Government's Amended Proposed Findings of Fact : U.S. v. Stolt-Nielsen S.A., et al.

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA,
                  v.
STOLT-NIELSEN S.A., et al.

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CRIMINAL ACTION
NO. 06-cr-466
Filed: August 23, 2007

GOVERNMENT'S AMENDED
PROPOSED FINDINGS OF FACT

ANTONIA R. HILL
WENDY BOSTWICK NORMAN
KIMBERLY A. JUSTICE
RICHARD S. ROSENBERG
LAURA HEISER
JEFFREY C. PARKER
Attorneys, Antitrust Division
U.S. Department of Justice
Philadelphia Office
The Curtis Center, Suite 650 West
170 S. Independence Mall West
Philadelphia, PA 10106
Tel. No.: (215) 597-7401

Dated: August 23, 2007

TABLE OF CONTENTS

THE CONSPIRACY PERIOD: AUGUST 1998 TO NOVEMBER 2002
PUBLIC EXPOSURE ENDS CONSPIRACY IN NOVEMBER 2002
SUMMARY OF WITNESS CREDIBILITY
CORPORATE LENIENCY

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA,
                  v.
STOLT-NIELSEN S.A., et al.

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CRIMINAL ACTION
NO. 06-cr-466
Filed: August 23, 2007

GOVERNMENT'S AMENDED
PROPOSED FINDINGS OF FACT

I.
THE CONSPIRACY PERIOD: AUGUST 1998 TO NOVEMBER 2002

Beginning in August 1998, Stolt,⁽¹⁾ Odfjell and Jo Tankers Conspired to Allocate Customers and Rig Bids

Cooperman and others formed conspiracy at August 1998 meeting

1. The charged conspiracy was formed in August 1998, when Stolt executives Samuel Cooperman and Andrew Pickering met in Stolt's London offices with Odfjell executives Bjorn Sjaastad, Erik Nilsen and Atle Knutsen. During this meeting, Stolt and Odfjell agreed not to compete for each other's customers on deep-sea trade routes around the world. (Nilsen, 6/15/07 p. 146 line 3 to p. 147 line 7; Sjaastad, 6/20/07 p. 91 lines 11-22; Knutsen, 6/13/07 p. 17 lines 2-9; see also Pickering, 5/31/07 p. 153 lines 5-9, p. 154 lines 6-8). At this time, Cooperman was President and CEO of SNTG, positions which he held until 2001 when he became Chairman of SNTG. In November 2002, when Stolt applied for conditional leniency, Cooperman was still Chairman of SNTG.

2. Stolt and Odfjell began the conspiracy in order to stabilize market prices by preventing an outbreak of competition at a time when the market was in a downward trend, partially due to the conditions in Asia which had a negative effect on freight rates. (Nilsen, 6/19/07 p. 208 line 10 to p. 209 line 2).

Customer allocation lists were created and exchanged

3. During the August 1998 meeting, Stolt and Odfjell agreed to create and exchange customer allocation lists to help carry out the worldwide agreement. Shortly after the meeting, they prepared and exchanged such lists. (See Pickering, 5/31/07 p. 136 line 23 to p. 139 line 13; Nilsen, 6/15/07 p. 120 lines 19-23; see GX-37, 38, 39A, 39B).

4. Pursuant to the agreement, Stolt and Odfjell divided almost 150 customers on numerous deep sea trade lanes around the world. (See GX-37, 38, 39A, 39B).

5. Between August 1998 and January 2001, Pickering was Manager of Tanker Trading (Pickering, 5/31/07 p. 96 lines 16-19) and Stolt's key conspirator. (See Pickering, 5/31/07 p. 134 line 5 to p. 136 line 2; p. 158 lines 21-24). During this time, Pickering reported directly to Cooperman about the conspiracy (see Pickering, 5/31/07 p. 139 line 20 to p. 140 line 1; p. 152 line 13 to p. 154 line 15), and Richard Wingfield also knew about the conspiracy. (Pickering, 5/31/07 p. 158 lines 16-20).

6. Around the same time that Stolt and Odfjell began colluding, Jo Tankers joined the conspiracy. While customer lists were not exchanged, Stolt and Pickering participated in conspiratorial discussions with Jo Tankers concerning certain customers on different trade lanes around the world. (Pickering, 5/31/07 p. 135 line 21 to p. 136 line 2).

Conspiracy was referred to as cooperation, coop or status quo agreement

7. The agreement was commonly referred to at Stolt as the cooperation, coop or status quo agreement (Humphreys, 6/4/07 p. 144 lines 17-21; Jansen, 6/13/07 p. 90 lines 9-17; Long, 6/5/07 p. 59 lines 6-13), including by defendant Cooperman (Jansen, 6/13/07 p. 96 lines 5-9).

General Operation of the Conspiracy

No competition for contract customers on allocation lists

8. To carry out the customer allocation agreement, Odfjell and Stolt typically would not bid or compete for contracts of customers allocated to the other conspirator. (Pickering, 5/31/07 p. 197 lines 5-16; Nystad, 6/12/07 p. 73 lines 16-21; Nilsen, 6/19/07 p. 219 line 18 to p. 221 line 5).

Talked about contract solicitations only when necessary

9. Stolt and Odfjell talked in connection with contract solicitations when it was necessary for one to quote for the other's contract, such as when a customer was persistent or a failure to bid would look suspicious. Implementation of the agreement generally did not require much discussion. In most instances, one company would simply not bid to a customer allocated to the other. (Nilsen, 6/19/07 p. 219 line 18 to p. 221 line 5).

10. In some instances where it was necessary to bid for the other's customer, Stolt and Odfjell discussed prices and submitted intentionally high bids to the other's customers. (Id.; 6/19/07 p. 22 lines 7-20). "Guidance" was the term used by Stolt employees to describe price discussions by the coconspirators. (Vogth-Eriksen, 6/4/07 p. 34 lines 13-21).

Agreement did not apply to spot cargoes, new business or regional trade

11. The allocation agreement reached in August 1998 covered contracts of affreightment for deep-sea contracts. (See Pickering, 5/31/07 p. 154 lines 6-8; Long, 6/5/07 p. 89 lines 5-15; Fleming, 6/5/07 p. 38 line 25 to p. 39 line 2; see also GX-37, 38, 39A-B).

12. This agreement did not cover spot cargoes (Long, 6/5/07 p. 88 lines 1-7; Nystad, 6/12/07 p. 37 lines 2-5). Spot cargoes only cover a single shipment. (Nystad, 6/12/07 p. 35 line 12 to p. 36 line 4).

13. This agreement did not cover new business (Vogth-Eriksen, 6/4/07 p. 33 lines 8-10; Long, 6/5/07 p. 88 line 1 to p. 89 line 4; Nystad, 6/12/07 p. 41 lines 20-22).

14. This agreement did not generally cover any regional trade (Wingfield, 6/6/07 p. 56 lines 13-16; Long, 6/5/07 p. 89 lines 5-15; Nystad, 6/12/07 p. 37 lines 2-12). However, in 2000, the agreement was modified following a discussion between Knutsen and Pickering to include one regional area, U.S. Gulf to Mexico. Lower-level executives responsible for this region carried out the agreement. (See Knutsen, 6/13/07 p. 29 line 7 to p. 39 line 9; Nystad, 6/11/07

p. 149 line 16 to p. 151 line 1; GX-40; GX-53). This subsidiary arrangement came to be the subject of some dispute between the companies. (See Nystad, 6/11/07 p. 149 line 16 to p. 151 line 1; Long, 6/5/07 p. 89 line 21 to p. 91 line 4; Fleming, 6/5/07 p. 30 lines 2-10; GX-53).

Wingfield Succeeds Pickering as Stolt's Key Conspirator in 2001

15. In February 2001, Wingfield became Managing Director of Tanker Trading at Stolt, i.e., the highest-ranking executive in charge of Stolt's shipping business (Wingfield, 6/6/07 p. 107 lines 18-22; Pickering, 5/31/07 p. 96 lines 13-23), and assumed Pickering's role in the conspiracy. (Pickering, 5/31/07 p. 158 lines 16-24). Pickering introduced Wingfield to Stolt's coconspirators at Jo Tankers and Odfjell as Pickering's replacement as Stolt's key conspirator. (Pickering, 5/31/07 p. 158 line 25 to p. 159 line 8).

16. Bjorn Jansen, Wingfield's subordinate, participated in conspiratorial meetings and discussions with Odfjell. (Jansen, 6/13/07 p. 88 lines 7-18). Cooperman knew about Jansen's part in the conspiracy because prior to March 2002, Jansen discussed conspiratorial matters with Cooperman. (Jansen, 6/13/07 p. 93 line 3 to p. 94 line 11).

New customer allocation lists negotiated and exchanged

17. Wingfield and Jansen met with Nilsen and other representatives of Odfjell in March and May 2001. During this same time, Stolt and Odfjell negotiated and exchanged new customer allocation lists. (Nystad, 6/12/07 p. 45 line 16 to p. 50 line 4; see also GX-41; GX-42)

Wingfield limited conspiratorial contacts at Stolt: discussions with competition to be only through Wingfield and Jansen

18. Prior to 2001, Pickering had delegated responsibility for implementing the conspiracy to the business directors and other lower-level employees (see Pickering, 5/31/07 p. 134 line 15 to p. 135 line 20), and there was widespread communication about the conspiracy between lower-level employees of Stolt and Odfjell during this time. (See Haugsdal, 6/12/07 p. 93 line 17 to p. 94 line 21; Nystad, 6/11/07 p. 179 lines 3-25).

