EX-99.32 33 emailcompanytocounsel.htm WRITTEN CORRESPONDENCE FROM THE COMPANY TO MICHAEL W. KLINGER'S COUNSEL DATED 04/28/2009 emailcompanytocounsel.htm
EXHIBIT 99.32
 
From: John Houston Pope 
Sent: Tuesday, April 28, 2009 9:52 PM
To: kathleen@delaneylaw.net
Subject: Fw: Please Forward to Mr. Klinger's Counsel
 
Please see below.
 
John Houston Pope | Bio
 
(212) 351-4641 (direct) | (212) 878-8741 (fax)
 
JHPope@ebglaw.comEPSTEINBECKERGREEN
 
250 Park Avenue | New York, NY 10177
 
(212) 351-4500 (main) | www.ebglaw.comThink Green. Please consider the environment before you print this message. Thank you.

 
 
From: Behrent, Matt
To: John Houston Pope
Sent: Tue Apr 28 21:13:28 2009
Subject: Please Forward to Mr. Klinger's Counsel
 
April 28, 2009
 
John,
 
Please forward this message to Mr. Klinger's Counsel.
 
Matthew Behrent
 
-------------------------------------------
 
April 28, 2009
 
Kathleen A. DeLaney
 
DeLaney & DeLaney LLC
 
3646 N. Washington Blvd.
 
Indianapolis, IN 46205
 
Tel: 317-920-0400 Main
 
Tel: 317-920-0500 Direct
 
Fax: 317-920-0404kathleen@delaneylaw.net www.delaneylaw.net
 
Kathleen,
 
Given that a significant portion of Michael W. Klinger's ("Mr. Klinger") claims for compensation relate to entitled vacation days that Mr. Klinger claims not to have utilized, Plaintiffs commenced on April 24, 2009 a comprehensive review of the vacation days actually taken by Mr. Klinger, versus those he self-reported to the Plaintiffs (for tracking purposes). As you may know, your client was in the position of self-reporting his vacation and working in a location that was remote from his direct superiors. Based on our preliminary analysis of computer records of Mr. Klinger’s use of his security card to enter the Fishers’ facility, a review of Mr. Klinger’s own notes on his Microsoft Outlook calendar, and emails listing planned and actual vacations, we note the following preliminary conclusions based only on a review of days in the second half of 2008:
 
 

1. For allof 2008, Mr. Klinger specifically reported two vacation days (August 8 and 11, 2008) and three “Personal Time Days” (May 9, 22 and 23 , 2008). Mr. Klinger separately noted in an email to Ann Gaffney, requesting the number of vacation days taken in 2008, that he had taken “5 days” in 2008, but he has not provided specifically on what days those additional 3 days of vacations were taken (assuming the "5 days" was not meant to include the three "Personal Time Days"). We have assumed for this analysis, to provide the benefit of the doubt to Mr. Klinger, that all of those 5 days of vacation were taken in the second half 0f 2008, the period we have analyzed so far.
 
 
2. In the second half of 2008, Plaintiffs have identified 12 days where Mr. Klinger marked entire days in his Outlook Calendar as “Vacation” (or in December 2008, were within a period his calendar indicated he had travelled to Florida) and where computer records indicate Mr. Klinger’s security card was not used to access the Fishers’ facility at any point during those days. (See Exhibit A) Based on this analysis, Mr. Klinger appears to have failed to properly self-report 7 days of vacation (12 identified days less the assumption that all 5 vacation days self-reported in 2008 occurred in the second half of 2008) during this six month period, or said differently, Mr. Klinger appears to have self-reported only 42% of his actual vacation days taken during this period.
 
 
3. In the second half of 2008, Plaintiffs have identified an additional 6 days (June 6 and June 9-13, 2008) that Mr. Klinger identified as a planned vacation in a May 21, 2008 email. Mr. Klinger also listed 5 of those days as “Summer Camp” in his Outlook Calendar (June 9-13, 2008). Further, in a June 6, 2008 email, Mr. Klinger stated “I’m off on vacation thru next week.” (See Exhibit B). Based on this analysis, and together with the vacation days Mr. Klinger appears to have failed to self-report in paragraph 2, above, Mr. Klinger appears to have failed to properly self-report a total of 13 days of vacation during this six month period (18 identified days less the assumption that all 5 vacation days self-reported in 2008 occurred in the second half of 2008) during this six month period, or said differently, Mr. Klinger appears to have self-reported only 28% of his actual vacation days taken during this period.
 
 
4. In the second half of 2008, Plaintiffs have identified an additional 18 days where computer records indicate Mr. Klinger’s security card was not used to access the Fishers’ facility at any point during the day and where Mr. Klinger’s absence was not explained by business travel or holidays or included in Paragraphs 2 or 3 above. (See Exhibit C) Unlike the analysis in Paragraphs 2 and 3, we note that for these days there is currently no further corroborating evidence in addition to the lack of security card "swipes."
 
 
We are expanding this review (in particular, seeking corroboration for the days with no "swipes" listed in Paragraph 4) to include an analysis of Mr. Klinger’s office and cell phone records, and all of his Microsoft Office E-mails, and extending the analysis into all periods of Mr. Klinger’s employment, including by subpoena to Universal Music Group. We will also pursue discovery of related personal records of Mr. Klinger to further corroborate that analysis.
 
 
We note that we reserve all legal rights, including those we may have to dispute both the actual vacation days taken by Mr. Klinger, his legal entitlement to the payment of any accrued vacation as a result of Plaintiffs’ justifiable termination of Mr. Klinger’s employment with Cause, and whether Mr. Klinger’s failure to properly record his vacations may also constitute acts of dishonesty or fraud resulting in personal enrichment that could constitute further grounds for termination of Mr. Klinger’s employment with Cause.
 
 
I encourage your client to resubmit his correct vacation day usage with suitable backup, at a minimum for his employment since May 31, 2005. Alternatively, if you or your client have any other proposal for a potential resolution of the disparities between Mr. Klinger’s self-reported vacation days and his actual vacation days, I encourage you to let us know.
 
Regards,
 
Matthew Behrent
 
__________________________________________
 
 
Matthew K. Behrent
 
 
EVP, Corporate Development, Legal Counsel
 
 
EDCI Holdings, Inc.
 
 
1755 Broadway, 4th Fl.
 
 
New York, NY 10019