Managing Cross Border Internal Investigations

Managing Cross Border Interna

Investigations

M O D E R A T O R / P A N E L I S T : T H U Y P . T R A N P A N E L I S T S : E L E A N O R B E N M E N A S H E , A S H L E Y C O S E L L I , MICHAEL MINER,MARLA MOORE

I. Introduction —————————————————

Internal investigations have increased

in frequency. Securities and Exchange

Commission (SEC) whistleblower claims

are up 76% since 2012. 1 Equal Employment

Opportunity Commission (EEOC)

harassment cases just last year are up 50%,

likely an unsurprising phenomenon given

the #Metoo era. 2 The NAVEX 2018 Annual

Report, 3 states there has been a 56% increase

in the reporting rate for internal complaints

since 2010. The number of substantiated

cases by percentage have also gone up from

36% to 44% since 2012. 4

What companies are asking is: 1) do they need internal lawyers who know investigations; 2) do they need external lawyers who know investigations; and 3) do they need non-lawyers who know investigations? The answers to these questions are: yes, yes, and yes. This trend is not going to slow down.

The need for internal investigations extends beyond the legal field. In compliance departments, the lawyers (and staff ) are expected to do a little bit of everything, including picking up purely Human Resources (HR) matters, quality issues, or health, safety, and environmental matters. This is because the people working in those particular disciplines are not always trained to do full-scale investigations. Sometimes these departments count on us to help them, whether in training them to conduct investigations or actually coming together hand-in-hand with them to handle investigations. Consequently, there is not just the core set of compliance lawyers or investigators. Companies get a lot of work that burns up many resources and so the more resources, the better. Companies are fortunate if they have a pretty big team and collaborative group to devote to investigations.

————————————————— II. Investigations as a Practice —————————————————

A. Docket Managment

When managing the help line or compliance line, it is key to have partnerships with other stakeholder groups within the organization, such as the Labor and Employment Counsel, HR group, or Internal Audit. From a traditional compliance perspective, whether a Foreign Corrupt Practices Act (FCPA) investigation or fraud investigation, information from trusted sources and background on personnel and personalities is critical; sometimes where there is smoke there is fire. Sometimes a request for an investigation will come in through the HR group, even when the original complaint looks like it was a traditional HR matter. For example, an allegation may arise when HR conducts an exit interview. Someone leaving the organization brings forward an allegation, which plays into ethics.

Ethics is who are we, and maybe it is a little bit more than what we do. Compliance and ethics drives the inner workings of an organization. A company may receive the traditional HR type of complaint at first by employees who are a little bit more willing to speak up. Then, it may require a dedicated investigator to go and investigate the traditional HR matter. When this occurs, it leads to the perception by those in the organization that the company does care—someone has spoken up, and other individuals now feel empowered to speak up. Further, the organization now has people who are picking up the rocks in an effort to look into potential violations and scrutinize the compliance culture. Unless people are speaking up, compliance departments do not know the problems or where to start looking to fix those problems within an organization. A company should worry if it is not getting calls through a helpline, and someone needs to go to management and bring up the company’s branding issue. There should be complaints. A company with operations all over the world and tens of thousands of employees and contractors in numerous countries that is not getting complaints (at least through a helpline) either does not know what is going on in the organization

or its people do not know about its helpline. Companies need to have a better hotline call volume to build a “speak up culture” and prevent future compliance issues.

Any company knows that the lack of helpline calls is indicative of a culture problem. The number one reason employees do not complain is that they are worried about retaliation. They do not trust the system. They do not trust their company. In this era, social media fits into this picture. Often, someone will call in and file a complaint on the helpline, and if they fail to receive an immediate response, they are likely to take it to social media. That is what firms are seeing, and it can be problematic because something that might have been handled internally, without many public eyes on it, all of a sudden is posted on Facebook, Instagram, or Twitter.

