Overview

Over the past decade, there has been a substantial increase in the use of text and app-based messages. COVID-19 and the shift to a global remote work environment have only accelerated this “texting trend” as employees increasingly turn to digital means of communication for business-related matters. The trend of employees communicating via text (e.g., SMS and MMC) or messaging apps (e.g., GroupMe, WhatsApp, WeChat, and Facebook Messenger) carries with it significant implications for multinational corporations, health care and life sciences companies, and financial institutions.

U.S. and U.K. regulators, such as the Securities and Exchange Commission, Financial Industry Regulatory Authority, and the Department of Justice, as well as the U.K. Financial Conduct Authority, continue to grapple with ever-changing technology that allows for business-related communications through text messages or messaging apps. Companies in regulated industries should be aware of the legal risks associated with employees using text and app-based messaging, including the risk of ignoring red flags that employees are using such means of communication.

Ropes & Gray offers a cross-office team of enforcement and e-discovery attorneys with extensive experience, technology, and industry-specific knowledge to help navigate clients through the prevailing climate of heightened regulation in e-comm policy and app-based communications. Our unique and robust e-discovery, discovery strategies, and data analytics practice, led by Band 1 Chambers-ranked and Tier 1 Legal 500-ranked global practice head, Shannon Capone Kirk, leads the intersection of technology and law and policy. Our dedicated e-discovery team also includes four discovery attorneys and more than 20 global litigation technology professionals, many of whom are active, client-facing technology consultants.

Firm-wide, we have attorneys fluent in more than 50 languages from diverse cultural backgrounds allowing us to conduct global matters in the native local language. We have also developed an extensive network of partnerships with local counsel around the world, selected as having best-in-class capabilities in each local market and practice area.

Approach

Ropes & Gray actively provides clients with practical advice for minimizing regulatory risks associated with app-based communications. Our team has a wealth of experience aligning international business groups on app-based communications, managing across multiple work streams including legal, IT, privacy, information security, information management, and business groups in different global locations. Our team also continually investigates the current options for mobile technology, policies and its evolutions over the past decade along with middleware and other technological solutions to consider when navigating these challenges. Our team works with clients to build a fulsome and dynamic approach, mapping out project plans, budgets and closely tracking the following:

Cross-functional client team identified
Business needs investigated (by region and/or business unit)
Technology assessment for content capture and archiving
Exceptions process
Relevant policies assessment
Policy drafting with cross-functional team
Policy rollout and training
Enforcement program

Experience

Advising multiple clients, including multinational financial institutions and private equity firms, in connection with proactive reviews of their employees' personal device use for business purposes.
Assisting multiple firms in responding to recent SEC inquiries concerning electronic communications matters.
Served as pool counsel for employees of multinational financial institutions related to an SEC investigation into the use of personal devices for business purposes.
Conduct internal inquiries and provide counseling at investment advisers and broker dealers related to issues associated with preservation of off channel communications.
Engaged by multiple global health care and pharmaceutical companies to evaluate and revise its communication policies, with a particular focus on the use of text and app-based messaging.