A 21st Century Fox Lawyer's Perspective on Cooperation
Brian Michael, 21st Century Fox's deputy general counsel and group chief compliance officer, keeps this in mind when telling executives about cooperation: What will regulators think and say about the company's action months down the line?
April 03, 2017 at 06:46 PM
4 minute read
Brian Michael, 21st Century Fox's deputy general counsel and group chief compliance officer, keeps this in mind when telling executives about cooperation: What will regulators think and say about the company's action months down the line?
“How is this going to be viewed by the folks at CFPB or at DOJ? Not now, but in several months or even years down the road in terms of how cooperative you were. Even if you're not particularly in the hot seat at the moment, you have to be mindful of that,” Michael said Monday in remarks in New York.
Michael, who joined the company in 2012 from Wilmer Cutler Pickering Hale and Dorr, shared his personal take on cooperation with regulators during the Association of Corporate Counsel's midyear meeting. Fox, who said he was speaking for himself and not his company, was on a “regulator roundtable” panel that included current and former U.S. Justice Department lawyers.
A former assistant U.S. attorney in Los Angeles, Michael said good relationships between companies and their regulators are crucial, and in-house lawyers are the liaison between the company and regulators.
One of the newest challenges facing in-house lawyers stems from the so-called Yates memo, the U.S. Department of Justice guidance, issued in 2015, that put a new emphasis on individual accountability for corporate wrongdoing.
Since the memo was released in September 2015, Michael said in-house lawyers now must convince executives that the legal department is not merely an investigative arm of the Justice Department when an investigation is underway.
“I have heard from colleagues that the perception among executives is they will be either unfairly or more aggressively targeted than they have before,” he said. Those conversations are challenging, he said.
Regulators on the panel said that while the Yates Memo did gain attention and emphasize individual accountability, governmental investigations have not changed much as a result.
“I don't think we ever took on a corporate case without looking at individuals,” said Winston Paes, chief of the business and securities fraud section in the U.S. Attorney's Office in the Eastern District of New York. “You'd be hardpressed to find a prosecutor who doesn't want to prosecute individuals.” He continued: “I don't think the Yates Memo changed our focus and all of the sudden we were looking at something we weren't looking at before.”
When it comes to whistleblowers, Michael said companies should be mindful of self-disclosing an issue to regulators too soon. He said companies do not have the same resources for an internal investigation that government agencies have. A company's findings might only be “the tip of the iceberg,” he said.
“Know what you're presenting to the DOJ has real legs for an investigation,” Michael said. “The flip side is you don't want to get caught in the DOJ's eyes as being less than cooperative.”
The relationship with regulators extends to outside counsel. When Michael is choosing outside attorneys, he said he is looking for lawyers who can balance between being aggressive while also being able to have an “effective dialogue” with regulators.
21st Century Fox wants lawyers who can “fight if the fight is to be had,” Michael said. But he acknowledged that it isn't necessary to be on the defense from day one. “I don't think you need to rush in with that approach,” he said.
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