Shareholder LawsuitYesterday I wrote about what may well be the next great bribery and corruption scandal across the globe involving the Venezuelan state oil company Petroleos de Venezuela SA (PDVSA). However, the current largest corruption scandal, involving the Brazilian energy behemoth Petrobras, is still alive and kicking. Just as PDVSA may involve corruption at the highest reaches of the company, it may well turn out to have been the same at Petrobras, with executives and even directors using the company as a cash withdrawal machine for their personal benefit.

The investor class has taken it on the chin in recent shareholder actions for companies embroiled in claims based upon the Foreign Corrupt Practices Act (FCPA). Recently shareholders from both Wynn Resorts and Wal-Mart had their appeals from the trial courts’ dismissal of their underlying lawsuits denied by two separate Courts of Appeal. Generally speaking, it is difficult to reach a Board of Directors because rarely does evidence of bribery and corruption reach the Board level. Indeed, as the Wal-Mart plaintiffs found out, it is usually most difficult to even make sufficient allegations, which will pass procedural muster.

However, there is one upcoming shareholder case that may change these dynamics. It is the shareholder action in the federal court for the Southern District of New York against Petrobras and is being heard by Judge Jed Rakoff. Trial is set for the case on September 19, 2016 and is expected to last for up to eight weeks. According to an article in Forbes.com by Kenneth Rapoza, entitled “Brazil’s Petrobras Trial Date Set, As U.S. Pension Funds Seek ‘Tens of Billions’ In Losses”, the plaintiffs claim “that Petrobras also violated its own Code of Ethics, as its employees and executives were routinely accepting bribes from certain construction companies.” The Complaint goes on to allege that “Petrobras’ own internal controls over financial reporting were ineffective, according to Pomerantz’s [lead plaintiffs’ counsel] claim, and as a result Petrobras’ public statements were materially false and misleading “at all relevant times.””

Things are so bad for Petrobras that the plaintiffs have filed a Motion of Partial Summary Judgment (MSJ) on liability before Judge Rakoff, alleging that there is no dispute the company was involved in bribery and corruption. Joe Leahy, writing in a Financial Times (FT) article entitled “Scandal-hit Petrobras reels as corruption claims persist”, quoted the plaintiffs’ counsel Jeremy Lieberman that “The only issue to go to trial would be the level of damages.” In its MSJ, the plaintiffs’ said, “Petrobras raised tens of billions of dollars from investors during the class period under the pretence that it would be used to improve the company, but instead knowingly doled out the money to insiders and politicians.”

Typically the problem is that, as in the Wynn Resorts matter, there is no evidence that the Board was involved in bribery or corruption or as in the Wal-Mart case, the plaintiffs are denied discovery that would even allow them to make the requisite allegations of illegal actions. However, in the Petrobras case, Brazilian prosecutors have done most of the spadework needed to get the plaintiffs’ past the defense procedural motions to dismiss and at trail before a judge and jury.

Leahy reported that Brazilian prosecutors have alleged that corrupt former Petrobras Directors were recipients of bribes and directed monies away from the company for illegal purposes. He wrote, “Prosecutors claim Paulo Ferreira, a former treasurer of Brazil’s erstwhile ruling Workers’ party, took money originally destined for a research and development centre for Petrobras’s ultra-deepwater oilfields and used it to pay a samba queen a monthly stipend.” Spelling it out in greater detail, in a Brazilian filing outlining Ferreira’s arrest, “At the request of Paulo Ferreira, there were made diverse payments to the non-governmental organisation Sociedade Recreativa e Beneficente Estado Maior da Restinga, a samba school, and people linked to it, such as Viviane Rodrigues da Silva, the battery queen”.

These allegations by Brazilian prosecutors lend weight to the plaintiffs’ claims that “Petrobras raised tens of billions of dollars from investors during the class period under the pretence that it would be used to improve the company, but instead knowingly doled out the money to insiders and politicians.” If these actions were engaged in at the corporate Director or Board level, it could certainly portend a different result than in Wal-Mart or the Wynn Resorts matters.

