The Commercial Law Connection - NBA-CLS - National Bar by pengxiuhui


									                                  The Commercial
                                                                                                                                            The National Bar Association
                                                                                                                                              Commercial Law Section

                                                                                                    THE NATIONAL


                                  Law Connection
                                                                                                                          A                   VOLUME 7 - ISSUE 3

                                                                                                                                                     Fall 2010

                                  CONNECTING PEOPLE, IDEAS AND OPPORTUNITIES

                                  Message from the Chair

                                           reetings! We look forward to hosting our 24th Annual Corpo-
                                           rate Counsel Conference in Orlando, Florida, February 24-26,
                                           2011 at the JW Marriott Grande Lakes Hotel and Resort. As
                                  part of the National Bar Association’s theme for President Demetrius
                                  Shelton’s Bar Year, “LIFTING AS WE CLIMB – ENSURING JUS-
                                  TICE & EQUALITY”, the Commercial Law Section will redouble our
                                  efforts to help all of us climb and reach our full potential. Therefore,
Message from the Chair        1
                                  based upon your positive feedback and to further improve upon the
                                  content and experience of our Conference, we have focused upon pro-
                                                                                                           David B. Cade, Esq., Chair
The Oncoming Storm: Federal       viding our attendees with additional time to connect with corporate/
Bribery Investigations Often      in-house counsel. In addition to our unique formal interviewing process, we have instituted an
Inspire Even More Costly          informal Networking Expo, which will occur over several days. Every firm in attendance will have
Shareholder Derivative            an equal opportunity to put their best foot forward with our corporate/in-house counsel attendees
Litigation                   1    during the Expo. We also have expanded our programming for our corporate/in-house counsel at-
                                  tendees to make the Conference more relevant to their career development. More information about
Can Your Employee Secretly        the revamped Conference format is available on our website:
Record Conversations with
                                  ference.html.                                                             continued on page 3
Management?                   2

The Commercial Law
Section Honors                              The Oncoming Storm: Federal Bribery
Avis Russell with Its                   Investigations Often Inspire Even More Costly
Second Annual In-House
Counsel of the Year Award     4
                                              Shareholder Derivative Litigation

Liskow & Lewis Sponsors                                                  By Sean C. Griffin, Esq.*
National Bar Association
Event During its 85th             The Securities and Exchange Commission and the Department of Justice have dramatically increased
Annual Conference             5   their investigation and enforcement of foreign bribery under the Foreign Corrupt Practices Act (“FCPA”).1
                                  This increase has sparked a similar upswing in private civil claims against corporations collateral to ad-
The Commercial Law Section        mitted or suspected FCPA violations.2 Although the FCPA grants no private right of action, plaintiffsʼ
Thanks Donald O. Johnson          attorneys have sidestepped this obstacle by bringing their FCPA-based actions under statutes that do
for Years of Service to the       – typically, as shareholder derivative suits for breach of fiduciary duty or as securities fraud actions.3
Executive Committee and
Contributions to The
                                  This trend is growing too large for companies to safely ignore. Corporate defendants paid an estimated
Commercial Law Connection 5
                                  $84.4 million in FCPA-related securities class action settlements between 2002 and 2008.4 Given the
Member Spotlights             8   breakneck pace of FCPA criminal settlements in 2009 — including the record-setting $1.6 billion Sie-
                                  mens settlement — the cost of settling derivative cases will likely grow. Coupled with the well-docu-
National Bar Association          mented rise in securities class action filings, these numbers leave no doubt that shareholder suits have
2010-11 Calendar of Events 11     become an increasingly expensive consequence of a FCPA investigation.5

NBACLS 2010-2011                  Companies often end up settling these derivative actions for costs disproportionate to the original offense
Executive Committee          12   or the penalty imposed by the government. For example, in 2007, Immucor paid the SEC a $30,000 civil
                                  penalty to resolve an investigation involving about $19,000 in alleged bribes the company paid to obtain
NBACLS Newsletter
                                  medical supply contracts.6 Settling with the SEC did not end Immucorʼs legal troubles, as it then faced a
Editorial Board              14
                                  shareholder class action complaint accusing it of securities fraud and Sarbanes-Oxley violations based on
                                  its alleged misrepresentations regarding the investigation.7 After the court denied its motion to dismiss,
                                  Immucor paid the plaintiffs $2.5 million – to settle a $19,000 bribery case for which it had paid only
                                  $30,000 in civil penalties to the government.8
                                                                                                                                            continued on page 6
               PAGE 2                              The Commercial Law Connection
                      Can Your Employee Secretly Record
                       Conversations with Management?
                                                       By Warren E. Buliox, Esq.*
One of your employees, Fox Mulder, has built a reputation for         cation (and in some cases any non-party) is generally free to hit
stirring up problems within the workforce. For him, just about        the record button. For instance, a California appellate court has
everything that takes place in the workplace is part of some          held that the secret recording of a business meeting that took
grand conspiracy. So when you suspend him after learning              place in a crowded public restaurant did not violate state eaves-
he violated company policy, you suspect he might file a claim          dropping laws because the conversation was not a “confidential
against your company. Unfortunately, your suspicions are con-         communication” due its location.1 Similarly, a New York ap-
firmed when you get a package from his lawyer a few weeks              pellate court has held that those who talk in the presence of
later that includes a letter of empty threats and . . . a CD? You     parties outside the conversation may not have an expectation
open the file on the CD and discover it is a recording of you          of privacy in the conversation and therefore may not have a
from the meeting where you suspended Mr. Mulder. Huh!?!               cause of action under New York law should the conversation
                                                                      be recorded.2 If the conversation is in a quiet, secluded set-
With the advent of pocket-sized recorders, sophisticated cell
                                                                      ting, so as to warrant an expectation of privacy to the commu-
phones, and other covert recording devices, a growing number
                                                                      nication, then eavesdropping and wiretapping laws come into
of employees – whether disgruntled or not – are secretly record-
                                                                      play. Twelve states – California, Connecticut, Florida, Illinois,
ing conversations in and outside the workplace in the hope of
                                                                      Maryland, Massachusetts, Michigan, Montana, Nevada, New
catching their employers “in the act.” After all, secret record-
                                                                      Hampshire, Pennsylvania and Washington – generally prohibit
ings have paid off in the past. You may recall the disgruntled
                                                                      individuals from recording conversations unless all parties to
Texaco employee whose secretly recorded conversation of ex-
                                                                      the communication consent to the recording. These states are
ecutives making what appeared to be racist comments resulted
                                                                      typically referred to as “all-party consent” or “two-party con-
in a then-record $176 million settlement in a race discrimina-
                                                                      sent” states.
tion suit.
                                                                      The remaining thirty-eight states, along with the District of
Suppose you learn that one of your employees has or may be
                                                                      Columbia, are considered “one-party consent” states. In these
surreptitiously recording conversations with management. Can
                                                                      states, individuals may legally record a conversation to which
the employee legally do this? And if so, what options do you
                                                                      they are a party so long as one of the parties to the communica-
have as an employer to prevent or thwart such activity? Does it
                                                                      tion consents to the recording. Because the consenting party
matter whether the recording takes place outside the workplace
                                                                      in these states can also be the individual doing the recording,
or in a public setting, as opposed to in the workplace during a
                                                                      the conversation may be – and often is – recorded without the
closed-door meeting between the employee and his or her su-
                                                                      knowledge or consent of any other party. This is also the rule
pervisor? The answer may depend on your state.
                                                                      under federal law.
Both federal and state laws place restrictions on wiretapping
                                                                      So what does this mean for employers? In the minority of states
and eavesdropping. These laws generally apply to situations
                                                                      that require all parties to a communication to consent to its re-
where one party listens in on the conversations of others with-
                                                                      cording, it means (at least in theory) very little, as employers
out their knowledge and have been used to regulate electronic
                                                                      need not worry about a conversation being secretly recorded
recordings of both telephone conversations and in-person inter-
                                                                      unless the conversation takes place in public or in a manner in
views or meetings.
                                                                      which the parties have no reasonable expectation of privacy.
As a general matter, the ability to secretly record a conversation    While individuals can certainly still record conversations in
initially turns on whether or not a reasonable expectation of pri-    these jurisdictions either in ignorance or willful violation of the
vacy can be attached to the conversation. If there is no expecta-     law and then attempt to blackmail or embarrass their employers
tion of privacy to the conversation, any party to the communi-        by making the recordings public, most states have stiff civil and
                                                                                                           continued on page 10

