As businesses brace for a pickup in government enforcement and an increased focus on pandemic-related conduct, Bass, Berry & Sims attorneys John Kelly and Allison Wiseman Acker authored an article for Corporate Compliance Insights discussing the growing enforcement landscape and best practices for navigating investigations in this new normal.
The pandemic has already ushered in new government authorities to investigate pandemic-related compliance issues, including organizations to provide oversight related to the application for and the management, allocation and use of relief funding under the CARES Act. The Justice Department also created the COVID-19 Hoarding and Price Gouging Task Force to target market manipulation, hoarding and price gouging related to healthcare items and other equipment designated by the Secretary of Health and Human Services. Additionally, existing agencies have shifted their focus to review CARES Act loans and spending, as well as fraudulent claims for economic relief.
Companies that want to conduct internal investigations or need to respond to government investigations face new challenges in the current environment of remote work and social distancing. For example, the limitations to traveling, conducting imaging on personally-held devices, or collecting hard copy documents creates new challenges – not to mention security concerns related to virtual interviews and reporting.
To help address these issues, John and Allison offer several best practices to help overcome these challenges, including:
- Conduct custodial interviews as soon as an investigation commences to determine where relevant documents are stored. If the company may be looking at personnel cuts, conduct a more thorough custodian interview as soon as possible to avoid losing access to individuals with key knowledge.
- At the outset of every video or telephone conference, remind participants of confidentiality and privilege. Be aware of and educate all attendees regarding the dangers associated with recording such conversations, including applicable wiretapping laws.
- When responding to a government-initiated investigation, proactively communicate with investigators regarding document collection, and review challenges and how those challenges might affect the ability to meet response deadlines. Engage in up-front discussions about how to narrow the scope of the inquiry in light of the logistical and timing difficulties posed by the pandemic.
The full article, “Government Investigations and Enforcement in the COVID-19 Era,” was published by Corporate Compliance Insights on July 23 and is available online.