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DUANE MORRIS LLP<br />
Elements <strong>of</strong> Triage<br />
best practices<br />
The recent E. coli outbreak linked to spinach, which<br />
situation<br />
began as an agricultural processing accident,<br />
demonstrates that what appears to be an isolated<br />
product liability incident can quickly morph into a <strong>full</strong>-blown criminal<br />
investigation. Establishing and addressing legal liabilities at <strong>the</strong> outset—a form<br />
<strong>of</strong> legal triage—can greatly reduce <strong>the</strong> impact <strong>of</strong> a crisis on any organization.<br />
in-house counsel<br />
challenge<br />
minimizes potential legal risks.<br />
As <strong>the</strong> <strong>com</strong>pany’s legal steward, inside counsel<br />
must play a leadership role in developing and<br />
executing a crisis response strategy that averts or<br />
approach<br />
Ga<strong>the</strong>r your crisis team immediately. Prosecutors<br />
adopted always look at how quickly a <strong>com</strong>pany reacts, so<br />
don’t let anything fester, even for an hour. Identify<br />
<strong>the</strong> legal risks and risk sources and list <strong>the</strong>m in order <strong>of</strong> importance.<br />
Begin by identifying <strong>the</strong> core problem and <strong>the</strong> potential for continued<br />
injury, death and/or financial loss, and <strong>the</strong>n take remedial action. If you’re<br />
a food, toy or drug supplier, will you need to issue recalls? Should you<br />
temporarily stop buying from your suppliers?<br />
A factory explosion that injures workers may have been caused by leaks<br />
in aging piping. What must be done to prevent fur<strong>the</strong>r harm at <strong>this</strong><br />
facility or o<strong>the</strong>rs like it? Can <strong>the</strong> problem be isolated, or will <strong>the</strong> entire<br />
plant have to be shut down? Retaining outside consultants—for<br />
example, a firm specializing in evaluating and replacing piping—will<br />
obviously affect your response and enhance your image with regulators.<br />
At <strong>the</strong> same time, institute internal measures to prevent a cover-up. Take<br />
steps as soon as possible to prevent employees from destroying and/or<br />
falsifying operating logs or o<strong>the</strong>r records.<br />
Once <strong>the</strong> problem is identified and remedial measures are in place, develop a<br />
verifiable message that addresses internal and external audience concerns.<br />
Appoint one spokesperson to ensure consistency. If an investigation is<br />
under way and you have no information to release right now, say so.<br />
Reach out to state and federal enforcement and regulatory agencies. If<br />
you enlist regulators as your colleagues, <strong>the</strong>y will be less likely to bring<br />
charges against you.<br />
Have Sales contact key customers. Explain <strong>the</strong> situation and how you’re<br />
reacting. Send updates by fax, email or both to keep customers in <strong>the</strong> loop.<br />
If appropriate, consider reaching out to your <strong>com</strong>petitors. They’ve<br />
probably been through similar crises and may be willing to sell overnight<br />
production time—or even <strong>the</strong> product itself—to help you continue to sell<br />
under your own name.<br />
implementation steps<br />
• Assemble <strong>the</strong> crisis team as soon as possible.<br />
• Identify <strong>the</strong> root cause <strong>of</strong> <strong>the</strong> problem.<br />
• Establish and implement corrective measures.<br />
• Secure all internal records.<br />
• Craft a public message/response.<br />
• Reach out to regulators and customers.<br />
• Conduct post-crisis analysis.<br />
Finally, your primary outside counsel should be part <strong>of</strong> <strong>the</strong> crisis team. They<br />
know your business well and <strong>of</strong>ten bring experience from o<strong>the</strong>r crises.<br />
measuring<br />
success<br />
Effective crisis management will prevent,<br />
defuse or win private lawsuits and<br />
indictments. Fur<strong>the</strong>r, it will protect businesscritical<br />
licenses and registrations; reimbursements and grants from<br />
local, state and federal agencies; and long-term relationships with<br />
customers, insurers, lenders and o<strong>the</strong>r business partners.<br />
future issues<br />
to consider<br />
If you haven’t already done so, identify and schedule<br />
your first meeting with an internal, go-to crisis<br />
management team.<br />
Howard M. H<strong>of</strong>fmann, former chief <strong>of</strong> <strong>the</strong><br />
criminal division and deputy U.S. attorney for<br />
<strong>the</strong> U.S. Attorney’s <strong>of</strong>fice in Chicago, is a senior<br />
trial and appellate partner with Duane Morris<br />
LLP. Howard is Peer Review Rated. He can be<br />
reached at hmh<strong>of</strong>fmann@duanemorris.<strong>com</strong>.<br />
Richard L. Seabolt is a Duane Morris<br />
partner/litigator, focusing on <strong>com</strong>plex trials<br />
and appeals arising from <strong>com</strong>mercial<br />
disputes, including those involving technology,<br />
construction and insurance. Richard is<br />
Peer Review Rated and can be reached at<br />
rlseabolt@duanemorris.<strong>com</strong>.<br />
JULY 2007<br />
11