How it worksWhat is satisfactory due diligence under the Foreign Corrupt Practices Act (FCPA)? That question seems to be more important after the Huffington Post’s story on Unaoil and the subsequent release of the Panama Papers. However, both of these events largely focused on the “who” part of due diligence and the need to know whom you are doing business with going forward. However there is another important question which does not come up as often in due diligence, which is how?

How does a particular third party perform its services with or for your company? If it is on the sales side of things, how can a third party help you make sales? If a third party comes through the Supply Chain, how do their products or services meet the needs of your company? If the third party has a closer business relationship, such as a joint venture (JV), teaming agreement or other similar arrangement, you may well need a much deeper understand of how this third party does business because the relationship may well become so close you will be intertwined with the party. It may mean more than simply does their how product work but how does this third party conduct themselves and their business?

The questions beyond simply who were made clear in a Wall Street Journal (WSJ) article by Christopher Weaver and John Carreyrou, entitled “Deal With Theranos Haunts Walgreens. It turns out that Walgreens left a gap by “never fully validating the startup’s technology or thoroughly evaluating its capabilities”. The clear message is if you are going to partner with a technology company which is going to change your business model, you best make sure the technology works. Moreover, if a potential JV partner refuses to show you its technology, how it keeps records, its financials relating to the products and services you are contracting for and generally tries to hide from you the very thing you are buying into; you should not walk but run away from the deal.

This article detailed the lack of steps and miss-steps by Walgreens when entering its partnership with Theranos and how these actions have caused Walgreens to consider its $50MM investment in Theranos as something it will never recoup, caused Walgreens reputational damage and potentially subjected it to civil liability. As the reporters noted, “The relationship is now in tatters, making Walgreens an extreme case study of what can go wrong when an established company that craves growth decides to gamble on an exciting and unproven startup.”

One might think that if you are investing in a technology company that provides medical testing, the investor would want to see the laboratory where the testing is performed. It turns out that Walgreens representatives were never allowed to tour, let alone review the labs where the results of Theranos pinprick blood tests were run. A Walgreens consultant, Paul Rust, who was sent to Theranos to do a quality control data review said, “It was a very strange situation. The results were actually really good, but I was never allowed to go into the lab. I have no idea that the results I saw were run on the Edison devices or not.” He went on to say that he was “led to believe that they were being run on the Edison.” Yet even Rust was surprised no Walgreens representatives had been allowed to view Theranos labs.

Interestingly, when Theranos did provide the test results to Walgreens representatives, the results came back with ““low” and “high” values rather than numeric values. As a result, Walgreens couldn’t compare results from the Theranos machine to any commercially available tests.” Once again, this was something which Walgreens should be sought additional information on.

Yet even when Walgreens’ consultants, assisting the company in evaluating Theranos and the proposed transaction, voiced and wrote up their concerns, they were not passed along to Walgreens management. The article reported, “In a report later in 2011, the consultants concluded Walgreens needed more information to assess the partnership. Those findings and reports by other consultants were kept from many Walgreens officials, including some directly involved in the negotiations with Theranos.”

Walgreens made another classic mistake in the due diligence process; they took comfort when a competitor was allegedly considering a similar venture with Theranos. The article said, “Some executives were comforted when Theranos said Safeway Inc. had agreed to host blood-drawing sites at some of its supermarkets. If Safeway trusted Theranos, then Walgreens could, too, the Walgreens officials believed.” How often have your heard that some other company is considering or has approved them through due diligence and a decision was based on the alleged actions of an alleged party.

Walgreens hamstrung itself from managing the relationship after the contract was signed by agreeing to contract terms that prevented Walgreens from auditing or even viewing “Theranos clinical data or financial records”. Finally, and perhaps most damagingly, there was a complete lack of communications between the two companies about the issues that have bedeviled Theranos. The article concluded, “Walgreens shelved the expansion plans after the Journal reported in October that Theranos did the vast majority of tests it offered to consumers on traditional lab machines. The Journal also reported that some former employees doubted the accuracy of a small number of tests run on Edison devices. One of the most recent setbacks came in mid-April when the Journal reported that regulators had 3½ weeks earlier proposed banning Ms. Holmes from the lab-testing industry. The drugstore chain’s senior executives found out from the news report.”

