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October 30, 2001 CBertschi@KilpatrickStockton.com

VIA TELECOPY

Chris Stoufflet
Stoufflet Consultants
2000 Powers Ferry Rd.
Ste· 405
Marietta, Ga. 30067

Re: Compliance

Dear Chris:

Like you, I am deeply disturbed by the actions that Paul Southern has taken in
conducting his investigation into eScripts, particularly insofar as he has interfered
with the relationships between eScripts and its pharmacies. If Mr. Southern were a
private citizen, there is no question that eScripts could assert claims for tortious
interference with business relationships and/or tortious interference with
contractual relationships against him in a civil lawsuit. However, because he is a
federal agent, ostensibly acting within the scope of his authority, he is likely immune
from any lawsuit.

Attached hereto is a short memo prepared by one of my associates which

addresses the issue of whether a federal agent is immune from civil liability for
actions, even tortious actions, taken within the scope of his professional duties.
Particularly instructive on this issue is the case of Granger v. Marek, 583 F.2d 781
(6 th Cir. 1978).

In the Granger case, the plaintiff was a CPA who filed a lawsuit against an
Internal Revenue Service agent alleging that the agent had engaged in "harassing
conduct amounting to tortious interference with [the CPA's] business." Specifically,
the IRS agent went to the CPA's clients and told them "(1) that they would be
investigated and have their tax returns audited solely as a result of doing business
with [the CPA], (2) that [the CPA's] competitors would charge less and should be
employed and (3) that [the CPA] was being investigated for possible criminal
activity. " The IRS agent also threatened to put the CPA out of business. The trial
ATLUBOl I249532, ]

AHANTA AU G US TA BRU SS ELS CHARLOTTE LONDON M IAMI RALE IG H RES TON STOCK H O LM WAS HIN GTON W I NSTON - SALE M
Chris Stoufflet
October 30, 2001
Page 2

court dismissed the lawsuit finding that the actions of the IRS agent were privileged
because they were committed in furtherance of an investigation of the CPA. The
United States Court of Appeals for the 6th Circuit affirmed the decision of the trial
court.

All in all, the Granger opinion is very disturbing, particularly because it relies
on long-standing precedent established by the U.S. Supreme Court, which is also
discussed in the attached memo. As noted in the memo, there are some exceptions
to the rule of immunity for federal agents. For example, if Paul Southern were to
threaten or commit physical violence against a third-party in an effort to prevent
them from doing business with eScripts, he would then be subject to a civil lawsuit.
However, the standard is very high, and we need to be able to allege that he has
committed truly egregious behavior.

Based on the foregoing precedent and the facts as I know them, I do not
recommend that we file a lawsuit against Paul Southern at this time. However, in
talking with Buddy about this, I believe there are other means of addressing this
situation that will be more effective.

When you have a moment, please call me so that we can discuss this matter.
With best regards, I remain

erely yours,

CEB/ ew
Attachment

ATLLlBO l 124953 2,1