19. Soon after Wingfield assumed the day-to-day management of the conspiracy for Stolt in 2001, Wingfield and Odfjell's Jarle Haugsdal determined that there were too many communications among lower-level employees. Accordingly, they agreed that lower-level employees should stop communicating about the conspiracy and that communications would be limited to Wingfield and Jansen for Stolt, and Nilsen and Nystad for Odfjell. (See Haugsdal, 6/12/07 p. 92 line 15 to p. 94 line 21; Nystad, 6/11/07 p. 179 lines 3-25).

20. Wingfield then directed lower-level Stolt employees to stop talking to competitors about conspiratorial matters, and that he and Jansen would be responsible for all such contacts. (Cleary, 6/1/07 p. 161 line 10 to p. 163 line 3 (Wingfield to handle illegal contacts with Jo Tankers; Jansen to handle conspiratorial contacts with Odfjell); Long, 6/5/07 p. 92 lines 14 to p. 95 line 24; Fleming, 6/5/07 p. 10 line 11 to p. 12 line 14 (told by his superior, Long, that Jansen would handle conspiratorial contacts with Odfjell). Jansen confirmed Wingfield's instructions. (Long, 6/5/07 p. 95 lines 17-24).

Customer allocation lists collected from lower-level Stolt employees

21. To carry out Wingfield's direction to limit conspiratorial contacts, customer allocation lists were collected from lower-level Stolt employees in 2001. (Fleming, 6/4/07 p. 209 lines 7-15).

The Conspiracy was Profitable — The April 2001 Jansen Memo

22. Cooperman would not have entered into the illegal customer allocation agreement with Odfjell and exposed himself, Stolt and its employees to criminal liability unless he expected Stolt to profit from the agreement.

Wingfield directed Jansen to analyze the pros and cons of continuing the conspiracy

23. The conspiracy's profitability to Stolt was confirmed in April 2001, when Wingfield directed Jansen to analyze the pros and cons of continuing the illegal customer allocation agreement with Odfjell. Jansen summarized the opinion he and the business directors reached in a memorandum ("the Jansen Memo"), which he faxed to Wingfield on April 10, 2001. (GX-2; Humphreys, 6/4/07 p. 140 line 24 to p. 144 line 21; Jansen, 6/13/07 p. 88 line 19 to p. 91 line 5).

Preferable to continue "coop" with Odfjell rather than "go to war"

24. In this Memo, Jansen told Wingfield that he and the business directors strongly believed that it was preferable to continue the "coop" with Odfjell rather than to "go to war" with Odfjell. (GX-2, at 2). Jansen testified that the reference to "continued coop" in his Memo meant maintaining the illegal agreement with Odfjell (Jansen, 6/13/07 p. 90 line 18 to p. 91 line 2), and that the term "go to war" meant having no conspiratorial agreement and actually competing with Odfjell. (Jansen, 6/13/07 p. 91 lines 3-5).

Breaking the agreement would cause Stolt to suffer a reduction of rates and could not easily be put back together

25. Jansen advised Wingfield that if Stolt were to "break the coop," i.e., compete with Odfjell, it would take Stolt and Odfjell a long time "to put it back together." Jansen further advised that breaking the agreement would cause Stolt to "suffer a reduction in rates in general." (GX-2, at 2; Jansen, 6/13/07 p. 254 lines 6-14).

26. Wingfield testified that he understood that Jansen's Memo discussed Stolt's illegal agreement with Odfjell. Specifically, Wingfield admitted that he understood Jansen's use of the term "break the coop" meant to end the illegal cooperation agreement with Odfjell (Wingfield, 6/6/07 p. 14 line 23 to p. 15 line 5), and that the term "go to war" meant Stolt actually competing with Odfjell for business. (Wingfield, 6/6/07 p. 15 lines 11-16).

27. Wingfield understood that unless Stolt continued the conspiracy with Odfjell, it would suffer a reduction in rates, which would mean a reduction in profits. (See Wingfield, 6/6/07 p. 17 line 18 to p. 18 line 1).

Thereafter, Stolt continued to participate in the conspiracy

28. After Jansen sent this analysis of the conspiracy's profitability to Wingfield, Stolt continued to participate in the conspiracy, and, on May 18, 2001, Jansen discussed the conspiratorial agreement with Cooperman. (Humphreys, 6/4/07 p. 146 lines 6-18).

Paul O'Brien Discovered the Conspiracy in Early 2002

O'Brien was knowledgeable about parcel tanker shipping industry and roles played by Stolt and its competitors

29. Paul O'Brien began working at Stolt in 1991. (O'Brien, 6/14/07 p. 22 line 23 to p. 23 line 2). In January 2002, O'Brien was Senior Vice-President and General Counsel and Senior Vice-President of the Projects and Legal Department at Stolt. (O'Brien, 6/14/07 p. 23 lines 9-13).

30. As General Counsel, O'Brien was directly responsible for overseeing Stolt's compliance with antitrust and other federal laws and regulations. (O'Brien, 6/14/07 p. 26 lines 14-17).

31. O'Brien's Projects Department responsibilities included developing Stolt's transportation and logistics network through mergers and acquisitions, expansions and joint ventures. (O'Brien, 6/14/07 p. 23 line 14 to p. 24 line 9).

32. During his more than ten-year tenure at Stolt, O'Brien learned about Stolt's parcel tanker shipping business and the responsibilities of its employees. (O'Brien, 6/14/07 p. 27 lines 8-17; see p. 25 line 5 to p. 27 line 7; p. 35 lines 13-23). He became familiar with Stolt's use of abbreviations for names of employees, trade lanes and competitor companies in internal company documents. (O'Brien, 6/14/07 p. 27 line 18 to p. 28 line 13, and p. 36 line 7 to p. 37 line 25). O'Brien also was familiar with the parcel tanker industry and the identity of Stolt's competitors. (O'Brien, 6/14/07 p. 27 line 8 to p. 28 line 13).

33. Part of O'Brien's responsibilities included drafting and reviewing written agreements Stolt had with other parcel tanker shipping companies, and he was aware of all written agreements Stolt had with its competitors. (O'Brien, 6/14/07 p. 28 line 14 to p. 29 line 14).

O'Brien found the Jansen Memo which informed him of Stolt's participation in the allocation agreement

34. In mid-January 2002, O'Brien discovered a copy of the Jansen Memo (GX-2), which had been left anonymously on his desk. (Nannes, GX-6 p. 70 lines 12-13, p. 96 lines 14-17; O'Brien, 6/14/07 p. 33 line 7 to p. 34 line 6).

35. O'Brien understood the meanings of the abbreviations in the Jansen Memo, including the names of individuals, trade lanes, contracts of affreightment (COA's), and he knew that "OST" referred to Odfjell. (O'Brien, 6/14/07 p. 35 line 24 to p. 37 line 25). (See Nannes, GX-6 p. 104 lines 11-19).

36. O'Brien's knowledge of the parcel tanker shipping industry and Stolt's business enabled him to understand that the Jansen Memo was a conspiratorial document in which Jansen discussed the illegal agreement Stolt had with Odfjell.

O'Brien told Cooperman that Stolt was violating the antitrust laws in February 2002

37. In early February 2002, after O'Brien found the Jansen Memo, he sent Cooperman a memorandum raising antitrust concerns. (See Nannes, GX-5 p. 113 lines 3-6).

38. O'Brien then told Cooperman that he believed that "as exhibited in the Jansen [Memo]" Stolt "had engaged in cooperation in the form of an express agreement with Odfjell to allocate customers," in violation of the law. (Nannes, GX-6 p. 104 lines 11-19).

Cooperman Responded to O'Brien's Discovery With Sham Investigation and Conspiracy Continues

Wingfield told Jansen that O'Brien found the Jansen Memo

39. In February 2002, while he was on vacation, Jansen received a telephone call from Wingfield concerning the Jansen Memo. Wingfield told Jansen that O'Brien had obtained a copy of the Memo and that Cooperman wanted to speak to him concerning the matter as soon as Jansen returned from vacation. (Jansen, 6/13/07 p. 89 lines 5-19).

Cooperman told Jansen that Wingfield was stupid to ask for the Memo and Jansen was stupid to send it

40. As soon as Jansen returned from vacation, Cooperman called Jansen into his office to discuss the Memo. (Jansen, 6/13/07 p. 91 lines 9-18). Cooperman chastised Jansen for putting the agreement in writing, calling Wingfield "stupid" for having asked for this written report and Jansen "stupid" for having sent it. (Jansen, 6/13/07 p. 92 lines 18-22; see also GX-140A, at 2 ("[Cooperman] - Stupid of [Wingfield] to ask [Jansen] to make paper trail"); GX-140B, at 3; GX-140C, at 3).

41. Following his receipt of O'Brien's report concerning the Jansen Memo, Cooperman set about to conceal evidence of the conspiratorial agreement, and the fact that the Jansen Memo contained an analysis of that agreement.

Cooperman gave oligopoly lecture to business directors

42. Around this time, Cooperman held private one-on-one meetings with Stolt's business directors who had participated in the conspiracy. During these meetings, Cooperman explained to the business directors the theory of oligopoly and how, for both companies to profit, it made sense for Stolt to stay away from Odfjell's customers and for Odfjell likewise to stay away from Stolt's. Cooperman never asked the directors if they had been talking to Odfjell about customers, contracts, or prices. (Humphreys, 6/4/07 p. 146 line 21 to p. 148 line 16; Cleary, 6/1/07 p. 120 line 6 to p. 124 line 1).

