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1 Chapter 1 An Investigator Appears: Are You Ready? Presentation Slides Tom E. Lindley Perkins Coie LLP Portland, Oregon

2 Managing Environmental Enforcement Risk 1 ii

3 An Investigator Appears: Are You Ready? January Start with humans (others covering subpoenas): Is it Press, Agency, or Officer? Different rules for each Discuss Press, then Agents and Officers Managing Environmental Enforcement Risk 1 1

4 If it is the Press: Do you or your business care about public image? If not, then you can say: Go away. But if you do, you must talk with the reporter. Always balance before engaging: is risk worth benefit? (Can hurt future or help future) Five rules of engagement: Develop a Simple Primary Theme. Prepare for Difficult Questions. Be Positive. Write Down and Memorize Important Responses. Bridge to Your Positive Messages and Themes. Develop a Simple Primary Theme Allows you to influence the press conference or interview and ensure that you get your message out. Helps avoid becoming the victim of the interviewer's agenda. Less likely to be distracted and lose concentration. Managing Environmental Enforcement Risk 1 2

5 Prepare for Difficult Questions AND Be Positive Anticipate the worst, and the most difficult, questions. Minimize the possibility of ambush. Negative statements do nothing for your image or the image of your company. Bridge to Your Positive Messages and Themes Some words and phrases can be used to transfer from the questioner's agenda to your positive messages and themes. Examples of bridging words and phrases include: (a)"yes, but..."; (b) "No, but let me explain..."; (c)"i don't know about that, but here's what I do know"; and (d) "What's more important now, however, is..." Managing Environmental Enforcement Risk 1 3

6 Responding "No Comment" Is a No-No. No comment is portrayed negatively. Better alternatives: (a) "I cannot comment on that now, but I will have plenty to say later"; (b) "I'm here today to talk about the spill and our successful cleanup, not other topics or unfounded allegations"; or (c)"we will respond to that question at the appropriate time." Dealing With Stakeouts. Remain positive Ignore their continuous questions. If you smile, wave, wish them well, and ignore their taunting questions, it is highly unlikely that you will ever see that footage on television. Managing Environmental Enforcement Risk 1 4

7 Off-the-Record Comments - there are none. Reporters use this tactic. Don't fall for it. The information will be attributed to "an unnamed source close to the investigation." Nothing is ever really off the record. If It Is An Agency Or An Officer Rules of Engagement Change! Often no choice about responding. You might cooperate: Agencies will be with you forever. Agencies might be neutral before you start the interaction. Or you might do minimum required by law: People with warrants are not neutral. THIS IS CRITICAL POINT FOR DECISION Be ready to change decision Managing Environmental Enforcement Risk 1 5

8 PRINCIPLES OF CORPORATE CRIMINAL LIABILITY A company may be held criminally liable for the illegal acts of a single employee, regardless of the employee s position within the corporation. Criminal liability attaches if the employee s actions were: Within the scope of his duties; and Intended, at least in part, to benefit the company. CORPORATE CRIMINAL LIABILITY An act is within the scope of employment if it is generally related to the employee's duties, even if not approved by management. Even when an employee acts contrary to company policies and specific directives, a company can still be held criminally liable. Managing Environmental Enforcement Risk 1 6

9 CORPORATE CRIMINAL LIABILITY A company may be held criminally liable if any part of the rogue employee s motivation was to benefit the company, even though the employee was acting primarily to benefit himself. A company need not actually receive a benefit from its employee s illegal conduct to be held criminally liable. A corporation does not have a 5 th Amendment privilege against self-incrimination Four methods of access Consent Agents prefer: consenting may be advisable Note: Emergencies or Plain View access Nonconsensual warrantless inspection Statute must authorize and define search s scope Highly regulated industry or Licensing exception Previous consent in your permit In either situation, do ask why us? Managing Environmental Enforcement Risk 1 7

10 Four methods of access Administrative inspection warrant Normally used when access is denied for routine compliance check or when agency receives "written substantiated complaint" Issued for less than probable cause to believe crime committed Requires a magistrate's (judge s) signature Restricted to inspecting or photographing only that listed in the inspection warrant May be used only to gather evidence for civil enforcement Four methods of access Criminal search warrant Requires probable cause to believe that you or your business has committed a crime Magistrate's (judge s) signature required This is not your neutral agency! Agency is at your door because it believes there has been or is on-going criminal activity Agency is seeking proof to convict a "wrongdoer" Agency is not your friend here, nor is it amenable to frequently used civil procedures Managing Environmental Enforcement Risk 1 8

11 TYPICAL CIVIL INVESTIGATOR: Preventing Enforcement Escalation Cooperate in enforcement action, with careful attention to defenses. Hire a consultant respected by the agency to prepare a remediation plan. Correct continuing violations. If permit is denied or not acceptable to client, exhaust all administrative appeals and judicial relief. Consider declaratory judgment action. Enforcement Triggers Factors that increase the likelihood of a criminal investigation: Major release from a spill, explosion, fire. Have a release response plan in place, known to management, with updated phone numbers Have legal and PR response plans. Whistleblower or disgruntled employee Permitting dispute or protracted enforcement matter (especially if handled poorly). Managing Environmental Enforcement Risk 1 9

