September 2016 CMM Newsletter: Negotiation Tips and More
Posted: September 17th, 2016
News (All)
How to Avoid a “Paper” Anti-Corruption Compliance Program
Posted: September 16th, 2016
Published In: The Suffolk Lawyer
Tags: international
In December 2008, Siemens AG, Europe’s largest engineering and electronics conglomerate, settled Foreign Corrupt Practices Act (“FCPA”) charges with the DOJ and SEC for a record-setting $800 million. Aside from the scope of the violations and the size of the penalties, the Siemens case was noteworthy because it so clearly criticized the deficiencies in the company’s compliance program. The DOJ charging papers stated that Siemens merely adopted a “paper program” largely limited to distributing anti-corruption policies without establishing a culture of compliance reinforced by adequate training and controls.
The FCPA prohibits U.S. persons, companies, and issuers from, among other things, bribing or attempting to bribe a foreign official to secure an improper business advantage. As the DOJ and SEC increasingly investigate small and medium-sized companies for potential FCPA violations, the lessons learned from the Siemens settlement are as important today as they were in 2008. Drafting a comprehensive anti-corruption policy is of little use if it is not enforced, if the company’s compliance personnel are not empowered, or if no one in the organization is trained on how to spot corruption red flags. Companies (and their lawyers), particularly those with significant international operations or overseas sales, must ask themselves whether they too have a “paper” compliance program, assuming they have an anti-corruption program at all.
The following approaches, though not exhaustive, will help ensure that your anti-corruption compliance program is on sure footing and mitigate the damage should your organization face an FCPA investigation. First, draft an anti-corruption policy that is tailored to your company’s risk, geographic footprint, and other unique considerations. You should not pull an FCPA policy off of a shelf—one size certainly does not fit all. While most anti-corruption policies will contain similar elements, the DOJ and SEC are more impressed with companies that take a risk-based approach to compliance rather than those who simply throw money at the problem and try to emulate what they consider to be a best-in-class compliance program. At the very least, the policy should emphasize a company’s commitment to adhering to both the spirit and letter of the law, as well as explain common FCPA pitfalls, such as travel and entertainment expenses or the role of consultants and agents.
Drafting a sound anti-corruption policy is only the beginning. You need to make sure that employees at all levels are aware of the policy, and that those who represent the greatest FCPA risk are regularly certifying their compliance. Some companies choose to make their anti-corruption policy part of their employee welcome packet. Be careful, however, that the policy is not just another document that everyone has to read and sign. Companies should consider having employees—or at least a subset of high-risk employees—recertify on an annual or semi-annual basis that they have reviewed and understand the policy. Companies should do the same for any overseas consultants or agents.
Next, among the criticisms of Siemen’s compliance efforts was that the company lacked a mandatory FCPA training program. Risk-based and continuous training is a key factor that the DOJ and SEC will consider when evaluating a company’s efforts to comply with the FCPA, and may potentially lessen the consequences of a violation. Training may be in-person, self-led, web-based, or some combination thereof. Moreover, to the extent feasible, companies should tailor their training to the particular audience. For instance, while it may be appropriate to discuss legal standards and concepts when delivering training to the General Counsel’s office, legal jargon is probably not appropriate when delivering the same training to a company’s sales team.
Again, one size does not fit all. Companies should be balancing their resources against their compliance risk. And what do we mean by risk-based? For instance, if a company employs 1,000 people, 900 of whom work in a factory in Oklahoma and 100 work overseas selling and marketing the company’s products to foreign governments, the company should focus its training efforts on those 100 employees who are more likely to deal directly with a foreign official.
The government also criticized Siemens for not appropriately investigating and responding to corruption red flags. Assuming a company has adequately trained its employees, and the policy provides a mechanism for those employees to report suspected corrupt activity, the company must ensure that it responds quickly and effectively. The company must first assess the allegations to determine the scope of the investigation and who should conduct the investigation. Decisions regarding an FCPA investigation should be taken at the highest level possible to ensure accountability. For instance, the DOJ noted that serious allegations of bribery in the Siemens case were never even referred to the Board of Directors or the Audit Committee. Depending on the circumstances, the Company may not be in a position to investigate the allegations internally and should considering bring in outside counsel to conduct a thorough, impartial investigation.
