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Complete the case studies for this week.
Review the case studies below in the textbook. Prepare a one-page report for each of the following case studies: * Case Study: Martha Stewart’s Lost Reputation, pg. 34 * Case Study: Texaco: The Ecuador Issue, pg. 41 * Case Study: Where Were the Accountants?, pg. 44
Ethics Case: Martha Stewart’s Lost Reputation
In June 2002, Martha Stewart began to wrestle with allegations that she had improperly used inside information to sell a stock investment to an unsuspecting investing public. That was when her personal friend Sam Waksal was defending himself against Securities and Exchange Commission (SEC) allegations that he had tipped off his family members so they could sell their shares of ImClone Systems Inc. (ImClone) just before other investors learned that ImClone’s fortunes were about to take a dive. Observers presumed that Martha was also tipped off and, even though she proclaimed her innocence, the rumors would not go away.
On TV daily as the reigning guru of homemaking, Martha is the multi-millionaire proprietor, president and driving force of Martha Stewart Living Omnimedia Inc. (MSO), of which, on March 18, 2002, she owned 30,713,475 (62.6 percent1) of the class A, and 30,619,375 (100 percent) of the class B shares. On December 27, 2001, Martha’s Class A and Class B shares were worth approximately $17 each, so on paper Martha’s MSO class A shares alone were worth over $500 million. Class B shares are convertible into Class A shares on a one to one basis.
Martha’s personal life became public. The world did not know that Martha Stewart had sold 3,928 shares of ImClone for $58 each on December 27, 20012 until it surfaced in June 2002.3 The sale generated only $227,824 for Martha, and she avoided losing $45,673 when the stock price dropped the next day,4 but it has caused her endless personal grief and humiliation, and the loss of reputation, as well as a significant drop to $5.26 in the MSO share price.
What Happened?
Martha had made an investment in ImClone, a company that was trying to get the approval of the U.S. Food and Drug Administration (FDA) to bring to market an anti-colon cancer drug called Erbitux. Samuel Waksal, then the CEO of ImClone and a personal friend of Martha’s, was apparently warned on or close to December 25, 2001 that the FDA was going to refuse5 to review Erbitux.6 According to SEC allegations, Sam relayed the information to his family so they could dump their ImClone shares on an unsuspecting public before the official announcement. Martha claims that she didn’t get any inside information early from Sam, but regulators believe that she may have or from her broker or her broker’s aide. The activities of several of Sam’s friends, including Martha, are under investigation by the SEC.

Sam was arrested on June 12, 2002 and charged with “nine criminal counts of conspiracy, securities fraud and perjury, and then freed on $10 million bail.”7 In a related civil complaint, the SEC alleged that Sam “tried to sell ImClone stock and tipped family members before ImClone’s official FDA announcement on Dec. 28.”8
According to the SEC, two unidentified members of Sam’s family sold about $10 million worth of ImClone stock in a two-day interval just before the announcement. Moreover, Sam also tried for two days to sell nearly 80,000 ImClone shares for about $5 million, but two different brokers refused to process the trades.9
Martha has denied any wrongdoing. She was quoted as saying: “In placing my trade I had no improper information … My transaction was entirely lawful.”10 She admitted calling Sam after selling her shares, but claimed: “I did not reach Mr. Waksal, and he did not return my call.”11 She maintained that she had an agreement with her broker to sell her remaining ImClone shares “if the stock dropped below $60 per share.”12
Martha’s public, however, was skeptical. She was asked embarrassing questions when she appeared on TV for a cooking segment, and she declined to answer saying: “I am here to make my salad.” Martha’s interactions with her broker, Peter Bacanovic, and his assistant, Douglas Faneuil, are also being scrutinized. Merrill Lynch & Co. suspended Bacanovic (who was also Sam Waksal’s broker13) and Faneuil, with pay, in late June. Later, since all phone calls to brokerages are taped and emails kept, it appeared to be damning when Bacanovic initially refused to provide his cell phone records to the House Energy and Commerce Commission for their investigation.14 Moreover, on October 4, 2001, Faneuil “pleaded guilty to a charge that he accepted gifts from his superior in return for keeping quiet about circumstances surrounding Stewart’s controversial stock sale.”15 Faneuil admitted that he received extra vacation time, including a free airline ticket from a Merrill Lynch employee in exchange for withholding information from SEC and FBI investigators.16
According to the Washington Post report of Faneuil’s appearance in court:
On the morning of Dec. 27, Faneuil received a telephone call from a Waksal family member who asked to sell 39,472 shares for almost $2.5 million, according to court records. Waksal’s accountant also called Faneuil in an unsuccessful attempt to sell a large bloc of shares, the records show.
