• Schedule meetings with regulators in person
whenever possible (or make sure your outside
counsel does so). It is much easier to get across
nuance in person, and it is important to make
sure regulators understand you are making
genuine—rather than just argumentative—
challenges. Taking the time for in-person
meetings also shows regulators that you are
taking them seriously, even if you disagree
with their allegations. During in-person
meetings, counsel will usually get a much
better sense of where a regulator is coming
from and how serious he or she is about
particular issues.
• Do not have the alleged “bad actor” participate
actively in the investigation and never have them
attend meetings with regulators.
• Stay on top of document preservation and
e-discovery. Leaving regulators with the idea
that the company is withholding documents
sheds substantial doubt on the company’s
integrity. Worse is any government suspicion
that a company has shredded or deleted
electronic documents that are germane to
the case.
• Show appreciation for the point of view of the
regulators. They have a job to do and are trying
to determine the likelihood the company has
done something wrong, the genuineness of the
company’s response and the likely harm to
shareholders if the regulators/investigators make
the wrong decision.
• Be deliberate when considering an appeal up the
chain of command in the U.S. attorney’s office
or from an office to Main Justice. You have
every right to appeal a decision you disagree with.
But it is important that you do not do so in a way
that demeans the person whose decision you
are appealing and that you not put the supervisor
in a position where you have made it even harder
for them to decide things in your favor because it
will implicitly endorse unduly personal criticism of
the subordinate. Being tactful is very important.
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Regulators are likely to “give credit”
for a viable compliance program that
can be proven to be well understood,
communicated and followed.
Mark Sullivan, practice leader for fraud and
investigation services at Grant Thornton,
recommends the following actions to build an
effective corporate regulatory compliance
program:
• Create a sound code of conduct
• Have visible senior executive support of
preventive policies and have an experienced
and qualified chief compliance officer
• Train all employees and be able to substantiate
that lessons were learned
• Implement compliance standards to reduce
the incidence of violations
• Assign responsibility for the implementation
and oversight of such standards and policies
to one or more senior executives
• Review the program annually
• Develop procedures to prevent and detect
improper conduct, such as auditing and
monitoring of business operations
• Establish internal reporting channels, including
a whistleblower hotline, through which
employees can report potential wrongdoing
• Develop procedures to assess reports of
improper conduct
• Periodically review and test its policies and
standards, as well as institute appropriate
disciplinary procedures
• In the event of an allegation of wrongdoing,
be ready to investigate and respond swiftly
