FCPA Compliance and Ethics Blog

March 16, 2012

Navigating Social Media And Legal Ethics[1]

Ed. Note-today we have a post from our colleague, Michelle Sherman, a frequent commentator on social media issues.

If you cannot do it offline, you probably cannot do it online.  This is a good way to think about social media and legal ethics. We know that attorneys are not allowed to communicate with a represented party on the other side of a legal action, so it should not be surprising that trying to “friend” a party on Facebook in order to see all of their Facebook activity is not allowed by the ABA or the assorted state bar rules of professional responsibility. Cal. Rules of Professional Conduct, Rule 2-100. It is also unethical to direct someone to “friend” the other party. Some state bars have also extended this rule to unrepresented parties and witnesses. Namely, it is fine to look at their public social media presence, but attorneys cannot “friend” them or arrange for it to be done on their behalf.

A. Maintain The Confidentiality Of Your Client Communications.

Another bright line is that attorneys cannot disclose confidential information about their clients on social media. Cal. Rules of Professional Conduct, Rule 3-100. In fact, many companies prefer for their outside counsel not to publicize their courtroom wins for their clients out of concern that it will invite similar actions to be filed against the company. Companies have media relations departments to tell their story for them so attorneys should coordinate any press releases of their own with their clients. This is something to keep in mind when an attorney writes her LinkedIn profile, or posts about her work day on Facebook or Twitter.

Preserving the confidentiality of attorney-client communications, and not waiving the attorney work product protection means attorneys need to think carefully about how they post status updates on LinkedIn, and the “conversations” they are having on LinkedIn discussion groups, or on listservs. Even if a listserv is treated as a private forum for qualifying members to confer about legal issues, it does not mean that a court will treat those discussions as privileged or confidential. A plaintiff’s attorney in an employment discrimination case learned this the hard way when he was trying to quash a document subpoena seeking his writings on a listserv. In Muniz v. United Parcel Service, Inc., CV 09-1987 (N.D. Cal.), the plaintiff’s attorney allegedly made posts on the listserv in which he accused the judge of being “defense-biased”, and described the defense counsel as aggressively defending the case to the point of absurdity. Professor Georgene M. Vairo, a professor at Loyola Law School, was reported in a January 18, 2011 Los Angeles Daily Journal article, as saying that the fact that the attorney’s writings appeared on a confidential listserv does not mean work product privilege applies to them. “Given the way social media is, even when you try to keep things private, can you really have an expectation of privacy?” Vairo said.

B. Make Social Media Part Of Your Litigation Strategy.

Yet, attorneys may fall short of their duty to zealously represent their clients if they ignore social media entirely. It is a rich resource for discovery about the other side, witnesses and even prospective jurors. In Johnson v. McCullough, the Missouri Supreme Court discussed how trial attorneys should take advantage of technological advances and research prospective jurors. Thereby, hopefully avoiding the need for a motion for new trial because it is discovered much later that a juror was deliberately concealing his bias on voir dire in order to remain on the jury.

However, this research and monitoring of jurors during the case comes with some bright line rules as well.

1. Do Not Have “Contact” With Jurors Through Social Media.

Again, offline rules provide a bright line for social media contact with jurors. A study done by Reuters Legal using data from Westlaw online found that tweets from people describing themselves as prospective or sitting jurors appeared at the rate of one nearly every three minutes. Increasingly, parties are filing motions for new trials or to overturn a verdict based on juror misconduct on the Internet. In a criminal case in Camarillo, California, a juror posted a cell phone picture of the murder weapon on the Internet, and invited people on his blog to ask him questions about the case.

Thus, attorneys and courts have good reason to be concerned about what jurors are saying on social media. Courts are tackling the problem by instructing the jury not to discuss the case anywhere including on social media. However, just as jurors still talk about pending trials with their friends and family despite the court’s admonitions, jurors are sometimes ignoring (or forgetting) the court’s admonitions and posting on social media. Consequently, attorneys should have someone monitoring the jury during voir dire, trial and deliberations.

This monitoring needs to be done so it does not result in “contact” with the jurors. Cal. Rules of Professional Conduct, Rule 5-320. Friending jurors, or following them on Twitter, is taking it too far. On the other hand, attorneys can monitor the public posts of jurors on Facebook and Twitter without jurors realizing it.

2. Bring Jury Misconduct To The Court’s Attention.

Now assume the plaintiff’s attorney learns from social media that a juror intentionally failed to disclose she was prejudiced against the defendant manufacturer in the case, because the juror had been a victim of a similar industrial accident. The juror is someone that the attorney thought was sympathetic to his client’s case and the last thing he wants to do is lose the juror. This is the ethical question that is likely to come up for attorneys, and the answer is the same as other offline misconduct of jurors. As an officer of the court, the attorney is required to bring it to the attention of the court.

C. Avoid The Unintentional Creation Of An Attorney-Client Relationship.

Attorneys are using blogs and social media to try and develop business. A February 2012 survey by ALM Legal Intelligence, “Social Media ROI for Law Firms” found that of the law firms that are using social media and blogs – 85 percent and 70 percent respectively of the responding law firms – almost 50 percent of those firms are receiving leads from their efforts. In doing so, law firms are understandably concerned about not creating an inadvertent attorney-client relationship when someone comments on a blog or tries to engage one of their attorneys about the specifics of their particular legal issue.

