Abbott Labs' Plea Agreement: Criminal Resolution & Obligations in US v. Abbott, Schemes and Mind Maps of Criminal procedure

Download Abbott Labs' Plea Agreement: Criminal Resolution & Obligations in US v. Abbott and more Schemes and Mind Maps Criminal procedure in PDF only on Docsity! CLERK'S OFFICE .tl .s Dl:T.courAT ABINGnONI VA . FILED #At 2 ? 2212 JULA D 3Y: UNITED STATES IN THE UNITED STATES DISTRICT COURT FOR THE W ESTERN DISTRICT OF VIRGINIA ABINGDON DIVISION : criminal xo. /-'/JJ7éN& : ABBOTT LABORATOW ES PLEA AGREEM ENT ABBOTT LABORATORIES (ElN: 36-0698440) (''ABBOTT') has entered into a Plea Agreement with the United States of America, by counsel, pursuant to Rule 1 l(c)(1)(C) of the Federal Rules of Criminal Procedure (d(Fed. R. Crim. P.''). The terms and conditions of this agreement are as follows: CHARGE TO W HICH ABBOTT IS PLEADING GUILTY AND W AIVER OF RIGHTS ABBOTT will enter a plea of guilty to Count One of the Information charging it with violating Title 21, Unitçd States Code, Sections 331(a), 333(a)(l), 352(a) and 352(941) by introducing and delivering for introduction into interstate commerce and causing the introduction and delivery for introduction into interstate commerce from lllinois and Puerto Rico to various locations throughout the United States, including the W estern District of Virginia, of Depakote, Depakote ER and Depakote Sprinkle that were misbranded. The parties agree and stipulate that the maximum statutory penalty is a fine of $800,000,000.00 (twice the gross gain), pursuant to Title 18, United States Code, Section 3571(d), plus a period of probation of up to five years, pursuant to Title 1 8, United States Code, Section 3561(c)(2). ln addition, ABBOTT'S assets may be subject to forfeiture. ABBOTT understands that fees may be imposed to pay for probation and that there will be a $125 special assessment for Count One, pursuant to Title 18, United States Code, Section 3013(a)(l)(B)(iii). ABBOTT'S attorneys have informed it of the nature of the charge and the elem ents of the charge that must be proved by the United States beyond a reasonable doubt before ABBOTT could be found guilty as charged. ABBOTT acknowledges that ABBOTT has had al1 of its rights explained to it. ABBOTT expressly recognizes that, as a corgoration, ABBOTT may have the following constitutional rights and that by voluntarily pleadlng guilty ABBOTT knowingly waives and gives up these valuable constitutlonal rights: The right to plead not guilty and gersist in that plea. The right to a speedy and public Jul'y trial. The right to assistance of counsel at that trial and in any subsequent appeal. The right to remain silent at trial. The right to testify at trial. The right to confront and cross-exam ine witnesses. Plea Agreement United States v. Abbott Laboratories Authorized Corporate Om cer's Initia . - Page 1 of 15 Case 1:12-cr-00026-SGW Document 5 Filed 05/07/12 Page 1 of 16 Pageid#: 12 The right to present evidence and witnesses. The right to compulsory process of the court. The right to compel the attendance of witnesses at trial. The right to be presumed innocent. The right to a unanimous guilty verdict. The right to appeal a guilty verdict. ABBOTT is pleading guilty as described above because ABBOTT is in fact guilty and because ABBOTT believes it is in its best interest to do so and not because of any threats or prom ises, other than the tenns of the Plea Agreement, described herein, in exchange for its plea of guilty. ABBOTT agrees that aIl of the matters set forth in the lnfonnation are true and correct. ABBOTT understands that the plea is being entered in accordance with Fed. R. Crim . P. l 1(c)(1)(C). SENTKNCINGXROVISJONS Based upon the evidence currently known to the United States, the parties agree that the 201 1 version of the United States Sentencing Com mission Guidelines M anual is the appropriate Guidelines Manual to utilize. Accordinj to U.S.S.G. j 8C2.1, the organizational fine provisions do not apply to the count of conviction ln this case, which is a misdemeanor under 21 U.S.C. j 333(a)(l). The parties agree that the fine shall be $500,000,000.00 (five hundred million dollars). The parties agree and stipulate that a term of grobation for five years wil be imposed subject to modification as set forth in the section of thls Plea Agreement titled EGSUCCESSION ISSUES.'' ABBOTT understands and agrees that if its probation is revoked, it may be resentenced and a total aggregate fine up to the statutory maximum of $800,000,000.00 (eight hundred million dollars) may be imposed. The parties agree