On tape: Lawyer for drug co. said to offer payment

[August 17, 2011]  WASHINGTON (AP) -- A lawyer in Mexico for a leading U.S. drug manufacturer, which promotes its global anticorruption policy, offered to pay an opposing expert in a business lawsuit if he would leave the country on a key court date to undermine the case, according to a recording of the conversation and sworn testimony provided to The Associated Press.

The recording and its disclosure offer an unusual glimpse into the bare-knuckle tactics of the global marketplace and come as the Justice Department and the Securities and Exchange Commission crack down on overseas misconduct by U.S. companies, part of a multinational effort to clean up international commerce.

Business remains an ethical jungle in many countries, but it's rare to get details on tape.

Based near Chicago, Baxter International Inc. is a major manufacturer of intravenous drugs and medical devices. Its medications are used to treat people with hemophilia, kidney disease, immune system problems, infectious diseases, serious burns and other conditions.

The drugmaker said the lawyer was not authorized to make any offers, and it has severed all ties with him.

"Tomorrow I'll buy you a ticket to New York," Jorge Hernandez Marin, a Mexico City lawyer representing Baxter, said on the recording. "You go to New York with your wife. And you say that your son fell. He broke his leg on a bicycle in Manhattan and you had to go. And that's why you didn't accept the assignment."

The lawyer then added: "If it's better for you, and you tell me, `You know, yes, I accept your offer' -- it's an example- `You know, but not New York, I want to go to Las Vegas.' Tomorrow, eh?"

At another point in the recording, Hernandez Marin tells the expert, accountant Rafael Aspuru Alvarez, "If you tell me, `You know, I was going to charge 100,000 pesos (about $8,100),' I'll pay you double."

Aspuru Alvarez was acting as an expert witness for Translog, a Mexican trucking company. Baxter and Translog are embroiled in a $25 million legal dispute.

The recording was made during a breakfast meeting Feb. 24 in Mexico City. The 71-year-old accountant said he used a Sony personal recorder he carries so he doesn't have to take notes. It was in the top pocket of his jacket.

Hernandez Marin, the lawyer, did not respond to repeated attempts by the AP during more than one week to reach him by phone calls and email. After the AP provided Baxter with the recording, the drugmaker said the lawyer was not authorized to contact the accountant or offer any payment. Baxter said Hernandez Marin was only used occasionally as a backup for its outside counsel and no longer represents the company.

"The offer to engage an expert was not intended seriously and the lawyer had no authority to offer it or act on it," Baxter spokeswoman Laureen Cassidy told the AP. "It does not constitute bribery under Mexican law and was never acted upon."

"However, to avoid any further distraction surrounding the pending litigation between Baxter and Translog, this individual has been removed from any involvement in matters involving Baxter," Cassidy said. "He now has absolutely no role in this matter or representing Baxter in any capacity."

On the recording, Hernandez Marin told the accountant he has an "open letter" and that "I told the company."

Hernandez Marin also reassured the accountant that his reputation would be safe. "I'll protect your credibility," he said. "I'll protect your honesty."

Hernandez Marin has not been accused of any crime. Under Mexican law, it is illegal to persuade an expert witness to provide false testimony or fail to disclose the truth in a legal proceeding, punishable by jail and fines. A criminal charge for bribery must involve a public official.

In the ongoing lawsuit in Mexico, Baxter alleges that Translog, after running into financial problems, refused to pick up and deliver critical supplies to kidney disease patients who get dialysis treatments at home. That forced Baxter to find other shippers. Translog counters it had exclusive rights to transport Baxter products in Mexico, contract terms that it says the drug company violated.

The meeting ended with accountant Aspuru Alvarez saying he would think it over, but he told the AP he did not return follow-up calls from the lawyer.

"I had trouble not showing my indignation," Aspuru Alvarez said by telephone from Mexico. "I had to be very diplomatic."

A U.S. lawyer for Translog, Ross Garber, said: "These are obviously very serious allegations. Perhaps even more troubling is Baxter's seeming indifference and apparent failure to diligently investigate them or take appropriate corrective action."

Translog says it notified Baxter of the allegations in April. A Translog representative provided the recording to the AP.

On its website, Baxter says its global anticorruption policy also applies to third parties representing the company, who are prohibited from "providing inappropriate payments or benefits to foreign government officials, health care professionals and other entities."

The U.S. Justice Department declined to comment.

In the Mexican legal system, each party hires an outside expert to advise the judge on technical matters in complex cases.

Translog's expert, Aspuru Alvarez, described the recorded conversation under oath during a three-hour interview in which he was questioned by a Translog lawyer. The interview was conducted a day after the alleged offer. It took place in Houston, Translog said, to keep the story from leaking out in Mexico.

In a video of the interview, Aspuru Alvarez said he is afraid that disclosing the recording will lead to retaliation and "damage my person or my finances."

Under the U.S. Foreign Corrupt Practices Acts, it is illegal to bribe foreign officials to obtain or retain business, but it's unclear whether it would apply here.

Experts on the law said the key question is whether someone like the accountant would be considered a foreign official, a term that U.S. prosecutors have interpreted liberally. As an independent expert, Aspuru Alvarez said his role is to give the judge impartial technical advice. But he also told the AP that he had not yet informed the judge about the offer.

Aspuru Alvarez said he believes he fulfilled his professional obligations by immediately notifying Translog, and he intends to tell the judge at some point.

"Yes," he said, "I am going to have to personally inform the judge."

[Associated Press; By RICARDO ALONSO-ZALDIVAR]

Associated Press writers Matt Apuzzo in Washington and Katherine Corcoran and Mark Stevenson in Mexico contributed to this report.

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