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Dealing with the Surprise Government Interview
Periodically, the government conducts criminal investigations into alleged product defects. For example, as The Washington Post recently reported, the U.S. Food and Drug Administration ('FDA') recently opened a criminal investigation into the highly publicized case involving the contamination of pet food, in which various pet-food companies determined that they had used melamine-contaminated ingredients from China in their products. Investigations such as this one are not isolated events. As noted in a paper issued in 2001 by the National Legal Center for the Public Interest:
The product liability arena has long been subject to criminalization '. High-profile, product liability tragedies have incited legislatures to take aim directly at CEOs. The media routinely has pounced on product liability crises ' to bash big business. In turn, society has demanded that someone 'pay the price.' Legislators, representing constituents who are thirsty for retribution, have targeted not only corporations but also their CEOs. After all, someone needs to be held accountable. (See, Stanley A. Twardy, Jr., et al., The Criminalization of the CEO, National Legal Center for the Public Interest, March 2001; see, also, Press Release of national nonprofit consumer advocacy organization Public Citizen, 'Public Citizen Calls for Criminal Investigation of Breast Implant Manufacturer for Withholding Safety Data from FDA,' www.citizen.org, Oct. 12, 2006; see, too, Consumer Product Safety Act, 15 U.S.C. ”2068, 2070; and, see, Federal Food, Drug, and Cosmetic Act, 21 U.S.C. ”331, 333.)
When conducting criminal investigations about possible corporate wrongdoing, in alleged defective-products matters and other cases, government agents often seek to interview company executives and other employees ' of old-line bricks-and-mortar and e-commerce companies ' 'by ambush' outside the office, to minimize the likelihood that a supervisor or a company lawyer might intervene to thwart the interview. There is nothing improper in using this investigative technique; nevertheless, employees should know their legal rights and understand the risks they take when they submit to such surprise interrogations.
Employees should recognize, for instance, that they are not required under the law to participate in any surprise interview. They should also be aware that any statements that they do make are not 'off the record,' and can and will be used later by the government against the company, the employee or both, at a trial, or other legal proceeding. Generally, employees should carefully consider their options before submitting to interviews of this type without the advice of counsel and without ample time to prepare.
A company and its employees ignore the threat of an ambush or surprise interview ' particularly at a time when the company may have committed wrongdoing or is under investigation ' at their own peril. In numerous cases, law-enforcement or regulatory agencies have used ambush interviews to collect evidence to prosecute a company and its employees. For example, as noted in a 1999 article in the Food and Drug Law Journal:
The government followed this pattern [the use of ambush interviews] ' when it began the public stage of an investigation of suspected fraudulent commodity trading practices in Chicago. For months, the government secretly gathered information through an FBI agent who worked on the trading floor. When that phase of the investigation was complete, the government unleashed teams of prosecutors and agents who visited numerous traders at home during the evening in coordinated and simultaneous interviews. Few traders sought to consult with a lawyer, and many provided information that supported subsequent prosecutions. (See, Steven M. Kowal, When Unex-pected Government Agents Drop In: Responding to Requests for Immediate Interviews, 54 Food Drug L.J. 93, 96 (1999).)
Also, as reported in a May 6, 2007, article in The Indianapolis Star, in May 2004, the FBI effectively used a series of 20 early-morning surprise interviews at the homes of various corporate executives in an Indiana price-fixing case involving concrete companies (see, Kevin Corcoran, 'The Big Fix,' The Indianapolis Star, May 6, 2007). Some of the executives lied to the FBI during these surprise interviews, and one executive, after learning that the FBI wanted to talk to him, even stopped at his office and his home, and destroyed incriminating documents. The Indianapolis Star article described some of the ambush interviews in detail, including the following:
In Noblesville [Indiana], Chris Beaver, operations manager at Beaver Materials, invited investigators in and offered them refreshments. He was calm and talkative, but he repeatedly denied any involvement. His wife was getting their children ready for school. Beaver, who was being groomed by his father to lead the company, later said he had hoped authorities would leave without hauling him away in handcuffs as his children watched from atop the staircase.
Many of the executives interviewed by the FBI later pled guilty to price-fixing charges or, like Chris Beaver, were convicted after a jury trial, and the Justice Department levied fines totaling $35 million against the concrete companies.
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