                                  The National Bar Association Commercial Law Section
   The Commercial Law Connection                                                                         PAGE 3

Chair’s Message… continued from page 1
The Commercial Law Section is also pleased to announce that Harold Pope of Jaffe Raitt Heuer & Weiss, PC is the recipient of our
2011 Cora T. Walker Legacy Award, and Shell Oil Company is the recipient of our 2011 Corporation of the Year Award. Nomina-
tions are now open for our Outstanding In-House and Outside Counsel Awards as well. I encourage you to submit a nomination
for someone you believe has excelled in his or her legal practice and has advanced the retention of African-American attorneys as
outside counsel.

We will continue our role as a key contributor to the NBA’s Crump Law Camp. The Law Camp offers high school students the
opportunity to live at Howard University in Washington, D.C. for two weeks during the summer, as part of an intense immersion
program into the study of law. Although John Crump retired from NBA, his vision lives on. We also have been, and will remain,
a significant contributor to the National Bar Institute, the philanthropic arm of the NBA, that among other things, offers scholar-
ships to college and law school students.

Finally, if you had not heard the great news, we were selected as the NBA’s 2010 Section of the Year during the Annual Meeting
in New Orleans this summer. For eight out of the last ten years, we have been honored to receive this award. It is not an accident.
Our members are dedicated to increasing the diversity within the profession and providing opportunities for attorneys of color to
represent Corporate America. Cora Walker would be proud to see how much her labor of love has grown over 24 years, and we
are delighted to live her dream every day.

Thank you again for your words of encouragement. I look forward to seeing you in Orlando!

                                                                                                                              Highlights from the NBA Convention - New Orleans

                                The National Bar Association Commercial Law Section
              PAGE 4                            The Commercial Law Connection
               The Commercial Law Section Honors Avis Russell
          with Its Second Annual In-House Counsel of the Year Award
                                                  By Donald O. Johnson, Esq.*

                                                                  House Counsel of the Year Award recipient, we asked her to
                                                                  comment on her feelings about having received the award and
                                                                  the challenges and opportunities facing in-house counsel and
                                                                  those facing outside counsel who advise in-house counsel.

                                                                  Ms. Russell confessed that she “was extremely surprised and
                                                                  pleased” to receive the Commercial Law Sectionʼs In-House
                                                                  Counsel of the Year Award, stating: “I did not think that the
                                                                  award would be given to an in-house counsel in the public
                                                                  sector. I think that it is important for those in private practice
                                                                  to understand that the public sector is a viable choice for busi-
                                                                  ness development.”

                                                                  She noted that, “[a]lthough there are many public sector enti-
                                                                  ties that use outside counsel, when I attend conferences where
During its 23rd Corporation Counsel Conference this year in       the focus is primarily public sector issues or matters, the at-
San Diego, the NBA Commercial Law Section selected Avis           torneys present are rarely attorneys that are African-American
Russell, General Counsel of the District of Columbia Water        or from other minority groups.” Looking at the other side of
and Sewer Authority, as the recipient of its Second Annual        the coin, Ms. Russell stated: “I also think that it is important
In-House Counsel of the Year Award. The Section established       for attorneys in the public sector to embrace diversity in the
the award to honor in-house attorneys who have demonstrat-        hiring of outside counsel as their entities embrace the need for
ed significant achievements in their substantive legal careers     diversity in contracts for goods, services and construction.”
and have demonstrated a commitment to encourage corporate
legal departments to develop professional relationships with      “In this economy, managing the costs of legal services is a big
African-American attorneys. Ms. Russell exemplifies these          issue. Law departments are seen as cost centers that do not
attributes.                                                       provide revenues for their entities,” Ms. Russell observed re-
                                                                  garding the most significant challenges facing attorneys who
Ms. Russellʼs use of minority attorneys has advanced their ca-    work as in-house counsel. Continuing, she said: “Manage-
reers immeasurably within their firms and within the profes-       ment often looks to law departments to cut costs. Also, regu-
sion. The majority of attorneys providing legal services to DC    latory requirements are increasing in this administration, and
Water are located in Washington, DC. Of the majority law          in-house counsel will have to determine if they will develop
firms she has retained, several have minority attorneys as the     the expertise in-house or use outside counsel.”
originating attorney. Ms. Russell also retains minority law
firms to represent DC Water. These attorneys handle matters        Ms. Russell identified important actions that in-house attor-
in a wide range of practice areas, including personal injury,     neys can take to become valued members of their companies:
contract, procurement, construction, public finance, patent
and trademark, environmental and employment law.                  •   Develop trust with your internal clients;

