Материал: guide

and responsibility for restoring public trust by conducting themselves in a manner that is worthy of the trust that is placed in them.” Cynthia

Glassman, SEC Implementation of Sarbanes-Oxley: The New Corporate Governance, Remarks at National Economists Club (April 7, 2003), available at http://www.sec.gov/news/speech/spch040703cag.htm .

312 Indeed, research has found that “[e]thical culture is the single biggest factor determining the amount of misconduct that will take place in a business.” Ethics Resource Center, 2009 National Business Ethics Survey: Ethics in the Recession (2009), at 41. Metrics of ethical culture include ethical leadership (tone at the top), supervisor reinforcement of ethical behavior (middle management reinforcement), and peer commitment (supporting one another in doing the right thing). Ethics Resource Center, 2011 National Business Ethics Survey: Workplace Ethics in Transition (2012) at 19. Strong ethical cultures and strong ethics and compliance programs are related, as data show that a well-implemented program helps lead to a strong ethical culture. Id. at 34. “Understanding the nature of any gap between the desired culture and the actual culture is a critical first step in determining the nature of any ethics-based risks inside the organization.” David Gebler, The Role of Culture at 1.7, in Society of Corporate Compliance and Ethics, The Complete Compliance and Ethics Manual (2011). To create an ethical culture, attention must be paid to norms at all levels of an organization, including the “tone at the top,” “mood in the middle,” and “buzz at the bottom.” Id. 1.9-1.10.

313See, e.g., U.S. Sentencing Guidelines § 8B2.1(2)(B)-(C) (2011).

314Id.

315Id.

316Id.

317See, e.g., Ethics and Compliance Officer Association Foundation, The Ethics and Compliance Handbook: A Practical Guide From Leading Organizations (2008) at 13-26 [hereinafter The Ethics and Compliance Handbook].

318See U.S. Sentencing Guidelines § 8B2.1(b)(4) (2011).

319See U.S. Sentencing Guidelines § 8B2.1(b)(6) (2011) (“The organization’s compliance and ethics program shall be promoted and enforced consistently throughout the organization through (A)

appropriate incentives to perform in accordance with the compliance and ethics program; and (B) appropriate disciplinary measures for engaging in criminal conduct and for failing to take reasonable steps to prevent or detect criminal conduct.”).

320See, e.g., Joseph E. Murphy, Society of Corp. Compliance and Ethics, Using Incentives in Your Compliance and Ethics Program (2011) at 1; The Ethics and Compliance Handbook, supra note 317, at 111-23.

321Stephen M. Cutler, Director, Division of Enforcement, SEC, Tone at the Top: Getting It Right, Second Annual General Counsel Roundtable (Dec. 3, 2004), available at http://www.sec.gov/news/speech/

spch120304smc.htm.

322See, e.g., ICC Rules on Combating Corruption, supra note 309, at 8.

323See, e.g. U.S. Sentencing Guidelines § 8B2.1(b)(5)(C); Compliance 101, supra note 302, at 30-33.

324Corporate Board Member/FTI Consulting 2009 Legal Study, Buckle Up. Boards and General Counsel May Face a Bumpy Ride in 2009, at 5

(“Interestingly, while 67% of general counsel say their company is subject to compliance under the FCPA, 64% of those say there is room for improvement in their FCPA training and compliance programs.”).

325See U.S. Sentencing Guidelines § 8B2.1(b)(5)(B) (“The organization shall take reasonable steps . . . to evaluate periodically the effectiveness of the organization’s compliance and ethics program.”).

326See, e.g., Compliance 101, supra note 302, at 60-61; The Ethics and Compliance Handbook, supra note 317, at 155-60; Business Principles for Countering Bribery, supra note 309, at 14.

327See, e.g., Michael M. Mannix and David S. Black., Compliance Issues in M&A: Performing Diligence on the Target’s Ethics and Compliance Program at 5.71-5.81, in Society of Corporate Compliance

and Ethics, The Complete Compliance and Ethics Manual (2011).

328Complaint, SEC v. Syncor International Corp., supra note 190; Criminal Information, United States v. Syncor Taiwan, Inc., supra note

329U.S. Dept. of Justice, FCPA Op. Release 08-02 (June 13, 2008),

available at http://justice.gov/criminal/fraud/fcpa/opinion/2008/0802. pdf.