Finally—although certainly not exhaustively—companies should ensure that their compliance function is adequately resourced and empowered to monitor the anti-corruption program and conduct the due diligence necessary to help prevent FCPA violations in the first place. The DOJ criticized Siemens for failing to establish a “sufficiently empowered and competent” compliance department. The adequacy of compliance resources will vary from organization to organization. After all, a company with 50 employees cannot be expected to spend the same amount of money on compliance as a company with 500 employees. But to the extent possible compliance staff should be independent and, ideally, not dual-hatted. Companies should, on a risk-based standard, conduct due diligence on third-party agents or consultants who operate overseas and potential acquisitions or joint ventures in countries known to have high levels of official corruption.
Anti-corruption compliance means more than drafting a policy or memorandum and sticking it in a drawer. If they hope to avoid FCPA liability, companies and their counsel should be prepared invest the time and resources commensurate with their risk. As the DOJ has been saying for years now, a paper anti-corruption program just doesn’t cut it.
Rules Governing Collection of Personally Identifiable Information within the EU Set to Change
Posted: August 23rd, 2016
Tags: corporate
Companies that collect personally identifiable information from individuals within the European Union should be aware of the new General Data Protection Regulations (“GDPR”) approved by the European Parliament earlier this year and effective mid-2018. The GDPR will replace the current Directive 95/46/EC (“Directive”). Although implementation is two years away, compliance with the GDPR is onerous. Businesses should begin to take steps now so that they are fully compliant by the deadline.
The GDPR governs the collection and processing of “personal data,” a term broadly defined to include any data that directly or indirectly identifies a living individual. This data includes online identifiers, device identifiers, cookie IDs, and IP addresses. The GDPR applies to businesses that collect personal data as well as those that process personal data.
The conditions for collecting personal data have become stricter. Businesses must obtain an individual’s consent to use his or her personal data. The individual must clearly give consent; ways to obtain consent may include the person checking a box when visiting a website or giving the individual the ability to manage technical settings. The consent must be separately obtained and not a part of a broader agreement addressing other topics. The services of a business cannot be contingent on obtaining the individual’s consent, unless the business has a legitimate reason for needing the personal data. The GDPR requires parental consent to collect data for children under 13 years old.
The GDPR requirements related to informing the individual how the personal data is used are more extensive than what the Directive currently requires. In addition to the requirements under the Directive, businesses must provide individuals with the contact information for the company’s “data protection officer,” the legal basis for processing the data, the details of data transfers outside the EU (if permitted), the duration of retention, the individual’s right to restrict and erase the personal data, and the individual’s right to withdraw consent.
An individual may revoke consent at any time when the processing of personal data is for direct marketing or if there is no legal basis for the collection. Businesses are required to provide the individual the same methods of withdrawing consent as for obtaining the individual’s consent. Individuals also have the right to require that the personal data be erased when they revoke their consent. If an individual revokes consent, the business that collected the personal data must inform other businesses that are using the data.
To reduce the possibility of data breaches, the GDPR subjects businesses to greater data governance obligations. Some of these obligations include conducting Privacy Impact Assessments, which analyze risks of noncompliance with the GDPR, and appointing a data protection officer, whose duties include advising on compliance and conducting compliance training. In the event of a data breach, the GDPR provides that all breaches must be reported to the appropriate supervisory authority and possibly the individuals whose personal data was compromised, depending on the severity of the breach. During and after a breach, businesses must maintain specific documentation and the remedial action taken.
Transfers of personal data to countries outside the EU are restricted unless a safe harbor is in place. The current safe harbor for transfers to the United States will no longer be valid; however, discussions are ongoing as to implementing a new safe harbor under the GDPR regime.
The penalties for noncompliance with the GDPR are severe. An individual can bring an action against a business for damages stemming from a violation of the GDPR. Administrative fines are imposed on a case-by-case basis and can range from €10,000,000 (approximately $11,307,300.00 USD) to €20,000,000 (approximately $22,614,600.00 USD), or 2% to 4% of global turnover, whichever is higher.
If you have any questions regarding the General Data Protections Regulations, please contact us.
Making Gifts in These Financial Times
Posted: August 23rd, 2016
Tags: estate planning
If a person has the desire to make any gifts, now may be a great time to do so. There are sometimes financial benefits to making certain gifts. A tough economy is often the best impetus to make gifts. It may seem counter-intuitive at first—making gifts when the donor has less valuable property—but the conditions are really ripe for the picking.
- Interest rates are at historic lows. Low interest rates assist in two major ways. First, in loan transactions between family members, a lower interest rate can be used without the Internal Revenue Service seeking to impute interest under §7872. The rules for intrafamily loans are a bit complex, so make such loans very carefully. Second, for certain complex gifting strategies, the Internal Revenue Code requires that the donor compute the gift using rates based on current interest rates. Since the interest rates are so low, the IRS rates are also very low.