Prosecutors allege that those orders “constituted material non-public information.” But they alleged that Faneuil violated his duty to Merrill Lynch by calling a “tippee” to relate that Waksal family members were attempting to liquidate their holdings in ImClone.
That person then sold “all the Tippee’s shares of ImClone stock, approximately 3,928 shares, yielding proceeds of approximately $228,000” the court papers said.17
One day later, on October 5th, it was announced that Martha resigned from her post as a director of the New York Stock Exchange—a post she held only four months—and the price of MSO shares declined more than 7 percent to $6.32 in afternoon trading.18 From June 12th to October 12th, the share price of MSO had declined by approximately 61 percent.19
Martha’s future took a further interesting turn on October 15th, when Sam Waksal pleaded guilty to six counts of his indictment, including: bank fraud, securities fraud, conspiracy to obstruct justice and perjury. But he did not agree to cooperate with prosecutors, and did not incriminate Martha.20 Waksal’s sentencing was postponed until 2003 so his lawyers could exchange information with U.S. District Judge William Pauley concerning Waksal’s financial records.21
After October 15th, the price of MSO shares rose, perhaps as the prospect of Martha’s going to jail appeared to become more remote, and/or people began to consider MSO to be more than just Martha and her reputation. The gain from the low point of the MSO share price in October to December 9, 2002 was about 40 percent.22
Martha still had a lot to think about, however. Apparently the SEC gave Martha notice in September of its intent to file civil securities fraud charges against her. Martha’s lawyers responded and the SEC deliberated. Even if Martha were to get off with a fine, prosecutors could still bring a criminal case against her in the future. It is an interesting legal question, how, if Martha were to plead guilty to the civil charges, she could avoid criminal liability.23
On June 4, 2003, Stewart was indicted on charges of obstructing justice and securities fraud. She then quit as Chairman and CEO of her company, but stayed on the Board and served as Chief Creative Officer. She appeared in court on January 20, 2004 and watched the proceedings throughout her trial. In addition to the testimony of Mr. Faneuil, Stewart’s personal friend Mariana Pasternak testified that Stewart told her Waksal was trying to dump his shares shortly after selling her Imclone stock.24 Ultimately, the jury did not believe the counterclaim by Peter Bacanovic, Stewart’s broker, that he and Martha had a prior agreement to sell Imclone if it went below $60. Although Judge Cedarbaum dismissed the charge of securities fraud for insider trading, on March 5, 2004, the jury found Stewart guilty on one charge of conspiracy, one of obstruction of justice and two of making false statements to investigators.25 The announcement caused the share price of her company to sink by $2.77 to $11.26 on the NYSE.26

2000–2002 Stock Chart of Martha Stewart Living Omnimedia Inc.
Reprinted courtesy of StatPro Canada, Inc.
Martha immediately posted the following on her website:
I am obviously distressed by the jury’s verdict, but I continue to take comfort in knowing that I have done nothing wrong and that I have the enduring support of my family and friends. I will appeal the verdict and continue to fight to clear my name. I believe in the fairness of the judicial system and remain confident that I will ultimately prevail.27
Martha was subsequently sentenced to 5 months in prison and 5 months of home detention—a lower than maximum sentence under the U.S. Sentencing Guidelines—and she did appeal. Although she could have remained free during the appeal, on September 15, 2004 she asked for her sentence to start28 so she could be at home in time for the spring planting season. Martha’s appeal cited “pro-secutorial misconduct, extraneous influences on the jury and erroneous evidentiary rulings and jury instructions” but on January 6, 2006, her conviction was upheld.29
Martha may still disagree with the verdict. But there is little doubt that the allegations and her convictions had a major impact on Martha personally, and on the fortunes of MSO and the other shareholders that had faith in her and her company. Assuming a value per share of $13.50 on June 12th, the decline to a low of $5.26 in early October 2003 represents a loss of market capitalization (i.e. reputation capital as defined by Charles Fombrun30) of approx imately $250 million or 61 percent. The value of MSO’s shares did return to close at $35.51 on February 7, 2005,31 but fell off to under $20 in early 2006. According to a New York brand-rating company, Brand-Keys, the Martha Stewart brand reached a peak of 120 (the baseline is 100) in May 2002, and sank to a low of 63 in March 2004.32
What will the future hold? Martha has returned to TV with a version of The Apprentice as well as her usual homemaking and design shows, and her products and magazines continue to be sold. Will Martha regain her earlier distinction? Would she do it again to avoid losing $45,673?