330Complaint, SEC v. Rae Sys., Inc., supra note 92; Non-Pros. Agreement,

In re Rae Sys. Inc., supra note 92.

331U.S. Dept. of Commerce, Business Ethics: A Manual for Managing a Responsible Business Enterprise in Emerging Market Economies (2004), available at http://www.ita.doc.gov/ goodgovernance/adobe/bem_manual.pdf.

332U.S. Dept. of State, Fighting Global Corruption: Business Risk Management (2d ed. 2001), available at http://www.ogc.doc. gov/pdfs/Fighting_Global_Corruption.pdf.

333See Harmonising Anti-Corruption Compliance, supra note

302, at 46 (“Anti-corruption compliance is becoming more and more harmonised worldwide.”).

334OECD Good Practice Guidance, supra note 309.

335APEC Anti-corruption Code, supra note 309.

336ICC Rules on Combating Corruption, supra note 309.

337Business Principles for Countering Bribery, supra note 309.

338The Ten Principles, supra note 309.

339Integrity Compliance Guidelines, supra note 309.

340Partnering Against Corruption, supra note 309.

34115 U.S.C. §§ 78dd-2(g)(1)(A), 78dd-3(e)(1)(A), 78ff(c)(1)(A).

34215 U.S.C. §§ 78dd-2(g)(2)(A), 78dd-3(e)(2)(A), 78ff(c)(2)(A); 18 U.S.C. § 3571(b)(3), (e) (fine provision that supersedes FCPA-specific fine provisions).

34315 U.S.C. § 78ff(a).

34415 U.S.C. § 78ff(a).

34518 U.S.C. § 3571(d); see Southern Union v. United States, 132 S. Ct.

2344, 2350-51 & n.4 (2012).

34615 U.S.C. §§ 78dd-2(g)(3), 78dd-3(e)(3), 78ff(c)(3).

347The U.S. Sentencing Guidelines are promulgated by the U.S. Sentencing Commission:

The United States Sentencing Commission (“Commission”) is an independent agency in the judicial branch composed of seven voting and two non-voting ex-officio members. Its principal purpose

is to establish sentencing policies and practices for the federal criminal justice system that will assure the ends of justice by promulgating detailed guidelines prescribing the appropriate sentences for offenders convicted of federal crimes. The Guidelines and policy statements promulgated by the Commission are issued pursuant to Section 994(a) of Title 28, United States Code.

U.S. Sentencing Guidelines § 1A1.1 (2011).

348Id. at ch. 3-5.

349Id. § 2C1.1.

350Id. § 2C1.1(b).

351Id. § 3B1.1.

352Id. at ch. 4, § 5A.

353Id. § 2B1.1(b)(10)(B), 2B1.1(b)(18)(A).

354Id. § 8C2.4 (a).

355Id. § 8C2.5.

356Id. § 8C2.5(f ), 8C2.5(g).

357DOJ has exercised this civil authority in limited circumstances in the last thirty years. See, e.g., United States & SEC v. KPMG Siddharta Siddharta & Harsono, et al., No. 01-cv-3105 (S.D. Tex. 2001) (entry of injunction barring company from future FCPA violations based on allegations that company paid bribes to Indonesian tax official in order to reduce the company’s tax assessment); United States v. Metcalf &

Eddy, Inc., No. 99-cv-12566 (D. Mass. 1999) (entry of injunction barring company from future FCPA violations and requiring maintenance of compliance program based on allegations that it paid excessive marketing and promotional expenses such as airfare, travel expenses, and per

diem to an Egyptian official and his family); United States v. American Totalisator Co. Inc., No. 93-cv-161 (D. Md. 1993) (entry of injunction barring company from future FCPA violations based on allegations that it paid money to its Greek agent with knowledge that all or some of the money paid would be offered, given, or promised to Greek foreign officials in connection with sale of company’s system and spare parts);

United States v. Eagle Bus Manufacturing, Inc., No. 91-cv-171 (S.D. Tex. 1991) (entry of injunction barring company from future FCPA violations

based on allegations that employees of the company participated in bribery scheme to pay foreign officials of Saskatchewan’s state-owned transportation company $50,000 CAD in connection with sale of buses); United States v. Carver, et al., No. 79-cv-1768 (S.D. Fla. 1979) (entry

of injunction barring company from future FCPA violations based on allegations that Carver and Holley, officers and shareholders of Holcar Oil Corp., paid $1.5 million to Qatar foreign official to secure an oil drilling concession agreement); United States v. Kenny, et al., No. 79-cv- 2038 (D.D.C. 1979) (in conjunction with criminal proceeding, entry of injunction barring company from future FCPA violations for providing illegal financial assistance to political party to secure renewal of stamp distribution agreement).

