Environmental and Workplace Safety practice co-head and partner, Steve Solow was interviewed by Corporate Crime Reporter regarding the 2015 Yates memo, the Worker Endangerment Initiative and collective knowledge. Steve noted that the memo and the Worker Endangerment Initiative indicate that once an investigation into an environmental incident happens, the government can more broadly look at other issues, contributing factors and related regulations. He stated, "Once the government has begun an inquiry that may have been started because of a significant loss of containment and a release into the environment, or harm to human health, they may begin to look far more broadly at other areas of compliance as a way to bring a case."
He adds that there will be a significant focus on issues surrounding collective knowledge or intent arising out of the tension between the September Yates memo and the conviction of Pacific Gas & Electric. Steve notes that under the jury instructions given in PG&E, "You can find a company guilty even if no individual within the company can be found guilty. That is a bold break from past practice. And it raises some interesting questions of fair notice…An ordinary person should be able to understand what conduct is prohibited. If each person is engaged in a piece of conduct that is otherwise innocent, it starts to feel odd to say you can bring that all together and charge a crime—without something more. And the something more would be something like a company intentionally, willfully compartmentalizing information."
About the Department of Justice's worker endangerment initiative, Steve goes on to state that "It's going to be interesting to see whether the initiative combines with this notion of corporate collective knowledge. That would be inconsistent with Deputy Yates' September memo on individual responsibility." ("Katten Partner Steven Solow on Worker Endangerment and Collective Knowledge," November 7, 2016)