Careful Communication

1. Careful Communication

2. Welcome • This training course was developed by WeComply, a leading provider of ethics and compliance training since 1999. The course is also available online from any Internet-connected computer. • WeComply offers 60+ courses on a wide range of business ethics and compliance topics. Each course helps employees spot key compliance issues and respond appropriately. • This course is designed and licensed for classroom use in parallel with WeComply's online course on the same topic. This course may not be hosted on a learning management system or distributed to employees individually by electronic or other means without WeComply's prior authorization. • For more information about this course or others, whether for classroom use or online access, please e-mail info@wecomply.com or call 1-866-WeComply.

3. Introduction • Thank you for participating in our Careful Communication training course. This course will help you take a closer look at your written and spoken communications on behalf of our organization to be sure that you're communicating as effectively— and compliantly — as possible. • Keep in mind that this material is provided for informational purposes only and is not intended as legal advice. If you have questions about how any of this material applies to your job responsibilities, please direct them to your supervisor. 1 of 19

4. Overview • Communication today is faster but not always better • Unintentional slip-ups can cause legal problems for employees and our organization • We need to think defensively about the legal consequences of what we say and write • "Good intentions" cannot keep careless communications from becoming a legal "smoking gun" • Almost everything we say or do can be used as evidence against us • Documents create a paper trail that can paint a not-so-pretty picture 2 of 19

5. Know Your Audience • Avoid behavior that can form the basis of a lawsuit • Employees will generate about four trillion e-mail messages this year • Careless e-mail practices expose employees and their companies to millions or even billions of dollars in potential liability • Nature of e-mail makes it difficult to control flow of information and size of your audience • Method of communication is sometimes as dangerous as its content 3 of 19

6. Know Your Audience(Cont’d) • Avoid behavior that can form the basis of a lawsuit • Employees will generate about four trillion e-mail messages this year • Careless e-mail practices expose employees and their companies to millions or even billions of dollars in potential liability • Nature of e-mail makes it difficult to control flow of information and size of your audience • Method of communication is sometimes as dangerous as its content 4 of 19

7. Pop Quiz! • Louise, an XYZ Inc. manager, is talking with a co-worker on her cell phone while on the train to work. They are discussing a planned merger that has not yet been announced publicly, but Louise was careful not to say the other company's name. Was this okay? • Yes, as long as Louise doesn't name names and there are only a few people close enough to hear. • Maybe, as long as XYZ and/or the company it may merge with are not public companies. • No. 5 of 19

8. Understand the Law • You need to understand the laws that govern our business • Stay informed about your and our legal rights and responsibilities • Even "notes to the file" are subject to discovery by third parties • Aggressive marketing or sales documentation can run afoul of antitrust laws 6 of 19

9. Understand the Law(Cont’d) • You need to understand the laws that govern our business • Stay informed about your and our legal rights and responsibilities • Even "notes to the file" are subject to discovery by third parties • Aggressive marketing or sales documentation can run afoul of antitrust laws 7 of 19

10. Recognize Your Limits • You need to be aware of your own limits • Be careful when communicating about matters that are beyond your area of expertise or first-hand knowledge • Example: Customer complaints • Source of problem may have nothing to do with product or service • Unverified complaints can be used to show "pattern" • Pattern can lead to inference that product/service was defective • Don't assume a complaint is true simply because someone made it 8 of 19

11. Watch What You Say • Words can have unintended legal consequences • Letter or e-mail could be used as evidence of a warranty • This can open door to wide range of damages in a claim or lawsuit • Keep a recommendation just that — a recommendation • Make suggestions, but let the customer make decisions • Don't promise more than you and we can deliver 9 of 19

12. Special Note… • Speculation vs. Documentation • Any type of investigation — whether it is a customer complaint, an accident, or a compliance or quality issue — invites its authors to speculate and draw conclusions. Brainstorming and speculating can play a useful role in investigations. • When documenting the process, however, take care to distinguish what you really know from what you are not sure about or really don't know. Faulty opinions or erroneous information can be hard to explain away in a courtroom. The best practice is to stick closely to the facts you know and let the data speak for itself. 10 of 19