Ms. Russell is a New Orleans, Louisiana native and has been a     •   Learn the business;
member of the Commercial Law Section since 1990 when she
was in private practice. Although Ms. Russell was unable to       •   Be a resource for providing advice on how to help the
be with us at the Corporate Counsel Conference in San Diego           internal client achieve their business purpose;
when her receipt of the award was originally announced, our
Section had the opportunity to present the award to her in        •   Make your internal client a success;
person during the 2010 85th NBA Convention and Exhibits,
held in her hometown of New Orleans.                              •   Keep your internal clients out of trouble (anticipate prob-
                                                                      lems); and
Following our Sectionʼs selection of Ms. Russell as its In-
                                                                                                       continued on page 11

                                The National Bar Association Commercial Law Section
   The Commercial Law Connection                                                                               PAGE 5

             Liskow & Lewis Sponsors National Bar Association Event
                       During its 85th Annual Conference
                                                         By Dana M. Douglas, Esq.

Liskow and Lewis, PLC served as the proud sponsor of the Com-          through eleventh grades with an introduction to the judicial sys-
mercial Law Sectionʼs Reception held August 10, 2010 at the 85th       tem, law school, and some of the skills required to be an effective
Annual National Bar Association Convention and Exhibits at the         lawyer.
Marriott Hotel in New Orleans. Liskow & Lewis was honored to
serve as the exclusive sponsor of this event. The Section hosted       At Liskow & Lewis, we have a history of actively recruiting,
over 200 guests including, lawyers, judges and other conference        mentoring and promoting lawyers and professionals with diverse
participants.                                                          backgrounds and life experiences. The success of our diversity ini-
                                                                       tiatives has been well documented by the success of the firm. The
Liskow and Lewis personified “southern hospitality” with many           firm is proud to have been a part of the NBAʼs recognition of its
of its firm attorneys and alumni on hand to greet and network with      many efforts to advance the diversity of the legal profession.
guests. Among the Liskow alumni was the Honorable Judge Brian
A. Jackson, who was recently appointed to the United States Dis-                               * Dana M. Douglas is a Shareholder with
trict Court for the Middle District of Louisiana which sits in Baton                           Liskow & Lewis PLC specializing in com-
Rouge, Louisiana. Judge Jackson headed the firmʼs white collar                                  mercial, energy and intellectual property
practice until his appointment to the bench by President Barack                                litigation. Ms. Douglas can be reach at
Obama.                                                                                         (504) 556-4097 or dmdouglas@liskow.
At the event, the firm joined in celebrating the Commercial Law
Sectionʼs $25,000 donation to the Crump Law Camp. Crump Law
Camp, established by the NBA, provides students in the ninth

      The Commercial Law Section Thanks
   Donald O. Johnson for Years of Service to the
    Executive Committee and Contributions to
         The Commercial Law Connection
                                 By Jean-Marie Sylla, Jr.

                                For more than seven years Don-         O. Johnson, after recently
                                ald O. Johnson has dutifully           relocating his office to
                                served as a member of Commer-          Philadelphia, Pennsylva-
                                cial Law Sectionʼs (CLS) Ex-           nia. Don has left big shoes
                                ecutive Committee, specifically         to fill and his contributions
                                in his role as an editor of the        will be greatly missed.
                                Sectionʼs newsletter, The Com-
                                mercial Connection. During that                            Jean-Marie Sylla, Jr. is a partner with
                                time, Don, as he is affectionately                         Taylor, Sylla & Agin, LLP, a Washing-
                                known, has served on the CLSʼ                              ton, DC based civil litigation firm. He
                                Executive Committee providing                              represents business entities in a wide
                                valuable input to the operation of                         variety of insurance, commercial, busi-
                                the section. In addition, Don has                          ness, and real estate litigation disputes
managed the publication of the Commercial Connection by                                    in the District of Columbia, Maryland
putting together one of the National Bar Associationʼs premier                             and Virginia. Jean-Marie also serves
section newsletters. This publication offers substantive legal                             as the NBA-CLS Newsletter Liaison
articles of interest to section members, as well as informational                          and is a member of the Sectionʼs Execu-
articles on the Sectionʼs news and events. Mr. Johnson will be         tive Committee. He may be reached at
focusing on building his practice, the Law Offices of Donald            or (202) 689-9512.