These are legitimate legal concerns. In addressing an analogous situation, the State Bar of California issued a formal opinion for attorneys who have call in radio shows on legal issues. The State Bar recommended that the attorney radio host: (1) remind callers that they are speaking on a public forum so nothing they are saying is confidential; and (2) encourage callers to seek advice from an attorney about their specific problem. Formal Opinion No. 2003-164. It is also recommended that the law firm pre-screen comments before they are posted on the blog site to edit posts that may potentially create a problem. Also, do not answer fact specific questions – rephrase the question to a broader legal issue that may be of interest to the broader audience to whom you are writing or speaking. And, finally, keep your responses in the public forum so there is no expectation of a confidential attorney-client relationship.

[1] 4851-4734-3630, v.  1

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Michelle Sherman practices at Slater Hersey & Lieberman LLP. She can be reached at Msherman@slaterhersey.com. Follow Michelle on Twitter: @MShermanEsq

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This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. 

March 15, 2012

Ethics Matters

The word ‘ethics’ is in the title of this blog. While I rarely write solely on the subject of ethics two recent events caused me to do so today. The first was an article last week by Matt Ellis, writing in his FCPAméricas Blog, who posted an article entitled, “Bad Press is the Worst Sanction”.  The second was an article yesterday, in the Op-Ed page of the New York Times by Greg Smith entitled, “Why I am Leaving Goldman Sachs”.

Ellis began his posting by stating, “In Latin America, a company’s reputation matters.” He based this statement on a recent survey, conducted by Germany’s Humboldt-Viadrina School of Governance, which sought to assess how incentives and sanctions affect a company’s willingness to take seriously ethical behavior. Ellis reported that the survey found that in Latin America, more people than in any other region rated reputational considerations as the most important factor to motivate businesses to counter corruption, which was a higher percentage than any other geographic region reviewed.

Unfortunately this does not appear to be true at Goldman Sachs, at least according to Smith, who as of yesterday, is listed as former “Goldman Sachs Executive Director and head of the firm’s equity derivatives business in Europe, the Middle East and Africa.” In absolutely damning detail, Smith stated that the “decline in the firm’s moral fiber represents the single most serious threat to its long term survival.” What is this “decline in moral fiber” that Smith anguished over? It is that Goldman Sachs, in his opinion, now puts its own monetary interests ahead of its clients.

Smith listed the “three quick ways to become a leader” at Goldman Sachs. They are “a) Execute on the firm’s “axes,” which is Goldman-speak for persuading your clients to invest in the stocks or other products that we are trying to get rid of because they are not seen as having a lot of potential profit. b) “Hunt Elephants.” In English: get your clients — some of whom are sophisticated, and some of whom aren’t — to trade whatever will bring the biggest profit to Goldman. Call me old-fashioned, but I don’t like selling my clients a product that is wrong for them. c) Find yourself sitting in a seat where your job is to trade any illiquid, opaque product with a three-letter acronym.

While averring that he did not “know of any illegal behavior” he bemoaned “It makes me ill how callously people talk about ripping their clients off.” Smith intoned that senior management did not seem to understand what he termed a “basic truth: If clients don’t trust you they will eventually stop doing business with you.”

So how do ethics matter in the United States of America? For Goldman Sachs it may well have something to do with its stock value which went down 4.17 (approximately 3.35%) points yesterday. With approximately 50 million outstanding shares, that is (according to my trial lawyer math) somewhere in the range of $1.5 to $2 billion in shareholder value that went poof yesterday. I guess ethics does matter.

How will Goldman Sachs respond to this article? Its response may well tell the story of its commitment to ethics. Will it attack Greg Smith as a (now) former disgruntled employee out on some type of vendetta? Will it file suit against Smith for libel? Will it issue a strident press release that it is absolutely committed to ethical values? Or will it be as Smith states, “I hope this can be a wake-up call to the board of directors.”

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2012

March 14, 2012

The Story of Ajax: Fairness in Rewarding Employee Behaviors

How does your company deal with the question of fairness in its compliance program? I thought about that question while reading an article in the New York Times (NYT), entitled “That Eternal Question of Fairness”, by Nancy Koehn. In her article, Koehn discussed the book “The Ajax Dilemma: Justice, Fairness and Rewards” written by Paul Woodruff which considers how a company might distribute rewards to its employees “without damaging the larger community.” I have written about the Fair Process Doctrine which generally is recognized as allowing employees to accept a negative result if they think that the process through which the result was determined was fair and not arbitrary and capricious. In the Department of Justice’s (DOJ) 13 point minimum best practices compliance program, Item 10 states:

10.  Discipline. A Company should have appropriate disciplinary procedures to address, among other things, violations of the anti-corruption laws and the Company’s anti-corruption compliance code, policies, and procedures by the Company’s directors, officers, and employees. A Company should implement procedures to ensure that where misconduct is discovered, reasonable steps are taken to remedy the harm resulting from such misconduct, and to ensure that appropriate steps are taken to prevent further similar misconduct, including assessing the internal controls, ethics, and compliance program and making modifications necessary to ensure the program is effective.

However, I believe that the DOJ best practices are more active than the ‘stick’ of employee discipline to make a compliance program effective and I believe that it also requires a ‘carrot’. This requirement is codified in the US Sentencing Guidelines with the following language, “The organization’s compliance and ethics program shall be promoted and enforced consistently throughout the organization through (A) appropriate incentives to perform in accordance with the compliance and ethics program; and (B) appropriate disciplinary measures for engaging in criminal conduct and for failing to take reasonable steps to prevent or detect criminal conduct.”

I have advocated that the Compliance Department work with Human Resources (HR) to ensure that rewards are handed out to those employees who integrate such ethical and compliant behavior into their individual work practices going forward.  One of the very important functions of HR is assisting management in setting the criteria for employee bonuses and in the evaluation of employees for those bonuses. This is an equally important role in conveying the company message of adherence to a Foreign Corrupt Practices Act (FCPA) compliance and ethics policy.

