EMAIL FROM JOHN DONOVAN TO MICHIEL BRANDJES, COMPANY SECRETARY & GENERAL COUNSEL, ROYAL DUTCH SHELL PLC: SENT 25 MARCH 2009

From: John Donovan <[email protected]>

Date: Wed, 25 Mar 2009 16:28:02 +0000
To: “[email protected]” <[email protected]>
Cc: “Wiseman, Richard RM SI-LSUK” <[email protected]>, <[email protected]>, <[email protected]>, <[email protected]>, Ken Purchase <[email protected]>, Paddy Briggs <[email protected]>
Conversation: Royal Dutch Shell Pension Fund Conspiracy and Deception
Subject: Royal Dutch Shell Pension Fund Conspiracy and Deception

Dear Mr Brandjes

Printed below is a draft article. It contains my interpretation of the information contained in email correspondence supplied to me by Shell SA retiree, Mr Ken Purchase. No doubt you will advise if any of the emails are not authentic. If I do not hear from you by close of business on Friday 27 March, I will take it that there is no dispute or challenge over authenticity, stated facts, nor my interpretations or conclusions, and will state as such.

You will see from the correspondence that Mr Purchase seems to have reached the same conclusions as me, but has said so in a rather more polite tone.

If Shell wishes to supply any comment it will be published alongside the article on an unedited basis. If you need more time to respond, that is not a problem. We are as always more interested in fairness, truth, and accuracy, than in rushing to publication.

The supply of emails from Mr Purchase has ceased, so perhaps the issues raised by him have been resolved. I hope for the sake of him and many others in a similar position that this is the situation. In any event, Mr Purchase has no advance knowledge of the content of the draft article. It is my decision to publish the email correspondence. The order of the emails may be revised if they are not in proper chronological order.

I will, as per normal, also publish this email along with any response.

In view of the interest of former Shell executive Mr Paddy Briggs in Shell pension fund issues, I have also supplied him with a copy of this correspondence and would appreciate his evaluation. If he has time to edit/improve the draft article, that would be great.

Best Regards
John Donovan

DRAFT ARTICLE

More Shell Pension Fund Machinations (We have not yet decided on the title)

To safeguard the integrity of a pension fund it is essential any legal advice given to the pension fund administrators/trustees is obtained from a source that is independent of the employer company.    

I reveal in this article, proof how a lawyer supposedly providing independent advice to the Shell Southern Africa Pension Fund has in fact secretly conspired directly with the employer company – Shell South Africa – in deciding how to deal with legitimate issues raised by a Shell pensioner who feels he and a thousand other Shell retirees have been cheated.

The behind-the-scenes collaboration only became evident due to the incompetence of the relevant pension fund attorney, Jonathan Mort, director of retirement fund specialised services, Edward Nathan Sonnenbergs Inc.

Mort was mentioned in a related article published in 2008 about the Shell Southern Africa Pension Fund scandal: “Shell bid to grab R184m surplus stopped“. A tribunal ruled that Shell had improperly used monies from the pension fund.

http://www.persfin.co.za/index.php?fSectionId=595&fArticleId=4246697

Interestingly given the current Shell Dutch and UK pension fund problems of underfunding, issues before the South African tribunal included a pension fund contributions holiday taken by Shell. This was a move copied by the Shell UK pension fund shortly before the global economic meltdown, which apparently failed to materialise in the famed Shell scenarios crystal ball.

http://news.bbc.co.uk/1/hi/business/7022648.stm

http://www.telegraph.co.uk/finance/markets/2816898/Shell-gives-itself-pension-holiday.html

http://www.shell.com/home/content/aboutshell/our_strategy/shell_global_scenarios/dir_global_scenarios_07112006.html

Richard Wiseman, Chief Ethics and Compliance Officer of Royal Dutch Shell Plc was made aware by Ken Purchase of the secret collaboration between Shell SA pension fund legal advisor Mort and the employer company, Shell South Africa. In line with his track record, Wiseman turned a convenient blind eye to the unethical conduct on the part of Shell South Africa employees and Mr Mort. No doubt it his willingness over the years to turn a blind eye to corruption, covert activity, cover-up and deceit, which has endeared Wiseman to Shell management and made him the perfect choice for his pre-retirement loyalty reward: an impressive but deceptive title – the ultimate con trick perpetrated on Shell employees and shareholders – an ethics and compliance enforcer whose first loyalty is to the disreputable Shell executives who gave him the job.