12 Clues to a Criminal Investigation Changes in behavior of regulators Break-down in negotiations of civil matters Unexpected or increased inspections. Agency requests for self-collected data. Reports from local officials, workers, friends that investigators are making inquiries. EPA information requests. Is Your Client a Target? Broad considerations: Is alleged violation a Regional Enforcement Priority? Repeat violators, poor environmental track record? Associated with "major" incident, with harm to human health or the environment? Consult a criminal attorney, and/or consult: EPA Guidance: The Exercise of Investigative Discretion (Jan. 12, 1994). EPA OECA Parallel Proceeding Policy (Sept. 24, 2007). See Jeff Hunter s lists in his presentation Managing Environmental Enforcement Risk 1 10

13 One more way for access: the AMBUSH INTERVIEW Example: covert investigation followed by multiple simultaneous evening visits to executives homes Agents will usually start friendly, in friendly setting, BUT No obligation to talk at that point, and Frequently better to talk with attorney and management first Responding during criminal investigations Time is very limited Assemble your defense team immediately Immediately communicate to all employees both nature of investigation, importance of not interfering with warrants and importance of avoiding false or misleading statements If possible, send home non-essential personnel Managing Environmental Enforcement Risk 1 11

14 Safety orientation Request/require that your safety rules be followed Provide safety hats and other routine safety items (including films) as for any visitor Agency personnel do not have to undergo your particular training can be done for the initial inspection team can be done each day for new inspectors Develop "ground rules" for agency personnel Request a schedule of activities Bring requested records/documents to the inspector if possible/allowed Key staff must accompany inspectors for all field work and records reviews Key staff will participate in all field inspections Recognize that you may have to ask for a short "time out" to consult legal counsel Ask for entry, exit and daily exit briefings Managing Environmental Enforcement Risk 1 12

15 Assignment of correction action response team Preassign responsibility for correcting any (potential) violations Remedy violations immediately if possible and inform inspectors as soon as possible Where remedies require long time frames, begin efforts immediately At day's end, specifically ask what violations were identified Reduce or Avoid Risks by having Internal Compliance Audits! Where you can avoid such a lawsuit, less costly to do so Use a regular audit program to review operations and permitting Do so through attorney/client and state privileges Managing Environmental Enforcement Risk 1 13

16 When the Whistle Blows 1. Brief Your CEO and Board Recognize that crisis frequently occurs outside of business hours. Have contacts available. Clearly define who has primary responsibility to alert and report back to CEO and Board. Best to have pre-identified. Could be GC, COO, CFO, CRO/PR or team of these. But a single responsible person may eliminate confusion. To whom report on Board identify who that is (usually Chair, Lead Director, or Audit Comm. Chair). When the Whistle Blows 2. Identify Internal and External Spokespersons. Only one or two (perhaps one inside, one for outside PR) individuals should speak for the Company. 3. Have Ready at Hand the Company's Formal Crisis Response Plan - or Know How to Find it. Consider annual training session to make sure that you know where this is and your role. Managing Environmental Enforcement Risk 1 14

17 When the Whistle Blows 4. Stop any Bad Practices Immediately. If there are on-going activities that are clearly illegal, stop them as soon as you learn about them. When the Whistle Blows 5. Reach Out to Government Attorneys: Identify Agencies and individuals: Primary Industry Regulator? SEC? Dept. of Justice? Foreign jurisdiction authorities? Reach out at an early stage. Note that the investigation is at a very early stage. But show that Company and Agency are on the same side: To stop any bad practices that may exist. To learn the underlying causes. To take any corrective steps and To develop appropriate remediation. Managing Environmental Enforcement Risk 1 15

18 When the Whistle Blows 5. Reach Out to Government Attorneys (cont.): Be careful with too-lofty aspirational statements or overly-broad promises. Inappropriate practices may continue even as you speak it may take time to fully identify and stop them. When the Whistle Blows 6. Contact Outside Counsel Discuss notification of employees about possible contact from governmental investigators. Discuss possible need for internal investigation. Managing Environmental Enforcement Risk 1 16

19 When the Whistle Blows 7. Disclosure and Trading Restrictions. Consider no insider trades until investigation is complete. Consider what must not be disclosed. Assess whether any previously filed reports need to be corrected. Contact Audit Partner (CFO to do) Sarbox, Dodd-Frank, or other reporting obligations? When the Whistle Blows 8. PR, IR, and Reputation Management Monitor twitter Reach out to or have report back from crisis PR expert. 9. Prepare No-Retaliation Memorandum Managing Environmental Enforcement Risk 1 17

20 When the Whistle Blows 10. Preserve Documents and Suspend Routine Destruction Practices Issue written preservation memorandum. Work with IT Department to determine how to stop inadvertent destruction of electronic records. SURVIVAL IS BEST ASSURED IN ADVANCE: PREPARE! Be "inspection ready" You cannot "prepare when officers arrive Regular environmental and other audit programs Strong company policy on environmental performance and other compliance, including: prompt reporting of noncompliance events expeditious corrective actions when needed Decide in advance to whom counsel will be provided Manual and wallet cards with key points and numbers Managing Environmental Enforcement Risk 1 18

21 Ongoing prerequisites to survival Train company personnel Policy re drop-ins and ambushes Bullet list of who to do what/who to call How to answer: honestly but carefully and do not guess Anticipate press interest Develop plan Select and announce spokesperson Prepare safety orientation Anticipate documentation needs Create corrective action response team(s) QUESTIONS? Managing Environmental Enforcement Risk 1 19

22 Managing Environmental Enforcement Risk 1 20

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