Crucial months before subpoenas arrive
Enforcement matters often take shape before any formal investigation begins. Board questions, audit committee inquiries, whistleblower complaints or informal contact from a regulator can mean a factual record is already forming.
Waiting is a decision. Waiting for a subpoena means giving up preparation time.
The first ninety days.
- Preserve documents.
- Identify the key people.
- Put privilege protections in place.
- Build a preliminary timeline of the facts.
Voluntary disclosure. There is no universal answer. Timely, well-grounded disclosure can help; premature or incomplete disclosure can do harm.
Parallel civil and criminal tracks. Securities regulators and prosecutors share information but have different tools and priorities. Communications should rest on one factual basis, while civil and criminal strategies stay separate.
Individual interests. Executives and directors should consider independent counsel early, because their interests may diverge from the company's.
Orderly preparation, not last-minute argument, tends to produce the better outcome.
