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Many of Bain’s investment funds and several of Romney’s own managing partnership entities were based in Delaware. Fleischer said the state’s corporate code required that the fund manager "perform whatever partnership duties they have with the greatest attention. He was still president, CEO and sole shareholder of some of the management companies for some of these funds, and under Delaware law, owed fiduciary duties to his investors. If you can’t fulfill your fiduciary duties as owner, you have to waive your partnerships."
Charles M. Elson, a University of Delaware finance professor and an authority on the state’s corporate laws, countered that Delaware law "is flexible enough to give (Bain) leeway in their decision-making. The partnership law is enabling. They could make decisions without him."
Even Romney’s explanation of his role at Bain after 1999 appears to have shifted in recent years, as shown in notes that his financial trustee provided in successive presidential candidate financial reports submitted in 2007 and in 2011 to the U.S. Office of Government Ethics. The lawyer administering Romney’s finances, R. Bradford Malt, said in 2007 that Romney did not have "any active role with any Bain Capital entity" after 1999. In 2011, that explanation broadened, saying Romney had also "not been involved in the operations of any Bain Capital entity in any way."
Both explanations appear at odds with statements attributed to Romney in a corporate press release from July 1999, five months after he left to take over the Olympic bid. The press release, recently posted on the Daily Kos website, announced the departure that year from Bain by two of Romney’s founding partners. The release also stated that Romney remained Bain’s CEO while on a "part-time leave of absence" to head the 2002 Winter Olympics in Salt Lake City.
D’Jamila Salem, a former Boston public relations executive who authored the press release, recalled recently that Bain officials provided the quotes and information about Romney at the time.
Salem was listed on the release as a press contact along with Joshua Bekenstein, a founding Bain partner. Bekenstein also substituted at times for Romney on SEC filings under power of attorney during that period. Bekenstein, still a Bain managing director, was one of several company executives who did not respond to calls from AP for comment.
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