Ajax relates to all of these fairness issues through his story from the Iliad. He was one of two Greek warriors who were in line to receive the armor from the mighty Achilles, after he was slain by the Trojan Prince Hector. Achilles’ armor was to be rewarded by the Greek King Agamemnon to “the Army’s most valuable soldier.” Ajax and Odysseus competed for the prize via a speech made before the King. The book’s author uses this speech competition and Agamemnon’s subsequent award of Achilles armor to Odysseus to explore the issues of rewards, which he says “mark the difference between winners and losers.” Paraphrasing several questions that Koehn asked about communities: Which does your company value more: Cleverness or hard work?; Strength or intelligence?; Loyalty or inventiveness?

These questions can play out in a company in a variety of ways. Does your company identify early on in an employee’s career the propensity for compliance and ethics by focusing on leadership behaviors in addition to simply business excellence? If a company has an employee who meets, or exceeds, all his sales targets, but does so in a manner which is opposite to the company’s stated business ethics values, other employees will watch and see how that employee is treated. Is that employee rewarded with a large bonus? Is that employee promoted or are the employee’s violations of the company’s compliance and ethics policies swept under the carpet? If the employee is rewarded, both monetarily and through promotions, or in any way not sanctioned for unethical or non-compliant behavior, it will be noticed and other employees will act accordingly. I think one of requirements under the Sentencing Guidelines is to ensure consistent application of company values throughout the organization, including those identified as ‘rising stars’.

In her book review, Koehn states that she believes the Ajax example still has relevance today. Most employees are like Ajax, loyally doing the important day-to-day work. If doing business in a manner antithetical to a company’s stated culture of ethics and compliance is seen to be rewarded then those loyal, hard-working employees may well stop working in a compliant manner. The end for Ajax was not good, as after the King’s award of Achilles armor to Odysseus, his anger exploded and he lost his life, his family and his reputation down to this day. From this lesson we draw the conclusion that rewards must be distributed in a way to ensure a company’s health. This, the author believes, is why the “story of Ajax is sure to resonate with many” even today.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2012

March 13, 2012

Barbara Tuchman and Compliance Programs

One of my favorite historians is Barbara Tuchman. One of the first large volumes of history I read growing up was “The Guns of August”, her Pulitzer Prize-winning book about the outbreak of World War I. The Library of America has recently released two of Tuchman’s works, the aforementioned “The Guns of August” and “The Proud Tower” which details the pre-World War I era, together with the personalities and events which led to the ‘war to end all wars.”

This love of history coupled with my interest in ethics and compliance was piqued by an article in the Saturday edition of the Wall Street Journal (WSJ), entitled “A Heroine of Popular History”, by Bruce Cole. The article discussed the work of Tuchman as a popular historian and contrasted the books she wrote with those written by historians with a more academic focus. He quoted the historian Catherine Drinker Bowen, who had the following quotation over her desk “Will the reader turn the page?” I thought this question had particular relevance in the arena of compliance programs; as compliance professionals continually try to get the message of compliance throughout a corporation. So here is some of the wisdom of writing history that Tuchman advocated and how it might help the compliance professional convey the essence of doing business in compliance across a corporation.

Get out in the Field

Tuchman stressed the importance of using primary sources and visiting the sites where ‘history was made”. She said that it was necessary to keep a historian from “soaring off the ground”. From this advice, I believe that the compliance professional needs to get out of the home office, wherever that is, and visit international locations. This is the best way to find out what is going on in the field. This ties to the second point of using primary sources. In the compliance arena, your primary sources are the employees in your own organization. Cole quoted Tuchman that you “arrive at a theory by way of the evidence, not the other way around”. This advice sounds like the guidance from the Department of Justice (DOJ) that your risk assessment should inform your compliance program, not the reverse.

Study Your Company Culture

In the field of history, Tuchman did not view nations or individuals as “helplessly swept along by forces of history beyond their control.” She viewed history as driven by human “foibles, flaws and occasional heroism, rather than by abstract systems.” This means that a compliance professional needs to understand how the cultures in your organization work and then create a compliance program to fit those needs. It does not mean a company can continue to do business with corrupt intent but if there is a culture of gift giving in a geographic area, you should determine a way to continue such courtesies, within the context of your overall compliance regime.

Write Your Policies for Everyone

This is probably Tuchman’s greatest lesson, for both the historian and for the compliance practitioner. Tuchman never received a post-graduate degree in history so she never learned to write like a professional historian, beginning with a “footnote-laden dissertation-written strictly to be read by other scholars.” Tuchman wrote for a wider reading popular audience. The same can be said for written compliance policies. In academia, a Professor’s progress is measured by the judgment of his or her scholarship by peers. Unfortunately, those peers are steeped in the same academic training and therefore judge scholarship on the same criteria as that used to judge dissertations. Tuchman believed that by not pursuing a PhD in history, she was a better writer. She was quoted in the Cole article as having said, “It’s what saved me, I think. If I had taken a doctoral degree it would have stifled my writing capacity.”

Many times compliance policies are written by lawyers and can only be read and interpreted by other lawyers. It is really not our fault as we were all trained in law school to “think and write like a lawyer” but out there in the real world, such language does not always work for the intended audience. This point is even memorialized in the UK Ministry of Justice’s Six Principles for Adequate Procedures which reminds compliance practitioners that anti-bribery compliance policies should be written in “plain English.” While many lawyers, particularly outside counsel who have never practiced as in-house counsel, write like lawyers for other lawyers to read, such writing style does not work for most business people. Therefore in-house counsel should work with a business unit representative, or several, to make the language in written compliance programs accessible to people in the field who are trying to read and understand it.

