March 26, 1998
Subject: Gibby vs. IBM C.A. No. 97-2051, Lawsuit Web Site
Dear Mr. Herman:
Enclosed is a draft of my proposed web site content concerning my lawsuit with IBM. Please review the document completely for factual errors. Should you find any, please get back to me by April 10, 1998 with your specific corrections to specific paragraphs of my document.
Since this matter does not concern my attorney, please forward your corrections to me at the above address. Should you have any questions, please feel free to call me at 301/869-6302.
Very truly yours,
Keith S. Gibby
cc: Ms. Theresa K. Mohan, IBM
April 10, 1998
Subject: Web Site, Gibby vs. IBM C.A. No. 97-2051 (Rev. 1)
Dear Mr. Herman:
In response to your letter to Mr. Bruce Bender dated March 31, 1998 in response to my letter to you dated March 26, 1998 regarding my request to you to review the subject "web site content", Mr. Bender advised me today to resend to you a copy of such web site content (copy attached) for subsequent forwarding to your client for review and comment directly back to me. Contrary to your comment to Mr. Bender that my web site content contains numerous misstatements of fact, I have reviewed such content and all supporting documentation in detail and I believe there are no such misstatements.
Please instruct your client to review the document completely for any misstatements of fact I may have inadvertently made. Should your client find any, they should get back to me at the address above by April 24, 1998 with their specific corrections to any such specific misstatements and I will gladly correct them, as appropriate, prior to publishing and advertising my web site.
Should you have any questions, please call me at 301/869-6302.
Very truly yours,
Keith S. Gibby
-----Original Message-----
Subject: RE: Web Site, Gibby vs. IBM C.A. No. 97-2051
Dear Mr. Herman:
Will you or your client be responding to my previous correspondence requesting a review of the subject "web site content" (see below)? The courtesy of a response would be appreciated.
Electronically yours,
Keith S. Gibby
-----Original Message-----
Subject: Web Site, Gibby vs. IBM C.A. No. 97-2051
Importance: High
Dear Mr. Herman:
This e-mail is a follow-up to my letter to you dated April 10, 1998 regarding my request to your client to review the subject "web site content" for any misstatements of fact I may have inadvertently made prior to publishing and advertising my web site (copy of letter is below). In the letter, I requested your client get back to me by last Friday, April 24th. At this time, I have not heard back from them. Will a response be forthcoming or can I proceed with publishing and advertising my site as is?
Electronically yours,
Keith S. Gibby
--------------------------------------------
April 10, 1998
Subject: Web Site, Gibby vs. IBM C.A. No. 97-2051 (Rev. 1)
Dear Mr. Herman:
In response to your letter to Mr. Bruce Bender dated March 31, 1998 in response to my letter to you dated March 26, 1998 regarding my request to you to review the subject "web site content", Mr. Bender advised me today to resend to you a copy of such web site content (copy attached) for subsequent forwarding to your client for review and comment directly back to me. Contrary to your comment to Mr. Bender that my web site content contains numerous misstatements of fact, I have reviewed such content and all supporting documentation in detail and I believe there are no such misstatements.
Please instruct your client to review the document completely for any misstatements of fact I may have inadvertently made. Should your client find any, they should get back to me at the address above by April 24, 1998 with their specific corrections to any such specific misstatements and I will gladly correct them, as appropriate, prior to publishing and advertising my web site.
Should you have any questions, please call me at 301/869-6302.
Very truly yours,
Keith S. Gibby
May 22, 1998
Subject: Proposed Web Site Content, Gibby vs. IBM C.A. No. 97-2051
Dear Mr. Gerstner:
I regret having to bring the subject matter to your attention. However, I thought you might want to be made aware of a situation which could cause considerable embarrassment to the IBM Corporation; especially given all of the recent media attention to unethical and unscrupulous business practices (resulting in unnecessary litigation because too many corporations fail or refuse to take responsibility for their actions). Unfortunately, my claim against IBM is such a situation.
During the April 1998 timeframe (and with the concurrence of my attorney), I requested IBM's counsel (Mr. Anthony Herman, Covington & Burling) on four separate occasions to review the content of my "proposed web site content" for any inadvertent misstatements of fact (a copy of the "proposed web site content" is attached hereto). Further, I stated that if Mr. Herman would provide me with specific corrections to any such specific misstatements, I would gladly correct them, as appropriate, prior to publishing and advertising my "proposed web site content". To date, Mr. Herman has failed to respond to any of my requests.
The purpose of the web site is to provide readers with a detailed summary and description of my claim against IBM. Rather than address the merits of my claim, IBM's counsel chose to present an entirely different (and entirely unrelated) set of positions and assertions in order to avoid addressing the substantive issues of my claim. Consequently, the real truth of this matter has been buried in IBM's complex morass of legal maneuvering.
