Tommy Lewis, Dicky Maegle and the DOJ Call for Individual Prosecutions

Tommy Lewis died this week. For those of you uninitiated in college football, Lewis was an Alabama football player who jumped up off the Alabama bench to tackle Rice University halfback Dicky Maegle, who was scampering untouched down the sideline for a touchdown in the 1954 Cotton Bowl. Lewis’ off the bench tackle led to a flag and the referees’ awarding Maegle a 95-yard touchdown on the play. Why did Lewis do it? As reported in his obituary in the Houston Chronicle, Lewis always maintained he was “too full of Alabama”. Maegle, perhaps more charitably, said, “He was a good guy who got caught up in the moment and the excitement.”

I thought about Maegle and Lewis when I was re-reading and considering the recent remarks of Assistant Attorney General for the Criminal Division Leslie R. Caldwell at the recent Ethics and Compliance Officers Association (ECOA) Conference. As Mike Volkov said in his post on Tuesday, the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) communicate quite clearly what their enforcement priorities are; one does not have to read tea leaves, it is out there in black and white for all to see and hear. Caldwell’s remarks would seem to follow this observation of Volkov.

Caldwell made clear that the DOJ will prosecute individuals for violations of the Foreign Corrupt Practices Act (FCPA). In her remarks she said, “When criminal misconduct is discovered, a critical factor in the department’s prosecutorial decision making is the extent and nature of the company’s cooperation. The department’s Principles of Federal Prosecution of Business Organizations provides that prosecutors should consider “the corporation’s timely and voluntary disclosure of wrongdoing and its willingness to cooperate in the investigation of its agents.””

Recognizing that “Corporations do not act, but for the actions of individuals” Caldwell then laid down some quite strong prescriptions which compliance practitioners need to be cognizant about. Caldwell stated, “Now let me flesh out the often discussed, but sometimes poorly understood, concept of cooperation. Most companies now understand the benefits of voluntarily disclosing the misconduct before we come asking, and the benefits of conducting an internal investigation and providing facts about the misconduct to the government. But companies all too often tout what they view as strong cooperation, while ignoring that prosecutors specifically consider “the company’s willingness to cooperate in the investigation of its agents.””

She went on to add, “In all but a few cases, an individual or group of individuals is responsible for the corporation’s criminal conduct. The prosecution of culpable individuals – including corporate executives – for their criminal wrongdoing continues to be a high priority for the department. For a company to receive full cooperation credit following a self-report, it must root out the misconduct and identify the individuals responsible, even if they are senior executives.”

Fortunately the DOJ is not asking for undercover corporate sting operations because, as Caldwell explained, “We are not asking that you become surrogate FBI agents or prosecutors, or that you use law enforcement tactics like body wires.  And we do not need to hear you say that executive A violated a particular criminal law. All we are saying is that we expect you to provide us with facts. We will take it from there. But a company that interviews its employees in an effort to whitewash the facts or spread the company’s narrative spin risks receiving any cooperation credit.”

This is about as clear a warning as you can expect to receive. But the difficulty it puts company’s in is in regard to their internal investigations. Last week Joel Schectman, writing in the Wall Street Journal (WSJ) article entitled, “Are Internal Bribery Probes Private?”, explored the issue of whether such investigations are privileged, in the context of a current individual FCPA prosecution. In the matter of Joseph Sigelman, the former Chief Executive Officer (CEO) PetroTiger Ltd. Co., Schectman reported that “Prosecutors say the payments of approximately $333,500 to the wife for “consulting services” was actually a bribe to her husband to win a contract for PetroTiger worth around $39.6 million.”

Some or all of the underlying facts were turned over to the DOJ by PetroTiger’s internal investigation. The Defendant Sigelman wants to obtain copies of whatever PetroTiger turned over to the DOJ, arguing that the company waived any claim of attorney/client privilege “when it divulged the investigation’s findings to third parties, including officials of the United States.” The company has refused to hand over its internal investigation to the defendant based on this claim of attorney/client privilege.

What happens if a company, or its law firm gets the investigation wrong and falsely accuses an individual? Should the company be protected? That is the issue currently before the Texas Supreme Court in a libel case styled, Shell v. Writt. It involves our old friend Panalpina Inc. and its customer Royal Dutch Shell. David Smyth, in a post entitled “Texas Court of Appeals Has Put Some FCPA Internal Investigations in an Awkward Spot”, said the DOJ contacted Shell about its dealings with Panalpina. Sometime later, “Shell agreed to conduct an internal investigation into its dealings with Panalpina.” Smyth noted that, “Shell submitted an investigative report that pointed the finger at Writt.  Specifically, Shell said Writt had been involved in illegal conduct in a Shell Nigerian project by recommending that Shell reimburse contractor payments he knew to be bribes and failing to report illegal contractor conduct he was aware of.”

Writt sued Shell for libel and Shell defeated Writt at the trial court on the basis that it had an “absolute privilege to say what it did in its investigative report to the DOJ.”

However, a Texas Court of Appeals reversed the trial court ruling holding that absolute privilege does not apply where a party voluntarily turns over information to a prosecutor before a judicial proceeding is initiated or contemplated. As Smyth explained, “In the court’s view, DOJ was acting purely in a prosecutorial and non-judicial capacity.” Shell has appealed this matter to the Texas Supreme Court, which has accepted the case for review.

