HEARING OF THE SENATE JUDICIARY COMMITTEE - CORPORATE FRAUD PROSECUTIONS
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SEN. ARLEN SPECTER (R-PA): Well, thank you very much. I'm not sure whether I should call you Mr. Chairman or Senator Leahy now that the gavel has been turned over to me.
SEN. LEAHY: You'll know what to do.
SEN. SPECTER: And there was no restriction on the return of the gavel, so I will still call you Mr. Chairman. And thank you for scheduling this hearing.
I think it is a very important hearing, and I would like to see us deal with the relevant issues so that our committee would be in a position to come to a judgment and to mark up a bill and to move forward to either vote it up or vote it down but to have it considered by the Senate and ultimately by the House as well.
I start on my thinking on this subject with two very basic propositions. First that there is a right to counsel in the constitution, a very fundamental right, and an indispensable part of right to counsel is the privilege to talk to your lawyer about confidential matters without concern that they will be disclosed. And the second very basic proposition is the burden of proof which is on the government. And my view with some experience in the field has been that you don't prove the case out of the mouth of the defendant. You just don't do that.
Now, when you get involved in the complex standards as to when it's implied, whether the privileged information will benefit the investigation, of course it's going to benefit the investigation. Whether it can be obtained quickly and completely from other sources -- well, what does quickly mean? What does completely mean? Whether there is a legitimate need -- seems to me that that's totally extraneous to the underlying values that we're dealing with here. And when we have the modifications which Deputy Attorney General McNulty added to the Thompson Memorandum about who gives the approval. If it's a fact matter, the U.S. attorney asks the assistant attorney general. Unclear whether the consultation means the assistant attorney general could overrule the request. I think it probably does mean that. Or if it's a matter of advice, then it goes to the deputy attorney general. It's hard for me to conceive of any situation where it is justifiable to ask the lawyer what advice he's given the client. That is just really beyond my comprehension, again, with some experience in the field. So I hope we can flesh out the issues and present them to the committee and come to a decision.
But we've been joined by a distinguished former prosecutor who I suspect may have a view somewhat different from mine. He occasionally does.
Senator Sessions, I won't ask you if you'd like to make an opening statement, because I know the answer to that. So I'll just call on you.
SENATOR JEFF SESSIONS (R-AL): Thank you.
I look forward to the witnesses. And if there are problems in the process of obtaining client-attorney investigative materials, I'd be willing to listen to that. If there are abuses, I would be. But I am not inclined to believe that a corporation -- that are prosecutor can't discuss with a corporation whether or not they want to waive their right and provide information. I don't want to be in a position in which a corporate board finds out there's wrongdoing in the corporation, conducts and investigation and a discussion can't be entertained as to whether or not they might benefit from turning that over, that the crooks in the corporation be sent to jail where they ought to be sent, and the corporation perhaps survive the prosecution. Those are things that, to me, are pretty realistic and deal with the way the real world is.
But if there's a problem here, we need to find out. And if the Department of Justice is not handling this procedure right, perhaps we can make it better.
Thank you, Mr. Chairman. I like you there as chairman. (Laughter.) I enjoyed serving under you, and I'm glad to serve under you again.
SEN. SPECTER: Well, we'll try to make that agreement come true -- (laughter) -- as soon as we can, although not this morning.
Our first witness representing the Department of Justice is Ms. Karin Immergut, U.S. attorney for the District of Oregon. A distinguished academic career from Amherst, her law degree from Boalt School of Law at the University of California. And we'll put into the record a very extensive, impressive resume.
I'm going to ask you, Ms. Immergut, to stick to the five-minute time limit, as I will everybody. This is an unusually heavy day.
We have Judge Mukasey, whom I have a meeting with later this morning, and we have the D.C. Voting Rights Bill on the floor. So that -- if the witnesses can limit it to the stipulated time of five minutes, that'll give us the maximum time for dialogue.
Thank you for joining us and the floor is yours.
MS. IMMERGUT: Thank you, Senator. I don't know if I should call you "Mr. Chair" right now, but Senator Specter, members of the committee, thank you for the opportunity to appear here today to talk about the McNulty Memorandum and the corporate criminal charging policy at the Department of Justice.