43. The record does not support a finding that Cooperman gave an unequivocal message that all illegal antitrust activity was to stop. Cleary testified that Cooperman did not tell him the illegal allocation agreement with Odfjell had to stop. Rather, Cooperman merely said future communications with competitors had to go through Reginald Lee, SNTG's CEO. (Cleary, 6/1/07 p. 123 line 9 to p. 124 line 1).

Cooperman prepared a memorandum summarizing his investigation into O'Brien's allegations

44. In order to conceal evidence of the conspiracy, which he started, Cooperman prepared a report of an investigation he purportedly conducted during February 2002, after receipt of O'Brien's memorandum to him regarding the Jansen Memo. (See GX-13B, at 001630-31).

Cooperman falsely reported that he interviewed Stolt employees about antitrust violations

45. Cooperman's report was received by Stolt's in-house counsel (Alan Winsor) and its outside counsel (Gary Sesser) on or before May 14, 2002. In it, Cooperman falsely stated that as part of this purported investigation he "interviewed" certain Stolt employees, including Jansen, Humphreys and Cleary. (See GX-13B, at 001630-31).

Cooperman falsely reported that Cleary denied any knowledge of ongoing antitrust violations

46. In his report, Cooperman falsely described his meeting with Brian Cleary. Specifically, Cooperman described this meeting as an interview and stated that Cleary "denied any knowledge of any ongoing antitrust violations." (GX-13B, at 001630). In fact, Cleary never denied any knowledge of ongoing antitrust violations because Cooperman never even asked Cleary about ongoing antitrust violations. (Cleary, 6/1/07 p. 125 lines 18-24). Nor did Cooperman ask Cleary whether he had ever talked to anyone at Odfjell concerning customers, prices or upcoming contracts. (Cleary, 6/1/07 p. 121 line 14 to p. 123 line 8).

Cooperman falsely reported that Humphreys denied any knowledge of ongoing antitrust violations

47. In his report, Cooperman also falsely described his meeting with William Humphreys. Specifically, Cooperman described this meeting as an interview and stated that Humphreys "denied any knowledge of any ongoing antitrust violations." (GX-13B, at 001630). In fact, Humphreys never denied any knowledge of ongoing antitrust violations as Cooperman never even asked him in the fifteen minutes Humphreys spent in Cooperman's office. (Humphreys, 6/4/07 p. 147 line 25 to p. 148 line 5). Nor did Cooperman ask Humphreys whether he was talking to anyone at Odfjell about customers, prices or upcoming contracts. (Humphreys, 6/4/07 p. 148 lines 6-16). Moreover, when shown Cooperman's report, Humphreys testified that it did not accurately reflect his discussion with Cooperman, nor did he understand their brief discussion to be part of any investigation. (See Humphreys, 6/4/07 p. 149 line 3 to p. 151 line 4).

Cooperman falsely reported about his meeting with Jansen

48. In his report, Cooperman falsely described his meeting with Jansen. Specifically:

Cooperman falsely described the meeting as an "interview" when in fact he did not interview Jansen at all.
Cooperman falsely stated that during this "interview," Jansen "denied any knowledge of any ongoing antitrust violations." (GX-13B, at 001630) In fact, Cooperman did not even ask Jansen whether he was involved in an illegal agreement with Odfjell or any other competitor (Jansen, 6/13/07 p. 92 line 23 to p. 93 line 2), nor did Jansen deny to Cooperman that he was involved in any illegal agreement with Stolt's competitors. (Jansen, 6/13/07 p. 94 lines 12-17).
Cooperman falsely stated that during this "interview," he "specifically asked" Jansen about the Jansen Memo and that Jansen denied that it discussed an illegal agreement. (GX-13B, at 001630). In reality, Cooperman reprimanded Jansen by telling him that he was stupid for writing the Memo. (Jansen, 6/13/07 p. 92 lines 18-22). In fact, Cooperman did not question Jansen about the Memo, nor did Jansen tell Cooperman that the Memo did not discuss Stolt's illegal agreement with Odfjell. (Jansen, 613/07 p. 95 lines 8-10).
Cooperman falsely stated that Jansen denied that the word "coop" in the Jansen Memo "referred to any anticompetitive agreement or understanding with competitors." Cooperman also suggested in his report that the term "status quo" referred to a legal condition in the market. (GX-13B, at 001630). In fact, Cooperman knew these terms referred to the illegal customer allocation agreement because, prior to the time he wrote his report, "cooperation agreement" and "status quo agreement" were terms Cooperman himself used to refer to the illegal agreement between Stolt and Odfjell. (Jansen, 6/13/07 p. 96 lines 5-9). Indeed, the agreement with Odfjell was commonly referred to at Stolt as the "status quo agreement" or the "cooperation agreement." (See, e.g., Humphreys, 6/4/07 p. 144 lines 17-21; Long, 6/5/07 p. 59 lines 9-13). Also, Wingfield himself testified Cooperman understood Jansen's use of the term "co-op" referred to the illegal agreement between Stolt and Odfjell. (Wingfield, 6/6/07 p. 23 lines 14-21).
In a further effort to falsify his discussion with Jansen and cover up evidence that the Jansen Memo was a conspiratorial document, Cooperman omitted from his report that he told Jansen that he and Wingfield were both stupid for making a paper trail of the conspiracy. (See Jansen, 6/13/07 p. 95 lines 8-10, p. 235 lines 4-9; GX-13B).

O'Brien Resigned and then Stolt Issued a Revised Antitrust Policy - March 2002

Dissatisfied with Stolt's response to his report of illegal antitrust conduct, O'Brien resigned

49. On March 1, 2002, O'Brien resigned because he was dissatisfied with Stolt's and Cooperman's response to his report of Stolt's illegal conduct. (See Nannes, GX-5 p. 113 lines 14-18; see GX-8).

50. When O'Brien resigned, Cooperman told O'Brien that Stolt expected him not to disclose any confidential information he had about the company and its business activities. (GX-9).

Stolt revised its antitrust compliance policy in March 2002: the new antitrust compliance policy was substantially similar to its old policy

51. Prior to March 2002, Stolt had an antitrust compliance policy and handbook, issued on June 22, 2000. (GX-28).

52. The customer allocation agreement between Stolt and its two main competitors that existed prior to March 2002 violated Stolt's 2000 antitrust compliance policy. (See GX-28, at 3-4; Pickering, 5/31/07 p. 151 lines 15-19).

53. On March 11, 2002, Stolt issued a revised antitrust compliance policy and handbook. (GX-29).

54. The 2002 antitrust compliance handbook contained the same prohibitions as those contained in the 2000 handbook. (Compare GX-28, at 4-5 with GX-29, at 179068-69; Pickering, 5/31/07 p. 151 line 15 to p. 152 line 3).

55. The 2002 antitrust compliance handbook contained the same penalties for violations of the policy as those contained in the 2000 handbook, i.e., "demotion, reduction in pay, and termination of employment." (Compare GX-28, at 9 with GX-29, at 179076; Pickering, 5/31/07 p. 149 lines 2-13, p. 150 line 18 to p. 151 line 8 to p. 152 lines 1-3).

56. Both the 2000 and 2002 antitrust compliance handbooks required employees to report any conduct that may violate the antitrust laws to the company's General Counsel. (GX-28, at 2; GX-29, at 179063).

March 2002 NPRA Meetings - Wingfield Delivered the Message that Despite O'Brien's Discovery of the Conspiracy and Stolt's Revised Antitrust Policy, the Conspiracy Would Continue

Stolt waited to inform coconspirators of new policy

57. Even though O'Brien advised Cooperman in early February 2002 of his discovery of Stolt's illegal conduct, by Stolt's own account, at Cooperman's direction, Stolt delayed contacting Jo Tankers and Odfjell for over a month. (See Wingfield, 6/6/07 p. 25 lines 13-17)

58. Wingfield returned from vacation in mid-March. (Wingfield, 6/5/07 p. 134 lines 12-22; 6/6/07 p. 25 lines 4-12).

59. Cooperman and other senior management decided to wait until the end of March 2002 when the National Petrochemical Refiners Association ("NPRA") had its annual meeting to have Wingfield meet personally with Jo Tankers and Odfjell to discuss Stolt's revised antitrust compliance policy. (Wingfield, 6/6/07 p. 7 lines 17-23, p. 25 lines 4-12, p. 29 lines 1-11)

Cooperman and Lee sent Wingfield alone to inform coconspirators of revised antitrust policy

60. Even though Cooperman and Lee knew that Wingfield had been Stolt's key conspirator, they sent Wingfield alone to meet with Stolt's conspirators at the NPRA meeting to advise them of Stolt's revised antitrust policy. (Wingfield, 6/6/07 p. 7 line 17 to p. 9 line 2; p. 30 line 19 to p. 31 line 7; Nannes, GX-6 p. 33 lines 16-21).

Wingfield's meeting with Odfjell - no withdrawal: it's business as usual and the status quo prevails

61. Wingfield told Nilsen that he needed to meet personally with him at the upcoming NPRA meeting to discuss something urgent that he did not want to discuss on the telephone. (Nilsen, 6/15/07 p. 121 lines 11-24; Nystad, 6/11/07 p. 112 line 22 to p. 113 line 5, p. 118 lines 2-8).

62. Wingfield admitted calling Odfjell to arrange a meeting at the NPRA to discuss an urgent matter. (Wingfield, 6/5/07 p. 141 lines 14-20; 6/6/07 p. 29 lines 12-25).