I thought you might want to be informed of these positions because they will be made available to all readers of my web site and could influence the perception IBM's employees, customers, suppliers, contractors and business partners have of the IBM Corporation and its business practices Some of the more "peculiar" positions and assertions IBM's counsel filed with the court are as follows:
As a result of the above, I would very much appreciate you directing your counsel to review my "proposed web site content" completely for any inadvertent misstatements of fact. Should your counsel find any, they should get back to me at the address above by June 18, 1998 with their specific corrections to any such specific misstatements and I will gladly correct them, as appropriate, prior to publishing and advertising my "proposed web site content". It is my sincere intent to produce a web site which clearly states the facts, while at the same time, allows me to express my opinions. 100% factual accuracy is essential. My personal integrity demands nothing less. However, should IBM fail to respond to this last request by the requested date, I will proceed, duly noting that IBM was given the opportunity to review and comment on the "proposed web site content" on numerous occasions, but it declined to do so.
The review of my "proposed web site content" notwithstanding, Mr. Gerstner, you have the authority to make this situation right without further legal maneuvering and responsibility avoidance techniques. All I ever wanted and asked for was that IBM compensate me honestly and fairly for the suggestions it implemented in accordance with the IBM Suggestion Plan. IBM has openly acknowledged it implemented my suggestions and benefited from them; however, IBM continues to assert that it has no obligation to act in good faith or to follow the terms of the Suggestion Plan. I must ask you - does this sound fair and reasonable to you? What does the handling of my claim say about the integrity of the IBM Corporation? What would be your opinion of IBM's business integrity if you were in my place? Would you think IBM had acted in good faith towards you?
I would appreciate a response from you. Should you have any questions or if there is any additional information I can provide you with, please call me at 301/869-6302.
Very truly yours,
Keith S. Gibby
June 19, 1998
Subject: Proposed Web Site Content, Gibby vs. IBM C.A. No. 97-2051
Dear Mr. Gerstner:
This letter is a follow-up to my letter to you dated May 22, 1998 whereby I requested you to direct IBM's counsel to review my "proposed web site content" (copy attached) for any inadvertent misstatements of fact and for them to get back to me by June 18, 1998 with their specific corrections to any such specific misstatements so I could correct them, as appropriate, prior to publishing and advertising the site's "content" on the World Wide Web.
As of today's date, IBM has been non-responsive to my request. Does IBM intend to perform the requested review? If so, please respond as requested above by next Friday, June 26, 1998. Should IBM fail to respond to this final review request by the above date, my web site will be updated to clearly reflect that IBM was given numerous opportunities to review and comment on the site's "content", but declined to do so. In addition, I will proceed with the advertisement and publication of my web site as set forth in the "proposed web site content". The publication date will be on or after Saturday, June 27, 1998.
The review of my "proposed web site content" notwithstanding, Mr. Gerstner, you have the authority to make this situation right. All I ever wanted and asked was for IBM to compensate me honestly and fairly for my suggestions, which it implemented in accordance with the IBM Suggestion Plan. IBM has openly acknowledged it implemented my suggestions and benefited from them; however, IBM continues to assert that it has no obligation to act in good faith or to follow the terms of the Suggestion Plan. I must ask you - does this sound fair and reasonable to you? What does the handling of my claim say about the IBM Corporation? What would be your opinion of IBM if you were in my place? Would you think IBM had acted in good faith towards you?
Mr. Gerstner, I want to take this opportunity to expand on the issue of good faith, fair dealing, honor and integrity. Throughout this entire series of events, I have made every attempt to conduct myself as a dignified, reasonable and honorable individual. My web site is very clear in differentiating between fact and opinion. I have written numerous letters, openly inviting IBM's review and input of my web site's "content" because I sincerely and honestly want this site to be as factually accurate as possible (with the full understanding that '"facts are facts", but opinions are my right and privilege). To this date, IBM refuses to even acknowledge receipt of my written requests. Frankly, I cannot understand the lack of such a simple business courtesy, as is a response to a sincere, written communication.
In addition to the requested response from IBM's counsel, I would appreciate a response from you regarding a fair and reasonable settlement of this matter. Should you have any questions or if there is any additional information I can provide you with, please call me at 301/869-6302.
Very truly yours,
Keith S. Gibby
Subject: Proposed Web Site Content, Gibby vs. IBM C.A. No. 97-2051
Dear Ms. Mohan:
This letter is a follow-up to my June 19, 1998 letter to Mr. Louis Gerstner on which you were copied (text of letter is below). I assume Mr. Gerstner has not seen the letter and that it has been forwarded to you as IBM's in-house business representative in the matter.