Today, I hope to give you a career prosecutor's view about three issues. First, how prosecutors use waivers of attorney-client privilege and work product protections out in the field; second, how the McNulty Memorandum is working in practice; and third, how current policies protect victims and the investing public and could be significantly impeded by legislative efforts to further restrict corporate waivers.
First, waivers generally arise when a corporation faced with criminal liability comes to a federal prosecutor and says it wants to cooperate. And further, in exchange for that cooperation the corporation seeks leniency. At that point, the prosecutor would ordinarily say, "Tell us what happened. Who did it and how did they do it?" If a corporation can provide that factual information without waiving a privilege, that should typically be enough; however, because corporations generally gather facts through their attorneys, sometimes a corporation must waive its work product or attorney-client privileges in order to cooperate and fully disclose those facts.
Seeking waivers of important rights is not uncommon as part of our work with cooperators. We routinely ask individual cooperators to waive their Fourth and Fifth Amendment rights. Privilege waivers impose no greater burden on a corporation than we ask of individuals everyday. When prosecutors seek waivers, they want the facts. They are not typically seeking legal advice or opinion work product unless there's a claim that the corporation or its employees acted in good- faith reliance on advice of counsel, or that an attorney participated -- even unwillingly -- in the fraud.
Since 2001, the department has obtained more than 1,200 corporate fraud convictions and recovered billions of dollars for investors and shareholders. These prosecutions have been governed by a set of principles first established in the 1999 Holder Memorandum and then was amended by the Thompson and McNulty Memoranda. Those memoranda established a nine-factor test which requires the prosecutor to evaluate the culpability of a corporation and to distinguish between those corporations which present an ongoing danger to the public, and those which are reliable corporate citizens.
Criticism of these principles has focused on one subcategory of those principles: corporate waivers of attorney client privilege and work product protections. The McNulty Memorandum was issued in December of '06 in response to concerns about such waivers raised by the business community, defense lawyers and members of this committee, among others. For the first time, the McNulty Memo imposed expressed restrictions on when a prosecutor may request corporate waivers and what they might ask for. It also established new and rigorous authorization requirements.
The McNulty Memo creates a clear and simple distinction between requests for factual information, which may be sought upon a showing of needs, and requests for legal advice. A request for legal advice is permissible only in extraordinary circumstances, and then only with the permission of the deputy attorney general. And even then, if a corporation refuses to provide that legal advice, that refusal may not be held against them.
Since its adoption, the robust client safeguards contained in the McNulty Memorandum have resulted in only four approvals of waiver of privilege for factual information and no approvals of waiver privilege for attorney-client communications from the deputy attorney general. We believe that these results show that a sound policy is in place and should be allowed to work. Our ability to obtain waivers in certain cases has helped victims, because it allows cases to proceed more quickly and allows us to preserve assets to help victims recover some of their losses. In addition, the investing public deserves the quickest possible answer to allegations of fraud in the marketplace.
In contrast, we're concerned that efforts to further restrict corporate waivers, such as Senate Bill 186, will diminish our efforts to police a broad range of corporate crime and protect victims and the investing public by limiting the information available to us. Furthermore, Senate Bill 186 would establish rules for the investigation of corporate suspects which are different from those applicable to every other type of suspect. That simply is not fair.
Mr. Chair and -- Senator Specter, over the last several years, the Department of Justice has made huge strides in combating corporate corruption. With the tools Congress has provided, we've made tremendous progress in restoring public confidence in the integrity of American corporate governance and protected shareholders and victims, but there is still work to be done. The rigorous safeguards contained in the McNulty Memorandum have worked and deserve a chance to continue. Our future efforts would be compromised if Congress enacted legislation such as Senate Bill 186.
I thank you for this opportunity to appear before this committee on this important subject and I would be pleased to answer questions.
SEN. SPECTER: We'll now proceed with our customary five-minute round.
Ms. Immergut, you say that if the corporation seeks leniency, then the issue arises to the waiver of the privilege. It seems to me that the reality is just the reverse. The prosecutor is using the charging discretion to impose a more difficult prosecution and that what the prosecution is really looking for is leverage -- a blackjack -- to get the information.
If the issue is waiver, a suspect has a right to waive. No problem about that. A difficulty arises in the context of the prosecutor seeking leverage to extract an attorney-client privilege waiver with using a more severe charge. Isn't that the practical reality that's involved here?
