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Behind the Sea

Qian Qian's Diary

New Crisis Management Posté le Lundi 29 Octobre 2018 à 10h29

 


Consider third-party experts. Third-party experts can assist internal teams in developing crisis management plans, policies and training. Engaging third-party experts in advance also allows for a quicker response to a developing crisis. These experts could eventually form part of the external crisis management team.

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Apply appropriate diligence in dealmaking. When looking at material acquisition opportunities or other strategic partnerships, apply appropriate diligence to the counterparty's culture by seeking out information regarding their policies, governance practices, history of complaints and data breaches. Understand what data exists, its value, and who has control. Where possible, conduct interviews with senior and mid-level management. Consider including a "#metoo" representation in transaction agreements to the effect that no managers, directors or executives have been accused of harassment.

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Distribute risk. In contracts with third parties, such as vendors, include contractual indemnities that will allow the company to recover its crisis response costs, or limitations of liability to minimize the company's exposure. Arbitration clauses should also be included in order to limit class actions. Review the company's insurance policies to ensure that cyber coverage and hardware theft are included.

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Once a Crisis Occurs
Even with appropriate deterrent measures in place, no company can be entirely protected from a crisis. Responding quickly and effectively, however, can minimize the damage a crisis can cause. The following steps should be taken as soon as a crisis occurs.

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Seek legal advice. Counsel can provide assistance with a range of legal and business issues stemming from a crisis. To manage the risk of civil and regulatory liability for both the company and directors personally, legal advisers should be consulted regarding the company's disclosure obligations under applicable securities law or stock exchange rules. Legal advice may also be needed to determine whether notification is required under other applicable law, such as under pIpEDA. Counsel should also be called upon to advise on board governance, reporting to regulators and the appropriate investigative process. If the crisis could lead to litigation, the company is legally obligated to preserve relevant documents. Counsel should be consulted to understand these obligations and can assist with putting a document hold protocol in place.

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