Reuters had previously reported that, in a huge victory for the plaintiffs, Judge Rakoff had granted class action status for the litigation. In an article entitled “Brazil’s Petrobras must face U.S. group lawsuits over corruption: judge”, Jonathan Stempel and Nate Raymond reported that the Judge certified two classes of plaintiffs, saying their claims are similar enough to be pursued as groups. One class bought various Petrobras securities from January 2010 to July 2015 and will be led by Universities Superannuation Scheme of Liverpool, England. The other bought debt securities from offerings in 2013 and 2014, and will be led by North Carolina’s treasurer and the Employees’ Retirement System of Hawaii. In his written decision, Judge Rakoff said, “Petrobras was a massive company with investors around the globe. Notwithstanding Petrobras’s size and its numerous and far-flung investors, the interests of the class members are aligned and the same alleged misconduct underlies their claims.”

Obviously the most straight-forward difference between the Petrobras matter and the Wynn Resorts and Wal-Mart cases is that the latter two were not alleged to have taken bribes but were sued for their failure to stop alleged bribery and corruption. At Petrobras, there is no disputing that senior executives received bribe payments to award contracts. Petrobras has tried to claim that it is a victim in the entire corruption scandal. The FT piece cited to Petrobras Chief Executive Pedro Parente, who said “last month the company was a victim of fraud, estimated to have cost it about $2.5bn in losses directly related to corruption.” However if the corruption reaches above the senior executive level and up to the Director level, it may be the company was a fraud closer akin to Enron and WorldCom.

Leahy ended his piece with the following, “In the meantime, with the Petrobras investigations continuing, investors will be left wondering what new surprises they might uncover about what past directors were doing with the company’s money.” Indeed.

 

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, 2016

Red FlagsAs the Petrobras corruption scandal seems to be going strong, we turn our attention to what may be the most corrupt of all the national energy companies, the Venezuelan state oil company Petroleos de Venezuela SA (PDVSA). Business Insider ran a Reuters article, entitled “Red Flags everywhere: A sweetheart deal in Venezuela has gone too far”, by Alexandra Ulmer and Girish Gupta.

The crux of the piece was that a $4.5bn contract to develop over 600 producing wells was awarded to a little known Colombian trucking and trading firm which had no experience in oil and gas development. The company was called Trenaco and was headquartered in Switzerland (no doubt for tax purposes). Even more amazingly Trenaco was so certain that it would win the open, public bidding process that it began hiring staff and purchasing the necessary equipment some six months before the contract was even publicly tendered.

However, the clearly corrupt deal was squelched “In an unprecedented rebellion” by the foreign services companies, such as Halliburton, Weatherford and Schlumberger, “which would have had to work with Trenaco as PDVSA’s joint venture partners” and who “protested that the company was vastly underqualified and undercapitalized”. The same companies also “feared that getting involved in a massive public project anchored by a small and obscure contractor would expose themselves to regulatory scrutiny back home.” There were red flags everywhere, “said one foreign joint venture partner in Caracas.”

The article noted what has been long known in the international energy industry, that PDVSA is one of the most corrupt national energy companies around, “Reuters reviewed company documents and interviewed dozens of foreign and local oil executives, current and former PDVSA employees, union leaders, lawyers and politicians. The sources described a culture of corruption that ranges from the trivial – giving a gift to a secretary to land a meeting with a top PDVSA executive – to the systemic, such as funneling kickbacks in return for large contracts.”

