In honor of fellow Houstonians, fellow Texans and now our neighbors to the east in Louisiana, who have been impacted by Hurricane Harvey, I continue my weather themed week by considering how Shakespeare used weather as a metaphor and what the compliance practitioner can learn from this going forward. It occurred to me that if weather is a metaphor in fiction, it is based on some reality which I think can be used to instruct on a best practices compliance program. Today I consider the use of weather in Macbeth “the Scottish play” where Shakespeare uses utilizes the weather to create an ominous dark mood throughout much of the play.

One commentator has noted, as with other Shakespearean tragedies, “Macbeth’s grotesque murder spree is accompanied by a number of unnatural occurrences in the natural realm. From the thunder and lightning that accompany the witches’ appearances to the terrible storms that rage on the night of Duncan’s murder, these violations of the natural order reflect corruption in the moral and political orders.” Yenised Ramirez-Ajete, writing for Prezi, has noted several weather themes in Macbeth. Through the use of fog, Shakespeare “creates a sense of mystery and suspense and shows that things are going to turn around. The fog first starts off in the play when King Duncan says he’s going to kill the Thane of Cawdor.” Shakespeare makes abundant use of rain throughout the tragedy. At the beginning of the play, “the sky is sunny, and then when something bad starts to happen the rain starts to pour. Or another thing that occurs, is the sun will be out yet it will be raining. All the storms at beginning of the play will foreshadow all the bad things that will happen in the future.”

Yet for me it is the storms that form the central motif in Macbeth. When the witches (or three sisters) appear both thunder and lightning appear to foreshadow that something bad is going to happen or that something unnatural is going to occur. In Act 1 the first witch asks Macbeth when they will meet again, noting whenever they meet up, there is always thunder, lighting, or rain or all three at the same time. She makes this clear when they all meet in Act I when she says, When shall we three meet again? In thunder, lightning, or in rain? Of course, the murder of Duncan is in the midst of a terrible storm as well.

How does this relate to the compliance practitioner and more importantly, a best practices compliance program? If weather is a risk that you face, it needs to be put through your risk management process. Even in the Foreign Corrupt Practices Act (FCPA) arena weather can be a factor you need to reflect in your risk management process. Consider if your company is an agriculture based business where your suppliers require rain or even allocated irrigation waters to grow the plants which go into your products, such as grain for ethanol products. If your supplier-farmers must rely on a governmental water district for their irrigation water allocations, what could be the risk they might pay bribes to increase their allocations? What happens if there are bribes paid by suppliers in your supply chain to produce any part of your final product?

Now consider building permits and other government licenses which are necessary in a large construction project, such as a major hotel and gaming complex at or near a seashore with a gorgeous vista. What if your company directly makes what it believes are facilitation payments to obtain permits to build in low-lying areas which are prone to flooding? Now consider if these facilitation payments were actually bribes to get around local zoning or other flood control ordinances? Does any of this sound far-fetched? Perhaps but the point is these are clearly risks which must be assessed and then managed through your risk management protocol.

The Department of Justice’s (DOJ) clearly expects such risks to be evaluation, properly assessed and then managed. In its Evaluation of Corporate Compliance Programs (Evaluation) under Prong 9, Risk Assessment, the DOJ posed the following questions: Risk Management Process What methodology has the company used to identify, analyze, and address the particular risks it faced? Information Gathering and Analysis What information or metrics has the company collected and used to help detect the type of misconduct in question? How has the information or metrics informed the company’s compliance programManifested Risks How has the company’s risk assessment process accounted for manifested risks?

Working backward from that list, consider manifested risks. Any reading of Shakespeare will inform you of the manifested risk of bad events during harsh weather conditions. The same can be said for weather related events which are known to occur. In Houston, we are now in the middle of the 1000-year flood event, having exceeded the 500-year flood event that happened way back two days ago. Is this a manifested risk? Is it a known risk? Right now many Houstonians are finding out that several commentators had predicted this type of flooding in Houston could occur.

These types of questions also point out how integrated compliance should be in your overall business processes. These are the types of questions you should be considered in your business operations for a variety of reasons. Just as clearly, if there is a risk of a compliance perspective, it needs to be assessed and managed. Continuing to reverse up the question chain, the DOJ wants to know how you have used the information. If your suppliers are farmers, have you provided them any training your company’s expectations that no bribes be paid? Is that training in their local language? Was it documented? For the facilitation payment example, when was the most recent full review and assessment of all facilitation payments, including the documentation of to whom, the amount and method of payment.

Finally, at the first two questions under Risk Management Process, what is your entire process? Does your organization even have a fully document process to do so and integrate it into your ongoing business process? What was your methodology, as did you even assess events such as the weather, geographical consideration or geopolitical events?

We are reminded that Shakespeare is our greatest playwright and greatest author of the English word. Although he wrote in fiction, most of his plays were based on prior stories built around historical events. The use of weather may have been a motif but as most fellow Texas can attest, it is real and the effects can be catastrophic. I hope you can use the lessons from Macbeth to consider your compliance program going forward.

 

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2017

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