Jo Ann Shotwell Kaplan on Panel Addressing "A Litigator's Views on Environmental Compliance" at Annual Meeting of American Corporate Counsel Association

At the October 2009 annual meeting of the American Corporate Counsel Association, Jo Ann Shotwell Kaplan was included in a panel discussion entitled, “A Litigator’s View of EH&S Compliance – Learning From and Avoiding Problems.”  

Her portion of the presentation offered a discussion of the risks and costs associated with being a defendant in environmental litigation, and then she made five recommendations for avoiding those risks and costs:  

• Have an effective compliance program
• Treat your employees well so as to minimize unwarranted whistleblower claims
• Minimize risks/costs through contract terms
• Use experts effectively
• Deal effectively with regulators
• Be smart about pursuing third parties; and
• Go beyond compliance if feasible.

Jo Ann then offered more details on her recommendations, including:

• The key aspects of an effective EH&S compliance program
• The need to cultivate a "culture of compliance," encourage internal reporting of problems, and avoid hasty or heated employment decisions
• Pre-dispute arbitration agreements or agreements waiving jury trials, choosing favorable judicial forums, or modifying the rules of civil procedure for purposes of future litigation between the parties (an intriguing suggestion being debated in academic and judicial circles)
• The limited value of Phase I environmental site assessments
• When to involve experts who can testify for you in future litigation and how to choose them
• The role of lawyers in the preparation of environmental reports and issues re: retention of drafts
• Dealing effectively with regulators in connection with inspections, internal investigations, and informal enforcement actions so as to prevent escalation to litigation or maximize your position in subsequent litigation
• The recommendations of the American College of Trial Lawyers re: the conduct of internal investigations, including the respective roles of inside and outside counsel
• Things to consider before threatening or initiating suit
• The fact that image matters to judges and juries and that both can be impressed by good-faith, significant initiatives that go beyond compliance.