This report is yet one more example of the Foreign Corrupt Practices Act (FCPA) issues that have arisen for companies doing business with PDVSA. In October 2015 both the Wall Street Journal (WSJ) and New York Times (NYT) ran articles that focused on the US government’s investigation into the corrupt goings on of PDVSA and its senior management. The WSJ article, by José De Córdoba and Juan Forero, was entitled “U.S. Investigates Venezuelan Oil Giant”, and the NYT article, by William Neuman, was entitled “U.S. Graft Inquiries Turn to Venezuelan Oil Industry”. Interestingly, the articles focused on different aspects of the investigation but both articles together send a very strong message to the Chief Compliance Officer (CCO) or compliance practitioner who might have business with PDVSA or even with the Venezuelan government or other state owned enterprise in the country.

The WSJ article focused on the conduct of Rafael Ramírez, the former President of PDVSA, and that of his cousin Diego Salazar in facilitating a worldwide and decade long scheme to have companies do business with PDVSA. Ramírez is now the Venezuelan ambassador to the United Nations (UN) and did not comment on the article.

The WSJ article reported that “directors of one of Spain’s leading construction companies were delighted to land an appointment with Rafael Ramírez”, but when they arrived they were met by Salazar. The article stated, “Mr. Salazar got right to the point, they say: The Spaniards would have to pay at least $150 million in kickbacks to be in the running. “If not,” Mr. Salazar told the businessmen, according to one person, “you should return to the airport.”” This and other conduct led the US government to launch “a series of wide-ranging investigations into whether Venezuela’s leaders used PDVSA to loot billions of dollars from the country through kickbacks and other schemes, say people familiar with the matter. The probes, carried out by federal law enforcement in multiple jurisdictions around the U.S., are also attempting to determine whether PDVSA and its foreign bank accounts were used for other illegal purposes, including black-market currency schemes and laundering drug money, these people say.”

To demonstrate how corrupt PDVSA is alleged to have become and how pervasively the bribery was instilled in the DNA of the company, the article said, “A former official from an Asian oil services company says he routinely paid hundreds of dollars in cash in recent years or provided gifts like watches just to secure meetings with midlevel PDVSA officials.” When you have to give a Rolex as a gratuity just to get a meeting, you are dealing with one corrupt institution. Corruption in the company was so systemic that “The result was that up to $3 billion of the $15 billion in services and equipment that PDVSA contracted for annually represented overcharges that flowed back to top company executives, government officials and businessmen as kickbacks, say people knowledgeable about the alleged crimes.”

The NYT article focused on the US government investigation of PDVSA as part of a worldwide investigation into illegal drug trade and money laundering. The article reported that the investigation gained speed in March when US Treasury Department officials accused a bank in the small European country of Andorra as a conduit for the money laundering schemes of PDVSA as well as organized crime groups. Government sources reported that more than $4bn in corrupt funds passed through the Andorran bank as a part of the bribery schemes. The article also said, “the money launderers used shell companies, fake contracts, mischaracterized loans and over-invoiced imports and exports to camouflage their actions.”

Rather amazingly not only did some of this money have a US nexus but the NYT article reported on a US based hedge fund which “paid at least $30MM in bribes to PDVSA officials to steer at least $100MM in pension money into his hedge fund and to give him access to profitable bond and currency transactions from 2006 to 2010.” Moreover, there is another direct US connection to PDVSA. It owns the US entity Citgo. Neither article mentioned the US Company and there is no evidence at this point that Citgo is under investigation. However this US situs for Citgo could well provide an additional basis for US based conduct.

Of course there was also the indictments and guilty pleas here in Houston of two individuals for FCPA violations around their corrupt dealings with PDVSA. According the a Department of Justice (DOJ) Press Release, in March 2016 Abraham Jose Shiera Bastidas (Shiera) pled guilty to violating the FCPA and in June 2016 Roberto Enrique Rincon Fernandez (Rincon) pled guilty to one count of conspiracy to violate the FCPA. Both men “worked together to submit bids to provide equipment and services to PDVSA through their various companies. Rincon admitted that beginning in 2009, he [Rincon] and Shiera agreed to pay bribes and other things of value to PDVSA purchasing analysts to ensure that his and Shiera’s companies were placed on PDVSA bidding panels, which enabled the companies to win lucrative energy contracts with PDVSA. Rincon also admitted to making bribe payments to other PDVSA officials in order to ensure that his companies were placed on PDVSA-approved vendor lists and given payment priority so that they would get paid ahead of other PDVSA vendors with outstanding invoices.” The Press Release also stated, “Rincon is the sixth individual to plead guilty as part of a larger, ongoing investigation by the U.S. government into bribery at PDVSA.”