I would like to reiterate to you that this lawsuit was totally unnecessary. All I ever wanted and asked was for IBM to compensate me honestly and fairly for my suggestions, which it implemented pursuant to the terms of the IBM Suggestion Plan. I never asked for anything more. IBM has openly acknowledged it implemented my suggestions and has saved millions of dollars from them; however, IBM continues to assert that it has no obligation to act in good faith or to follow the terms of the Suggestion Plan. I must ask you - does this sound fair and reasonable to you?
Based on the Suggestion Plan's published award calculation methodology, I have placed a $600,000 minimum value on this lawsuit (i.e., 4 implemented sets of suggestions). With the lawsuit pending review before the United States Court of Appeals, I believe it is in our mutual best interest to come to a fair and reasonable settlement. We can put this matter behind us without incurring further attorneys' fees or court costs, and I can stop work on my web site. Otherwise, should I prevail on appeal, and I am then successful in presenting an unjust enrichment, Quantum Meruit, negligent misrepresentation and breach of contract claim to a jury, IBM's potential liability may go well into the millions of dollars. Of course, should IBM prevail on appeal, IBM won't owe me anything; however, how will the perception of others regarding IBM's business practices affect future IBM business?
As a result of the above, I would consider a figure between $425,000 - $475,000 to be fair and reasonable and also an expeditious, low-risk resolution of this matter. If you would like to discuss this further or would like to suggest an alternate proposal, please contact me by next Monday, June 27th, the date I am scheduled to begin publishing and advertising my web site.
Electronically yours,
Keith S. Gibby
June 29, 1998
BY FACSIMILE
Re: Gibby v. IBM CA No. 97-2051
Dear Mr. Bender:
As I sure you know, Mr. Gibby has recently written IBM insisting that the company specifically identify the mistakes that are present in his proposed web page site. We will not attempt to catalogue them here one by one. It suffices to say, for now, that there are many.
Mr. Gibby apparently plans to post on his site IBM-confidential material. Before posting this material, Mr. Gibby should be aware that the publication of confidential and proprietary information, as well as the circulation of defamatory and false information, gives rise to the potential for legal liability. We trust you will counsel Mr. Gibby accordingly.
Very truly yours,
Anthony Herman
July 1, 1998
Subject: Proposed Web Site Content, Gibby vs. IBM C.A. No. 97-2051
Dear Mr. Gerstner:
I regret having to bring the subject matter to your attention once again. However, I thought you might want to be made aware of a situation which could cause considerable embarrassment to the IBM Corporation; especially given all of the recent media attention to unethical and unscrupulous business practices (resulting in unnecessary litigation because too many corporations fail or refuse to take responsibility for their actions).
IBM's attorney, Mr. Anthony Herman, sent a letter dated June 29, 1998, to my attorney whereby he indicated that my "proposed web site content" contains IBM confidential information, is defamatory and false, and, therefore, that I was subject to potential legal liability
(a copy of the letter is attached). In response to this letter, I informed Mr. Herman in an e-mail dated July 1st that I had reviewed all such "content" in detail and I could find no misstatements of fact or that the "content" IS NOT: (i) in the public domain (e.g., court filings), or (ii) provided with the consent of the authoring party, or (iii) provided pursuant to the "Fair Use" provisions of the United States Copyright Act; or (iv) was received without obligation of confidentiality, and, therefore, all such "content" is freely available for public dissemination (a copy of the e-mail is attached).As such, I informed Mr. Herman in said e-mail that in a final good faith attempt to publish and advertise a web site which clearly states the facts, while at the same time, allows me to express my opinions, I was respectfully requesting his review of my "proposed web site content" for any inadvertent misstatements of fact or whether the "content" contains any "protected" IBM information. And should Mr. Herman find any such "misstatements" or "protected" information, I asked him to get back to me directly (again, this is WITH the concurrence of my attorney) by close of business next Wednesday, July, 8th, with any specific corrections to any such specific "content" and I will gladly correct/amend such "content", as appropriate, prior to publishing and advertising the "content" on the World Wide Web.
At this point in time, isn't it in our mutual best interests for IBM to provide me with a "responsive" response to my numerous "content" review requests rather than continuing to send my attorney letters threatening me with possible litigation? How do you think the media and public will react to IBM if IBM sues me for exercising my freedom of speech rights even after being OVERLY cautious and sensitive to IBM by giving it NUMEROUS opportunities to correct/comment on such "content" prior to publishing and advertising it? Does this sound like ethical, fair and reasonable business practice to you? What would be the general publics' opinion of IBM if they were in my place? Would they think IBM had acted ethically and in good faith towards them?
The review of my "proposed web site content" notwithstanding, Mr. Gerstner, you have the authority to make this situation right without further legal maneuvering and responsibility avoidance techniques. All I ever wanted and asked for was that IBM compensate me honestly and fairly for the suggestions it implemented in accordance with the IBM Suggestion Plan. IBM has openly acknowledged it implemented my suggestions and benefited from them; however, IBM continues to assert that it has no obligation to act in good faith or to follow the terms of the Suggestion Plan. I must ask you - does this sound fair and reasonable to you? What does the handling of my claim say about the integrity of the IBM Corporation? What would be your opinion of IBM's business integrity if you were in my place? Would you think IBM had acted in good faith towards you?
