Joe Groia is feeling beseiged. On an overcast Friday in July, sitting at the battered oak table that dominates his law firm's boardroom, he ponders whether he has baited the wrong set of bears. Bay Street traffic murmurs through the bay windows as he toys with an after-work glass of Pinot. "I didn't go quietly or gently into the night," Groia says, defiantly. "I willingly went into the slaughterhouse because this is an important issue for me and I'm prepared to stand up and fight about it." The "issue" is a lawyer's right to be combative in court while defending a client.
At age 56, Groia should be resting on his laurels. He is, after all, Bay Street's most sought-after securities lawyer, the go-to guy whenever a CEO or corporate executive is accused of white-collar crime. Renowned for his scrappiness and bottomless knowledge of securities law, Groia runs a Toronto-based boutique law firm, Groia & Company. He's been in the middle of front-page financial scandals including YBM Magnex, Cinar, Hollinger, Philip Services and Portus. Among his current clients are executives of Sextant Strategic Opportunities Hedge Fund, who vaporized about $20 million of investors' money between 2006 and 2009, and businessman John Lauer, whose conviction for defrauding a PEI high-tech company Groia had overturned. "Joe has a brilliant legal mind," says Groia's most famous client, John Felderhof, the former vice-chairman of Bre-X Minerals Ltd., whom Groia got acquitted for insider trading in 2007. "He's never fazed and knows how to control a trial."
But in an ironic twist, Groia now finds himself in hot water, his own reputation on the line and his livelihood under grave threat. He faces trouble on two separate fronts.
In August, the Law Society of Upper Canada began hearings into Groia's conduct during Felderhof's trial, accusing the lawyer of professional misconduct for behaving in a rude and uncivil fashion. The hearings riveted Canada's tight-knit corporate legal community, not only because of Groia's audacity at challenging his profession's powerful governing body—Groia rejected an offer by the law society to settle the matter—but also because the stakes involved are enormous for all corporate lawyers. "Everyone is aware of the case," says Jim Douglas, national leader of securities litigation at Borden Ladner Gervais, one of Bay Street's pre-eminent law firms. "Depending on the findings, it could restrict the ability of counsel to mount as vigorous a defence as a client deserves, especially when their liberty is squarely at risk."
Groia turned down the law society's offer because he felt their terms were unfair. This is a gamble: If the law society upholds any of the charges, Groia's licence to practise could be in jeopardy. It's costing him $1 million to defend his cause, including the fees to hire the veteran Bay Street barrister Earl Cherniak to make his case. "These hearings are lights-on or lights-off results," says Groia. "It has already affected my ability to practise in other provinces. …So when I went into this process I knew, it was bet the house."
The other peril nipping at Groia's heels stems from his defence of Ronald Weinberg, the former co-CEO of Cinar Corp. This past winter, Weinberg was arrested after disembarking from a plane at Montréal-Trudeau airport and charged by Quebec police with defrauding the Montreal-based animation company. Groia is being sued by Cinar's new owners, who accuse him of helping Weinberg move money out of Quebec so they couldn't access it, and with breaking a court injunction that had frozen Weinberg's bank accounts.
Groia denies any wrongdoing. But he faces damages of up to $500,000 if the case goes against him—and another prospect of a dent in his reputation as the saviour of executives in trouble.
In the cautious, buttoned-down world of Bay Street's legal fraternity, the tall, cerebral, bearded Groia is a lone wolf. Indeed, Groia feels his current travails would not be lapping around his knees if he worked at one of the so-called Seven Sister corporate law firms that dominate the Street. "I sometimes say to myself that if I was a senior litigation partner at Torys this wouldn't be happening," he muses. Those familiar with the legal profession's power structure don't disagree with him. "I think Joe's probably got enemies out there," says Jim Middlemiss, a Toronto-based legal journalist. "He's a pretty outspoken guy and sometimes when you don't have the best of friends and you do something where your flank is exposed, people go after that."
Growing up in a working-class Italian neighbourhood in Toronto, Groia was inspired to pursue a career in law by the true-life and fictional examples of Clarence Darrow and Perry Mason. In the late '70s, he attended the University of Toronto's law school. He flourished, becoming a top student and chief justice of the moot court. He earned early notoriety for marching into the dean's office and telling him he'd lost control of his classes to a couple of students who were monopolizing everyone's time with their juvenile opinions. Groia then helped invent a game called "Asshole Bingo" to mock the offenders.
