Sex, lies and HPNovember 8, 2010: 11:24 AM ET
There's more to the story of Jodie Fisher, Mark Hurd, and now Gloria Allred's role in the HP case, than has been reported. But it would probably take a legal action on the order of a shareholder lawsuit to find out what we don't already know
In the light of the Wall Street Journal's fine article posted Friday evening, a day after my article on the ouster of Mark Hurd from Hewlett-Packard (HPQ) last summer, I'd argue that most of what we are going to know about this weird case is now known. Not everything. But most.
Everyone has been waiting for a smoking gun in this story, and it hasn't appeared. The Journal reported that Jodie Fisher alleged in the threatening letter her lawyer, Gloria Allred, wrote to Hurd that Hurd had told Fisher about the upcoming HP acquisition of EDS. That's the "business secret" that I alluded to in my article. If true, the allegation, while shocking, doesn't rise to smoking-gun status. Yes, if true, it would have shown horrible judgment by Hurd. At the same time, it's not insider trading if no one trades. Furthermore, if this were the real reason HP's board turned against Hurd, it would have said so by now. No doubt the allegation contributed to the board's unease. But were this a firing offense that had been proved, we would have known it by now. This would have been an easy one for the board to have disclosed and ended all the carping about it having acted cowardly in showing the door to its star CEO.
Additional information actually has clouded the waters rather than clearing things up. According to a letter Fisher wrote to Hurd on Aug. 5, the day she reached a settlement with him, Allred's initial letter contained "many inaccuracies." (Fortune obtained that letter, a followup letter Allred wrote on Aug. 26 urging that her original letter be kept confidential and an Aug. 26 declaration from Fisher also urging confidentiality. The letters are posted below.) We now know that Fisher disavowed some of what Allred said when initially threatening Hurd. We don't know what though. Was the EDS allegation inaccurate, for example? We don't know.
We do know Fisher's letter to Hurd came after they settled, presumably as a term of the settlement. This gives us every reason to take this new statement about inaccuracies with a grain of salt -- just as we need to take the original charges themselves, considering the source.
Then there is the matter of whether Mark Hurd ever 'had sex with that woman,' to borrow language from another delicate situation. This bit of prurient questioning is germane for several reasons. Both sides saw fit to comment on it publicly, each disavowing a sexual relationship occurred. Fisher's comment, again, came after her settlement. Fisher also has established herself as someone who allowed her lawyer to send a letter to the potential target of a sexual-harrassment suit that contained "many inaccuracies." Hurd's assertion, like Fisher's came through a proxy. He hasn't spoken on the record on the subject once. We also know at least some members of the board doubted he was being truthful on this subject, and it's their doubt on his truthfulness -- not whatever happened between Hurd and Fisher -- that is the heart of the matter.
A curious addendum to this bizarre episode has to do with Gloria Allred and her now famous letter.
Allred's and Fisher's correspondence in August make reference to Allred's initial letter of June 24, 2010. That's odd because it has been reported since the story first broke that Hurd read the Allred letter on June 29. I've been told that Covington & Burling, HP's investigators, examined what took Allred's letter so long to reach Hurd and that they concluded that he didn't sit on the letter.
Allred has told me nothing about anything for this story. She wasn't even willing to say how she sent the letter. (A side note to a side note: Why would the shareholder-suit firm Robbins Umeda want to disclose a letter that presumably would help the board's case that it made the right decision in ousting Hurd, thereby hurting the case for a shareholder suit against the board? Could it be to boost the reputation of a law firm that published Gloria Allred's handiwork?)
That got me thinking about Allred's reticence. In fact, she has multiple reasons for keeping quiet. As I've noted before, it is in Allred's interest to honor terms of a settlement to the last detail, including not dishing to the press after her client has received a payment. This way she can tell future opponents that a deal is a deal. Moreover, Allred doesn't want her techniques dissected for all to see. We don't know if Allred knowingly allowed untruths to be included in a "demand letter" to a target of a harassment suit. We do know her own client subsequently disavowed the "many inaccuracies" in Allred's letter, calling into question the burden of truthfulness Allred places on herself when she fires off these missives. Consider what Allred's letters can do to careers, reputations and relationships. It's a sobering thought.
Having said that, Allred may be entering a new phase of her career. Until now, her typical targets have been individuals: sports stars, actors, even Republican politicians -- Allred is a Democrat -- in the heat of a political campaign. Now Allred is tangling with a publicly traded Fortune 500 company and the complex laws governing the rights of its shareholders. If HP shareholder litigation were to go forward -- as some of the players seem to think is possible -- it's altogether possible that Allred's claims in her June 24 bombshell could get investigated one by one. Then we'd learn which allegations constituted the "many inaccuracies" and which were true.
In some quarters there was a palpable sigh of relief late last week that this odd period is coming to a close. It's a nice thought. But it just doesn't seem likely.