In today’s climate of aggressive government investigation and prosecution of alleged business misconduct, it is vital for companies to have legal advisers with the experience and judgment necessary to conduct internal investigations on behalf of boards of directors, audit committees, special committees and other organizations anywhere in the United States, United Kingdom, Europe or Asia.
Mayer Brown’s highly experienced teams conduct thorough, insightful and discreet investigations and, where appropriate, identify internal policies, procedures or practices relevant to the events, detail steps that the company may take to prevent future occurrences, and recommend appropriate remedial actions. The members of our internal investigation teams, many of whom are former prosecutors and regulators, are versed not only in the techniques of conducting the investigation itself, but also in such critical matters as the voluntary disclosure guidelines of the US Department of Justice (DOJ) and the Securities and Exchange Commission (SEC), the strategic considerations arising from parallel government inquiries or private litigation, and communications with employees, auditors and regulators.
We understand that the foundation for an effective internal investigation is a thorough evaluation of how best to proceed when misconduct is alleged or suspected. Our lawyers are experienced in the initial organizational issues, including:
- The factors to consider in determining whether to undertake an investigation.
- The existence or anticipated commencement of a government investigation or stockholder lawsuit.
- The role of the board, independent committees and management in directing or overseeing the investigation.
- The involvement of independent outside counsel and their interaction, if any, with regular outside counsel.
- The considerations for internal communication to employees and staff.
As experienced litigators and former prosecutors, we understand how best to create an accurate and well-documented investigation record. We fully understand the document hold process, best practices for appropriate and efficient email and other document collection and review, nuanced work-product and attorney-client privilege issues, and witness interviews. We know how to work with corporate counsel, internal auditors and external auditing firms to assemble and review a comprehensive record.
Conducting the Investigation
When corporations, audit committees, special committees and other organizations call upon us to investigate potential misconduct, we respond immediately and conduct a thorough, professional and confidential study that is focused on problem identification and resolution. Our team is quickly able to:
- Learn the daily workings of the organization in order to place financial activity, organizational responsibility and decision-making in their proper context, and make determinations on privilege and privacy issues.
- Identify and interview strategically placed individuals at all organizational levels in order to learn what took place and who was responsible.
- Coordinate the use of private investigators where necessary.
- Determine the reason why the actions in question were taken, whether those actions were proper and recommend any necessary remedial steps.
- Report our findings, often with recommendations on practices and procedures necessary to keep the investigated actions from recurring.
- Offer guidance on next steps to take, pre- or post-litigation.
- Maintain needed confidentiality of what we learn, unless instructed to disclose it to the government or public.
Our teams know exactly where to direct their focus so that an investigation, often undertaken under crisis management conditions, is completed quickly and efficiently. We conduct internal investigations in a manner that minimizes the disruption and cost to our clients while producing credible, reliable results.
Investigations Arising Due To Governmental Inquiries
We act as counsel for clients under investigation by the DOJ, SEC and federal grand juries. Where these investigations are anticipated, we help companies prepare for the consequences of the investigation and to manage the document collection, review and production process. In cases where there is no warning of a search warrant or raid, we provide immediate assistance in the form of a team of seasoned criminal defense and compliance lawyers whose prior government and investigative experience make them the optimal choice for these assignments.
Mayer Brown helps clients respond effectively when state government law enforcement officials conduct civil, criminal and administrative investigations. Having held senior investigation and enforcement roles in several states, members of our team have a practical understanding of the political realities that shape investigations conducted by officials who initiate or are cognizant of intense public scrutiny. Our strong working relationships with attorneys general and their staffs can be instrumental in structuring an internal investigation so that the government’s concerns are resolved in a manner that is satisfactory to all parties. Our ability to clearly understand the legal and public policy objectives that attorneys general and their staffs are pursuing enable us not only to conduct effective internal investigations but also to resolve each issue in the most satisfactory manner.
We are familiar with the complexities of multinational investigations and have considerable experience in coordinating the work of domestic and international in-house counsel to conduct such efforts. Our firm’s international resources enable us to provide critical support in the increasingly common parallel proceedings that involve cooperating with regulatory agencies in different national jurisdictions. We have also been active in parallel multinational litigations, dealing with the complex cross-border issues that ensue. Lawyers in our group have advised clients in cross-border investigations that have responded to the concerns of civil and criminal authorities in the United States, Canada, the United Kingdom and several European countries.
- Represented a major international investment manager in an internal investigation, SEC investigation, DOL investigation and subsequent class action, with both the SEC investigation and class actions settling favorably for the client.
- Conducted an option backdating internal investigation to advise the board of directors of a leading technology company and to inform the SEC.
- Represented in an internal investigation the former Controller of a government-sponsored enterprise chartered by Congress to enhance the US housing and mortgage markets.
- Completed an internal investigation relating to employee embezzlement.
- Completed an internal investigation of a large cultural institution and reported findings to the audit committee.
- Represented the Canadian operations of a major wholesale distributor of business products in an internal investigation and related SEC inquiry, with the SEC ultimately deciding not to bring a civil suit.
- Represented a major European-based bank in an internal investigation related to Office of Foreign Asset Control issues.
- Conducted an internal investigation for a multinational Fortune 100 pharmaceutical company over allegations that improper testing results were used to support the approval of a drug and provided an oral report to the General Counsel and senior management.
- Conducted an internal investigation relating to allegations of impropriety made by a former board member of a gaming industry company and made a report made to the full board.
- Conducted an internal investigation for a major regional stock exchange regarding allegations made by a member about certain board actions.
- Conducted an internal investigation for a multinational law firm concerning alleged improper billing practices by a partner.
- Conducted an internal investigation for a leading investment and asset management institution regarding allegations of theft against one of its trust officers.
- Conducted an internal investigation for a major international bank relating to a series of transactions under review by the DOJ, SEC, Internal Revenue Service, Federal Reserve and state banking regulators.
- Conducted an internal investigation for the audit committee of a publicly traded logistics company arising from a subsidiary’s financial reporting errors, a matter that involved a concurrent SEC investigation and a shareholder class action.
- Conducted an internal investigation for an international software company arising from whistleblower allegations of fraudulent expense reporting.
- Represented the audit committee of a publicly held media and merchandising company in an internal investigation of allegations asserted against the company and its senior officers; after a thorough investigation and consultation with a forensic accounting firm we produced a report that the company’s outside auditor accepted in order to approve the company’s Form 10-Q for filing.
- Conducted an extensive internal investigation at a major European railway company with regard to data protection and employment issues.
- Conducted an internal investigation of alleged accounting, internal controls and inventory improprieties at a national manufacturer and distributor of windows, doors and other products for home construction and improvement. The investigation was conducted at the request of the company’s audit committee, was carried out with the assistance of a forensic accounting consultant, and included interviews conducted in, and documents and other materials retrieved from, the corporate headquarters and divisions and plants in multiple states.