Bristol Palin, Abstinence and the Compliance Defense

Today Bristol Palin informs the debate on the efficacy of a compliance defense to the Foreign Corrupt Practices Act (FCPA). A noted expert on many areas around ethical behavior and family values, Ms. Palin was credited by Mary Elizabeth Williams in a Salon article, entitled “Bristol Palin’s pregnancy announcement is her coming out”, as being the “world’s least successful spokesperson for abstinence” when she announced last week, that, for the second time, she was pregnant out of wedlock. Ms. Palin had previously been a spokesperson for the Candie’s Foundation on, you guessed it, prevention of unwanted pregnancy through abstinence. How does Ms. Palin’s announcement inform the debate on a compliance defense to the FCPA? Quite simply, much like abstinence, the compliance defense is not effective if you say you have one but only if you are doing compliance.

This rather sad fact that although both abstinence and a compliance defense are simple in concept but perhaps not easy to accomplish in the real world was further driven home last week in a Wall Street Journal (WSJ) article by Joel Schectman, entitled “Russian Uranium Probe Reaches Into Small-Town Ohio”, where he reported that “A widening U.S. bribery probe involving Russian uranium has reached from Moscow to a company in the heart of America’s Rust Belt. U.S. authorities are investigating whether an executive in Bremen, Ohio—a rural community with about 1,500 residents roughly 40 miles southeast of Columbus—bribed Russian energy officials to win his company millions of dollars in contracts to supply shipping containers for uranium, according to people familiar with the matter.”

The rather amazing thing about this report is not that bribery and corruption had occurred in the past century or even the past decade but that bribery is reported to have begun in 2011 by Westerman Company and continued at least through 2013 after the entity was acquired by Worthington Industries Inc. Indeed the article identifies the company executive “Barry Keller, a Bremen native who has spent more than three decades at Westerman, working his way up from the shop floor to senior management” as the person involved in paying the bribes. Further, it does not even appear that the bribery scheme itself was too sophisticated or unique. According to Schectman, it involved paying a Russian middleman who “arranged for the bribe payments to be channeled through a maze of secret accounts in Cyprus, Latvia and Switzerland, where they were collected by higher-ranking officials at Rosatom, Tenex’s parent.” The bribes were funded via “5% of a Westerman contract, and would be paid through a consulting invoice”.

Keller’s involvement brings up a key reason why I think having a compliance defense will not increase the doing of compliance. He was the head of the company and then head of the business unit. Is it really possible that a company that did business internationally, with a foreign state owned enterprise and was a US public company did not understand that it needed to have a FCPA compliance program in 2011? Even aside from the fact that the bribery is alleged to have begun when Westerman was an independent entity, did Worthington bother to perform any pre-acquisition due diligence in the FCPA arena when they purchased Westerman in 2012? If Worthington did bother to engage in any pre-acquisition due diligence prior to buying Westerman, how about when it integrated the newly acquired entity into its ongoing compliance program, trained Westerman employees and performed a full FCPA forensic audit of Westerman as surely it identified Westerman’s sales to “Tenex, part of state-owned Russian nuclear company Rosatom” as potentially high risk?

From Schectman’s article it does not appear that Worthington determined internally that there was any FCPA violation in its operations as he quotes the company’s General Counsel (GC), Dale Brinkman, for the following statement “We first learned of [the investigation] in November, and we are fully cooperating with the Justice Department.” That does not sound much like a company that has appropriate internal controls or keeps books and records in accordance with public accounting requirements under the FCPA. But as with abstinence, saying you engage in it is easy.

I think the lesson to be learned from the Worthington matter, and the clarion call for a compliance defense appended to the FCPA, is that adding a compliance defense to the FCPA will not increase compliance with the FCPA. Corporations take their lead from the top on their priorities. If there is not senior management desire to do business in compliance, it does not matter what the benefits of having a compliance defense bring. In 2015, if a company is doing business outside the US with foreign government officials or officials of state owned enterprises, someone in the business, i.e. their lawyers, their auditors or their Board of Directors, knows that they must do business in compliance with the FCPA. I would argue that it was just as well known in 2011 when Westerman Companies is alleged to have begun its bribery scheme. Having a compliance defense will not help drive compliance if the business owner, business leader or senior management is not committed to doing business in compliance with the FCPA.