I became aware of these matters some weeks ago when I received an email from Mr Purchase, a former employee of Shell South Africa. He drew my attention to serious issues relating to the administration of the Shell South Africa Pension Fund.

I operate a website royaldutchshellplc.com which The Times newspaper has aptly described as “an independent website that monitors the company”. The Financial Times says the website “has been a long-running thorn in the company’s side”. Shell management is so frightened by the outspoken nature of the site and its impact on Shell that it set up a crisis team to counter our activities. People who have a grievance against Shell contact us in the knowledge that the mere mention to Shell of our involvement will create more leverage in achieving a satisfactory outcome to matters in dispute. I assume this was the reason why Mr Purchase contacted me.

I have provided a link to the email correspondence kindly supplied to me by Mr Purchase, who eloquently pointed out to Jonathan Mort and Mort’s real client, Shell the company, not the pension fund, his concerns over Shell’s improper conduct in respect of the Shell Southern Africa Pension Fund.

In an email to Ken Purchase dated 13 February 2009, Mort falsely claimed to represent the Shell SA Pension Fund only, and not any employer. He also falsely claimed that the Shell SA Pension Fund is a separate independent legal entity over which the employer company, Shell South Africa, had no control or influence. Mort went on to say that he had never expressed the view that a surplus apportionment in the Shell SA Pension Fund was a “common sense and fair distribution”. It is notable that Mort did not go on to actually endorse the principle of a common sense and fair distribution. He did however tellingly mention the pension fund trustees potential exposure “to a claim for damages, criminal sanction and removal by the Regulator”.

Mort’s claims were shown to be false when due to fortuitous negligence, a copy of a draft reply which he sent directly to the employer company (Shell employees with shell.com email addresses) was mistakenly also sent to Ken Purchase. The email Mort sent to Shell company employees and other parties containing his proposed response sought comments/endorsement/instructions from the employee company that he falsely claimed he did not represent and which he also claimed had no control or influence over the pension fund. The draft could also be construed as providing legal advice to the employer on how best to deal with an articulate Shell retiree who self-evidently knew exactly what he was talking about (look at the emails).

Separation and independence from the employer company was a major theme in the Mort replies. The draft reply proved this was all a fabrication. Mort was ultimately acting first and foremost as a front man for Shell SA, not for the Shell SA pension fund and most certainly not for Shell retirees.

When the reply in question was sent by Mort to Ken Purchase, it had expanded considerably following the collaboration between Mort and the employer company, which supposedly had no control or influence over the pension fund.

These disgraceful machinations – a smoke and mirrors Shell game, should be the subject of a genuinely independent inquiry. Indeed, bearing in mind the flood of news articles undermining confidence in the ethical administration of Shell pension funds in a number of Countries, the entire shambolic Shell pension fund regime should be scrutinised on a genuinely independent basis. Conmen such as Jonathan Mort should be sacked. Likewise Richard Wiseman, who has failed to take appropriate action to defend the reputation of Royal Dutch Shell despite being made aware of dishonest behaviour by Mort and the Shell employees who participated in the conspiracy to deceive. An email containing the false information was sent after they had seen it. The email in question for obvious reasons failed to disclose the involvement of Shell company employees in the formulation of its content.

RELATED ARTICLES (LONG LIST OF LINKS TO BE ADDED)

RELATED ARTICLES BY NEWS ORGANISATIONS

http://www.shellnews.net/wikipedia/Shell%20Pension%20Fund%20Articles.html

RELATED ARTICLES BY JOHN DONOVAN

RELATED ARTICLES BY PADDY BRIGGS 

EMAIL RECEIVED BY JOHN DONOVAN FROM KEN PURCHASE

From: Ken Purchase <[email protected]>
Date: Sun, 15 Feb 2009 20:56:03 -0000
To: <[email protected]>
Subject: Shell South Africa Pension Fund

Dear John,
 
Are you aware of the issue relating to the Shell South Africa Pension fund and how as a result of a surplus distribution it appears that a significant injustice has taken place. It appears but is difficult to get precise information that a significant amount of money has been distributed to past member who were aware of a tribunal hearing and they have received all the funds that in reality belonged to all past members. They constantly use the pension fund law but there is, in my mind a very significant breach of ethics and human rights. Would you be interested in mores detail and if so how do I proceed. There is a list of well over a thousand whom have lost out.
 