There are several difficult issues from the facts of this case. Smyth points to one when he ended his piece, “FCPA investigations these days are a different animal, and probably deserving of different treatment by the courts. As of now, a company conducting an internal FCPA investigation in Texas has to ask, what do we do if one of an investigation reveals one of our employees as a bad actor? Do we say as much in the report we turn over to the government, as the government surely expects? If we do, are we signing on for libel litigation by the employee?” But now Caldwell has made clear that the DOJ expects companies to “identify the individuals responsible, even if they are senior executives”. If you are one of the individuals so identified, are you entitled to know what the accusations against you might be? What if the company’s lawyers got it wrong? Should they have a duty?

Moreover, there are a plethora of procedural protections available to criminal defendants not available to civil defendants or even those who are the subject of internal corporate investigations. Should a Miranda warning now be given during internal corporate investigations? Is the right to remain silent and not self-incriminate oneself available in such an investigation? In paper entitled “Navigating Potential Pitfalls in Conducting Internal Investigations: Upjohn Warnings, “Corporate Miranda,” and Beyond” Craig Margolis and Lindsey Vaala, of the law firm Vinson & Elkins LLP, explored the pitfalls faced by counsel, both in-house and outside investigative, and corporations when an employee admits to wrong doing during an internal investigation, where such conduct is reported to the US Government and the employee is thereafter prosecuted criminally under a law such as the FCPA.

Employees who are subject to being interviewed or otherwise required to cooperate in an internal investigation may find themselves on the sharp horns of a dilemma requiring either (1) cooperating with the internal investigation or (2) losing their jobs for failure to cooperate by providing documents, testimony or other evidence. Many US businesses mandate full employee cooperation with internal investigations or those handled by outside counsel on behalf of a corporation. These requirements can exert a coercive force, “often inducing employees to act contrary to their personal legal interests in favor of candidly disclosing wrongdoing to corporate counsel.”  Moreover, such a corporate policy may permit a company to claim to the US government a spirit of cooperation in the hopes of avoiding prosecution in “addition to increasing the chances of learning meaningful information.”

Where the US Government compels such testimony, through the mechanism of inducing a corporation to coerce its employees into cooperating with an internal investigation, by threatening job loss or other economic penalty, the in-house counsel’s actions may raise Fifth Amendment due process and voluntariness concerns because the underlying compulsion was brought on by a state actor, namely the US Government. Margolis and Vaala note that by utilizing corporate counsel and pressuring corporations to cooperate, the US Government is sometimes able to achieve indirectly what it would not be able to achieve on its own – inducing employees to waive their Fifth Amendment right against self-incrimination and minimizing the effectiveness of defense counsel’s assistance.

All of the above would seem to make clear the need for company’s to get their internal investigations done right. If you are going to receive credit from the DOJ going forward, your investigations must be done thoroughly, in a timely manner and provide to the DOJ the information that Caldwell has laid out that they want. At least currently in Texas, a company has to get it right or risk being sued if they mis-identify a potential criminal actor.

Tommy Lewis and Dicky Maegle? Lewis made a mistake, probably carried away in the heat of the moment. What did Maegle have to say about him on the occasion of his death? “He was very remorseful, and I thought he was sincere. I liked him. We became friends.” Let’s hope your employees still like your company at the end of an internal investigation.

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, 2014

 

 

Will the UK Let the Light of Day Shine Into Its Regulatory Process?

Should the regulators process be shrouded in mystery or should there be disclosure into the light of day? That is a question currently before authorities in London. As reported in the Financial Times (FT) column Inside Business, in a piece entitled “UK regulators must judge the right time to go public”, Brooke Masters reported that the UK Financial Services Authority (FSA) cannot provide the public details about a matter under investigation “until its internal decision maker, the Regulatory Decisions Committee, has heard the allegations and the defence of the accused and come down in favour of enforcement action.” There is currently legislation in front of Parliament which would allow a newly constituted financial regulatory agency, the Financial Conduct Authority, to go public with “warning notices” before a case gets to the Regulatory Decisions Committee. Masters cites advocates of this legislation who “say this would make the UK more like the US, where the Securities and Exchange Commission [SEC] can make public charges it has filed with a judge or administrative proceeding.” Apparently representatives of British banking interests are desperately fighting to keep such proceeds secret.

The Con

Master’s presents several arguments why regulatory investigations should remain secret. She quoted Lord Flight who claims that “allegations can blacken reputations and harm innocent investors.” He even pointed an accusatory finger at the head of the state of New York’s Department of Financial Services’ (DFS) Benjamin Lawsky who made allegations that Standard Chartered “hid $250 billion of transactions with Iran in breach of US sanctions, a charge that caused a one-day 16 per cent fall in the bank’s share price.” The bank insisted that they were “blindsided” by the allegations and indeed there were only $14 million in transactions which violated either US or New York state law. Of course we all now know that Standard Chartered also settled with the DFS for $340 million within days of these accusations being made public.