Lawyers who are just coming out of law school and are familiar with technology and social media have an advantage in the internal investigations practice. Companies run into online issues all the time with employees. Employees are doing less via company email, where there is visibility, and frequently turn to alternative communication mediums, for example, Whatsapp or other private messaging applications. This is challenging for firms, who need to better understand how its employees are using this technology, how they are sending data from one person to another, where it is going, and how, if at all, it can be tracked. A lawyer working in compliance having some insight into these issues, a person who understands technology better, is a definite plus for a company.

B. Culture and Gender Sensitivity

Colloquially, the soft skills—being able to relate with people and have a conversation— are so important. Communication skills and relationship building is an art that is being lost; what matters is being adaptable and flexible. Investigators need soft skills, relationship building skills, and the ability to network. In some practices and investigations, it is crucial to be able to rely on IT, internal audit, and other groups in the company, as no lawyer handles everything or knows everything.

Lawyers must practice humility when travelling abroad. To build cultural awareness, partner with HR and ask what one needs to know when going to other countries. Know who is who, in what group, who is connected to whom, before putting boots on the ground or attempting to conduct an interview. Lawyers need to understand what is going on all around them. Learning the client, accompanying the client on risk assessments, meeting the local office, going to trainings, partnering with HR, meeting with the internal audit team, going on an audit beforehand, and learning the lay of the land all go to understanding who the people are. Lawyers cannot be afraid to play to a perceived weakness. For example, acting clueless to get an alleged violator to “teach” about his or her work or how the procedure works in the real world can be a valuable tactic. Such techniques allow the investigator to obtain information in a disarming way. Investigations are about fact-finding. Examples of probative phrases could be, “help me understand,” or “can you help me understand?” People will pour out information which may result in a “got you” moment.

Avoid the hardcore, hard-hitting litigator style. The investigative process is not like taking depositions. In investigation interviews, the interviewee will shut down and not participate. When it comes to interviewing people who speak another language where a translator is required, something gets lost in translation. A question gets asked, such as “did he touch you inappropriately”, and the translator will ask the question. The following exchange between them will get complicated, with a lot of back and forth. Finally, the translator will turn to say, “she said yes.” Valuable information gets lost in this way. Therefore, if the lawyer speaks another language, companies and law firms value that skill in investigations.

Recognize the cultural boundaries in a particular country. Companies should have internal protocols for each country. In places where it does not, the company should identify new protocols after a thorough examination of such countries cultural norms. Starting the interview off on the wrong foot will make it more difficult to build rapport. Things that are very common here in the U.S. may easily be restricted or offensive in other countries. For example, in Saudi Arabia, a man and woman cannot be alone in the same room. Also, showing the sole of one’s shoe is considered offensive; so, crossing one’s legs becomes risky behavior, if not done correctly. Not only do these cultural sensitivities impact the rapport with the interviewee, they may also amount to a procedural flaw in the local labor court. This is meaningful when it increases the cost or impacts the success of the local labor claim.

When building rapport, it is best to approach the interviewee calmly, adopting an unassuming disposition—“talk to me and let me help you with this situation and let us make it better”—rather than approaching the

interviewee with presumptions or making him or her feel small. Showing respect and being calm is key. If the investigator goes in with the wrong approach, it breaks down the communication. If the person walks out or shuts down, consider the probative value of attempting another interview later or disciplinary action, if company policy supports it.

At the end of the day, an investigator gets one good shot at the interview. Aim to do it properly the first time. The small details really count, and success is based on the way the interviewer positions himself or herself to talk to witnesses. Understand who the interviewee is and how that individual fits into the big picture of the organization and the investigation. For example, is this a good friend of the alleged perpetrator? Setting up the witness list and choosing who to speak to first is crucial. Talk to the local team, whether that is the legal team, Health, Safety, Security and Environmental (HSSE), or the HR team, because these teams are the primary resource for knowledge about company individuals, other people involved, and the cultural norms. Local team members will have the insights to inform the investigator of the interpersonal relations of employees and the relational aspects of those individuals closely associated with employees.

