Tarun’s Ten Commandments



From PLI’s Course Handbook

Internal Investigations 2009: How to Protect Your Clients or Company

#19182

9

tarun’s ten commandments

for cOnducting internal

investigations of public companies

Robert W. Tarun

Baker & McKenzie LLP

© March 2009 Robert W. Tarun

Tarun’s Ten Commandments

for

Conducting Internal Investigations

of Public Companies

© March 2009 Robert W. Tarun

Internal Investigations 2009:

How to Protect Your Clients or Company

Practising Law Institute

Chicago and San Francisco

June 2009

Introduction

Since 2001, public companies have retained law firms to conduct over 2,500 internal investigations of suspected wrongdoing by executives or employees. While the reasons are many and include fiduciary issues, the Sarbanes-Oxley Act of 2002, the United States Sentencing Guidelines and the globalization of corporate criminal enforcement, many common issues seem to resurface in well-intended investigations. This article addresses ten recurring problems in many public company internal investigations, and provides some examples of how and why these problems arise and how to avoid them. While these problems are not unique to public companies and can occur in private company investigations as well, many are especially important to public companies in light of their disclosure and reporting requirements under the federal securities laws and heightened visibility in today’s compliance environment. Lawyers can debate and disagree about the ten most important practices for conducting internal investigations but the ten outlined here seem to be, at least to the author,[1] those that arise repeatedly, despite their seeming basic nature or common sense.

1. Thou Shalt Fully Consider the Scope and

Independence of the Client Engagement and

Investigation, and Reevaluate as Necessary.

Once counsel has determined who the client is – the company, the Board of Directors, the Audit Committee, a Special Committee or another body or an executive– he must, with that client, determine the scope of the engagement and investigation. This will depend, in large part but not solely, on the nature of the principal and essential allegations. An investigation should certainly focus on those allegations, but also be mindful of any relevant or related conduct.

The client has a certain interest in ensuring that an investigation does not lose focus and wander into irrelevant inquiries. Still, if an investigation does not pursue logical avenues or leads and the company or committee later seeks credit from the government for its diligent efforts, it may, for example, find a dissatisfied or underwhelmed prosecutor or regulator. For example, if a company receives a substantiated credible allegation that the president of international operations has embezzled or made corrupt payments in Country A and that officer spends 50% of his time in Countries B and C, a client will likely be remiss for not examining possibly related conduct in Countries B and C. Concurrently, if the officer spends 10% or 15% of his time in Country D and the investigation has found no problematic conduct in Country A, or Countries B and C, then, absent special circumstances, the client will normally not be expected to investigate in Country D. The U.S. government, in the form of the Department of Justice and Securities and Exchange Commission, will carefully review the original scope of the investigation to see if it was reasonably calculated to address corporate misconduct by the alleged malefactors. If the government attorneys conclude the client or its counsel put blinders on or otherwise too narrowly focused the inquiry, they will give the company little if any credit and/or direct it to conduct usually far more costly and extensive investigation.

The most prudent course is to focus on the principal and essential allegations and determine whether there is improper or illegal conduct – with an understanding that the scope of the engagement or investigation will be reviewed and expanded if necessary. Both counsel and client should take care in drafting any engagement letter and related resolutions and minutes as, in time, prosecutors, regulators, auditors, or others may seek to review or challenge the scope of the investigation and engagement authority.

2. Thou Shalt Take Immediate Steps to Secure and Preserve All Potentially Relevant Documents – Hard and Electronic – and to Make Sure All Appropriate Personnel Are Advised of the Importance of Not Destroying Potentially Relevant Documents.

Many corporate investigations are greatly impeded when employees knowingly or inadvertently dispose of relevant documents, such as emails and personal notes, in the wake of learning of the investigation. These actions compound the employee’s and the company’s potential exposure in three ways. First, they undermine counsel’s efforts to gather all relevant evidence and investigate and understand the merits of the allegation. Second, they may establish evidence of a new crime – obstruction of justice – if there is a government investigation. Third, they may prove the intent necessary to establish an essential element of an underlying crime under investigation, as one does not usually conceal or destroy something unless someone has something to hide.

The best practice is to promptly and immediately advise in writing all appropriate management and employees to preserve all potentially relevant records – hard and electronic forms – and for those persons to confirm to a specific manager that they have done so. If an investigation becomes public or is voluntarily disclosed to the government, one of the first questions from a prosecutor or regulator will be: what did the company do within the first 24 hours to preserve and protect its electronic data and secure hard documents from employees and officers? If the company does not have a good answer, the government attorneys may well conclude the outside counsel and general counsel did not know what they were doing, or were not serious about gathering relevant evidence in the investigation.

