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Dealing with the Surprise Government Interview
Periodically, the government conducts criminal investigations into alleged product defects. For example, as The Washington Post recently reported, the U.S. Food and Drug Administration ('FDA') recently opened a criminal investigation into the highly publicized case involving the contamination of pet food, in which various pet-food companies determined that they had used melamine-contaminated ingredients from China in their products. Investigations such as this one are not isolated events. As noted in a paper issued in 2001 by the National Legal Center for the Public Interest:
The product liability arena has long been subject to criminalization '. High-profile, product liability tragedies have incited legislatures to take aim directly at CEOs. The media routinely has pounced on product liability crises ' to bash big business. In turn, society has demanded that someone 'pay the price.' Legislators, representing constituents who are thirsty for retribution, have targeted not only corporations but also their CEOs. After all, someone needs to be held accountable. (See, Stanley A. Twardy, Jr., et al., The Criminalization of the CEO, National Legal Center for the Public Interest, March 2001; see, also, Press Release of national nonprofit consumer advocacy organization Public Citizen, 'Public Citizen Calls for Criminal Investigation of Breast Implant Manufacturer for Withholding Safety Data from FDA,' www.citizen.org, Oct. 12, 2006; see, too, Consumer Product Safety Act, 15 U.S.C. ”2068, 2070; and, see, Federal Food, Drug, and Cosmetic Act, 21 U.S.C. ”331, 333.)
When conducting criminal investigations about possible corporate wrongdoing, in alleged defective-products matters and other cases, government agents often seek to interview company executives and other employees ' of old-line bricks-and-mortar and e-commerce companies ' 'by ambush' outside the office, to minimize the likelihood that a supervisor or a company lawyer might intervene to thwart the interview. There is nothing improper in using this investigative technique; nevertheless, employees should know their legal rights and understand the risks they take when they submit to such surprise interrogations.
Employees should recognize, for instance, that they are not required under the law to participate in any surprise interview. They should also be aware that any statements that they do make are not 'off the record,' and can and will be used later by the government against the company, the employee or both, at a trial, or other legal proceeding. Generally, employees should carefully consider their options before submitting to interviews of this type without the advice of counsel and without ample time to prepare.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
How AI Has Affected PR
When we consider how the use of AI affects legal PR and communications, we have to look at it as an industrywide global phenomenon. A recent online conference provided an overview of the latest AI trends in public relations, and specifically, the impact of AI on communications. Here are some of the key points and takeaways from several of the speakers, who provided current best practices, tips, concerns and case studies.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.