“AMBUSH” INTERVIEWS Dealing with the Surprise Government Interview

1. “AMBUSH” INTERVIEWSDealing with the Surprise Government Interview David M. Rosenfield Joseph P. Dooley Counsel Managing Director Herrick, Feinstein LLP KPMG LLP 2 Park Avenue 345 Park Avenue New York, New York 10016 New York, NY 10154 (212) 592-1513 (212) 872-7708 February 5, 2008 Presentation to the Greater New York Chapter of the Association of Corporate Counsel

2. The Purpose of the Surprise Interview • Valuable tool designed to obtain critical evidence • May catch employee in a lie – employee is unprepared and facts may either be inculpatory or embarrassing • Simultaneous surprise interviews prevent employees from “getting their stories straight” • Minimizes the likelihood that the company can intervene and stop the interview

3. What to Expect in a Surprise Interview • Carried out by either criminal investigators (FBI agents) or regulators • Usually at employee’s home early morning or after dinner • Embarrassment factor may tempt employee to just get it over with • If by phone, may seem less confrontational • May also be attempted at the office during the execution of a search warrant or during a surprise regulatory examination 2

4. What to Expect in a Surprise Interview (cont.) • No Miranda warning required because not a custodial interrogation • Normally two agents; notes are taken • No witness to support employee’s recollection of interview if it differs from agents’ recollection • Report is likely to be prepared • Agents may seek to tape interview • Agents may attempt to convince employee to sign a statement or affidavit 3

5. What to Expect in a Surprise Interview (cont.) • If no search warrant, agents may seek voluntary consent to search premises and/or computer • Pocket subpoena may be served whether or not the employee submits to the interview 4

6. Critical Legal Rights and Legal Concerns • Employees are not legally required to participate in the interview • Unlike a subpoena where testimony is compelled • But some regulators can impose sanctions for failure to cooperate • Employee is entitled to retain personal counsel or speak to a supervisor or company attorney • Any statements made are not “off the record,” and can later be used against the company and/or the employee • Lying to a federal agent is a crime • Employee probably not a target but can become one • There are at least 1001 reasons not to lie, and perhaps as many as 1505 or 1512 5

7. Applicable Criminal Statutes 18 USC § 1001 - Materially False Statements • Prohibits lying to or concealing material information from a federal official. Its purpose is to “punish those who render false positive statements designed to pervert or undermine functions of governmental departments or agencies.” 18 USC § 1505 - Obstruction of Justice • Prohibits obstructing “the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States.” 18 USC § 1512 (c)(2) - Tampering • Prohibits obstructing “any official proceeding” • 20 year prison term 6

8. 5 Key Rules to Follow • Be respectful, but do not be intimidated • Consider postponing the interview • Don’t talk, listen – listen carefully • Obtain business cards of agents • Immediately advise supervisor, corporate counsel or personal attorney 7

9. Advantages to Postponingthe Interview • Affords the employee time to review the facts and prepare with an attorney • Gives employee time to decide whether to talk to government at all • Later interview will be held at a government office, not at home • Presence of an attorney should protect against a potentially unfair or deceptive interrogation • Probably not sacrificing leniency 8

10. Leniency Issues • It is likely that any leniency considerations (i.e., immunity, reduced charges) available at the time of the ambush interview will still be available if interview occurs a short time later in presence of an attorney • Agents and investigators do not have the authority to grant leniency • Submitting to a surprise interview rarely terminates an investigation, and may very well enhance it • Incorrect, incomplete or false answers severely compromise leniency prospects 9

11. Corporate Internal Investigations & Surprise Interviews • What the government can do, so can you • Surprise interviews are sometimes used by a company’s corporate security department or by external investigators retained by the company • Corporate Codes of Ethics and Employee Handbooks usually require employees to cooperate during an internal investigation or face dismissal • If done outside the US must address foreign privacy/legal issues 10

12. Case Examples • Barry Bonds perjury case – statements made by Bonds’ trainer Greg Anderson to agents during a 2003 raid of his home • FBI investigation of alleged fraudulent commodity trading practices in Chicago • FBI price-fixing investigation of concrete companies in Indiana • FBI loan fraud investigation of Somerset, New Jersey Savings and Loan institution • 38 simultaneous interviews conducted worldwide by investigative firm for a major food manufacturer investigating Foreign Corrupt Practices Act issues 11

13. Conclusion The decision by a company employee as to whether or not to submit to an “ambush” interview during a criminal or regulatory investigation is a critical one for both the employee and the company. Declining to do so, so that the employee has a chance to carefully review the facts and speak to an attorney, is usually the best choice. 12

14. “AMBUSH” INTERVIEWSDealing with the Surprise Government Interview David M. Rosenfield Joseph P. Dooley Counsel Managing Director Herrick, Feinstein LLP KPMG LLP 2 Park Avenue 345 Park Avenue New York, New York 10016 New York, NY 10154 (212) 592-1513 (212) 872-7708 drosenfield@herrick.comjpdooley@kpmg.com www.herrick.comwww.us.kpmg.com