The Pro

Masters cites to un-named British Ministers who argue that “the public deserves to know when government regulators believe a major institution or prominent figure has committed wrongdoing. Further, timely announcements by the FSA or other appropriate regulators would “allow investors to move their money or protect themselves from similar misdeeds.” She poses the question of “Wouldn’t you want to know that a broker was facing charges of selling unsuitable investments before you – or even more pointedly, an elderly relative – gave him money?” Next she notes that “Quick enforcement also helps restore faith in the financial system. It is quite frankly a joke that nearly four years after HBOS failed, we still don’t know whether the FSA thinks anyone there did anything improper.”

Masters concludes her piece with a look at the SEC “Wells Notice” procedure, which is a private warning by the SEC to companies and individuals that the SEC wants to bring a case against them and this document invites the company or individual to respond directly to the SEC. This process allows the party or parties in question to respond or to work out a settlement. Masters believes that “the practice has worked well, especially for investors, who often get an early heads up about potential problems because most public companies disclose when they have received such a notice.” She believes that this interim step would be useful to give companies “a private right of reply before throwing open the doors.” But Masters makes clear her final position by concluding that she does not believe the UK government should “give in to the City’s efforts to keep the disciplinary process shrouded in mystery.” In other words, the light of day should shine into these dark crevices of nefarious activity.

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

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

A Triumvirate of FCPA Resources

One of the great things about blogging about the Foreign Corrupt Practices Act (FCPA), UK Bribery Act and ethics and compliance in general, is that practitioners will forward materials to me to review. Not only does this assist me in my legal practice (yes, I do practice law for a living) but it also provides me with a wealth of materials to write about and share with other compliance practitioners. This week I was the lucky recipient of one email with three such resources from Markus Funk, partner at the law firm of Perkins Coie. I would also note that Markus was the author, co-author or otherwise involved in publishing of all three articles.

The three articles are: (1) “Complying With the Foreign Corrupt Practices Act: A Practical Primer”, authored by the University of Chicago Law School’s Corporate Lab, co-sponsored by Microsoft, and published by the ABA Global Anti-Corruption Task Force; (2) “The IP Practitioner’s ‘Cheat Sheet’ to the FCPA and Travel Act:  Introducing the IP FCPA Decision Tree”, authored by Doug Sawyer and T. Markus Funk and published in the BNA Bloomberg Patent, Trademark & Copyright Journal; and (3) “Breaking Down the FCPA, Travel Act, and UK Bribery Act”, by T. Markus Funk, published in BNA Bloomberg White Collar Crime Report.

Complying with the FCPA: A Practical Primer

Whether you are new to the field of compliance or a long time practitioner, this 52 page guide is an excellent one-stop shop for any person who may need guidance under the FCPA. This is the result of the collaboration of several authors, law firms, companies and organizations and the stated purpose of the Primer for this report is to provide: (1) an overview of the FCPA; (2) an analysis of how the federal government – particularly the Department of Justice (the “DOJ”) – enforces the FCPA; and (3) a framework for developing effective compliance programs. It certainly fulfills these goals. The Primer used, as sources, the following materials: (1) the United States Attorney’s guidelines; (2) the United States Federal Sentencing Guidelines; and (3) the Organization for Economic Co-operation and Development’s (the “OECD”) Good Practice Guidance.

The Primer takes as its starting point the DOJ’s 13-point minimum best practices compliance program that is now routinely set forth in each Deferred Prosecution Agreement (DPA) and Non-Prosecution Agreement (NPA) entered into by the Department. A compliance practitioner is also provided with the legal underpinnings of the FCPA, the fundamental components of a best practices compliance program from the DOJ’s perspective and various metrics by which a company can measure and assess the effectiveness of a compliance program. To have all of this in a 52 page Primer is a much needed resource that can be used by all.

 

FCPA and Intellectual Property

In “The IP Practitioner’s ‘Cheat Sheet’ to the FCPA and Travel Act:  Introducing the IP FCPA Decision Tree” co-authors Doug Sawyer and T. Markus Funk discuss the FCPA and its “private bribery twin, the Travel Act” in the context of intellectual property (IP) protection. They note that the reality of 21^st century business is that companies are valued largely on the basis of their intellectual property, transforming intellectual property protection into an increasingly central business interest. And with so many US and US-based companies ‘‘going global’’ IP is routinely, and simultaneously, owned and litigated in multiple jurisdictions. IP is, therefore, far from immune from FCPA or Travel Act issues and enforcement.

The authors list FCPA Red Flags in the IP context, which can be such actions (a) a patent being granted unusually quickly; (b) an opposition to a trademark being granted before the entire process has been completed; (c) “a foreign customs official robustly enforcing company A’s anti-counterfeiting agenda, while ignoring company B’s agenda.” To assist the IP practitioner, who may be new to FCPA compliance, or for the compliance practitioner, who may be new to IP issues, the authors conclude their article with a useful decision making tree as a guide to FCPA and Travel Act anti-bribery provisions which “graphically illustrates each analytical step at issue, explains how the Travel Act’s prohibition on ‘‘private’’ bribery fits into the overall anti-bribery puzzle, and seeks to provide a bird’s eye view of this often confusing legal framework.”

Breaking Down the FCPA and Travel Act

In “Breaking Down the FCPA, Travel Act, and UK Bribery Act”, sole author T. Markus Funk, provides the FCPA and Bribery Act compliance practitioner with three handy charts which illustrates the particular steps one must go through to analyze a claim for public corruption under the FCPA and how the Travel Act’s prohibition on private bribery fits into the overall anti-bribery puzzle; a chart explaining how the UK Bribery Act relates to organizations; and a chart which sets out the differences between the FCPA and the Bribery Act. Taken together, these three charts provide to the compliance practitioner with the ‘‘big picture’’ view of these three anti-corruption and anti-bribery laws. It is a very useful short guide to these three laws.