13. Manage Closure • Obtain closure of some sort — whether or not problem can be resolved successfully • When you resolve a complaint, document the solution • Where there is no quick fix, create an action plan to show that we are not ignoring a risk • If events unfold too quickly to fix problems, look to crisis-management plan that balances legal risk with concern for public 11 of 19

14. Manage Closure(Cont’d) • Obtain closure of some sort — whether or not problem can be resolved successfully • When you resolve a complaint, document the solution • Where there is no quick fix, create an action plan to show that we are not ignoring a risk • If events unfold too quickly to fix problems, look to crisis-management plan that balances legal risk with concern for public 12 of 19

15. Follow Record-Retention Rules • All sorts of information finds its way into files • Record-retention policy is powerful tool in the war against smoking guns • All documents should be stored for their full retention periods • All records relating to litigation must be preserved as special exception to record-retention policy • Premature or selective purging of records can have dire consequences 13 of 19

16. Pop Quiz! • Mike learns that XYZ Inc. is involved in a major lawsuit that affects a branch office in a different state. What does he need to do with regard to XYZ's record-retention policy? • Nothing, because the lawsuit involves another office. • Continue to follow the existing record-retention guidelines. • Check with his supervisor. 14 of 19

17. Use Attorney-Client Privilege with Care • Confidential communications between attorneys and their clients conducted for the purpose of obtaining legal advice are privileged communications • Communications between two executives with a copy to counsel are not privileged • Consult with company counsel when faced with high-risk liability situations, e.g. — • Personal injury/fatality • Serious property damage • Threatened lawsuit • Actual/potential violation of law 15 of 19

18. Use Attorney-Client Privilege with Care(Cont’d) • Confidential communications between attorneys and their clients conducted for the purpose of obtaining legal advice are privileged communications • Communications between two executives with a copy to counsel are not privileged • Consult with company counsel when faced with high-risk liability situations, e.g. — • Personal injury/fatality • Serious property damage • Threatened lawsuit • Actual/potential violation of law 16 of 19

19. Special Note… • Investigations • When a problem arises, your natural inclination may be to investigate. Yet, when someone other than a lawyer starts asking questions and engages in other forms of communications, that person creates evidence. Some of it may be smoking, some not. • One thing, however, is certain: In the event of a lawsuit, all of this evidence is discoverable. If the same investigation were conducted by or under the direction of a lawyer, these same communications would be privileged and protected from discovery under most circumstances. 17 of 19

20. Work on Your Writing • "I'm never going to put anything in writing again!" • Writing improves with practice • To write more clearly and concisely: • Have someone review your work and provide constructive feedback • Sign up for a writing course • Have company counsel review important documents before finalizing them • Clear writing + consistent follow-up with closure = winning process 18 of 19

21. Final Quiz 19 of 19

22. About WeComply • WeComply is a leading provider of customized ethics and compliance training solutions. We are committed to providing the best-of-breed training content, technology and customer service. • Specializing in ethics and compliance training since 1999 • 60+ ethics and compliance training courses in 42 languages • Content partners include the Association of Corporate Counsel (ACC), Proskauer Rose and White & Case • 500+ clients of all sizes and in all industries 1-866-WeComply

23. Course-Delivery Options • WeComply offers training courses in multiple delivery formats to reach all employees -- not just those with computers: 1-866-WeComply • Online – available 24/7 from any computer • Mobile – tablets and smartphones • Offline optionswhen Internet access is unavailable: • PowerPointwith presenter notes for classroom training • PDF booklets with tear-off certifications • CD-ROM/intranetwith tracking via e-mail • Phone-based training and certification

24. Online Training Benefits • While classroom training has certain advantages, it can be challenging to implement in large and/or geographically dispersed companies. Consider these advantages of online training: • Better Attendance • Higher Completion Rates • Less Impact on Productivity • Perfect for New Hires • Convenient for Remote Locations • Available in 42 Foreign Languages • Easy Access to Courses • Periodic Refreshers Blended Benefits Get the best of both worlds by providing classroom training where feasible and online training elsewhere – all centrally tracked and organized for easy monitoring and reporting.