Questions
1.What was the basis of Martha Stewart’s reputation?
2.Why did MSO’s stock price decline due to Martha Stewart’s loss of reputation?
3.Who is Martha Stewart’s target market?
4.What qualities were associated with the Martha Stewart brand, before the controversy? Which of these were affected by the accusations of insider trading, and how? How would you find out for sure?
5.What level of sales and profits would MSO have reached if Martha’s reputation had not been harmed? Refer to the SEC or MSO websites for information on financial trends.
6.What range would the stock price have been in at the end of 2002 based on your estimates?
7.Martha’s overall net worth was huge relative to her investment in ImClone. Assuming she did not have inside information, was there any way she could have avoided the appearance of having it?
8.How could Martha have handled this crisis better?
9.Why is insider trading considered harmful? Should insider trading be banned if it assists in moving a stock price to new a equilibrium quickly, so that noninsiders are trading at appropriate prices sooner?
10.If you wished to sell an investment in a company where one of your friends is an insider, or even a significant employee, should you call your friend to advise him you are about to sell? Why, or why not?
Source: L.J. Brooks, Jan. 2003/Rev. Jan. 2006
1.Proxy Statement for 2002 Annual Meeting of Stockholders of Martha Stewart Living Omnimedia, Inc., held May 9, 2002, SEC Edgar Filing, at http://www.sec.gov/Archives/edgar/data/1091801/000095012302003236/y58395def14a.txt
2.“Martha scrutiny heats up: Shares of decorator’s company end tough week as Martha Stewart’s ImClone links prove troubling”, CNN/Money, June 14, 2002.
3.“Martha Stewart Resigns From NYSE Board, Reuters per the FOXNews.com, October 5, 2002.
4.“Broker’s aide pleads guilty in Martha Stewart matter”, Washington Post, Oct. 2, 2002.
5.“ImClone ex-CEO takes the 5th: Sam Waksal declines to testify; His brother Harlan says his sales were not improper”, CNN/Money, June 13, 2001.
6.Later it became known that the application for review had “multiple deficiencies” and provided insufficient information that the drug would work on its own. Ibid.
7.Ibid.
8.Ibid.
9.Ibid.
10.“Martha scrutiny…,” ibid.
11.Ibid.
12.Ibid.
13.“Aide to Martha Stewart’s broker admits he withheld information from investigators”, CBCNEWS, http://cbc.ca/news, Oct. 2, 2002
14.“Martha’s Broker Under Microscope”, CBSNews.com, July 9, 2001.
15.“Martha Stewart resigns…,” ibid.
16.“Broker’s aide pleads guilty…,” ibid.
17.“Broker’s aide pleads guilty…,” ibid.
18.Ibid.
19.Assuming a value per share of $13.50 on June 12th, the decline to a low of $5.26 in early October amounted to a decline of 61 percent.
20.ImClone Founder Pleads Guilty”, CBSNews.com, Oct. 15, 2002.
21.Ultimately, on June 10, 2003, Waksal was “sentenced to 87 months in prison for insider trading, bank fraud, perjury and obstruction of justice. He also was ordered to pay more than US$4 million in fines and restitution for illegally tipping off his daughter in December 2001, that shares in the company he founded were about to fall sharply.” “Waksal Jailed for 7 Years,” Peter Morton, Finanical Post, June 11, 2003, FP3.
22.“Market betting Martha won’t go to jail: Shares up 40 percent in 6 weeks”, Financial Post, Dec. 10, 2001, IN1, 3.
23.“SEC Knocking On Martha’s Door”, CBSNEWS.com, Oct. 22, 2002.
24.“TIMELINE: Martha Stewart”, CNNMONEY, downloaded March 5, 2004.
