Shell Oil Co. v. Writt

Case Updates

The Texas Supreme Court reversed the judgment of the court of appeals, concluding that statements made by Shell were made preliminary to a proposed judicial proceeding and were absolutely privileged.

Click here to view the Chamber's merits brief.

In its amicus letter, the U.S. Chamber asked the Texas Supreme Court to review the court of appeals’ decision and clarify whether an “absolute” privilege or a “qualified” privilege protects communications between a company and an enforcement authority during an investigation. The Texas Court of Appeals held that Shell does not have absolute immunity from a defamation suit brought by one of its former employees, despite the fact that the suit was based on confidential statements made by Shell to the Department of Justice in response to DOJ inquiries about that employee as part of a criminal investigation under the Foreign Corrupt Practices Act (“FCPA”). The letter argues that this holding discourages self-reporting and corporate cooperation with regulatory authorities, thereby undermining the foundation upon which enforcement of the FCPA and other statutes is built. The lack of absolute immunity will severely injure the business community by penalizing businesses for cooperating with state and federal agencies. Corporate cooperation with DOJ, including self-disclosure of potential violations, is essential to the enforcement and prosecution of FCPA violations—especially because such violations often involve confidential and sensitive dealings in places all over the world. Finally, the letter points out that any rule that imposes costs on a company implicating its employees in wrongdoing will necessarily diminish voluntary reporting of FCPA violations and impose unfair burdens on those companies who nonetheless choose to self-report.

James C. Ho and Mithun Mansinghani of Gibson Dunn & Crutcher LLP represented the U.S. Chamber of Commerce as co-counsel to the U.S. Chamber Litigation Center.