Faegre Drinker's product liability and mass torts deputy leader Michael C. Zogby, associate Kaitlyn Stone and Joan T. Pinaire, senior vice president in the legal department of Realogy Holdings Corp, authored the article “Crisis Management: From Anticipation to Action—Partnering for Success by Assembling a Top Notch Crisis Management Team” for Corporate Counsel. This is the second article in a three-part series exploring pragmatic strategies for in-house counsel and business partners to address corporate threats spanning the entire timeline of catastrophes, and it focuses on coordinating an effective response to an active crisis. The full text of the article appears below.
Catastrophes are not defeated by individuals, and require a team to identify the threats and mobilize to eliminate those threats. The COVID-19 global pandemic continues to prove that crises are often more encompassing than we desire or may be prepared to tackle, unless we have a plan, anticipate problems, and prepare our teammates for coordination and action.
The first installment of our three-part series analyzed strategies for anticipating potential business crises. This installment continues down the timeline of a potential catastrophe, and focuses on coordinating an effective response to an active crisis. A crisis or widespread disaster, present and ongoing, has befallen the organization, and effective, efficient management is now the focus. Coordination of a successful response cannot be achieved without a coordinated, unselfish team ready to lead the group, department, or organization through turmoil. This second installment focuses on how to assemble an effective crisis management team (CMT), and how to leverage their skills and expertise to achieve the goals of survival and reemergence.
The Team’s Objectives
The purpose of a CMT is to develop, manage, and lead an organization’s reaction to a crisis or emergency. A CMT may be engaged in situations involving threats or damage to people or real or intellectual property, or business interruption with potential negative financial, brand, or reputational impacts to the organization. The team is designed and staffed based on the nature and scope of the crisis.
An effective CMT shepherds the business’ response at macro and micro levels: the CMT should be equipped to coach the organization’s individual employees through the problem, while simultaneously steering the business’ ethos, and even its clients, through the process.
Many maxims prove true in crisis management, and the reality of building a CMT is no exception. This time, we borrow from Aristotle in recognizing that a CMT is greater than the sum of its parts. Assembly of a comprehensive, multifaceted group is essential to its success. When the right team members are selected, the synergy of their diverse skills, experiences, and views results in a group prepared and able to respond to a multitude of business crises better than any one personal could individually. Advanced preparation also enables the CMT to adapt quickly, and identify real and potential threats to the corporation. Actions taken will then be proportional to the threats presented by the crisis.
Assembling the Team
The most successful CMTs capitalize on the diverse skills of their organization’s talent – derived both from in-house and outside vendors. Identifying individuals’ particular aptitudes, and analyzing how they will come together in a collaborative setting, will build a team of varied experiences, viewpoints and ideas that is prepared to tackle crises from a multitude of angles with speed and creativity, along with the express goal of eliminating the potential for groupthink. Interviews with potential candidates will help vet the best members for the team, and the assembling members should be open to recommendations from across the organization.
While the importance of assembling a team with diverse and personalized skill sets cannot be overemphasized, some attributes are essential in every member of a CMT. All members should: have the ability to perform well—or, better yet, excel—under pressure; possess strong analytical skills and a deep understanding of the organization’s global strategies and goals; communicate clearly and efficiently; assume personal responsibility for tasks; and, most importantly, be inclined to solve problems through collaboration and cooperation.
Ultimately, as recently discussed by Eric J. McNulty and Leonard Marcus in their timely Harvard Business Review article, members of the CMT need to be prepared and equipped to lead. See McNulty and Marcus. “Are You Leading Through the Crisis … or Managing the Response?” Harvard Bus. Rev. (March 25, 2020). Managing a crisis can be somewhat passive and reactive, and occurs in response to the threat over time. Leading, on the other hand, is active, and requires the CMT to anticipate next steps, always be thinking ahead, and to prioritize decision-making that instills confidence in them by their peers and clients.
Potential team members on a CMT may include:
- CMT Lead: As discussed by James Haggerty in Chief Crisis Officer: Structure and Leadership for Effective Communications Response, it is essential to select an insider to green light major decisions by the CMT. This person does not have to be the CEO or other members of the c-suite. Candidates for a CMT Lead often include trusted, high-ranking members of the Marketing, Communications, or PR departments, the CEO’s chief of staff, or an Assistant General Counsel for the company. A CMT frequently needs to take large-scale actions at a rapid pace. An independent and confident Lead with the authority to approve these actions will empower the members of the CMT to work expediently, and the speed of a response is often at the heart of its effectiveness.
- In-House Counsel: An in-house counsel’s role on the CMT is a bit like the role of a student taking law school exams: issue spot quickly, vet potential liabilities in real time, and discuss recommendations and suggested courses of action informed by the risks. The legal and policy exposures involved in a crisis frequently invoke questions of liability, duty of care, compliance, human resources, proprietary protections, and regulatory issues. Familiarity with these issues relevant to the business’ global plans and overall mission, and the specific crisis at issue, will serve this team member well.
- Outside Counsel: The first member to invite from outside the organization to participate on the CMT is outside counsel. This member (and his or her team) will be crucial to heading off issues that might arise in future litigations/investigations/audits. This individual should be prepared to support the in-house counsel’s efforts regarding compliance and regulatory problems, any brand strategy or global issues, in addition to advising the CMT about evidentiary and privilege issues, which are omnipresent in a catastrophe. Inviting outside counsel into the crisis response process will help the CMT anticipate and avoid future problems, while equipping the team with an outside perspective on the organization’s strategy. This variety of perspectives will enhance the CMT’s creativity and improve the quality of its overall decision-making.
