If your company trades on a public exchange, or takes in millions of dollars in multiple rounds of venture capital financing, chances are you already have a full time law department staffed by seasoned practitioners. But if your business is closely held, perhaps representing your life’s ambition and effort, you might not have devoted resources to interviewing and hiring lawyers to deal with the pitfalls of doing business in the 21st century.
From employee fraud to allegations of harassment to dealing with foreign (and too often domestic) officials prone to having their hands out, these are difficult times for navigating the legal landscape. And of course, every employee is a potential whistleblower, irrespective of the merits of a claim. With large sums of money promised to the successful whistleblower, anyone prone to buying a lottery ticket is equally likely to file a complaint about one of your business practices.
If you need counsel on short notice to deal with an unexpected problem, Furlong and Krasny is available and prepared to help. We are geared for rapid response and nimble enough to take on specific projects as they may arise without breaking your budget. From our office in West Trenton, New Jersey, we serve the needs of businesses throughout the region and across the country. What follows are the most common problems small businesses face, often without warning:
Grand Jury Practice
Perhaps the greatest fear for any corporate executive remains the surprise service of a grand jury subpoena. It can come from a federal, state, or county prosecutor demanding documents, testimony, or both. The scope of the demand might reveal the nature of the investigation, or not, but either way, you’ll want access to experienced counsel to lead you through the legal thicket.
An immediate word to the wise: law enforcement agents often use the ministerial act of serving a subpoena to engage company personnel in conversation. The topics may seem banal, but they are not. The most casual inquiry comes with a purpose.
If you are reading this with an agent standing in your outer office, feel free to accept service of the subpoena, then excuse the agent from your office and grounds. Be polite, but direct. If you have already had such a conversation and an agent has asked to stop by for a few follow-up questions, politely decline. Whatever your situation is, it rarely gets better by cooperating in the absence of counsel. Call us for an appointment, or call another attorney, but call someone immediately.
Self-Critical Analysis Projects
Good business judgment requires a combination of skills not found in everyone. Knowledge of customers and suppliers, receivables and payables, employees and vendors, law and accounting all represent disciplines within the purview of sound business practice. The commercial landscape is far more complex than it was even 30 years ago, so you should not be surprised you have not mastered them all. You will make mistakes, as will other employees. Sometimes a pattern of mistakes emerges, often at the worst possible time.
Dealing with an immediate problem requires an immediate response, such as responding to a grand jury subpoena. But reflecting on how a mistake, a pattern, or a practice occurred or persisted might require fact gathering, targeted research, and sober reflection on how to avoid problems in the future. These “self-critical analysis” investigations remain an important tool in the corporate governance kit, both to deal with present problems and to head off future ones. Demonstrating to an outside agency that you can police your own company and its employees often goes miles towards proving your good faith.
Examples of investigative projects our firm has undertaken include:
• Review of the housing practices of a boarding school accused of discrimination;
• Review of sexual misconduct reporting protocols of an educational institution housing teenagers and young adults;
• Review of reporting protocols of a rehabilitation facility where a patient died on site;
• Review of municipal planning and zoning investigative powers with respect to applicants in conjunction with a fraudulent application;
• Review and investigation of corporate document retention policy and associated practices during commercial litigation
• Review of warehouse procedures for movement of inventory from wholesale to retail outlets in response to an allegation of insider theft
In each of these settings, business owners and managers found themselves confronting allegations of improper conduct, whether during private litigation or at the hands of a government agency. Getting a quick understanding of what happened, how it happened, and how to avoid the problem in the future is a skill we bring to the table with speed and efficiency.
If you have questions, it generally means you need answers, complete with recommendations to redress the problem. We ask the former and provide the latter, promptly and accurately, without disrupting your business or alarming your customers.
Foreign Corrupt Practices Act (FCPA)
There is no minefield in the commercial landscape more rife with opportunities to self-destruct than doing business outside the United States. Federal law strictly regulates the practice and zealously polices business conduct. Taking a prospective client to dinner and a sporting event can be treacherous territory if the sales pitch veers off a course charted by the Department of Justice. Offering jobs to the children of government officials, paying what are considered routine stipends for moving an application along the queue, and taking on local projects to bolster your image as a potential good corporate citizen can find their way into the definition of bribing a public official in violation of the FCPA.
In the 21st century, ours is an interconnected world, and chances are you will be doing business with foreign officials if you seek to expand your markets even regionally. You cannot control the actions of every employee, but you can put in place a field-tested program for compliance with strict federal guidelines, one that is reasonable for employees to understand and inexpensive to monitor.
If your business includes dealing with foreign officials as nearby as Canada, or if you are soliciting customers from China to the Caribbean, you should seriously consider developing or reviewing your foreign practice compliance program to ensure it meets U.S. Department of Justice guidelines. We partner with a former in house lawyer for a Fortune 500 company and a premier labor law firm to provide these review and audit services at competitive rates. Contact us for more information.
Representing Employees In Conflict
Perhaps no issue is more perplexing than how to deal with an employee charged with a crime or misconduct, particularly if that misconduct is job related. On the one hand, owners want to support loyal employees. On the other, the conduct itself might well be a form of betrayal of the very values you expect from your employees.
Prosecutors and other government agencies will typically insist the charged employee have his or her own lawyer, someone independent from the board’s counsel. Of course, there is always a rationale to this approach, and that rationale involves soliciting the employee’s cooperation in implicating others within the business hierarchy. Whether the issue is a trade practice or personal conduct, prosecutors invariably believe there is a bigger fish in the sea.
We provide competent, independent, and reasonably priced legal services to employees at the request of, or reference from, business owners. We keep management reasonably informed where appropriate, offer periodic estimates of likely fees, and give employees our assurance of completely independent advice and counsel. We pride ourselves in undertaking these projects quietly, in an effort to minimize negative publicity, to contain the case, and to resolve it without fanfare. We cite no examples of our successes in this arena for precisely this reason: Confidentiality is king. Call us or email here . Our servers are not on the cloud, and our phone system is strictly controlled.