Fascinated by the intersection of corporate and criminal law, Groia was drawn to securities litigation. After being called to the bar in 1981, he went to work on Bay Street at the law firm McTaggart Potts before moving to McMillan Binch. "Joe's a very, very good advocate," says Stanley Fisher of Heenan Blaikie, who was at McMillan when Groia worked there. "Some people might find him to be somewhat abrasive and aggressive. I don't find that at all."
In person, Groia is not an angry man and, in fact, is a bit of a boulevardier who enjoys the finer things in life, especially wine. Last year, he and his wife, Susan Barnacal, started a winery in the Niagara Peninsula called Lincoln Cellars. Friends view Groia as good company and an entertaining conversationalist. "He's an extremely loyal friend and a delightful companion and an engaging guy," says Jim Douglas, who has known Groia since law school. "He's very witty and lots of fun."
Groia enjoys an intellectual fencing match as much as a good story, and he is fond of the media spotlight. Yet the views he espouses on policing the capital markets can seem contradictory. He believes the regulatory system is "broken, and has been for many years." Yet he doesn't think it's wise to throw white-collar criminals in jail: Investors' chances of getting their money returned diminish and it's too expensive for the public. He argues that the Ontario Securities Commission could pursue five or six administrative or civil cases in half the time it takes to try one criminal case "and it would cost pretty much the same. As soon as you start thinking of criminal prosecution, all bets are off. You get very little co-operation, you have presumption of innocence, you have a bunch of Charter issues to deal with, you have judges who are less friendly and don't understand the issues. And you have a whole raft of technical legal defences. So is the market going to be better with five cases where the guy loses all his money and is kicked out of the market, or with one criminal prosecution?"
A good raconteur he may be, but it was Groia's pugnacious streak that got him recruited in 1985 to become a cop of the stock market, working for the OSC as associate general counsel. With the support of a crusading new OSC chair, Stanley Beck, Groia was instructed to give the commission more bite. He did just that by taking on some of Bay Street's biggest players, including Gordon Capital, Canadian Tire and an alliance of the Torstar and Southam newspaper chains. By the time he left the OSC in search of better pay and new challenges in 1990, Groia was running an enforcement division that got results.
For this, he paid a price: Bay Street's top law firms blackballed him. Groia says that prior to departing the OSC, he had half a dozen offers from various firms saying he should look them up when he left the commission. When he contacted them all, "I had six very sheepish litigation partners call me back and say, 'I am surprised but it's not going to work out here.'" The firms' partners were worried that their corporate clients would be far from keen about Groia, many having felt his lash at the OSC.
Groia eventually landed a job with the Montreal law firm Heenan Blaikie, which had just opened a Toronto office. Now he was working for the other side, defending the very people he had once tried to kick out of the markets. And his career changed irrevocably when the OSC laid eight charges against John Felderhof in 1999 arising from the Bre-X mining scandal, a stock-market sensation based on the notion that the world's biggest gold mine had been found in Borneo. When the mine turned out to be a sham, $6 billion in market capitalization disappeared. Felderhof, who had been Bre-X's senior geologist and was accused of getting rich by cashing in his stock just before the mine was discovered to be a hoax, hired Groia to defend him. "He struck me as a straight-shooter, no-nonsense sort of guy with whom I could work," says Felderhof.
Yet some of Heenan Blaikie's partners were growing discomfited by the notoriety of the Bre-X file, and Groia no longer felt the firm was a good fit. "The problem with a lot of big firms is that when times are good, they're lining up to be the CEO's best friend," says Groia, "but when times go sour, they are heading for the hills."
For Groia, the solution was to establish his own litigation shop, which he did in 2000, specializing in serving CEOs and executives who find themselves in trouble. With six other lawyers on board, Groia's firm takes up an elegant array of offices—designed with a certain Frank Lloyd Wright panache—on the 11th floor of a Bay Street high-rise that stands in the shadow of Toronto's bank towers.
In the end, the Felderhof/Bre-X case proved to be both boon and bane to Groia. It established his reputation as a brilliant litigator, but it also led to his war with the law society. Presided over by Justice Peter Hryn, the trial began in a courtroom in Toronto in October, 2000, and soon bogged down.