Ken Purchase

THE EMAIL CORRESPONDENCE IN DATE ORDER

EMAIL SENT BY RETIRED SHELL SOUTH AFRICA EMPLOYEE, KEN PURCHASE, TO JONATHAN MORT, DIRECTOR RETIREMENT FUND SPECIALISED SERVICES, EDWARD NATHAN, SONNENBERGS INC: 26 OCTOBER 2008

From: Ken Purchase [mailto:[email protected] <mailto:[email protected]> ]
Sent: 26 October 2008 02:18 PM
To: Jonathan Mort
Cc: ‘Geldenhuis Johan’; [email protected]; [email protected]
Subject: The determination

Dear Mr Mort,
 
I have been asked that you point us to where your statement below is covered in the determination and are you saying that Shell UK is the same employer as Shell SA. This is clearly of significant importance to us as we to see this whole issue as being the responsibility of the broader Shell group who are party, we believe, to a significant injustice irrespective of the local legal advice they have received. I wonder also if you could provide us with a list of all past members who registered pre 29th as we would like to do a profile analysis on it and compare it to the total population of potential beneficiaries. We have the post 29th list and continue to find additional people with very little effort. My contacts tell me that you are considering 30 or so folk who for one reason or another were denied benefit and are the subject of a sub committee decision. Please advice what decision has been made re paying people who registered but cannot produce evidence of final salary.  We have assumed that you can make no compromise towards them as that too is in breach of the determination and the Trustees have no authority to amend it. That is if you follow the rigid law driven approach that has been followed so far and has forced Shell to act in a manner that will be very difficult for them to explain in view of their very public position on justice and equity.
 
Kind regards,
 
Ken Purchase

However, the details of his final salary on withdrawal were obtainable from the records of the broader Shell Group, and as it is incumbent on the fund to seek that information from the employer, which the employer in fact had, it was resolved that there was no lawful basis for Mr S****** not to receive his benefit.

EMAIL REPLY ON BEHALF OF JONATHAN MORT: 5 NOV 2008

From: Vanessa O Sullivan [mailto:[email protected] <mailto:[email protected]> ] On Behalf Of Jonathan Mort
Sent: 05 November 2008 09:10
To: Ken Purchase
Cc: Geldenhuis Johan; [email protected]; [email protected]
Subject: The determination

Dear Mr Purchase

In reply to your query, the obligation rests on the Shell SA Pension Fund, not the employer, to seek from the employer (if the employer has it) the requisite information relating to former members.  This is apparent from the provisions of section 15B(4)(a) which reads as follows:-

“Section 15B(4)    The board (of trustees of the pension fund) shall determine who may participate in the apportionment of actuarial surplus, and shall include in such apportionment existing members and any former members who left the fund in the period from 1 January 1980 to the surplus apportionment date:  provided that –

 (a)    the board may exclude from participation former members in respect of whom the board satisfies the Registrar that insufficient records are available to enable the additional benefits that may be due to such former members to be calculated, after the board has taken reasonable steps –

         (i)    to obtain such records from the administrator;

         (ii)    to construct such records from the records of the –

                 (aa)    employer;

                 (bb)    any fund to which former members transferred; or

                 (cc)    a trade union or staff association active in the workplace during this period; or

         (iii)    if the steps in sub-paragraphs (i) and (ii) do not yield sufficient information, to obtain such records from the potential claimants themselves following an advertisement –

                 (aa)    on a national basis (in South Africa) and in the area where the former members used to work; or

                 (bb)    on a more limited basis as approved by the Registrar if representations by the fund satisfied the Registrar that limited advertisements will be adequate,

         inviting the former members to come forward with evidence to substantiate their claim, after which advertisement the board should wait at least six months but no longer than nine months before excluding any former members because of a lack of sufficient information to enable the calculations to be performed.”

Furthermore, attached are the advertisements as well as the advertising campaign that was conducted by the fund; on any view well beyond what is envisaged in the above section.

As regards your request that the fund calculates your claim, the fund is not prepared to do this because it would not be based on the actual salary you were earning at the time of withdrawal from the fund.  However, as pointed out in previous correspondence, even if you had after 29 January 2008 furnished proof of your actual salary at the time of your withdrawal from the fund, you would have been precluded from being eligible to receive a greater surplus apportionment than that allocated to you because you were out of time.  