In the FCPA, most companies understand the need to know with who they contract for sales or vendor related issues. They also understand the need to know why they should do business with a proposed third party (IE., a business justification). However the need to perform an investigation into how the third party can actually deliver what they are contracted to do is equally important. Moreover, even with the most robust due diligence, there are still additional steps which a company must engage in to properly manage third parties. Most compliance practitioners believe that compliance terms and conditions should be a part of every contract and there is really no debate that an audit clause and material breach of contract provision should be included.

The Walgreens imbroglio around Theranos points out why such clauses are mandatory. If you do not have them, you do not have the ability verify what you may or may not have been told in due diligence. Finally, managing the relationship after the contract is signed is where the rubber hits the road. If you only obtain a due diligence report and insert compliance terms and conditions, you will have done nothing to test whether the third party is actually performing as it has agreed to under the terms of the contract.

Perhaps if Walgreens had inquired into the how Theranos performed its medical testing it would not find itself in the situation it is in now.

 

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

LBJ-Box 13
The political season is finally upon us, with the Iowa Caucuses starting the race to the White House. In honor of this election cycle commencement, we pay tribute the long and time-honored Southern tradition of midnight voting, where people who have or had reposed for long periods in local cemeteries miraculously arose to vote when needed in elections. In Texas this event is most honored in the first election of Lyndon Johnson to the Senate in 1948, where Johnson won the election by 87 votes out of 988,295 cast statewide. (Thereby garnering the nickname Landslide Lyndon.)

Midnight voting came into play as the winning margin was provided sometime after the first results came, from a single voting precinct in Jim Wells County, Box 13, where Johnson astoundingly secured 202 previously uncounted votes that were somehow ‘found’. It later turned out that the names of the voters came from deceased residents of the county. Also rather amazingly none of those voters denied that they had not in fact voted for Johnson.

The moral of the story – the dead can get you out of a lot of problems. And people say Texans are slow on the take.

I thought about Johnson, Box 13 and midnight voting when reading about the ongoing corruption issues around the Prime Minister of Malaysia, Najib Razak. The issues surround how $681MM mysteriously appeared in his personal bank account. I said ‘mysteriously’ because the PM said it was a personal gift from the prior King of Saudi Arabia. I said prior King; that is because he is dead and is no longer available for comment about whether or not he actually made the gift. As to the living Saudi government, it denies there is any record of such a payment.

Matthew Stephenson, writing in his Global Anti-Corruption Blog, in a post entitled “Malaysia’s Anticorruption Credibility Problem, noted that the Malaysian Attorney General, Mohamed Apandi Ali, said the money was a “political donation” and the money was provided “without any consideration”. Moreover the PM had returned some $620MM of the money and “had not done anything unlawful.”

Being a good Texan, I recognized midnight voting has moved over to the corruption and money-laundering arena in Malaysia. Stephenson, with perhaps more intellectual rigor, stated “it’s more than passing strange that he [the PM] didn’t just announce that it was a political donation form the Saudi royal family right away.” Stephenson also queried about the difference between the amount received, $681MM and the amount returned, $620MM. Stephenson posed a couple of reasonable questions “Where did it go? What was it spent on?” Maybe the spare $61MM is for the PM’s household account.

Yet just when I was fired up to go see the first Houston appearance of the Broadway hit, All The Way, which is about LBJ and the passage of the Civil Rights Act; things got decidedly worse for the Malaysian government when last week the Swiss government announced initial findings in a separate corruption and money-laundering investigation. In an article in the Wall Street Journal (WSJ), entitled “Swiss Prosecutors Say Malaysia Funds Diverted, John Revill reported, “Switzerland’s top prosecutor said $4 billion may have been appropriated from state-owned companies in Malaysia.”