MS. IMMERGUT: Senator, if I understand your question, it's whether or not our ability to provide leniency is somehow forcing somebody to waive when they otherwise wouldn't.
SEN. SPECTER: The question is, doesn't the process really focus where the prosecutor has the discretional in charging, and the prosecutor initiates the matter and says, "The charge will be X if you waive your privilege and it'll be X-plus a lot if you don't waive your privilege" -- as opposed to the suspect coming in and saying, let me waive your privilege for leniency?
MS. IMMERGUT: Frankly, the former -- in my experience -- typically is not how it works and it's not how it's required -- the analysis under -- the required analysis under the McNulty Memo.
There are nine factors to consider in our corporate charging decision. Our only point, though, is when a corporation wants leniency and doesn't -- the other eight factors don't necessarily inure to the corporation's benefit with respect to whether or not they should be charged, certainly then corporations would typically say, "We want to cooperate. How can we cooperate?" And you know, "What do we need to do in order for you not to charge us?"
But, again, the charging decision is really based on evidence and -- as well as the other eight McNulty memorandum factors but one --
SEN. SPECTER: Ms. Immergut, you say in your opening statement that the -- you're not, quote, "seeking advice from counsel," closed quote. Then you later go into a situation where you are doing precisely that -- seeking advice. Seems to me just totally antithetical -- contrary to the basic right to counsel to under any circumstance ask a lawyer what advice he has given to a client.
MS. IMMERGUT: The -- again, the McNulty memo makes that distinction. That is -- the situation you've described is very much of a rarity and indeed since McNulty has been implemented no single approval for that sort of advice --
SEN. SPECTER: Is it really relevant that it's a rarity if you are undercutting the value -- the sacrosanct nature of a lawyer's advice?
MS. IMMERGUT: Your -- excuse me, Senator, if I could give you an example where the only time, for example, or a time where one might imagine that that sort of advice would be pertinent is if corporate officers -- there was information that corporate officers had indeed sought advice from general counsel, been advised not to do the conduct that they engaged in, and nevertheless went ahead and did it. That might be a circumstance that we would ask -- if a corporation is cooperating that we might ask the corporate counsel, can we get a copy of the memo that you provided to the CEO who committed this conduct so that we can show they were on notice that this was -- it's evidence of their intent.
SEN. SPECTER: I have one final question for you. We have a letter from the former chief justice of Delaware, E. Norman Veasey. We'll make the full letter a part of the record. But he cites a case that when the process is -- quote, "When the process required by the McNulty memorandum was raised by company counsel, the prosecutor's response was, 'I don't give a flying ----,'" closed quote, and going on, "-- about the policy," and further said the burden was on the company to appeal the waiver request up the chain of command to the Department of Justice which raises the concern that notwithstanding all of the protections which handily may not amount to much as I see them. As long as you have this waiver policy in effect there's a high risk it's going to be disregarded at the operating level. What do you think about that?
MS. IMMERGUT: I personally at my office have spoken to my U.S. attorneys about this issue. They're very well aware of the importance of adhering strictly to the McNulty memo. I've also been involved with training all of the U.S. attorneys from around the country. I've spoken with all of them about the issue, and certainly if there is one perhaps overzealous prosecutor who is not adhering there are obviously personnel policies that are implicated and -- but I know that the U.S. attorneys have made this very clear to their assistant U.S. attorneys how important it is to follow the McNulty memorandum.
I believe that what you're suggesting is really a management and accountability issue and I think that the McNulty memo really reaches the right balance on that, and has brought your concerns to the forefront of the Department of Justice and we are making every effort now to make sure that we recognize the sacrosanct nature of the attorney-client privilege. We take that very seriously and I can assure you that all of my fellow U.S. attorneys have made that very clear to individual prosecutors in their offices.
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SEN. SPECTER: Thank you, Professor Seigel.
Mr. Andrew Weissmann is a partner in the law firm of Jenner & Block. He was the Enron task force director, overseeing the prosecution of more than 30 individuals; selected by the director of the FBI to be his special counsel; bachelor's degree from Princeton, a law degree from Columbia.
Thank you very much for joining us today, Mr. Weissmann, and we look forward to your testimony.
MR. WEISSMANN: Good morning, Senators Specter and Sessions, members of the committee and staff.
