The Scylla and the Charybdis of Internal Corporate Investigations

• Author: Kelso L. Anderson
• Pages: 30-31

Published in Litigation News Volume 45, Number 3, Spring 20 20. © 2020 by the Ameri can Bar Association. Re produced with per mission. All rights re served. This info rmation or any porti on thereof may not be c opied or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

30 | SECTION OF LITIGATIO N

BOOK REVIEW

In his ninetee nth century m agnum opus, The Common

Law, former U.S. Supreme Cou rt Justice Oliver Wendell

Holmes cogently obser ved that “the life of the law has

not been logic; it has b een experience.” The prescience

of Holmes’s words and the collaborative spi rit prodded

by experience an imate the most recent edition of Internal

Corporate Investigation, Fourth Edition (Brad D. Brian,

Barry F. McNeil , & Lisa J. Demsky e ds., 2018). The editors

are litigators with sub stantial experience in inter nal corpo-

rate investigations; a nd—if their experience in t he subject

matter was insuf cient to please the cognoscenti —their

résumés boast law de grees from Ha rvard and Yale, federal

appellate clerkships, a nd law review membership. Editorial

credibility asid e, the critica l relevance of interna l corporate

investigations to ever yday American li fe is signied through-

out this vo lume.

Tools and Personnel t o Consider

Much like a perfec tly detailed law school outline, each of

the 15 chapters in thi s edition has subheadings within eac h

chapter that allow the re ader to understand th e subject of

the chapter in granu lar detail. Each chapter is writ ten by

attorneys who provide in-t he-trenches observations and

guidance to tho se seeking par ticular information on spe-

cic issues i n internal corp orate investigations. I n the fore-

word, Mary Jo Wh ite, former U.S. attorney in the S outhern

District of New York and former SEC c hairman, recom-

mends the book to all law yers involved in internal corporate

investigations. I n Chairman White’s words, “[t]he use of

internal invest igation as a means for companies to deal wit h

potential mis conduct has become a n essential tenet of corpo-

rate best practice s in the past 20 years.”

With Chair man White’s words in mi nd, the reader is

then immerse d into the substanc e of internal corpo rate

investigations. Ch apters 1 through 5 g ive an overview of

the personnel, tool s, and information that are critic al for a

corporation, regu lator, or government to consider when a

corporate investigat ion is imminent or on going. Corporate

investigations may be eit her proactive or reactive, we are

told, and companies mus t identify key pers onnel respon-

sible for aspects of the busi ness who will serve as informa-

tion resources in t he event of an investigation by a regulator

or government agency. On the other h and, regulators a nd

government agencies have tools at t heir disposal that will

facilitate corporate i nvestigations, including, among oth ers,

non-prosecution agreements ( NPAs), deferred prosecution

agreements (DPAs), and whist leblower regulations . NPAs

and DPAs allow the government to shap e corporate behavior

The Scylla and Charybdis of Internal

Corporate Investigations

Intern al Corporate Investigat ions, Fourth Edit ion is available at http:// bit.ly/LN453-inte rnal-corporate.

by “preventing wrongdoing and cor recting improper behav-

ior without the collateral c onsequences of an ind ictment

or conviction.” Whist leblower statutes provide subst antial

nancial i ncentives to encourage employees or citizens wit h

personal knowledge to prov ide critical in formation that a

government or regulator cou ld use to compel a corporation

to settle an inves tigation or else face prosecution or other

negative publicit y.

Issue Touchpoints in Internal Investigations

The rst volume of Inter nal Corporate Investigations was

published in 1992, pr ior to the onset of DPAs, NPAs, and

various Depart ment of Justice (DOJ) memoranda—includ-

By Kelso L. Anderso n, Litigation Ne ws Associate Editor