If you are the CCO of a US company that did business with PDVSA or Citgo over the past 10 years or so; now might be a very propitious time to review all of your business dealings with those entities.

 

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, 2016

ObservationsYesterday I reviewed the underlying facts of the long running Foreign Corrupt Practice Act (FCPA) matter involving the LATAM Airlines Group S.A. (LATAM). The resolution involved criminal charges detailed in an Information resolved via a Deferred Prosecution Agreement (DPA), and a civil settlement with the Securities and Exchange Commission (SEC), resolved through a Cease and Desist Order (Order) outlining the civil violations, which named LATAM’s predecessor-in-interest is LAN Airlines S.A. (LAN) as the respondent party.

The cost to LATAM was not insignificant. As noted in the Department of Justice (DOJ) Press Release, “As part of the DPA, LATAM agreed to pay a $12.75 million criminal penalty” and under the civil settlement with the SEC the company “agreed to pay $6.74 million in disgorgement and $2.7 million in prejudgment interest. Thus, the company paid approximately $22.2 million in combined penalty, disgorgement”.

This week’s settlements bookends the civil settlement with current LATAM President Ignacio Cueto, reached in February 2016. Under the SEC Cease and Desist Order (Cueto Order), Cueto agreed to a civil penalty of $75,000 for both approving an Argentinian official to act as a consultant for the company and approving a payment of $1.15MM to this consultant understanding, at the time, “that it was possible the consultant would pass on some portion of the $1.15 million to union officials in Argentina.” In addition to the aforementioned fine, he agreed to receive anti-corruption training for senior executives of the company.

The company clearly did not take compliance very seriously at the time of the incidents giving rise to this enforcement action, nor did it apparently take seriously any potential FCPA liability. As noted in the DOJ Press Release, “LATAM did not voluntarily disclose the FCPA violations,” and in not self-disclosing compromised certain evidence in the matter. During the pendency of the investigation, they “did not, however, remediate adequately. LATAM failed to discipline in any way the employees responsible for the criminal conduct, including at least one high-level company executive [Cueto listed above], and thus the ability of the compliance program to be effective in practice is compromised.”

At some point the company did see the light and began to “cooperate with the department’s investigation after the press in Argentina uncovered and reported the conduct approximately four years after it had occurred. After LATAM began cooperating, it did so fully and provided all relevant facts known to it, including about individuals involved in the misconduct.” In the DPA, it reflected this lack of cooperation in the paucity of discounting factors, which “As a result, the company paid a penalty within the U.S. Sentencing Guidelines range instead of receiving a discount off the bottom of the range.”

The DOJ clearly did not credit the company for its recalcitrant conduct before and during the investigation. However, as laid out in the DPA, the fine range was $10.2 to $20.4 so the company did obtain a DOJ fine in the lower range of the Sentencing Guidelines. The clear message, yet again from the DOJ, is that the conduct of a company can, will and does lead to receiving credit and such credit can lead to a lower fine or, in the cases of Johnson Controls, Inc., Akamai Technology, Inc., and Nortek Corporation, declinations to prosecute.

I think a couple of other observations are in order for this matter. First in this matter is that the foreign official was paid some amount of money for fraudulent services. The Consultant, a government official at the relevant times, was given money to pay a bribe. From the Cueto Order, it appears the Consultant may well have kept some portion of the $1.15MM destined to bribe the Argentinian labor union officials. How much this Consultant kept and would have constituted his bribe has not been reported.