The advisability of a statutory solution to the infringement to the attorney-client privilege by DOJ must be examined in the context of the unique nature of corporate criminal law.
First, the mere indictment of the company risks the death sentence, as well as severe consequences to hundreds or even thousands of innocent people. Indeed, a criminal indictment carries the risk that the market will impose a death sentence even before the company can go to trial and have its day in court. One of the lessons corporate America took from the Arthur Andersen case, where I served as the lead trial attorney, is to avoid an indictment at all costs.
Second, a corporation of any significant size will inevitably be subject to criminal investigation at some point during its existence. This is so because under the current standard of corporate criminal liability, a company can be found liable based on the actions of a single low-level employee where only two conditions are met -- the employee acted within the scope of her employment and the employee was motivated, at least in part, to benefit the company.
If an employee commits such a crime, then no matter how many policies the company has to thwart the criminal conduct, the company can be prosecuted. This standard, I note, of vicarious liability is not the creation of congressional statutes, nor indeed of a Supreme Court ruling, which has never addressed this issue. It is the product of a series of appellate rulings that have defined the scope of corporate criminal law.
And in light of these precepts, prosecutors have enormous leverage. To avoid indictment, corporations will go to great lengths to be deemed cooperative with a government investigation. KPMG is a prime example, as Judge Kaplan found. The Bristol-Myers case is another example. There, the company agreed, among other things, to endow a chair at the prosecutor's alma mater in order to resolve an investigation short of indictment.
The pressures on a company are accordingly not analogous to those on an individual in our criminal justice system. An individual is subject to liability for conduct that she controls absolutely; not so a corporation. A company can face indictment based on the conduct of any one of thousands of employees and regardless of its efforts to detect and deter the conduct at issue.
An individual also does not risk a death sentence before she ever stands trial. And the potential collateral consequences to an individual, although they can be severe, can pale in comparison to the scope of such consequences in a corporate setting.
Let me turn to some of the DOJ policies that I believe have been wanting and how the Senate bill will fix theirs. The McNulty memorandum does not require the decision to charge a corporation to be viewed at Main Justice. Such a lack of national oversight is bewildering, given the wide array of relatively minor decisions that are overseen by Main Justice and the enormity of potential consequences of charging a company.
It is ironic that one of the key innovations in the McNulty memorandum was oversight of the decisions regarding requests for waiver, yet the ultimate decision regarding whether to charge a company receives no such scrutiny.
Moreover, although the theory of the McNulty memorandum is a good one, in practice, individual prosecutors interpret its factors markedly differently. There is reason to believe that little has been done to train prosecutors on the McNulty memorandum's dictates and to measure diligently compliance with its provisions.
My own experience suggests as much. In one case, I was told that a company would be deemed cooperative by waiving the privilege and disclosing the material without making the prosecutor jump through the McNulty memorandum hoops.
Further, the McNulty memorandum leaves intact the government's ability to penalize a company that does not take punitive action against employees who are invoking their right to remain silent. By contrast, the Senate bill would prohibit the government from considering an employee's assertion of the Fifth Amendment.
Ironically, then, the government can encourage employers to take the more draconian corporate measure against its employees -- namely, firing them -- but not to weigh in on the decision whether to advance legal fees.
Finally, the McNulty memorandum continues to exert undue pressure on companies to waive the privilege, because prosecutors can still penalize a company for refusing to waive. Although a refusal to disclose legal advice cannot count against a company, the same does not hold true with respect to, quote, "purely factual information."
But the McNulty memorandum's examples of purely factual information illustrates the problem. The memorandum defines as purely factual witness statements, interview memoranda and factual summaries and reports documented by counsel. But those specific matters have been found by numerous courts to be precisely what is protected by the attorney-client and work product doctrines.
My own experience prosecuting corporate crime belies the notion that a prosecutor must have such waivers in order to prosecute successfully such cases. There are myriad ways for a company that seeks to cooperate to provide the government with valuable information without waiving the privilege. A company can direct the government to documents and witnesses who will further its investigation. It can also give the government an attorney proffer of salient facts. None of that requires the company to waive the attorney-client privilege.
SEN. SPECTER: Thank you very much, Mr. Weissmann.
We will admit, without objection, three statements in support of S. 186 from the American Bar Association, former Delaware Chief Justice Veasey and from the Coalition to Preserve the Attorney-Client Privilege.
