There is nothing like an internal whistleblower report about an FCPA violation, the finding of such an issue or (even worse) a subpoena from the Justice Department to trigger the board of directors and senior management attention to the compliance function and the company’s compliance program. Such an event can trigger much gnashing of teeth and expressions of outrage followed immediately by proclamations “We are an ethical company.” However, it may well be the time for a very serious reality check.
One of the things rarely considered is how the investigation triggers the remediation process and what the relationship is between the two. It is axiomatic that you cannot finds gaps in your compliance system until you stress test it. Viewed in this light, your compliance failures can be viewed as such a stress test. If you have a compliance failure, that can be viewed as a stress test, which went to failure. Your investigation will raise information to you about the failures of your compliance program that you may not have known existed previously.
While there will be a desire by some folks to not give out any information about the investigation until it is completed and there is a final report, you must resist this at all costs. If the results of the investigation are not made available to you as the CCO or the compliance professional charged with remediating the compliance program, any such remediation will be extremely difficult, because if you do so, you will be simply going down the Yellow Brick Road of guesswork. This is not something that will impress the Justice Department or Securities and Exchange Commission.