Complaints can involve very salacious allegations mixed in with very problematic company issues. The lawyer may need to break the issues apart. Sometimes there are different investigators for specific subject matters, which creates parallel investigations within the organization. In such instances, the lawyers need to coordinate internally between the different groups involved and coordinate with company individuals located in the area out of which the violation occurred to make sure the information is correct and that the suspected individuals are not accidentally tipped off prematurely.

One reliable source when dealing with local team members are the administrative assistants. When working on an investigation, get the names of the administrative assistants, even at remote locations. Later on, when in the investigation, relationships previously developed with the administrative assistants will be of value in learning about the interpersonal relationships that go on in that office. Obtaining that information might stop the investigation right there, depending on whether it will substantiate or unsubstantiate the allegation. Administrative assistants provide a wealth of information and should not be discounted. There is immense value in speaking with the administrative assistants, sometimes as a starting point, and this may prove to be a better approach in planning an interview schedule than going down the chain of command. Additionally, it may be beneficial to discreetly inquire as to what has been happening in the coffee room. As with all previously developed relationships with people in the office, often there is valuable background and interpersonal information available to those who allow themselves to be approachable; often these “water cooler” conversations have all sorts of information that an investigator probably should know beforehand. The “gossip fix” of the day doubles as information necessary to attempt to figure out what is going on.

Receptionists are the other useful sources because they see everyone who comes and goes. It is all about fact-finding. Investigators need times, dates, and information. Receptionists log everything in. They even take pictures of visitors. Consequently, interviewers can actually see what the interviewee looks like and stop them around the office.

————————————————— III. The Interview —————————————————

A. Building Rapport in Culturally Sensitive Areas or Areas with Cultural Barriers

Investigators want to have as much information and education as they can going in. Some companies have luxuries by the way they are structured. For example, at large firms, there are a lot of ethics and investigations professionals from around the globe to reach out to, to help educate interviewers, to be involved in those interviews (if necessary, male and female) depending on the subject matter of the investigation.

Sexual harassment is one thing that is frequently investigated. There are certain interview techniques utilized where gender comes into play that can help interviewers build rapport with the witness to extract the truth. If it is a sexual harassment claim raised by a female, interviewers would certainly want a female investigator present. Alternatively, if it is a male raising the claim, the preference is to have a male investigator present, probably one of each.

Again, skill sets matter. Relationship building is one of the key elements of investigations that involves talking to people throughout the organization, in the business, and in different disciplines. Much of what investigators do is convey difficult messages to people, such as telling people what they are allowed to do. At the same time, it requires a lot of hard work to ensure that what they

are trying to do does not look bad. Being firm but fair in communications, being able to say no without being a jerk, and having a savviness in communications—all of these characteristics are necessary in investigations and compliance overall.

Other top investigator skills are analytical thinking and planning. A lawyer has a lot of preparatory work to do before any site visit. The investigator must be an organized person and good with data. Anyone with a specialty in data analytics is prepared to handle the information load. Those from a litigation background are probably good at analyzing data. However, a great deal of information can be pulled from the hotline. It is great to have a data specialist collate such data and produce patterns and information for the investigation, which becomes much more efficient.

B. Interview Techniques

Before walking into an interview, the lawyer must figure out the flavor of the case, the elements of the claim, and know what is going on with the interviewee. Success in these efforts comes back to preparation. Sometimes, preparing an outline before talking to any witness does the trick. If the witness does not have a lot of information, the interview is short. For extended duration interviews, the lawyer should prepare a list covering all of the elements of the legal and factual issues in the situation. At the same time, it is important to not be too wedded to one’s outline. A lawyer should be willing to go off on those rabbit trails, if that is where the witness leads. The outline allows the lawyer to get back on track.

Just to that point, another key element to the interviewing technique is the ability to listen. It is asking a question, listening to the answer, and building off that. Lawyers need to be careful of the uncomfortable silence, when the interviewer is actually waiting for the interviewee to say the next thing. That is one of the techniques – to just shut up and listen. So much of what the interviewer will get is the key stuff that comes after the uncomfortable silence, when the interviewee just feels like they have got to get it out.

