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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.
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