There is also something else about this case that makes it most interesting and may well portend a new direction of FCPA enforcement. This is one of the rare cases of an agreed criminal charge of the Accounting Provisions of the FCPA. The FCPA itself specifies that violations of the Accounting Provisions become criminal matters under two conditions, found under 15 U.S.C. § 78m [Section 13 of the Securities Exchange Act of 1934].

(4) No criminal liability shall be imposed for failing to comply with the requirements of paragraph (2) of this subsection except as pro­vided in paragraph (5) of this subsection.

(5) No person shall knowingly circumvent or knowingly fail to imple­ment a system of internal accounting controls or knowingly falsify any book, record, or account described in paragraph (2).

 There is nothing in this language which ties it to the foreign official requirement found in sections detailing prohibited practices by issuers (15 U.S.C. § 78dd-1) or domestic concerns (15 U.S.C. § 78dd-2). This might mean that a company, which engages in private or commercial bribery and tried to disguise it through falsification of books and records as the senior management of LATAM did, could be prosecuted for a FCPA violation. So the next time bribes are paid to a union official, but this time not using a foreign government representative to facilitate the bribe payment and does not record the bribe as a bribe, a criminal FCPA violation could result.

Finally, what happens under the FCPA if the SEC changes its definition of issuer to include a class of private companies or even all private companies? Does this sound far-fetched? Consider the Keynote Address at the SEC-Rock Center on Corporate Governance Silicon Valley Initiative by SEC Chairperson Mary Jo White, on March 16, 2016. In this speech White addressed concerns about the disclosures by certain Silicon Valley companies in the pre-IPO stages of fund raising. At this point the SEC is more concerned about the multi-billion dollar unicorns and the information they release to the capital market in capital raising exercises. Yet, if the SEC somehow begins to apply issuer requirements to these private companies for the purposes of access to capital markets, it does not seem to me to be too much of a stretch to move that logic to the FCPA, particularly if the SEC follows this logic of the protection of investors, as laid out by White in her speech.

Fortunately we are not at that bridge as yet. However, the LATAM/LAN enforcement action is instructive for the compliance practitioner. Once again, the DOJ has demonstrated the benefits a company will receive by self-disclosure. One only has to compare this matter with the first four cases resolved after the initiation of the Pilot Program to see the benefits of meeting the four prongs of the Pilot Program. The message could not be clearer.

 

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, 2016

Questions 2What is the cost of a Foreign Corrupt Practices Act (FCPA) violation? One subset of that question is what is the cost of not cooperating and not remediating during the pendency of such investigations? Those were two of the questions, which seemed to permeate the resolution of the long running FCPA matter involving the LATAM Airlines Group S.A. (LATAM). The settlement documents released included an Information, detailing the criminal charges; a Deferred Prosecution Agreement (DPA), and a Securities and Exchange Commission (SEC) Cease and Desist Order (Order) outlining the civil violations. LATAM’s predecessor-in-interest is LAN Airlines S.A. (LAN). Today I want to look at the underlying facts and disposition and tomorrow I will consider some of the lessons learned.

Yet before we get to any of these facts, the question which I was asked the most about this case was who was the foreign official bribed in this matter? I have read the Information outlining the criminal conduct and the criminal charges brought; the DPA, the Department of Justice (DOJ) Press Release and the SEC Order outlining the civil violations involved. The bribe payments were made by a LAN Consultant, who was an Argentine government official, to labor union officials in Argentina to secure labor peace for the airline. This person was only identified as “Consultant” in the Information and was further identified in the Order as “a Cabinet Advisor in the Ministry of Federal Planning, Public Investment and Services, Department of Transportation. On January 31, 2005, the Secretary of Transportation appointed the consultant as a Cabinet Advisor “ad-honorem” pursuant to an unpublished Resolution.” This Consultant, a foreign government official under the facts of this case, who made $1.15MM in corrupt payments to Argentinian labor unions.