All of these articles fill a valuable niche for the compliance practitioner. I hope that you will review and use them in your practice going forward. I also hope that you will join me in thanking T. Markus Funk for not only authoring or assisting in authoring the above three resources but also for sending them along to me to pass along to you.

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

Is There Room for Law Enforcement in a Workplace Investigation?

Ed. Note-today we are pleased to host an article by our colleague from north of  the Border, Lindsey Walker of i-sight.com. 

When you want a workplace investigation done right, you choose an investigator that has the knowledge and experience to deal with the specific type of case under investigation. This could be someone within your organization, an external investigator, or in some cases, law enforcement. However, when an incident occurs in the workplace, many companies jump the gun and involve law enforcement right away, without considering their options. Failure to select an appropriate investigator could put your company on the line.

Advantages and Disadvantages of Involving Law Enforcement

At the ASIS International 2011 Seminar and Exhibits, James Whitaker, President, The Whitaker Group, LLC and Ed Casey, CPP, Senior Director – Protective Services, Cincinnati Children’s Hospital led a session called “Private Sector Investigations: When (and if) to Involve Law Enforcement”.  Whitaker and Casey outlined some of the advantages and disadvantages of getting law enforcement involved in workplace investigations.

Advantages include:

• The decision complies with company policy or law
• Law enforcement can provide additional resources
• Broader jurisdiction
• No additional cost
• Experience (this can be both an advantage and a disadvantage)

Disadvantages include:

• Loss of control over the investigation
• Possible unwanted publicity
• Timing
• Business disruption
• Experience

It’s important to remember that once you get law enforcement involved in an investigation, you can’t go back. In some cases, you can use the fact that you aren’t getting law enforcement involved as a source of leverage in an investigation – employee admits to wrongdoing, you part ways, end of issue.

Experience Matters

During the presentation, Whitaker and Casey discussed the importance of experience and the fact that the law enforcement agent assigned to your case may or may not have experience dealing with the type of incident under investigation. Involving law enforcement in an investigation is like Forrest Gump’s box of chocolates: “You never know what you’re gonna get.”

Companies are liable for ensuring that investigations are conducted properly, which makes the investigator selection process very important. When selecting the best investigator for the case, whether it’s an internal or external source, you need to take their level of knowledge and experience into consideration. It’s also important to remember that the same person or group may not be the best investigator for every case. Each case varies in complexity, so you need to make sure that the investigator has the skills to get the job done.

When to Get Law Enforcement Involved

Whitaker and Casey suggest involving law enforcement if company policy or the law says so, or if a serious criminal act has occurred. If the investigation involves armed robbery, assault, arson, significant theft or any other type of serious crime, notify law enforcement. In some organizations, it’s company policy to notify law enforcement when an incident is under investigation. Whitaker and Casey recommend familiarizing yourself with local and state requirements and contacting your legal department to find out what steps you should take before getting law enforcement involved.

Lindsey Walker can be reached at LWalker@customerexpressions.com.

Henry II Revisited: The Fair Process Doctrine as a Key Component of a Compliance Program

In a recent post entitled “Will No One Rid Me of this Meddlesome Priest?” I highlighted ‘Tone at the Top’ by discussing the words of Henry II leading to the subsequent murder of Thomas Becket. One of the things I learned on my recent vacation to England was that Henry II developed many of the procedural safeguards which became the basis of Anglo-American jurisprudence. While English Kings, at least after William the Conqueror, had always been able to issue Writs to direct the King’s subjects to perform tasks, Henry II developed certain standardized Writs which could be utilized to determine disputes between the King’s subjects, in a more fair and judicial manner. So today we will honor Henry II by discussing how he helped to bring procedural fairness to English law and how that relates to modern day compliance program.

Two of the most famous were the Writ of Novel Disseisin, which would allow a person to contest property ownership through a trial on the merits, decided by a jury. The second was a Writ of Mort D’Ancestor which allowed heirs to contest property distribution after a person’s death. As with the Writ of Novel Disseisin, it would be issued in the King’s name to the County Sheriff, who would seize the property in question. The matter would then go through a legal process culminating in a trial by jury to determine rightful ownership. Both of these Writs allowed a manner of procedural fairness to come into disputes which heretofore had not been present in English law.

Procedural fairness is one of the things that will bring credibility to your Compliance Program. Today it is called the Fair Process Doctrine and this Doctrine generally recognizes that there are fair procedures, not arbitrary ones, in a process involving rights. Considerable research has shown that people are more willing to accept negative, unfavorable, and non-preferred outcomes when they are arrived at by processes and procedures that are perceived as fair. Adhering to the Fair Process Doctrine in two areas of your Compliance Program is critical for you, as a compliance specialist or for your Compliance Department, to have credibility with the rest of the workforce.

