THE ETHICS OF INTERNAL INVESTIGATIONS, DOMESTIC AND ABROAD AMERICAN BAR ASSOCIATION, FOOD AND SUPPLEMENTS WORKSHOP JUNE 9, 2015

INTRODUCTION OF PANELISTS Jason Crow Jennifer Deitloff Ben Hulse Liv Kiser John O’Brien

CRIMINAL ENFORCEMENT INITIATIVES IN THE FOOD INDUSTRY There have been a string of criminal prosecutions against companies and executives in the food industry Jensen Farms – Cantaloupes that caused salmonella outbreak Peanut Corporation of American – salmonella outbreak Quality Egg, LLC – salmonella outbreak All signs point to increased criminal enforcement What does the increased enforcement of food safety laws do to the industry?

IMPACT OF INCREASED CRIMINAL ENFORCEMENT ON FOOD INDUSTRY Creates increased civil litigation? Creates greater need for internal controls? Greater need for internal investigations?

BEST PRACTICES FOR CONDUCTING INTERNAL INVESTIGATIONS Identify scope of investigation Preserve the privilege Upjohn warnings Preserving documents Hire local counsel

ADDITIONAL CONSIDERATIONS FOR CROSS-BORDER INVESTIGATIONS Language barriers Cultural Pitfalls Data privacy laws Labor laws Preserving Attorney-Client Privilege

WHEN TO CONDUCT AN INTERNAL INVESTIGATION WHEN TO CONDUCT AN INTERNAL INVESTIGATION? NO ALLEGATION TOO INSIGNIFICANT Hypo: Company CEO receives anonymous email stating that employees in Venezuela are paying off inspectors and skipping quality testing, including salmonella testing. Company corporate offices located in New Jersey. CEO takes email to in-house counsel and they get outside counsel on the phone. What do you advice do you give corporation? What is the next step?

INTERVIEWING EMPLOYEES Advantages Disadvantages Do you interview the wrongdoer? What about counsel? Did you get them counsel?

MODEL RULES ABA Model Rule 1.13(f) “In dealing with an organization’s directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing.”

MODEL RULES ABA Model Rule 4.4- Respect for Rights of Third Persons “In representing a client, a lawyer shall not …use methods of obtaining evidence that violate the legal rights of such a person.”

MODEL RULES ABA Model Rule 4.3 – Dealing with Unrepresented Person “In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in thematter, the lawyer shall make reasonable efforts to correct the misunderstanding.” Comment – An unrepresented person …might assume that a lawyer is disinterested in loyalties… even when the lawyer represents a client. During the course of a lawyer’s representation of a client, the lawyer should not give advice to an unrepresented person other than the advice to obtain counsel.

HYPO #2 Assume you represent a corporation in an internal investigation and you identify an individual/employee that is the culprit of wrongdoing. Do you interview the employee? What are the consequences for refusal to be interviewed? What if employee hires counsel? Do you require a JDA?

ROOT OUT INDIVIDUALS “Corporations do not act, but for the actions of individuals. In all but a few cases, an individual or group of individuals is responsible for the corporation’s criminal conduct.” Remarks by Assistant Attorney General for the Criminal Division Leslie R. Caldwell

VOLUNTARY DISCLOSURE Once your investigation is complete and you find wrongdoing, do you disclose? What are the benefits of disclosure? What are the pitfalls of disclosure?

BNP Paribas BNP agreed to cooperate in relation to allegations of FCPA violations. DOJ opined that BNP’s lack of cooperation was a crucial factor in its sentence of $8.9 billion monetary penalty and further stated that full cooperation would have put the company in a better position. What did BNP do wrong? DOJ claimed that BNP’s poor cooperation, among other things, was due to BNP’s failure to produce documents from a country and citing to data privacy laws that were rarely enforced.

QUESTIONS