For even if such a company does institute a compliance defense, it is the doing of compliance which makes a compliance program effective, not having a written program. A key is how a company incentivizes conduct. For doing compliance in any effective way, a company must commit time and resources to the effort. No ‘out of the box’ solution will allow a company to do compliance because the doing of compliance means dealing with an intersecting matrix of employees, technology and third parties. This means that there must be money spent on compliance. In addition to the resource issues, if the company bases its salary, compensation and benefits to employees solely or even largely on sales only; that is what will be emphasized in a company. If, however, there are incentives built into the compensation structure, it will emphasize the importance of the doing of compliance in the day-to-day work of a company.

Bristol Palin has announced she does not want to be ‘lectured’ about her current pregnancy. Maybe her unique intellect has allowed her some insight into the irony of her situation (or then again perhaps not). However she was right about one thing. If you want to ensure that you do not get pregnant, abstinence is about the best way to do so. But abstinence only works if you are doing abstinence, not simply saying you are abstinent. The same is true for adding a compliance defense to the FCPA. A compliance defense only works if you are doing compliance.

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, 2015

Ahab Captures the White Whale: ‘In the Public Interest’ Defense to FCPA Enforcement

It is an axiom in the trial lawyer world that bad facts make bad law. The reason is if the facts are particularly egregious, most judges and juries will go out of their way to try and see that justice is served if not done. An example might be from the arena of toxic torts where companies with de minimis involvement with asbestos and silicosis are dragged into multi-million dollar, seemingly never ending, lawsuits, bankruptcy cases and other proceedings that bear no resemblance to a company’s actual liability. (We will leave the greedy plaintiff lawyer debate for another day.)

But if you are one of those folks who believe that Foreign Corrupt Practices Act (FCPA) prosecutions are inherently unfair, there is a case across the pond where some very bad facts might do some good for you. The former editor of the UK newspaper, The Sun, Rebekah Brooks is on trial for, in part, authorizing the payments of bribes to UK government officials to obtain information used in news stories. As reported in the Wall Street Journal (WSJ) by Alexis Flynn, the article, entitled “Brooks Approved Payments to British Officials”, stated  “On the stand, Ms. Brooks, who edited News Corp’s Sun newspaper and its now-closed News of the World sister title, said the payments were made for good reasons, and done so on rare occasions and after careful consideration. “My view at the time was that there had to be an overwhelming public interest to justify payments in the very narrow circumstances of a public official being paid for information directly in line with their jobs,” said Ms. Brooks.”

For those of you keeping score at home, this was an admission by Ms. Brooks that ‘after careful consideration’ she violated the FCPA. But if you are the US Chamber of Commerce, other institutions or persons who believe there should be an affirmative defense to the FCPA, you should be jumping for joy about now as Ms. Brooks has articulated a new defense that you can graft upon. Let’s call it the ‘In the Public Interest’ defense. Clearly presaging the US National Football League (NFL) and its own scandal about bullying on the Miami Dolphins, Ms. Brooks stated in her testimony that it was ‘in the public interest’ to pay for information from UK military officials because it was “about the bullying of recruits at an army barracks.” I guess its too bad that she is no longer the editor of The Sun and on trial or she could pay bribes for the inside scoop on the Incognito/Martin/Dolphin bullying parties.

How might this new defense play out? The first point to note is that Ms. Brooks also apparently presaged the FCPA Guidance when she testified that she authorized bribery payments only after “careful consideration”. In other words, she thought through the process and decided that paying of bribes was merited. It is not clear from her testimony that she documented her decision making calculus but at least she properly recorded the payments as bribes because during its direct presentation, the prosecution had “already shown the jury what they said were records of payments made to military officials by the Sun during the period of Ms. Brooks’s editorship.” But, going further than the prosecution, her defense counsel, “Mr. Laidlaw read out loud extracts of the Sun articles that had resulted from payments to officials” thereby tying her decision to the payments made to the benefit obtained by the Sun for paying the bribes.” All rather brilliant wouldn’t you say? It’s the Dog Bite defense on steroids, I paid bribes but the world is a better place because I did so.