that if the Court refuses to accept the Plea Agreement with the agreed- ujon sentence, this Plea Agreement wil be nul and void, and ABBOTT wil be free to withdraw thls guilty plea. ln the event the Court refuses to accept the Plea Agreem ent with the agreed- upon sentence and ABBOTT withdraws this guilty plea, nothing in this Plea Ajreement shall be deemed a waiver of the provisions of Federal Rule of Evidence (GtFed. R. Ev1d.'') 4l0 and the United States will move to dismiss the lnformation without prejudice to the United States' right to proceed criminally against ABBOTT or any other entity or individual on any charge. FINANCIAL OBLIGATIONS The parties agree and understand that any of the money paid pursuant to this Plea Agreement will be returned if, and only if, the Court refuses to accept the Plea Agreement with the agreed-upon sentence and, as a result, ABBOTT withdraws its guilty plea. If the Court rejects the plea agreement, the United States will return all money paid by ABBOTT, without interest, not more than 3 days after ABBOTT withdraws its guilty plea and notifies the United States Attorney's Office for the W estern District of Virginia, in writing, that it wishes to have the money returned. Plea Agreement United States v. Abbot Laboratories Authorized Corporate Om cer's Initials: Page 2 of 15 Case 1:12-cr-00026-SGW Document 5 Filed 05/07/12 Page 2 of 16 Pageid#: 13 indictment or inform ation, any charges which were filed and/or could have been filed concerning the matters involved in the instant investigation; (c) refuse to abide by any stipulations and/or recommendations contained in this Plea Agreement; (d) not be bound by any obligation of the United States set forth in this Plea Agreement, including, but not Iimited to, those obligations set forth in the section of this Plea Agreement titled tICOMPLETION OF PROSECUTION;'' and (e) take any other action provided for under this Plea Agreement or by statute, regulation or court rule. The rem edies set forth above are cumulative and not mutually exclusive. lf the United States pursues any of its perm issible remedies as set forth in this Plea Agreement, ABBOTT will still be bound by its obligations under this Plea Agreement. ABBOTT hereby waives its right under Fed. R. Crim . P. 7 to be proceeded against by indictm ent and consents to the filing of an information against it concerning any charges filed pursuant to this section of the Plea Agreement. ABBOTT hereby waives any statute of lim itations argument as to any such charges. 7. INFORM ATION ACCESS W AIVER ABBOTT agrees to waive a1l rights, whether asserted directly or by a representative, to request or receive from any department or agency of the United States any records pertaining to the investigation or prosecution of this case, including without lim itation any records that m ay be sought under the Freedom of lnformation Act, 5 U.S.C. j 552, or the Privacy Act of 1974, 5 U.S.C. j 552a. 8. DESTRUCTION OF ITEM S OBTAINED BY LAW ENFORCEM ENT By signing this Piea Agreement, ABBOTT consents to the destruction of all items obtained by 1aw enforcem ent agents during the course of the investigation. However, ABBOTT expressly agrees that, within 30 days of being inform ed by the United States Attorney's Office that records and/or other items obtained from ABBOTT are available for removal, it will rem ove, at its cost, a1l such records and/or other items from the premises designated by the United States Attorney's Office. 9. ATTORNEY CLIENT PRIVILEGE Nothing in this Plea Agreement shall be construed to require ABBOTT to waive any attorney-client privilege or work-product protection. 10. COM PLETION OF PROSECUTION Pursuant to Fed. R. Crim. P. 1 l(c)(l)(A), so long as ABBOTT complies with al1 of its obligations under the Plea Agreem ent, the United States agrees that, other than the charge in the attached lnformation, it shall not further prosecute ABBOTT or its present or former parents, affiliates, divisions, or subsidiaries or their predecessors, successors, or assigns for: (a) any additional federal criminal charges or forfeiture action with respect to the conduct covered by the lnformation', or (b) any violations of law that were the subject matter of the investigation by the United States Attorney's Office for the W estern District of Virginia and the United States z plea Agreement untedstates v. Abbot Laboratories Authorized Corporate Of#cer's Initials: Page 5 of l 5 Case 1:12-cr-00026-SGW Document 5 Filed 05/07/12 Page 5 of 16 Pageid#: 16 Departm ent of Justice Consumer Protection Branch or based on