Just as the Library of America celebrates Tuchman in its recent release of two her greatest works, we in the compliance field should celebrate her for the guidance that she provides in our discipline.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2012

 

March 12, 2012

Wynn Casinos and Charitable Donations under the FCPA

The recent events surrounding Wynn Casinos and its now former director, Kazuo Okada, have almost been breath-taking in their family feud nature. Indeed in an article in the March 2, 2012 edition of the Wall Street Journal (WSJ), entitled “The Family Feud That Could Cost Combatants Billions”, reporter John Bussey called it the “slug-it-out-divorce” by Steve Wynn from his former partner, Okada. Wynn provided the opening salvo in this battle of titans by summarily booting Okada off the Wynn Casino Board of Directors and “forcibly cashed out” his stake in the company, all for alleged violations of the Foreign Corrupt Practices Act (FCPA).

However, Okada appears to have fired back a FCPA-based salvo of his own. In the same edition of the WSJ, another article reported on Wynn Casinos and another potential FCPA violation. It involved a gift of $135 Million by Wynn Casinos to a foundation which supports the University of Macau. The article on this donation was entitled “Macau School Ties Roil Wynn Resorts” and was co-authored by Kate O’Keefe and Alexandra Berzon. They reported that Okada had gone to a Nevada state court to request an order that Wynn Casinos “give him access to documents tied to the donations.” One of the reasons Okada detailed in his court request was to determine if the gift by Wynn Casinos to the University of Macau was “an appropriate use of corporate funds.”

I would also ask whether the gift was proper under the FCPA. There is not much definitive guidance for charitable donations under the FCPA. I have summarized the available information as follows.

I.                   Opinion Releases

There have been four Opinion Releases in the area of charitable donations under the FCPA. In each Opinion Release, the Department of Justice (DOJ) indicated that it would not initiate prosecutions based upon the fact scenarios presented to it.

A. 95-01

This request was from a US based energy company that planned to operate a plant in

South Asia, in an area where was no medical facility. The energy company planned to donate $10 million for equipment and other costs to a medical complex that was under construction nearby. The donation would be made through a US charitable organization and a South Asian LLC.

The energy company stated it would do three things with respect to this donation.

  1. Before releasing funds, the energy company said it would require certifications from the officers of all entities involved that none of the funds would be used in violation of the FCPA.
  2. It would ensure that none of the persons employed by the charity or the LLC were affiliated with the foreign government.
  3. The energy company would require audited financial reports detailing the disposition of the funds.

B.   97-02

This request was from a US based utility company that planned to operate a plant in

Asia, in an area where there was no primary-level school. The utility company planned to donate $100,000 for construction and other costs to a government entity that proposed to build an elementary school nearby. Before releasing funds, the utility company said it would require certain guarantees from the government entity regarding the project, including that the funds would be used exclusively for the school.

C.   06-01

This request was from a Delaware company doing business in Africa. The company desired to initiate a pilot project under which it would contribute $25,000 to the Ministry of Finance in the country to improve local enforcement of anti-counterfeiting laws. The contribution would fund incentive awards to local customs officials, which is needed because this African country is a major transit point for illicit trade and the local customs officials have no incentive to prevent the contraband.

The company said that along with the contribution, it would execute an agreement with the Ministry to encourage exchange of information and establish procedures and criteria for incentive awards. The company said that if the program is successful, the awards would continue to be funded as needed, and the company will seek the participation of its competitors in this program.

The company would implement at least five safeguards to ensure the funds would be used as intended, including:

  1. Payments to a valid government account, subject to internal audits.
  2. Payments only upon the confirmation that goods seized were in fact counterfeit.
  3. The Ministry would identify award candidates without input from the company and would provide evidence that funds were used properly.
  4. The company would monitor the program’s effectiveness.
  5. Records will be required to be kept and be available for inspection for a period of time.

D.   10-02

A US Company desired to move from a charitable entity model to a for profit model in the area of micro-financing. To do so it was required to make a large cash donation to a charity in the country in question. The company engaged in three rounds of due diligence in which it determined that the most favorable candidate had a government official on its Board of Directors but that under the laws of the country in question, the government official could not receive compensation to sit as a Board member. After initially listing the 3 levels of due diligence in which the company had engaged prior to finalizing its choice of local entity to receive the donation in question; the DOJ noted that the donation ‘requested’ of the US Company would be subject to the following controls:

  1. Payments of the donations would be staggered over a period of eight quarters rather than in one lump sum.
  2. Ongoing monitoring and auditing of the funds use for a period of five years.
  3. The donations would be specifically utilized for the building of infrastructure.
  4. The funds could not be transferred to either the charities parent or any other affiliated entity.
  5. The funds would not be paid to the parent of the organization receiving the grant and there was an absolute prohibition on compensating Board Members.
  6. The proposed grant agreement under which the funds would be donated had significant anti-corruption provisions which included a requirement that the local organization receiving the funds adopt an anti-corruption policy and that company making the donation shall receive full access to the local organization’s books and records.
  7. Right to terminate the agreement and recall the funds if evidence was found that “reasonably suggests” a breach of compliance provisions.

II.                Sole Enforcement Action

There appears to be only one FCPA enforcement action based entirely upon charitable giving. It is the case of Schering-Plough Poland which paid a $500,000 civil penalty assessed by the Securities and Exchange Commission (SEC) in 2008. (For a copy of the SEC Compliant, click here.) As reported in the FCPA Blog, the Company’s Polish subsidiary made improper payments to a charitable organization named the Chudow Castle Foundation, which was headed by an individual who was the Director of the Silesian Health Fund during the time period in question. Schering-Plough is a pharmaceutical company and the Director of the Health Fund provided money for the purchase of products manufactured by Schering-Plough as well as influencing medical institutions, such as hospitals, in their purchase of pharmaceutical products through the allocation of health fund resources. In addition to the above, the SEC found that Schering-Plough did not accurately record these charitable donations on the company’s books and records.