Interviewees cannot handle the silence. Lawyers call it “showing them your part.” Again, if there is a difficult witness who is not giving up anything, the lawyer should start writing without saying a word. This creates an uncomfortable silence. It is amazing what witnesses will give up to fill in that space. Do not be afraid of silence. Notice the body language of the witness, if he or she begins to twitch or something. As the investigator, just hang in there as this witness will soon crack.

C. Issues with Data Privacy

Professor Wheeler, who taught at South Texas College of Law Houston, used to say, “the person who is more prepared will beat the person who is more intelligent, all day long.” Being prepared and going through emails and other background documents in cross-border investigations is necessary. The investigator should also know where the firm’s IT systems are located, where the servers are located, and which servers go to which location. These are important considerations to navigate evolving data privacy regulations.

Lawyers need to know where data goes, where it is housed, and which jurisdictions are going to be implicated. After partnering with IT, the lawyer partners with HR, who provides the recommended interview list and the emails of the people who are on that list. An investigator’s name will come up in emails; it is always interesting when interviewees talk about their investigators— the lawyer—in their emails. The investigator can later ask “help me understand what you mean” by certain emails.

Partnering with HR and providing the recommended interview list allows the investigator to inquire into where these people are located and their citizenship. With data privacy concerns in Europe or other areas with changing privacy laws, this is important information to know ahead of time. Data privacy rules combined with local labor laws are quite complex. There may be times where the lawyers need to get consent from the interviewee to review their emails beforehand. In some countries, where the server sits determines whether review of emails must be conducted within the country. From an internal investigation standpoint, these requirements can balloon the costs of the investigation, requiring the lawyer to go to Europe to review thousands and thousands of emails, as review in the United States would be disallowed. Instead the investigator could conduct a review in a hotel room somewhere across the world or hire local counsel to do the review. The planning part of an investigation is, therefore, immense.

Some internal cross-border investigations may not implicate data privacy, but do not underestimate a disgruntled employee. For example, after some kind of remedial action, the interviewee or target is now attempting to take the company or lawyer to court in the local jurisdiction, alleging that the company and investigators acted improperly, implicating potential criminal statutes. Crossing the “t”s and dotting the “i”s early in any investigation becomes extremely

important. Preparation before the interview is critical; there is only one bite at the apple.

Data is crucial—if there is going to be a smoking gun in the investigation, it will be in the data. A lawyer will likely not break a witness down and get him or her to confess to the ultimate crime. Interviews typically are more complicated. The smoking gun may be found if the investigator is following the money trail or digging in emails, getting screenshots of text messages, or mapping the accounting trying to look at the reporting. Again, investigations have more than one step, and examining the data is the first step.

Also, the lawyer is likely using the data to build his or her questions, so it is imperative to obtain what information is possible before the interviews. Sometimes the lawyer has a lot of information and can ask questions based on that data. Sometimes it is better to ask the question first, let the interviewee answer, and then present the data, asking them to explain the discrepancy in what they just said. During the interview, the investigator is assessing the interviewee and trying to get a sense of how honest and credible the interviewee is; asking the easy questions first is a probative start to the interview. It is likely that a misbehaving employee will be opportunistic unless they realize they are caught. Those interviewees may start negotiating, or be willing to share who else was involved, or they may regret their mistakes, making admissions on the record. ————————————————— I V . P r i v i l e g e —————————————————

A lawyer could be investigating and uncovering something scary that the firm does not want to get out. Considerations of privilege now come into play. On the employment side of things, it is important to understand that companies use investigations as a defense against labor claims brought against the company. With that in mind, consider if it is necessary to separate allegations and issues into different investigations or reports. Ideally, the lawyer will not know what kind of surprises will be found during an investigation; he or she should aim to maintain the privilege.

When trying to implement disciplinary actions stemming from an investigation, everyone at the company wants to see the investigation report, and it can be easily overcirculated, breaking the privilege. Hence, not everyone will receive the actual investigation report. At the same time, the business still needs to be informed, and managers need to support such disciplinary action. So, the investigator should pick up the phone and have these conversations, providing the relevant details and answering questions so that the managers will be on board, rather than just willing to cooperate. Having a manager’s buy-in is important to the company culture and relationship building.

