How can companies minimize the likelihood of being the subject of a criminal prosecution and respond most effectively if an investigation or prosecution appears likely?
Prepare to respond to investigations, subpoenas, and search warrants. A lack of preparation for responding to government investigations can prove dangerous.
For example, a company's inability to respond promptly to a subpoena may put government lawyers into a mindset that the company is engaging in obstruction.
Every act, request, or communication is then viewed through this prism. Prosecutors may then consider shifting the investigation to one focused on obstruction rather than the substantive violation of a regulatory provision.
Seek outside review of compliance programs. In the Justice Department's view, an external audit of a company's compliance programs evinces a "strong institutional policy to comply with all environmental requirements." EPA's guidance document on environmental management systems similarly states that periodic outside audits are a key part of an effective EMS.
Review records retention and whistleblower policies. As noted elsewhere in this article, Sarbanes-Oxley created new liabilities affecting record-retention policies. The law also contains a whistleblower-protection provision that creates a felony, with a statutory 10-year term of imprisonment, for anyone who retaliates against a whistleblower.
Together these provisions compel close attention to the employee-communication aspects of any environmental compliance program and to the overall document retention policies of any organization.
Integrate new and existing obligations. The need successfully to integrate existing regulatory requirements with growing security rules and expectations is well illustrated by the EPA's 2002 revisions to its EMS guidance document.
The guidance now speaks for the first time of an EMS that is designed to prevent "unplanned" pollutant releases, to check for any "unusual situation," and to consider the possibility of "deliberate malfeasance."