I confirm that no former member has received his or her minimum benefits without actual proof of salary at the time of withdrawal from the fund.

As regards the sub-committee process after the surplus apportionment, where it was ascertained that the fund in fact had the information but had simply overlooked it, or the employer had the information (the employer for this purpose being the broader Shell Group), then because such a former member would have had a good case in law against the fund his or her minimum benefits and share of surplus have been paid to him or her.  There has been no element of discretion in this.  And such former members are entirely different from your situation:  you have never produced proof of your salary at the time of withdrawal, and in terms of the above section the tribunal was fully within its rights not to apportion surplus to you.  

Regards

Jonathan Mort
director, retirement fund specialised services
edward nathan sonnenbergs inc
tel:   (+27 21) 410 2500
fax:  (+27 21) 410 2555
cell: (+27 82) 562 2524
email:  [email protected]

EMAIL REPLY TO JONATHAN MORT FROM KEN PURCHASE: 3 JANUARY 2009

From: Ken Purchase [mailto:[email protected] <mailto:[email protected]> ]
Sent: 03 January 2009 07:39 PM
To: Jonathan Mort
Cc: ‘Geldenhuis Johan’; [email protected]; [email protected]
Subject: RE: The determination

Dear Mr Mort
 
I have been asked that you again confirm that you are not prepared to give me an estimate of what my benefit would have been and also that you and Shell stand by your position that you consider that in view of the long list of past pensioners who have not been contacted you feel that a common sense and fair distribution has been achieved. Also the Shell SA Pension fund is prepared to justify its position even though the precedent of BP is significantly different. Please also confirm that in your reply to Mr Martin you stand by your statement that you were briefed by Shell to respond in the way you have. We will of course have to go to the courts to obtain details of the distribution profile but please confirm that when we have done that you feel that it will not have favored any particular group of past employees.
 
Many thanks
 
Ken Purchase
 
I did receive your email and apologise for not replying sooner. Taking instructions about the reply took some time and in the pre Christmas rush I simply overlooked replying.
 
I am not aware of any formal correspondence entered into between the fund and the employer requesting the records of the employer.  The employer has always adopted a constructive, supportive and transparent position in respect of the information needed by the fund to compute minimum benefits.  Thus, it made available to the fund all its withdrawal records, but those withdrawal records simply recorded, in the case of Mr Purchase, his name, the date of his withdrawal and the amount of his withdrawal benefit.  Crucially, the amount of his salary at the time of his withdrawal was not recorded (I understand that the withdrawal records of the company never recorded for any former member what their salary was at the time of their withdrawal).
 
The fund does not consider it reasonable for it to quantify any claim your client may make against it. The claim is calculable by your client and he bears the onus of establishing his loss, if any, and proving that the fund is liable for that.
 
The position of the fund in respect of the cut off date of 29 January 2008 is that the reasonableness of that date cannot be an issue because that is the date the tribunal was entitled in law to establish as the cut off date (in fact the tribunal could reasonably have established the cut off date much earlier) according to the provisions of the Pension Funds Act. See section 15B(4) of that Act in this regard.
 
With respect to the period within which your client must lodge a challenge to this cut off date, I am not in a position to give him this advice.

REPLY FROM JONATHAN MORT TO KEN PURCHASE: 13 FEBRUARY 2009: 12.48

From: Jonathan Mort [mailto:[email protected] <mailto:[email protected]> ]
Sent: 13 February 2009 12:48
To: Ken Purchase
Cc: Geldenhuis Johan; [email protected]; [email protected]
Subject: RE: The determination

Dear Mr Purchase

I refer to your of 3 January 2009 (sent 07:39pm), received whilst I was away on leave.

I confirm that I represent the Shell SA Pension Fund only, and not any employer which participates or may have participated in the past in that fund. I must emphasise again that your dispute relates to my client only, and not any employer, as it is in connection with a benefit you claim from my client (a separate and independent legal entity from any employer which participates in it), and over which no employer was in a position to control, direct or influence.

I confirm the instructions from my client (the Shell SA Pension Fund) that it is not prepared to quantify for you any possible claim you may have from the fund. As pointed out before, you bear the onus in law of establishing the quantum of any claim you may make.