- Administrative Support: A high-level administrator is needed to support the CMT. This team member should have a general knowledge of how to achieve any given task within the organization. Understanding how to organize everything from transportation to catering will serve this member well. The administrative support member also keeps track of action items and drafts meeting notes and action items/assignments, memorializing the CMT’s processes and decisions. The administrative assistants who support the organization’s C-suite might be a fruitful pool from which to pull this team member.
- Human Resources: An HR member, with the appropriate support from employment counsel, is crucial to the CMT’s ability to roll out crisis responses directly to employees. This member may also coordinate temporary staffing and related benefits issues as needed in response to the emergency. Identifying the HR member early in the team assembly process also invites this member to provide recommendations relating to other team members based on contact with worldwide departments and team leads.
- Internal Corporate Communications: One of a CMT’s primary tasks is communication. This team member will head up communication from the team to the organization at large. This member must have extensive experience developing content for distribution to the organization, and familiarity with the best avenues through which to distribute information throughout the business. This team member may work with a sub-team to draft written communications, action plan, and create (as needed) multimedia or video content to be distributed within the organization.
- External PR: This team member is concerned with the other arm of a CMT’s communication role: externally-facing communications. Bringing in a PR expert from outside the organization might be best, especially if the crisis at hand is particularly disastrous. From preparing representatives to press releases, and social media posts to engaging with various the media outlets, this member will ensure the CMT remains focused on how the organization’s response is perceived and received by its clients and the outside world, while maintaining independence and having access to other crisis management plans within the industry.
- IT: An IT member is needed to contextualize any IT impacts associated with the crisis for the CMT, and to lead the organization’s response in terms of restoring, maintaining, and protecting its information systems and networks. An organization may elect to engage an individual from within its ranks and an external IT vendor to ensure maximum security for the business. This person or persons should be paired with information governance/records management personnel to make sure data are maintained and privacy interests protected.
- Medical Adviser: A medical adviser could be involved to advise the CMT regarding the human health impacts involved in a crisis. An advisor with a broad base of medical knowledge can assist the CMT in a variety of disasters. Selecting a member that has connections with various specialists will also enable the CMT to connect with other medical advisors as needed to address issues unique to a given crisis.
- Subject Matter Experts: Business disasters are rarely straightforward. The CMT should be prepared to engage subject matter experts as needed in response to a crisis. In-house counsel, external counsel, and external PR may be resources for which experts may be needed in response to a given situation, and who to contact to engage the right experts promptly. The company should also be focused on protecting its intellectual property, privacy data, and any proprietary data that might qualify as a trade secret necessary to lock down.
Ideally, an organization should prepare to assemble its CMT when the business is not actively responding to a crisis. This procedure allows for an uninterrupted analysis of who should be added to the best-equipped team without the distraction or the pressures of an ongoing emergency. “The time to repair the roof is when the sun is shining,” said President John F. Kennedy. Assembling a CMT during calm periods also frees up time for training the team with approaches like tabletop exercises, red teaming, premortems, and other strategies aimed at priming the CMT’s crisis-response skills. Proper prior training results in less downtime, more action and quicker resolution because CMT members will know their role and function throughout the crisis.
The CMT may coordinate with sub-teams in order to touch all aspects of crisis management. For example, Regional Emergency Management Teams, providing support to local or site-specific teams may be needed depending on the size of your organization and the geographic implications involved in a given crisis. Site Emergency Response Teams may be especially valuable in catastrophes that particularly tax a specific office, plant, or warehouse, especially if involving physical damage.
A well-rounded CMT merges (and benefits from) the diverse experiences of members from within the organization, and from its outside vendors, to produce prompt and effective responses to business crises. The team members’ understanding of the organizations’ overall strategies and goals is equally important as their varied approaches to problem-solving and decision-making. When the team is prepared for and equipped with a thorough crisis management plan and the authority to act quickly in the interests of the business, a CMT proves the most essential tool in managing, and successfully emerging from, a business crisis.
Joan T. Pinaire is a senior vice president in the legal department of Realogy Holdings Corp., headquartered in Madison, New Jersey. She manages the company’s Intellectual Property Law Group, which is responsible for enterprisewide legal matters relating to the company’s intellectual property assets, including trademarks, copyrights, patents, and domain names. Pinaire served as the executive chairwoman of Realogy’s SERVICE Employee Resource Group (supporting veterans) from 2016-19 and as a member of the Realogy Diversity and Inclusion Council.
Kaitlyn E. Stone is an associate in Faegre Drinker Biddle & Reath’s product liability and mass torts practice group in the Florham Park, New Jersey, office. Stone defends the interests of major pharmaceutical, medical device, and med tech companies in product liability cases. She has experience ranging from individual cases to class actions, and the majority of her practice focuses on multidistrict litigations and coordinated state proceedings. Stone also maintains an active pro bono practice, focused primarily on securing criminal expungement for indigent clients and veterans in New Jersey.
Michael C. Zogby is a partner and deputy leader of the nationally ranked product liability and mass torts group at Faegre Drinker. Zogby also serves as co-chairman of the firm’s health and life sciences litigation team. His trial and crisis management practice includes the defense of global clients in highly regulated industries in cross-border, complex litigation, mass tort, intellectual property, data privacy, and product liability actions filed by consumer and government parties.
Reprinted with permission from the July 27, 2020 edition of Corporate Counsel© 2020 ALM Media Properties, LLC. All rights reserved.