These allegations center on the Malaysian sovereign wealth fund, 1Malaysia Development Berhad (1MDB). Michael Peel and Jeevan Vasagar, writing in the Financial Times (FT), in an article entitled “Swiss wreck effort to contain 1MDB scandal”, said the Swiss investigation, “follows a case opened last August against two unnamed former 1MDB officials on charges including bribery. The Swiss attorney-general said there were “allegations of criminal conduct” in four cases involving 1MDB, in a period spanning 2009 to 2013.” The reporters went on to note, “the four cases involved a “systematic course of action carried out by means of complex financial structures”. They added the cases related to five companies: PetroSaudi, a Saudi Arabia-based oil group with offices in the UK and Switzerland; SRC, a former subsidiary of 1MDB; Genting and Tanjong, two Malaysian conglomerates involved in leisure and property; and ADMIC, a joint venture between 1MDB and Aabar Investments, which is controlled by Abu Dhabi’s International Petroleum Investment Company.”

Even Singapore has become involved, as reported by the BBC Online, in an article entitled “Malaysia 1MDB scandal: Singapore seizes bank accounts”, they said, “The authorities in Singapore say they have seized a large number of bank accounts as part of an investigation into possible money-laundering linked to a fund owned by the Malaysian state.” The article went on to note, “Singapore said it would not tolerate being used as a refuge for illicit funds. In a joint statement by its central bank and the police’s anti-fraud agency it said: “In connection with these investigations, we have sought and are continuing to seek information from several financial institutions, are interviewing various individuals, and have seized a large number of bank accounts.””

So now we have moved from ‘a dead guy gave me $681MM’ to potentially $4bn gone from the country’s sovereign wealth fund. What is the lesson to be learned from such ethereal activities? For the compliance practitioner, it points to the need not only to keep abreast of current events but also to know who your counter-parties are in any relationship. If your company has done business with 1MDB in the past now would be a very propitious time to review all those contracts, review your documentation of third parties involved, perform transaction analysis on the gifts, travel and entertainment expenses of any employees involved in securing those contracts and then take a very hard look to see if there are any way pools of money could have been generated to pay bribes, even if only through contract discounts.

Has your company had any interactions with PM Razak? One might think with his (apparent) $61MM in pocket money he kept from the dead Saudi King’s gift, he would not have asked for anything from your company. Yet you had probably take a close look at any interactions. As Stephenson detailed in his blog post, the entire credibility of the Malaysian government has been called into question over these allegations and the government’s response thereto.

Finally, what about the company’s named in the Swiss investigation into the potential $4bn? If your company has any interactions or contracts with such entities, now might be a very good time to make sure you have engaged in all five steps in the lifecycle of third party management. If you are considering doing business with these entities, you may well want to put those plans on hold and do some deeper digging. It is all in the public record now and there is no excuse not to investigate going forward.

 

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

Empire Strikes BackWe continue our celebration of all things Star Wars; at least as they pertain to the original trilogy, as today we honor Episode V – The Empire Strikes Back, which is my personal favorite of the original three movies. The film begins with a cool battle on the ice planet of Hoth; has some great HR lessons as Darth Vader executes officers for work place errors; demonstrates some dangers involving ineffective training for Luke Skywalker on the tropical plant of Dagobah, where he travels to learn under the Jedi master Yoda who utters the immortal line “Try not! Do, or do not. There is no try”; and ends in Cloud City, a floating gas mining colony in the skies of the planet Bespin run by Han Solo’s old buddy, Lando Calrissian. It also has one of the greatest movie lines of all-time, thundered by Darth Vader to Luke Skywalker, “I AM YOUR FATHER”, towards the end of the film.

Solo and Calrissian go way back and Solo trusts him. Of course, Solo won his starship, the Millennium Falcon, from him but they are still good friends and this friendship is sorely tested when Vader and his Imperial Troops arrive to entice Luke to come to save his friends and battle Vader, which is where the reveal of fatherhood occurs.