Jurisdiction matters when considering privilege. In-house counsel need to be cognizant of the jurisdictions that do not extend privilege to in-house counsel and about whether the scope of the investigation mandate needs to be expanded, as new allegations arise. For example, in Saudi Arabia, privilege is not necessarily extended to in-house counsel. The lawyer who is conducting the investigation needs to consider whether it is necessary to obtain outside counsel to ensure there is privilege for the local claims. If the investigation has started, the lawyer might have to go to India for example, where internal counsel has no privilege. In such cases, the lawyer has to turn the investigation over to external counsel. It is difficult to give those reins up, but the client comes first.

Privilege is something lawyers have to think about on the front end—for domestic or international investigations—because the lawyer cannot just proceed without privilege and then later try to put that genie back in the bottle. Make sure that before any investigation, if the investigator is not the privilege expert, then he or she is talking to someone who is.

Sometimes witness interviews are conducted by an attorney, and sometimes it is by an investigator working at the attorney’s

direction, such as HR or a compliance officer.

When that is the case, the attorney must

make sure his or her investigators utilize

a proper Upjohn warning 5 as part of their

introduction and have a way to memorialize it, such as a letter essentially stating the nonattorney is working at the direction of legal counsel to gather facts so they may render legal advice to the company, etc.

For in-house counsel, there is a rule that the in-house lawyer should not actually do the investigations as the attorney due to the concern about privilege. It is hard to know whether the in-house lawyer could give legal advice on the same matter that is the potential investigation. Avoid the risk by making sure the investigator is separate from the person giving legal advice. The in-house attorney will become very valuable again at that point in time.

To keep privilege, make sure that the investigation proceeds under privilege.

Privilege has to be documented. It is useful to have a process whereby the lawyer gets instruction from the client—usually a Vice President—asking the lawyer for help in an investigation requesting legal counsel on the issues and adding that the lawyer should feel free to use any resources at their disposal. Next, a letter is sent from the inhouse attorney to the internal investigator or an external investigator, if hiring somebody outside at the time. A letter to the investigator requesting help and giving notice that the investigation is under privilege is sufficient documentation of privilege. Of course, if the investigation is heading overseas, the lawyer must make sure that this whole process works in the destination jurisdiction. It also helps to bring counsel from overseas to do the reports there.

Assume that the investigation itself is not privileged. The investigation would never get ordained privilege in an HR case. Take this view with a grain of salt and talk to FCPA (Foreign Corrupt Practices Act) or SEC (Securities Exchange Commission) lawyers before going down this route. In employment cases, typically the company can use the investigation as a defense. So, in some practices, it is best to take the position that the investigation typically was not privileged.

Any legal advice from the lawyer coming out of the investigation would be privileged, which explains why the investigator

was separate. As an attorney doing the

investigation—and again, domestically, it is

important to give the Upjohn warning 6 —go

in with the warning on a printed piece of

paper and read it. Providing the warning ensures best practices, depending on how serious the lawyer is about making sure that the interviewees understand that he or she does not represent them. One way to handle this is to have a written version of the warning and have each interviewee sign an acknowledgement. Where there is a non-lawyer investigator and the company objective is that the investigation itself remain privileged, have the investigator acknowledge the warning as well. The more documentation, the better. The more established the process, the better. As an external investigator and as a lawyer, do not give advice or represent the lawyers in-house.

It is critical, after the mapped-out reading of the warning, to have the interviewee’s acknowledgement. It is generally unfavorable to have the interviewee sign a formal acknowledgment. The interview is a formal process. However, if the circumstances warrant it, good investigators are able to make it as informal as possible so to avoid the perception of an aggressive investigator persona. At the start of the interview, the person experiences the terror of sharing a room with someone he or she perceives as the “interrogator.” After the warning, make clear to the interviewee that this seemingly formalistic warning was not drafted just for him or her. Generally, try to convey to the interviewee that this is how the investigation will be conducted internally. It is better that interviewees be comfortable with the process as opposed to having them sign something that may freak them out even more, cause them to go into a shell, or walk out of the room.

