Companies have always faced challenges in dealing with government regulators. Traditionally, those challenges were discrete and private — the company would provide as little information as possible to the regulator and hope the government either went away or could be persuaded to enter into a modest consent decree. The general counsel considered it a good day when the regulator stopped calling.
Regulatory challenges are no longer such a private affair. Today, they routinely spawn civil litigation, and executives face intense public scrutiny along the way. At the same time, competitors and plaintiffs’ lawyers pressure Congress and the agencies for action, make trips to Capitol Hill, instigate grand jury investigations, incite media coverage, and influence public opinion in well-orchestrated campaigns. Agencies are not immune from these pressures and must respond to a public that has been empowered by an array of social media tools to voice their concerns. Enforcement is on the uptick, and agency consent decrees impose compliance programs that can impact business activities for years.