facts currently known to the United States Attorney's Office for the W estern District of Virginia and the United States Department of Justice Consumer Protection Branch regarding the sale, promotion, or m arketing of Depakote, Depakote ER, Depakote Sprinkle, Depacon or Depakene in the United States occurring on or before'M ay 7, 2012. Nothing in this Plea Agreem ent affects the adm inistrative, civil, criminal, or other tax liability of any entity or individual and this Plea Agreement does not bind the lnternal Revenue Service of the Department of Treasury, the Tax Division of the United States Department of Justice, or any other governm ent agency with respect to the resolution of any tax issue. The non-prosecution provisions in this Plea Agreement are not binding on the United States with respect to any investigations of ABBOTT, its subsidiaries, affiliates, or parent that are or m ay be conducted in the future by the Fraud Section of the Criminal Division of the United States Department of Justice regarding possible violations of the Foreign Corrupt Practices Act and related offenses. 11. LIM ITATION OF AGREEM ENT This Plea Agreement is lim ited to the United States Department of Justice and does not bind any other federal, state or local authority. 12. EFFECTIVE REPRESENTATION ABBOTT has discussed the tenms of the foregoing Plea Agreem ent and al1 matters pertaining to the charges against it with its atorneys and is fuly satisfied with its atorneys and its attorneys' advice. At this time, ABBOTT has no dissatisfaction or complaint wlth its attorneys' representation. ABBOTT agrees to make known to the Court no later than at the time of sentencing any dissatisfaction or complaint ABBOTT may have with its attorneys' representation. 13. SUCCESSION ISSUES ABBOTT has publicly announced and represents to the Court that it plans to separate into two publicly traded companies, one a diversified medical products company, which may retain the ABBOTT name, (icDiversified Company'') and the other a research-based pharmaceutical company (ûtpharmaceutical Company') which will not be a subsidiary or corporate affiliate of ABBOTT (this separation is hereinafter referred to as the ûtTransaction'' and the ltEffective Time' shall be the date and time that the Transaction becomes effective). The conduct for which ABBOTT was investigated and that led to this Plea Agreement relates solely to ABBOTT'S research-based pharmaceutical products business and not to its diversified medical products business. Upon completion of the Transaction, the assets of ABBOTT'S research-based pharm aceutical products business will be transferred, conveyed and/or assigned by it to the Pharmaceutical Company and ABBOTT shal no lonjer be involved in the marketing or prom otion of research-based pharmaceutical products ln the United States. As part of the Transaction, ABBOTT agrees that it will include the following in a contract or agreement with the Pharm aceutical Company relating to the transfer, conveyance or assignment of the assets of Plea Agreement . United states v. Abbott Laboratories Authorized Corporate Officer's 1 - lals Page 6 of l 5 Case 1:12-cr-00026-SGW Document 5 Filed 05/07/12 Page 6 of 16 Pageid#: 17 the research-based pharmaceutical products business to the Pharmaceutical Company: (a) a provision stating that the Pharmaceutical Company agrees that the conditions of probation and all other provisions of this Plea Agreement are fully binding on the Pharmaceutical Company and (b) a provision stating that the Pharmaceutical Company will be deemed to carry a prior conviction for purposes of Title 21, United States Code, Section 333(a)(2), and waives any right it m ay have to argue that it does not have such prior conviction. ln the event the Transaction takes place and the Pharmaceutical Company agrees to (a) and (b) in the last sentence of the preceding paragraph, the United States Department of Justice and ABBOTT agree to the following: A. The Pharmaceutical Company will be deem ed the successor in interest, for purposes of this Plea Agreem ent, and all of ABBOTT'S obligations under this Plea Ajreement, including any and alI conditions of probation, wil become obllgations of the Pharmaceutical Company as of the Effective Time of the Transaction. The term of probation shall be modified to three years from the Effective Time. As of the Effective Time, neither ABBOTT nor the Diversified Company will have any further obligations under this Plea Agreement. The Pharmaceutical Company will be the only entity that will have any further obligations