25.“Martha Stewart found guilty on all charges; vows to appeal,” CBC.CA News, downloaded March 5, 2005.
26.Ibid.
27.“Martha Stewart: I will appeal,” CNN.com, downloaded March 5. 2004.
28.“Martha to Judge: Jail Me Now,” Drew Hassselback, Financial Post, September 16, 2004, FP1.
29.“Conviction stands, court tells celebrity homemaker Stewart,” Larry Neumeister, Toronto Star, January 7, 2006, D3.
30.Reputation: Realizing Value from the Corporate Image, Charles J. Fombrun, Harvard Business School Press, 1996.
31.“Martha’s comeback may be brief,” Michael Santoli, Financial Post, February 8, 2005, IN3.
32.“Omnimedia eyes life without Martha,” Peter Morton, Financial Post, March 9, 2004, FP1, FP4.
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Ethics Case: Texaco: The Ecuador Issue1
In 1964, at the invitation of the Ecuadorian government, Texaco Inc. began operations through a subsidiary, TexPet, in the Amazon region of Ecuador. The purpose of the project was to “develop Ecuador’s natural resources and encourage the colonization of the area.”2 TexPet was a minority owner of the project and its partner was Petroecuador, the government-owned oil company. Over the years from 1968 to 1992, the consortium extracted 1.4 billion barrels of oil from the Ecuadorian operations.
Ecuador benefited greatly during this period. Ecuador received approximately 98 percent of all moneys generated by the consortium in the form of royalties, taxes, and revenues. Altogether, this amount represented more than 50 percent of Ecuador’s gross national product during that period. TexPet’s operations over the years provided jobs for 840 employees and approximately 2,000 contract workers, thereby benefiting almost 3,000 Ecuadorian families directly, in addition to the thousands of Ecuadorian nationals who supplied the company’s needs for goods and services. Also, TexPet made substantial contributions to the Quito, Guayaquil, and Loja Polytechnics and other institutions of higher education. Oil is Ecuador’s lifeblood—a $1 billion per year industry that accounts for 50 percent of the export earnings and 62 percent of its fiscal budget.
Unfortunately, problems also arose. Although Petroecuador acquired 100 percent of the ownership of the Transecuadorian pipeline in 1986, TexPet still accounted for 88 percent of all oil production and operated the pipeline in 1987 when it ruptured and was buried by a landslide. A spill of 16.8 million gallons (4.4 million barrels) occurred, which Texaco attributed to a major earthquake that devastated Ecuador.
Other spills apparently occurred as well. Although Texaco pulled out of the consortium in 1992 entirely (having retreated to be a silent minority partner in 1990), three lawsuits were filed against it in the United States—the Aquinda (November 1993), the Sequihua (August 1993), and the Jota (in 1994). The indigenous people who launched the lawsuits charged that, during two decades of oil drilling in the Amazon, Texaco dumped more than 3,000 gallons of crude oil a day—millions of gallons in total—into the environment. The indigenous people say their rivers, streams, and lakes are now contaminated, and the fish and wild game that once made up their food supply are now decimated. They asked in the lawsuit that Texaco compensate them and clean up their land and waters.
Maria Aquinda, for whom the suit is named, says that contaminated water from nearby oil wells drilled by the Texaco subsidiary caused her to suffer chronic stomach ailments and rashes and that she lost scores of pigs and chickens. Aquinda and 76 other Amazonian residents filed a $1.5 billion lawsuit in New York against Texaco. The class action suit, representing 30,000 people, further alleges that Texaco acted “with callous disregard for the health, well-being, and safety of the plaintiffs” and that “large-scale disposal of inadequately treated hazardous wastes and destruction of tropical rain forest habitats, caused harm to indigenous peoples and their property.” According to the Ecuadorian environmental group Ecological Action, Texaco destroyed more than 1 million hectares of tropical forest, spilled 74 million liters of oil, and used obsolete technology that led to the dumping of 18 million liters of toxic waste. Rainforest Action Network, a San Francisco-based organization, says effects include poor crop production in the affected areas, invasion of tribal lands, sexual assaults committed by oil workers, and loss of game animals (which would be food supply for the indigenous peoples).