- Property values are down. While there has certainly been some rebound, property values are still depressed in many areas, and that will assist in determining the value of the donor’s gift. There is clearly an emotional component to gifting. So when a potential donor considers making gifts, he or she usually looks to see if he or she will need the asset later. If the conditions are not so clear, and the potential donor doesn’t feel that he or she can live without that asset, he or she is less likely to give it away. This is not unusual. However, emotions aside, the donor can minimize the transfer tax cost by making the gift when the value is low. This applies with a gift of any type of property, be it real estate, a stock portfolio, artwork, or anything else.
- The federal exemption is $5.45 million. Since the federal gift tax exemption is $5.45 million for 2016, up to $5.45 million can be gifted without any federal gift tax. This exemption permits an immense transfer of wealth without any gift tax consequences.
The combination of low interest rates, lower valuations, and the increased federal gifting exemption are a great combination for gifting. Many years from now, when we look back on this time, we are likely to see the alignment of these factors as an incredible opportunity to have made substantial gifts. The only question is: will potential donors take advantage of the opportunity?
Life Science Companies under Increasing DOJ and SEC Scrutiny for Anti-Corruption Enforcement
Posted: August 23rd, 2016
Tags: healthcare, international, white collar
The pharmaceutical and medical device industry has always been among the most heavily regulated in the United States. In recent years, however, these companies have become the subject of another regulatory and law enforcement focus: the Foreign Corrupt Practices Act (FCPA).
The FCPA is a federal law that prohibits U.S. persons, companies, and issuers from, among other things, bribing or attempting to bribe foreign officials in order to secure an improper business advantage. The FCPA was passed in 1977, but laid relatively dormant for decades. In recent years, however, the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) have significantly stepped up enforcement of the FCPA. For some perspective, since 2008, the top ten FCPA enforcement actions have cost those ten companies a total of $4.4 billion in fines and disgorgement.
Given the frequent interaction with foreign officials, any company operating in a highly regulated or state-controlled industry has an inherently higher risk of one of its employees, consultants, subsidiaries, or partners committing an FCPA violation. Because the FCPA’s definition of “foreign officials” is so expansive, pharmaceutical and medical device companies are constantly interfacing with such officials. For instance, in China, most hospitals are state institutions, making doctors and executives foreign officials for the purposes of the FCPA. The risks are not limited only to the sale of pharmaceutical products to state-owned entities. Because of the level of government involvement in foreign health markets, the approval, manufacturing, importation, exportation, pricing, and marketing of drugs and medical devices will be subject to government approval at every turn.
Given the inherent risks, it is unsurprising that there has been a marked uptick in DOJ and SEC investigations into the international sales practices of life science companies. Earlier this year, Swiss-based pharmaceutical giant Novartis AG agreed to pay $25 million to the SEC to settle charges that it violated the FCPA when its China-based subsidiaries engaged in pay-to-prescribe schemes to increase sales. Also in 2016, SciClone Pharmaceuticals paid $12 million to settle claims stemming from international subsidiaries making improper payments to healthcare professionals at state-run institutions in China. A few years ago, Orthofix International, a Texas-based medical device company, was charged with paying routine bribes referred to as “chocolates” to Mexican officials to obtain sales contracts with government hospitals. The list goes on and on.
In light of the financial, reputational, and even criminal consequences that come with FCPA violations, pharmaceutical and medical device companies of all sizes must proactively address their anti-corruption compliance needs. Companies must analyze their international footprint to determine their greatest sources of risk, develop and implement a comprehensive anti-corruption policy, train their relevant staff, consultants, and subsidiaries, and ensure that the company’s culture takes the risks seriously. Other key initiatives include sound accounting and monitoring practices for all overseas sales, due diligence procedures for engaging third-party consultants or distributors, and clearly-established mechanisms for reporting and investigating potential FCPA violations. The U.S. government has made it clear that adopting an anti-corruption policy that sits on a shelf collecting dust will not limit your liability—so-called “paper” compliance programs do not suffice.