I am not aware of ever having expressed a view that the surplus apportionment in the Shell SA Pension Fund was a “common sense and fair distribution”. The only issue, as I have indicated before, is whether the requirements of the Pension Funds Act were complied with in devising the surplus apportionment scheme, and in my view they have been. Furthermore, how another fund may have devised its surplus apportionment scheme is not relevant.

Jonathan Mort
director, retirement fund specialised services
edward nathan sonnenbergs inc
tel:   (+27 21) 410 2500
fax:  (+27 21) 410 2555
cell: (+27 82) 562 2524
email:  [email protected]

REPLY FROM KEN PURCHASE TO JONATHAN MORT: 13 FEB 2009: 8.47 PM

From: Ken Purchase [mailto:[email protected] <mailto:[email protected]> ]
Sent: 13 February 2009 08:47 PM
To: Jonathan Mort
Cc: ‘Geldenhuis Johan’; [email protected]; [email protected]; ‘Charles Abrahams’; [email protected]; ‘Justin Martin’
Subject: RE: The determination

Dear Mr Mort,
 
My dispute does not relate to your client only. In my opinion and that of those advising me we believe that Shell has been party to a significant and inappropriate breach of their often stated values and ethics let alone a fundamental breach of Human Rights. When they are challenged in both the courts and AGM I look forward to hearing the justification as they explain how a lucky few have benefited whilst many, and I guess those with less resource have been deprived of what rightly belongs to them. I am afraid Shell via its representatives may have been guided by you to follow the letter of the law but their publicly stated responsibility to past employees and the community at large on a global basis is likely to simply falls apart as this story unfolds and is compared with for example BP. We also believe that the actions you have taken re my own position compared with specifically Stephen ******* but also others requires significant justification especially as you can produce no formal correspondence as per Mr Martins request for copies of correspondence from the Pension Fund to Shell.
 
Thank you for your reply, it looks like the long haul is starting in earnest now.
 
Kenneth Purchase

EMAIL FROM JONATHAN MORT SEEKING COMMENTS/INSTRUCTIONS FROM SHELL FOR HIS DRAFT RESPONSE TO KEN PURCHASE

From: Jonathan Mort
[mailto:[email protected]]
Sent: 15 February 2009 08:01 AM
To: [email protected]
Cc: Geldenhuis Johan; [email protected]; Charles Abrahams; [email protected]; Justin Martin
Subject: RE: The determination

My draft reply – please let me have your comments.

“Dear Mr Purchase

It would be helpful if you could let me know on what basis Shell as the employer or as the ultimate shareholder of the employer was a party to the determination of the tribunal. As the legal adviser to the fund I am naturally interested in the point because I have not been aware that Shell was a party to the determination in the sense that it was able to prescribe what that determination should be.

I must point out again that I have never advised Shell, that I have only advised the fund (which is a separate legal entity from Shell), and that the fund is obliged to comply with the law. If it did comply with this legal obligation its trustees would be exposed to a claim for damages, criminal sanction and removal by the Regulator.

Regards”

SUBSEQUENT EXPANDED REPLY FROM JONATHAN MORT TO KEN PURCHASE INCORPORATING PARTS OF THE ABOVE DRAFT: 18 FEBRUARY 2009: 07.42

From: Jonathan Mort [mailto:[email protected] <mailto:[email protected]> ]
Sent: 18 February 2009 07:42
To: Ken Purchase
Cc: Geldenhuis Johan; [email protected]; [email protected]; Charles Abrahams; [email protected]; Justin Martin
Subject: RE: The determination

Dear Mr Purchase
 
It would be helpful if you could let me know on what basis Shell as the employer or as the ultimate shareholder of the employer was a party to the determination of the tribunal. As the legal adviser to the fund I am naturally interested in the point because I have not been aware that Shell was a party to the determination in the sense that it was able to prescribe what that determination should be.

I must point out again that I have never advised Shell, that I have only advised the fund (which is a separate legal entity from Shell), and that the fund is obliged to comply with the law. If it did comply with this legal obligation its trustees would be exposed to a claim for damages, criminal sanction and removal by the Regulator.

It is also relevant for you to know that the tribunal, which determined the surplus apportionment and by which determination the fund is bound, was appointed by the Regulator, and not by the fund or the employer. The members of the tribunal, chosen by the trustees of the fund, were a senior barrister (a QC in your terms) who has acted as a judge, an experienced barrister and an experienced actuary. All are recognised for their expertise in pension fund matters. Many lawyers and actuaries applied to be on the panel constituted the by Regulator from which the tribunal for each fund was appointed, and few were accepted onto that panel by the Regulator.

