Internal Investigations

News & Analysis as of

Internal Investigations and Privilege: A Redux

An internal investigation into a workplace accident was privileged, and thus protected from disclosure, the Alberta Court of Queen’s Bench recently held in Alberta v Suncor Energy Inc, 2016 ABQB 264 [Suncor]. The Court found...more

Is the Sky Falling? DOJ and Cooperation

Is the sky falling or are we on our way to a new normal when it comes to earning cooperation credit from the Department of Justice? These questions were raised in remarks by Deputy Attorney General Sally Yates in remarks...more

What to Do When the Regulator Comes Calling

Before an Investigation/Inquiry - Prepare: Before any investigation arises, have a Crisis Management Plan in place. The plan should include a Response Plan and an Evidence Retention Plan as described below. At the...more

U.S. - India Newsletter Vol. 2016, Issue 2

Welcome to the second issue of our newsletter, which features news and articles of interest from Pepper’s U.S.-India Practice. In the first quarter of 2016, we saw a lot of activity in the international data privacy...more

Internal Investigative Reports That Lead to Discipline Are Not Exempt Adjudicatory Records under FOIA

An Illinois Appellate Court has further limited the public records that a public body can withhold from disclosure under Section 7(1)(n) of the Freedom of Information Act, which exempts “records relating to a public body’s...more

How Does a Company Satisfy the Work Product Motivation Element for Post-Accident Investigations? (Part II)

Last week's Privilege Point discussed a court's rejection of a work product claim for a routine post-accident incident report. That defendant did not establish that the report was different from reports following accidents...more

Incident Management – The New Frontier

Compliance programs are required to create and manage case investigation systems to handle potential misconduct, investigate allegations of wrongdoing and then dispense discipline. Lessons learned from these investigations...more

Are Your HR Investigation Notes Protected Against Disclosure? Maybe, Maybe Not.

Just last month, two federal district courts reached different conclusions, further contributing to the confusion as to whether notes taken during a Human Resources department investigation of a discrimination or harassment...more

Fifth Circuit Rejects EEOC's Position on Reasonable Belief Standard for Reactive Retaliation Claims

In 2009’s Crawford decision, the U.S. Supreme Court concluded that an employee who participates in an employer’s harassment or discrimination investigation as a third-party witness, falls within federal anti-retaliation...more

Dismissal Denied For Discussing Disability: EEOC Case Against Employer Survives

Anti-discrimination laws command that “thou shall not retaliate…” The recent ruling in EEOC v. Day & Zimmerman NPS, Inc., Case No. 15-CV-01416 (D. Conn Apr. 12, 2016), is a case study in how employers can be taken to task for...more

How Does a Company Satisfy the Work Product Motivation Element for Post-Accident Investigations? (Part I)

Companies frequently investigate accidents and other unfortunate incidents. If they do so in the ordinary course of their business, the work product doctrine normally does not apply. How do companies establish that a...more

New FCPA Self-Reporting Pilot Program Formalizes Rewards but Relies on Discretionary Implementation

On April 5, 2016, the Department of Justice unveiled a one-year pilot program designed to encourage companies to self-report violations of the Foreign Corrupt Practices Act (the FCPA). Built upon the Department’s September 9,...more

A Review of Recent Whistleblower Developments

SEC Awards Bounty to Whistleblower, But Offsets Award for a Judgment Against the Whistleblower - The extent to which the SEC would reward whistleblowers, who themselves engaged in wrongdoing, has been the subject of...more

New FEHA Regulations: Understanding California’s New Requirements for How Employers Handle Employee Complaints

New California regulations require that employers write discrimination, harassment and anti-retaliation policies which include extensive complaint management and investigation procedures. Snapshot - - What has...more

New DOJ Guidance and FCPA Pilot Program – Part II: Cooperation

Today, I continue my exploration of the implications from the Department of Justice (DOJ) announcement last week of a new program around Foreign Corrupt Practices Act (FPCA) enforcement (herein “Pilot Program”)....more

OSHA Ups the Ante for Employers That Fail to Report Workplace Injuries

On March 4, 2016, the Occupational Safety and Health Administration (OSHA) issued new procedures for enforcing revised injury and illness reporting requirements in 29 C.F.R. § 1904.39. Many of the 2014 interim procedures...more

Is Confession Good for the Corporate Soul?: DOJ announces new mitigation credit for self-disclosure of FCPA violations

On April 5, 2016, the Department of Justice’s (“DOJ”) Fraud Section Chief, Andrew Weissmann, issued a memo (the “Weissmann Memorandum”) announcing a one-year Pilot Program that offers a carrot and stick approach to...more

DOJ Fraud Section Offers Super Credit in FCPA Pilot Program

This week, the Fraud Section of the Department of Justice (DOJ) announced a pilot program that extends additional “mitigation credit” to qualifying companies that “fully cooperate” in matters involving the Foreign Corrupt...more

ICYMI: Financial Services Risk Summit

On March 3, 2016, the BakerHostetler Financial Services industry team held its inaugural Financial Services Risk Summit. The speakers and panels addressed several key areas affecting the financial services sector: regulatory...more

The New California Regulations, Part I: Preventing and Correcting Wrongful Behavior

California’s Office of Administrative Law approved regulations drafted by the California Fair Employment and Housing Council. These new regulations, covering the entire gamut of employment law topics within the Fair...more

Preserving the Attorney-Client Privilege when Conducting an Internal Investigation

You may recall that, back in July 2014, we advised that the D.C. Circuit Court of Appeals had overturned a D.C. District Court decision in a False Claims Act case that required the results of an internal investigation, which...more

OSHA Issues Revised Procedures to Handle Reporting Requirements - New “Safe Harbor” for Employer Investigation Reports

Effective January 1, 2015, OSHA must be notified anytime there is a workplace fatality, inpatient hospitalization, amputation or eye loss. Along with the new reporting rule, OSHA issued interim internal procedures to deal...more

When Must Executives Testify in Corporate Litigation? Wisconsin Judge Provides Insight

When can top executives in large corporations and other organizations avoid testifying in litigation involving the organization? Under a recent ruling by Federal Judge William Conley of Madison, the answer turns, in part, on...more

Ontario’s Sexual Harassment Protections Passed

Ontario’s Sexual Violence and Harassment Action Plan Act was passed and received Royal Assent on March 8, 2016. The Act will go into effect in six months on September 8, 2016. The Act creates new duties for employers to...more

Mitigating FCA Whistleblower Risk When Employees Leave

Over the past decade, efforts to enforce health care fraud regulations have been bolstered significantly with increased government funding and a dramatic increase in whistleblower claims filed under the False Claims Act’s qui...more

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