Goodwill in Partnership Valuations
Posted: August 23rd, 2016
Published In: The Suffolk Lawyer
Should “goodwill” be a component in in determining the value of a partnership? The Commercial Division in Albany County recently tackled this issue in the case of Romanoff v. Center for Rheumatology, LLP, et al. (J. Platkin). The Center for Rheumatology is a medical practice founded in the 1980s and plaintiff Norman Romanoff, M.D. is one of the founding partners. In late 2013, Dr. Romanoff decided he wanted to retire and sought to dissolve the practice and receive payment for his interest in the practice. Despite Dr. Romanoff’s attempts to obtain an accounting from his partners, they allegedly refused to comply, so he brought a lawsuit against the practice and the other partners in 2015 under the New York Partnership Law seeking: (1) a valuation and distribution; (2) an accounting; (3) distribution of interest; and (4) winding up of the practice. Before any discovery took place, the defendants, believing the only issue to be determined was whether a value should be placed on the “goodwill” of the partnership, made a motion for summary judgment for a determination on that issue.
In support of their motion, the defendants submitted affidavits from the other partners stating that they never paid any monies toward the goodwill of the practice at any point during the partnership and that Dr. Romanoff was the first partner to leave the practice. The practice’s accountant also submitted an affidavit claiming that, since he became the accountant in 1993, the practice did not increase the value of goodwill despite the practice’s increase in revenues, profits, and reputation over the years and that the minimal value that was in the practice’s books for goodwill was merely a placeholder. In opposition, Dr. Romanoff attempted to establish the huge growth of the practice over time, including an additional office, annual revenues over $18 million, increase in employees, increase in services provided, and an extensive professional referral network. He also provided the affidavit of an accountant who opined that goodwill should be included in valuing Dr. Romanoff’s interest.
The Court, citing Dawson v. White & Case, 88 N.Y.2d 666, 670 (1996), noted in its decision that the term “goodwill,” as it pertains to professional firms, refers to the ability to attract clients as a result of the firm’s name, location, or the reputation of its professionals. However, “even if a given partnership might be said to possess goodwill, the courts will honor an agreement among partners – whether express or implied – that goodwill not be considered an asset of the [partnership].” Id. at 671. In the Dawson case, the Court of Appeals, in finding that the partnership did not assign value to goodwill, specifically relied upon an express agreement among the partners to assign no value to the goodwill of the partnership but also emphasized that the partners’ course of dealing demonstrated that incoming and outgoing partners never paid or received payment for the goodwill of the partnership.
Here, the Court decided that things were still too murky to come to a decision on this issue of “goodwill” so early in the litigation without any discovery. The Court denied the motion for summary judgment holding that issues of fact remained as to whether the practice has distributable goodwill and whether the practice has the ability to attract patients as a result of its name, location, and reputation. Importantly, unlike the Dawson case, there was no express agreement among the partners in this case to exclude goodwill as a distributable asset. The Court also rejected the defendants’ argument that the absence of an express agreement that includes the distribution of goodwill would preclude the plaintiff from obtaining the value of the goodwill because “Goodwill, when it exists as incidental to the business of a partnership, is presumptively an asset to be accounted for.” Matter of Brown, 242 N.Y. 1, 7 (1926).
The Court did acknowledge that, based on the proof submitted by the defendants, it appeared that there could be an implied agreement among the partners that goodwill would not be considered a distributable asset given their course of dealing and their accounting records. However, the Court ultimately concluded that, without the benefit of discovery, it was too early to conclusively determine that an implied agreement existed.
Although the Court did not reach a determination one way or the other as to the goodwill of the partnership and whether it is a distributable asset for this practice, this case provides important insight to individuals involved in partnerships as far as what factors courts will consider in reviewing the issue of goodwill as a distributable asset. As always, if you either want goodwill to be a distributable asset or want it to be excluded, the best approach is always to put it in writing so there can be no doubt as to the parties’ intentions.
5 Negotiation Habits to Break
Posted: August 23rd, 2016
Tags: negotiation
Habits are notoriously hard to break. It’s human nature to settle into comfortable patterns of behavior and continue doing things as we’ve always done them. Our approach to negotiation, whether in our personal and professional lives, is no different. The hard bargainers come roaring into every negotiation trying to be bigger and brasher than everyone else, regardless of the issue or the stakes. The avoiders routinely give away the store in their desire to get in and get out. Most of us fall somewhere in between, bringing the same phrases, faces, and techniques from one negotiation to the next.
Consistency can be a good thing. I bring techniques that work for me – for example, attentively listening, then paraphrasing the other side’s viewpoint back to them to make sure I understand it – to every negotiation table. But if your toolbox is weighed down with more old habits than actual techniques, it’s time to declutter.
