Many companies have an investigation protocol in place when a potential Foreign Corrupt Practices Act or other legal issue arises. Many boards, however, do not have the same rigor when it comes to an investigation, which should be conducted or led by the board itself. The consequences of this lack of foresight can be problematic, because if a board does not adequately conduct an investigation, the consequences to the company, its reputation, and value can be quite severe.
Consider these key factors:
Robustness: The robustness of an internal investigation—or lack thereof—could turn into an issue when dealing with regulators. The one thing you do not want to hear is the dreaded “where else?” question. A good tip is to ask yourself: Have you secured all documents and electronic files?
Independence: Any investigation seen as lacking objectivity will be viewed by regulators as inadequate or deficient. This objectivity requirement is also critical for the investigators themselves.
Precision: As in any part of a best-practice anti-corruption compliance program, it is most important to document, document, document. This means that the factual findings of an investigation must be well-supported. If the developed facts are not well supported, the investigation will likely be open to collateral attack by skeptical prosecutors, regulators, and defense lawyers.
Expeditious: In the world of FCPA enforcement, an internal investigation should be done quickly. This has become even more necessary with the tight deadlines set under the Dodd-Frank Act whistleblower provisions. Finally, the Department of Justice or SEC may view delaying an investigation as simply part of document spoliation.
Rigor: One of the realities of any FCPA investigation is that a board-led investigation is reviewed after the fact by not only skeptical third parties, but also sometimes years after the initial events and investigation. There must be rigor in both the approach by investigators and documentation.
With the new FCPA Corporate Enforcement Policy being applied to areas other than FCPA enforcement, internal investigations will become even more important. Rigor and oversight by the board will be indicia of meeting the new requirements.