Finally, in nearly every major investigation, some officer or employee will discard or destroy evidence – sometimes innocently, often times carelessly, still other times knowingly. If the company is cooperating with the U.S. government, then it is prudent to notify the prosecutor or regulator promptly of any intentional or unintentional spoliation. Prompt disclosure to authorities will build credibility with the government and often reduce any adverse consequences as a result of potential or actual destruction of evidence. Trying to ignore, or worse, to not disclose the misstep while purportedly fully cooperating with the government is foolhardy.

3. Thou Shalt Keep the Client Regularly

Informed of the Law and the Likely Course,

Progress and Results of an Investigation.

Not only is it a good practice to keep the client updated on the law, the likely course, the progress and, of course, the results of an internal investigation, the Department of Justice and Securities and Exchange Commission will be most interested in the process of an investigation if it becomes public. The government attorneys want to make sure that there is substantial corporate oversight and, if possible, that an independent body, e.g., independent directors, is being kept abreast of factual and legal developments and, in particular, any potential misconduct by senior management.

In the wake of Sarbanes-Oxley, Audit Committees and QLCCs have increased responsibility and authority to engage independent counsel and expert assistance in the course of an investigation. Both the Department of Justice and the Securities and Exchange Commission will want to make sure the Board members and any duly authorized committees are exercising that authority. Regular or special minutes should reflect the progress of an investigation and build a record demonstrating sound process – that overseers are diligently monitoring the progress and results of the investigation and regularly interacting with counsel conducting the investigation.

It is wise at the onset of an investigation to give the client a preview – sometimes with decision tree precision – of the likely course of an internal investigation. For example, in a review of a major cartel allegation, a Board or Audit Committee might be advised that the law firm will secure contracts, correspondence and bids for a specific period; interview key procurement managers and authorizing officers, and report back to the board within fourteen (14) days. If there is credible evidence of price fixing and a significant effect on commerce in the United States, then the client may consider applying for amnesty under the Antitrust Division’s corporate leniency program, thereby avoiding criminal charges for the company and its cooperating officers and employees. If the company is not first in, then counsel will explain to the client the possible outcome scenarios and discounts available to second or third-in entities along with the individual carve-out scenario. Counsel in this scenario would advise the Board that the company would also want to determine if price fixing occurred with other products in order to obtain similar advantages, recognizing that if it failed to report other illegal activity, it would be subject to the Division’s penalty plus policy and treble fines[2] and so forth.

Boards and committees want to understand the likely sequence of events, the probable timeline and possible outcomes – difficult as that may be to predict. If the likely events and future decisions are explained to the client at the outset, then the investigation is likely to be more productive and beneficial to the client.

4. Thou Shalt Take Prompt and Effective

Measures to Stop Illegal Conduct.

If counsel and the client conclude there has been illegal conduct, then they must take prompt and effective measures to stop it. This advice seems basic, but it is surprising how many employees do not understand that the “stop it” message was meant for them, their business unit or region, or that even that the company was really serious. It may be a cartel situation where the company discovers problematic post-trade association meetings, or new managers disregarding a regional directive not to engage consultants without approval from headquarters. Invariably, a few employees take a straightforward directive not to meet with competitors to mean “be more careful” about meeting with competitors, or an order not to use a consultant to not include hiring one for the current or the upcoming project.

The message to stop problematic or illegal conduct must be firm and unequivocal – and directed to all appropriate managers and personnel. Senior management will best know how to convey the message in their organization, but convey it they must. Sometimes management will want to limit the message for fear that it will leak out to persons who will use it against the company. Whatever the reason for limiting the original instruction, the consequences of failing to stop illegal conduct are invariably very painful. If the misconduct continues, one of the key objectives of an investigation uncovering problematic conduct – remediation – is defeated. As important, any resolution with the government where the illegal conduct continues will be much more costly. Finally, the government may conclude that the senior officers responsible for terminating the illegal conduct conspired to make it appear that the misconduct had stopped, well knowing and desiring that it would continue.

5. Thou Shalt Advise Employees and Others of Whom Counsel Represents, to Whom the Attorney-Client Privilege Belongs and Who May Waive It.

Ethical rules require counsel to make clear who they represent at the outset of interviews. In internal investigations, there is a constant risk that officers and employees will assume that company’s counsel represents them when that is not the case. This can result in litigation when the company or the government seeks to use the employee’s interview statement. Increasingly, the government has sought to call investigation counsel as witnesses,[3] so the investigation lawyer who has failed to give officers or employees these ethical warnings can expect some difficult cross-examination in a courtroom.