A. Internal Investigations

The first area is that of internal company investigations. If your employees do not believe that the investigation is fair and impartial, then it is not fair and impartial. Further, those involved must have confidence that any internal investigation is treated seriously and objectively. I have recently written about several aspects of internal investigations, in order to emphasize how to handle internal whistleblower complaints in light of the Dodd-Frank implications. One of the key reasons that employees will go outside of a company’s internal hotline process is because they do not believe that the process will be fair.

This fairness has several components. One would be the use of outside counsel, rather than in-house counsel to handle the investigation. Moreover, if company uses a regular firm, it may be that other outside counsel should be brought in, particularly if regular outside counsel has created or implemented key components which are being investigated. Further, if the company’s regular outside counsel has a large amount of business with the company, then that law firm may have a very vested interest in maintaining the status quo. Lastly, the investigation may require a level of specialization which in-house or regular outside counsel does not possess.

B. Administration of Discipline and Employee Promotions

However, as important as the Fair Process Doctrine is with internal investigations, I have come to believe it is more important in another area. That area is in the administration of discipline after any compliance related incident. Discipline must not only be administered fairly but it must be administered uniformly across the company for the violation of any compliance policy. Simply put if you are going to fire employees in South America for lying on their expense reports, you have to fire them in North America for the same offense. It cannot matter that the North American employee is a friend of yours or worse yet a ‘high producer’. Failure to administer discipline uniformly will destroy any vestige of credibility that you may have developed.

In addition to the area of discipline which may be administered after the completion of any compliance investigation, you must also place compliance firmly as a part of ongoing employee evaluations and promotions. If your company is seen to advance and only reward employees who achieve their numbers by whatever means necessary, other employees will certainly take note and it will be understood what management evaluates, and rewards, employees upon. I have often heard the (anecdotal)tale  about some Far East Region Manager which goes along the following lines “If I violate the Code of Conduct I may or may not get caught. If I get caught I may or may not be disciplined. If I miss my numbers for two quarters, I will be fired”. If this is what other employees believe about how they are evaluated and the basis for promotion, you have lost the compliance battle.

So we should thank Henry II for showing us that he was more than simply about ‘Tone at the Top’. His changes in English jurisprudence helped lead us down the road to procedural fairness in the law and today in the workplace. You should thank him and remember that people will be more loyal if they think they have been treated fairly, even if the results are not exactly what they wanted.

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, 2011

WHO Should Handle Serious Internal Investigations?

In the most recent issue of the SCCE, Compliance and Ethics Professional Magazine, Issue 08/2011, is an article entitled “Foxes and henhouses: The importance of independent counsel”, in which author Dan Dunne discussed what he termed a “critical element” in any whistleblower response, which is a “fair and objective evaluation.” Dunne wrote that a key component of this fair and objective evaluation is the WHO question; that is, who should supervise the investigation and who should handle the investigation? Dunne’s clear conclusion is that independent counsel should handle any serious investigation.

Dunne list three factors which he believes should cause a company to retain independent counsel for internal investigations of serious whistleblower complaints. First, for any corporate ethics policy to be effective, it must be perceived to be fair. André Agassi was right, perception is reality. If your employees do not believe that the investigation is fair and impartial, then it is not fair and impartial. Further, those involved must have confidence that any internal investigation is treated seriously and objectively.

Secondly, if regular outside counsel investigates their own prior legal work or legal advice, Dunne believes that “a plethora of loyalty and privilege issues” can come up in the internal investigation. It is a rare legal investigation, where the lawyer or law firm which provided the legal advice and then investigates anything having to do with said legal advice, finds anything wrong with its legal advice. Dunne also notes that if the law firm which performs the internal investigation has to waive attorney client privilege, it may also have to do the same for all its legal work for the company.

The third point Dunne raises is the relationship of the regular outside counsel or law firm with regulatory authorities. If a company’s regular outside counsel performs the internal investigation and the results turn out favorably for the company, the regulators may ask if the investigation was a “whitewash”. If a regulatory authority, such as the Securities and Exchange Commission (SEC) or Department of Justice (DOJ) cannot rely on a company’s own internal investigation, it may perform the investigation all over again with its own personnel. Further, these regulators may believe that the company, and its law firm, has engaged in a cover-up. This is certainly not the way to buy credibility.

Jim McGrath, writing in his Internal Investigations Blog, noted that despite the fact that using specialized investigation counsel is a best practice that is worth the money, one of the more difficult things is convincing decision-makers of the this advantage. This is particularly so when speaking with mid- or small-sized companies that are part of larger supply chains. While general counsels and compliance officers may be up to speed on outsourcing critical inquiries, managers in business segments often are not and frequently reply that they’ve “got someone” in the company who “takes care of that stuff.” However, it is clear that such an approach will be more costly to a company in the long run. McGrath emphasizes the need for independent counsel for serious corporate investigations.

I would add a couple more reasons to those listed by Dunne and McGrath. If there are serious allegations made concerning your company’s employees engaging in criminal conduct, a serious response is required. Your company needs to hire some seriously good lawyers to handle any internal investigation. These lawyers need to have independence from the company so do not call your regular corporate counsel. Hire some seriously good investigative lawyers.

I believe that there is another reason to hire outside counsel. It is also important because, no matter what the outcome of your investigation, you will most probably have to deal with the government. If the investigation does reveal actionable conduct, your company will need legal counsel who is most probably an ex-DOJ prosecutor or ex-AUSA to get your company through that process. Even if there is a finding of no criminal activity, you will need very competent and very credible counsel to explain the investigation protocol and its results to the government.