35815 U.S.C. §§ 78dd-2(g)(1)(B), 78dd-3(e)(1)(B), 78ff(c)(1)(B); see also

17C.F.R. § 201.1004 (providing adjustments for inflation).

35915 U.S.C. §§ 78dd-2(g)(2)(B), 78dd-3(e)(2)(B), 78ff(c)(2)(B); see also

17C.F.R. § 201.1004 (providing adjustments for inflation).

36015 U.S.C. §§ 78dd-2(g)(3), 78dd-3(e)(3), 78ff(c)(3); see also 17 C.F.R. § 201.1004 (providing adjustments for inflation).

361Section 21(B)(b) of the Exchange Act, 15 U.S.C. § 78u(d)(3); see also

17C.F.R. § 201.1004 (providing adjustments for inflation).

362See Securities Enforcement Remedies and Penny Stock Reform Act

of 1990, Pub. L. No. 101-429, 104 Stat. 931 §§ 202, 301, 401, and 402 (codified in scattered sections of Title 15 of the United States Code).

36348 C.F.R. §§ 9.406-2, 9.407-2.

36448 C.F.R. § 9.402(b).

365See 48 C.F.R. §§ 9.406-1, 9.407-1(b)(2). Section 9.406-1 sets forth the following non-exhaustive list of factors:

(1)Whether the contractor had effective standards

of conduct and internal control systems in place at the time of the activity which constitutes cause for debarment or had adopted such procedures prior to any Government investigation of the activity cited as a cause for debarment.

(2)Whether the contractor brought the activity cited as a cause for debarment to the attention of the appropriate Government agency in a timely manner.

(3)Whether the contractor has fully investigated the circumstances surrounding the cause for debarment and, if so, made the result of the investigation available to the debarring official.

(4)Whether the contractor cooperated fully with Government agencies during the investigation and any court or administrative action.

(5)Whether the contractor has paid or has agreed to pay all criminal, civil, and administrative liability for the improper activity, including any investigative or administrative costs incurred by the Government, and has made or agreed to make full restitution.

(6)Whether the contractor has taken appropriate disciplinary action against the individuals responsible for the activity which constitutes cause for debarment.

(7)Whether the contractor has implemented or agreed to implement remedial measures, including any identified by the Government.

(8)Whether the contractor has instituted or agreed to institute new or revised review and control procedures and ethics training programs.

(9)Whether the contractor has had adequate

time to eliminate the circumstances within the contractor’s organization that led to the cause for debarment.

(10) Whether the contractor’s management recognizes and understands the seriousness of the misconduct giving rise to the cause for debarment and has implemented programs to prevent recurrence.

36648 C.F.R. § 9.406-1(a).

367Exec. Order No. 12,549, 51 Fed. Reg. 6,370 (Feb. 18, 1986); Exec. Order No. 12,689, 54 Fed. Reg. 34131 (Aug. 18, 1989).

36848 C.F.R. § 9.407-2(b).

369USAM § 9-28.1300 (2008).

ENDIX notes

370 See, e.g., African Development Bank Group, Integrity and Anti-Corruption Progress Report 2009-2010 7, 14 (“As the premier financial development institution in Africa, the AfDB is determined to root out misconduct, fraud and corruption within its own ranks as well as in the implementation of the projects it finances. In order to do so, the Bank created an anti-corruption and fraud investigation division in November 2005 as its sole investigative body. The unit became operational in June 2006 and commenced investigations in January 2007. . . . Investigations conducted by the IACD [Integrity and Anti-Corruption Department] are not criminal proceedings; they are administrative in nature. Sanctions range from personnel disciplinary actions, such as separation, to loan cancellation

and debarment for contractors, which can be temporary or permanent.”), available at http://www.afdb.org/fileadmin/uploads/afdb/Documents/ Publications/Integrity%20and%20Anti-Corruption.pdf; The World Bank Group, Procurement: Sanctions Committee (“The World Bank’s debarment process was first formulated in July, 1996, and the Sanctions Committee was established in November 1998 to review allegations and recommend sanctions to the President. Written procedures were issued in August 2001 and are posted on the Bank’s website, along with the sanction actions.”), available at http://web.worldbank.org/WBSITE/ EXTERNAL/PROJECTS/PROCUREMENT/0,,contentMDK:5000 2288~pagePK:84271~piPK:84287~theSitePK:84266,00.html.