                                   The National Bar Association Commercial Law Section
               PAGE 6                                The Commercial Law Connection
The Oncoming Storm… continued from page 1
Faro Technologies also paid a disproportionate civil settlement.         avoiding FCPA violations, which in turn requires an effective and
The DoJ and SEC had charged Faro with paying $444,492 in bribes          comprehensive compliance program. A rigorous compliance pro-
to employees of Chinese state-owned companies and with improp-           gram requires more discussion than space here allows, but every
erly recording and reporting those payments.9 Faro resolved the          meaningful compliance program includes a few basic elements:
federal case for $1.85 million in disgorgement and prejudgment           (1) a clearly articulated compliance policy against FCPA viola-
interest and a $1.1 million criminal penalty.10 As with Immucor,         tions; (2) communication of that policy to company employees;
the investigation spurred Faroʼs shareholders to file a class action      (3) thorough financial and accounting procedures; and (4) proce-
complaint alleging that Faro had failed to disclose information          dures by which employees may report suspected FCPA violations
about its finances and inventory and that it had benefited from the        to upper management.
inflated stock prices.11 The court denied Faroʼs motion to dismiss,
and soon after, Faro settled with the plaintiffs for $6.875 million.12   Not only can an effective compliance program help prevent FCPA
On the heels of this case, Faro faced a second derivative suit al-       violations, but it can help a company fight derivative suits as well.
leging violations of Security Exchange Act § 10(b)(5), breach of         The Private Securities Litigation Reform Act of 1995 (“PSLRA”)
fiduciary duty and unjust enrichment, which the company settled           requires securities fraud plaintiffs to “state with particularity facts
for $400,000. Altogether, Faro paid over $7 million in settlements       giving rise to a strong inference that the defendant acted with the
for a $444,492 violation that it resolved for less than $3 million in    required state of mind.”19 In the FCPA context, the Ninth Cir-
criminal and civil penalties.                                            cuit has held that the PSLRA requires plaintiffs to plead facts that
                                                                         show that the company itself, rather than merely its employees
The Securities Exchange Act is not the only statute for which            or agents, acted with the requisite scienter to sustain a securities
plaintiff can sue for FCPA violations. In 2002, Cardinal Health,         fraud complaint.20 Thus, if a defendant company has an effective
Inc. discovered that foreign subsidiaries of its acquisition target,     compliance program – one that includes a solid reporting system
Syncor International Corporation, had made improper payments             – and if the violations were not reported, a company may point to
of at least $600,000 to employees of government-operated hospi-          the absence of any reports to show that it lacked scienter even if
tals in Taiwan, Mexico, Belgium, Luxembourg and France. This             some of its employees or agents committed the violation.
discovery ultimately cost Syncor $2 million as a criminal penalty
to DoJ and $500,000 to the SEC.13 Soon thereafter, participants in       Defendants in FCPA derivative suits may also defend using the
the Syncor/Cardinal 401(k) brought the usual action for securities       demand rule and the business judgment rule. The demand rule
fraud, but they also sued under § 502 of the Employee Retire-            requires shareholders to demand that the board of directors file
ment Income Security Act for breach of fiduciary duty.14 Plain-           suit based upon the FCPA violations before filing a derivative suit
tiffsʼ strategy also proved effective; eventually, Syncor settled in     themselves. If the board declines to file suit, that decision is pro-
exchange for creating a $4 million settlement fund (plus interest)       tected by the business judgment rule, which bars derivative suits
and court-ordered attorney fees of $1,333,333.00 – over twice the        unless the board failed to act independently or acted in bad faith.
amount of the penalties it paid to the federal government.15
                                                                         These rules have staved off shareholder suits in the FCPA con-
The newly enacted Dodd-Frank Wall Street Reform and Consum-              text. For example, in 2004, Chevron was implicated in the Iraqi
er Protection Act (“WSRCPA”) offers yet another private cause            Oil-for-Food scandal, in which energy companies and the Iraqi
of action for FCPA violations. Section 1504 of the WSRCPA                government circumvented the UN Food for Oil program and UN-
amends the Exchange Act to require corporations to disclose those        imposed sanctions against Iraq by kicking back about $1.8 billion
payments “made to further the commercial development of oil,             to Saddam Husseinʼs government.21 Shareholders sued Chevron,
natural gas, or minerals” – areas that frequently attract FCPA in-       its officers, and its board members for breach of fiduciary duty
vestigatorsʼ attention.16 Additionally, the WSRCPAʼs definition           and corporate waste, alleging that Chevronʼs board had failed to
of “foreign governments” includes governmental agencies, state-          supervise adequately alleged payments of illegal surcharges and
owned enterprises, and individual government officials – precisely        that the Board wasted corporate assets by settling the governmen-
the officials that the FCPA covers.17 Payments requiring disclo-          tal investigations of these allegations.22 However, the plaintiffs
sure would include “taxes, royalties, fees, licenses, production         had not made the requisite demand to the board of directors, so the
entitlements, bonuses, and other material benefits, as determined         court dismissed the complaint pursuant to the demand rule. The
by the Commission,” and thus would encompass a large swath               plaintiffs then stipulated that their complaint should be considered
of legitimate payments.18 Because the WSRCPA amends the Ex-              a formal demand on Chevronʼs board of directors to investigate
change Act, which allows a private cause of action, and because it       whether Chevron should file suit. Pursuant to this demand, Chev-
addresses areas that FCPA investigations target, the WSRCPA pro-         ronʼs board of directors investigated the allegations and deter-
vides another avenue by which shareholders may bring a private           mined that a lawsuit would not serve Chevronʼs best interest. The
action against companies involved in FCPA investigations.                plaintiffs amended their complaint to allege the necessary demand
                                                                         and sued again, and Chevron moved to dismiss again, arguing that
Of course, a company can best avoid a FCPA-derivative suit by            the business judgment rule protected its decision not to sue.
                                                                                                                  continued on page 7

                                   The National Bar Association Commercial Law Section
     The Commercial Law Connection                                                                                PAGE 7