III.              Mendelsohn Guidance

The FCPA Blog reported, in a posting entitled “When is Charity a Bribe?”, that when asked about the guidelines regarding requests for charitable giving and the FCPA, then Deputy Chief of the Criminal Division’s Fraud Section at the DOJ Mark Mendelsohn, said that any such request must be evaluated on its own merits. He advocated a “common sense” approach in identifying and clearing Red Flags. Some of the areas of inquiry would include answers to the following questions.

  1. Is there a nexus between the charity and any government entity from which the company is seeking a decision?
  2. If the governmental decision-maker holds a position at the charity, that’s a red flag.
  3. Is the donation consistent with the company’s overall pattern of charitable contributions?
  4. If one donation or a series of them is more than the company has made to any other charity in the past five years, that’s a red flag too.
  5. Who made the request for the donation and how was that request made?

So what of Wynn Casinos and its $135 Million donation? Did Wynn perform the types of analysis suggested by the Opinion Releases? The WSJ article reports that the Chairman of Wynn’s Committee “told analysts last month that the donation was vetted in advance by outside experts,” relative to the FCPA. The donation is apparently not for construction or other infrastructure projects but “the gift will support academic activities.” The WSJ article also reports that the Board of the University foundation includes “current and former government officials” and “a member of the committee to elect Macau’s chief executive”, who is the chancellor of the university. Lastly the article reports that the Securities and Exchange Commission (SEC) has “begun an inquiry into the donation.”

We may reasonably conclude from both of these WSJ articles that Wynn Casinos will be in for a long, long road of FCPA investigations.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2012

March 9, 2012

The CCO and Crisis Management

“What, Me Worry?” is one of my favorite all-time slogans. Anyone who grew up on the 60s or 70s recognizes this comes from Alfred E. Neuman, the enigmatic face of Mad Magazine. While this phrase certainly had its uses for us teenagers back then, it is not a by-word for how the compliance practitioner needs to prepare for a compliance crisis, usually in the form of the discovery of a potential Foreign Corrupt Practices Act (FCPA) violation. Fortunately, Ileana Blanco has provided somewhat better guidance that than of my former guiding spirit. In the February 27, 2012 edition of the Texas Lawyer, in an article entitled “In-House Counsel’s Guide to Crisis Management”, Ms. Blanco detailed what she believes are the best practices for an in-house counsel in responding to a legal catastrophe.

Blanco correctly notes that disclosure of a legal catastrophe may come to a company in a variety of ways. It could be an anonymous hotline report, a disclosed whistleblower and a request from a government regulator or federal agency or through an internal control detection mechanism. Whatever the source of the information, Blanco believes that there are three key parts to any plan for crisis management.

Education

One of the roles of a Chief Compliance Officer (CCO) is to educate management and the Board of Directors that a compliance crisis can occur, no matter what the state of its best practices compliance program. The key is how will the company respond? The CCO needs to coach management that a crisis will entail the following:

  1. Business concern;
  2. Impacting financial performance and shareholders;
  3. Threats to future financial performance;
  4. Regulatory issues;
  5. Response to government investigations and internal investigations; and
  6. Shareholder, or perhaps other third party, litigation threats.

By educating senior management and the Board on these issues prior to a crisis, these decision makers should be in a better position to respond and dedicate the appropriate level of resources to any such event.

Preparation

The CCO should work with management to develop an agreed upon “philosophy about how the company will react in a crisis situation” involving a FCPA violation. This philosophy needs Board vetting and approval. Blanco believes that there should be three paramount goals. First, the philosophy decided upon should remove the “sense of fear or uncertainty” regarding the crisis issue. Second, the agreed upon plan should, to the extent possible, decrease the “room for error” when making decisions in a crisis environment and the third is prior planning which should assist in “minimizing the cost of response and the resolution” thereof.

Achieving these goals begins with the preparation of a crisis management organization chart, which should include both designations for internal and external assets and their respective responsibilities. The CCO should develop a crisis management protocol and identify an expert response team. Blanco counsels that “the development of a crisis management team or crisis response strategy does not end with the preparation of a crisis response handbook outlining these steps.” There should be “dry runs or rehearsals” and the strategy developed should be a “dynamic and evolving process.”

Response

Blanco intones that “time is of the essence in responding to a crisis.” This truism is even more so with the now compressed time frames from the Dodd-Frank Whistleblower provision. Your company needs to be in a position to respond to any report of an alleged violation within 120 days. This means you need to be ready. In addition to the regulatory sanctions which could be leveled, your company may also be under a national or (if you are News Corp) an international microscope. This is also the time to “own up to mistakes and appear accountable” and not to engage in a “no-win blame game or finger pointing exercise.”

A designated company spokesperson should handle all media, including social media contacts. Your plan should decide such questions as “Do we make comments on the record? And “Who” makes these comments?” Witness the PR disaster of Alstom, when it was recently debarred by the World Bank and a company spokesperson initially said that it was old news. Later the company General Counsel released a statement saying, “Any comments that were previously made by Alstom are not valid.” Oops.

Blanco ends by noting that “crisis leadership is critical to assess the company’s situation and implement an effective strategy”. Moreover, in any crisis there is some opportunity to implement and demonstrate improvement. Such action by a company will obviously help in any enforcement action going forward, particularly with the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) in a FCPA enforcement action. At the end of the day, if your CCO has a preparation and solution plan, you may be able to limit the fallout if, and when, a compliance crisis occurs.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2012

March 8, 2012

Moving Off Dead Center

Ed. Note-today, we are pleased to have a posting by our colleague Mary Jones.