Groia and the OSC's prosecutor, Jay Naster, clashed repeatedly about both form and substance. Groia felt he was not getting proper disclosure of relevant documents and began to accuse Naster and the OSC of "prosecutorial misconduct." At one point, Groia remarked about the OSC that "their promises aren't worth the transcript paper they are written on. ..." Hryn didn't upbraid Groia for the objections, but Naster took the attacks personally, saying he was not going to continue to be "berated and be maligned." Groia is unapologetic about his assaults. "I never called Naster a name," says Groia. "I said he had taken positions that were not honest or candid, so I attacked his positions."
"Joe just kept egging it on because he could see it was getting to the guy, and I would have probably done the same," says journalist Jim Middlemiss. "I think a lot of lawyers would've done the same."
The trial progressed at a glacial pace over 70 days, during which only two witnesses were called. In April, 2001, frustrated by how Hryn was handling matters, including his apparent refusal to rein in Groia, the OSC made the dramatic move of trying to have Hryn chucked off the case.
"The OSC wanted that trial to end because they saw it going badly," says prominent Toronto lawyer Brian Greenspan, who was hired by Felderhof to work with Groia in battling the OSC's efforts to have Hryn dumped. As one of Canada's more aggressive courtroom interrogators, Greenspan had his own reasons for being worried about any precedent that would be created if Hryn were removed.
Groia and Greenspan argued that Hryn hadn't lost control of the trial, but had made the strategic (and legally correct) decision of not replying to the OSC's allegations about Groia's behaviour, feeling it was not germane to the issue at hand and would hurt Felderhof's case. "It wasn't the focus of the appeal for us," says Greenspan. "The focus was that Hryn is making proper judgments and there is nothing about the conduct of counsel that is impacting on the fairness or propriety of the trial."
In 2002, the Superior Court of Justice ruled against the OSC, saying Hryn could stay. However, the court strongly reprimanded Groia for his conduct, saying that at times it more resembled "guerrilla theatre than advocacy in court," and that he used "unrestrained invective," "excessive rhetoric" and "sarcastic attacks." But the court also said Groia had the right to accuse the OSC of alleged abuses of process and prosecutorial misconduct and that "neither side in this case has any monopoly over incivility or rhetorical excess. ...A hard-fought trial is not a tea party. Prosecutors need thick skins."
The OSC appealed the Superior Court decision. In 2003, an appeal court upheld the lower court's ruling, although it too ripped into Groia, saying his rhetoric was improper and his allegations of professional misconduct without foundation.
The trial resumed, although the OSC replaced Naster as prosecutor in the hope that things would proceed more smoothly, which they did. In 2007, Justice Hryn dismissed all charges against Felderhof. Hryn had been convinced by Groia's arguments and the evidence that alleged red flags indicating the mine was a dud were not so obvious; and that the tampering of ore samples was such a sophisticated operation that it would have been difficult for Felderhof to uncover it. In the end, Hryn praised the lawyers on both sides for their conduct. Not once did he reprimand Groia for his courtroom behaviour. "The defence of John Felderhof was probably the best lawyering I've ever done," Groia says.
Yet the judges' observations about Groia's behaviour did not slip by the law society, which opened a file on Groia in 2003 and began a full-fledged investigation into his perceived incivility after the Felderhof verdict came down four years later. Disciplinary cases concerning lawyers' courtroom behaviour are rare, and usually only happen in the most extreme instances—as when one lawyer in British Columbia tried to perform a citizen's arrest of a panel of judges for complicity in the genocide of aboriginal people.
Groia is being pursued because "incivility" is a hot-button issue among some members of the bar who believe overly aggressive lawyers tarnish the profession's image. For others, however, defining "incivility" is akin to nailing Jell-O to a wall. "What you're left with is this extremely broad and vague term that you can fill up with any content that appeals to you," says Philip Slayton, a former Bay Street lawyer who wrote the 2007 book Lawyers Gone Bad. "My general view is that it is silly to discipline a lawyer for lack of civility. …We have an adversarial system. It requires and relies upon a hard knocking of points of view." The famously combative Clayton Ruby, a long-serving member of the law society's board of directors, is similarly dismissive about concerns of incivility in the courts, calling it "the preoccupation of small minds." He believes the profession has far more pressing problems to address.
