These four topics can jump-start the discussion with your team of stakeholders to increase your company’s cross-border investigation readiness
“In preparing for battle, I have always found that plans are useless but planning is indispensable.” - Dwight Eisenhower
Much like military campaigns, cross-border investigations are inherently complex, driven by unique facts, shifting priorities and necessarily shaped by local terrain. Both also require decisive leaders ready to make quick decisions and lead large teams. And, just as there is no way to predict every aspect of a battle, there is no one-size-fits-all cross-border crisis plan or a fool-proof cross-border investigation checklist. General counsel cannot possibly predict and plan for all of the unexpected pitfalls bound to arise in a complex, dynamic cross-border investigation, but they can take steps to anticipate likely issues so that they are not caught flat-footed.
The most crucial step is to engage in a planning exercise with key stakeholders that accounts for the company’s structure, priorities, geographic footprint and operational risks, and that clearly identifies the internal and external assets available to protect and defend the company. Create a core list of cross-border issues the company likely will confront to plan for the identifiable challenges but, more importantly, discuss how your team can work together to respond quickly, efficiently and creatively to unexpected pitfalls. Ultimately, preparation—not a cookie-cutter plan—will help make your company mission-ready for the next cross-border crisis. Below are four key topics to jump-start the discussion with your team of stakeholders to increase your company’s cross-border investigation readiness.
1. Know where your troops and their records are located. Know where they can get into real trouble and identify problems early.
Companies are constantly re-organizing, changing third party suppliers, working with new customers and acquiring and divesting of assets, all while operating in shifting regulatory regimes. An accurate and up-to-date map of the company’s business units, where they are located, who they do business with and where the business records are maintained is an invaluable tool that allows in-house counsel to determine:
- What laws govern or impact how the company operates?
- Where does the company need to develop credible local legal assets? How active are local regulators?
- If there is a problem, what laws will impact the company’s ability to investigate and resolve it?
- How will applicable employment and privacy laws impact the company’s ability to speak with or discipline employees?
- Does the company have local IT assets and data privacy advisers for real-time IT capabilities?
Knowing where your company does business, what limitations may be present due to local regulations and which regulators are likely peeking over your shoulders is invaluable. Just as military tactics may vary depending on the terrain, investigating conduct related to business operations in China will require different investigative tools than in Brazil, Russia or Germany.
2. Allocate and deploy your cross-border assets and budget efficiently.
In today’s world of limited compliance and legal budgets, it is not feasible or advisable to prepare for investigations in every country around the world. To maximize a company’s cross-border investigation readiness, it is important to understand where your greatest risks are, prioritize the defense of the company’s key assets and develop a risk-based monitoring strategy. Do you have a business unit too big to fail? A fledgling business unit key to future growth? A new venture in an emerging market known for anti-corruption issues? A new product launch?
Knowing your company’s strategic plan and corporate priorities is fundamental to effectively prioritize the deployment of company resources needed to protect key assets around the globe. It is not possible to predict where a cross-border problem will strike first, but it is possible for a company to be more nimble and better equipped to defend the key business assets in the jurisdictions most likely to be “hot-spots.”
3. Identify the assets needed to support a cross-border investigation.
Cross-border investigations by their nature require a cross-functional, efficient, coordinated team capable of facing unexpected and inevitable challenges, such as employee issues, data complications, forensics, financial reporting and communications, to name just a few. Establishing relationships with IT, compliance, regulatory specialists, human resources, accounting, communications and investigative counsel will help in-house counsel pull together a rapid response team in a cross-border crisis and avoid many common investigation start-up delays. For example, given the complexity and volume of e-data in today’s global economy, prior identification of internal IT specialists with the knowledge, skills and understanding of jurisdiction-specific restrictions regarding how information may be reviewed, transferred or possibly disclosed a cross-border investigation scenario will likely save the company valuable time and money. In today’s enforcement environment, the fewer the complications at the start of the investigation, the better the chances of setting the right internal and external tone and increasing the company’s chances of minimizing direct and collateral damage.
4. Huddle with your lieutenants and “table-top” a cross-border investigation. Integrate the lessons learned into company practices.
There is no substitute for practice. Simulate the chaotic first few days of a cross-border crisis and mock-exercise to get a cross-border investigation off the ground. Huddle with the key stakeholders in your organization to identify and discuss mission critical tasks, what is needed to accomplish those tasks, and any known hurdles. Take note of and fix any weaknesses in the system. For example, does human resources have a standard informed consent agreement for data collection? Do your whistleblower hotline procedures have the language capabilities for all relevant jurisdictions? How do cross-border issues currently come to light in your organization? Assign areas of responsibility so that the team can work together efficiently in the event of a real crisis and develop the relationships that will be needed to support a cross-border investigation. Put together a list of possible experienced and practical outside advisors whom you could tap in the event you identified a problem.
As Benjamin Franklin once noted, “By failing to prepare, you are preparing to fail.” When supporting your multi-national business, don’t let the unexpected issues in a cross-border crisis catch you or your team off guard. Planning today will streamline your investigations of tomorrow
Originally appeared in InsideCounsel on April 13, 2015