While the warning may cause employees to refuse to talk (and to thus face discharge for refusing to meet and discuss company business), counsel must still give the Upjohn warning.[4] A standard Upjohn preamble is:

We are lawyers retained by _____ Corp. to conduct an investigation into potential/possible irregularities involving __________. We are here to interview you to obtain truthful information to be used in giving legal advice to _____ Corp. We represent the company [the Board of Directors, the Audit Committee, a Special Committee] and not you personally. Because we represent the company [or the above], our communications at this meeting will remain confidential and be protected from disclosure to persons outside the company [or the above] by the attorney-client privilege.

The company [or the above] controls this privilege; you do not. In other words, _____ Corp. may prevent, or agree to allow, disclosure of our communications at this meeting to people outside the company, including law enforcement authorities. You do not have any authority over the privilege.

Do you have any questions before we begin the interview?

If the company is cooperating with law enforcement authorities and there is an agreement or expectation that the company will share the substance of internal investigation interviews with law enforcement authorities or the memoranda of interviews themselves, then counsel should advise employees that waiver of the privilege is likely, probable, or near certain.[5]

6. Thou Shalt Be Firm and Fair in

Conducting Witness Interviews.

This commandment may seem self-evident. Still, there are counsel who conduct interviews as interrogations and begin interviews with a complete theory in place and a determination to prove it. Counsel should keep an open mind and give witnesses the opportunity to share their knowledge and best recollection of events. This fair practice can sometimes lead to legal, local or equitable explanations or defenses that counsel might never have considered.

Where possible, witnesses should be provided in advance with copies of relevant documents, such as calendars, e-mails, invoices and letter correspondence. This practice avoids the waste of time resulting from the witness’s necessary reading and studying of a document he has not seen in years, or perhaps ever. If employees are recalcitrant or uncooperative, counsel and the client shall be firm and make clear the importance of the inquiry to the company and the need to learn promptly the employee’s knowledge of relevant facts. Absent compelling circumstances, e.g., a company attempting to qualify for a time-sensitive cartel amnesty program, investigation counsel are wise to grant additional time to employees who request a brief continuance to consult with counsel. Witnesses should also be given the opportunity to clarify answers or statements at the end of the interview.

The goal of a corporate internal investigation remains to obtain as efficiently as possible accurate and reliable first-hand information about an allegation and, where the allegation proves valid, to implement timely remedial measures, including as appropriate disciplinary action (see the Ninth Commandment). Fair and firm witness interviews help serve this objective.

7. Thou Shalt Review and Respect

All Relevant Laws and Policies.

This is seemingly yet another self-evident commandment, but surprisingly some investigation counsel do not know the underlying statutory or common law of the allegations they are investigating, relevant company and government policies and important laws and policies of relevant foreign jurisdictions.

For example, in a Foreign Corrupt Practices Act investigation it is essential to know the five elements (including the critical corrupt intent requirement), the two affirmative defenses (the written laws of the foreign country; and reasonable and bona fide expenditures), the potential extension of the statute of limitations to obtain foreign evidence (3 years), the parastatal implications and the various foreign subsidiary-parent exposure theories.

In a Sherman Act cartel investigation, it is imperative to know the Department of Justice’s Antitrust Division policies and procedures, including the corporate amnesty program, the marker system, and amnesty plus and penalty plus policies. The difference between knowing these and not knowing such policies can cost a client tens of millions of dollars or more.

In advising a client about voluntary disclosure and corporate cooperation, counsel must explain exactly what true quality cooperation entails. It is not simply a week of lawyer meetings and a few interviews at the Department Justice, the Securities and Exchange Commission, or a U.S. Attorneys’ Office. It frequently involves a multi-year, time-consuming and management distracting effort involving dozens of extensive document requests, numerous officer and employee interviews in the U.S. and abroad, electronic data searches, translation of foreign documents, and even cooperation in civil litigation.

General counsel or others will want to carefully review insurance policies, press releases, and securities disclosures to make sure all statements are timely, accurate and consistent with applicable corporate policies and the law. It is best if the proper spokespersons for the company are identified early and the entire team is aware of those persons and has their contact information. Various audiences – see the Eighth Commandment – will be scrutinizing public statements, and some may seek to maximize their own agenda from inconsistent company statements.

It is important to know and respect the laws, including the U.S. Sentencing Guidelines, the laws of other countries, applicable privileges (e.g., attorney-client, work product, auditor), foreign data privacy laws of other countries and data transfer issues. For example, in its 2009 decision, Akzo Nobel Chemicals Ltd. v. Commission, the Court of First Instance held that in-house counsel in the European Community are afforded much less protection for their work product. Consideration of both U.S. and foreign laws can greatly affect the course and outcome of a multi-jurisdictional investigation.