The Oncoming Storm… continued from page 6
The court agreed. The court ruled that the business judgment rule        10
                                                                            Department of Justice Release 08-505, “Faro Technologies Inc.
protected the boardʼs refusal to pursue a legal claim, as there was         Agrees to Pay $1.1 Million Penalty and Enter Non-Prosecution
no compelling evidence that Chevronʼs board had acted improper-             Agreement for FCPA Violations,” June 5, 2008, available at
ly in determining that a lawsuit would not be in the companyʼs best
interest. The court therefore dismissed the case.23 The Chevron          11
                                                                            Class Action Complaint, In re Faro Technologies Securities
case thus shows how the demand rule and the business judgment               Litigation, 2006 WL 393311 (M.D. Fla., Jan. 12, 2006).
rule, used properly, can protect a company against a sustained at-       12
                                                                            Agreed Motion for Preliminary Approval of the Class Action
tack by determined plaintiffs.                                              Settlement and Incorporated Memorandum of Law, In Re Faro
                                                                            Technologies Securities Litigation, 6:05-cv-01810-ACC-DAB
In short, FCPA violations that involve even relatively small                (M.D. Fla., April 9, 2008).
amounts of money can lead to civil suits costing the company             13
                                                                            SEC Litigation Release No. Litigation Release No. 17887 (Dec.
millions of dollars. This fact provides even more incentive for             10, 2002), available at
a company to avoid FCPA violations. If a company finds itself                lr17887.htm.
facing a FCPA investigation despite its compliance program (or           14
                                                                            Complaint, In re Syncor ERISA Litigation, 2:03-cv-02446-
due to its lack thereof), it must be ready to employ all available          RGK-RC, (D.C. Cal., April 8, 2003).
defenses in the inevitable follow-on derivative litigation. Using        15
                                                                            Order of Final Judgment, In re Syncor ERISA Litigation, 2:03-
these defenses effectively requires a thorough knowledge of both            cv-02446-RGK-RC, (D.C. Cal., Nov. 22, 2008).
the FCPA and securities law to master the facts and strategy neces-      16
                                                                            Dodd-Frank Wall Street Reform and Consumer Protection Act §
sary to protect the company from potentially costly litigation.             1504 (codified as 15 U.S.C. § 78m(q)).
                                                                            Dodd-Frank Wall Street Reform and Consumer Protection Act §
    Kevin M. LaCroix, The Foreign Corrupt Practices Act: A 70ʼs             1504 (codified as 15 U.S.C. § 78m(q)(1)(B)).
    Revival?, InSights, Oakbridge Insurance Services, Vol. 3 Issue       18
                                                                            Dodd-Frank Wall Street Reform and Consumer Protection Act §
    3, June/July 2008.                                                      1504 (codified as 15 U.S.C. § 78m(q)(1)(C)(ii)).
    2008 Mid Year in Review, Gibson, Dunn & Crutcher LLP,                19
                                                                            15 U.S.C. § 78u-4(b)(2).
    July 7, 2008,          20
                                                                            Glazer Capital Management, LP v. Magistri, 549 F.3d 736, 742
    2008mid-yearfcpaupdate.aspx.                                            -743 (9th Cir. 2008).
    Litigants unsuccessfully have tried to convince courts to read       21
                                                                            Claudio Gatti and Jad “Profit oil” was not specifically listed in
    such a right into the statute, but the theory was laid to rest in       the Act, but would undoubtedly be covered by the catch-all pro-
    1990 when a US appellate court found that this sort of ʻpost-           vision of § 3(m)(2)(G)(viii) Mouwad, “Chevron Seen Settling
    violation enforcementʼ, by private plaintiffs, as opposed to ʻpre-      Case on Iraq Oil,” New York Times, May 8, 2007, http://www.
    violation complianceʼ, would ʻhinder congressional efforts to 
    protect companies and their employees concerned about FCPA           22
                                                                            Bezirdjian v. OʼReilly, (CA. Super. Ct. 2007).
    liability. Lamb v Phillip Morris, Inc., 915 F. 2d 1024, 1029-1030    23
                                                                            For another successful use of the demand rule, see Order Adopt-
    (6th Cir. 1990).                                                        ing Memorandum and Recommendations, Midwestern Team-
    Raymund Wong and Dr. Patrick Conroy, FCPA Settlements: Itʼs             ster Pension Trust Fund et al., v. Deaton, No. 4:08-cv-01809
    a Small World After All, Krollʼs Global Fraud Report, Issue 8,          (S.D. Tex., May 26, 2009).
    March 2009 (available at:
    FCPA_Settlements_0109_Final2.pdf).                                                            * Sean C. Griffin is Of Counsel at Step-
    Id.                                                                                           toe & Johnson LLP, a Washington, DC
    No. 1:05-CV-2276-WSD (N.D. Ga. 2006); SEC Litigation Re-                                      law firm. Before joining Steptoe, he was
    lease No. 20316 (Sept. 28, 2007), available at http://www.sec.                                a trial attorney at the US Department of
    gov/litigation/litreleases/2007/lr20316.htm.                                                  Justice, where he tried commercial liti-
    Complaint, In Re Immucor Inc. Securities Litigation, 1:05-CV-                                 gation cases and argued before the US
    2276-WSD (N.D. Ga., Aug. 31, 2005); Amended Complaint, In                                     Court of Appeals. Currently, he special-
    Re Immucor Inc. Securities Litigation, 1:05-CV-2276-WSD, 5-                                   izes in conducting Foreign Corrupt Prac-
    6 (N.D. Ga., Feb. 2, 2006).                                                                   tices Act investigations and formulating
    Stipulation of Settlement, In re Immucor Inc. Securities Litiga-                              corporate compliance programs.
    tion, 2007 WL 5442320 (N.D. Ga., May 14, 2007).

                                                                 YOUR VOICE
                          If you have comments concerning the NBACLS newsletter, or if you are an NBACLS
                          member who wants to submit an article for publication consideration, please contact Jean-
                          Marie Sylla, Jr. Esq. at