Governor Thornburgh, it's been a long time since I was a prosecutor, but you served as attorney general through 1991. What's the origin -- genesis of all of this activity by the Department of Justice to extract waivers of the privilege?
MR. THORNBURGH: I don't know. I've been curious about that myself. I would doubt that any of distinguished colleagues with experience in the Department of Justice, including Senator Sessions, ever had occasions to request waiver of the attorney-client privilege in the course of white-collar crime investigations. As I said, that was not a -- an item on the checklist of prosecutors when I served in the Department of Justice. But somehow or other during the '90s and resulting in the Holder and Thompson memorandums, it became a practice that was frequently indulged in. And to a certain extent, I suppose regardless of what legislative remedies might be undertaken, the genie's already out of the bottle and it will be difficult to constrain the far-flung apparatus of federal prosecutions totally from sneaking in a request of this kind or making a threat of the type that has been envisioned as time goes on.
As I said, I think that the attorney-client privilege has been upheld for corporations in these types of investigations in very expressed language in the Supreme Court in the Upjohn case, with the notation that it must be clearly understood that that privilege exists and that if it is rendered uncertain, it vitiates its usefulness.
SEN. SPECTER: I think you're right on the genie being out of the bottle. Once it's -- once it's in use, the tremendous power of the prosecutor arises largely from his charging authority.
MR. THORNBURGH: Yeah.
SEN. SPECTER: A judge can't ask for -- add charges.
Mr. Seigel, you comment about exceptions -- government is entitled to everyone's evidence -- we're all familiar with that -- but there are many limitations on that. Besides the attorney-client privilege, husband- wife privilege, coerced confessions since Brown v. Mississippi in 1938. Miranda, we all know about -- privilege against self-incrimination. The defendant doesn't have to testify. No comment about it?
I think that what the committee may be most interested in and the senators is how tough it would be on the prosecution to convict the guilty without this waiver approach? Mr. Weissman prosecuted 30 individuals in the Enron case. Were you able to do that without extracting waivers, Mr. Weissman?
MR. WEISSMAN: Well, there were some waivers in connection with the Enron case, but that was under the Thompson memorandum where it was actually affirmatively encouraged to exact such waivers. But I think the result in those cases would have been exactly the same.
SEN. SPECTER: Could you have had the same success -- well, that's the question. Maybe you've already --
MR. WEISSMAN: Yes.
SEN. SPECTER: -- I guess you've already answered it. Could you have gotten the success without the waiver?
MR. WEISSMAN: I believe so.
SEN. SPECTER: Professor Richman, you've been very candid in saying that the enactment of 186, as you put it, would not change much. There'd be invasive procedures, and the illicit search warrants and subpoenas and surveillance, well, that's all part of the existing process. But -- so what leads you to the conclusion so that I can quote you more elaborately when we have the mark-up on the bill -- that as you put it, the passage of 186 would not change very much?
MR. RICHMAN: Senator Specter, I think there's a very large range of cases where the government either comes calling to defense counsel or defense counsel comes to the government assuming that there eventually will be government action, and want to get this matter moving as soon as possible. There's been an --
SEN. SPECTER: If the corporation comes or the individuals come and they say, "We want to waive it," that's fine.
MR. RICHMAN: Yeah, but -- that's all -- the only point I was making is I think that class of cases is very large. And what's more, the kinds of cases not included -- the ones where corporations don't waive for their own reasons -- I'm worried about those. I think that's a considerable group of cases. I think those are precisely the ones where defense counsel may either have conducted no investigation or be not very candid with the government. I would not want the government to be very quick to take his word for it. And the problem that this proposal will create is there will be this choice that the government has of investigating massive -- investing massive resources into the investigation or taking his word for it.
SEN. SPECTER: There's no duty to be candid with the government.
MR. RICHMAN: No, there isn't. But there also is exposure to criminal liability. I mean, one of the odd things about the federal system is -- or any criminal justice system is, as you know better than anyone, is that the right of prosecution goes far.
SEN. SPECTER: You let the chips fall where they may. Our focus is very narrow on the attorney-client privilege.
How about it, Professor Seigel? You've heard Prosecutor Thornburgh testify, you've heard Prosecutor Weissman testify, Prosecutor Richman testify. Are you going to file a dissent that this bill -- its enactment would not impede convicting the guilty?
