Friday, May 22, 2015
Last week, the Texas Supreme Court joined the majority of jurisdictions in holding that a company enjoys an absolute privilege when providing the Department of Justice (DOJ) with an internal investigation report containing statements later alleged by an employee to be defamatory.
The decision in Shell Oil Co. v. Writt, __S.W.3d__ (Tex. 2015) should provide Texas companies comfort that cooperating with regulatory and law enforcement agencies will not expose them to liability for defamation.
The Writt case arose from an FCPA investigation of Panalpina, a contractor Shell employed to provide freighting and customs-clearing services for a deep-water drilling project off the coast of Nigeria. At DOJ’s request, Shell conducted an internal investigation and provided the DOJ with its confidential findings.
The report that Shell submitted to DOJ contained allegations of misconduct by employee Robert Writt, whom the DOJ had identified as a person of interest during the investigation. Shell terminated Writt, who then sued for wrongful termination and defamation.
Shell responded that the report’s findings were entitled to an absolute privilege against allegations of defamation. Under Texas law, a witness enjoys absolute privilege against defamation over statements “preliminary to a proposed judicial proceeding.” James v. Brown, 637 S.W.2d 914, 917 (Tex. 1982) (quoting Restatement (Second) of Torts § 588 (1981)). Such statements must bear “some relation to a proceeding that is actually contemplated in good faith and under serious consideration by the witness or a possible party to the proceeding.” Restatement (Second) of Torts § 588 cmt. e.
The Texas Supreme Court agreed with Shell, finding that the record sufficiently established that Shell reasonably believed it could face criminal proceedings when it furnished the report, and that the information in the report related to the investigation. Citing the dramatic rise in recent FCPA enforcement activity and the stiff penalties suffered by companies that fail to cooperate with the government, the court found that Shell effectively was compelled to comply with the DOJ’s requests that it conduct an investigation and turn over its findings. Thus, the findings in the report were absolutely privileged as statements preliminary to a proposed judicial proceeding.
Companies should remain aware, however, that unsolicited communications to law enforcement authorities still enjoy only qualified privilege. Clark v. Jenkins, 248 S.W.3d 418, 434 (Tex. App. 2008).
© 2015 Proskauer Rose LLP.
This website and sisters royaldutchshellplc.com, shellnazihistory.com, royaldutchshell.website, johndonovan.website, and shellnews.net, are owned by John Donovan. There is also a Wikipedia segment.
Royal Dutch Shell conspired directly with Hitler, financed the Nazi Party, was anti-Semitic and sold out its own Dutch Jewish employees to the Nazis. Shell had a close relationship with the Nazis during and after the reign of Sir Henri Deterding, an ardent Nazi, and the founder and decades long leader of the Royal Dutch Shell Group. His burial ceremony, which had all the trappings of a state funeral, was held at his private estate in Mecklenburg, Germany. The spectacle (photographs below) included a funeral procession led by a horse drawn funeral hearse with senior Nazis officials and senior Royal Dutch Shell directors in attendance, Nazi salutes at the graveside, swastika banners on display and wreaths and personal tributes from Adolf Hitler and Reichsmarschall, Hermann Goring. Deterding was an honored associate and supporter of Hitler and a personal friend of Goring.
Deterding was the guest of Hitler during a four day summit meeting at Berchtesgaden. Sir Henri and Hitler both had ambitions on Russian oil fields. Only an honored personal guest would be rewarded with a private four day meeting at Hitler’s mountain top retreat.
IN JULY 2007, MR BILL CAMPBELL (ABOVE, A RETIRED GROUP AUDITOR OF SHELL INTERNATIONAL SENT AN EMAIL TO EVERY UK MP AND MEMBER OF THE HOUSE OF LORDS: 
MORE DETAILS:
A head-cut image of Alfred Donovan (now deceased) appears courtesy of The Wall Street Journal.
