Communicating about Enforcement Actions – Strategic Questions and Answers
By Chris Patz
Managing Director
By Chris Patz, Managing Director
Nobody wants to deal with a government enforcement action – they are disruptive, expensive, and often highly complex. Throw into the mix the government's growing emphasis on self-reporting – a theoretical carrot – and you have a tough decision to make on top of a challenging situation: “Do I call the government before they call me?”
In either situation, the key questions are the same: “When to speak; what to say; and how to say it?” The best responses to these questions are informed not only by legal and business strategy, but also by communications strategy. And we believe that well-executed company responses to government enforcement actions can protect and enhance corporate reputation and are a critical complement to the overall legal strategy. Following are some considerations that will help you navigate government enforcement actions and come out better on the other side.
“Take your time in a hurry.”
Some attribute the phrase, “Take your time in a hurry,” to marshal Wyatt Earp. Regardless of whether Earp said this, it is good advice for communicating about enforcement actions that involve stakes as high as an Old West gunfight. Thus, as soon as you hear about a potential enforcement action, you should try to learn as much as possible as quickly as possible about the action itself and the underlying facts. As with any type of crisis, knowing as many facts as you can is critical, as the facts dictate strategy. With this information, you can assess the legal, reputational, and other risks that the enforcement action poses and plan your next steps.
This initial deep dive won’t yield all the information, and your assessment of the enforcement action may change as the matter evolves. However, a quick but informed assessment is an essential building block of a communications plan that can guide you through all the stages of the enforcement process.
When to speak: timing isn’t everything (but it’s important).
One of the challenges of communicating about government enforcement actions is that they can become public just about any time before the action is filed. Legal requirements – and other legal considerations, like the possible benefits from self-disclosure – often define the options for when to speak, but reputational considerations should inform your choice. For example, early disclosure may enhance your reputation for transparency, but, if you speak too soon or with too few facts and other information, you risk causing a panic and unnecessarily harming your reputation.
Experienced strategic communications firms help you assess your choices, including the reputational risks and benefits of different approaches and the timing of communications. These firms draw upon their experience with similar matters and help you optimize your message for the moment you choose to use it, or when that moment is chosen for you.
What to say: the truth shall set you free.
It is impossible to overstate the importance of truth in all communications, and stating the truth implies recognizing both what you know and what you don’t know. Thus, what you say should stick to the known facts and not venture into speculation, regardless of how reasonable that speculation may seem at the time. Getting ahead of the facts (or not knowing all the facts) is one of the most common mistakes we see in communicating through all types of crisis situations – including government investigations – and it risks destroying your credibility to the government and to the public.
How to say it: walk in someone else’s shoes.
Because your words – and even your tone – have legal and reputational significance, the law sets boundaries for how to convey your message, and strategic communications advisors use their experience to help you frame a message to your best advantage within those boundaries. In enforcement actions, some concepts around which to frame your message are:
Transparency – Your message should state the facts clearly and, if you don’t know something or can’t discuss it, say so.
Empathy – Think about what your key stakeholders will want to know and, to the extent possible, tell them.
Advocacy – Consistent with the facts as you know them, your statements should articulate your position in unambiguous, persuasive terms.
Consistency – You should speak with an eye to what you may have to say next, and each successive statement should be framed to build consistently upon your prior statements.
Values – To the extent possible, you statement should express your values in addition to communicating facts and your point of view. Your values are the basis of your reputation and, even in the trickiest situations, values should be the touchstone of your communications strategy.
Humility – Regardless of what you think about the enforcement action, you must take it seriously and adopt a tone that communicates this. If you made a mistake, own it. And even in cases where you plan to fight the government, it rarely helps to antagonize an opponent that enjoys theoretically unlimited resources and the power of the state.
Positive action – Others will expect you to respond even to an unwarranted enforcement action and, to the greatest extent possible, you should frame your response in terms of your own positive action toward a resolution.
When appropriate, pugnacity – Few people enjoy chest-thumping more than government enforcement attorneys, and you should expect that the government will frame its statements about any enforcement action in grandiose terms. Consistent with appropriate humility, you should not shy away from expressing your willingness to defend yourself or refuting over-the-top claims.