I thought about these last two points, in the context of knowing who you are doing business with under the Foreign Corrupt Practices Act (FCPA) or UK Bribery Act. I once heard a company President say he did not need to perform due diligence because he looked a man in the eyes and that was enough to know if he was honest. (I should add, this President also evaluated the strength of a handshake as an additional level of due diligence.) Hopefully we have moved past this level of sophistication for due diligence and its evaluation thereof.

One of the areas I still receive questions about are the different levels of due diligence. Based upon the information provided by the Department of Justice (DOJ) over the years, from Deferred Prosecution Agreements (DPAs) to Opinion Releases and enforcement actions, I break due diligence down into three stages: Level I, Level II and Level III. Candice Tal, Founder and Chief Executive Officer (CEO) of Infortal Worldwide, in an article entitled “Deep Level Due Diligence: What You Need to Know”, laid out some of these concepts.

Level I

First level due diligence typically consists of checking individual names and company names through several hundred Global Watch lists comprised of anti money laundering (AML), anti-bribery, sanctions lists, coupled with other financial corruption & criminal databases. These global lists create a useful first-level screening tool to detect potential red flags for corrupt activities. It is also a very inexpensive first step in compliance from an investigative viewpoint. This basic Level I due diligence is extremely important for companies to complement their compliance policies and procedures; demonstrating a broad intent to actively comply with international regulatory requirements.

 Level II

Level II due diligence encompasses supplementing Level I due diligence with a deeper screening of international media, typically the major newspapers and periodicals from all countries plus detailed Internet searches. Such inquiries will often reveal other forms of corruption-related information and may expose undisclosed or hidden information about the company, the third party’s key executives and associated parties. I believe that Level II should also include an in-country database search regarding the third party. Some of the other types of information that you should consider obtaining are country of domicile and international government records; use of in-country sources to provide assessments of the third party; a check for international derogatory electronic and physical media searches, you should perform both English and foreign-language repositories searches on the third party, in its country of domicile, if you are in a specific industry, using technical specialists you should also obtain information from sector specific sources.

 Level III

This level is the deep dive. It will require an in-country ‘boots-on-the-ground’ investigation and is designed to supply your company “with a comprehensive analysis of all available public records data supplemented with detailed field intelligence to identify known and more importantly unknown conditions. Seasoned investigators who know the local language and are familiar with local politics bring an extra layer of depth assessment to an in country investigation.” Further, the “Direction of the work and analyzing the resulting data is often critical to a successful outcome; and key to understanding the results both from a technical perspective and understanding what the results mean in plain English. Investigative reports should include actionable recommendations based on clearly defined assumptions or preferably well-developed factual data points.”

But more than simply an investigation of the company, critically including a site visit and coupled with onsite interviews, Tal says that some other things you investigate include “an in-depth background check of key executives or principal players. These are not routine employment-type background checks, which are simply designed to confirm existing information; but rather executive due diligence checks designed to investigate hidden, secret or undisclosed information about that individual.” Tal believes that such “Reputational information, involvement in other businesses, direct or indirect involvement in other law suits, history of litigious and other lifestyle behaviors which can adversely affect your business, and public perceptions of impropriety, should they be disclosed publically.”

Further, you may need to engage a foreign law firm to investigate the third party in its home country to determine the third party’s compliance with its home country’s laws, licensing requirements and regulations. Lastly, and perhaps most importantly, you should use a Level III to look the proposed third party in the eye and get a firm idea of his or her cooperation and attitude towards compliance as one of the most important inquiries is not legal but based upon the response and cooperation of the third party. More than simply trying to determine if the third party objected to any portion of the due diligence process or did they object to the scope, coverage or purpose of the FCPA; you can use a Level III to determine if the third party is willing to stand up under the FCPA and are you willing to partner with the third party.

The Risk Advisory Group, created a handy chart of its Level I, II and III approaches to integrity and due diligence. I have found it useful in explaining the different scopes and focuses of the various levels of due diligence.