I would appreciate a response from you. Should you have any questions or if there is any additional information I can provide you with, please call me at 301/869-6302.
Very truly yours,
Keith S. Gibby
Subject: Proposed Web Site Content, Gibby vs. IBM C.A. No. 97-2051
Dear Mr. Herman:
This letter is in response to your letter to Mr. Bruce Bender dated June 29, 1998 (same subject), whereby you indicated that my "proposed web site content" contains IBM confidential information, and is defamatory and false. Once again, I have reviewed all such "content" in detail and I can find no misstatements of fact or that the "content" IS NOT: (i) in the public domain (e.g., court filings), or (ii) provided with the consent of the authoring party, or (iii) provided pursuant to the "Fair Use" provisions of the United States Copyright Act; or (iv) was received without obligation of confidentiality. Therefore, all such "content" is freely available for public dissemination.
As such, in a final good faith attempt to publish and advertise a web site which clearly states the facts, while at the same time , allows me to express my opinions, I am respectfully requesting you review my "proposed web site content" completely for any inadvertent misstatements of fact or whether the "content" contains any "protected" IBM information. Should you find any such "misstatements" or "protected" information, you should get back to me directly (again, this is WITH the concurrence of my attorney) by close of business next Wednesday, July, 8th, with any specific corrections to any such specific "content" and I will gladly correct/amend such "content", as appropriate, prior to publishing and advertising the "content" on the World Wide Web.
At this point in time, isn't it in our mutual best interests for IBM to provide me with a "responsive" response to my numerous "content" review requests rather than continuing to send my attorney letters threatening me with possible litigation? How do you think the media and public will react to IBM if it sues me for exercising my freedom of speech rights after having been OVERLY cautious in giving IBM NUMEROUS opportunities to correct/comment on such "content" prior to publishing and advertising it? Does this sound like ethical, fair and reasonable business practices to you? What would be your opinion of IBM if you were in my place? Would you think IBM had acted ethically and in good faith towards you?
Should you have any questions, please feel free to call me at the telephone number below.
Electronically yours,
Keith S. Gibby
July 12, 1998
Subject: Proposed Web Site Content, Gibby vs. IBM C.A. No. 97-2051
Dear Mr. Gerstner:
As a follow-up to my letter to you dated July 1, 1998, I can only assume from IBM's lack of response to said letter that this is IBM's tacit acknowledgement that my "proposed web site content" does not contain any "protected" (i.e., IBM confidential and proprietary information) information, nor does it contain any misstatements of fact; defaming, false or other information which could give rise to potential legal liability with IBM.
As such, I've temporarily published the "proposed web site content" at http://www.oocities.org/~keithgibby/ until I receive my personalized Uniform Resource Locator (URL) from the InterNic. I should receive such URL within the next couple of weeks. Until such time that I receive the new URL, I am going to refrain from advertising my web site so that I only have to advertise once with the correct URL. Once I receive such URL, I will proceed with advertising my web site as set forth in the "proposed web site content".
Please note that at any time IBM would like to provide me with a "responsive" response to my numerous "proposed web site content" review requests, I will gladly correct/amend such "content", as appropriate. Until such time, my web site will reflect that IBM was given numerous opportunities to review, comment and/or correct the "proposed web site content", but it declined to so.
In addition, rather than provide me with said "responsive" response, IBM chose to respond by making a blanket statement that my "proposed web site content" contains confidential and proprietary information, is defamatory and false, and, therefore, publication gives rise to potential legal liability. I believe that anyone who reads how many times I tried to get IBM to comment on the "content" (without success) is going to perceive that IBM threatened me with possible litigation to dissuade me from publishing what I believe to be are unethical and unscrupulous business practices of the IBM Corporation in handling my claim.Once again, Mr. Gerstner, you have the authority to make this situation right without further legal maneuvering and responsibility avoidance techniques. (Please note that the June 23, 1998 settlement offer I proposed to Ms. Theresa K. Mohan went unanswered.) All I ever wanted and asked for was that IBM compensate me honestly and fairly for the suggestions it implemented in accordance with the IBM Suggestion Plan. IBM has openly acknowledged it implemented my suggestions and benefited from them; however, IBM continues to assert that it has no obligation to act in good faith or to follow the terms of the Suggestion Plan. I must ask you - does this sound fair and reasonable to you? What does the handling of my claim say about the integrity of the IBM Corporation? What would be your opinion of IBM's business integrity if you were in my place? Would you think IBM had acted in good faith towards you?
Very truly yours,
Keith S. Gibby