Critics assail the nature of Michigan State University (MSU)’s engagement last year of prominent former prosecutor, Patrick Fitzgerald, in connection with the misconduct of MSU’s former employee, serial gymnastics molester Larry Nassar. These detractors protest that Fitzgerald’s sole purpose is really to shield the university from liability rather than to conduct an independent investigation with a report detailing how this travesty could have happened and how MSU will protect its student-athletes going forward. But MSU is in the midst of a crisis of public confidence as well as defending itself in more than a hundred lawsuits commenced by many of Nassar’s victims. No doubt the institution decided, on advice of counsel, that a truly “independent” investigation was not the way to go when it hired Fitzgerald.
When a business is faced with claims of sexual misconduct, sexual harassment, or, for that matter, most other civil claims not involving regulatory compliance and self-reporting situations, there are times when an independent investigation is the best path forward. But there also are times when it is absolutely not. (This article does not cover instances where an internal investigation by an independent counsel is required by law, such as those set forth within §§301, 302, and 307 of the Sarbanes-Oxley Act (15 U.S.C. §78j-1), or where such an investigation is necessary pursuant to voluntary disclosure programs used as enforcement mechanisms by the SEC and the DOJ in the calculus of cooperation credit determining damages or penalties.)