Level Issues Addressed Scope of Investigation
I ·      That the company exists

·      Identities of directors and shareholders

·      Whether such persons are on regulators’ watch lists

·      Signs that such persons are government officials

·      Obvious signs of financial difficulty

·      Signs of involvement in litigation

·      Media reports linking the company to corruption

·      Company registration and status

·      Registered Address

·      Regulators’ watch lists

·      Credit Checks

·      Bankruptcy/Liquidation Proceedings

·      Review accounts and auditors comments

·      Litigation search

·      Negative media search

II As above with the following additions:

·      Public Profile integrity checks

·      Signs of official investigations and/or sanctions from regulatory authorities

·      Other anti-corruption Red Flags

As above with the following additions:

·      Review and summary of all media and internet references

·      Review and summary of relevant corporate records and litigation filings, including local archives

·      Analysis and cross-referencing of all findings

III As above with the following additions:

·      But seeking fuller answers to any questions raised by drawing on a wider range of intelligence sources and/or addressing specific issues of potential concern already identified

 

As above with the following additions:

·      Enquiries via local sources

·      Enquiries via industry experts

·      Enquiries via western agencies such as embassies or trade promotion bodies

·      Enquires via sources close to local regulatory agencies

If Han Solo had done a deep dive into his friend Lando Calrrisian, he might have well determined that the Empire had arrived at the Cloud City before he and his team did. Then again we might not have heard that seminal line “I AM YOUR FATHER”.

May the force be with 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, 2015

Ken JohnsonBefore Jim Crane came along to purchase the Houston Astros and provide us all with some of the best lessons learned for the compliance practitioner, they had a long and storied history, even if part of that history included not achieving much in the way of success. After all it took the Astros 50 years to reach the World Series (reach – not win). Before they had that inglorious run, they were known as the Houston Colt 45s and they were even more sad sack than after they re-moninkered themselves as the Astros.

In the Pantheon of baseball achievements one Houston Colt 45 stands above all. It is Ken Johnson, who died earlier this week. Johnson’s achievement – he is the only pitcher in the long and storied history of baseball, who pitched a complete game no-hitter and lost. In a game against the Cincinnati Reds, on April 23, 1964, with one out in the 9th inning, Johnson fielded a bunt by Pete Rose and threw wildly to first, allowing Rose to reach second. Rose scored two batters later on an error by second baseman Nellie Fox. The Reds won the game 1-0.

I thought about hard luck Ken Johnson in the context of the continued difficulty companies face around liability for third parties under the Foreign Corrupt Practices Act (FCPA). There are two areas that do not get as much attention that I wanted to focus on today. The first is the Questionnaire you utilize to help in the evaluation of any third party and the second is the compliance terms and conditions you should include in any commercial agreement with third parties.

Below are some of the areas that I think you should inquire into through your Questionnaire to a proposed third party:

  • Ownership Structure: Describe whether the proposed third party is a government or state-owned entity, and the nature of its relationship(s) with local, regional and governmental bodies. Are there any members of the business partner related, by blood, to governmental officials?
  • Financial Qualifications: Describe the financial stability of, and all capital to be provided by, the proposed third party. You should obtain financial records, audited for 3 to 5 years, if available. Obtain the name and contact information for their banking relationship.
  • Personnel: Determine whether the proposed agent will be providing personnel, particularly whether any of the employees are government officials. Make sure that you obtain the names and titles of those who will provide services to your company.
  • Physical Facilities: Describe what physical facilities that will be used by the third party for your work. Be sure and obtain their physical address.
  • References: Obtain names and contact information for at least three business references that can provide information on the business ethics and commercial reliability of the proposed third party.
  • PEPs: Are any of the owners, beneficial owners, officers or directors politically exposed persons (PEPs).
  • UBO: It is imperative that you obtain the identity of the Ultimate Beneficial Owner (UBO).
  • Compliance Regime: Does the proposed third party have an anti-corruption/anti-bribery program in place? Do they have a Code of Conduct? Obtain copies of all relevant documents and training materials.
  • FCPA Training and Awareness: Has the proposed third party received FCPA training, are they TRACE certified or certified by some other recognizable entity?