But, there was more as Ms. Brooks had a couple of other nuggets for those wanting an affirmative defense to the FCPA. In addition to being ‘in the public interest’ Ms. Brooks also said that were “good reasons”. While the WSJ article reported that the calculus of “careful consideration”; “information directly in line with their jobs” and “good reasons” were all tied together, some creative lawyering might disjoin them so that each of these factors alone might come to stand for a FCPA defense on its own. Just consider how far you could run with a defense to paying bribes where the bribes were paid with ‘good reason’.

Take that tacky part of the FCPA that talks about ‘obtaining or retaining business’. No longer a problem because the bribe was paid, not with the best intentions but with good reasons. All you have to do at trial is to show that your company made more money, your employees got to keep their jobs because you paid bribes to get that multi-million dollar contract or even perhaps that poor down-trodden government official in [name the country] was able to put food on his table for his impoverished family all because you stood up and paid a bribe. You might even claim that it was “the American thing to do” so that you could patriotically wrap your defense in the flag.

But for those Ahabs out there still chasing the white whale of the ultimate FCPA defense consider the final factor that Ms. Brooks articulated, “a public official being paid for information directly in line with their jobs.” With one fell swoop, you could complete eviscerate all FCPA prosecution if you only paid bribes to those who can help you directly in line with their jobs. Except for the Darwin Award winners out there who would pay bribes for government officials not directly in line with their jobs, it would certainly seem that you might have captured the great white whale himself with this prong.

However these are mere speculations about what the In the Public Interest defense would really look like in an American court. So for those of you who want to pay bribes and violate the FCPA, you should probably start with the following components (1) careful consideration; (2) good reasons; and (3) payments directly in line with the foreign government officials job. Lastly, for those persons who actually use this defense I do have some very good advice – get fitted for an orange jump suit, you are going to be wearing one for a very long time.

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

May You Get What You Want: The Curse of the FCPA Compliance Defense

Ed. Note – this week, I am pleased to join my colleagues David Simon, partner at Foley & Lardner LLP, and William ‘Bill’ C. Athanas, partner at Waller Lansden Dortch & Davis, LLP, in a tripartite debate on the efficacy of the affirmative defense of a compliance program to the Foreign Corrupt Practices Act (FCPA). Previously, I presented my views, from the perspective of a former in-house counsel, on why a compliance defense would not help to create greater compliance with the FCPA. Yesterday, Simon discussed his views, from the perspective a white collar defense practitioner, on why a compliance defense under the FCPA would foster greater compliance with the Act. In the concluding post today, Athanas presents his views as a former Department of Justice (DOJ) prosecutor. I hope that you have enjoyed our debate.

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Watching the FCPA compliance defense debate from the sidelines over the past couple of years, I usually find myself agreeing with whomever I read last.  David Simon, Professor Kohler, and Chamber of Commerce’s position paper, Restoring Balance, all lay out compelling arguments in favor of a compliance defense, and Tom Fox, Howard Sklar and the Justice Department are equally persuasive in opposition.  If nothing else, I appreciate the opportunity to take part in this exercise because it forces me finally to stake out and defend a position on the issue.

In doing so, I have tried to consider the well-reasoned policy arguments for and against that have been made by others (particularly David and Tom’s articles), and re-examine them from a purely pragmatic standpoint.  Ultimately, I find that I concur in the view that enacting a compliance defense is unnecessary because: a) such evidence is already factored into the enforcement decision-making calculus, and b) the notion of enabling corporations to raise a defense at trials that will never occur is essentially meaningless.  But I do not oppose a compliance defense simply because I conclude that is has no utility.  Rather, my opposition to that defense stems from the belief that its enactment would actually cause harm to those companies who take seriously the FCPA’s obligations and endeavor to ensure compliance with its mandates, making it more difficult for them to operate in this enforcement environment.

