The ACi spent a very enjoyable evening in the esteemed company of Freshfields lawyers, and Albert “B.J.” Stieglitz, Assistant Chief, Fraud Section, Criminal Division of the US Department of Justice. BJ has previously completed a secondment to the UK Financial Conduct Authority and is currently on secondment to the UK Serious Fraud Office.
Following extensive research by Freshfields into the root causes of investigations, the assembled panel included Steve Young, CEO ACi, Holly Insley, Senior Associate, Freshfields, Katie Palms, Senior Associate Freshfields, and BJ. The panel was chaired by Ruby Hamid, Counsel, Freshfields.
Matthew Bruce, Partner, welcomed delegates and explained that the panel had wide experience in international enforcement. Ruby then asked the panel about their views on compliance and root causes. BJ explicitly recommended taking compliance into account as the strength of a company’s compliance and governance programmes impacts all stages of investigations.
The panel discussed why organisations should look at root causes, while BJ mentioned that the DOJ has recently published updated guidance on how corporate compliance programs can be evaluated. The panel picked out a couple of themes – very technical areas and strong personalities – which repeatedly come up investigations. BJ said the 2019 DOJ guidance explicitly emphasises culture. He said there are three aspects to look at – is the governance structure designed effectively; is it implemented effectively; and does it work?
ACi’s CEO Steve Young said he had experienced cases where language barriers had a huge impact, and it wasn’t only different languages but also technical-speak that can derail an investigation. Steve said that when dealing with investment bank traders he has used technical translators to help unpick the jargon.
The panel then went on to discuss how an organisation’s Speak up Culture can impact whether or not whistle-blowers will come forward. The main reasons whistle-blowers may be reluctant to come forward are a sense of fear or futility. Steve mentioned that the treatment of witnesses and whistle-blowers is very important and investigators need to be sensitive as to how a whistle-blower may perceive an investigation. He said the ACi is developing training programmes to help investigators develop their interviewing skills.
The panel discussed ways in which organisations can put in place their lessons-learned reports. They talked about culture and governance audits, keeping an eye out for the number of reports the organisation is getting (remembering that no reports is not necessarily a good thing – it could mean that everyone is afraid to speak up about issues). Investigators need to stand back periodically and spot trends in their organisation.
As both BJ and Katie Palms are US lawyers (Katie being dual New York and English law qualified) the panel then discussed the difference between investigations in the US and the UK. BJ mentioned that although he has worked for different agencies, they all have the same goals – accountability, justice for victims, and reliable and safe jurisdictions which are free from corruption. He talked about how investigations are often interconnected and how much investigators can learn from each other.
Ali Sallaway, Freshfields partner, closed the discussion with some final remarks about the role corporate investigators can play in helping their organisations to spot trends and address any cultural issues.
After the panel debate, delegates continued their discussion over drinks and canapes in the Freshfields building. Many delegates picked up on Steve’s mention of forthcoming ACi training programmes, and we plan to issue further news on this and other ACi events shortly.