One thing that you should keep in mind is that you will likely have pushback from your business team in making many of the inquiries listed above. However, my experience is that most proposed agents that have done business with US or UK companies have already gone through this process. Indeed, they understand that by providing this information on a timely basis, they can set themselves apart as more attractive to US businesses.

The questionnaire fills several key roles in your overall management of third parties. Obviously it provides key information that you need to know about who you are doing business with and whether they have the capabilities to fulfill your commercial needs. Just as importantly is what is said if the questionnaire is not completed or is only partially completed, such as the lack of awareness of the FCPA, UK Bribery Act or anti-corruption/anti-bribery programs generally. Lastly, the information provided (or not provided) in the questionnaire will assist you in determining what level of due diligence to perform.

Similarly, compliance terms and conditions should be in every contract, whether such document is a simple agency or consulting agreement or a joint venture (JV) with several formation documents. The compliance terms and conditions should include representations that in all undertakings the third party will make no payments of money, or anything of value, nor will such be offered, promised or paid, directly or indirectly, to any foreign officials, political parties, party officials, candidates for public or political party office, to influence the acts of such officials, political parties, party officials, or candidates in their official capacity, to induce them to use their influence with a government to obtain or retain business or gain an improper advantage in connection with any business venture or contract in which the company is a participant.

In addition to the above affirmative statements regarding conduct, a commercial contract with a third party should have the following compliance terms and conditions in it:

  • Indemnification: Full indemnification for any FCPA violation, including all costs for the underlying investigation.
  • Cooperation: Require full cooperation with any ethics and compliance investigation, specifically including the review of foreign business partner emails and bank accounts relating to your Company’s use of the foreign business partner.
  • Material Breach of Contract: Any FCPA violation is made a material breach of contract, with no notice and opportunity to cure. Further, such a finding will be the grounds for immediate cessation of all payments.
  • No Sub-Vendors (without approval): The foreign business partner must agree that it will not hire an agent, subcontractor or consultant without the Company’s prior written consent (to be based on adequate due diligence).
  • Audit Rights: An additional key element of a contract between a US Company and a foreign business partner should include the retention of audit rights. These audit rights must exceed the simple audit rights associated with the financial relationship between the parties and must allow a full review of all FCPA related compliance procedures such as those for meeting with foreign governmental officials and compliance related training.
  • Acknowledgment: The foreign business partner should specifically acknowledge the applicability of the FCPA to the business relationship as well as any country or regional anti-corruption or anti-bribery laws, which apply to either the foreign business partner or business relationship.
  • On-going Training: Require that the top management of the foreign business partner and all persons performing services on your behalf shall receive FCPA compliance training.
  • Annual Certification: Require an annual certification stating that the foreign business partner has not engaged in any conduct that violates the FCPA or any applicable laws, nor is it aware of any such conduct.
  • Re-qualification: Require the foreign business partner re-qualify as a business partner at a regular interval of no greater than every three years.

Many will exclaim, “What an order, I can’t go through with it.” By this they mean that they do not believe that they will be able to get the third party to agree to such compliance terms and conditions. I have found that while it may not be easy, it is relatively simple to get a third party to agree to these, or similar, terms and conditions. One approach to take is that they are not negotiable. When faced with such a position on non-commercial terms many third parties will not fight such a position. There is some flexibility but the Department of Justice (DOJ) will require the minimum terms and conditions that it has suggested in the various Attachment Cs to the Deferred Prosecution Agreement (DPA) and in the FCPA Guidance. But the best position I have found is that if a third party agrees with these terms and conditions, they can then use that as a market differentiator from other third parties who have not gone through the life cycle management of a third party.

Two of the under-utilized tools of third party risk management are the third party questionnaire and compliance terms and conditions. By using these relatively simple and straightforward techniques you can help avoid the hard-luck nature of Ken Johnson and losing the game when you pitch a no-hitter.

A Happy Thanksgiving to all.

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