In the summer of 2009, Groia's lawyer, Earl Cherniak, met with the law society to see if they could settle the matter without charges being laid against Groia. However, the law society's demands were too onerous, claims Groia. "We tried to work something out that would've had me accept my share of the blame," he explains, "and they said that's not good enough—I have to accept all of the blame. I said I just can't do that." These negotiations were carried out in secret; what the law society was specifically seeking in penance from Groia remains unknown. Meanwhile, Groia feels the law society is overlooking Jay Naster's actions during the Felderhof trial: Naster was forced to apologize to the court after he ignored a ruling by Hryn over a procedural matter, while the Superior Court felt that both sides had acted with incivility at times.
With no deal to be made, the law society laid charges. Last year, Groia filed a motion to have them thrown out on the grounds the law society had failed to cite even one incident of his alleged bad behaviour. The motion alleged the law society's investigation was slipshod, accusing investigators of not having ordered and read the transcripts of the Felderhof trial, relying instead solely on the opinions of judges who heard no defence from Groia about his tactics. "I think the law society is on a bit of a witch hunt," says Cherniak. "Joe's taken his lumps big-time. This seems to be a case of piling-on." The law society deferred his motion, and the hearings into Groia's actions went ahead.
Just minutes into his testimony at the hearings in August, just how much of a toll the dispute has taken on Groia suddenly became clear. The seemingly routine matter of reviewing his career—he described his OSC stint "as dying and going to litigation heaven"—brought his jeopardy into sharp focus. His normally confident voice—the voice of the "petulant invective" he is accused of using in the Bre-X trial—suddenly failed him.
A long silence followed. Groia's eyes reddened, pregnant with tears. He exhaled several times. Cherniak asked him if he was okay. "I think so," he said quietly. Several more emotional pauses followed during the first hour of his testimony.
It wasn't the only dramatic moment in the hearings, which fell behind schedule and are set to reconvene early next year. Felderhof, who still owes Groia approximately $2 million for his Bre-X defence, also testified, flown in by Groia from the Philippines, where the former geologist says he now runs a small convenience store and restaurant with his new wife.
Felderhof told the panel he hired Groia because he was looking for an "aggressive" lawyer. "I didn't want a lawyer in court who would go, 'My learned friend this, my learned friend that.' I wanted a lawyer on my side," he said. He added, however, that during the few times he was in the courtroom for his own trial, he found Groia's bearing to be "cordial."
The law society called no witnesses, relying on lawyer Tom Curry to read from the transcripts and from the Superior Court and Court of Appeal judgments that chastise Groia. Cherniak called Brian Greenspan to testify on Groia's behalf, along with several other members of Felderhof's legal team who insisted that Groia had not crossed the line in the trial.
The hearing panel heard unflattering descriptions of the behaviour of the OSC's lawyers, with whom Groia clashed repeatedly, and of the foot-dragging by the OSC on the required production of documents for the defence as the trial neared—the root of Groia's repeated accusations of "prosecutorial misconduct."
But the real battle may be over whether the hearing panel needs to consider any defence from Groia at all. The two sides have yet to fight over the law society's position that the condemnation of Groia's behaviour in the rulings by the Superior Court and the Court of Appeal are on their own enough to warrant punishment. Cherniak will argue that the judges' harsh words are merely observations or asides—the Latin legal term is obiter—since it was Felderhof, and not Groia, who was on trial.
No one from the law society will comment on the case; the ruling is not likely to materialize before late next year.
For as long as it takes to resolve the case, defence lawyers will be less than certain about the rules of courtroom conduct. The Criminal Lawyers' Association has expressed concern over the "potential chilling effect" of the law society's intervention. That apprehension was echoed in an article on The Globe and Mail's website by prominent litigators Edward Greenspan and David Roebuck, who argued, "Trial lawyers should not have to temper their obligation to vigorously defend a member of the public out of fear of appearing 'uncivil' to a disciplinary committee that never attended the trial."
Ronald Weinberg and his wife, Micheline Charest, founded Cinar, the Montreal-based children's animation company, in the mid-1970s. They built it into an entertainment juggernaut, boasting a market capitalization of $1.5 billion by 1999, thanks to successful TV shows such as Arthur.