under this Plea Agreement, including any and all conditions of probation, which w ill be term inated with respect to ABBOTT. Any violation of this Plea Agreement or any term of probation that occurs after the Effective Time shall not be a basis to impose any sanction on ABBOTT, the Diversified Company, or any of their subsidiaries after the Effective Time. After the Effective Time, aIl releases that run to the benefit of ABBOTT, including those set forth in the section of this Plea Agreement titled ûCCOM PLETION OF PROSECUTION,'' will continue to apply fully to ABBOTT, the Diversised Company, the Pharmaceutical Company and their subsidiaries', B. ABBOTT will be deemed to no longer carry a conviction by the United States Department of Justice and the United States Department of Justice agrees it will not use the conviction of ABBOTT pursuant to this plea agreement: l . ln any future calculation of the Crim inal History Category under the United States Sentencing Guidelines in any future sentencing of ABBOTT or the Diversified Company; or As a prior conviction for purposes of 21 U.S.C. jj 331 and 333(a)(2) in any future criminal case against ABBOTT or the Diversified Company. The United States Department of Justice waives any right it might have to argue that either ABBOTT or the Diversified Com pany has such a conviction for such purposes. The Pharmaceutical Company's certification, resolution, and reporting requirements will cover ABBOTT'S conduct for any time period for which ABBOTT did not submit a certificate, resolution or report because the Effective Tim e occurred prior to the due date of the certificate, resolution or report. Plea Agreement United States v. Abbot Laboratories Authorized Corporate Officer's Initials: Page 7 of 15 Case 1:12-cr-00026-SGW Document 5 Filed 05/07/12 Page 7 of 16 Pageid#: 18 Plea Agreement United States r. Abbott Laboratories addressing the subject matter ofthe Reportable Event, whether the Reportable Event wtzx an isolated or systemic occurrence, the company 's response to the Reportable Event, and any remedial actions taken ajter the company Iearned of the Reportable Event. Any Reportable Event determined to have occurred by the Responsible Ak/ï/.y shall be promptly reported to the Responsible .EW///.y 's ChiefExecutive Ofhcer. Thehrst set ofannual certfcations and reports shall be submitted not more than 350 days tz-/ier the Responsible Ab/ï/y is sentenced and shall cover the period oftime commencing one month prior to the date ofsentencing to the date ofsubmission ofthe certscation and report. Each subsequent set of annual reports and certfcations shall be due one year thereafter and cover the one year period that follows the year covered in the prior annual reports and certscations. The probation tpf/icc may share any information it receives from the Responsible AW/ïf .y with the United States Attorney 's O.f#ce. For the purpose of this Plea Agreement and the conditions of probation, thefollowing terms shall have thefollowing meaning. a. The term 'Chief Compliance O/ ccr ' refers to the person at the Responsible Ak/f/y with ultimate responsibility for developing and implementing policies, procedures, and practices designed to ensure compliance with the FDCA and FDA 's regulations and guidance documents relating to the marketing, promotion, and sale of pharmaceutical products. During the term of probation, the Chief Compliance OA ccr shall be a member of the Responsible .EW///.'p 's senior management and the Responsible Ab///-p 's U S. Pharmaceutical Compliance Committee. Not more than //l/r@ (30) daysfrom the imposition ofsentence in this matter, the Responsible Fa///y shall not# the probation tpf/zcc in writing of the name of the Responsible Ak/@ 's Chiefcompliance OA ccr andprovide a written description of that person 's responsibilities with respect to complying with the FDCA and FDA 's regulatlbns and guidance documents relating to the marketing, promotion, and sale ofpharmaceutical products. The Responsible AW//f.p shall, in writing, report to the probation tp//c: any changes in the identity of or any material changes in the position and responsibilities of the Chief Compliance Ofhcer. This report shall be provided w///éïp-/i-/iccn (15) days J-/àpr such a change. The term ''U S. PharmaceuticalCompliance Committee ' refers to the committee established or to be established by the Responsible A'n/ï/.y to, in conjunction with the Chief Authorized Corporate Offcer 's Initials: Page 10 of 15 Case 1:12-cr-00026-SGW Document 5 Filed 05/07/12 Page 10 of 16 Pageid#: 21 Plea Agreement