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Case 1:11-cv-01527-RLW Document 16-2 Filed 10/31/11 Page 1 of 10 APPENDIX A July 2008 As a result of BacLite’s poor commercial performance and deteriorating market niche, 3M asks Porton and the other Acolyte shareholders for their consent to stop marketing BacLite. In return 3M offers to pay the shareholders $1.07 million which is its estimate of the expected sales of BacLite during the contract period. Porton (together with the other shareholders) refuses to consent. Compl. ¶¶ 47-49.1 August 28, 2008 Instead of engaging 3M in “good faith” negotiations, the Porton Group files a notice of claim against 3M in U.K. Court, alleging breach of contract (the “London Litigation”). They seek more than £24 million (approximately $38 million) in allegedly lost sales, although they knew BacLite could never achieve those sales figures and that, BacLite was actively generating less revenue than 3M was forced to spend on marketing it. Ex. L (claim form) August 30, 2008 In what 3M now understands was the first salvo of Porton’s and Boulter’s efforts to get 3M to pay an amount to settle the London Litigation that he knew was far in excess of BacLite’s true commercial value, Harvey Boulter (“Boulter”) arranges with his friend, Robert L. Hamburger, to threaten 3M. Hamburger, who claims to have influence over several groups of wealthy 3M investors, sends an e- mail to 3M CEO George Buckley, in which he creates the specter that these investors will punish 3M for failing to settle with Porton by selling off large blocks of 3M stock, thus artificially deflating its price. Ex. M (E-mails from R. Hamburger to G. Buckley, dated Aug. 30, 2008) In the e-mail, Buckley was advised that Boulter and Hamburger “have one investor group in [Porton Capital, Inc.] who … control[s] a very material position of 3M stock.” Hamburger goes on to say that the investors had been “informed” of 3M’s position regarding Acolyte, and that as a result those investors “have taken a view that 3M is a dishonest party and have threatened to sell their entire position.” 1 References to Compl. are to 3M’s Original Complaint and Jury Demand, filed in this action. i Case 1:11-cv-01527-RLW Document 16-2 Filed 10/31/11 Page 2 of 10 The e-mail further stated that the foreign-based investor groups at issue controlled so much 3M stock that it constituted an amount greater than “high multiples” of $100 million, and that they were “propping up various U.S. sectors right now.” The e-mail then stated that the unnamed investors could not be relied on to act “in a western rational way,” and that the situation was “a recipe to get a lot worse rapidly.” Thus, “3M’s actions [in discontinuing BacLite] have created one hell of a storm.” Later in the day, Boulter sends a second e-mail ratcheting up the urgency of his earlier threat and threatening that, unless 3M took immediate action, the investors would act—potentially irrationally—to harm 3M. Ex. M (E-mails from R. Hamburger to G. Buckley, dated Aug. 30, 2008) It states that it was “essential that 3M do nothing to further escalate this situation” because it had already “triggered a rather unexpected chain of events.” Boulter states that the foreign investors are a volatile group that was “understandably not very happy” and were “simple people of vast means,” and that Buckley needed to do something to “help me buy some time” with the investors. December 22, 2008 The Porton Group commences the London Litigation against 3M. 3M defends on the ground that, after exhaustive testing and the investment of millions of dollars, it determined BacLite was not commercially viable. Subsequently, Ploughshare Innovations, Ltd. (“Ploughshare”) the civilian technology development arm of the U.K. Ministry of Defense (the “MOD”), also sues. Compl. ¶ 55 2010 Boulter retains Tetra Strategy on behalf of the Porton Group. Ex. J-13 (The Guardian, October 9, 2011, “Revealed: How Lobbyists Were Paid to Facilitate Meeting with Liam Fox.”) March 2011 Tetra Strategy introduces Harvey Boulter to Adam Werritty (“Werritty”) as part of the scheme to exert influence on senior-level officials of the U.K. government—such as the Minister of Defence, Dr. Liam Fox (“Fox”)—in order to interfere with 3M’s business opportunities and, subsequently, to leverage that influence into threats, intimidation, and blackmail of 3M. At the time, Boulter ii Case 1:11-cv-01527-RLW Document 16-2 Filed 10/31/11 Page 3 of 10 was paying Tetra Strategy £10,000 per month (approximately $16,000) to, among other things, arrange some meetings. Werritty is a close personal friend of Fox’s, carrying business cards stating he is “Advisor to the Rt. Hon. Dr. Liam Fox MP” Ex. J-13 (The