Today, I conclude my short series on Shakespeare’s problem plays by considering Measure for Measure. In the age of #MeToo this play has taken on a renewed and frankly disturbing existence. Seeing the play in the past year was a much difference experience for me than the 20 years or so ago when I last saw it. Once again while there are comic elements, largely around the switching out of partners in a bedroom farce and a marriage proposal to end the play, there are some dark, indeed very dark, parts in the middle of the play. These include demeaning and the debasement of the female protagonist Isabel, leading to what modern day critics see as a rape scene of Isabel.

The basic plot line is the Duke of Vienna leaves town ostensibly on a diplomatic mission but, in reality, goes undercover to see how the city fairs in his absence from his appointed Judge, Angelo, who will lead a moral crackdown. Claudio get his fiancé pregnant and although ready, willing and able to do the right thing and marry her, Angelo condemns him to death. Claudio’s sister, who is about to join a convent, goes to Angelo to plead for his life. Angelo offers to spare her brother if she will cede her virginity to Angelo. She refuses and says she will report his conduct and then is one of the most chilling lines in all of Shakespeare “Who will believe thee, Isabel?”

The farce part occurs when Isabel convinces Marianna, who loves Angelo, to perform the ‘bed trick’ and substitute herself for Isabel, which she does. The Duke, who never left, returns and bades Angelo must marry Marianna and pardons Claudio, who is allowed to wed his fiancé. The Duke also proposes marriage to Isabel, who in an ‘open silence’; says nothing, closing the play. This ambiguous ending is only one of the reasons Measure for Measureis seen as a problem play. The violence, both physical and mental, visited upon Isabel by Angelo in the middle acts of the play put directly to the fore what many women have had to put up with in the workplace.

I thought about Measure for Measure when reading an article in Bloomberg Business Week, entitled “How to Clean Up a #MeToo Mess”, by Mary Pilon. It details the story of Cynthia Marshall, the new Chief Executive Officer (CEO) of the Dallas Mavericks, who was brought in to the organization after the devastating Sports Illustrated article detailed both sexual harassment and sexual assault by Mavericks senior management upon female employees. While this conduct did not include owner Mark Cuban, he was clearly shown to be responsible for allowing a toxic culture to not only exist but foster under the prior CEO Terdema Ussery.

This story is not only important to show how the Mavericks turned things around in the face of witheringly negative publicity but Marshall’s roadmap is one that any Chief Compliance Officer (CCO) can use if they find themselves so similarly situated. According to Pilon, Marshall created a 100-day game plan to hit the ground running when she arrived on the job. It, “consisted of four parts: modeling zero tolerance, creating a playbook for women in the organization, transforming the culture, and improving operational effectiveness. After starting, she arranged for counselors to help the staff cope with what had happened—both the toxic culture and the public cloud surrounding it. She started a hotline for employees to submit anonymous reports of improper office conduct. And she created jobs and filled open ones, bringing in a new head of human resources and a chief ethics and compliance officer.”

This game plan included five steps that every CCO who faces a catastrophic Foreign Corrupt Practices Act (FCPA) investigation and enforcement action should use.

  1. Own the mistake(s) but move forward. Cooperate with the investigators. Obviously, this is a key requirement of the FCPA Corporate Enforcement Policy but Marshall used this step to demonstrate to multiple stakeholders that things really had changed. Make clear there are new values and you are going to support them going forward.
  2. Create supportive communities for employees. No company’s employees want to be known as the bribery company or the cheaters. Almost all employees do have pride in their organizations. Use that passion to create support for those employees who are sick and tired of unethical behavior by their co-workers or senior management. This can be a powerful tool to help unearth unethical or even illegal conduct.
  3. Make the new values clear.Continually drive home the message that unethical behavior will not be tolerated. Use internal social media to communicate with employees, literally across the world. Get out of the corporate office and let as many employees as possible see you and your commitment to doing business ethically and in compliance with laws such as the FCPA.
  4. Do not be afraid to ask for help, both inside and outside.If you need subject matter expertise, go get it. Use the talent inside your organization as well. You can ask for input, you can ask for help. Keep your door open and work with as many stakeholders to get as many ideas that you can winnow down.
  5. Invest in talent. The 2017 Evaluation of Corporate Compliance Programs and FCPA Corporate Enforcement Policy both made clear that the talent and expertise of the compliance function should be rewarded in terms of financial pay and opportunity for promotion in your company. If there is talent that has not been brought forward do so now.

I have used this short series on Shakespeare’s problem plays to discuss problems for every CCO that may not get as much discussion as other aspects of an effective compliance program. Just as the three plays reviewed provide excellent opportunities for learning, their messages still resonate today.

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, 2019

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