These laws and policies should be analyzed early and shared with the client so all can make an informed decision. At the outset of an investigation, it is usually helpful to outline and keep a list of these laws, policies and mileposts, and review how they are being addressed. One supervisory lawyer – either inside counsel or an outside lawyer – is usually best assigned to ensure that careful attention is paid to each of the above laws or policies and that any deadlines are met.

8. Thou Shalt in Representing the Client Remain Mindful of All Audiences and Constituents in Draft Presentations or Reports and Making Recommendations.

A decade or so ago, the audience of a corporate internal investigation was most often the senior management and, occasionally, the board of directors. Today, in the wake of Sarbanes-Oxley, the trend towards voluntary disclosure and the increased premium on corporate governance, the ultimate audience – whoever the client is – has grown to include shareholders, lenders, auditors, competitors, insurers, customers, vendors, prosecutors, regulators, the media, citizen groups, and even potential civil plaintiffs.

In drafting a report or PowerPoint presentation for a client, outside counsel and the General Counsel should assume that all the above stakeholders or constituents will see the report or PowerPoint at some point. It is wise to draft and then review reports or PowerPoints with each relevant audience in mind. As important, counsel should consider whether any contemplated remedial measures will adequately address the interests of important stakeholders or constituents.

9. Thou Shalt Discipline Wrongdoers.

In the wake of willful misconduct, a company should take appropriate disciplinary actions against officers or employees. Potential sanctions include a written reprimand, transfer, demotion, compensation or bonus adjustment, suspension or termination. What is appropriate action will, of course, depend upon the facts and circumstances. Sometimes senior management is reluctant to take disciplinary action for a host of reasons – an officer’s long-time honorable service to the company, his closeness to senior management, personal health circumstances, the threat of a lawsuit and the impact on employee or officer morale. If the employee knowingly engaged in conduct that violates the Company Code of Conduct or worse, federal criminal law, and the company looks the other way, does nothing or procrastinates, then the company and its senior management may later pay a heavy prosecutorial, regulatory, public relations and/or personal price.

The company should carefully consider the merits and implications of any severance package upon deciding that termination of a long-time employee is the appropriate sanction. Prosecutors and regulators may interpret too generous of a severance package as an effort to silence the departing employee. Periodic payments are often preferred as they tend to ensure continuing employee cooperation.

Outside counsel can assist companies and their general counsel through difficult disciplinary decisions, including what type of discipline is most often imposed for particular misconduct, what other companies have done in similar situations and what severance package terms will not likely trouble the Department of Justice or the Securities and Exchange Commission.

10. Thou Shalt Implement Effective Remedial Measures and Regularly Review the Progress of Their Implementation.

Most responsible public companies promptly investigate allegations of misconduct, determine whether willful misconduct has occurred and, if so, initiate appropriate disciplinary action. Most also commit to implementing sound remedial measures. The frequent rub, however, is that new unrelated events and priorities take over – acquisitions, restructurings, poor financial results, product roll outs, cost-cutting programs, management changes – and the earlier commitment to implement quality remedial measures can fade.

If and when subsequent misconduct occurs and a prosecutor or regulator learns that the previous remedial measures were never fully implemented, the consequences can be severe. The government may well conclude that the prior commitments were but fleeting lip service and the company needs to be sent a very strong new message. The penalties for corporate recidivists have been treble or worse than what they would have been for a first-time offender.

Sophisticated management teams and boards of directors will regularly review remedial measures as part of their agendas, and ensure that the measures have been fully implemented. Smart companies and boards will also conduct an annual compliance assessment to determine new best practices, to identify probable risk areas and to conduct a review of past problems to minimize the risk of recurrence. Absent a clear timetable of officers and employees tasked to perform the annual assessment and to complete remedial measures, many companies allow remediation to slip, and the penalties for a recidivist are invariably severe.

Amen

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[1] In 1993 Mr. Tarun co-authored the leading treatise CORPORATE INTERNAL INVESTIGATIONS (Law Journal Press 1993-2008) and has conducted over one hundred internal investigations of sensitive matters for clients in the United States and over 35 foreign countries.

[2] 15 U.S.C. 78 (m)(5).

[3] See United States v. Gregory L. Reyes, Case No. CR060556 CRB (U.S.D.C., N.D. CA) (investigation counsel called by the United States as a rebuttal witness to testify about the internal investigation interview three years earlier and contradict the CEO’s trial testimony).

[4] Upjohn v. United States, 449 U.S. 383 (1981).

[5] Counsel may wish to add: “Before we begin, I want to inform you that, if you wish, you may therefore be represented by your own lawyer. If you wish we will delay the interview until your lawyer is present. Otherwise, we can proceed now.”

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