MR. SEIGEL: Yes, I do disagree with that for a couple of reasons.
First, I think that although right now under the existing dynamic with McNulty, a lot of corporations do come in and because there's been criminality in their midst at relatively high levels and they look at the other McNulty factors, they're likely to be charged and so they have a large incentive to cooperate. And if the only way they can provide the information necessary to cooperate is to waive privilege, that's what they do. I think -- and I think maybe I disagree here with Professor Richman a little bit -- is that the proposed legislation would change that dynamic, and that a fair number of those companies would realize that an alternative, potentially successful strategy would be to stonewall because, without the ability of the government to say, "Give me more, we need more before we can give you credit for cooperation," the company's going to say, "We'll give you everything that's not privileged" -- which might be very little -- "and now that we've fully cooperated, you can't charge us." And when the prosecution goes forward --and I think Professor Richman was referring to this in his testimony -- that if the prosecutor decides to charge the company --
SEN. SPECTER: Well, there's no basis for their saying the prosecutor can't charge them because they view their cooperation as full.
MR. SEIGEL: But what -- if they get charged, Senator, they will presumably, if there's any teeth in the legislation, be able to file a motion to dismiss based upon their view that the prosecutor charged them because they refused to turn over attorney-client privilege information.
SEN. SPECTER: Well, they can say whatever they like, but they can't necessarily prove it.
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SEN. SPECTER: Thank you very much, Senator Sessions. Thank you, Governor Thornburgh and Professor Richman, Professor Seigel and Mr. Weissmann. I think the testimony has been very helpful.
SEN. : Could I add just one comment? I'm somewhat puzzled that if the concerns are for all the trouble we're putting the prosecutors to to make their case -- the expense that's involved, the concern for the little guy -- why is the department so timid? Why don't they just come forward with a proposal that would abolish the attorney-client privilege for corporations and get that result? It seems to me that's really what you're talking about here is a kind of incremental process of nibbling away at a time-honored and sacrosanct privilege when the real desire is to expedite investigations, make prosecutors' job easier and protect in so-called fashion the rights of the little guy, as they've been styled by this panel. Maybe that's something worth asking Judge Mukasey about when he appears.
MR. : (Inaudible.)
SEN. : Maybe he favors the abolishment of the attorney- client privilege for corporations.
MR. SIEGEL: I would go on record not favoring that. I think it's in the hands of defense counsel and that's where it should be.
SEN. SPECTER: It would not enhance his chances for confirmation -- (laughter) -- adopted the bold Thornburgh approach. If he agreed to rescind the practice I think it would enhance it.
SEN. : I quite agree. That's what I was getting at.
MR. WEISSMANN: Senator Specter, one note on that. Judge Mukasey is a man of extraordinary judgment and I really think there are good reasons to wait and see how he runs this department. It is a long- awaited arrival, at least for those of us hoping for his confirmation.
SEN. SPECTER: Well, I'm not prepared to wait and see. We've been considering this matter at some lengths. There was a suggestion made that we defer this hearing until we had a new attorney general, and that's going to take a long time, and it may not be a question of when but if -- where you have a lot of demands made for production of a lot of records on the terrorist surveillance program or the production of White House witnesses and all the records about the U.S. attorneys.
My experience limited as it is is not to wait but to try to make an analysis and come to a conclusion and to move ahead. But I think this hearing today provides us with a sufficient basis to make a judgment. Had very distinguished witnesses on both sides of this issue, and I understand what Professor Seigel has said but when Professor Richman testifies as he did and you have Mr. Weissmann's experience on Enron and candidly, most of all, what a prosecutor like Dick Thornburgh has had to say with experience at all levels and a sense of wonderment -- I've been in the Senate all during the period that this program apparently was developed and hadn't heard about it until the outcry has come up recently, and I think this is a matter for congressional judgment, and I intend to press it.
Thank you very much.
MR. RICHMAN: Senator, can I add one thing? I just want to clarify my testimony. I do not think that this measure will have no effect whatsoever. The point is that those that -- who will avail itself of its protection are the guilty ones.
SEN. SPECTER: I do not consider your last statement recanting your earlier testimony. (Laughter.)
Thank you very much.
MR. RICHMAN: Thank you.