Interview: Robert W. Kelley

More on The Memorandum

Interview by Kelley McLean

More on <i>The Memorandum</i>
What is The Memorandum?

The Memorandum is a book about the internal smoking gun documents that we find when we litigate against Corporate America — evidence that these multi-national conglomerates put profit over people's safety and welfare.

How do you find these?

It's not easy. They are almost never turned over to us knowingly. We face multiple objections by teams of corporate lawyers and endless hearings before the court once we get on the trail of these documents. They attempt to hide them and conceal them and claim they are confidential at every turn. It's an endless battle.

Tell us about one of the cases in The Memorandum where some of these smoking gun documents was discovered...

One of the biggest cases was a case against General Motors. That was the case where we unearthed some internal GM documents that exposed a vast conspiracy with evidence of destruction of documents and the subornation perjury on behalf of GM that took place over about a 15-20 year period.

As I recall the dispute was over a $3 protective shield that could have prevented a car fire with multiple deaths.
The case eventually ended up on CBS 60 Minutes.

That was known as ‘The Ivey Memo’, a document prepared by an engineer in the advanced design department of General Motors that was a “value analysis” about how much it would be worth for GM to prevent people from burning alive in their cars. But more interestingly, once that value analysis turned up in litigation, [Ed] Ivey, the engineer who wrote it, was deposed in different cases across the United States 15 or 20 times and he constantly and repeatedly took the position in all his sworn testimony that he couldn't remember why he prepared that analysis; that GM never used it and it was just something he did on his own while sitting in his office one day.

What we were able to unearth was a smoking gun Memorandum that showed that Ivey had been interviewed by GM lawyers after he had prepared that value analysis, and they had recorded the interview. It shows that despite his testimony to the contrary, Ivey had actually done the value analysis at the request of his superiors in order to determine how much general motors could spend on its fuel systems. That case eventually ended up on CBS 60 Minutes. Ken Starr was one of the lawyers involved in keeping that information privileged and confidential and the case really exposed an elaborate conspiracy and a lot of false testimony that Ivey had given under oath over more than a decade.

How commonplace do you think this behavior is among top businesses in the US?
Sadly, it is not rare... these companies, they do it all the time

Sadly, it is not rare. And any time we get involved in a case—if it’s a case against the pharmaceutical industry or an auto manufacturer or even cigarette companies—those internal memorandums are very shocking. These companies, they do it all the time and then once they do it they try to cover it up and pretend they never did it. Now it’s getting harder and harder for us to get this information because it's no longer hard copy memorandums; it’s done with emails and electronic memorandums and they’re much harder to track down and much easier to destroy.

I wonder if they use Snapchat or apps where you can send a message that like a real life James Bond memo...

Good point. Interesting question. We will find out! But I know that they do make these calculations and they do put people’s lives on the balance sheet. I know it's done: I’ve seen it with my own eyes. Every time I see one of these memorandums for the first time’s just shocking.

Do any particular memos stand out?

The tobacco company’s internal secret documents are some of the most stunning. For decades the cigarette companies denied to the public and the government that smoking was addictive or that it caused any disease. They really did that for 40 or 50 years. And when you see their internal memorandums, you go back even to the 1960's that they knew that their real product was nicotine; that cigarettes were nothing more than a day’s supply of an addictive drug. They knew it was harmful and addictive yet they were out targeting children that were 14-years-old to get them hooked; knowing full well at that point in time that it caused cancer and a bunch of other horrific diseases. But they did it for money. And they really did it unbelievably well for about 50 years.

The corporations and their CEOs lied to the government. They lied to the American people but when we finally got their internal company documents—and we’re still going through them because there are literally thousands of them—you see what they knew decades ago and how they once again put people’s lives on the balance sheet. To this day, almost half a million people a year die in the United States alone from smoking cigarettes. The numbers world-wide are staggering. It’s a tragedy. Cigarettes would have been banned a long time ago if the companies had told the truth about their product.

The current United States Supreme Court is anti-consumer and on the side of these big companies
Is there any hope?

It’s tough right now because the current United States Supreme Court is anti-consumer and is on the side of these big companies and it’s getting more and more difficult to take these corporate behemoths on and expose them for what they really are. But that said, I think it can still be done. It just takes a lot of work and a lot of people dedicated to changing the way the system functions.

You say it's changed in the last decade — how so specifically?

Over the last 10 years, we’ve seen decisions from the Supreme Court that make it much, much harder to punish these companies with punitive damages and to even take them to court. The US Supreme Court has now upheld the validity of these ridiculous arbitration agreements—you know, the thing you click at the bank before you sign off, ‘I accept, I accept’? Well, you’re waiving your right to a jury trial and you’re waiving your right to a class action lawsuit. So all these things that we used to have to be able to hold these companies accountable for what they do—they’re gone. The United States Supreme Court and Congress has taken that away.

And probably thanks to idiots like me that never, ever read those wavers.

I’m not an idiot and I'm sure you’re not either, but sometimes those are 10, 15 pages long, single-spaced with small print, and all you want do is download something.

So what was the outcome of the GM case?

We were told it was the largest award that GM ever paid to a single family. At the end of the day the verdict was 60 million and, with interest, they ended up paying us 90 million dollars.

Was there any movement to change things after you made that much noise with this case?

Yes, I think there was. I think as a result of that case and others like it, we believe GM changed the way they protect the fuel tanks of the vehicles. I think we can say that confidently.

Do you feel like Robin Hood, robbing the rich to compensate the poor?

It’s more like David vs. Goliath. These days, we do our best to take on these multi-national corporations but they’ve gotten so large and so powerful—as you know with the Citizens United opinion they have the ability to give unlimited money to politicians—so it’s getting harder and harder for the average American to have a fair shot at justice in court against these behemoth, multi-national conglomerates. But we’re still doing it, and we have no plans on giving up.

Is it like that show Goliath where Billy Bob Thornton is a lawyer who works to take down a massive, corrupt corporation?

Yes, except I don’t drink as much as his character did in that series; but something like that. I mean, it’s really like that. That’s essentially what we do.