Taking Down the Lion: The Rise and Fall of Tyco's Dennis Kozlowski (40 page)

2.
People v. Kozlowski II,
direct examination of Mark Foley, transcript at 04363:3–9 and 04368:3–8, February 22, 2005.

3. “Auditor Settles Tyco Class Action,”
Los Angeles Times,
July 7, 2007.

4. Suraj Srinivasan and Aldo Sesia, “The Crisis at Tyco—A Director’s Perspective,
Harvard Business School,
Case No. 9-111-035, June 2, 2011, 9–10.

5.
People v. Kozlowski II,
direct examination of Kathy McRae, transcript at 11300:22–25 through 11304:1–20, April 20, 2005.

6. Ibid. at 11289:18–25, 11290:1–2, 11315:6–25, 11317:1–16, 11320:2–8, and 11464:8–19.

7. On a motion to dismiss the grand larceny charge related to the Frank Walsh investment banking fee, the Kozlowski and Swartz defense teams argued the same points advanced by the author:

MR. DEVITA: The million dollar payment to Mr. Walsh. There is absolutely no proof in this record that Mr. Kozlowski did not have the authority to make that payment. His general authority as CEO gave him the power to make that payment. The specific resolution that was passed as part of the CIT empowering resolution, which said he had the power to do
anything he deemed desirable, gave him the authority to make that payment. During the course of the trial Mr. Walsh testified that he believed that Mr. Kozlowski had the authority to make that payment. Obviously, by virtue of the fact that he made the payment Mr. Kozlowski believed he had the authority to make the payment. I believe that Mr. Swartz testified at the last trial that he believed Mr. Kozlowski had the authority to make the payment. And if you credit the People’s evidence during this trial, by virtue of the role Mr. Swartz allegedly played in the payment, he obviously believed that Mr. Kozlowski had the authority to make the payment. Mr. Fort testified on page 2056 that he believed that Mr. Kozlowski had the authority to make the payment. Mr. Slusser testified on page 8627 that he believed that Mr. Kozlowski had the authority to make the payment. And we believe that a fair reading of Mr. Foss on pages 5295 and 5331, and Mr. Pasman on 7721 through 7723, also indicate that they believed that Mr. Kozlowski had the authority to make the payment. It is terribly prejudicial to let this count go to the jury in light of undoubtedly be confused between the failure to advise the Board ahead of time, which is not a crime, and the lack of authority to make the payment, which the People allege is the crime. There is basically no proof other than the fact that Mr. Kozlowski did not tell the Board—the other Board members in advance about the payment that it in any way sullies the payment. And even that proof is not sufficient to carry the day for the People. So we would ask you to dismiss the 20 million dollar Walsh count for those reasons as well.

MR. MITCHELL: Judge, just a little bit to add on the Walsh payment on behalf of Mr. Swartz. Again, this is a larceny count, requires a showing of criminal intent. There is no evidence in this record that Mr. Swartz had anything but a good faith belief that Dennis Kozlowski had the authority to make the payment he did to Frank Walsh. I’m not going to mention the director testimony that Mr. Campriello has just mentioned. I will mention the bylaws that have been in evidence, seen many times by your Honor, that do present such authority to Mr. Kozlowski, but I also, just on behalf of Mr. Swartz, want to point out what evidence there is in this record is completely inconsistent with anything but a good faith belief that Mr. Kozlowski had the authority to make the payment. For example, what does Mr. Swartz do when he is asked to process the fee for Mr. Walsh? He asked Mr. Walsh to send him written invoices evidencing the fee. We seen [
sic
] those in there as evidence in the case. He takes those invoices and gives them to Mr. Robinson, the company’s Treasurer, and has Mr. Robinson handle the actual wiring out of the money and knowing that those records will be part of the books and records as Mr. Robinson testified. Mr. Swartz speaks to Mr. Gamper from CIT at one point when Mr. Gamper has a question as to how the transaction is going to be recorded and why it is on CIT’s books. And again, Mr. Swartz is involved at the time when Rick Scalzo from PWC asked Mr. Foley, what’s the story of the disclosure of this issue. It will it be in the 10-K you heard from testimony from Mr. Foley when he talks to Mr. Swartz and the information gotten back to Mr. Scalzo was it is going to be disclosed in the upcoming proxy. None of these witnesses, when we asked them[,] ever said Mr. Swartz asked them to conceal the fact when there was a payment made to Mr. Walsh in any way, shape. That is inconsistent with any criminal intent. Finally the D&O [Directors and Officers] Questionnaire that came from Mr. Walsh. That came to Mr. Swartz through the Legal Department. The only evidence was he was provided to asked for a copy of it, not the original, and he gave it to the people in Finance a couple of days after getting it from Mr. Walsh—from Fati Sadeghi, Legal. None of it is inconsistent with a belief that this is something Mr. Kozlowski had authority to do.