One need only look at L’Affair Renault to see the hazards of not following the WHO approach of Dunne, McGrath or myself.

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, 2011

Four Steps to Resolving Your FCPA Compliance Issues

As regular readers of this blog know I often cite the three maxims of Paul McNutly as the basis for a good compliance program. They are the questions that the government will ask when they come knocking: (1) What did you do to prevent it?; (2) What did you find when you looked into it?; and (3) What did you do when you found out about it?. One of the keys of these ideas is that if you look for something, through investigation or audit, you cannot be afraid to find something, recognize that it is a problem, then move forward to remedy the problem and use it as a lesson learned going forward. I recently saw an advertisement in the Harvard Business Review for the Columbia Business School which was entitled, “How to realize leadership potential” it occurred to me that it was a way to think through and act upon McNulty’s point 3. So with some modification I present a practical method to implement McNulty.

1.     Recognize Compliance Problem

The key here is to provide the tools to company employees through training that allow them to recognize when a compliance problem has arisen. Your compliance program must have a written Code of Conduct or other formation document which clearly articulates what is expected from the compliance perspective. However, because compliance programs also have a requisite financial controls component, as required by the books and records portion of the Foreign Corrupt Practices Act (FCPA), there also needs to be a clear policy statement which employees can read and understand. This does not mean a compliance policy written by lawyers for lawyers, with lengthy citations to the FCPA, direct cut-out quotes from the US Sentencing Guidelines and other terminology on a lawyer can read and understand. The compliance policy needs to written in plain English or at least in language that a business person can understand. There should also be a detailed statement of the compliance procedures which explain the financial process by which your company will manage the compliance risk.

All of this should be encapsulated in a training program. There are various and numerous approaches to training. It can be live, via video, through a Webex, via audio, computer based or any combination thereof. The key is to provide sufficient training to allow employees to recognize compliance problems. I tell employees that they do not have to understand all the nuances of FCPA law or make a decision on whether the FCPA has been violated. I ask them that if something strikes them as wrong; their gut tells them its an issue; or the hair on the back of their neck stands up-recognize this as a problem and move to Step 2…

2.     Call for Help

So what should you do if you recognize a compliance problem? I train employees to raise there and escalate the problem. Tell your boss, call the compliance or legal department, use the hotline or do something to escalate the problem so that it can be investigated. Here the actions of the company are critical. A company must provide the training for an employee on what they are to do; where they can go. This message must be reinforced by emails, posters, reminders by management and any other form of media to communicate and keep communicating this message.

But this next part is absolutely critical. Your company must be absolutely, positively committed to accepting the employees concern and there must be NO RETALIATION. I know that every company in America will swear up and down that they embrace this basic of compliance; just as they do for all other areas where employees can bring claims, such as harassment, discrimination, SOX concerns or a myriad of others. But if there is one hint or even a whiff of retaliation, it will end, for all time, employees bringing compliance concerns up the line. All of which leads to Step 3, which is…

3.     Address the Issue

There must be a thorough and competent investigation. Do not wait one or two months to perform the investigation. In addition to the mundane concern of evidence becoming stale or disappearing, the reporting employee or other witnesses being harassed; you will lose credibility the longer you wait. Employees who make such reports expect, and I believe reasonably so, for their concerns to be taken seriously. Here I do not mean have the President of your company go in front of the national press to announce the termination of the alleged wrong-doers, well before your President has the correct facts in hand, such as was the case with the recent Renault matter.

My colleague Jim McGrath, author of the Internal Investigations Blog, writes about the use and need for specialized investigative counsel to assist a company at this juncture. Even if you do not follow Jim’s advice, you must get a lawyer on the ground as soon as is possible. This lawyer should be trained in how to investigate; he/she must have an investigation protocol and a good understanding of the facts through a comprehensive review of all documents, before the interviews begin. So perhaps you do need specialized investigative counsel as Jim suggested so as not to any conflict of interest in pursuing any leads in the compliance investigation. With that we move on to Step 4, which is…

4.     Apply Resolution

Here your company must be fearless. It must be not afraid of what may be found in the investigation, it must not be afraid to remedy the issue. Remember McNulty’s Maxims? The third question the government will ask is “What did you do when you found out about it?” You must follow your compliance policy. If discipline is warranted, you must administer it. The discipline must be administered fairly but equally across the globe. I once was at a company which fired Brazilian employees for making mis-statements on their expense accounts but gave a US employee a “Letter of Warning”. What kind of message do you think that action sent?

There may be other resolutions which may not require the administration of discipline. It may be that your internal controls need to be strengthened. Although not in the compliance world, how do you think Citigroup is feeling about its internal controls today; as it had an ex-employee charged with embezzling over $19MM for over a year before he was caught? But the key is to resolve the matter. Use it as a lesson learned and as a teaching tool. Do not hide the issue and if it is a FCPA violation, consult with counsel regarding a self-disclosure to the Department of Justice (DOJ) and Securities and Exchange Commission. If all this happened in your UK subsidiary and your complete your investigation after July 1^st, self-disclose to the Serious Fraud Office.

I hope you can use these four steps to assist you in implementing McNulty’s Maxims. This is what the DOJ wants to see if they come knocking.