63. Nilsen was not planning to attend the NPRA meeting, so he arranged for Morten Nystad to meet with Wingfield. (Nystad, 6/11/07 p. 117 line 16 to p. 119 line 23; Nilsen, 6/15/07 p. 122 lines 2-5). Sjaastad also attended the NPRA conference. Although Sjaastad did not know of the meeting with Wingfield before the NPRA, once Sjaastad did learn about it from Nystad, he asked to come along. (Nystad, 6/11/07 p. 118 line 21 to p. 119 line 8; Sjaastad, 6/20/07 p. 96 line 20 to p. 97 lines 4-7).

64. Wingfield met with Nystad and Sjaastad at a hotel bar on March 26, 2002. (Wingfield, 6/5/07 p. 142 line 7 to p. 143 line 15; Wingfield, 6/6/07 p. 32 line 3 to p. 33 line 4; Nystad, 6/11/07 p. 118 line 21 to p. 119 line 8; Sjaastad, 6/20/07 p. 97 lines 14-20).

65. During this meeting, Wingfield told Nystad and Sjaastad that Stolt had an internal problem caused by an ex-employee who was threatening to expose the illegal agreement between Stolt and Odfjell. (Nystad, 6/11/07 p. 119 line 25 to p. 120 line 12; see Sjaastad, p. 102 lines 16-10). Wingfield stated that, as a result, Stolt had issued a revised antitrust policy. (Sjaastad, 6/20/07 p. 99 lines 16-22; see Wingfield, 6/5/07 p. 143 lines 5-15; 6/6/07 p. 32 lines 3-12).

66. Wingfield assured Nystad and Sjaastad that, despite this internal problem, the agreement between Stolt and Odfjell would continue, that it would be business as usual and the status quo prevailed. (Nystad, 6/11/07 p. 119 line 25 to p. 120 line 8; Nilsen, 6/15/07 p. 122 line 20 to p. 123 line 4; Sjaastad, 6/20/07 p. 97 line 21 to p. 98 line 3; and p. 99 lines 11-22).

67. Wingfield further informed Nystad and Sjaastad that Stolt and Odfjell would have to be more careful in their dealings in the future, and that communications on issues involving the agreement would be less frequent and more discreet. (Nystad, 6/11/07 p. 120 lines 9-12; see Nilsen, 6/15/07 p. 124 lines 5-9).

68. Wingfield said nothing at the NPRA meeting that led Odfjell to believe that the customer allocation scheme was over. In fact, they understood the agreement continued because Wingfield assured them it would. (Nystad, 6/11/07 p. 121 lines 14-20; Sjaastad, 6/20/07 p. 99 line 16 to p. 101 line 4).

69. There is no documentary evidence that corroborates Wingfield's testimony.

70. Nystad told Wingfield that he would relay Wingfield's message to Nilsen, i.e., that the urgent matter Wingfield needed to discuss was an internal Stolt situation that would not affect the agreement between their two companies. After the meeting, Nystad reported to Nilsen as promised. (Nystad, 6/11/07 p. 121 line 21 to p. 122 line 7; Nilsen, 6/15/07 p. 122 line 17 to p. 123 line 4).

71. There is no evidence to corroborate Wingfield's testimony that he withdrew from the conspiracy during the NPRA meeting. To the contrary, Stolt employee Jansen testified that Wingfield told him about meeting with Odfjell and said that he had assured Odfjell that Stolt would not go aggressively after Odfjell's contracts (Jansen, 6/13/07 p. 105 line 21 to p. 106 line 5), and that Jansen understood that was how Stolt should behave going forward. (Jansen, 6/13/07 p. 110 lines 13-24; see Jansen, 6/13/07 p. 102 line 20 to p. 103 line 8; p. 212 lines 13-16).

72. Moreover, the testimony of Nystad and Sjaastad is corroborated by other Odfjell witnesses:

Nilsen testified that Nystad reported to him that Wingfield said that an ex-employee of Stolt was threatening the company about its agreement with Odfjell, and that as a result the two companies would have to be "more careful" in their dealings, but nevertheless their agreement would continue. (Nilsen, 6/15/07 p. 122 line 22 to p. 123 line 9);
Haugsdal testified that either Nystad or Sjaastad told him about the meeting and that Wingfield had informed them that Stolt had a problem with an employee who had raised questions about the relationship between Odfjell and Stolt. (Haugsdal, 6/12/07 p. 87 lines 9-23); and
Knutsen testified that Sjaastad told him about the meeting with Wingfield at the NPRA. Specifically, Sjaastad said that "Stolt was under certain scrutiny, and they have to be very careful about how they administer this agreement" but that "there was no change in the status" "the agreement would go on." (Knutsen, 6/13/07 p. 17 line 10 to p. 18 line 9). Knutsen also recalled Sjaastad telling him that Wingfield said "the agreement would be maintained, and it was business as usual." (Knutsen, 6/13/07 p. 40 lines 15-18).

73. Wingfield conceded on cross-examination that he told Sjaastad and Nystad that just because Stolt had issued a revised antitrust policy "that didn't necessarily mean we were going to contact all of their customers" and admitted on cross-examination that "it stood to reason that if it worked one way, it was going to work the other way" and that Stolt expected Odfjell would not go after Stolt's customers. (Wingfield, 6/6/07 p. 33 lines 7-19). Wingfield's admissions support Nystad's and Sjaastad's testimony that Wingfield assured them that there would be no change in the conspiratorial agreement, despite Stolt's revised antitrust policy.

74. Wingfield admitted that telling Nystad and Sjaastad that Stolt would not be competing for all of Odfjell's customers was stating the "obvious." (Wingfield, 6/6/07 p. 33 lines 7-13). Wingfield's assurance to a coconspirator of the "obvious," is, in and of itself, a violation of the U.S. antitrust laws as it evidences a continuation of the existing conspiracy because the true reason for Wingfield making this statement was to assure Odfjell that the agreement would continue. Wingfield's giving an assurance to a conconspirator was even a violation of Stolt's own antitrust policy. (See GX-29, at 179066 ("any form of communication ... by which assurances are given to, or sought from, competitors concerning [Stolt's] or the competitor's commercial intentions or behavior is strictly prohibited") (emphasis added)).

75. The testimony of the Odfjell witnesses is also corroborated by the testimony of the Jo Tankers witnesses concerning Wingfield's statements to them at the NPRA. (Compare FOF 65-68 with FOF 77, 78, 82).

Wingfield's meeting with Jo Tankers - no withdrawal: O'Brien discovered the conspiracy so future contacts to be limited to Wingfield and van Westenbrugge

76. At Cooperman's direction, Wingfield met with representatives of Jo Tankers at the NPRA at the end of March 2002. (Wingfield, 6/5/07 p. 149 line 1 to p. 150 line 16; 6/6/07 p. 25 lines 13-17; p. 34 lines 7-22; Finlay, 6/14/07 p. 80 lines 21-24; van Westenbrugge, 6/14/07 p. 180 lines 3-10; Cleary, 6/1/07 p. 76 line 4 to p. 77 line 9). This meeting was originally scheduled to discuss the co-service agreement that Stolt and Jo Tankers entered into in December 2001, so Wingfield, Jansen and Cleary for Stolt and Hendrikus van Westenbrugge and Finlay for Jo Tankers attended. (Wingfield, 6/5/07 p. 149 line 1 to p. 150 line 16; Wingfield, 6/6/07 p. 34 lines 7-22).

77. Following discussions about the co-service agreement, Wingfield explained to van Westenbrugge that Stolt had internal problems with its general counsel, Paul O'Brien, involving antitrust issues. Wingfield specifically said that O'Brien had informed top management at Stolt that they were violating the antitrust laws. (van Westenbrugge, 6/14/07 p. 181 line 13 to p. 182 line 9; see Wingfield, 6/5/07 p. 152 lines 10-14).

78. Finlay recalled Wingfield stating that because O'Brien was causing problems regarding Stolt's contacts with its competitors, Stolt had to restate its antitrust policy and that future collusive contacts would be limited to Wingfield and van Westenbrugge. (Finlay, 6/14/07 p. 83 lines 1-15). At that point, Wingfield asked Finlay and Cleary to leave the table. (Id. at lines 18-25).

79. Jansen recalled Wingfield informing everyone at the meeting that Stolt had both a "situation" within the company and a revised antitrust policy. (Jansen, 6/13/07 p. 103 line 11 to p. 104 line 18). Because Jansen had been drinking he could not recall much else from this meeting. (Jansen, 6/13/07 p. 104 line 19 to p. 105 line 3).

80. While Cleary, van Westenbrugge and Wingfield testified that Finlay and Cleary were asked to leave the table before Wingfield made the statements about O'Brien's discussion of Stolt's criminal conduct, Finlay's recollection is credible. It is consistent with the statements made by Wingfield to van Westenbrugge, as well as statements Wingfield made to the representatives of Odfjell at the NPRA meeting.

81. There is no documentary evidence that corroborates Wingfield's version of the meeting.

82. After the NPRA meeting, Finlay and van Westenbrugge discussed the meeting on the way back to the hotel and van Westenbrugge confirmed that any future contacts regarding collusion would be between him and Wingfield. (Finlay, 6/14/07 p. 84 lines 10-25). In fact, future collusive contacts were between Wingfield and van Westenbrugge. (Finlay, 6/14/07 p. 158 lines 14-18; see e.g., van Westenbrugge, 6/14/07 p. 188 line 16 to p. 189 line 14; p. 200 line 7 to p. 201 line 5) (discussions on Shell-Pecten and SK Corp. contracts).