People v. Kozlowski II,
defense motion to dismiss, transcript at 11951:3–25 through 11056:1–4, April 27, 2005.

8.
People v. Kozlowski II,
cross-examination of Frank Walsh, transcript at 02952:1–5, February 7, 2005.

9.
People v. Kozlowski II,
Justice Obus charge to the jury, transcript at 16030:20–25 and 16031:1–2, June 2, 2005.

10.
People v. Kozlowski II,
summations, transcript at 14702:2–7 and 14704:9–14, May 23, 2005.

Chapter Eighteen: 05A4820

1.
People v. Kozlowski II,
Supreme Court Justice Obus, transcript at 16359:9–24, June 17, 2005.

2.
People v. Kozlowski II,
sentencing, transcript at 00006:4–16, 00007:13–16, 000030:4–6, 00081:4–25 and 00082:1–5, 00082:8–25, 00083:1–9, 000086:9–11, 00089:7–22, 00095:17–25, 00096:1–5, 00096:11–17, 00097:25, 00098:1–3, and 00098:9–14, September 19, 2005.

3. Dennis Kozlowski, interview with the author, New York City, New York, June 23, 2012.

4. Dennis Kozlowski, telephone interview with the author, May 18, 2012.

5. Ibid.

6. New York State Department of Corrections and Community Supervision, “Facility Listing.”

7. Dennis Kozlowski, telephone interview with the author, May 18, 2012.

8. Ibid.

9. Ibid.

10. Dennis Kozlowski, interview with the author, Marcy, New York, May 21, 2011.

11. Hillary Canada, “‘Ain’t It Funny?’ Ja Rule Bonding with Hevesi in Mid-State,”
Wall Street Journal,
February 2, 2012; J. Molloy, “Rapper Ja Rule, Serving Two Years for Gun Possession, Finds New Posse behind Bars,”
New York Daily News,
February 2, 2012; Chris Dolmetsch, “Ex-New York State Comptroller Alan Hevesi Granted Parole,” Bloomberg.com, November 15, 2012; and Christie D’Zurilla, “Ja Rule Is Done with Prison for Gun Charge but Isn’t a Free Man,”
Los Angeles Times,
February 21, 2013.

12. Dennis Kozlowski, interview with the author, Marcy, New York, May 22, 2011.

13. Ibid.

14. Dennis Kozlowski, letter to the author, May 24, 2011,

15. Dennis Kozlowski, letter to the author, March 17, 2011.

16. Dennis Kozlowski, letter to the author, February 4, 2011.

17. “Imprisoned Ex-Tyco Chief’s Divorce Finalized,”
New York Post,
July 17, 2008.

18. Dennis Kozlowski, telephone interview with the author, May 18, 2012.

19. Ibid.

20. Robert Morgenthau, interview with the author, New York, New York, May 22, 2013.

21. Isaac Rosenthal, interview with the author, New York, New York, May 23, 2013.

22. Bureau of Justice Statistics, “First Releases from State Prison: Sentence Length, Time Served, and Percent of Sentence Served in Prison, by Offense,” data source: National Corrections Reporting Program, 2009, version dated May 5, 2011.

23.
People v. Kozlowski,
47 A.D.3d 111 (1st Dep’t 2007).

24. Ibid. at 116.

25. International Art Alliance, “International Directory of Corporate Art Collections,” (2013).

26. Vivien Raynor, “ART: When Corporations Become Collectors,”
New York Times,
March 1, 1992.

27. Samantha Sharf, “The World’s Best Corporate Art Collections,”
Forbes,
August 2, 2012.

28.
People v. Kozlowski,
47 A.D.3d 111 (1st Dep’t 2007), 116–117.

29. 11 N.Y.3d 223 (2008).

30.
People v.
Kozlowski,
47 A.D.3d 111 (1st Dep’t 2007), 120.

31. 11 N.Y.3d 223 (2008), 243.

32. Andrew Ross Sorkin and Jonathan D. Glater, “Some Tyco Board Members Knew of Pay Packages, Records Show,”
New York Times,
September 23, 2002.

