When a company receives a request for information from an investigating authority, one initial issue is whether to cooperate with the request or to assume an adversarial (or at least non-cooperative) position.  Even if the company ultimately decides to contest the authority’s characterization of the conduct, it is often in the company’s best interest to agree to cooperate with the investigation and the authority’s requests (to the extent they are reasonable and lawful).  In this vein, there are three important ways to establish and maintain a cooperative posture with an investigating authority, while also protecting the company’s interests in the process.
Continue Reading Best Practices for Negotiating the Scope of an Investigative Request

One critical issue to consider in responding to an investigative request is whether by producing the requested data, the company will be waiving a privilege or violating legal confidentiality obligations, including data privacy restrictions.
Continue Reading Before You Press Send: Protecting Privilege and Complying With Limitations on Data Dissemination When Responding to an Investigative Request

Upon receiving a request for information from a governmental authority or other agency, it is critical to make early strategic decisions about how to respond to the request and effectively frame the scope of the inquiry.  Generally speaking, there are two overarching goals that typically inform a company’s strategy for responding to requests for information: (i) to provide the requesting authority the information it seeks as efficiently as possible while maintaining credibility and (ii) to appropriately frame and cabin the scope of inquiry to minimize the burden on the company.  To do so, the party receiving the request should first explore a number of foundational questions to understand the context of and motivation for the request.
Continue Reading Five Important Questions for Addressing an Investigative Request

In an increasingly global, regulated, and litigious environment, companies face unanticipated and potentially destabilizing events that often play out in the public eye.  Frequently, the issues organizations face during large-scale, often public, crises require more than exclusively legal skills, but also communications skills.  Below we discuss three key steps in the process for handling the public relations aspects of any crisis: (1) assembling a crisis-response team, (2) deciding whether or not to make a public statement, and (3) crafting the public message.
Continue Reading Public Relations Considerations When Managing a Crisis

On August 26, 2019, New York Governor Andrew Cuomo signed into law legislation extending the statute of limitations for claims brought under the Martin Act from three to six years. The statute reverses a New York Court of Appeals decision holding that Martin Act claims must be brought within three years.
Continue Reading New York States Extends the Statute of Limitations for Claims Brought Under Martin Act to Six Years

The Dodd-Frank Wall Street Reform and Consumer Protection Act goes further than other statutes in providing protection to whistleblowers.  In addition to broadening prohibitions against retaliation, the Securities and Exchange Commission promulgated Rule 21F-17 to ensure companies could not interfere with an individual’s efforts to raise concerns and communicate directly with the SEC.
Continue Reading Rule 21F–17: Guidance on Drafting Confidentiality and Non-Disclosure Agreements

U.S. whistleblower protections broadly provide public and private sector employees with protection from retaliation for reporting potential concerns about misconduct. Companies that are ill-prepared to handle complaints internally not only face potential lawsuits from whistleblowers, but also open themselves up to substantial regulatory scrutiny and perhaps enforcement actions.
Continue Reading Five Building Blocks for Effective Internal Controls to Comply with U.S. Whistleblower Protections

While legal protections for whistleblowers in the United States were first adopted in the late 1970s for federal employees, statutory protections enacted in the last 20 years have substantially increased protection beyond the federal workforce to certain private-sector employees.  These protections create a number of potential issues for companies today, ranging from employee retaliation lawsuits to regulatory investigations. 
Continue Reading Whistleblowers: Who Are They and Why Should You Care?

The overall success of an investigation depends on the flow of communications between those overseeing an investigation, those conducting it and the company’s relevant stakeholders.  As such, it is necessary to identify responsibilities and define the structure of communications at the outset of the investigation
Continue Reading Dealing with an Investigation: Communication

Effectively dealing with a crisis often requires disclosure to government authorities, shareholders, and other stakeholders, even when many facts remain unknown.  Companies must toe a delicate line when assessing when, to whom, and how much to disclose, especially in the absence of complete information. 
Continue Reading Disclosure and Notification Considerations When Managing a Crisis