Wingfield's e-mails forwarding antitrust policy corroborate Odfjell's and Jo Tankers' testimony that the conspiracy continued after March 2002

83. At the request of Jo Tankers and Odfjell, Wingfield sent Stolt's revised antitrust policy to them by e-mail on April 8, 2002. (See GX-12; see also van Westenbrugge, 6/14/07 p. 182 lines 19-21; Sjaastad, 6/20/07 p. 101 lines 12-16; p. 102 lines 9-17; Haugsdal, 6/12/07 p. 91 lines 15-23; Wingfield, 6/5/07 p. 147 lines 4-9; 6/5/07 p. 153 lines 12-28). However, Wingfield did so only after having assured them at the NPRA that the conspiracy would not be affected by the policy.

84. In contrast to the e-mails Wingfield sent on March 14, 2002 to Stolt's business partners which indicated that Stolt would "comply" with its antitrust policy "without deviation," the April 8, 2002 e-mails to Odfjell and Jo Tankers did not even mention compliances with the revised antitrust policy. Likewise, in contrast to the e-mails sent to Stolt's business partners, the e-mails Wingfield sent to Stolt's coconspirators did not enclose a Wall Street Journal article describing "Dawn Raids" by European antitrust officials. (Compare GX-11 (e-mails to Stolt's business partners) with GX-12 (e-mails to Stolt's coconspirators )).

85. Wingfield's failure to tell Jo Tankers and Odfjell that Stolt would comply with the antitrust policy corroborates the testimony of the Odfjell and Jo Tankers witnesses that Wingfield said at the NPRA meetings that the conspiracy would continue.

86. Odfjell did not review Stolt's policy in any detail. Odfjell concluded that the policy was not something Odfjell needed; it apparently replaced an old Stolt policy that had not interfered with the companies' conspiracy; and it was merely a legalistic document that Stolt needed because it was a U.S. company. (Haugsdal, 6/12/07 p. 92 line 3 to p. 93 line 7; Sjaastad, 6/20/07 p. 103 line 5 to p. 104 line 22). Jo Tankers similarly did not implement an antitrust compliance policy. (van Westenbrugge, 6/14/07 p. 217 lines 19-21).

At the June 2002 London Meeting with Odfjell, Wingfield Confirmed That the Conspiracy Would Continue

Stolt sent Wingfield and Jansen alone to meet with coconspirators

87. It is undisputed that in June 2002, Wingfield and Jansen met with Nilsen and Haugsdal at a restaurant in London. (Wingfield, 6/5/07 p. 167 lines 11-16; Nilsen, 6/15/07 p. 180 line 25 to p. 181 line 6; Haugsdal, 6/12/07 p. 88 line 21 to p. 89 line 2). Nilsen and Haugsdal flew to London specifically for the purpose of meeting with Wingfield. (Wingfield, 6/6/07 p. 44 lines 8-17).

88. It is undisputed that this was the second time under Stolt's revised antitrust policy that Cooperman and Lee sent Wingfield to meet with representatives of Odfjell, without an attorney or witness, other than coconspirator Jansen. (Wingfield, 6/6/07 p. 44 lines 18-22; p. 45 lines 9-15). Jansen had accompanied Wingfield to conspiratorial meetings with Odfjell prior to March 2002 (Wingfield, 6/6/07 p. 46 lines 11-15), and Cooperman and Lee knew about Jansen's participation in the conspiracy. (Jansen, 6/13/07 p. 93 line 3 to p. 94 line 11; p. 97 line 21-24).

89. It is undisputed that there was no written agenda, nor were there any minutes or other contemporaneous written record of this meeting, even though Wingfield told Nilsen and Haugsdal that he was supposed to prepare minutes of all his meetings with competitors. (Haugsdal, 6/12/07 p. 90 lines 6-9; p. 164 lines 18-21; Nilsen, 6/15/07 p. 184 line 19-22; Nilsen, 6/19/07 p. 233 lines 5-10, p. 234 lines 6-10).

Wingfield repeated NPRA message: the conspiracy continues

90. Wingfield told Nilsen and Haugsdal that O'Brien was "threatening to make noises about the agreement," but assured them that they had nothing to fear because the attorney-client privilege prevented O'Brien from revealing what he knew. (Nilsen, 6/15/07 p. 125 lines 4-19; Haugsdal, 6/12/07 p. 89 line 20 to p. 90 line 5; cf. Wingfield, 6/5/07 p. 168 lines 13-16 (NPRA discussions referenced at June 2002 meeting)). Wingfield further stated that it would be business as usual and the agreement between the two companies would continue as it had. (Nilsen, 6/15/07 p. 125 lines 16-19; Haugsdal, 6/12/07 p. 89 line 18 to p. 90 line 9). Wingfield also told Nilsen and Haugsdal about the problems O'Brien had created and said that future conspiratorial contacts would be with Wingfield or Jansen, if Wingfield was not available. (Jansen, 6/13/07 p. 114 line 23 to p. 115 line 16).

Wingfield never told Odfjell the conspiracy was over

91. Wingfield did not say that the allocation agreement between the two companies was over. In fact, Wingfield reconfirmed that the "understanding [not to compete for each other's customers] was ongoing." (Haugsdal, 6/12/07 p. 91 line 1).

Wingfield sought written agreement on the BAJ trade lane

92. Prior to March 2002, Stolt had unsuccessfully attempted to get Odfjell to sign written co-service agreements on trade lanes that were part of the customer allocation agreement, including the Brazil-Africa-Japan trade lane (the "BAJ"). (Wingfield, 6/6/07 p. 41 line 23 to p. 42 line 8; p. 44 lines 3-7).

93. Odfjell refused to enter such written agreements, fearing that customers would become suspicious of Odfjell's relationship with Stolt and their illegal agreement. (Nilsen, 6/15/07 p. 127 lines 11-14).

94. Despite Odfjell's prior refusals to enter into written agreements with Stolt, Cooperman and Lee directed Wingfield to seek Odfjell's agreement to enter a written co-service agreement on the BAJ trade lane. (Wingfield, 6/6/07 p. 41 lines 15-22; p. 44 lines 8-12).

95. The customers on the BAJ trade lane were subject to the allocation agreement between Stolt and Odfjell. (Cleary, 6/1/07 p. 96 line 25 to p. 97 line 2; Wingfield, 6/6/07 p. 40 lines 7-11; GX-38, at 2). During the course of the conspiracy, Stolt and Odfjell regularly sublet cargoes on this trade lane to one another. (Wingfield, 6/5/07 p. 166 line 17 to p. 167 line 10). This subletting practice took place both prior to and after O'Brien's discovery of the conspiracy. (Cleary, 6/1/07 p. 62 line 8 to p. 63 line 1; p. 65 line 5 to p. 66 line 1).

96. Even though Stolt could have alleviated any concerns about its employees communicating with Odfjell about the BAJ sublets with the simple step of employing an independent broker to handle the sublets (see Humphreys, 6/4/07 p. 178 lines 19-24 (after Nannes began his independent investigation, Stolt employees were directed to use independent brokers for sublets)), Wingfield was sent to this private meeting with Odfjell to seek a written agreement regarding the sublets.

97. Wingfield discussed the proposed co-service agreement with Nilsen and Haugsdal during the June 2002 meeting. Even though they did not intend to enter into such an agreement, as a matter of courtesy, they told Wingfield they would consider the matter. (Haugsdal, 6/12/07 p. 166 lines 5-12; Nilsen, 6/15/07 p. 126 line 23 to p. 127 line 23).

98. Nilsen subsequently advised Wingfield that Odfjell would not enter into a written agreement concerning the sublets. (Nilsen, 6/15/07 p. 127 line 24 to p. 128 line 8; see also DX-625 (June 28, 2002 e-mail from Haugsdal to Nilsen re: "Co service request" at point 5: "If we were to formalise a co-service agreement on paper; difficult not to make it public . . . and we do not want to make it public for various reasons"; Haugsdal, 6/12/2007 p. 261 line 1 to p. 262 line 9 (reasoning that it would make it "easier . . . for others to see that [Stolt and Odfjell] maybe were too close" ). Wingfield accepted Nilsen's rejection of his proposal without much comment. (Nilsen, 6/15/07 p. 128 lines 6-11).

99. Thereafter, Stolt and Odfjell continued to sublet cargoes to one another on the BAJ trade lane, just as they had previously. (Wingfield, 6/6/07 p. 50 lines 17-20; Nilsen, 6/15/07 p. 128 lines 12-17). Not until independent counsel undertook an investigation of the conspiracy did Stolt change its practice regarding sublets with Odfjell and begin using an independent broker as an intermediary between competitor companies. (See Humphreys 6/4/07 p. 178 lines 19-24).

Immediately After the June London Meeting, Stolt and Odfjell Rigged SK

2001 SK contract had been rigged by Stolt and Odfjell

100. In 2001, Stolt entered into a contract with SK Corp. ("SK")to ship lubricating oils from Korea to the U.S. Gulf. The 2001 SK contract was a two-year contract to end in June 2003. (Harrison, 5/31/07 p. 234 line 21 to p. 235 line 2; Edvardsdal, 6/15/07 p. 8 lines 20-23).

101. The SK contract from Korea to the U.S. Gulf was allocated to Stolt under the agreement. (Nilsen, 6/15/07 p. 128 line 18 to p. 129 line 16; Knutsen, 6/13/07 p. 27 lines 9-11).

