There is nothing like an internal whistleblower report about a compliance violation, the finding of such an issue, or (even worse) a subpoena from the DOJ or notice letter from the SEC to trigger the Board of Directors and senior management’s attention to the compliance function and the company’s compliance program. Such an event can trigger much gnashing of teeth and expressions of outrage followed immediately by proclamations, “We are an ethical company.” However, it may be time for a very serious reality check.
You may find yourself in a position where you will have some very frank discussions about what to expect in terms of costs and time outlays. While much of these discussions will focus on the investigative process and those costs, these discussions will allow you to initiate the talk about remediation going forward and explain why money must be budgeted for the remediation process.
One of the things rarely considered is how the investigation triggers the remediation process and what the relationship is between the two. When issues arise warranting an investigation that would rise to the Board of Directors level and potentially require disclosure to the government, there is usually a flurry of attention and activity. Everyone wants to know what is going on. In an interview with Russ Berland, he noted, “for that short moment in time, you have everyone’s full attention.” Yet it can still be “tricky because you get your fifteen minutes to get everyone’s full attention, and from then on, you’re fighting with everybody else for their attention, like the normal things in business life.”
Three key takeaways:
- A serious FCPA allegation gets the attention of the Board and senior management. Use this time to move the compliance program forward.
- Be aware of how your investigation can impact and even inform your remediation efforts.
- Be prepared to deal with the dreaded “where else” question.