The scenario is simple – you work for a company with international operations.   You have read hundreds of articles touting the necessity of putting in a compliance program.  Your boss walks in and says, “How is that compliance program coming along?”  You silently think to yourself, “I need a clone to get that project started – much less finished.”  However, you smile and answer “I have it at the top of my to-do list.”

You really do need to have this task at the top of your “to-do list”. Having a compliance program isn’t optional.  It isn’t a “good to have” program.  It is a critical and necessary component to the ongoing financial success of the company you work for. When you start with this premise in mind, the next question is – “do I have the time or expertise to implement a compliance program?”  Let’s be honest, most corporate professionals in today’s world already have too much on their plate as it is.  There isn’t the time and quite honestly, you probably don’t have the required experience or expertise, to properly implement a compliance program.

So what do you do?  First of all, there are people who can assist you in the process.  Is it expensive?  That is a relative question isn’t it? For instance, if your company suspects that a violation of the Foreign Corrupt Practices Act may have occurred and you do not have a viable comprehensive compliance program to show the Department of Justice – your company gets no credit and you need to start counting out the millions of dollars that your company will pay in fines, penalties, and/or in outside attorney’s fees.

Consider this – what does your company budget for international air travel – simply to transport a person from point A to point B?  If you are like most international companies, I suspect the answer is at least a million dollars.  How do you stand in front of the Department of Justice and explain that you are willing to spend a million dollars on airfare but not $50- $100,000 to implement a compliance program?  Obviously, the cost of implementing a compliance program will vary from company to company.  However, it isn’t expensive enough to find yourself, your boss or your CEO in front of the Department of Justice explaining why they would spend money on business class air travel,  paper clips, promotional shirts or hats, but not on a compliance program.  Trust me; you don’t want to be in that position.

So what do you need to do to move off dead center? Where do you find someone who you can trust, who has time and expertise to work with you and your company to implement a compliance program?  Make no mistake about it, this is a serious question.  Why?  Because there are no cookie cutter compliance programs that will likely be acceptable to the Department of Justice.  You know more about your company than any outside consultant will ever know.  You must partner with them to get the project done.  So make sure you like the person you chose!  This person isn’t going to pop in and out in a week.  This person will talk to you, to your board, to executive management, and hopefully ultimately to the company workforce. The implementation of a compliance program is a process that occurs over several months.  As a result, you want to work with someone who has people skills, communication skills, and expertise in compliance to partner with you in implementing the compliance program.

Where do you find this person?  If you are reading this blog- then you know that there are a variety of sources for this type information – Tom Fox, Michael Volkov, Professor Michael  Koehler and me all either assist companies with compliance programs or know someone who does.  Call us or email us.  Those of us who do this for a living are passionate about what we do. I love getting to know my clients and their business and seeing the transformation from “how is the compliance program coming along” to the day  the Chief Executive Officer announces the  establishment of the company  compliance program  and the smile on your face when you take a deep breath and say “We did it”.

Don’t stay in on dead center – pick up the phone or click on your mouse and let us help you.  That’s our job.  That’s our passion.

Mary Shaddock Jones, Attorney at Law and former Assistant General Counsel and Director of Compliance at Global Industries, Ltd. can be reached via email at  msjones@msjllc.com or via phone at 337-515-8527 .

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. 

March 7, 2012

How FATF Recommendations on Anti-Money Laundering Inform Your Compliance Program

The Financial Action Task Force (FATF) is an inter-governmental body established in 1989 by the Ministers of its Member jurisdictions. Its mandate is to set standards and to promote effective implementation of legal, regulatory and operational measures for combating money laundering, terrorist financing and the financing of proliferation, and other related threats to the integrity of the international financial system. In collaboration with other international stakeholders, it also works to identify national-level vulnerabilities with the aim of protecting the international financial system from misuse. FATF recently released a new document, entitled “International Standards on Combating Money Laundering and the Financing of Terrorism & Proliferation”.

While most of the recommendations in the document were directed at financial institutions, I found several of them to converge over and into the area of anti-corruption. Further, several of the recommendations will be of high value to companies in evaluating or enhancing their own compliance programs. They include some of the following recommendations which I have adapted for anti-corruption and anti-bribery compliance programs.

Risk Assessments

Companies should identify, assess, and understand the money laundering and terrorist financing risks for the country in which they seek to do business, and should take action, including designating an authority or mechanism to coordinate actions to assess risks, and apply resources, aimed at ensuring the risks are mitigated effectively. Based on that assessment, companies should apply a risk-based approach to ensure that measures to prevent or mitigate compliance risks are commensurate with the risks identified. This approach should be an essential foundation to efficient allocation of resources across the anti-money laundering and countering the financing of terrorism (AML/CFT) regime and the implementation of risk based measures throughout the FATF recommendations. Where companies identify higher risks, they should ensure that their AML/CFT regime adequately addresses such risks and here lower risks are identified, they may decide to allow simplified measures for some of the FATF recommendations under certain conditions.

Customer Due Diligence

Companies should be prohibited from keeping anonymous accounts or accounts in obviously fictitious names. Companies should be required to undertake customer due diligence measures when:

(i) establishing business relations;

(ii) carrying out occasional transactions, above the applicable designated threshold (USD/EUR 15,000);

(iii) there is a suspicion of money laundering or terrorist financing; or

(iv) the company has doubts about the veracity or adequacy of previously obtained customer identification data.

FAFT recommends the following due diligence is performed by companies:

(a) Identifying the customer and verifying that customer’s identity using reliable, independent source documents, data or information.

