Conducting Effective Internal Investigations When the Whistleblower is an Employee: Best and Newest Practices

January 24, 2024 12:15pm

Alice M. Eldridge
Senior Vice-President & General Counsel
BAE Systems, Inc.

Paul Kaufman
Vice President & Deputy General Counsel
Northwell Health

Jason M. Crawford
Partner
Crowell & Moring LLP
Former Trial Attorney, Civil Division, Fraud Section, USDOJ

In this session, leading FCA practitioners will teach you the best strategies for handling an internal whistleblower complaint, including strategies for working effectively with outside counsel. Topics of discussion will include:

  • Reviewing the first and essential steps that should be taken when a whistleblower report of an FCA violation is reported internally
    • Appreciating the benefits and risks of monitoring communication within the company
  • Strategizing when the right time is to engage outside counsel to assist with an internal investigation
    • Strategizing who should conduct the interviews, how to record them, and what to document
    • Reviewing privilege and when it does and does not apply to communications between in-house and external counsel
    • Knowing when to implement a legal records hold
  • Finding the balance between protecting the company without crossing into conduct that could lead to a retaliation claim from the whistleblower
    • If a retaliation claim and/or class action claim is likely, should the same external counsel be used? Why or why not?
  • Reviewing the Department of Justice‚Äôs corporate and criminal voluntary self-disclosure programs and analyzing the advantages and disadvantages of this strategy
    • If voluntary self-disclosure is not an option, how can outside counsel and in-house work together to preserve evidence and prepare the file for litigation?
    • Considering the benefits and pitfalls of entering into a joint defense agreement, especially Upjohn warnings