legal department, and monitoring news coverage
will avoid a last minute scramble and help to
avoid any miscommunication of facts. To further
help avoid any mishaps down the road, companies should identify a limited number of people
who will be communicating internally regarding
any incident and remediation, and provide periodic training on best practices for written and
oral communications. It may make sense to
appoint a “crisis coordinator” and prepare for
possible crisis scenarios, including creating protocols for responses thereto.
In the event that a fire or explosion does oc-
cur, there are several steps a company should
take immediately to protect itself:
• First, a document retention hold should
be promptly instituted, and key documents
collected, including any design, construction,
or inspection documents and relevant company
polices. It may be advisable to engage lawyers
in the initial collection of documents to track
their various sources. Additionally, there may
be non-documentary evidence that needs to
be preserved. Companies should consult with
outside counsel on mechanisms for preservation
and determinations of scope.
• Companies should follow a protocol for
internal and external communications. All written
communications should be carefully consid-
ered and, as appropriate, undertaken within
attorney-client or work product privileges. Any
press releases should be reviewed by in-house
or retained counsel, and the company should
carefully develop its approach to responding to
media inquiries, complaints, and federal or state
agency concerns, so that messages are accurate
and consistent. These processes will help to en-
sure that only the necessary facts are conveyed,
and to avoid communication of any speculation
• Companies should promptly coordinate an
internal investigation, under attorney-client privilege and in conjunction with retained or in-house
experts, regarding the cause(s) of the fire or explosion, regulatory compliance matters, maintenance
and monitoring systems, and any necessary remediation efforts. The company would also be advised
to interview and retain any necessary key opinion
leaders or experts, including possibly an appraiser
or economist to assist with any aggregate exposure analyses.
• Of course, the company will undoubtedly
be working with governmental agencies such as
EPA, FDA, OSHA, or the CSB. Again, as with all
external communications, it is important that the
company be cooperative with government agen-
cies but also speak with one voice, and keep
in mind the potential litigation ramifications of
any and all government investigations and state-
ments made therein.
• Finally, the company should take steps
to begin to prepare for litigation by identifying
any potential co-defendants (e.g., construction
firms, inspectors, maintenance vendors) and
identifying and evaluating any potential claims.
The company may consider an early settlement
claims process, and work with retained or in-house counsel to set up releases for claims.
The company should, of course, be careful
about the scope of any releases from putative
class members, and develop steps to confirm
any claims made.
Although one cannot predict or eliminate all
risks in the event of an explosion, preparing and
planning now will help to minimize the company’s exposure and risk. In general, guiding principles are to be proactive, maintain credibility,
take the high road, and think ahead.
Kara L. McCall is a partner and Michelle
Ramirez is an associate in Sidley Austin LLP’s
Chicago office. The views expressed in this article are exclusively those of the authors and do
not necessarily reflect those of Sidley Austin LLP
and its partners.