United States v. Abbott Laboratories Compliance Ofhcer, assist in the implementation and enhancement of the Compliance Program 's policies and procedures relating to compliance with the FDCA and FDA 's regulations and guidance documents concerning the marketing, promotion, and sale of pharmaceutical products. During the term of probation, this committee shall, at a minimum, include the Responsible f/7// .y' 's Chief Compliance O//3cer and other members ofthe Responsible Ak/jy' 's senior management with responsibilities concerning the marketing, promotion, and sale of the Responsible Ak//f.p 's pharmaceutical products. Not more than f/p/rf .p (30) daysfrom the imposition ofsentence in this matter, the Responsible Ak//fy shall notf.,v the probation tp//zcc in writing of the names of the Responsible A'zi/j/.,p 's senior managers on the U S. Pharmaceutical Compliance Committee and provide a written description of ///c/'r responsibilities with respect to complying with the FDCA and FDA 's regulations and guidance documents relating to the marketing, promotion, and sale of pharmaceutical products. The Responsible Zk/ï/.y shall, in writing, report to the probation tpf/3ce any changes in the identity ofor any material changes in the position and responsibilities of these senior managers. FJ//'5' report shall be provided withinhfteen (15) days ajter such a change. The term 'Compliance Program ' refers to the policies, procedures, practices, and other measures that the Responsible fnfïry has established or will establish to address rpgz/tz/tpr.p compliance issues, relating to the marketing, promotion and sale ofpharmaceuticalproducts, including the Responsible A'n/f/y 's compliance with FDCA and FDA regulations and guidance documents. The term 'pharmaceutical products '' means drugs marketed, promoteJ or sold in the United States and intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in humans or drugs intended to tz//-cc/ the structure or anyfunction of the body ofhumans. 21 U.S. C. J 32l (g)(l)(B) (f (C). The Responsible fk/ï/y shall not commit any federal health care fraud offense, any offense under Titles 21 or 42 of the United States Code, or any felony during the term ofprobatlbn. The commission of an tpf/ènlc shall not be considered by the Probation OA ccr as a ppr J.ç violation of the terms ofprobation. Instea4 otherfactors will be taken into account, including, but not Iimited to, whether the offense violated policies the company has adopted, whether the company provided training addressing the subject matter of the offense, whether the offense wtzxç an isolated or Xlf//ltlrizf!fl Corporate Oxifbdr X Oifi J Page 11 of15 Case 1:12-cr-00026-SGW Document 5 Filed 05/07/12 Page 11 of 16 Pageid#: 22 systemic occurrence, the company 's response to the offense, and any remedial actions taken tz-/àcr the company learned ofthe offense. Within 7 days of hling, the Responsible AW///.y shall submit to the probation tpf/3cc a copy of each Securities and Exchange Commission Form 1 O-Q. 15. COM PLIANCE M EASURES ABBOTT agrees that, prior to entering its plea of guilty, as the Responsible Entity it has instituted a Compliance Program, under which policies, procedures, practices, and other measures are set forth to address, among other matters, regulatory com pliance issues with respect to the marketing, promotion and sale of pharmaceutical products in the United States, including compliance with the Food, Drug and Cosmetic Act (tCFDCA') and Food and Drug Administration ($$FDA'') regulations and guidance documents. The Responsible Entity's Compliance Program includes the policies and procedures relating to pharmaceutical products as set forth below: A. B. D. The Responsible Entity requires that the compensation (including through salaries, bonuses, and contests) of its United States sales representatives be designed to ensure that financial incentives do not inappropriately motivate such individuals to engage in off-label marketing, prom otion, and sales of the Responsible Entity's pharmaceutical products. The Responsible Entity requires Continuing Medical Education (tiCME'') grant-making decisions to be approved by the Responsible Entity's financial or other organizations separate from sales and m arketing, and requires financial support to be provided only to program s that foster increased understanding of scientific, clinical or healthcare issues. The Responsible Entity requires a third-party CM E provider to maintain full responsibility for, and control over, the selection of content, faculty, educational methods, materials