An investigative journalist implicates the company. An auditor threatens to resign. Premises are raided by enforcement agencies. Not all investigations are created equal and in a recent talk given at the General Counsel and Compliance Strategy forum, Ankura professionals Lorynn Demetriades and Alecia Futerman shared real-life case experience, which tested the mettle of in-house legal and compliance teams, the board, and their advisors. In case you missed the session, below is a helpful recap of the key takeaways for building resilience in to the investigation process.
In high-stakes matters, everything from initial response to methodology and designing meaningful remedial measures, requires strategic consideration to ensure productive and sustainable outcomes for the business. General Counsel and Heads of Compliance play pivotal roles in guiding organizations through these critical situations and a key challenge is how to recognise a high-stakes/crisis-mode investigation when it arises.
Below are some of the common characteristics, and while these are not exhaustive, if one or more are present, that interplay typically tips a ‘textbook’ investigation into crisis mode:
- Intense media scrutiny, e.g. via investigative journalism, a data leak, or whistle-blower
- Significant share price impact, e.g. a short-seller report or delayed audit
- Business continuity concerns, e.g. involvement of senior leadership; material negative financial impact to a business unit/subsidiary/operation
- Lack of control or information, e.g. reputational concerns within the supply chain; investigation is reactive to regulators/enforcement bodies/auditors
- Potential outcomes are unclear, e.g. misconduct in an unfamiliar or unpredictable jurisdiction; investigation is evolving day to day; criminal or civil liability is looming and uncertain
Recent cases that were made complex by the issues mentioned earlier include one where the public's opinion deteriorated due to accusations of bribery, and another where an auditor's inquiries led to a pause in their work, causing financial reporting to be delayed. Lorynn and Alecia also discussed success stories from clients who managed the delicate, but critical task of remediating in a state of crisis, including leveraging the investigation to drive meaningful change.
The following are the key takeaways shared with the audience:
- Mitigating public relations issues is crucial when investigations unfold in the public domain. Being able to articulate a decisive and thorough response to allegations of misconduct provides credibility and ‘breathing space’ while the investigation takes its course. It is also helpful to have a dedicated team or external support that is separate, but informed by, the investigation team so the investigation is not distracted or delayed by communications management.
- Strategic intelligence gained through media monitoring, network analysis, and deep understanding of relationships with local authorities and government can be critical in reclaiming control over the narrative and informing both the publication relations (PR) response and legal strategies.
- When auditors suspend their work, it can trigger a cascade of repercussions, including financial implications and reporting obligations when financial statements are delayed. Swift, independent support is imperative to providing reassurance to the auditors and investors, and having already identified trusted advisors (e.g., legal, accounting, PR) will prevent unnecessary delays.
- When senior management is implicated, especially members of the executive leadership team and/or the board, it places severe stress on the investigation. It is important to have defined roles and responsibilities if critical decision-makers are unable to participate in the investigation.
- Never waste a crisis to effect changes within the organization and it is never too early to leverage the investigation’s findings and recommendations to remediate. Root cause analysis, honest reflection, and engagement with management on organisational challenges, and thorough risk assessment are important to this process and should filter through to improvements and sustainable change.
In conclusion, successfully managing crisis-led investigations demands strategic foresight, proactive communication, and collaboration across internal and external stakeholders. Ankura supports organizations in conducting swift and thorough investigations across a variety of issues including complex fraud schemes, regulatory enforcement, auditor enquiries, cross-border issues, and allegations of serious workplace misconduct. We bring a multidisciplinary team with decades of experience and insights which compliment legal and PR advice. For more information on how we can help, reach out to the authors or access our website for further details: https://ankura.com/solutions/forensics-and-investigations.
© Copyright 2024. The views expressed herein are those of the author(s) and not necessarily the views of Ankura Consulting Group, LLC., its management, its subsidiaries, its affiliates, or its other professionals. Ankura is not a law firm and cannot provide legal advice.
