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Getting Internal Investigations Done Right David T. Schultz Maslon Edelman Borman & Brand, LLP. Conducting the Investigation. “ An internal investigation is worse than useless if it is not conducted properly and can cause substantial harm to a company ’ s credibility and reputation. ”

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Presentation Transcript

Getting Internal Investigations

Done Right

David T. Schultz

Maslon Edelman Borman & Brand, LLP


Conducting the investigation
Conducting the Investigation

“An internal investigation is worse than useless if it is not conducted properly and can cause substantial harm to a company’s credibility and reputation.”

Giovanni Prezioso, Former General Counsel, SEC


Considerations
Considerations

  • Whether and When to Conduct One

  • Who Conducts It

  • How It is Conducted

  • What is Produced



Who?

Inside counsel vs. Outside counsel

Expense Resources

Inside Knowledge Objectivity

Confidentiality Integrity

Motivation Independence



Selecting your outside counsel
Selecting Your Outside Counsel

  • Assessing Competence

    • Technical

    • Independence

    • Reputation

    • Local Knowledge

    • Specified Knowledge


Competence
Competence

All told, Vinson & Elkins’“investigation” appears worthy of Inspector Clouseau.

. .. they asked few real questions, failed to talk to obvious key witnesses


Independence
Independence

[V & E]…in 2000 billed Enron for between $27 million and $30 million.


Structuring the investigation
Structuring the Investigation

  • Internal Reporting

  • Defining Scope/Written Plan

  • Internal Communication with Employees



How do you find the facts
How Do You Find the Facts?

  • Conducting the interview

    • Corporate Miranda

    • Tape recording/court reporter

    • Written memos

  • Interference


The written report
The Written Report

  • Whether

  • When

  • How



Dissemination of the report
Dissemination of The Report

  • Need to Know

  • Controls on Report

  • Canary Traps


Investigating the board what are the limits
Investigating the Board: What Are the Limits?


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