Audits were conducted to address the impact of operations on the soil, water, and air and to assess compliance with environmental laws, regulations, and generally accepted operating practices. Two internationally recognized and independent consulting firms, AGRA Earth & Environmental Ltd. and Fugro-McClelland, conducted audits in Ecuador. Each independently concluded that TexPet acted responsibly and that there is no lasting or significant environmental impact from its former operations. Nonetheless, TexPet agreed to remedy the limited and localized impacts attributable to its operations. On May 4, 1995, Ecuador’s Minister of Energy and Mines, the president of Petroecuador, and TexPet signed the Contract for Implementing of Environmental Remedial Work and Release from Obligations, Liability, and Claims following negotiations with Ecuadorian government officials representing the interests of indigenous groups in the Oriente. In this remediation effort, producing wells and pits formerly utilized by TexPet were closed, producing water systems were modified, cleared lands were replanted, and contaminated soil was remediated. All actions taken were inspected and certified by the Ecuadorian government. Additionally, TexPet funded social and health programs throughout the region of operations, such as medical dispensaries and sewage and potable water systems. That contract settled all claims by Petroecuador and the Republic of Ecuador against TexPet, Texaco, and their affiliates for all matters arising out of the consortium’s operations.
In the summer of 1998, the $40 million remediation project was completed. On September 30, 1998, Ecuador’s Minister of Energy and Mines, the president of Petroecuador, and the general manager of Petroproduccion signed the Final Release of Claims and Delivery of Equipment. This document finalized the Government of Ecuador’s approval of TexPet’s environmental remediation work and further stated that TexPet fully complied with all obligations established in the remediation agreement signed in 1995.
Meanwhile, in the United States, Texaco made the following arguments against the three lawsuits: * Activities were in compliance with Ecuadorian laws, and international oil industry standards. * Activities were undertaken by a largely Ecuadorian workforce—which Texaco believed would always act in the interest of its community/country. * All investments/operations were approved and monitored by the Ecuadorian government and Petroecuador. * All activities were conducted with the oversight and approval of the Ecuadorian government. * Environmentally friendly measures were used, such as helicopters instead of roads. * The health of Ecuadorians increased during the years Texaco was in Ecuador. * Ninety-eight percent of the money generated stayed in Ecuador—50 percent of GDP during that period. * Jobs were provided for 2,800. * Money was provided for schools. * Independent engineering firms found no lasting damage. * A $40 million remediation program was started per an agreement with the Ecuadorian government. * U.S. courts should not govern activities in a foreign country.
The three lawsuits were dismissed for similar reasons—the Sequihua in 1994, the Aquinda in 1996, and the Jota in 1997. The Aquinda lawsuit, for example, was launched in New York (where Texaco has its corporate headquarters) because Texaco no longer had business in Ecuador and could not be sued there. The case was dismissed by a New York court in November 1996 on the basis that it should be heard in Ecuador. Failing that, the Ecuadorian government should have been involved in the case as well, or that the case should have been filed against the government and the state-owned Petroecuador as well as Texaco. At that point, the Ecuadorian government did get involved and filed an appeal of the decision. This was the first time a foreign government had sued a U.S. oil company in the United States for environmental damage. In addition, in 1997, the plaintiffs in the Aquinda and Jota cases also appealed the district court’s decisions.
On October 5, 1998, a U.S. court of appeals remanded both cases to the district court for further consideration as to whether they should proceed in Ecuador or the United States. Written submissions were filed on February 1, 1999. Texaco has long argued that the appropriate venue for these cases is Ecuador because the oil-producing operations took place in Ecuador under the control and supervision of Ecuador’s government, and the Ecuadorian courts have heard similar cases against other companies. It is Texaco’s position that U.S. courts should not govern the activities of a sovereign foreign nation, just as foreign courts should not govern the activities of the United States. In fact, Texaco claimed the Ambassador of Ecuador, the official representative of the government of Ecuador, noted in a letter to the district court that Ecuador would not waive its sovereign immunity.
Notwithstanding Texaco’s arguments, the case was sent back to the court that threw it out, on the basis that the government of Ecuador does have the right to intervene. The question of whether the case can be tried in the United States or Ecuador under these circumstances will now be decided. Texaco claims that it has done enough to repair any damage and disputes the scientific validity of the claims—the Amazonians (or their supporters) seem to have the resources to continue fighting this suit in the U.S. courts.
Questions
1.Should Ecuadorians be able to sue Texaco in U.S. courts?