It depends on what the company wants to do. The more relaxed the interviewer can make the situation—“it is not a big deal, we are doing this with everyone, the company is making me do this”—the better. If somebody is already terrified, producing a written warning in front of them with a blank signature block will go over poorly.

Another good practice is to have a second investigator (in addition to the main investigator) or somebody else to come along who can document everything, take notes, deliver the Upjohn warning, and serve as a witness. The roles of each person should be clear. In some cases, both parties may need to ask questions. There is an appropriate way to transition the other investigator into the questioner’s role.

It is helpful to explain the investigation process, as it relates to the interviewee. For example, “After this interview, if we don’t follow-up with you in the next month or so, it is fair to assume we don’t have any additional questions. The investigation is likely to be completed in the next month, and then the findings will be presented to a committee. At that point, disciplinary actions will be implemented, as needed, and those actions are kept confidential.”

It is helpful to stop and ask the interviewee if they have any questions. The investigator is aiming to make the interviewee relaxed, so it is helpful to start off with basic questions, like: “how long have you worked for the company, could you explain your role in more detail, what do you do in your free time, did you watch the game last night, etc.” Hopefully, this subtle chit chat will help develop rapport.

It is good practice to set a baseline for how an interviewee responds by having an opening conversation. Start off with easy questions, such as, “how long you have been at the company; what do you do; give me

some background about you.” Usually, even if nervous, interviewees are okay talking about themselves. Additionally, sometimes instead of answering the opening questions, the interviewee will just launch into what he or she knows or thinks the investigator wants to talk about.

Opening can be a tactic, as for example in interviewing the accused, ask “Did you touch her inappropriately, cause that is what I have heard.” Often times, the lawyer is going for the shock value, but it is rarely necessary. ————————————————— V. Jurisdictional Issues —————————————————

The technical aspects of data privacy create issues. Because certain jurisdictions have robust data privacy laws and enforcement policies, preparation, again, is key. In order to efficiently and expeditiously obtain the best advice pertaining to data privacy in different regions, the investigative lawyer must learn who to rely on and where resources are located. When there is a fast-moving investigation that will reach three countries, the last thing the lawyer wants to learn is that company servers are in a particular European country that has restrictive data protection regulations.

The lawyer needs to find out what they

can as fast as they can. However, he or she

should not hold out as an expert if not one, even when trying to learn at an accelerated pace. A lawyer should reach out to colleagues

and his or her network and get advice. Know

that if there is a misstep on data privacy, it puts the company in a world of hurt. Under the new General Data Privacy Regulation

(GDPR) 7 of the EU, damages for a breach of data. 8 Google faced proportional fines

in Europe recently for moving data around

inappropriately. 9 Lawyers need to avoid

negative consequences to company data, such as a purge or wipe by a third-party hacker, where data was not properly handled and the firm improperly exported emails.

It is most often the case that lawyers conducting investigations are terrified about data privacy. Some will go on record to say they don’t fully understand the topic and that it is complicated. Up and coming young professionals need to get to know the GDPR, which has widespread implications. Understanding this area of the law is advantageous.

Many countries are mimicking some form of data privacy. Because of rapid changes in this area of law, lawyers must

stay updated. Although changes emanate

from international governmental bodies, data privacy remains a big issue. Different U.S. states have different laws, and an

investigating attorney in California will

be facing privacy laws similar to Europe's

GDPR. 10

If a lawyer does not have a data privacy group at his or her company, he or she should check in with the groups that are handling data as a starting point. For instance, HR should be able to identify the actual location of confidential files, where they should be located, and whether there are secondary files being created. Having this conversation early enables the attorney to move data to its proper location and secure it with the right access.