371 See African Development Bank Group, Asian Development Bank, European Bank for Reconstruction and Development, Inter-American Development Bank Group and World Bank Group, Agreement

for Mutual Enforcement of Debarment Decisions (Apr. 9, 2010), available at http://siteresources.worldbank.org/NEWS/Resources/ AgreementForMutualEnforcementofDebarmentDecisions.pdf.

372 Id.; see also The World Bank Group, Cross-Debarment Accord Steps Up Fight Against Corruption (Apr. 9, 2010) (“‘With today’s cross-debarment agreement among development banks, a clear message on anticorruption is being delivered: Steal and cheat from one, get punished by all,’ said World Bank Group President Robert B. Zoellick.”), available at http:// web.worldbank.org/WBSITE/EXTERNAL/NEWS/0,,contentMDK:2 2535805~pagePK:64257043~piPK:437376~theSitePK:4607,00.html.

37322 C.F.R. §§ 126.7(a)(3)-(4), 120.27(a)(6).

374Authority under the AECA is delegated to the DDTC. See 22 C.F.R. § 120.1(a).

37522 U.S.C. § 2778(g)(1)(A)(vi), (g)(3)(B).

37622 C.F.R. § 127.7(c).

377See supra note 286.

378See Gary G. Grindler, Acting Dep. Att’y Gen., U.S. Dept. of

Justice, Mem. to the Heads of Department Components and United States Attorneys on Additional Guidance on the Use of Monitors in Deferred Prosecution Agreements and Non-Prosecution (May 25, 2010), available at http://www.justice.gov/dag/dag-memo-guidance- monitors.pdf; Lanny A. Breuer, Assist. Att’y Gen., Dep’t of Justice, Mem. to All Criminal Division Personnel on Selection of Monitors in Criminal Division Matters (June 24, 2009), available at http://www. justice.gov/criminal/fraud/fcpa/docs/response3-supp-appx-3.pdf; see also Craig S. Morford, Acting Dep. Att’y Gen., U.S. Dept. of Justice, Mem. to the Heads of Department Components and United States Attorneys on Selection and Use of Monitors in Deferred Prosecution Agreements and Non-Prosecution Agreements with Corporations (Mar. 7, 2008), available at http://www.justice.gov/dag/morford- useofmonitorsmemo-03072008.pdf.

379Historically, DOJ had, on occasion, agreed to DPAs with companies that were not filed with the court. That is no longer the practice of DOJ.

380USAM § 9-27.230.

381USAM § 9-27.230.B.

382DOJ has recently declined matters where some or all of the following circumstances were present: (1) a corporation voluntarily and fully disclosed the potential misconduct; (2) corporate principles voluntarily engaged in interviews with DOJ and provided truthful and complete information about their conduct; (3) a parent company conducted extensive pre-acquisition due diligence of potentially liable subsidiaries and engaged in significant remediation efforts post-acquisition; (4) a company provided information about its extensive compliance policies, procedures, and internal controls; (5) a company agreed to a civil resolution with the Securities and Exchange Commission while also demonstrating that criminal declination was appropriate; (6) only a single employee was involved in the improper payments; and (7) the improper payments involved minimal funds compared to overall business revenues.

383See Criminal Information, United States v. Peterson, supra note 8,

Press Release, U.S. Dept. of Justice, Former Morgan Stanley Managing Director Pleads Guilty for Role in Evading Internal Controls Required by FCPA (Apr. 25, 2012), available at http://www.justice.gov/opa/ pr/2012/April/12-crm-534.html (“After considering all the available facts and circumstances, including that Morgan Stanley constructed and maintained a system of internal controls, which provided reasonable assurances that its employees were not bribing government officials, the Department of Justice declined to bring any enforcement action against Morgan Stanley related to Peterson’s conduct. The company voluntarily disclosed this matter and has cooperated throughout the department’s investigation.”); see also Press Release, U.S. Sec. and Exchange Comm., SEC Charges Former Morgan Stanley Executive with FCPA Violations and Investment Adviser Fraud (Apr. 25, 2012), available at http://www. sec.gov/news/press/2012/2012-78.htm (“Morgan Stanley, which is not charged in the matter, cooperated with the SEC’s inquiry and conducted a thorough internal investigation to determine the scope of the improper payments and other misconduct involved.”).