Regards

Jonathan Mort
director, retirement fund specialised services
edward nathan sonnenbergs inc
tel:   (+27 21) 410 2500
fax:  (+27 21) 410 2555
cell: (+27 82) 562 2524
email:  [email protected]

REPLY TO JONATHAN MORT FROM KEN PURCHASE: 18 FEBRUARY 2009: 10.01

—–Original Message—–
From: Ken Purchase [mailto:[email protected] <mailto:[email protected]> ]
Sent: 18 February 2009 10:01
To: ‘Jonathan Mort’
Cc: ‘Geldenhuis Johan’; Kirima, Wanjiru W SSA-FTP; Wood, Thomas SSA-DAHS; ‘Charles Abrahams’; [email protected]; Wiseman, Richard RM SI-RDS-CCO
Subject: RE: The determination

Dear Mr Mort,
 
We understand all of your response but it is the actions and decisions of the trustees and sub committees that include Shells representation on these bodies that is of interest to us. The trustees have a duty to all interested parties, including me as a past pensioner together with the thousands of other pensioners who you failed to communicate with. We know BP applied a different approach which we believe was a discretionary decision and as you are denying us the information about the profile of the distribution we are very suspicious about the motives of both the trustees and sub committee. I happen to know what was paid to folk who worked for me and then to see a long list which has many if not thousands of deserving and I guess much poorer people being denied benefit certainly sends alarm bells. This is simply not the type of situation that Shell with its vast public, political, ethical and Human Rights stance can surely endorse? Shell as a global influence, and as far as I know sits on a variety of international Human Right organisations often presents itself as being very sensitive to the community and society at large.  We believe, as one example that your position over S****** is in sharp contrast to mine and irrespective of what you say below, Shell had influence with representatives sitting as trustees and perhaps on the sub committee and thus how to apply elements of the determination and tribunal recommendations.  To the stakeholders of the Royal Dutch Shell Company  it could look pretty unfair that they have lost records, been found wanting in the manner by which they attempted to acquire surplus funds and then accept what appears to have been a very selective distribution of the surplus to past members. Of course we cannot say that for sure as you deny me an estimate of what my share would have been and give no indication as to the profile of the surplus distribution, so of course it is our assumption that it has been selective when the long list of past members you failed to contact is compared to the demographics of the potential beneficiaries. I or any person who is as a past or current member of any pension fund (trust) must surely be entitled to protection as it is the job of the trustee, not necessarily the law to protect all members. In the UK pension funds are governed, I think by trust law for the very reason that in certain circumstances justice and protection of the individual is paramount. I would like to know how my rights have been protected when my past employer and pension fund lost most of my records and had they not done that they would have contacted me. Why there was no formal correspondence with Shell in the UK about possible beneficiaries because had that happened I would most likely have been contacted. Why one person who like me had failed to comply with the 29th January cut off was subsequently rewarded. Why the trustees clearly with the knowledge of Shell allowed a situation to evolve where, I would guess, the majority of past members have been denied benefit and no contingency has been made for them. Where a list of those who had failed to register was only published after the expiry date thus denying a network to develop and from which in any event additional names came forward but I believe were denied benefit. Why hope was given that the sub committee would consider the thirty or so who had registered late but as it turns out that sub committee subsequently achieved nothing because as you say no discretion, other than *******, was applied and perhaps you would like to again confirm that.
 
Thank you for copying us into your internal deliberations that took place your end and gave rise to your response below. Somewhat similar to the draft you circulated?
 
I hope I have answered your questions, this is not simply about a determination involving important people but more about ordinary past pensioners, perhaps proud to have been associated with one of the worlds most prestige, high profile and ethical companies looking for fairness. In addition it is about the interpretation of the determination and how it has been applied.
 
Kind regards,
 
Ken Purchase

REPLY TO KEN PURCHASE FROM RICHARD WISEMAN, CHIEF ETHICS OFFICER, ROYAL DUTCH SHELL PLC: 19 FEBRUARY 2009

From: [email protected] [mailto:[email protected]]
Sent: 19 February 2009 10:08
To: [email protected]; [email protected]
Cc: [email protected]; [email protected]; [email protected]; [email protected]; [email protected]
Subject: RE: The determination

As you will appreciate, this is a matter for the trustees who are independent.  I am not really in a position to respond.  However, I believe that the trustees followed the correct procedures with the benefit of outside professional advice and the surplus has now been appropriately distributed.