102. Odfjell had been asked by SK to bid for its business in 2001 and Nilsen's subordinate, Hallvard Edvardsdal, wanted the business. But Jansen and Nilsen agreed that Odfjell would "back off" the contract, and Odfjell did so. Edvardsdal used the fact that SK had introduced New Orleans as an additional discharge port (Houston was initially the sole discharge port) as the excuse to SK for Odfjell not to submit a final bid on the contract. (Edvardsdal, 6/15/07 p. 17 line 10 to 18 line 11). Even though Houston was Odfjell's main port in the Gulf of Mexico, Odfjell was, in fact, capable of serving New Orleans. (Edvardsdal, 6/15/07 p. 18 lines 12-16).

SK contract was important business

103. The SK contract was important business to Stolt because it guaranteed cargo for Stolt's ships coming back to the U.S. from the Far East. (Wingfield, 6/6/07 p. 70 lines 12-14; p. 71 line 22 to p. 72 line 13).

In early 2002, SK sought over a $1 million discount from Stolt because its contract rate grossly exceeded the market price

104. In early 2002, SK asked Stolt for a reduction of $1 million to $1.5 million from the 2001 contract (Harrison, 5/31/07 p. 235 lines 8-20), because the 2001 contract price of roughly $60 per ton was 50 percent higher than the current market price of roughly $40 per ton. Stolt refused. (See Wingfield, 6/6/07 p. 71 lines 5-12; DX-2722, at 143282 (Y.M. Park of SK demanding discount from Stolt because "COA rate[] is around $60/[ton] when the current market rate is in 40's. [I]t means that there is around $20/[ton] difference").

In June 2002, SK invited Odfjell to quote for business to Houston

105. Dissatisfied with Stolt's refusal to reduce pricing, in June 2002, SK invited Odfjell to submit an offer for the shipment of base/lube oils from Korea to Houston. (Edvardsdal, 6/15/07 p. 7 lines 1-18; see GX-57, at OD0077413 (June 12, 2002 e-mail from Edvardsdal to SK's broker, in which Edvardsdal states "I have not forgotten you nor SK Corp's COA for lube oils to Houston.")).

106. Nilsen had told Edvardsdal that Odfjell could not bid until they learned Stolt's prices because of the agreement between the two companies. (Edvardsdal, 6/15/07 p. 9 lines 14-23).

Immediately after June London meeting, Stolt and Odfjell rigged the SK bid

107. Just days after the June London meeting, Jansen or Wingfield called Nilsen to ensure that Odfjell would not undercut Stolt on the SK bid and gave prices to Nilsen for Odfjell to offer to SK. (Nilsen, 6/15/07 p. 130 lines 8-25; p. 194 line 22 to p. 195 line 17).

Documentary evidence confirms Stolt and Odfjell rigged the June 2002 SK bid

108. On June 17, 2002, Wingfield wrote in his business journal the numbers "58/62" in the upper right hand corner, next to the notations "Houston" and "SK to USA guidance." (Wingfield, 6/6/07 p. 126 line 18 to p. 127 line 1; see GX-26A.5634).

109. On June 18, 2002, Nilsen sent Edvardsdal an e-mail regarding "SK to USA" with the notation, "58/62," and instructed Edvardsdal to bid a higher amount, "64/65." (Edvardsdal, 6/15/07 p. 10 lines 11-25; Nilsen, 6/15/07 p. 131 lines 1-16; see GX-56).

110. The e-mail that Nilsen sent Edvardsal contained the same prices, "58/62," and the same notations, "SK to USA," "guidance" and "Houston," that are in Wingfield's business journal. The reference to "Houston" is significant because Odfjell was only invited to bid to Houston (Edvardsdal, 6/15/07 p. 7 lines 1-18; see GX-57, at OD0077413), while Stolt's contract was for both New Orleans and Houston. (Harrison, 5/31/07 p. 234 line 21 to p. 235 line 2) The reference to "guidance" is significant because that is the term used by Stolt employees to describe price discussions by the coconspirators. (Vogth-Eriksen, 6/4/07 p. 34 lines 13-21).

111. Stolt attempts to refute the fact that Nilsen obtained the prices "58/62" from Stolt by arguing they are similar to prices found in an April 1, 2002 Odfjell memo regarding a completely different trade lane (Far East to South Africa). (See Stolt FOF 506). Stolt's claim is illogical because the prices in Nilsen's June 18, 2002 e-mail are identical to the prices in Wingfield's business journal just one day earlier, June 17, 2002. (Wingfield, 6/6/07 p. 126 line 20 to p. 127 line 1; see GX-26A.5634). Moreover, the prices in Nilsen's e-mail do not match the prices in the April 1, 2002 e-mail which are 105/58/62.5. (See DX-1916, at 91984).

112. Nilsen could not have gotten "58/62" from SK or its broker because these prices also do not match Stolt's then current prices, which were actually 58/60/63. (See GX-266, at 252240).

113. Ultimately, Edvardsdal did not submit an offer to SK because he thought the rates Nilsen told him to bid were too high — over $20 more than the market price. Instead, shortly after receiving the high prices from Nilsen, Edvardsdal sent SK an e-mail with excuses so as not to appear foolish by bidding so high. (Edvardsdal, 6/15/07 p. 11 line 1 to p. 13 line 3; Nilsen, 6/15/07 p. 131 lines 17 to p. 132 line 6; see GX-57, at 77412).

In June 2002, O'Brien Sued Stolt and Cooperman

114. On June 18, 2002, O'Brien filed a constructive termination suit against Stolt and Cooperman in Connecticut state court alleging, inter alia, that they refused to terminate their participation in illegal conduct after he brought it to Cooperman's attention in February 2002. (See GX-10A ¶¶ 18, 19, 21).

115. In this initial complaint, O'Brien did not contain any allegations that Stolt's had violated U.S. antitrust laws. (See GX-10A).

Cooperman Lied to SNSA's Board of Directors

116. In order to continue to conceal his and the company's illegal conduct, Cooperman lied to and misled the independent members of SNSA's Board of Directors when confronted with O'Brien's complaint.

Fisher requested that O'Brien's complaint be addressed at the August 2002 Board meeting

117. Sometime after June 2002, Richard Fisher, an independent member of SNSA's Board of Directors, obtained anonymously a copy of O'Brien's complaint. (Fisher, 6/11/07 p. 12 lines 8-19). Fisher immediately contacted Stolt to inquire about O'Brien's allegations. (Fisher, 6/11/07 p. 14 lines 8-16).

118. On August 1, 2002, Cooperman contacted Fisher, and they discussed O'Brien's complaint. Following their discussion, Fisher requested that it be addressed at the August board meeting. (Fisher, 6/11/07 p. 14 line 23 to p. 16 line 13; GX-75).

Cooperman assured the Board that O'Brien's allegations were a baseless attempt to blackmail the company

119. Cooperman attended the August 2002 board meeting and gave a presentation concerning O'Brien's allegations. Cooperman had with him, among other things, the report he prepared of his investigation into O'Brien's allegations in February 2002. During the meeting, Cooperman summarized his investigation. Cooperman "assured" the board that "the accusations of Mr. O'Brien were baseless and that the matter was not worthy of pre-occupation by the board." (GX-77, at 1641; Fisher, 6/11/07 p. 26 lines 7-18). Cooperman advised the board that O'Brien's suit was only an attempt to "blackmail" the company. (Fisher, 6/11/07 p. 64 lines 8-14).

120. Cooperman's characterization of O'Brien's complaint as "blackmail" is the same way that Wingfield characterized O'Brien's actions to Odfjell at both the NPRA and the June London meeting. Cooperman's assurances to SNSA's Board of Directors, like the report of his purported February 2002 investigation (GX-13B), were false.

121. After Cooperman gave these false assurances to the Board, Stolt continued to participate in the conspiracy.

Wingfield Rigged the Sasol Bid in October 2002

Sasol was an important contract allocated to Odfjell under the conspiracy

122. In 2002, Odfjell was the incumbent shipping company for Sasol's South Africa to India contract. (Humphreys, 6/4/07 p. 72 lines 2-5).

123. Sasol was important business for Odfjell. (Vogth-Eriksen, 6/4/07 p. 30 lines 21 to p. 31 line 1; Nilsen, 6/15/07 p. 139 lines 22-25).

124. Sasol was allocated to Odfjell under the allocation scheme between Stolt and Odfjell. (Vogth-Eriksen, 6/4/07 p. 30 line 21 to p. 31 line 7; Jansen, 6/13/07 p. 117 lines 17-19; Humphreys, 6/4/07 p. 128 lines 4-9; Nilsen, 6/15/07 p. 140 lines 10-15; Sjaastad, 6/20/07 p. 122 lines 7-11).

Because of the O'Brien situation, Stolt wanted to demonstrate its willingness to take a contract that belonged to Odfjell

125. On August 30, 2002, Sasol sent an invitation to bid for Sasol's South Africa to India contract to, among other competitors, Stolt and Odfjell. (Humphreys, 6/4/07 p. 72 lines 22-25; see also DX-1288).

126. Humphreys believed that in light of the "situation," Stolt management decided to bid for the Sasol business in order to demonstrate that Stolt would steal a contract from Odfjell. (Humphreys, 6/4/07 p. 74 lines 1-4; p. 122 line 22 to p. 123 line 1).

127. Humphreys and two of his subordinates were responsible for preparing Stolt's bid for the Sasol contract. (Humphreys, 6/4/07 p. 74 lines 12-15).

128. In order to gain a competitive advantage and help conceal its interest in the business, Stolt decided to bid to Sasol using a black empowerment partner. (See Humphreys, 6/4/07 p. 75 line 5 to p. 76 lines 16).