(b) Identifying the beneficial owner, and taking reasonable measures to verify the identity of the beneficial owner, such that the financial institution is satisfied that it knows who the beneficial owner is. For legal persons and arrangements this should include an understanding of the ownership and control structure of the customer.

(c) Understanding and, as appropriate, obtaining information on the purpose and intended nature of the business relationship.

(d) Conducting ongoing due diligence on the business relationship and scrutiny of transactions undertaken throughout the course of that relationship to ensure that the transactions being conducted are consistent with the institution’s knowledge of the customer, their business and risk profile, including, where necessary, the source of funds.

FAFT recommends the following additional due diligence for politically exposed persons (PEPs), including family members and close associates, whether as customer or beneficial owner, in addition to performing normal customer due diligence measures, including:

(a) have appropriate risk-management systems to determine whether the customer or the beneficial owner is a politically exposed person;

(b) obtain senior management approval for establishing, or continuing for existing customers, such business relationships;

(c) take reasonable measures to establish the source of wealth and source of funds; and

(d) conduct enhanced ongoing monitoring of the business relationship.

Record Keeping

Companies should be required to maintain, for at least five years, all necessary records on transactions, both domestic and international, to enable them to comply swiftly with information requests from the applicable authorities. Such records must be sufficient to permit reconstruction of individual transactions (including the amounts and types of currency involved, if any, so as to provide, if necessary, evidence for prosecution of criminal activity.

Companies should be required to keep all records obtained through customer due diligence (e.g. copies or records of official identification documents like passports, identity cards, driving licenses or similar documents), account files and business correspondence, including the results of any analysis undertaken (e.g. inquiries to establish the background and purpose of complex, unusual large transactions), for at least five years after the business relationship is ended, or after the date of the  original transaction.

Companies should be required by law to maintain records on transactions and information obtained through the customer due diligence measures. The customer due diligence information and the transaction records should be available to applicable domestic authorities upon appropriate authority.

New Technologies

One of the areas which many companies do not consider is that of new and cutting edge technologies to combat corruption. FAFT clearly makes use of new technologies as a part of its overall efforts. It states that companies should identify and assess the money laundering or terrorist financing risks that may arise in relation to (a) the development of new products and new business practices, including new delivery mechanisms, and (b) the use of new or developing technologies for both new and pre-existing products. In the case of financial institutions, such a risk assessment should take place prior to the launch of new products, business practices or the use of new or developing technologies and they should take appropriate measures to manage and mitigate those risks.

Wire Transfers

On wire transfers and related messages which a company may send out to a third party, it should include originator information, and required beneficiary information and that the information remains with the wire transfer or related message throughout the payment chain. Companies should also monitor wire transfers for the purpose of detecting those which lack required originator and/or beneficiary information and take appropriate measures.

Many of the above areas are currently covered in more traditional anti-corruption/anti-bribery compliance programs, such as those covered by the US Foreign Corrupt Practices Act (FCPA) or UK Bribery Act. However, these FAFT recommendations, with their focus on anti-money laundering, can be of useful guidance to companies to make their compliance programs more robust. I recommend that you read the entire report and adapt some of their suggestions into your compliance regime.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2012

March 6, 2012

The President and Lin-sanity: Lesson Learned III For Your Compliance Program

Lin-sanity still reigns and it may well now have reached its penultimate level. What evidence do I have of this cultural phenomenon? It is that both US President Barack Obama AND Sarah Palin are now on the Lin-sanity bandwagon. Palin, who played basketball in high school, is pictured at the left with the highly coveted Lin gear outside her Manhattan hotel. Not to be outdone, last week on the B.S. Report, a weekly podcast hosted by the Sports Guy Bill Simmons, held at the White House, President Barrack Obama talked about Lin-sanity and his fellow Harvard alum Jeremy Lin.

The President made an interesting comment, which I thought spoke to an ongoing issue in the compliance world. His observation was that Lin’s in-game success did not happen overnight, so question for you where were all of the ubiquitous NBA coaches all through his practices during the 15 months he has been in the NBA? The President thought that some coach, should have seen something, which indicated Lin had some talent. While we can ponder the wisdom of the 30+ coaches, between the Warriors and Rockets, who all blew that one, one of the things that the President’s comment brought up for me is the role of training in any best practices compliance program. Why you might ask? The answer is because one of focuses within an organization is to not only develop talent, but to evaluate talent in everyday work situations; similar to evaluating a basketball player in practice. So the Lin-sanity Lesson III is that one of the areas of training is to teach business unit employees to coach and evaluate compliance talent in an organization.

This is an area that Human Resources (HR) can be of great assistance to the Compliance Department. Compliance can take the lead in training on the substance of compliance. However, HR can assist in training managers to evaluate and audit employees on whether they conduct themselves within a culture of compliance and ethics. This is the traditional role of HR. While there is a training requirement for any minimum best practices compliance program, based upon the requirements in the US Sentencing Guidelines, I would submit that there is an opportunity to bring additional and more focused HR based training to bear which would enable a company to develop leaders who are thoroughly grounded in compliance and ethics.

Under the US Sentencing Guidelines, companies are mandated to “take reasonable steps to communicate periodically and in a practical manner its standards and procedures, and other aspects of the compliance and ethics program, to the individuals referred to in subdivision (B) by conducting effective training programs and otherwise disseminating information appropriate to such individuals’ respective roles and responsibilities.” This requirement would also suggest that training results should also be evaluated and once again HR can fill this role. As part of this evaluation, a candidate for promotion can be assessed in not only their interest in the area but their retention of the materials going forward. Lastly, HR can evaluate how a candidate for promotion incorporates compliance and ethics not only into his or her work but how the candidate might help to foster a culture of compliance in the company.