                                    The National Bar Association Commercial Law Section
               PAGE 8                              The Commercial Law Connection
                                                                     Mr. Simpson received his J.D. from Case Western Reserve Uni-
                                                                     versity School of Law in Cleveland, Ohio, and a M.B.A. from the
                                                                     Weatherhead School of Management at Case Western Reserve
                                                                     University. The native of New Rochelle, New York, earned his
                                                                     Bachelorʼs degree from Boston University. He lives in Farming-
                                                                     ton, Connecticut with his wife, Janel, and their two daughters.
                       Robert R. Simpson
                       Appointed as American Bar                     Shipman & Goodwin, LLP Opens Office In
                       Association’s Director of                     The Nation’s Capital: Attorneys from Hogan
                       Division V in Substantive                     & Hartson’s Washington Office Join Firm
                       Areas of Litigation                           Shipman & Goodwin LLP, a 140-lawyer firm based in Connecti-
                       Attorney Robert R. Simpson, a Partner         cut, has opened an office in the nationʼs capital. The firmʼs new-
                       at the law firm of Shipman & Goodwin           est location is at 1133 Connecticut Avenue, halfway between Du-
                       LLP in Hartford, Connecticut, has been        pont Circle and The White House. The firm currently has offices
appointed by the American Bar Association (ABA) as its Divi-         in Hartford, Stamford, Greenwich and Lakeville, Connecticut.
sion Director of Division V - Substantive Areas of Litigation for    Resident in the new Washington, DC office at the start are six law-
2010-2011.                                                           yers, all formerly with Hogan & Hartson in Washington, led by
In this capacity, Mr. Simpson will be responsible for working        partner James P. Ruggeri, long-time national counsel for complex
with the ABA leadership and membership to implement initia-          insurance coverage matters for The Hartford Financial Services
tives that will help its members be better lawyers and help those    Group and its affiliates. The other partners in the group are Ed-
less fortunate lead better lives.                                    ward B. Parks, II and Joshua D. Weinberg. James G. Christian-
                                                                     sen joins Shipman & Goodwin as counsel, and Tara J. Plochocki
Mr. Simpsonʼs practice at Shipman & Goodwin, LLP focuses on
                                                                     and Michele L. Backus join the firm as associates.
product and toxic tort liability, business and employment litiga-
tion. He represents major product manufacturers and distributors     “We are delighted to welcome Jim Ruggeri and his highly ac-
in matters ranging from automobiles to asbestos. His clients have    complished team to Shipman & Goodwin, and at the same time to
included some of the largest automobile manufacturers and ener-      establish a significant new relationship with The Hartford, which
gy companies in the world. He has handled numerous litigations       will be serviced from both D.C. and Connecticut,” explained
involving fraud, unfair trade practices, tortious interference and   Scott L. Murphy, Managing Partner of Shipman & Goodwin.
copyright infringement. He has tried cases to verdict in state and   “Our presence in D.C. will also be a further boost to other current
federal courts throughout New England and New York involving         firm practices with national reach, including health care, govern-
catastrophic injuries, commercial disputes and employment dis-       ment investigations, petroleum marketing, export-import compli-
crimination, and has argued before the U.S. Court of Appeals for     ance, and bankruptcy.”
the Second Circuit and the Connecticut Supreme Court.                “Shipman & Goodwin is the right firm for our practice,” says
Mr. Simpson is a member of the National Bar Associationʼs            Jim Ruggeri. “We join a strong existing litigation group and gain
Commercial Law Section, Executive Committee, the Co-Chair of         talented colleagues in Connecticut that will allow us to grow the
the American Bar Associationʼs Committee on Corporate Coun-          practice and continue to provide first-rate service to The Hartford
sel, Section of Litigation, and is the Meeting Co-Chair for the      on a national basis.”
organizationʼs 2010 Section of Litigation Annual Meeting. He is      Shipman & Goodwinʼs new Washington address is: 1133 Con-
a member of the Connecticut Bar Associationʼs (CBA) Federal          necticut Avenue NW, Washington, DC 20036.
Judiciary Committee and of the organizationʼs House of Dele-         Web site:
gates, and is an Executive Committee member for CBAʼs Litiga-
tion Section. He also serves as a Board member of the Greater        For more information, contact Jill A. Mastrianni, Chief Mar-
Hartford Legal Aid Foundation and belongs to the Connecticut         keting Officer, Shipman & Goodwin LLP at (860) 251-5090 or
Hispanic Bar Association and the George W. Crawford Black Bar or Laura Soll, Laura Soll Public Re-
Association.                                                         lations at (860) 688-4499 or

                                  The National Bar Association Commercial Law Section
   The Commercial Law Connection                                                                              PAGE 9

                                                                      in 1997, is dedicated to empowering African-American insurance
                                                                      professionals currently in the industry as well as increasing their
                                                                      numbers nationwide. More information about NAAIA is avail-
                                                                      able at

                        Deborah E. Lewis – Joins                      Mr. Johnson also accepted a three-year term as a committee
                                                                      member of the Claims Interest Group Section of the Chartered
                        the Dallas Office of Yoss                      Property and Underwriters Society (CPCU Society). The CPCU
                        White & Wiggins                               Society, a nonprofit trade association founded in 1944, is a com-
                        Visitors are warned “Donʼt Mess With          munity of credentialed property and casualty insurance profes-
                        Texas”, however, opposing counsel to          sionals who promote excellence through ethical behavior and
                        Texas attorney Deborah E. Lewis also say      continuing education. The Claims Interest Group Section is a
                        “Donʼt Mess With Debbie”. Deborah E.          source for technical, functional and personal development infor-
                        Lewis, partner at Yoss White & Wiggins,       mation for the claim professional. More information about the
of Dallas, Texas, takes no prisoners when she defends her clients.    CPCU Society is available at
Her representation of defendants in pharmaceutical and medical
device lawsuits has earned her the status of “go to” counsel.         Mr. Johnson, who recently moved his law office – D. O. John-
                                                                      son Law Office, PC – to Philadelphia, PA, can be reached
On August 6, 2010, the Illinois Appellate Court affirmed sum-          at or through his website – www.
mary judgment in favor of Alcon Laboratories, Inc., 343 Ill.Dec.
206, 934 N.E.2d 530 (2010) in a case involving an alleged defec-
tive intraocular lens. After being asked by Alcon Laboratories                                Gregory M. Wesley –
to take over the case from another firm, Ms. Lewis wasted little                               Elected Fellow in Trial
time crafting a new defense strategy and taking the deposition                                Honorary Society
of Plaintiffʼs expert. She argued the summary judgment motion
which was based on preemption and on the lack of evidence of a                                Gregory M. Wesley, a Partner at Gonza-
defect. After winning the motion, Ms. Lewis prepared the appel-                               lez, Saggio & Harlan LLP in Milwaukee,
leeʼs brief, which was so persuasive the Illinois Court affirmed                               Wisconsin, was elected as a 2010 Fel-
without hearing oral argument.                                                                low in the Litigation Counsel of America
                                                                                              (LCA), Trial Honorary Society. Among
On behalf of her client, Alcon Laboratories, both a pharmaceuti-      other things, the purpose of the LCA is to recognize deserving,
cal and medical device company, Ms. Lewis has won numerous            experienced, and highly qualified lawyers, to provide an outlet
summary judgments and dismissals, and has not paid any money          for scholarly authorship of legal articles on trial and litigation
in settlement of lawsuits.                                            practice, to provide additional sources for professional develop-
                                                                      ment, and to promote superior advocacy and ethical standards in
In addition to defending pharmaceutical and medical device cli-       the practice of law. More information about LCA is available at
ents in litigation, Deborah Lewis advises clients on federal regu-
latory issues concerning products, including product recalls. She
also defends automobile and component part manufacturers in           Mr. Wesleyʼs practice includes Labor and Employment, Govern-
product liability litigation. Ms. Lewis is a frequent speaker         ment Relations, and Indian law. He can be reached at (414) 277-
on various legal topics involving health care issues, product li-     8500 or
ability issues, and litigation strategy. She serves as Secretary to
the NBA Health Law Section, Co-Chair of the Medical Device                                    DeMonica D. Gladney
Action Alliance of the Health Industry Council of DFW, and is a                               – Elected Chair of NBA
member of the Defense Research Institute.                                                     Women Lawyers Division
                                                                                             On August 9, 2010, DeMonica D. Glad-
                        Donald O. Johnson –                                                  ney, a NBA-CLS Executive Committee
                        Accepts Positions in                                                 Member, was elected Chair of the NBA
                        Two National Trade                                                   Women Lawyers Division (NBAWLD)
                                                                                             for the 2010-2011 term during the NBA
                        Associations Focused on                                              85th Convention in New Orleans. She
                        the Insurance Industry                        previously served as the NBAWLD First Vice-Chair, Board
                    Donald O. Johnson, J.D., LL.M., CPCU              Member and Chaplain. In addition to her successful legal ca-
                    was named General Counsel of the Na-              reer, DeMonica is a bestselling author and will be releasing her
                    tional African-American Insurance Asso-           next book, Identity Theft: Discovering The Real You, in the fall
ciation (NAAIA). NAAIA, a non-profit trade association founded         of 2010. Her author website is www.authordemonicadgladney.