Wingfield, Cooperman and SNSA's CEO were informed of Stolt's Sasol bid

129. Humphreys always informed Wingfield both orally and in writing of the prices Stolt planned to bid as well as its actual bid prices for the Sasol contract. (Humphreys, 6/4/07 p. 78 lines 16-19; p. 106 line 21 to p. 107 line 2; p. 131 lines 2-14; p. 176 lines 7-13).

130. Although it was not common for Humphreys to discuss contracts with Cooperman (Humphreys, 6/4/07 p. 130 lines 12-14), Humphreys discussed the Sasol contract with Cooperman, summarizing Stolt's bid, the background, the pricing rationale, and the black empowerment initiative. (Humphreys, 6/4/07 p. 124 lines 20-22).

131. Stolt management and Wingfield also kept Niels G. Stolt-Nielsen, SNSA's CEO, informed about the bid to Sasol. (See GX-72).

In violation of its agreement with Odfjell, Stolt submitted a competitive bid to Sasol

132. In mid-September 2002, both Stolt and Odfjell submitted initial bids to Sasol. (Humphreys, 6/4/07 p. 77 lines 6-19; see also DX-2832 (Stolt's bid), DX-2525 (Odfjell's bid)).

133. Stolt's competitive bid to Sasol was a violation of the customer allocation agreement. (Wingfield, 6/6/07 p. 64 lines 2-14 and p. 54 lines 15-20; Nilsen, 6/15/07 p. 143 lines 1-4; Haugsdal, 6/12/07 p. 97 line 21 to p. 98 line 3; p. 258 lines 18-22).

Recognizing its Sasol bid violated the agreement, Stolt prepared an excuse for Odfjell

134. On October 1, 2002, Niels G. Stolt-Nielsen sent an e-mail to Wingfield asking Wingfield how Odfjell would retaliate if Stolt won the Sasol contract. In his reply to Stolt-Nielsen (copied to SNTG CEO Reginald Lee), Wingfield explained that in order to avoid retaliation by Odfjell, what Stolt would say "publicly (and ot [Odfjell] will pick up on this) is that this is regional business and not part of main fleet business." (GX-72).

135. Wingfield admitted in cross-examination that Sasol was not regional business. (Wingfield, 6/6/07 p. 57 lines 5-6). Regional business was not part of the allocation agreement. (Wingfield, 6/6/07 p. 56 lines 13-16; Long, 6/5/07 p. 89 lines 5-15). By saying publicly that Sasol was regional business, Wingfield intended to signal Odfjell that despite Stolt's bid, Stolt remained committed to the allocation agreement. (See GX-72). Wingfield could provide no explanation for his plan to send such a signal to Odfjell. (Wingfield, 6/6/07 p. 57 lines 2 to p. 58 lines 23).

Odfjell repeatedly called Stolt to complain about Stolt's bid to Sasol

136. Knut Holsen was responsible for preparing Odfjell's bid to Sasol. (Nilsen, 6/15/07 p. 140 lines 20-23). In October 2002, Holsen called Stolt's Nils Vogth-Eriksen and asked to speak with Humphreys about the Sasol contract. (Vogth-Eriksen, 6/4/07 p. 14 line 23 to p. 15 line 22). Vogth-Eriksen told Holsen that Humphreys was out of the country and that the person handling the day-to-day details of the Sasol bid was unavailable. (Vogth-Eriksen, 6/4/07 p. 15 lines 7-13).

137. When Holsen could not reach anyone at Stolt, Holsen told Nilsen that Stolt was competing on Sasol and asked him to call Wingfield about this breach of the agreement. (Nilsen, 6/15/07 p. 141 line 19 to p. 142 line 10).

138. Final bids to Sasol were due October 11, 2002 by close of business Johannesburg time, and Odfjell became increasingly concerned about Stolt submitting a competitive bid on Sasol. (Humphreys, 6/4/07 p. 90 lines 13-17). Accordingly, Nilsen and Haugsdal began to call Wingfield repeatedly to complain and influence Stolt to withdraw its bid. (Wingfield, 6/6/07 p. 63 line 13 to p. 64 line 1).

Wingfield accepted Odfjell's repeated calls

139. Wingfield admitted receiving "a lot of calls" about the Sasol bid from Odfjell on October 11, 2002. (Wingfield, 6/6/07 p. 63 lines 16-19; see also Jansen, 6/13/07 p. 134 line 2 to p. 135 line 12 (testimony concerning getting call from Nilsen about Sasol and transferring call to Wingfield).

140. Wingfield accepted at least two telephone calls from Nilsen. (Wingfield, 6/6/07 p. 63 lines 13-19; Nilsen, 6/15/07 p. 144 line 10 to p. 148 line 2). Wingfield admitted that he never refused to speak to Nilsen, (Wingfield, 6/6/07 p. 93 lines 11-15), nor did he tell Nilsen that he could not discuss the Sasol bids. (Wingfield, 6/6/07 p. 93 lines 11-13; see also Humphreys, 6/4/07 p. 131 line 25 to p. 132 line 4; p. 135 line 21 to p. 136 line 2, p. 136 lines 16-21).

141. During one of these calls, Nilsen told Wingfield that Sasol was the "backbone" of that trade lane for Odfjell, and that Odfjell resented Stolt's offer to Sasol. (See Wingfield, 6/6/07 p. 60 lines 11-17, p. 64 lines 5-9; Nilsen, 6/15/07 p. 142 line 11 to p. 144 line 25). Wingfield told Jansen that Nilsen had complained that Stolt's bid was a "deal breaker," which Jansen understood referred to the "status quo agreement" between Stolt and Odfjell. (Jansen, 6/13/07 p. 120 line 13 to p. 121 lines 7).

142. Wingfield admitted that Odfjell's complaints in October showed that Odfjell believed the conspiracy continued. (See Wingfield, 6/6/07 p. 64 lines 5-14).

143. Haugsdal also called Wingfield several times that day to complain about Sasol. (Wingfield, 6/6/07 p. 63 lines 16-21; Haugsdal, 6/12/07 p. 99 line 22 to p. 101 line 7). There is no evidence in the record that Wingfield refused to speak to Haugsdal about Sasol or told Haugsdal that he could not discuss the Sasol bid.

144. During one of their calls, Haugsdal and Nilsen demanded that Wingfield withdraw Stolt's bid to Sasol. (Haugsdal, 6/12/07 p. 100 lines 14-23; Nilsen, 6/15/07 p. 144 lines 10-25). Wingfield said he could not withdraw Stolt's bid because the "bidding and the pricing" were controlled by Stolt's South African joint venture partner. (Id.) Haugsdal then asked Wingfield to give him Stolt's prices and Wingfield said he would look into getting them. (Haugsdal, 6/12/07 p. 100 line 24 to p. 101 line 1).

145. Concerned about the impending bid deadline, Nilsen and Haugsdal asked Bjorn Sjaastad, Odfjell's CEO, to call Cooperman about the matter. (Haugsdal, 6/12/07 p. 100 lines 2-9; Nilsen, 6/15/07 p. 145 lines 6-15; Sjaastad, 6/20/07 p. 122 line 19 to 123 line 1; p. 147 lines 18-20). Sjaastad tried to reach Cooperman, but was told by Cooperman's secretary that he was en route to the airport. (Haugsdal, 6/12/07 p. 100 lines 7-9; Nilsen, 6/15/07 p. 147 lines 8-15; Sjaastad, 6/20/07 p. 123 lines 2-8).

Although Humphreys determined Stolt's bid could be lower, Wingfield decided to leave it as is

146. The same day the bids were due and Odfjell was calling repeatedly about Stolt's bid, Humphreys told Wingfield that Stolt could reduce its prices 50 cents or a dollar. (Humphreys, 6/4/07 p. 108 lines 16-21, p. 131 lines 2-6; Wingfield, 6/6/07 p. 59 lines 13-18). Wingfield told Humphreys to "leave [the bid] as is." (Id.).

Wingfield told Humphreys Odfjell had complained

147. In the same conversation in which he told Humphreys not to reduce Stolt's bid, Wingfield told Humphreys that he had spoken to Odfjell, and Odfjell was upset by Stolt's bid to Sasol. (Humphreys, 6/4/07 p. 91 lines 15-22, p. 131 lines 15-24).

Humphreys reported Wingfield's violation of Stolt's antitrust policy to Cooperman

148. Because Wingfield's discussion with Odfjell about Sasol was a violation of Stolt's antitrust policy (see GX-29), Humphreys reported to Cooperman what Wingfield told him about his call from Odfjell. (Humphreys, 6/4/07 p. 92 lines 6-20). Cooperman told Humphreys that Wingfield should not be speaking to the competition. (Humphreys, 6/4/07 p. 92 lines 22-25). Humphreys then observed Cooperman meeting with Wingfield behind closed doors. (Humphreys, 6/4/07 p. 92 line 21 to p. 93 line 9; p. 132 lines 12-16).

Cooperman never mentioned Humphreys' complaint to Wingfield

149. Despite Humphreys' complaint to Cooperman, Cooperman never asked Wingfield about his conversation with Odfjell, nor reminded Wingfield to comply with the antitrust policy. (Wingfield, 6/6/07 p. 63 lines 3-12). Instead, Cooperman merely asked Wingfield the status of Stolt's offer to Sasol and agreed that Stolt should not lower its price. (Wingfield, 6/6/07 p. 62 lines 5 to p. 63 line 12).

