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Investigations, Enforcement, and White Collar: Internal Investigations

In the post-Sarbanes-Oxley, Dodd-Frank world, internal investigations are a reality for most companies and other institutions. Internal investigations are those that are proactively undertaken by a company, its board, or an audit committee, often before any law enforcement agency initiates an investigation, but typically after potential misconduct is made known to a company.

While high profile and significant internal investigations have occurred in the context of major public company scandals, they may also be appropriate in many other situations. For example, allegations of ethical lapses, whistleblower complaints, governmental inquiries, negative media stories, and abuses in an industry or by competitors can be reasons to conduct an internal investigation. Failure to do so may have severe negative repercussions for a company’s board, senior management, and investors.

The growth in use of an internal investigation to identify, understand the root causes of, and circumscribe potential misconduct has been fueled in part by statements made by the Department of Justice, the Securities and Exchange Commission, the UK Serious Fraud Office, and other law enforcement agencies, that credit may be given to organizations that proactively conduct an internal investigation. Moreover, an internal investigation may also reduce or control any negative reputational and media damage that may follow disclosure of a problem. In addition, failure to conduct an internal investigation when there is a credible indication of wrongdoing or other precipitating event could give rise to claims that the board breached its fiduciary duties.

An internal investigation may provide great benefits to a company, however, it may also have detrimental effects if not conducted properly. We have successfully conducted scores of internal investigations for public and private companies, nonprofit institutions, governmental entities, and other organizations. Our lawyers who conduct internal investigations include many former officials from the U.S. Department of Justice, the Securities and Exchange Commission, U.S. Congressional investigative committees, and other federal and state agencies, as well as the UK Criminal Bar. Our significant experience and overall reputation in conducting internal investigations can help make the investigations highly effective, cost efficient, and minimally disruptive.

Though every internal investigation will have unique facts, circumstances, dimensions, challenges, and outcomes, they must be accurate, timely, credible, thorough, and fair. Our lawyers know how to achieve these objectives. In addition, our experience in conducting internal investigations gives our team a unique perspective to answer some of the difficult questions that arise in this context, including when to conduct an internal investigation, who should conduct it, who should control it, how to maintain applicable privileges, how to interact with any parallel government investigation, and whether it needs to be publicly disclosed.

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