Here, five habits to leave behind – and for additional reading on this subject, I highly recommend Beyond Winning: Negotiating to Create Value in Deals and Disputes by Robert H. Mnookin, Scott R. Peppet, and Andrew S. Tulumello (Belknap Press of Harvard University Press).
- Tuning out. Negotiators often spend the whole time their adversary is speaking thinking of what they’ll say next or letting their minds wander. Negotiation is a back and forth volley of ideas – so if you’re not listening to the other side, you’re just spinning your wheels. Don’t waste the opportunity to learn what makes your opponent tick.
- Making unreasonable demands, then making small concessions at a snail’s pace. This tactic is so common that some negotiators automatically assume the first demand isn’t remotely serious. As a result, negotiations are drawn out or even bust unnecessarily. You don’t have to start with your final position, but starting miles away from it won’t help.
- Making threats. Except in extreme circumstances, threatening the other side with dire consequences if they don’t give you everything you want is just not worth the risk. You’ll lose credibility, alienate them, and quash their interest in making the deal work.
- Insulting. Think very carefully before making things personal. I’ve seen deals nearing the finish line implode because someone angrily tossed an insult. Is the satisfaction of making a snide comment worth throwing out the whole deal?
- Overestimating what your opponent knows. If you assume your adversary knows all the weaknesses of your position, you might unintentionally give those weaknesses away. Negotiate according to your playbook – not theirs.
CMM’s work in Pella deal featured in LIBN article “Pella Acquires LI Manufacturer”
Posted: August 17th, 2016
By Calverton-based Reilly Windows & Doors has been acquired by Pella Corporation in a deal that closed August 1.
Terms of the acquisition were not disclosed.
The Calverton company remains under the leadership of Michael Reilly and its 180 employees will continue making custom windows and doors at the firm’s 192,000-square-foot facility at 901 Burman Blvd.
Reilly’s products will eventually be integrated into the Pella Crafted Luxury collection that is showcased in Pella’s 7,000-square-foot showroom at Chicago’s Merchandise Mart, according to a statement from the Iowa-based window and door giant.
Founded in 1983, Reilly Windows & Doors has worked with architects and custom builders to manufacture architectural windows and doors in wood, bronze, and steel for the residential and commercial sectors.
“From the very beginning, the reputation and breadth of offering from Reilly Windows & Doors has grown due to the beauty and superiority of our products,” Michael Reilly, company founder and president, said in the statement. “Partnering with Pella Corporation allows us to continue that growth as we join the Pella Crafted Luxury collection of brands.”
Reilly’s firm was represented by attorneys Joe Campolo and Vincent Costa of Ronkonkoma-based Campolo, Middleton & McCormick in the acquisition.
Pella, founded in 1925 and headquartered in Pella, Iowa, has more than 7,500 employees and a dozen manufacturing facilities throughout the U.S.
Long Island Business News: CMM’s role in major M&A deal spotlighted in “National Landscape Firm Acquires LI’s Bissett”
Posted: August 17th, 2016
By Bissett Nursery Corp. and Bissett Equipment Corp. have been acquired by SiteOne Landscape Supply, a publicly traded company based in Roswell, Ga.
Terms of the deal were not disclosed.
Bissett is a 53-year-old family business with locations in Holtsville and Dix Hills that distributes nursery supplies and equipment. SiteOne plans to maintain both of Bissett’s Long Island locations, which cover nearly 50 acres of land. SiteOne was formerly known as John Deere Landscapes before changing its name when it went public in May.
SiteOne, which has more than 465 locations across North America, is a distributor of wholesale irrigation, landscape lighting, nursery, hardscapes, maintenance products and supplies for the green industry and golf and turf care professionals.
In a company statement, Doug Black, SiteOne CEO, said Bissett is a terrific fit with SiteOne on Long Island.
“Both Bissett Nursery and Bissett Equipment are clear market leaders and they complement our existing business in the agronomics, irrigation, and outdoor lighting markets,” Black said in the statement. “Joining forces with the Bissett team makes us the largest supplier of all landscaping supplies, material and equipment to green industry professionals on Long Island and in New York City.”
Attorneys Christine Malafi, Alan Weinberg, Arthur Yermash, and Vincent Costa of Ronkonkoma-based Campolo, Middleton & McCormick represented Bissett in the deal, along with selling agent Bruce Newman of Protegrity Advisors.
http://libn.com/2016/08/17/national-landscape-firm-acquires-lis-bissett/