In the circumstances, I have no further comment to make.

Regards

Richard Wiseman

Chief Ethics and Compliance Officer
Royal Dutch Shell plc
Shell Centre, London SE1 7NA

Registered in England and Wales number 4366849
Registered Office:  Shell Centre, London, SE1
Headquarters: Carel van Bylandtlaan 30, 2596 HR
The Hague, The Netherlands

Tel: +44 (0) 20 7934  5544
Fax: +44 20 7021 3023
Mobile: +44 (0)7785 381 779
Email: [email protected]
Internet: http://www.shell.com <http://www.shell.com/>

REPLY TO RICHARD WISEMAN FROM KEN: 19 FEBRUARY 2009: 10.57

From: Ken Purchase <[email protected]>
Date: Thu, 19 Feb 2009 10:57:48 -0000
To: <[email protected]>, <[email protected]>, ‘John Donovan’ <[email protected]>
Cc: <[email protected]>, <[email protected]>, <[email protected]>, <[email protected]>, <[email protected]>
Subject: RE: The determination

Do we read this as the official position of Shell?  As the Chief Ethics and Compliance Officer responsible for the ethical conduct of Shell you are happy, within a couple of hours, to distance yourself from the consequences of third party advice which in our view has a significant impact on many of your past employees and is simply wrong. It appears you have taken the advice from the same source that we have a dispute with and yet you are not prepared to meet face to face to at least consider why we believe we have a significant position which as the shareholders representative for ethics at the Royal Dutch Shell Company together with your executive accountability, would I suggest place you under an obligation to learn both sides of the argument.
 
Regards
 
Ken

FURTHER EMAIL FROM KEN PURCHASE TO RICHARD WISEMAN, ROYAL DUTCH SHELL PLC

From: Ken Purchase [mailto:[email protected]]
Sent: 19 February 2009 23:11
To: Wiseman, Richard RM SI-RDS-CCO; [email protected]
Cc: [email protected]; Kirima, Wanjiru W SSA-FTP; Wood, Thomas SSA-DAHS; [email protected]; [email protected]
Subject: RE: The determination

Do you stand by your comments that the trustees and Shell are totally independent when the outside professional is formatting his advice and response to me after consulting Wanjiru.Kirima and others who I believe, but may be wrong, are funded by Shell?
 
Wanjiru Krima is the Principal Officer of the Shell and SAPREF Pension Funds in South Africa. She also holds the portfolio of Global Trustee Support within the Shell Global Pensions Group. The Group is responsible for managing all Shell Global Funds.

Surely, like you she is not independent of the code of conduct that is placed on executives and that contrary to your reply much of the agenda is being driven by those who have Shells interest at heart and are not independent of Shell as you suggest. The draft as circulated by Jonathon for comment is very interesting as the changes in the final reply appear to link directly to the response he received. This makes us feel that your statement that ” However, I believe that the trustees followed the correct procedures with the benefit of outside professional advice and the surplus has now been appropriately distributed “. is in itself subject to challenge as it seems that the outside professional advice has been significantly influenced by the Shell agenda and that in doing this you may not have complied with or checked your actions against the Human Rights and Code of Conduct obligations that the group expects of all senior employees. A list of thousands whom have not been contacted simply needs to be explained and compared to those who received the surplus.

See copy of email below which we were very surprised to receive alongside the response.
 
Kind regards
 
Ken Purchase

From: Jonathan Mort
[mailto:[email protected]]
Sent: 15 February 2009 08:01 AM
To: [email protected]
Cc: Geldenhuis Johan; [email protected]; Charles Abrahams; [email protected]; Justin Martin
Subject: RE: The determination

My draft reply – please let me have your comments.

“Dear Mr Purchase

It would be helpful if you could let me know on what basis Shell as the employer or as the ultimate shareholder of the employer was a party to the determination of the tribunal. As the legal adviser to the fund I am naturally interested in the point because I have not been aware that Shell was a party to the determination in the sense that it was able to prescribe what that determination should be.

I must point out again that I have never advised Shell, that I have only advised the fund (which is a separate legal entity from Shell), and that the fund is obliged to comply with the law. If it did comply with this legal obligation its trustees would be exposed to a claim for damages, criminal sanction and removal by the Regulator.