But after it was alleged Cinar had abused federal tax credits, investigations soon uncovered other improprieties involving Weinberg and Charest. For example, they'd arranged for $108 million (U.S.)—raised mostly in public offerings—to be sent offshore to the Bahamas to be invested. This highly unusual move was made without the approval of Cinar's board. During the winter of 2000, Weinberg and Charest were forced to resign their positions as co-CEOs of Cinar.
They were soon targets of a bevy of lawsuits and investigations. The Quebec securities regulator began an inquiry, while Cinar's board launched a lawsuit against the couple, claiming they owed the company's shareholders $100 million. Charest and Weinberg hired Groia to guide their legal strategy. Between 2001 and 2004, they moved $6 million into his law firm's trust account, from which Groia drew legal fees and paid out fines, settlements and other disbursements. Lawyers' trust accounts are commonly used in this manner; in part, they're a way of making sure that the defence side of a case has the means to carry on.
Groia soon negotiated settlements with the securities regulator and Cinar's American shareholders, who had launched a class-action lawsuit. But the board's lawsuit remained unresolved, even after the company was sold in 2004 to an investors' group headed by Michael Hirsh, co-founder of the film company Nelvana Ltd. (Charest died that same year after a botched plastic surgery operation.) The new owners remained convinced that Weinberg still owed them the $100 million, and set up a litigation committee, headed by lawyer G. Wesley Voorheis.
Voorheis runs a Toronto-based law firm, Voorheis & Co., that specializes, on behalf of shareholders, in salvaging companies mauled by financial scandal. Voorheis's most high-profile job was taking over as CEO of Hollinger Inc. in 2007 in the wake of the Conrad Black meltdown. On the Cinar file, Voorheis joined forces with William Brock, a Montreal-based lawyer at Davies Ward Phillips & Vineberg who was already on the case for Cinar. Together they began investigating Weinberg and Charest's habit of moving money offshore.
Cinar alleges in court documents that between 2003 and 2004, Weinberg and Charest sent $11 million to the Barrington Bank International Ltd. in the Bahamas, and $1.7 million (U.S.) to Lochaven Financial Ltd. in the Turks and Caicos. Both countries are infamous tax havens, out of reach of the courts in Canada. "The question is why are they moving assets offshore?" asks Brock. "If you are being sued in Canada, are you trying to render yourself judgment-proof? If the lawsuits had not been pending against them in Quebec, would they have moved money offshore or would they have invested it in Montreal or New York or somewhere else where a creditor could get to it more easily? They were being sued for over $100 million. You would have to be a little naive to expect one wasn't a factor in the other."
Brock's concerns arise in part from information indicating that some of the money Cinar was seeking was in the funds that the founding couple had sent to the Bahamas to be invested. While most of that money was returned to Cinar, as much as $30 million (U.S.) was never recovered and the company's new owners said the couple had made off with some or all of it.
Barrington Bank and Lochaven are small, obscure and secretive institutions. Both are run by Canadians. Little is known about Nassau-based Barrington, which now calls itself Heath Bank & Trust Ltd. Lochaven is run by a lawyer who is also CEO of Hallmark Trust Ltd., a trust company in the Turks and Caicos. According to a U.S. indictment, Hallmark was the bank from which a $220-million (U.S.) Ponzi scheme was run in the late 2000s. In a civil lawsuit filed in 2007, the U.S. Internal Revenue Service alleged that two American accounting firms advised clients to evade taxes by moving money out of the country using credit cards issued by Hallmark.
Acting on Voorheis and Brock's work, Cinar won a court injunction in the summer of 2005 that froze all of Weinberg's assets and bank accounts, including those offshore and any of his money in Groia's trust account. Now Weinberg would have to go before a judge and ask to access his own money for living and legal expenses.
Eleven days after the injunction was granted, $500,000 from the Barrington Bank in the Bahamas was transferred to Groia's trust account, which was almost empty at the time, for Weinberg's use. Two days later, another $66,937 was transferred from a Montreal-based financial management company, Palos Capital Corp., to Groia's account for the same purpose. The transactions are reported in a 2011 Quebec Superior Court judgment, which also noted that neither transfer was authorized by a judge.
A few weeks later, Weinberg filed a request in the Quebec courts to free up $1 million of his assets to cover his personal and legal expenses, according to the judgment, which notes that, at the time, Weinberg owed his lawyers (Groia presumably among them) and accountants $271,404. This request was withdrawn, according to the judgment, after Cinar's lawyers said they planned to cross-examine Weinberg about the whereabouts of all of his assets.