President Obama’s remark about Jeremy Lin and what he may have shown in practice brought up the day-to-day work that any NBA player must go through which is watched by numerous NBA coaches. This concept is the same in a business organization. The day-to-day practices equate to how employees comport themselves whilst doing the routine and daily business of their companies. It’s a good bet that if an employee acts in an ethical manner in his or her routine dealings, they will do so in a situation which requires conducting business through a culture of compliance. HR is a part of the corporate organization that can evaluate these day-to-day scenarios. HR can also train business unit employees to evaluate personnel on compliance and ethics issues. You should not miss this opportunity to watch and evaluate your employees!

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2012

March 5, 2012

The Compliance Integration Risk Assessment

For the want of a nail, the horse was lost. For the want of a horse, the message was lost. For the want of a message, a battle was lost. For the want of a battle, a kingdom was lost. All for the want of a nail.

Many compliance practitioners are aware of the Johnson & Johnson (J&J) Deferred Prosecution Agreement (DPA), which contained “Enhanced Compliance Obligations” including those around mergers and acquisitions (M&A). While many have focused on the ‘safe harbors” of compliance training within 12 months and a full Foreign Corrupt Practices Act (FCPA) audit within 18 months, there are other requirements that the compliance practitioner needs to consider, in the compliance context, in the post-acquisition phase. Today we consider the post-acquisition risk assessment and note that the above quoted ancient adage holds true today, particularly in the area of risk assessment related to the integration of compliance in an acquisition. This issue was recently explored in the Houston Business Journal by Connie Barnba, in her Mergers & Acquisition column, in an article entitled “Risky details are the devil when marry business operations”.

In her article Barnba advises, “When it comes to integration plans, the devil is always in the risk-related details with one or more overlooked items starting an accelerating chain of events that results in significant destruction of value.” She goes on to state that the “nail that is frequently mission is an assessment of the integration risks involved” in attempting to execute the business strategy of post-acquisition integration. Nothing could be truer that in the anti-corruption compliance component of M&A transactions.

Barnba recommends a pre-acquisition assessment of risk. Further, such an early assessment will inform the transaction research and evaluation phases. This could include an objective view of the risks faced and the level of risk exposure, such as best/worst case scenarios. A pre-acquisition risk assessment could also be used as a “lens through which to view the feasibility of the business strategy” and help to value the potential target.

Thereafter, this pre-acquisition risk assessment can be used by company management to attain what might be required in the way of integration, post-acquisition. It would also help to inform how the corporate and business functions may be affected. It should also assist in planning for timing and anticipation of the overall expenses involved in post-acquisition integration. These costs are not insignificant and they should be thoroughly evaluated in the decision making calculus.

Recognizing that there is never enough time for perform adequate, pre-acquisition due diligence, there are nevertheless several key areas of risk which you should attempt to assess from the compliance perspective. These areas include:

1.         Review high risk geographic areas where your company and the acquisition target company do business. If there is overlap, seek out your own sales and operational people and ask them what compliance issues are prevalent in those geographic areas. If there are compliance issues that your company faces, then the target probably faces them as well.

2.         Obtain from the acquisition target company a detailed list of sales going back 3-5 years, broken out by country and if possible obtain a further breakdown by product and/or services. You do not need to investigate de minimis sales amounts but focus your compliance due diligence inquiry on high sales volumes in high risk countries.

3.         If the acquisition target company uses a sales model of third parties, obtain a complete list, including Joint Ventures (JVs). It should be broken out by country and amount of commission paid. Review all underlying due diligence on these foreign business representatives, their contracts and how they were managed after the contract was executed; your focus should be on large commissions in high risk countries.

4.         You will need to interview the acquisition target company personnel who are responsible for its compliance program to garner a full understanding of how they view their program.

5.         You will need to review the travel and entertainment records of the acquisition target company’s top sales personnel in high risk countries. You should retain a forensic auditing firm to assist you with this effort. Use the resources of your own company personnel to find out what is reasonable for travel and entertainment in the same high risk countries which your company does business.

6.         While always an issue fraught with numerous considerations, there may be others in the M&A context such as any statutory obligations to disclose violations of any anti-bribery or anti-corruption laws in the jurisdiction(s) in question; what effect will disclosure have on the target’s value or the purchase price that your company is willing to offer.

7.         While you are performing the anti-corruption due diligence, you should also review issues for anti-money laundering and export control issues.

From this preliminary list, develop the risk assessment as a base document. If the transaction moves forward you will then need to integrate the compliance function of the acquired entity into your company. Here Barnba believes that if your company’s “leadership team has candidly debated the pros and cons” of a business integration strategy, in the light of a pre-acquisition risk assessment, and is “unified around a risk mitigation strategy”, then consistent messages should be delivered by management going forward. Conversely she believes that if senior management is divided and the specific details of an integration plan cannot be provided in a reasonable short time frame after acquisition, one of two negative outcomes will occur. Whether “there will be an inform vacuum” which will lead to disinformation being circulated. Equally plausible is that decisions may well be made without a “genuine shared commitment by the leadership team to implement them.”

Barnba’s article is a good reminder that it does not matter under which anti-corruption or anti-bribery regime you operate, whether it be the US Foreign Corrupt Practices Act (FCPA), the UK Bribery Act, or other, your program should all flow from, or be informed by, your risk assessment. This is certainly true in the M&A context and it is also true moving forward into the next step of compliance integration. You should assess these risks and build upon your pre-acquisition risk assessment. If you do not, you may well be in the situation described by Barnba, “engaged in firefighting” with your competitors being handed a strategic advantage.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2012

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