August 11, 2011
Practice Group(s):
Companies Need to Prepare for Aggressive
Governmental Investigative Tactics
Government
Enforcement
Food, Drugs, Medical
Devices, and
Cosmetics
During an investigation, government agents and prosecutors attempt to exploit the perceived
vulnerabilities of corporate executives. As part of this approach, the government often seeks to
conduct “ambush interviews” of individuals who are the targets of the investigation or who may have
relevant information. These encounters are planned to reduce the possibility that the executive will be
able to consult legal counsel or contact business colleagues for advice and guidance. Often, the
government attempts to interview the executive at home during the evening or on the weekend. The
information conveyed can adversely affect both the executive and the company. This is a very
successful tactic for the government, and is employed in nearly every type of investigation ranging
from antitrust matters through fraud, FCPA and SEC inquiries. Companies should prepare their
employees to respond to these aggressive tactics.
Recently, the government exhibited an even more aggressive approach in an FDA-related
investigation. The government sought to conduct ambush interviews despite being informed that the
company was represented by legal counsel and that any witness interviews should be arranged through
those lawyers. Moreover, during these interviews, the government sought both witness statements and
the disclosure of company documents. Unfortunately, a court refused to enjoin the government’s
investigative tactics.
This matter was addressed in In re Amgen, Inc., 010-MCE-0249 (SLT) (E.D.N.Y. 2011). The
government had been pursuing a grand jury investigation as well as inquiries related to several
whistleblower actions filed under the False Claims Act. Amgen sought a protective order from the
court to prevent the government from attempting to interview current employees without coordinating
through the company’s legal counsel. According to Amgen, the government was informed that the
company was represented by legal counsel, and this representation extended, at least initially, to those
individuals whose statements could affect the company. For some time the government coordinated
interview requests through the company’s lawyers. Without warning, however, the government
abandoned this approach and began to contact current employees at their homes. During these
interviews, the government not only sought statements from the individuals but also the disclosure of
corporate documents.
The court refused to issue an order to prevent the government from pursuing these interviews. The
court noted that the company could consider seeking disciplinary action against the government
lawyers. Such a remedy, however, would not insulate the company against the use of the information
disclosed, nor would it necessarily restrain the conduct of the investigating agents.
The government’s approach in the Amgen investigation appears to be an aggressive extension of the
ambush-type tactics. Executives and employees often are confronted by prosecutors and agents who
Companies Need to Prepare for Aggressive Governmental
Investigative Tactics
arrive without prior arrangement, earnestly solicit cooperation, and request answers to “a few
questions.” In some instances, the individual will be contacted in the office during normal business
hours. More often, however, the government representatives will arrive at the executive’s home.
Contacts also have been initiated in company parking lots, at health clubs and in supermarkets –
almost anywhere is possible.
Ambush interviews provide the government with enormous psychological advantages. The witness
will be caught by surprise but usually feels some pressure to cooperate and be responsive. There will
not be an opportunity for preparation or reflection, which is critical especially where the questions
focus on activity that is detailed, has faded in the witness’s memory, or was not deemed very
significant when it occurred. Perhaps most significantly, the individual almost certainly will be
required to deal with the government agents without the benefit of legal counsel.
These governmental advantages are multiplied if the interview occurs in the witness’s home with the
family present. Questions about the witness’s professional life, particularly if criminal violations are
asserted or implied, likely will cause embarrassment and humiliation. Unfortunately, this pressure can
result in answers that are ill-considered and often inaccurate or incomplete, but which later can be
construed by the government as incriminating or misleading.
This is a situation fraught with potential danger. Few caught in this situation, however, understand
their legal rights and obligations or the scope of the government’s power and authority. Ignorance
breeds uncertainty which the government can exploit to obtain answers that ordinarily might not be
forthcoming. Many who are interviewed mistakenly conclude that the information cannot be used in a
legal proceeding because of the informal nature of the meeting. The statements are not “off the
record.” In fact, the individual’s statements will be regarded as an “admission” and will be used as
evidence against the individual in any subsequent proceeding. Moreover, in many instances, the
individual’s statements also will be considered as an “admission” by the company and used to
establish corporate liability. Clearly, this type of investigation threatens both the executive and the
company.
Perhaps the best defense response to the risk of a surprise interview is preparation and an appropriate
educational and training program for executives and employees. Some companies have addressed this
situation directly in executive training and compliance programs. Also, these types of government
inquiries can be described in employee manuals and recommended internal policies and operating
procedures. Executives and employees must understand that such government contacts are possible –
many will assume mistakenly that they are insulated from such direct communication – and that they
can occur almost anywhere and at anytime. A description of the government’s investigative tactics
and techniques also should be included. It is imperative that executives understand that the
information conveyed during an interview cannot be retracted or easily amended, and can be used
later against them and their employer.
Individuals must understand that an interview is “voluntary” – although the government certainly will
not state or imply that an executive can exercise discretion. An executive contacted in this fashion
cannot be compelled to answer the government’s questions. The ability to choose includes the power
to refuse.
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Companies Need to Prepare for Aggressive Governmental
Investigative Tactics
There are many advantages to postponing the interview. Most important, however, is that trained
legal judgment can be obtained and exercised to determine whether any information should be
provided, and if so, in what manner. In many instances, it will become apparent that there is no
benefit to the executive and therefore no reason to consent to the interview.
Also, executives must understand they cannot be compelled to disclose corporate records immediately
unless the government agents have been authorized to execute a valid search warrant or serve a
“forthwith” subpoena. If requested to produce such information, executives should be trained to
consult experienced legal counsel before making any disclosures.
If executives are prepared for this type of encounter, they are less likely to acquiesce to the
government’s demands because of uncertainty and the pressure exerted by the government agents.
The decisions that executives must make under these difficult and trying circumstances can have
profound effects on their own liberty and the company’s viability.
If you would like additional information concerning the government’s investigative tactics or effective
preparation, please do not hesitate to contact us.
Author:
Steven M. Kowal
steven.kowal@klgates.com
+1.312.807.4430
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