I do not wish to rehash the points Tom makes so effectively, but I would like to add a comment or two on arguments often advanced by compliance defense supporters.  For example, the claim that a compliance defense is necessary to counterbalance the unfairness of enforcement actions premised on a “rogue employee” theory.  While few would dispute the injustice of isolated instances of misconduct carried out by a rogue employee in contravention of consistently expressed mandates serving as the basis for huge fines and collateral consequences imposed on otherwise well-intentioned corporate citizens, noting those concerns in the abstract falls short, in my view, without evidence that “rogue employee” enforcement actions are actually being pursued on a widespread – or even limited – basis.  In other words, before I can conclude that the FCPA enforcement model needs to be fixed, I need to see evidence that it is broken.

I do not see that evidence.  It may be that there are instances where otherwise marginal cases premised on discrete, quarantined conduct have been (or are being) pursued via enforcement action, and where a compliance defense, if it existed, would have prevented an unjust result.  But absent examples of such, I ground my opinion in my own experiences.  I am not foreclosing the possibility that a prosecutor might blithely disregard the existence of a suitably robust compliance program in order to advance a less than meritorious FCPA enforcement action knowing that the target company would be forced to settle rather fight, but I do not see evidence that is occurring.

Nor am I moved by arguments that the lack of a compliance defense means that even those companies who install and maintain the most effective programs remain at the unchecked mercy of FCPA enforcement authorities.  David’s article makes this point by linking to an FCPA Professor post from September 1, 2011, which notes the apparent incongruity of Oracle – then recognized as one of the “World’s Most Ethical Companies” by Ethisphere – being scrutinized for FCPA violations.  In the post, Professor Koehler lists a number of other companies on that list who resolved FCPA actions or faced FCPA scrutiny, and concludes that this counterintuitive result highlights the need to revisit the compliance defense question.  But the major premise of the post – that Oracle had as sound and thorough a compliance program in place as could reasonably expected – is belied by the results of the inquiry.  While the nature and scope of Oracle’s issue were not known publicly at the time of the initial post, the SEC’s enforcement action announced August 16, 2012 revealed that it stemmed from Oracle’s failure to prevent a subsidiary from “secretly setting aside [$2.2 million] off the company’s books that was eventually used to make unauthorized payments to phony vendors in India.”  With all due respect to Ethisphere’s evaluative process, this outcome seems to suggest that while Oracle may well have gone to significant lengths in its FCPA compliance efforts, it clearly did not do enough.  I would submit that the question implicit in Professor Koehler’s post – “doesn’t something need to be done when even having a top flight compliance program is not enough to protect companies from FCPA enforcement actions?” – needs to be reformulated to ask, “can a compliance program really be deemed top flight when violations with the dimensions of Oracle’s FCPA issue are occurring?”

I do not mean to cast aspersions.  Although I am not concerned that the threat of a future epidemic of prosecutorial recklessness is so great that a compliance defense must be enacted, I appreciate that installing such a defense may serve to help level an otherwise uneven playing field.  While I believe few prosecutors set out to bring marginal cases simply because they recognize that the disparity of negotiating leverage may enable them to do so, I also understand that providing enforcement targets useful tools to defend actions can serve a vital purpose.  Even for those prosecutors who are motivated by the best of intentions, it can be difficult to write a declination memo and walk away from a case empty handed, particularly after conducting a lengthy investigation which reveals violations.  The thought of taking no action after investing years’ worth of prosecutorial and investigative resources is an unpleasant one for many if not most prosecutors, especially when there is a belief that the company bears some culpability for the violations which occurred.  While the existence of a compliance defense might deter a prosecutor pursing a weak case – by providing a clearly established legal means for the company to secure an acquittal where one might not otherwise have existed – I do not see this as a determinative factor.  I believe there are already adequate safeguards that operate as a check against marginal cases moving forward, including internally at the Department.  The process of getting indictments approved did not include any rubber stamps when I was at the Fraud Section, and I doubt very much that it has gotten easier over time.