                                  The National Bar Association Commercial Law Section
              PAGE 1 0                            The Commercial Law Connection
Can Your Employee Secretly Record… continued from page 2
criminal penalties for such devious acts. In these situations,     against employees for secretly recording conversations even if
employers should be quick to advise such employees both of         the recording was done under the guise of collecting informa-
the law and of the fact that the company will not hesitate to      tion for a discrimination suit.4
pursue any remedy available to it, whether civil or criminal.
                                                                   Regardless of whether secret recordings are legal under state
Also, if the employer believes that the act of secretly record-
                                                                   or federal law or qualify as a “protected activity” under anti-re-
ing a conversation is, in and of itself, a waste of company time
                                                                   taliation laws, employers are well-served by training managers
and resources, an act of disloyalty, or otherwise inappropriate,
                                                                   and other decision makers to be careful in their conversations
employers are generally free to discharge the employee, assum-
                                                                   with other employees, especially those employees who may be
ing the employee is at-will. Getting to that point, however,
                                                                   on the verge of losing their job, are disgruntled, or are other-
is somewhat rare in “all-party consent” states given that the
                                                                   wise suspicious of the company. Should an employer discover
penalties under the law generally suffice to deter most from
                                                                   that an employee is making secret recordings, it should contact
secretly recording conversations.
                                                                   legal counsel. Secret recordings typically do not “fly solo,” as
In “one-party consent” states, on the other hand, employers        they almost always accompany other legal issues that an em-
have much more to worry about, as just about any conversa-         ployer is facing or will soon face.
tion can be legally recorded without their knowledge. To com-      1
                                                                       See Wilkins v. NBC, Inc., 71 Cal. App. 4th 1066 (Cal. Ct.
bat this, many employers have policies that expressly forbid
                                                                       App. 1989).
clandestine recordings. For the most part, these policies are a    2
                                                                       See People v. Kirsh, 176 A.D.2d 652 (N.Y. App. Div. 1991).
permissible and effective way to deter employees from record-      3
                                                                       See Heller v. Champion Intʼl Corp., 891 F.2d 432, 436-437
ing conversations without their employerʼs knowledge. They
                                                                       (2nd Cir. 1989).
can also serve as legitimate non-discriminatory grounds for        4
                                                                       See Argyropoulos v. City of Alton, 539 F.3d 724, 733-734
discharging employees who violate the policy.
                                                                       (7th Cir. 2008) (“Although Title VII indubitably protects an
Does this dynamic change, though, if the employee claims that          employee who complains of discrimination . . . the statute
the recording was done in order to document or investigate dis-        does not grant the aggrieved employee a license to engage in
crimination or harassment? Does the recording then become a            dubious self-help tactics or workplace espionage in order to
protected activity? While according to the EEOC, the answer            gather evidence of discrimination.”)
generally is yes, courts are split over the issue. Anti-retalia-
                                                                                          * Warren E. Buliox, Esq. is an attorney
tion laws prohibit employers from retaliating against employ-
                                                                                          with the Employment Law Group at the
ees because of the employeeʼs opposition to or participation
                                                                                          Milwaukee, Wisconsin office of Gonza-
in an investigation of discriminatory conduct. Some courts,
                                                                                          lez, Saggio & Harlan, LLP. He repre-
like the Second Circuit (which covers Connecticut, New York,
                                                                                          sents employers in employment litigation
and Vermont), have held that making a secret recording to col-
                                                                                          and advises management on all aspects
lect evidence of discrimination is a protected activity and that
                                                                                          of employment relations. He can be con-
employers, as a matter of law, cannot take action against em-
                                                                                          tacted at (414) 277-8500.
ployees for making those recordings.3 Other courts, such as
the Seventh Circuit (which covers Illinois, Indiana, and Wis-
consin), have held that employers can take disciplinary action

Highlights from the NBA Convention - New Orleans

                                 The National Bar Association Commercial Law Section
    The Commercial Law Connection                                                                     PAGE 11

                                     National Bar Association 2010-11
                                            Calendar of Events
                   January 26-30, 2011                                                 May 2011
          Judicial Council Board of Governors                             Women Lawyersʼ Division Supreme Court
                  Mid-Winter Meeting                                             Swearing-In Ceremony
        San Juan Marriott Resort & Stellaris Casino                                 Washington, DC
                  San Juan, Puerto Rico
                                                                                       June 4-15, 2011
                February 25-26, 2011                                              NBA International Affiliate
              Commercial Law Sectionʼs                                               Chapter Meeting
      24th Annual Corporate Counsel Conference                                            Morocco
                     JW Marriott
                   Orlando, Florida                                                      July 2011
                                                                                   NBA Crump Law Camp
                    March 9-13, 2011
        National Black Law Students Association                                   July 31-August 4, 2011
               43rd Annual Convention                                           NBA 86th Annual Convention
                     Houston, Texas                                                  Hilton Baltimore
                                                                                   Baltimore, Maryland
                  March 16-20, 2011
        Small Firms/Solo Practitionersʼ Division                                       October 2011
               16th Annual Conference                                       Wiley A. Branton Issues Symposium
       Co-Sponsored by Young Lawyers Division                              Co-Sponsored with Howard University
           Puerto Plata, Dominican Republic                                                TBA