33. Christo Lassiter, interview with the author, Cincinnati, Ohio, May 13, 2013.

34. Karen Donovan,
v. Goliath: The Trials of David Boies
(New York, NY: Vintage, 2005), 335–336.

35.
Kozlowski v. Hulihan,
U.S. District Court, Southern District of NY, 09CV7583, Oral Arguments, December 22, 2011, 58.

36. Ibid. at 18–20.

37. Ibid. at 75–76.

38. Ibid. at 81.

39.
L. Dennis Kozlowski v. William Hulihan,
12-0764, and
Mark H. Swartz v. Superintendent Paul Annetts,
12-07776, U.S. Court of Appeals for the Second Circuit, February 4, 2013.

40.
Griffin v. Illinois,
351 U.S. 12, 19 (1956).

41. Lewis Powell, Jr., U.S. Supreme Court Justice, address to the ABA Legal Services Program, ABA Annual Meeting, August 10, 1976.

42. New York State Supreme Court Justice Michael J. Obus, letter Re:
People v. Kozlowski,
March 16, 2002.

43. Dunstan Prial, “Former Tyco CEO Kozlowski Granted New Parole Hearing,” Fox Business News, February 7, 2013.

44. “Former Tyco CEO Dennis Kozlowski to Get New Parole Hearing,”
Caruto,
Fox Business News, originally aired February 14, 2013.

45. Chad Bray, “Court Denies Parole Bid by Former Tyco CEO Kozlowski,”
Wall Street Journal,
July 2, 2013.

Chapter Nineteen: Observations

1.
People v. Kozlowski I,
opening statements, transcript at 00103:10–14, October 7, 2003.

2. Dennis Kozlowski, interview with the author, New York City, New York, June 22, 2012.

3. Peter Hossli, “I Am Innocent,” Hossli.com, May 22, 2009, 1; and Matthew McCabe, “Top Ten Evil Businessmen,” Listverse, July 23, 2012.

4. Matthew McCabe, “Top Ten Evil Businessmen,” Listverse, June 23, 2012; and Daniel Fisher, “The Anti Dennis Kozlowski,”
Forbes,
March 11, 2010.

5. Peter Hossli, “I Am Innocent,” Hossli.com, May 22, 2009, 6. Even though the article was published in May 2009, the content was based on an interview that took place in January of 2008. Ibid. at 10.

6. Suraj Srinivasan and Aldo Sesi, “The Crisis at Tyco—A Director’s Perspective,”
Harvard Business School,
Case No. 9-111-035, June 2, 2011.

7. Retention Agreement between Tyco and Dennis Kozlowski, January 21, 2001, at paragraph 1(a).

8. James Freeman, “The World’s District Attorney,”
Wall Street Journal,
December 26, 2009. See also, Terry Carter, “The Boss,”
ABA Journal,
June 1, 2010.

9. Isaac Rosenthal, interview with the author, New York City, New York, May 23, 2013.

10. Edith Honan, “Ex-Tyco CEO Sues Company for Consulting Pay,” Reuters, December 11, 2007.

11. Dennis Kozlowski, telephone interview with the author, May 22, 2012.

12. David A. Kaplan, “Why Kozlowski Should Get Clemency,”
Fortune,
November 23, 2009.

13. William C. Symonds, “The Most Aggressive CEO,”
Businessweek,
May 27, 2001.

14. Isaac Rosenthal, interview with the author, New York City, New York, May 23, 2013.

15. Brad McGee, telephone interview with the author, May 30, 2013.

16. Robert Morgenthau, interview with the author, New York City, New York, May 22, 2013.

17.
People v. Kozlowski II,
direct examination of Frank Walsh, transcript at 02500:9–25, February 3, 2005.

18. Tyco International Ltd. “Compensation Committee Meeting Minutes,” October 18, 1999.

19. Mandi Woodruff, “This Is What Everyone’s Afraid to Say about the Rich,”
Business Insider,
May 4, 2012.

20. Dennis Kozlowski, interview with the author, New York City, New York, June 22, 2012.

21. Dennis Kozlowski, telephone interview with the author, May 10, 2012.

22. Isaac Rosenthal, interview with the author, New York City, New York, May 23, 2013.

23. Robert Morgenthau, interview with the author, New York City, New York, May 22, 2013.

24. Mark Belnick, telephone interview with the author, May 14, 2013

25. Ibid. Also, Dennis Kozlowski, interview with the author, Marcy, New York, May 21, 2011.

26. Dennis Kozlowski, interview with the author, Marcy, New York, May 21, 2011.

27. Dennis Kozlowski, letter to the author, May 24, 2011.

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