384SEC Rules of Practice, 17 C.F.R. § 201.102(e).

385Deferred Pros. Agreement, In the Matter of Tenaris, S.A. (May 17, 2011), available at http://www.sec.gov/news/press/2011/2011-112-dpa.

pdf; see also Press Release, U.S. Sec. and Exchange Comm., Tenaris to Pay $5.4 Million in SEC’s First-Ever Deferred Prosecution Agreement (May 17, 2011), available at http://www.sec.gov/news/press/2011/2011-112. htm.

386See Non-Pros. Agreement, In re Tenaris, S.A. (May 17, 2011), available at http://www.justice.gov/criminal/fraud/fcpa/cases/tenaris-sa/2011- 03-14-tenaris.pdf.

387See U.S. Sec. and Exchange Comm., Enforcement Manual

§ 6.2.3. (March 9, 2012), available at http://www.sec-gov/divisions/ enforce/enforcementmanual.pdf.

388See id. § 6.2.4.

389See id. § 2.6.

39018 U.S.C. § 1514A(c).

39118 U.S.C. § 1513(e).

39215 U.S.C. § 78u-6(a)(3). The new provision defines “original information” to mean information that:

(A)is derived from the independent knowledge

or analysis of a whistleblower; (B) is not known to the Commission from any other source, unless the whistleblower is the original source of the

information; and (C) is not exclusively derived from an allegation made in a judicial or administrative hearing, in a governmental report, hearing, audit, or investigation, or from the news media, unless the whistleblower is a source of the information.

39315 U.S.C. § 78u-6; see also Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, § 922, 124 Stat. 1376, 1841-49 (2010).

394For detailed information about the program, including eligibility requirements and certain limitations that apply, see Section 922 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, available

at http://www.sec.gov/about/offices/owb/dodd-frank-sec-922.pdf, and the final rules on eligibility, Exchange Act Rule 21F-8, 17 C.F.R. § 240.21F-8.

395 For example, the rules: (1) make a whistleblower eligible for an award if the whistleblower reports original information internally, and the company informs the SEC about the violations; (2) give whistleblowers 120 days to report information to the SEC after first reporting

internally and still be treated as if he or she had reported to the SEC at the earlier reporting date , thus preserving their “place in line” for a possible whistleblower award from the SEC; and (3) provide that a

whistleblower’s voluntary participation in an entity’s internal compliance and reporting systems is a factor that can increase the amount of an award, and that a whistleblower’s interference with internal compliance and reporting system is a factor that can decrease the amount of an award. See Exchange Act Rule 21F, 17 C.F.R. § 240.21F.

396See Exchange Act Rule 21F-7(b), 17 C.F.R. § 240.21F-7(b).

397For example, SEC staff will not disclose a whistleblower’s identity in response to requests under the Freedom of Information Act. However, there are limits on SEC’s ability to shield a whistleblower’s identity, and in certain circumstances SEC must disclose it to outside entities. For example, in an administrative or court proceeding, SEC may be required to produce documents or other information that would reveal the whistleblower’s identity. In addition, as part of ongoing SEC investigatory responsibilities, SEC staff may use information provided by a whistleblower during the course of the investigation. In appropriate circumstances, SEC may also provide information, subject to confidentiality requirements, to other governmental or regulatory entities. Exchange Act Rule 21F-7(a), 17 C.F.R. 240.21F-7(a).

