critical steps for responding to government investigations - presentation: reagan bradford,...
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For more information: [email protected] Reagan Bradford who is the Deputy General Counsel, Litigation at Chesapeake Energy Corporation delivered his presentation at the marcus evans Chief Litigation Officer Summit March 20-22, held in Las Vegas, NV. Join the 2015 Summit along with top Chief Litigation Officers and service providers in an intimate environment for a focused discussion of key new drivers shaping the legal industry today. For more information: [email protected]TRANSCRIPT
CRITICAL STEPS FORCRITICAL STEPS FOR RESPONDING TO GOVERNMENT INVESTIGATIONSINVESTIGATIONSREAGAN E. BRADFORD, DEPUTY GENERALCOUNSELCHESAPEAKE ENERGY CORPORATIONCHESAPEAKE ENERGY CORPORATION
“That kind of thing happens to other companies, not mine.”ot e co pa es, ot e
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TREND: Increasing Enforcement Activity with Growing Price Tags
Record Settlements
JPMorgan - $13 billion
J&J - $2.2 billion$
Deutsche Bank - $1.9 billion
SAC Capital $1 8 billionSAC Capital - $1.8 billion
Total S.A. - $398 million
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Be Prepared
Knowing the risks what exactly“Knowing the risks, what exactly does ‘prepared’ mean?”
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BEFORE THE INVESTIGATION BEGINS
1 2Federal Sentencing Guidelines (1987)1
31 2
The Seaboard Report (2001)23
A Resource Guide to the U.S. Foreign Corrupt Practices Act 3
Effective Compliance and Ethics Program
(2012)3
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“CULTURE OF COMPLIANCE”
• Establish standards and procedures C-SUITE
• High-level personnel ownership
• Effective training
• Monitor and audit effectiveness
• Risk assessments Tone from the Top
• Anonymous reporting
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GET IT RIGHT FROM THE START
Obstruction of justice / witness tampering1
Regulatory complications2
Prejudice defense / negotiation position33
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YOU GOT SERVED
INVESTIGATIVE TOOLS
• Search WarrantsSearch Warrants
• Subpoenas and Civil Investigative Demands
• Requests for Interviews
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IDENTIFY YOUR TEAM AND NOTIFY THEM
• In-house counselLegal • External counsel
• Independent counsel?
Media • Internal communications personnelE t l lt tMedia • External consultants
Government Response TeamGovernment Response Team
STEP #1 FOR LEGAL: ISSUE A LEGAL HOLD
Legal Hold Ground Rules
• Suspend routine document retention/destruction policies
• Issue a litigation hold
• Identify “key players”
• Identify relevant information, collect it and produce it
• Know your systemsy y
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SAFEGUARDING PRIVILEGE
Joint DefenseJoint Defense agreements
Waiver requestsAttorney-ClientWork-Product Waiver requestsWork ProductSelf-Evaluation
Outside auditors
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EMAIL TRAINING
Watch E mail ChainsWatch E-mail Chains
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D&O COVERAGE
Review all obligations:Review all obligations: contractual, statutory and strategic
Assess coverage availability and notifyIndemnity availability and notify carriers
Indemnity
Track everything
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ACCRUAL AND DISCLOSURE
ASC 450-20
Disclosure
Continually reevaluate
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INVESTIGATIVE TOOLS
Search Warrants1
Subpoenas and Civil Investigative Demands2
Requests for Interviews33
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SEARCH WARRANT
Intrusive and Disruptive
• Train• Train• Do not interfere,
but minimizebut minimize disruption
• Track and• Track and document
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SUBPOENAS AND CIVIL INVESTIGATIVE DEMANDS
C t t t• Contact prosecutor / regulator
• Manage document preservation and pcollection
• Balance• Balance cooperation, scope and costand cost
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REQUESTS FOR INTERVIEWS
Surprise! Let’s talk.
• Train• Written
memomemo• 5th
Amendment
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QUESTIONS
CREDITS
Abbe David :Lowell and Obiamaka P. Madubuko, Knock, Knock. Who’s There? The Government. ABA Section of Litigation and Criminal Justice Section gAnnual CLE Conference, April 13-15, 2011
804 H t R d t G t804: How to Respond to a Government Investigation/Inquiry: The First 30 Days, Association of Corporate Counsel
Taylor Phillips, Responding to Government Investigations: Pitfalls and Procedures, Tennessee Bar Journal 20122012