Category Archives: Corporate Law

In a prior posts, we wrote about why you may need an internal investigation, who should conduct the investigation, and the planning and conduct of the investigation. In this post, we will discuss documenting and following-up on the investigation. Documenting the investigation is crucial – the work isn’t done until the paperwork is completed.  You must evaluate the facts you discovered and determine the merits of the complaint. Segregate the facts into disputed and undisputed facts.  Can you reach a decision solely by looking at the undisputed facts?  If so, you do not need to move forward and consider the disputed facts. Review the witness statements and determine whether the statements were consistent. Where inconsistencies exist, consider whether a witness had any reason to be less than truthful. Do documents support one side or the other? In assessing the credibility of the statements, consider additional factors such as prior incidents that may reflect on credibility, the witnesses’ motives, demeanor and plausibility.  Generally, you will find that when conflicting evidence exists, one version of the events is more plausible than the other.  If does not mean that the less plausible version could not happen, only that it is less likely. After you have gathered and examined the facts and reached your conclusion, have someone else review the facts and conclusions.  A fresh set of eyes will point out missing evidence, conclusions not supported by the evidence, and may have alternative conclusions. Once you have determined what likely happened, you must apply the conclusions to determine if misconduct…

In a prior posts, we wrote about why you may need an internal investigation and who should conduct the investigation. Once you decide an investigation is necessary – what’s next?  In this post, we will discuss planning and conducting the investigation. Planning the investigation The “5Ps” apply here: Proper Planning Prevents Poor Performance.  A plan streamlines the investigation by giving it focus.  It results in a thorough investigation, completed swiftly, and thereby creating the least disruption for the institution. A good plan begins with understanding the allegation – who did what to whom?  If it is a written complaint, read the complaint, then read it again.  If you were to accept everything in the complaint as true, identify what witnesses you would need to interview to confirm the facts and what documents would support the allegation.  Then, look at the complaint from the other perspective, are there any other witnesses you would want to interview or documents you would want to review to disprove the allegation.  If electronic documents will be reviewed, contact IT or the person responsible to ensure all the documents are preserved.  Find out what back-up or archived materials might be available to rebuild evidence that might otherwise have been destroyed. Do you need others on your team?  Is the investigation so large or is speed so necessary to require multiple investigators?  Do you need to bring in a forensic accountant or computer examiner? With those thoughts in mind, develop a written plan for conducting the investigation.  Begin with the allegation and the…

In a prior post, we wrote about why you may need an internal investigation. Once you decide an investigation is necessary – what’s next?  In this post, we will discuss who how to select an investigator.  In follow-up posts we discuss planning and conducting the investigation, and documenting and following-up on the results of the investigation. Deciding who will conduct the investigation. Generally, internal investigations are conducted by someone inside the organization or by outside counsel.  Depending on the nature of the allegation, there may also be reason to hire private investigators or other professionals in order to conduct technical reviews such as audio or video surveillance, a computer forensic search or a forensic accounting examination.  But by and large, investigations are run in-house or through counsel. An in-house investigation should be led by someone with independence.  Of course it does little good if your “independent” investigation is led by someone who is not-so-independent.  Independence is not determined by the quality of the person nominated to run the investigation, but rather the perception of independence.  Below are just a few of the considerations. Does the nominee have a stake in the outcome?  Certainly you would not appoint someone who is in the department where the misconduct occurred.  But did the nominee work in the department in the past – a former head of the department, or someone currently in the chain of command, would be perceived as benefiting by not finding systemic misconduct that may be traced back to her leadership.  If the nominee wants to…

As leaders too-often learn, employee misconduct occurs despite the best possible recruitment, vetting, and training.  Misconduct occurs in the corporate world, non-profits, government agencies, and schools.  The source of the allegation and the nature of the act may vary. The report may come from another employee, a client, a vendor, or a regulatory official, and it may concern criminal activity, violation of policies, or other actions with the potential to tarnish the organization’s reputation. Regardless what was done or how you found out, a thorough investigation is required for a number of reasons. A well-run internal investigation benefits the company in a number of direct ways.  It stops the conduct, cutting off the damage.  If the victim of embezzlement or other financial impropriety, you must stop the flow of money; in the case of harassment, you must stop the harassment, and create the opportunity to build a better, and more productive, work environment.  In all cases, a thorough investigation demonstrates to the employees and customers that the institution takes its employees’ conduct seriously. Failure to act may expose the institution to liability in a number of ways.  If an investigation could have prevented further harmful conduct, the victims may pursue a claim against the company (including through a claim of negligent hiring, negligent supervision, or the doctrine of respondeat superior).  Further, a prompt and thorough investigation demonstrates the proactive nature of the company and makes a finding of culpability and acquiescence by the company less likely should a claim be made against the company. From a…