents and transcripts upon request-although Amex has gotten a Court ORDER to stop me from possessing those documents or showing them to anyone under pain of Contempt of Court). So, we have here KDW and Skadden having 'intent to deceive' the Court (allegedly) which is a criminal misdemeanor which can cause them to be disbarred in SDNY, which would result in being disbarred in NY State, and which could win me treble damages in a separate suit in NY State, and Qing breaching the Code and the Contract signed by his boss for the 4-5 years from 2005-2009, and CEO Ken filing a misleading certification with the SEC that SOX was complied with in 2010. I think this really has financial impact, especially if any of these people I've named lose their tenure, bonuses, jobs or pensions. But I'm not a lawyer. The case is 06cv3834 Lindner v American Express and Qing Lin. Regards, Peter Lindner 1 Irving Place, Apt,G-23-C NYC, NY 10003 home/fax: 212-979-9647 cell: 917-207-4962 email: nyc10003@nyc.rr.com The matter concerns: "SEC Form DEF 14A is most commonly used in conjunction with an annual meeting proxy. The form should provide security holders with sufficient information to allow them to make an informed vote at an upcoming security holders' meeting or to authorize a proxy to vote on their behalf. It includes information about the date, time and place of the meeting of security holders; revocability of proxy; dissenter's right of appraisal; persons making the solicitation; direct or indirect interest of certain persons in matters to be acted upon; modification or exchange of securities; financial statements; voting procedures; and other details." http://www.investopedia.com/terms/s/SEC-Form-DEF- 14A.asp#axzz1kTQ34pbJ This is footnoted in http://www.sec.gov/interps/legal/cfslb14a.htm to refer to: * "See Amendments to Rules on Shareholder Proposals, Exchange Act Release No. 40018 (May 21, 1998)" which says that it is not "day-to-day business matters" if Shareholder proposals focus "on sufficiently significant social policy issues (e.g., significant discrimination matters)". My Shareholder Proposal (Attachment #____) is based on discrimination under EEOC rules and Title VII of the Civil Rights Act of 1964. http://www.sec.gov/rules/final/34-40018.htm "However, proposals relating to such matters but focusing on sufficiently significant social policy issues (e.g., significant discrimination matters) generally would not be considered to be excludable, because the proposals would transcend the day-to-day business matters and raise policy issues so significant that it would be appropriate for a shareholder vote." It is in the transcript as: "I'm not sure whether he can be used on an AXP" where AXP is the NYSE symbol for American Express [TR 201, lines 20-21, 14:58:01, The video tape is important to show how Ms. Park stops Brown from answering the question by me by repeatedly interrupting me and then calling me a "time waster" six times, but Mr. Brown says: " 18 Q. You have the part which is indented 19 where it has a quote. I'm talking about 17:39:11 20 Plaintiff's Exhibit 11. Can you read that 21 sentence? 22 A. "I'm not sure whether he can be used 23 on an AXP." 24 Q. Why did you not include that in your 0340 1 J.K. Brown 2 letter? 3 A. Why did I not include this in my 4 letter to you? Is that what you're asking me? 17:39:25 5 Q. Yes. 6 A. There was no reason for me to 7 include it." [TR 339 Lines 18-24 to TR 340 lines 2-7, January 22, 2009, 10:34 a.m., deposition of Jason K. Brown]