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, 2011

Do As I Say, Not as I Do: IMF and Ethics at the Top

In an article in Monday’s New York Times (NYT) entitled “At I.M.F, a Strict Ethics Code Doesn’t Apply to Top Officials”, Graham Bowley reported that there are two separate sets of ethics guidelines; one for the 2400 “rank-and-file staff and another for the 24 elite executive directors who oversee the powerful organization.” The article sets forth this dichotomy and is a very useful review for any company subject to the US Foreign Corrupt Practices Act (FCPA) or UK Bribery Act on what NOT to do regarding their anti-bribery and anti-corruption program.

I.                Tone at the Top

What precisely is the Tone at the Top of the IMF? From the article it is hard to determine. The article does note that there is a detailed staff code of conduct and a “plethora of policies and procedures” apparently related to anti-bribery and anti-corruption. It was reported that the staff code of conduct specifically states that a close personal relationship with a subordinate is a potential conflict of interest and must be reported. This requirement is not found in the Executive Board code of conduct. So while the Tone at the Middle and below may be strong and robust, it is not clear if such tone exists at the Top of the IMF.

II.             Who Does the Code of Conduct Apply to?

The article reported that the IMF’s Independent Evaluation Office carried out a study of the IMF’s ethics policies in 2007. The author of this study, Katrina Campbell, is quoted in the Times as saying “There are a lot of controls in place when it comes to staff, but not for the leadership.” Her study criticized the Board’s conduct as vague, noting that it “reads, for the most part, as a set of recommendations, rather than rules.” Further, the Board lacked effective enforcement procedures. So what are its rules and regulations for the staff and aspirations for the Board? Indeed it may be that the Managing Director of the IMF is even “ambiguous” in terms of this standard.

III.            Investigation of Board Members

The IMF code of conduct for the staff allows an ethics advisor to fully investigate any complaints of violations of the code of conduct, at least as it relates to the 2400 member staff. This is not true for the executive board. Any investigation of the board must be handled by an outside consultant who reports only to the Ethics Committee of the Board. While it may not be unusual for a Board to have an Ethics Subcommittee to direct such investigations or receive the reports from outside lawyers or other consultants, a 2007 internal IMF report said that the Ethics Committee had “never met to consider any issues other than its own procedures” and there is no record that it has met since that time. Bowley notes that such lack of meetings to consider any issues flies in the face of at least one complaint made to the IMF internal ethics hotline involving the conduct of a Board member, where it is not clear that this hotline report was even investigated.

If there is one thing that the Times article makes clear, it is that there must be one ethics and compliance standard for everyone in the company. There must be consistent treatment of all employees, whether in an investigation or in any discipline thereafter. If a complaint is made through a hotline report, whether anonymous or not, it must be thoroughly and fairly investigated. If your company is a UK or US company, anything less will put your company in very hot water with the US Department of Justice or UK Serious Fraud Office.

Of course you could just implement the adage, “always practice what you preach.”

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, 2011

A Modern Fairy Tale: The Company Which Cried Wolf or Lessons Learned from L’Affaire Renault

Once upon a time there was a boy who went to the town square and cried “The Wolf is coming to steal our secrets!” The townspeople all gathered ‘round and asked him how he knew this. “A person named NoMan told me,” he declared. But there was more, as the boy told the now rapt townsfolk “And he said if you give me some money to help pay his ‘expenses’, I can find out when and how the Wolf  will steal our secrets.” As this town was in France, they immediately gave the boy €450,000 (or €700,000 depending on the version of the fairy tale) and he and the money were never seen again.

I. The Tale

Most people in the compliance world have by now heard about L’Affaire Renault. As reported  extensively in the Wall Street Journal (WSJ), the affair became public in January of this year, when Renault fired three top officials for allegedly selling secret information regarding the company’s electric car program. These allegations were based upon information which came from an unknown informant who claimed that the three terminated officials had large Swiss bank accounts funded by monies which came from the sale of this information. This unknown informant was paid for his information, by two Renault security department employees, and then allegedly onto another party, who eventually passed along some or all of the Renault payment to the informant.

If all of this sounds confusing, well it is. The inquiry began last August with an anonymous letter to company officials stating that one of the now terminated employees was overheard “negotiating a bribe”. By December, the company’s security department had “assembled elements pointing to the existence of bank accounts in Switzerland and Liechtenstein.” The accused employees were terminated in January, 2011. On March 14, the WSJ reported that “state prosecutor Jean-Claude Marin on Monday said his investigation showed that the three didn’t have bank accounts in those countries.” On March 15, the WSJ reported that the Chief Executive Officer (CEO) of the French car maker Renault apologized on national television for the wrongful termination of three company officials for improper allegations of industrial espionage. In addition to this apology, he offered to meet the men and propose that they rejoin the company. They also would be offered compensation, “taking into account the serious hurt that they and their families have suffered…” This case (and the introductory fairy tale) presents several very large ‘Lessons Learned’ for any company which engages in an anti-corruption, anti-bribery or fraud investigation and then disciplines or terminates employees based upon the investigation.