Data privacy concerns do not arise solely with regard to data files. One of the greatest pieces of information in an investigation can come from hidden cameras. There are security cameras in all types of places. Occasionally when conducting an investigation, the attorney might partner with the firm’s internal security group. If they start humming “Bad Boys, Bad Boys,” pay attention. They will want to plant GPS devices on people’s cars and put hidden cameras in places where they should not. Spying on someone in a way where they have an expectation of privacy, even in the US, is a violation of the law with the potential to land the firm and the lawyer in a lot of trouble.

In addition, in the U.S., a firm cannot

require an employee to turn over a password to a privately held email or social media account. This issue is going to come up

during investigations. Firms in the U.S.

cannot put a hidden camera in the bathroom. For example, a client may have a situation going down in the bathroom without

knowing exactly who is involved or what

is happening. Consequently, the firm may want to put cameras in the bathrooms. This is not allowed because employees have an

expectation of privacy. 11

With regard to GPS devices, if it is a company vehicle, the firm must notify people that the vehicle is being tracked by GPS. If a firm tries to secretly add GPS, that could be an issue.

With regard to recording, some states have a requirement of two party consent

while others require only the consent of one

party. 12 If the company or the client has a

rule with regard to recording, the investigator must know how he or she can effectively

conduct the recording and make certain no one violates company policy. If someone in

an interview puts a cell phone on the table, they may be recording the interview and the investigator’s demeanor and professionalism.

Even if there isn’t a phone on the table, assume the interviewee may be recording the interview. There are cases where people’s phones have many blurry pictures from inside their pockets from the interview room. One of the things to tell interviewees is “I am NOT recording this conversation. The only way I record this is taking handwritten notes. I promise you I am not recording you and I would hope that you would pay me the same courtesy. If you are recording, you should let me know.” With this approach, the interviewee might still record, but at least the interviewer’s approach is on the recording.

Another approach is to delicately ask the interviewee if they are recording. It leaves the interviewee two options, lie on their own recording or stop recording the interview. If they stop the recording, make sure to extend appreciation and say, “thank you.”

If the interviewee shows his or her phone

as if it were shut down and says, “Look I am

not recording”, that is not definitive. There is a downloadable app that makes it look like a device is actually shut down. The app was

developed by Safe Workplace, LLC. 13 Before

going into the interview, there is a button that the app user can push and the phone goes blank, so that it looks like it is not recording and not on. This type of app allows recording secret conversations too, such as a meeting with the boss.

As a side note about recordings, sometimes an employee may utilize a recording to support a complaint they have lodged, which is now the basis of the investigation. Even in countries where it is criminally illegal to record without consent, employees may complain and cite a recording that is in their possession. The lawyer receiving that complaint needs to stop and consider what the recording is about.

With regard to investigation protocol, there are at least two steps. First, it is important to make sure from a criminal standpoint what laws might be implicated. Sometimes there is an issue with U.S. law, but there could also be criminality in a foreign context. So, the lawyer needs to check with local counsel about what laws are involved, how many jurisdictions’ laws are relevant to an investigation, and whether the laws are criminal or civil. Second, the lawyer has to then examine the data privacy issue. Checking with local counsel here is also important.

The question of expense often arises, in conjunction with conducting the investigation and receiving outside advice. Large, sophisticated organizations typically have a lot of internal resources in many locations, often with local counsel and sometime in-house counsel, sometimes external counsel, or both. Also, GDPR, in particular, has increased investigation costs compared to three years ago.

When beginning an investigation now, general counsel has to understand the day-to-day data privacy issues that must be addressed. Having data privacy counsel is ideal. However, it does not mean other members of the legal team do not need to know the basics. If a lawyer investigator cannot look at materials over the network, what must be done to examine those materials? Whether there is an internal resource or external resources in the country, there are a lot of different cost considerations in play.

