Beginning with the 2015 Yates Memo, 2016 FCPA Pilot Program, 2017 and 2019 Evaluations of Corporate Compliance Programs, with 2020 Update through to the FCPA Corporate Enforcement Policy; the DOJ has put even more pressure on every CCO, compliance practitioner and indeed company, to get an investigation done quickly, efficiently and, most importantly, right. This is even more true after the U.S. Supreme Court’s decisions in Digital Realty Trust v. Somers, which limited whistleblower protection and benefits to only those whistleblowers who go to the SEC, rather than initially report internally. What do all these documents tell who should be on your investigation team?
As with a decision on bringing in outside counsel to perform a compliance investigation, you will need to consider whether a forensic accountant should be retained as an outside consultant or hired as an employee. One critical reason to bring in an outside professional is so they will be not be governed by management or influenced by potential biases within a company. Lastly is the issue of privilege. If a forensic accountant is not assigned through your legal department or through outside counsel, you can kiss away even the chance of claiming privilege.
Obviously, the GC would be involved to help protect the attorney client privilege if for no other reason. Further, an investigation needs to have compliance involved, to understand what compliance program was in place at the time of the incident in question, what procedures compliance had and understand if this truly was a gap in the compliance function or maybe there was an area within the compliance function that was not operating as prescribed, or maybe it was a little bit weak.
Three key takeaways:
- HR plays a key but often underused role in internal investigations.
- The Board of Directors and senior management have different roles.
- Use your legal department to protect the privilege.