                       April 2011                                                     November 2011
             Annual Mid-Year Conference &                                       23rd Annual Wiley A. Branton
             Gertrude E. Rush Award Dinner                                       Town Hall & Board Meeting
                   Oakland, California                                                      TBA

Avis Russell… continued from page 4
•   Maintain your integrity and sense of right and wrong.          The Commercial Law Section thanks Avis Russell for her
                                                                   courageous efforts over many years to ensure that minority
With respect to the attributes that are important to her when      outside counsel receive work and origination credit on her
selecting outside counsel, Ms. Russell stated: “It is presumed     projects. We also thank her for her willingness to share the
that if I am talking to them, I believe that they possess the      knowledge that she has gained as in-house counsel with her
technical skills and resources I need. I want them to be fair,     fellow section members and wish her continued success in
honest, and more concerned about providing excellent legal         the future.
services than they are about getting a fee. It is important that
we have a good rapport; therefore, they must be good commu-                             * Donald O. Johnson, J.D., LL.M.,
nicators, clear, concise and direct; comfortable in their skin;                         CPCU practices at D.O. Johnson Law
and confident, not cocky in their demeanor.”                                             Office, PC in Philadelphia, PA.

Ms. Russell offered the following advice for younger at-
torneys, “It is important to do something that interests you.
However, explore non-traditional areas as well. I do not find
many lawyers of color in water and sewer law (SDWA and
CWA), energy, construction, finance (other than public bond
issuances), or procurement.”

                                 The National Bar Association Commercial Law Section
             PAGE 1 2                     The Commercial Law Connection
            2010-2011 EXECUTIVE COMMITTEE

David B. Cade, Esq.                    DeMonica D. Gladney, Esq.           Brian K. Telfair, Esq.
Chair                                  Corporate Liaison                   Advisor
The Boeing Company                     Exxon Mobil Corporation             Deputy City Attorney for
Defense, Space & Security              13501 Katy Freeway                  Litigation and Public Safety
100 Airport Way                        CORP-EMCC-W1-570                    Richmond City Attorneyʼs Office
MC: S-100-3340, Bldg. 100              Houston, TX 77079                   900 E. Broad St., Suite 300
Berkeley, MO 63134                     Tel: 281.870.6047                   Richmond, VA 23219
Tel: 314.232.8201               Tel: 804.646.7953                                          
                                       Damon P. Hart, Esq.
Dawn Tezino, Esq.                      Advisor                             Tamika Langley Tremaglio, Esq.
Vice Chair                             Ogletree, Deakins, Nash Smoak       Advisor
MehaffyWeber, P.C.                     & Stewart, P.C.                     Deloitte Financial Advisory Services
2615 Calder, Suite 800                 One Boston Place, Suite 3220        LLP
P.O. Box 16                            Boston, MA 02108                    555 12th Street, NW, Suite 500
Beaumont, TX 77702                     Tel: 617.994.5700                   Washington, DC 20004-1207
Tel: 409.835.5011                  Tel: 202.879.5693                                      
                                       Jean-Marie Sylla, Jr. Esq.
Robert R. Simpson, Esq.                Newsletter Liason                   Dinisa Hardley Folmar, Esq.
Treasurer                              Taylor, Sylla & Agin, LLP           Corporate Liaison
Shipman & Goodwin LLP                  The Continental Building            The Coca-Cola Company
One Constitution Plaza                 1012 Fourteenth Street, NW          One Coca-Cola Plaza
Hartford, CT 06103-1919                Suite 415                           Atlanta, GA 30313
Tel: 860.251.5515                      Washington, DC 20005                Tel: 404.676.2351                   Tel: 202.783.7876         
Vickie E. Turner, Esq.                                                     Karol Corbin Walker, Esq.
Secretary                              LaTanya Langley, Esq.               Advisor
Wilson Turner Kosmo LLP                Corporate Liaison                   LeClairRyan
550 West C Street, Suite 1050          Diageo North America                Two Penn Plaza East
San Diego, CA 92101                    801 Main Avenue                     Newark, NJ 07105
Tel: 619.236.9600                      Norwalk, CT 06851                   Tel: 973.491.3522          Tel: 203.229.4503         
Kimberly R. Phillips, Esq.                                                 Gregory M. Wesley, Esq.
Immediate Past Chair                   Sundria R. Ridgley, Esq.            Advisor
Shell Oil Company                      Corporate Liaison                   Gonzalez, Saggio & Harlan LLP
One Shell Oil Plaza                    Radio One                           225 E. Michigan, Fourth Floor
910 Louisiana, Suite 4804              1 Centennial Plaza                  Milwaukee, WI 53202
Houston, TX 77002                      705 Central Avenue, Suite 200       Tel: 414.277.8500
Tel: 713.241.3200                      Cincinnati, OH 45202                  Tel: 513.679.6009
                                           Theodore A. Wood, Esq.
Michael K. Choy, Esq.                                                      Website Liaison
Advisor                                                                    Sterne, Kessler, Goldstein & Fox PLLC
Burr & Forman LLP                                                          1100 New York Avenue, NW
420 North Twentieth Street                                                 Washington, DC 20005
Suite 3400                                                                 Tel: 202.772.8520
Birmingham, AL 35203                                             
Tel: 205.458.5364

                              The National Bar Association Commercial Law Section
 The Commercial Law Connection                                       PAGE 1 3

Highlights from the NBA Convention - New Orleans

               The National Bar Association Commercial Law Section
               NBA Commercial Law
                Section Newsletter                                    The National Bar Association
                       Editorial Board
                                                                    Commercial Law Section Newsletter
               Jean-Marie Sylla, Jr., Esq.
                Taylor, Sylla & Agin, LLP
                    Washington, DC

               Veronica L. Merritt, Esq.                          The Commercial Law Connection
                Ogletree, Deakins, Nash,
                 Smoak & Stewart, P.C.                                 CONNECTING PEOPLE, IDEAS
                   Birmingham, AL                                         AND OPPORTUNITIES
Tamika Langley Tremaglio, Esq.
  Deloitte Financial Advisory
         Services LLP
       Washington, DC
                                                                          National Bar Association
       NBA Commercial Law                                                   Phone: (202) 842-3900
     Section Design/Publisher
                                                                             Fax: (202) 289-6170
                    Jeanette Zakkee
                  Zakkee and Associates                             Email:
                      Atlanta, GA


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