Some firms only retain a data privacy officer and minimal staff. Firms should take data privacy issues seriously, especially if they have a European presence. Adding this component will affect the entire compliance program because resources are reallocated and moved around. Luckily the response so far has trended towards an increase in crossborder enforcement cooperation. ————————————————— VI. Global Responses to U.S. Enforcement Practices —————————————————

The success enjoyed by the U.S. pursuing large scale frauds is likely one, if not the main, driving force behind increased cross-border cooperation. Further, there is an abundance of money to be collected by governments successful in pursuing such prosecutions. For many years, the DOJ independently enforced violations of this nature, hoping to sway the global community to follow suit. Indeed, recently many other jurisdictions have recognized the value in pursuing corruption and the importance of its effect–promoting social justice. What remains to be seen is whether these drivers are as important to governments as the money collected as a result.

Enforcement authorities around the world continue to recognize and effectuate such laws, in turn reinforcing their cooperation with U.S. enforcement and regulators. They stand to benefit most by working cooperatively towards enforcement and avoiding quarrels with U.S. enforcement authorities.

and, by extension, global cooperation in this arena. Social media has heightened the public’s awareness of ethical issues and raised

consumer expectations for companies they

choose to purchase from. Regulators respond to these concerns. The Organization for Economic Cooperation and Development

(OECD) 14 out of Paris, coordinates an

annual anti-corruption summit attended

by law enforcement agencies from all over

the world, 15 described by a former US

prosecutor on a podcast as a gathering of

global regulators to learn from one another

and share information. 16 By all appearances,

these meetings create opportunities to

build relationships, work together on crossborder prosecutions, and ultimately foster cooperation. ————————————————— V I I . M i n i m i z i n g t h e Impact of Changes in Enforcement Practices —————————————————

With increased collaboration between countries come larger fines. Continued intragovernmental commitments to cooperate, to the extent such cooperation occurs, incentivizes further efforts by more governments, making it unlikely such cooperation will end. Given this reality, it is unclear how companies can minimize the impact of fines and penalties.

Historically, the approach to handling growing multinationalism, with respect to enforcement, has been the formation of international legal and compliance teams. Some investigative teams are primarily composed of former FBI agents and DOJ professionals based out of the U.S. Others still boast a more international network utilizing three investigators covering tri-spheres, for example, agents in the western hemisphere in addition to others focused on covering the eastern hemisphere. These groups are dedicated to internal investigations and all incidental work. Some companies have internal legal counsel around the globe, consisting of Regional Compliance Counsel (RCCs) and Regional Compliance Managers (RCMs) who sit in targeted areas around the world and consult with the company regularly. These advisors and managers also have a hand assisting with investigations. Investigators rely on them for cultural sensitivity data. In that way, the company feels it has better coverage than it might if instead utilizing purely U.S. investigators who parachute in only when crisis strikes. As such, internationally based teams represent a thoughtful and efficient way of positioning people so as to address needs as they arise.

While companies cannot control fines imposed after the fact, they are able to take a preventative approach from within the organization. In addition to the relationships between counsel and compliance, working closely with HR is invaluable. By ensuring the smaller issues are being addressed and checking in with them to see what is landing on their table, larger problems can be sidestepped or avoided altogether. Employees reach out to HR often, unsure about what to do in certain circumstances. These “smaller” complaints need to be addressed properly before they become a more serious issue. Additionally, proper handling of minor issues builds employee confidence in organizational ethical standards and legitimizes internal compliance programs. ————————————————— VIII. Conclusion —————————————————

Compliance teams are crucial because, properly run, they are capable of building organizational confidence that investigations and employee concerns alike are taken seriously. When there are consequences to actions, human nature dictates better behavior is likely to ensure, or at least, better empowers the relevant authorities to take action before significant impacts in the state of affairs are felt.

When employees are allowed to practice poor behavior and exercise bad judgment without repercussions, the fact that behavior persists, gets worse, or is adopted by others should not surprise. Although disciplinary actions are not shared, companies can implement training and lessons learned to help create more awareness of common mistakes and to reinforce the company culture and policies. These practices can be used in conjunction with disciplinary actions. This sort of collaborative approach hopefully will assist the business side of companies understand that compliance groups are here to help the business work through these issues.

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