2.If an oil spill was caused by an act of God, an earthquake, should Texaco be held responsible?
3.Do you find Texaco’s arguments against the lawsuits convincing? Why and why not?
Source: Texaco website: www.texaco.com; see Ecuador pages; various other websites.
1.By Professor Timothy Rowley of the Rotman School of Management.
2.Sources: Texaco and other websites: http://www.texaco.com; see Ecuador pages.

Ethics Case: Where Were the Accountants?
“Sam, I’m really in trouble. I’ve always wanted to be an accountant. But here I am just about to apply to the accounting firms for a job after graduation from the university, and I’m not sure I want to be an accountant after all.”
“Why, Norm? In all those accounting courses we took together, you worked super hard because you were really interested. What’s your problem now?”
“Well, I’ve been reading the business newspapers, reports, and accounting journals lately, and things just don’t add up. For instance, you know how we have always been told that accountants have expertise in measurement and disclosure, that they are supposed to prepare reports with integrity, and that they ought to root out fraud if they suspect it? Well, it doesn’t look like they have been doing a good job. At least, they haven’t been doing what I would have expected.”
“Remember, Norm, we’re still students with a lot to learn. Maybe you are missing something. What have you been reading about?”
“OK, Sam, here are a few stories for you to think about: * 1.In this article, “Accountants and the S & L Crisis,” which was in Management Accounting in February 1993, I found the argument that the $200 million fiasco was due to the regulators and to a downturn in the real estate market, not to accounting fraud… but I don’t buy it entirely. According to this article, rising interest rates and fixed lending rates resulted in negative cash flow at the same time as a decline in value of the real estate market reduced the value underlying S & L loan assets. As a result, the net worth of many S & Ls fell, and regulators decided to change some accounting practices to make it appear that the S & Ls were still above the minimum capital requirements mandated to protect depositors’ funds. Just look at this list of the seven accounting practices or problems that were cited: * •write-off of goodwill created on the merger of sound S & Ls with bankrupt S & Ls over a forty-year period, * •use of government-issued Net Worth Certificates to be counted as S & L capital, * •use of deals involving up-front money and near-term cash flow, which would bolster current earnings at the expense of later, * •inadequate loan loss provisions due to poor loan monitoring, * •write-ups of owned property based on appraisal values, and * •lack of market-based reporting to reflect economic reality.
The problem, for me, is that many of these practices are not in accord with generally accepted accounting principles [GAAP] and yet the accountants went along—at least they didn’t object or improve their practices enough to change the outcome. Why not? Where were the accountants?” * 2.“I am also concerned about the expertise the accounting profession claims to have in terms of measurement and disclosure. For example, recently there have been many articles on the health costs created by smoking, yet there are no accountants involved. For instance, a May 1994 report by the Center on Addiction and Substance Abuse at Columbia University estimates that “in 1994 dollars, substance abuse will cost Medicare $20 billion in inpatient hospital costs alone” and that tobacco accounts for 80 percent of those hospitalizations. Over the next twenty years, substance abuse will cost the Medicare program $1 trillion. No wonder the trustees of the Medicare Trust Fund released a report on April 21 “predicting that the Fund would run out of money in seven years.” These are important issues. Why do we have to wait for economists and special interest groups to make these calculations? Shouldn’t accountants be able to make them and lend credibility and balance in the process? Wouldn’t society benefit? Where were the accountants? * 3.“What about the finding of fraud? Are auditors doing enough to prevent and catch fraudulent behavior? I know what our professors say: auditors can’t be expected to catch everything; their job is not to search for fraud unless write-off of losses on loans sold over the life of the loan rather than when the loss occurred, suspicions are aroused during other activities; and their primary task is to audit the financial statements. But aren’t the auditors just reacting to discovered problems, when they could be proactive? Couldn’t they stress the importance of using codes of conduct and the encouragement of employees to bring forward their concerns over unethical acts? Why is proactive management appropriate in some other areas, such as ironing out personnel problems, but reactive behavior is appropriate when dealing with fraud? Reactive behavior will just close the barn door after the horse has been stolen. In the case of the Bank of Credit & Commerce International (BCCI), for example, at least $1.7 billion was missing.”
“I guess I’m having second thoughts about becoming a professional accountant. Can you help me out, Sam?”
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1.What would you tell Norm?
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