Regards”

(WISEMAN SENT A ONE-WORD REPLY: “Yes” SEE HIS EMAIL BELOW DATED 24 FEBRUARY 2009)

EMAIL FROM KEN PURCHASE TO WANIJIRU KIRIMA, 21 FEBRUARY 2009: 5.56 PM

From: Ken Purchase [mailto:[email protected]]
Sent: Saturday, February 21, 2009 5:56 PM
To: Kirima, Wanjiru W SSA-FTP
Subject: Shell SA Pension Fund

Dear Wanjiru,
 
You know that we are in dispute with the pension fund and Shell over the way the determination has been interpreted and how the subsequent surplus distribution has been made. My advisers have asked that you let me have the constitution of the fund. You may know it by another name but we are particularly keen to understand the formal roles and responsibilities of the trustees and their legal obligations.  Please be so kind as to let us have this. May I ask you to confirm that you are still not prepared to let us have a list of all past member’s post 1980 together with a list of those who actually registered the applicable details prior to the cut off being 29th Jan 2008? Please also explain, why you as a trustee and thus my representative on the fund are denying me a calculation of what my benefit would have been on a salary of R25, 000, which I can prove as being the minimal amount that I would have been earning at the time I left Shell SA.
 
On another issue could you also confirm that no exception, other than S****** has been made for any individual for whom you did not have all the information as at 29th Jan 2008? In other words no rewards were made as a result of the sub committee set up to review the position of those thirty or so for whom you did not have all the prescribed information or whom had registered late.
 
We note as well that Mr Mort has stated that there is no legal responsibility for formal correspondence between the fund and employer. He is for example unable to produce evidence that the fund corresponded with the Shell group over both my position and that of S****** – see reply to J Martin) We would be very interested to understand therefore how communication between the two takes place especially against the background of Shells declared position on business ethics and Human Rights. It appears to us that a very selective distribution of the surplus funds has taken place and this proves that the assumptions that newspaper adverts would be effective and there was no need for a contingency fund are wrong and thus there is a case for damages for which the trustees may be liable. We believe that had formal communication taken place between the fund and Shell pointing out that the ratio of claimants to non claimants was as poor as it appears to be, then Shell through its influence would have asked questions as it is obliged to do in accordance with its published code of ethics (signed in some cases by senior executives as part of their employment contract) and human rights. It simply cannot, with hand on heart say one thing to the international community and turn a blind eye to what we speculate has happened too many of its past employees, all based on an informal communications.
 
Look forward to hearing from you.
 
Kind regards,
 
Ken Purchase

REPLY FROM WANIJIRU KIRIMA. 22 FEBRUARY 2009

From: [email protected] [mailto:[email protected]]
Sent: 22 February 2009 09:07
To: [email protected]; [email protected]; [email protected]
Subject: RE: Shell SA Pension Fund

Thank you for your email Mr Purchase.

I have passed this on to the Fund legal advisor, Jonathan Mort to provide you with a response.

regards

Wanjiur
 
REPLY FROM RICHARD WISEMAN TO KEN PURCHASE EMAIL OF 19 FEBRUARY 2009

From: [email protected] [mailto:[email protected]]
Sent: 24 February 2009 09:14
To: [email protected]; [email protected]
Cc: [email protected]; [email protected]; [email protected]; [email protected]; [email protected]
Subject: RE: The determination
Yes.

Regards

Richard Wiseman

Chief Ethics and Compliance Officer
Royal Dutch Shell plc
Shell Centre, London SE1 7NA

Registered in England and Wales number 4366849
Registered Office:  Shell Centre, London, SE1
Headquarters: Carel van Bylandtlaan 30, 2596 HR
The Hague, The Netherlands

Email: [email protected]
Internet: http://www.shell.com <http://www.shell.com/
  
EMAIL FROM KEN PURCHASE TO WANIJIRU KIRIMA, 10 MARCH 2009

From: Ken Purchase <[email protected]>
Date: Tue, 10 Mar 2009 17:18:27 -0000
To: <[email protected]>
Cc: ‘John Donovan’ <[email protected]>, <[email protected]>
Subject: Dispute

Dear Wanjiru
 
Any chance of pushing the reply along a little.
 
Could you also confirm that you are employed by Shell and not the fund?
 
regards
 
ken