Under Part 1, Section D. Confidential Reporting Structure and Investigation Process, it stated in part, Properly Scoped Investigation by Qualified Personnel –What steps does the company take to ensure investigations are independent, objective, appropriately conducted, and properly documented? How does the company determine who should conduct an investigation, and who makes that determination? These questions were presaged by the DOJ’s 2015 Yates Memo and the 2016 FCPA Pilot Program. The pressure on every CCO, and indeed company, to get an investigation done quickly, efficiently and, most importantly, right is even greater now.
Jonathan Marks began by cautioning that when considering any well run internal investigation, a CCO must be cognizant of the strictures laid out in the Evaluation. It all begins with who in-house is looking at the complaint and does the CCO, compliance practitioner or legal team have the skills and capabilities to handle the matter which has arisen? Obviously if there are esoteric accounting issues or significant internal control work-arounds and overrides, a CCO may not have those skills to really understand all the issues. Similarly, if the matter is a global FCPA or equivalent bribery and corruption matter, Marks related, these “come in different flavors, and because they come in different flavors you may not have the skills or capabilities to do an investigation that would take place in say Brazil or Russia or China or India.”
Three key takeaways:
- Always remember your ultimate audience may be the government.
- You must understand both the business environment and extended business enterprise.
- Communication and collaboration in any investigation are critical so you should begin early and continue to do so throughout the investigation.