The bribery scheme was a fairly standard, uninspired scheme in comparison to some of the schemes we have recently seen in FCPA enforcement actions. The pedestrian bribery program was probably due to the fact there was no need to hide it from senior management as it involved, according to the Information, a “LAN Executive” who was a “high-level executive at LAN.” (LAN was the predecessor of LATAM). This LAN Executive “LAN negotiated and executed a fictitious $1.15 million consulting agreement with Consultant, through a company he owned and operated, in order to funnel bribes to labor union officials.”

Of course the agreement was never signed by the corrupt LAN Executive, nor were any of the terms and conditions of the Consultant’s services ever delivered. Indeed, it was this LAN Executive who instructed the company’s Chief Financial Officer (CFO) to make the corrupt payments. In short, the contract was a sham from the start and was simply used to funnel money to the Consultant to pay bribes to labor union officials to keep the peace. Another LAN subsidiary was created to make the corrupt payments and even then, the payments made to the Consultant were to his bank account in the US. The relevant time period of the bribe payments was 2006-2007.

While LAN may not have been a completely corrupt organization, about the best thing one can say about it is that it had no commitment to compliance. They did not have any person tasked with heading the compliance function until at least 2008. It was not until 2013 that LATAM adopted a Code of Conduct, which included anti-corruption provisions. Finally, it was not until 2014 that the company even bothered to implement a new compliance program that included, according to the Order, “an Anti-Corruption Guide, a Gifts, Travel, Hospitality and Entertainment Policy, an Escalation Policy, and Procurement and Payment policies.”

This is one of the rare FCPA enforcement actions where a criminal violation of the Accounting Provisions is found. There were violations of both the Books and Records and Internal Controls Provisions. Regarding the Books and Records Provisions, the Information stated that LATAM did “knowingly and willfully falsified and caused to be falsified its books, records, and accounts and did not, in reasonable detail, accurately and fairly reflect its transactions and dispositions, to wit: the defendant knowingly falsified records relating to the retention and nature of services of, and payments to, Consultant in order to conceal the true purpose of retaining Consultant”.

Regarding the Internal Controls Provisions, the Information stated, “During the relevant period, LAN knowingly and willfully failed to implement a sufficient system of internal accounting controls. In particular and as relevant here, LAN had deficient internal accounting controls that did not require, among other things, (a) due diligence for the retention of third party consultants; (b) a fully executed contract with a third party before payment could be made to it; (c) invoices issued to the LAN entity that in fact engaged the third party; (d) documentation or other proof that services had been rendered by a third party before payment could be made to it; (e) that payment to third parties retained by LAN or LAN entities be made to bank accounts held in the names of those third parties; or (f) oversight of the payment process to ensure that payments were made pursuant to appropriate controls, including those described above.”

In addition to the conduct detailed above, LAN did not self-disclose the FCPA violations to the DOJ and did not cooperate with the DOJ and SEC until some point later in the investigation. LATAM paid a stiff amount for its recalcitrance. As was stated in the DOJ Press Release, “LATAM agreed to pay a $12.75 million criminal penalty, continue to cooperate with the department’s investigation, enhance its compliance program and retain an independent corporate compliance monitor for a term of at least 27 months.” The company also paid a hefty SEC penalty, “it agreed to pay $6.74 million in disgorgement and $2.7 million in prejudgment interest.” The total amount was $22.2MM in fines and penalties.

Finally, as was stated in several places in the resolution documents and citing to the DOJ Press Release, “LATAM failed to discipline in any way the employees responsible for the criminal conduct, including at least one high-level company executive, and thus the ability of the compliance program to be effective in practice is compromised.” All of this means the individual referred to as “LAN Executive” is still in the company and most probably still an executive.

This enforcement action also saw the re-emergence of the requirement for a Corporate Monitor. The period of the monitorship was listed at 27 months and is charged with evaluating the effectiveness of the company’s new compliance program and compliance with the FCPA. The Monitor is also mandated to assess the Board of Directors’ and senior management’s commitment to the corporate compliance program.

 

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, 2016