Enough about why I do not support a compliance defense.  Here is why I oppose it:  while I am hard pressed to see the practical benefits of a compliance defense in the current environment, it is not at all difficult for me to envision the likely downside if one is enacted.  I believe the current FCPA enforcement model, in both theory and practice, reflects the government’s desire to identify a company’s genuine commitment to FCPA compliance.  Those companies able to identify tangible evidence of sincere dedication to addressing FCPA issues are well positioned to largely, if not completely, avoid the harsh consequences that might otherwise result, while those unable to do so are left to try to defend their inaction in a setting where hindsight rules the day.

While any model which relies on measuring sincerity will necessarily carry some degree of uncertainty, by most accounts, the system works.   I recognize that a statement of that type will likely bring howls of derision (or maybe worse) from some, but on the whole I believe the evidence supports my conclusion.  Have there been FCPA cases that should not have been pursued?  I am certain that is the case.  But as the saying goes, the plural is anecdote is not data.  Absent proof that the government holds companies to an unattainable standard and then punishes them when they cannot adhere to it, I am unwilling make that assumption.

By contrast, we know for a fact that the government routinely declines FCPA cases.  The Morgan Stanley declination is the highest profile example of an effective compliance program providing shelter from an FCPA enforcement action, but there can be no real doubt that countless other examples exist.  As Tom notes in his article, the recently issued Guidance listed a number of additional declinations based, at least in significant part, on the presence of suitably robust compliance defenses.  We also know – based on those companies who have reported receiving declinations, as well as the numerical disparity between the number of investigations disclosed and enforcement actions ultimately pursued – that many other declinations have occurred.  To be sure, these declinations can occur for a multitude of different reasons: including weak or no evidence of an underlying violation and lack of investigative or prosecutorial resources.  But the most common reason is the existence of a suitably sound compliance program which evidences a genuine commitment to preventing violations.

My concern is that a formalized compliance defense threatens to throw off that equilibrium, in both substance and application.  The certainty which comes with the formal enactment of a compliance defense bestows little benefit on companies if those clearly defined obligations are set so high as to render them virtually unattainable.  I had no difficulty foreseeing that the legislative compromise necessary to secure enactment of a compliance defense will necessitate that be narrow and difficult to invoke.  Moreover, companies can be sure that prosecutors who have seen their discretionary authority drastically reduced – if not entirely eliminated – will be exacting in their interpretation of whether the defense is meritorious when undertaking the enforcement decision making process.  As a result, if those who are fighting so hard for inclusion of an FCPA compliance defense are successful, they are likely to find that they much preferred the devil they knew – the de facto compliance defense already in existence and litigated over in Justice Department conference rooms – to the one they didn’t.

One final point: compliance defense supporters often tout the inclusion of a compliance defense in the UK Bribery Act and the Italian anti-corruption statute, both of which were enacted relatively recently.  Is there any evidence to suggest that the inclusion of the defense in those statutes has created a better system of enforcement in those jurisdictions?  If so, how?  If not, what is the significance to this debate of the inclusion of the defense in those statutes?  Those are not rhetorical questions – I think the answers might shed light on this debate, and I hope that some of Tom’s readers practicing in those jurisdictions will enlighten us on those issues.

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Bill Athanas can be reached via email at wcathanas@wallerlaw.com.

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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.

Jon Jordan Renews the Call for a Compliance Defense to the FCPA

Yesterday I witnessed true greatness. In the final at Wimbledon, Roger Federer won his record seventh singles title, equaling Pete Sampras and William Renshaw for this  number of titles. He did this while beating Andy Murray, a Scot who the entire United Kingdom had embraced as its own throughout the Tournament and especially in the finals. So congratulations Roger, you certainly wear it well.

We recently saw the entry of a new voice for the addition of a compliance defense as an amendment to the Foreign Corrupt Practices Act (FCPA). This voice was Jon Jordan, Senior Investigations Counsel with the US Securities and Exchange Commission’s (SEC) FCPA Unit, a national unit within the SEC specializing exclusively on FCPA and foreign bribery matters. Jon’s ideas appeared in a law review article, entitled “The Adequate Procedures Defense Under the UK Bribery Act: A British Idea for the Foreign Corrupt Practices Act” found in Volume 17, No. 1, Fall 2011 edition of the Stanford Journal of Law, Business & Finance.