150. After Cooperman left Wingfield's office, Humphreys told Wingfield that he had reported Wingfield's discussion with Odfjell to Cooperman. (Humphreys, 6/4/07 p. 132 line 22 to 133 line 10). Wingfield had no reaction, other than to say "something along the line, '[t]hat's fine.'" (Humphreys, 6/4/07 p. 133 lines 11-14).

151. To Humphreys' knowledge, Cooperman never investigated or otherwise followed up with anyone concerning Wingfield's discussions with Odfjell on the day the Sasol bids were submitted. (Humphreys, 6/4/07 p. 135 lines 16-20).

Humphreys observed Wingfield discussing Sasol freight rates with Nilsen and left Wingfield's office in disgust

152. Shortly after Cooperman left Wingfield's office, Humphreys was in Wingfield's office when another call from Nilsen was announced. (Humphreys, 6/4/07 p. 94 lines 9-17). Wingfield did not refuse the call, but spoke to Nilsen. During the call, Wingfield did not tell Nilsen he could not discuss the Sasol contract. (Humphreys, 6/4/07 p. 136 lines 3-21). Instead, Humphreys heard Wingfield repeat freight rates. (Humphreys, 6/4/07 p. 95 lines 15-20). Humphreys "couldn't believe this was happening, all these events at the eleventh hour, 59th minute." (Humphreys, 6/4/07 p. 96 lines 2-5). At that point, Humphreys left Wingfield's office because he had "just had enough." (Humphreys, 6/4/07 p. 96 lines 6-7; p. 136 lines 3-13).

153. Humphreys did not report this call to Cooperman or anyone else at the company because his earlier report to Cooperman had no effect as evidence by the fact that Wingfield had taken Nilsen's call without hesitation less than one hour later. (Humphreys, 6/4/07 p. 168 lines 17-19; p. 136 line 25 to p. 137 line 7).

Wingfield gave Stolt's Sasol prices to Odfjell and Odfjell retained the contract

154. That same morning, Wingfield called Haugsdal and gave him Stolt's Sasol bid prices. (Haugsdal, 6/12/07 p. 101 lines 1-3; p. 259 lines 9-10; Nilsen, 6/15/07 p. 147 line 19 to p. 148 line 5). Haugsdal then gave the prices to Nilsen, who in turn gave them to Holsen. (Haugsdal, 6/12/07 p. 101 lines 1-3; Nilsen, 6/15/07 p. 148 lines 3-11). Holsen used Stolt's prices to adjust Odfjell's final bid to Sasol (Haugsdal, 6/12/07 p. 259 line 11 to p. 260 line 5) and Odfjell retained the Sasol contract. (Humphreys, 6/4/07 p. 99 lines 5-7; Haugsdal, 6/12/07 p. 260 lines 4-5; Nilsen, 6/15/07 p. 148 lines 16-17).

155. Contrary to arguments by defense counsel, there is no evidence in the record that Odfjell received a last look from Sasol.

156. Cooperman never investigated whether Stolt's loss of the Sasol contract was related to Wingfield's discussions with Odfjell. (See Humphreys, 6/4/07 p. 139 lines 8-15; Wingfield, 6/6/07 p. 63 lines 3-12).

Odfjell's prices to Sasol were similar to or just slightly lower than Stolt's

157. Shortly after final bids were submitted to Sasol, Sasol informed Stolt that its prices "were similar or 'just slightly higher'" than Odfjell's. (GX-204, Humphreys, 6/4/07 p. 137 line 23 to p. 138 line 11).

158. Stolt claims that Odfjell undercut Stolt's rate proposal by 7% (see Stolt FOF 417-421) by reducing its initial proposal by 14% (see Stolt FOF 417-420), but substantial evidence shows that Odfjell did not reduce its proposed rates by 14% and that Odfjell did not bid 7% less than Stolt.

Stolt's proposed claim that Odfjell reduced its prices by 14% and was 7% below is wrong and is based on documents that are not in evidence for the truth of their contents and whose authors did not testify to explain them. (See, e.g., DX-977; DX-2543).
The accuracy of the hearsay Stolt cites and on which its expert witness Barry Harris relied is questionable. For example, Barry Harris relied on the hearsay declaration of Sasol employee Kevin McCormack (see Harris, 6/20/07 p. 46 line 5 to p. 47 line 19; p. 84 lines 17-20), who wrote that Odfjell reduced its proposed rates 14% between its initial and final offers. (DX-977 ¶ 20). But McCormack's 2006 declaration is contradicted by an October 15, 2002 e-mail he prepared just four days after Odfjell submitted its final proposal in October 2002. (See DX-2541). McCormack's e-mail contains a spreadsheet showing how Odfjell's final rates compared both to its rates under the existing contract and to the rates Odfjell initially proposed for the new contract. (DX-2541, at 192 ("please note the 3rd spreadsheet which has Odfjell's final offer rates shown against original offer and current rates")). That spreadsheet shows that the changes in Odfjell's proposed rates for the various ports and quantities ranged from an increase of 1.2% to a decrease of only 6.9%, far less than the 14% average decrease McCormack noted in his 2006 declaration. McCormack's 2006 declaration also says Odfjell's final prices were approximately 4% less than its existing contract prices (DX-977 ¶ 21), but his October 2002 spreadsheet shows that almost every Odfjell price actually increased. (See DX-2541, at 195).
In support of his belief that Odfjell's final prices were 4% less than the existing contract prices, McCormack mistakenly relied in his 2006 declaration on an "Exhibit H." (See DX-977 ¶ 21). McCormack's Exhibit H is identical to DX-2541, which is discussed in paragraph b. above. Because "Exhibit H" contains two spreadsheets, it is impossible to know, without McCormack's testimony, on which he relied in determining that Odfjell's final prices were 4% below existing rates, but in any event, neither spreadsheet supports his conclusion. The spreadsheet on the third page has "totals" under the columns with "Odfjell New" prices that are greater than those under "totals" for "Curr Freight" prices. The spreadsheet on the fourth page shows that almost all of Odfjell's final prices were higher than its existing prices.
In fact, Stolt's own evidence undercuts its argument and supports what Sasol told Odfjell at the time of the bids - that Odfjell did not undercut Stolt's prices by 7%, but only slightly undercut Stolt's prices. Stolt introduced internal Sasol analyses to show that Odfjell's initial proposal reflected an increase of approximately 9.6% over its existing contract rates, and that Stolt's final rates were approximately 3.2% higher than Odfjell's existing rates. (See DX-2529, at 124; DX-2543, at 202; Stolt FOF 414, 418). Stolt's demonstrative Exhibit DD-9 comparing Odfjell's initial and final proposals shows that Odfjell reduced the rates it initially proposed by between 3.5% and 9.4% depending on the port and quantity, with an average reduction of just 5.9%. Only 3 of 19 reductions exceed 7.1%. (See DD-9; see also DX-2525 (Odfjell's September 2002 proposal) and DX-2539 (Odfjell's October 11, 2002 proposal)). Odfjell's reductions bring its higher initial rates in line with Stolt's rates (the initial average increase of 9.6% followed by reduction of between 3.5% and 9.4%).
Stolt cites two select simulations in particular - DX-2529 and DX-2543 - but their significance cannot be understood without testimony by their author, McCormack. This is particularly true because the different simulations are based on different voyages (DX-2529 compares Jouf, Madinah, and Mekka (v200104) while DX-2543 compares Najran, Jizan, and Mekka (v200204). (Compare DX-2529, at 124 with DX-2543, at 202). Although Stolt relies heavily on DX-2543, Sasol also did another post-bid simulation which again is based on different voyages. (Compare DX-2541, at 194 with DX-2543, at 202). Moreover, McCormack stated that he did not always use Odfjell's actual rates in doing his analysis. (See DX-977 McCormack Declaration ¶ 10).

159. To the extent Stolt relies on Sasol simulations without having called a Sasol witness, such documents are misleading and should be given no weight.

160. Stolt's October 2002 internal e-mail stating that Stolt's prices were "similar or 'just slightly higher'" than Odfjell's, was written just days after the final submission of bids (see GX-204; Humphreys, 6/4/07 p. 137 line 23 to p. 138 line 11), and is the most credible evidence concerning how their bids compared.

Wingfield Met with Odfjell at Heathrow One Week After the Sasol Bids

Stolt again sent Wingfield and Jansen to meet alone with coconspirators

161. It is undisputed that one week after the Sasol bids, Wingfield and Jansen met with Nilsen and Haugsdal at London's Heathrow Airport. (Wingfield, 6/5/07 p.180 lines 22-25; Jansen, 6/13/07 p. 123 line 19 to p. 124 line 6; Haugsdal, 6/12/07 p. 219 lines 15-25) with the knowledge of SNTG CEO Regional Lee. (Wingfield, 6/5/07 p. 68 lines 13 to p. 69 line 14)..

Odfjell raised conspiratorial matters at the meeting

Odfjell prepared a list of issues to raise with Stolt

162. Prior to the October meeting, as had been his practice, Nilsen asked Nystad to identify issues for Nilsen to raise with Wingfield. (Nystad, 6/11/07 p. 145 lines 2-7).

163. Nystad identified issues for Nilsen to bring up with Wingfield. (See Nilsen, 6/15/07 p. 150 line 15 to p. 154 line 8; Nystad, 6/11/07 p. 144 line 18 to p. 151 line 9). The issues he identified are reflected in contemporaneous Odfjell documents. (See GX-49, GX-51, GX-52, GX-53).

164. The main issue was a complaint of Stolt cheating on the agreement by stealing two Odfjell customers, Dow (in 2001) and GE Plastics ("GE") in the Gulf of Mexico. (See GX-53). Th