and venue for CM E programs. The Responsible Entity requires medical information letters to be accurate and unbiased. The Responsible Entity's policies and procedures prohibit the promptinj of requests for medical information letters; and The Responslble Entity requires clinical trials funded or controlled by the Responsible Entity to be approved by ABBOTT'S medical and/or scientitsc organizations and that the scientific research and any resulting publications foster increased understanding of scientific, clinical or healthcare issues. The Responsible Entity's policies and procedures require that it will not approve scientific research purely for the purpose of developing an article or reprint for sales representative use. The Responsible Entity requires all investigators to disclose the Responsible Entity's support for their research and financial relationships between the Responsible Entity and investigators (including any interest in any Responsible Entity product). The Responsible Entity has a publication policy designed to ensure that the Responsible Entity develops publications in a consistent and transparent manner, reporting complete Plea Agreement United Smtes v. Abbot Laboratories Authorized Corporate Om cer's Initials. Page 12 of 15 Case 1:12-cr-00026-SGW Document 5 Filed 05/07/12 Page 12 of 16 Pageid#: 23 possible defenses to the offense charjed in the Information; all rights with respect to the applicability of the Sentencin! Guidelnes; and the consequences of entering into this Plea Agreem ent and entering a gullty plea. W e have reviewed the entire Plea Agreement and documents referenced herein with my client, through its Authorized Coporate Om cer. ln our judgment, ABBOTT understands the terms and conditions of the Plea Agreement, and we believe ABBOTT'S decision to enter into the Plea Agreement is knowing and voluntary. ABBOTT'S execution of and entry into the Plea Agreement ls done with our consent. Date: 3- 7 1= J-/z 1 /-.'Ilate: a-/,//,Date! -; ;. Q7 n eodore V. W ells, Esquire Paul, W eiss, RiR ind, W halon & Garrison Counsel for AbO tt Labpratories j.y. .' jj(,; . / f, :7 , lz %. Mark Filip, Esquire 1 Kirkland & Ellis LLP Counsel for Abbott LaM ratories Timothy 7. Heaphy United States Attomey W estern District of Virginia Rick A. M ountcastle, Assistant United States Attorney Randy Ramseyer, Assistant United Slates Attomey Carol W allack, Trial Attorney, U.S. Dept. Of Justlce Lauren > 11, Trial Attomey, U.S. Dept. Of Justice Jil1 Furman, Asst. Diactor, Consumer Proteçtion Branch Plea Agreement Unitedstates v, Abbot L aboratories Authorized Corporate Om cer '.: Initia s: Page l 5 of 1 5 Case 1:12-cr-00026-SGW Document 5 Filed 05/07/12 Page 15 of 16 Pageid#: 26 CERTIFICATE 1, John A. Berry, do hereby cedify that l am a duly appointed and qualKed M sistant Secretal of Abbott Laboratories and ading as such; that Abbott Laboratories is a corporation duly organized and validly existing under the laws of the State of Ilinois with its principal office at 100 Abbott Park Road, Abboq Park, Lake County. Ilinois; that I am a keeper of its books and records and its corqorate seal; that the folowing resolution is a true, complete and corred copy of the resolutlon adopted at a regular meeting of its Board of Diredors on April 27, 2012*, that said meeting was duly called, a quorum was present there at; and that that such resolution is stil in elect: RESOLVE ,D that the Executive Mce President, General Counsel and Secretary is hereby authorized to enter or cause to be entered on behalf of this Corporation: the Plea Agreemen t civil settlement agreements with the federal govemment and the dinating states, a corporate lntegrity Agreement with the HHS Omce of Inspedorcoor General, and all other documents necessae or appropriate to efeduate the seqlement of aI aspeds of the investigation of the Corporation's sales and marketing pradiœ s for Depakote from 1998 to 2008 by the United States Department of Justice at any time on or aqer the date of this meeting. IN W ITNESS W HEREOF, I have aëxed my name as Assistant Secretary and have caused the corporate seal of Abbott Laboratories to be hereunto amxed as of this 3 O day of April, 2012. . -hrz w --&-cv rsw. : ' ' '.. j 'ws - .z-- , 11 u.a t) vtxz'A.0z.-. . . . .- oj ..,.tvo 6q ,J Oh A. Be ' . 4k*-. .>. t ).. . e . o qAssistant Secretary z* @ *t * ' :; : . k 1 r * *@ . .* * N 19 .* '*.. 00 .*y'kr .... .. ...t/xo ls Attached BoardResolutionPlea Agreement United States v. Abbott Laboratories Case 1:12-cr-00026-SGW Document 5 Filed 05/07/12 Page 16 of 16 Pageid#: 27