Jon had previously published two other law review commentaries on the FCPA, one on facilitation payments, found in the University Of Pennsylvania Journal of Business Law, and a second on trends towards greater accountability in the international fight against bribery under the FCPA and UK Bribery Act, published in the New York University Journal of Law and Business. I reviewed his article on facilitation payments in a prior post, entitled “The End is Nigh for Facilitation Payments – Get Ahead of the Breeze”. Recognizing that although Jordan works for the SEC, the Commission has disclaimed any and all responsibility for the statements made in the articles by Jordan. The views expressed in Jordan’s articles are those of himself and do not necessarily reflect the views of the SEC, the SEC’s FCPA Unit, or any of his other colleagues on the staff of the SEC.

Jordan’s thesis is that the US should adopt a compliance procedures defense similar to the Adequate Procedures defense available to UK entities under the UK Bribery Act. He argues that such a defense would be a good policy for companies who are seeking to do the right thing by instituting a minimum best practices compliance program from the ravages of a rogue employee who violates the FCPA. Such a compliance program should consist of minimum best practices which Jordan articulates but can be specified by “relevant government authorities, including the United States Department of Justice (DOJ).”

Prior to articulating his thoughts on what should constitute a compliance program which would be acceptable to the DOJ, Jordan sets out three requirements for such a defense to be considered. First is that a company must establish that it had an adequate compliance procedures program in place during the time of the violative conduct. Second is that a company must establish that it has satisfactorily implemented an adequate compliance procedures program because, as Jordan correctly notes, “adequate compliance procedures are useless without proper implementation.” Jordan suggests that this could be done in a couple of different ways; through a senior officer’s certification or through document, document and document the implementation and execution of the company’s compliance program. The third and final prong is that the company did not know or should not have known about the violative conduct at issue. This would mean that there was no corporate knowledge of the relevant conduct “rising to the headquarters or senior management level” nor were there any ‘red flags or other warning signs that should have alerted them to the wrongful conduct.”

Jordan lists the components of what he believes are the minimum requirements of an adequate compliance program. He includes 11 elements in his plan. They will not be new or unusual for the compliance practitioner as he has drawn them from FCPA enforcement actions, DOJ Opinion Releases and the UK Ministry of Justice’s Six Principles of Adequate Procedures. They are as follows.

1. A clearly articulated policy against the violations of the FCPA and other relevant non-US anti-bribery and anti-corruption laws.
2. The compliance procedures should apply to all officers, directors, employees and outside parties acting on behalf of the company.
3. Senior corporate officials should be assigned for the implementation and oversight of the compliance program.
4. The compliance program must be effectively communicated to all officers, directors, employees and outside parties acting on behalf of the company.
5. There should be a system in place so that all officers, directors, employees and outside parties acting on behalf of the company can report violations of anti-corruption laws without fear of retribution.
6. There should be appropriate disciplinary procedures in place to address violations of anti-corruption laws.
7. There should be appropriate due diligence and oversight of all agents, business partners, third parties and any other outside parties acting on behalf of the company.
8. There should be appropriate compliance terms and conditions in all contracts with agents, business partners, third parties and any other outside parties acting on behalf of the company, including a certification of compliance with anti-corruption laws.
9. The compliance procedures should be developed on the basis of a risk assessment.
10. There should be periodic testing and review of the company’s compliance procedures.
11. There should be financial and accounting procedures, including internal controls, designed to ensure maintenance of accurate books and records.

I found Jordan’s article very interesting and certainly a welcomed new addition to the debate regarding amending the FCPA to add a compliance defense. It is also very interesting the SEC would allow an employee, even acting on his own, to publish such a paper, given the DOJ’s vehemence in resisting this change. So kudos to Jon Jordan and a big congratulations shout out to Roger Federer.

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