Where had the money flowing into Groia's trust account originated? Groia says that after Weinberg was cut off from his money and couldn't pay his lawyers, he advised him to find a third party to cover his legal expenses—someone not covered by the injunction (which is legally permitted). "It's very common while you are trying to sort out what's going to happen for family members or friends to help out," says Groia.
In this case, the third party would be Weinberg's two twentysomething sons, Alex and Eric. The Superior Court judgment reports that Groia received a letter of opinion from one of Weinberg's Montreal lawyers, Pierre Fournier (whom Weinberg owed $232,948 in fees), which was the basis for Groia releasing funds to pay Weinberg's legal bills. Weinberg authorized that $359,583 be drawn out of Groia's account, of which $168,995 went to Fournier. A few months later, Fournier also received $173,176 from Weinberg's account at Hallmark Trust in the Turks and Caicos. All of this cash, asserted Weinberg, was lent to him by his sons. Groia concurs.
Voorheis and Brock were incensed, feeling that Weinberg was getting around the injunction and Groia was helping him do it. In fact, court documents say that Weinberg transferred $1 million to each of his sons through accounts in their names at the Barrington Bank in the spring of 2005. "If I am being sued or I owe a large amount of money, I cannot make myself insolvent by transferring all of my money to my children," Brock declares. "That would be a violation of the creditors' rights. If I transfer all my money to my kids without consideration and then my kids loan the money back to me, that's a sham."
While still chasing after Weinberg regarding the $100 million, Cinar launched a second lawsuit in 2007. This one was aimed not only at Weinberg but also at Groia and Fournier, arguing that the two lawyers had conspired to break the injunction. The suit says that "Groia collaborated with" Weinberg in order to make him judgment-proof by helping the former Cinar CEO move his assets outside of Quebec. They are seeking $500,000 in damages.
Groia says there is "absolutely not one shred of merit to that position. It's complete and utter bullshit. I've had my account pored over by their law firms, my accountants, everybody's looked at it. Every cent and every nickel in my trust account has been accounted for."
In 2008, Cinar and Weinberg finally settled the main lawsuit over the missing $100 million. The terms of this agreement are secret. One result was that Cinar discontinued its lawsuit against Weinberg over his alleged role in breaking the injunction.
But that lawsuit continues against Groia and Fournier alone. Why? Ostensibly it's because the company believes they helped Weinberg violate the 2005 injunction. The lawsuit against Groia and Fournier is perhaps a way to shake the tree and see if anything tumbles to the ground—namely assets Weinberg didn't inform Cinar about. If they find Weinberg has lied, it could make that settlement null and void.
Groia has fought back, arguing that his dealings with Weinberg are all protected under client-solicitor privilege. So far, though, the courts have disagreed.
One issue at stake are affidavits Weinberg signed detailing his assets, which Cinar says Groia helped draft back in 2006. For example, Weinberg wrote one affidavit in which he did not disclose any transfer of his assets after the injunction was in place, saying he had only $1,000 in Groia's trust account in August, 2005. Yet court documents reveal that Groia's own records showed that $440,000 of Weinberg's money was in the account at that time, and no less than seven transfers for a total of $416,649 were made without court authorization (Groia contends these affidavits were finalized by Weinberg's Montreal lawyers).
In one legal skirmish earlier this year, Groia lost a fight with Cinar's lawyers regarding whether he should turn over his written communications with Weinberg. In its ruling, the Quebec court said the affidavits detailing Weinberg's money transfers contained false information and Weinberg had sought to undermine the judicial control over his accounts. And it didn't matter whether the money had originated from Weinberg's sons—it still could not be dispensed without the court's authorization.
Groia is convinced that the lawsuit against him continues "because [Voorheis and Brock]are still pissed that just when they thought they had Weinberg on his knees, I prevented them from getting default judgment against Ron for tens of millions of dollars." Voorheis's and Brock's position is that they are simply trying to be sure about the extent of Weinberg's assets.
A "hard knocking" of views indeed. When Joe Groia's twin troubles are settled, he may unwillingly have set two new precedents. One for a lawyer's ability to be aggressive. Another for a lawyer's ability to get paid.
With files from Jeff Gray