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The Commercial
BAR
The National Bar Association
Commercial Law Section

THE NATIONAL

ASSOCIATION
N

Law Connection
B
A VOLUME 7 - ISSUE 3

1925
Fall 2010

CONNECTING PEOPLE, IDEAS AND OPPORTUNITIES

Message from the Chair

G
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
INSIDE THIS ISSUE:
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: http://www.nbacls.com/Annual_Con-
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.
com.
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 jmsylla@tsaﬁrm.com
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 http://www.usdoj.gov/opa/pr/2008/June/08-crm-505.html.
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 http://www.sec.gov/litigation/litreleases/
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)).
17
Dodd-Frank Wall Street Reform and Consumer Protection Act §
1
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)).
2
2008 Mid Year in Review, Gibson, Dunn & Crutcher LLP, 19
15 U.S.C. § 78u-4(b)(2).
July 7, 2008, http://www.gibsondunn.com/publications/pages/ 20
Glazer Capital Management, LP v. Magistri, 549 F.3d 736, 742
2008mid-yearfcpaupdate.aspx. -743 (9th Cir. 2008).
3
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 nytimes.com/2007/05/08/business/08chevron.html.
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-
4
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: http://www.nera.com/image/Pub_
FCPA_Settlements_0109_Final2.pdf). * Sean C. Grifﬁn is Of Counsel at Step-
5
Id. toe & Johnson LLP, a Washington, DC
6
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-
7
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
8
Stipulation of Settlement, In re Immucor Inc. Securities Litiga- corporate compliance programs.
tion, 2007 WL 5442320 (N.D. Ga., May 14, 2007).
9
Id.

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 jmsylla@tsaﬁrm.com.

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: www.shipmangoodwin.com
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 jmastrianni@goodwin.com or Laura Soll, Laura Soll Public Re-
Association. lations at (860) 688-4499 or laura@sollpr.com.

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 www.naaia.org.

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 www.cpcusociety.org.
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 donjohnson@dojlaw.com or through his website – www.
mary judgment in favor of Alcon Laboratories, Inc., 343 Ill.Dec. dojlaw.com.
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- www.trialcounsel.org.
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 greg_wesley@gshllp.com.
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
NATIONAL BAR ASSOCIATION COMMERCIAL LAW SECTION
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 demonica.d.gladney@exxonmobil.com Tel: 804.646.7953
david.b.cade@boeing.com brian.telfair@richmondgov.com
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 damon.hart@ogletreedeakins.com Tel: 202.879.5693
dawntezino@mehaffyweber.com ttremaglio@deloitte.com
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
rsimpson@goodwin.com Tel: 202.783.7876 dfolmar@na.ko.com
jmsylla@tsaﬁrm.com
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
vturner@wilsonturnerkosmo.com Tel: 203.229.4503 karol.corbinwalker@leclairryan.com
latanya.langley@diageo.com
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 greg_wesley@gshllp.com
kimberly.phillips@shell.com Tel: 513.679.6009
sridgley@radio-one.com 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 twood@skgf.com
Tel: 205.458.5364
mchoy@burr.com

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: headquarters@nationalbar.org
Atlanta, GA

BAR

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