Venable partner Lisa Jose Fales was interviewed in a September 18, 2015 Law360 article on how in-house counsel should handle a government regulatory probe. The article provides advice focusing on timely responses, the need for outside counsel, communication with government investigators, internal fact checking, and defense.
"It depends on what the stakes are, but even what seems like a relatively innocuous investigation can become a bigger problem if not handled appropriately," said Fales. "You want to hire counsel who have familiarity with whichever agency it is…I think that folks in-house sometimes try to save money and handle it for a while and try to get it to go away."
Discussing the importance of communication with federal investigators, Fales said they are generally forthcoming about what they are looking at and their concerns. "Keep in mind, it helps them too," she said. "Document requests might not get them what they're looking for, and if they do, it's like looking for a needle in a haystack."
On forming a company's response and defense to a regulatory probe, Fales said, "One of the things most detrimental to your defense is to get in front of the agency early and say, 'You're so wrong, you're missing the mark, and here's why,' and then it turns out the facts don't support even one of the key arguments you've made…You need to know your facts before you articulate your argument so you can substantiate it. You need to have the right facts to apply to the law to drive the defense."