Guardian, October 9, 2011, “Revealed: How Lobbyists Were Paid to Facilitate Meeting with Liam Fox.”) March 9, 2011 Early in the Defendants’ public smear campaign, Lanny Davis (“Davis”) pens a column for Forbes.com that knowingly, falsely, and misleadingly attacks 3M CEO George Buckley for abandoning a “life saving device.” The allegation against 3M is defamatory, per se, as Davis well knew at the time that BacLite was a commercial failure because there were other MRSA detection tests on the market, and that no lives had ever been lost because of 3M’s decision to stop marketing BacLite. Ex. N (Lanny Davis, “3Ms’ George Buckley Criticizes Obama While Ignoring Good Corporate Governance”, Forbes.com, March 9, 2011) For the column, Davis enlists aid from Peter Hotten of Ploughshare Innovations (a subsidiary wholly owned by the MoD) to issue a statement that Davis can use to create the illusion that the U.K. government was directly involved in the London Litigation. Hotten states, “We [Ploughshare] are disappointed that 3M Corp. failed to get an excellent diagnostic technology into the market through what 3M’s own officials describe as avoidable mistakes . Ploughshare believes 3M’s decision not to reapply for FDA approval is contrary to its obligation to its partners.” April 5, 2011 Tetra Strategy succeeds in setting up a meeting between Werritty and Boulter, the purpose of which was to gain access to Fox and to influence the U.K. government not to do business with 3M. The result of the meeting is a promise by Werritty to “push along” Boulter’s (i.e. Porton’s) interests to Minister Fox. Ex. J-9 (The Guardian, October 9, “Businessman Met Fox’s Friend Two Months Before ‘Chance’ Dubai Meeting.”) Werritty e-mails Boulter following their meeting, which took place in Dubai, “Very good meeting with you in Dubai. Thanks for passing along the below along with the e-info on the two issues we discussed. Please leaeve this with me to push along as discussed. I will revert in the next few days.” Any doubts about whether Boulter and Werritty discussed the London Litigation at their meeting were put to rest by Boulter’s later statement to the press that he iii Case 1:11-cv-01527-RLW Document 16-2 Filed 10/31/11 Page 4 of 10 and Werritty specifically discussed the London Litigation. Ex. J-7 (The Guardian, October 8, 2011, “Harvey Boulter: I Met Adam Werritty In April 2011.”) “My first meeting with Werritty was in early April 2011 (don’t recall the exact date) in the Shangri-la Hotel in Dubai. We had about one hour together where I briefed him on Cellcrypt and the Acolyte litigation. He offered his assistance to help raise these topics to ‘the boss.’ At the end of the meeting he very quickly introduced me to Dr. Fox who had just arrived in the lobby – it was a handshake only.” May 11, 2011 Davis conducts a press conference in Minneapolis with much fanfare. Under the guise of announcing a citizen’s petition that he has filed with the United States Food and Drug Administration (the “FDA”) demanding that the FDA investigate the BacLite clinical trials, Davis actually creates a media platform from which to make even more knowingly false and malicious statements about 3M. Those intentionally disparaging false statements include claims that 3M’s decision to stop marketing BacLite had put lives at risk, and that 3M had misled the FDA. Special Motion to Dismiss, Ex. 6 During the press conference, Davis or Robert Hopper knowingly, falsely, and maliciously state that: “Tests… were botched in the United States so that American hospitals don’t have the benefit of this product that can detect this deadly superbug that killed more people than AIDS in this last year” “All those who have suffered from MRSA… could have avoided exposure but for the decision by 3M to abandon it and to refuse to seek approval form the FDA” “Thousands and thousands and thousands of people who died might be alive today had there been a BacLite…” Davis even accused 3M of “hiding the technical report” and suggested that this meant 3M must have been “motivated by other things besides selling BacLite under the contract” In order to reinforce the maliciously false statements that he made at the press conference, Davis also issues a press release called, “Allegations Against 3M Corporation of Possible ‘Negligence and Recklessness’ by the Porton Group, The Equity Partner of the British Ministry of Defence, for ‘Botched’ U.S. Testing of Lifesaving Device to Detect the MRSA ‘Superbug’/Staph Infections.” In that release, Davis both reiterates many of his false and malicious claims, and also iv Case 1:11-cv-01527-RLW Document 16-2 Filed 10/31/11 Page 5 of 10 accuses 3M of conduct that is tantamount to federal fraud.