398Although SEC does not have an opinion procedure release process, it has declared its decision to follow the guidance announced through DOJ’s FCPA Opinion Release Procedure. U.S. Sec. and Exchange

Comm., SEC Release No. 34-17099 (Aug. 29, 1980), available at http://

www.sec.gov/news/digest/1980/dig082980.pdf. SEC Release No. 3417099 stated that, to encourage issuers to take advantage of the DOJ’s FCPA Review Procedure, as a matter of prosecutorial discretion, SEC would “not take enforcement action alleging violations of Section 30A in any case where an issuer has sought and obtained an FCPA Review letter from the Department, prior to May 31, 1981, stating that the Department will not take enforcement action under Section 30A with respect to the transaction involved.” Id. The release further noted that it would revisit this policy once the DOJ had evaluated the results of the FCPA Review Procedure after its first year of operation. A second release stated that the SEC would continue to adhere to the policy announced in Release No. 34-17099. U.S. Sec. and Exchange Comm., SEC Release No. 34-18255 (Nov. 13, 1981), available at http://www.sec.gov/news/ digest/1981/dig111381.pdf.

399Both DOJ’s opinion procedure releases (from 1993 to present) and review procedure releases (from 1980-1992) are available at http://www. justice.gov/criminal/fraud/fcpa/opinion.

400The full regulations relating to DOJ’s opinion procedure are available at http://www.justice.gov/criminal/fraud/fcpa/docs/frgncrpt.pdf.

40128 C.F.R. § 80.1.

40228 C.F.R. § 80.3.

40328 C.F.R. § 80.12 (“Neither the submission of a request for an

FCPA Opinion, its pendency, nor the issuance of an FCPA Opinion, shall in any way alter the responsibility of an issuer to comply with the accounting requirements of 15 U.S.C. 78m(b)(2) and (3).”).

40428 C.F.R. § 80.4.

40528 C.F.R. § 80.5.

40628 C.F.R. § 80.6.

40728 C.F.R. § 80.14(a). This non-disclosure policy applies regardless of whether DOJ responds to the request or the party withdraws the request before receiving a response. Id.

40828 C.F.R. § 80.6.

40928 C.F.R. § 80.2.

410In connection with any request for an FCPA opinion, DOJ may conduct whatever independent investigation it believes appropriate. 28 C.F.R. § 80.7.

41128 C.F.R. § 80.15. Once a request is withdrawn, it has no effect. However, DOJ reserves the right to retain a copy of any FCPA opinion request, documents, and information submitted during the opinion release procedure for any governmental purpose, subject to the restrictions on disclosures in 28 C.F.R. § 80.14.

41228 C.F.R. § 80.8.

41328 C.F.R. § 80.7. “Such additional information, if furnished orally, must be confirmed in writing promptly. The same person who signed the initial request must sign the written, supplemental information and must again certify it to be a true, correct and complete disclosure of the requested information.” Id.

41428 C.F.R. § 80.9 (“No oral clearance, release or other statement purporting to limit the enforcement discretion of the Department of Justice may be given. The requesting issuer or domestic concern may rely only upon a written FCPA opinion letter signed by the Attorney General or his designee.”).

41528 C.F.R. § 80.8. FCPA opinions do not bind or obligate any agency other than DOJ. They also do not affect the requesting party’s obligations to any other agency or under any statutory or regulatory provision other than those specifically cited in the particular FCPA opinion. 28 C.F.R. §

80.11.If the conduct for which an FCPA opinion is requested is subject to approval by any other agency, such FCPA opinion may not be taken to indicate DOJ’s views on any legal or factual issues before that other agency. 28 C.F.R. § 80.13.

41628 C.F.R. § 80.10. DOJ can rebut this presumption by a preponderance of the evidence. A court determining whether the presumption has been rebutted weighs all relevant factors, including whether the submitted information was accurate and complete and the activity was within the scope of conduct specified in the request. Id. As of September 2012, DOJ has never pursued an enforcement action against a party for conduct that formed the basis of an FCPA opinion stating that the prospective conduct would violate DOJ’s present enforcement policy.

417As a general matter, DOJ normally anonymizes much of the information in its publicly released opinions and includes the general nature and circumstances of the proposed conduct. DOJ does not release the identity of any foreign sales agents or other types of identifying information. 28 C.F.R. § 80.14(b). However, DOJ may release the identity of the requesting party, the foreign country in which the proposed conduct is to take place, and any actions DOJ took in response to the FCPA opinion request. Id. If a party believes that an opinion contains proprietary information, it may request that DOJ remove or anonymize those portions of the opinion before it is publicly released. 28 C.F.R. § 80.14(c).

41828 C.F.R. § 80.16.

ENDIX notes