II. The Moral

Look Before You Leap

Our colleague, Lindsey Khan wrote about Fraud Investigation Preparation in a two part series posted on her blog isight.com. Over this two part series, she reviewed author Stephen Pednealut’s book, “Anatomy of a Fraud Investigation”, in which he outlined the steps a company should take when preparing for a fraud investigation. Imagine where Renault might be if they had read Lindsey’s blog. I digress to say you should bookmark and read Lindsey’s blog as she regularly writes on investigations and even provides an investigation template on a complimentary basis.

The first thing to emphasize is that a company cannot over-prepare for such an investigation. With this in mind, here are seven steps he suggested a company should take before they begin a fraud investigation:

1. Timing. If the target(s) know you are on to them, they will have absconded so make this initial determination.

2. Strategize. Figure out who needs to be involved in the investigation and meet as soon as possible to explore options and discuss how they will move forward with the investigation, as each one differs based on the goals, circumstances and people involved.

3. Review laws, policies and other documents. Obtain everything of significance before you start the investigation and then secure it.

4. Available information. If your company uses outside investigators, make certain that they understand company structure, infrastructure and relationships.

5. Whistleblower protection and confidentiality. Although this information or source may need protection, the identity must be known and verified.

6. Lock down evidence. Physical and electronic evidence need to be gathered and secured as soon as possible.

7. Resource allocation. Make sure your company has the tools you need to gather evidence and label it properly for storage.

You Leapt, Now What?

Your actions after you have followed Pedneault’s seven preparation steps will be equally, if not more important. First and foremost your investigation must be thorough. In other words, if the key part of the allegation is that bribes were being funneled into a Swiss bank account, your company had better make certain this information is correct before you go and make that public pronouncement. You should endeavor to make certain that your company CEO does not, as reported in the WSJ, proclaim the statement made by the CEO of Renault when he said publicly “that the company had evidence against them” regarding the existence of foreign bank accounts. Over two months after this public statement, neither Renault nor the French Prosecutor’s Office had discovered such evidence to back up this allegation.

Keep A Sense of Balance

Attorney Stephen Pearlman, quoted in the WSJ, noted that a company must approach any such allegations “with a real sense of balance” and not “over-react.” Mr. Pearlman said he recently had a client who received an anonymous tip on some alleged wrongdoing and wanted to act before the investigation was done. “I told them, ‘You’ve got to take a deep breath, don’t overreact” he recalled.

Robert Fatovic, the chief legal officer at Ryder System Inc., also quoted in the WSJ, said “Renault is the poster child for why you want to approach these situations with a sense of balance, and not have people rush to judgment.”  Fatovic also noted that “By ending an investigation prematurely, you run the risk of a frivolous issue going public too soon.” Or having your CEO go on national television and personally apologize to those wrongfully accused.

Get Some Serious Advice

So how does a company tread through this minefield? If there are serious allegations made concerning employees engaging in criminal conduct a serious response is required. The first thing to do is hire some seriously good lawyers to handle the investigation. These lawyers need to have independence from the company so do not call your regular corporate counsel.  Do not send down Internal Audit or HR to take a look at things and report back. Attorney Jim McGrath, writing in Internal Investigations Blog, drives this point home by stating, “Despite the fact that using specialized investigation counsel is a best practice that is worth the money, one of the more difficult things is convincing decision-makers of the same… The Renault scandal reiterates the need of companies of all sizes to go outside to specialized counsel for sensitive inquiries.”

The hiring of outside counsel is also important because you will most probably have to deal with a government. If the investigation does reveal actionable conduct and you are in the US, your company will need legal counsel who is most probably an ex-Department of Justice prosecutor or ex-US Attorney to get your company through that process. Even if there is a finding of no criminal activity, you will need very competent and very credible counsel to explain the investigation protocol and its results to the government. If you are in the UK you need to hire someone with credible Serious Fraud Office- type experience or an ex-Crown Prosecutor. If you are in France, well you are in France.

There is a very good list of attorneys who specialize in the FCPA provided by my colleague Howard Sklar in his blog entitled “Getting Advice”. He knows the folks he listed personally and tells you their strengths. It is a great resource and now would be an excellent time to use it.

Don’t Pay Bounties to Unknown Persons for Unsubstantiated Rumors

A very troubling aspect of this case is the payment for the information. The payment itself has reportedly ranged from a high of €700,000 to €450,000 down to €250,000. It is not clear as to the timing of this payment but apparently the payment was handled by two security department employees, who handed it over to a third person, not the informant, who resided in Algeria. This third party in Algeria now cannot be located and the WSJ reported that initially “an employee in the security unit refused to disclose to Renault who ultimately received the money…” Reuters has reported that French criminal justice officials are now investigating the two security department employees regarding whom this anonymous source was and where the money went. The WSJ later reported that this employee, who has been in custody for a couple of weeks, has finally named this anonymous source.

Many US companies are worried about the impact of the Dodd-Frank Whistleblower provisions. However, a clear difference is that Dodd-Frank requires substantiated securities violation, as in an admission by a company, settlement agreement or judicial finding, for payment of any bounty rewards. In L’Affaire Renault, the company apparently paid a bounty to an unknown source, for unsubstantiated information, which did not result in any criminal finding or even a civil wrong. Whatever your company does DO NOT PAY BOUNTIES TO PERSONS UNKNOWN.

The moral of the fairy tale that started our piece and L’Affaire Renault is that your company needs to get it right. The costs for not doing so are simply too great.

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, 2011