Edited by Paul Lomas and Daniel J. Kramer, Oxford University Press, New York, N.Y. 728 pages, $150
An oft-debated question in the corridors of corporate governance is whether commercially developed countries outside the United States will imitate the apparent preoccupation of U.S. public companies with corporate internal investigations.
The answer is not self-evident. Many non-U.S. business leaders have watched in total bewilderment as U.S. public companies have encouraged whistle blowers to report problems, hired independent law firms to investigate them, and then confessed wrongdoing to the SEC, the Department of Justice, or other governmental authorities. At the moment, many business leaders are wondering with great attentiveness whether this feature of corporate governance will, or will not, take root elsewhere. Some are inevitably hoping that the whole “internal investigation” phenomena goes away completely or, if not, stays well within the United States.
Recent events, however, seem to be conspiring against such a hope. Most notably, the subprime crisis has placed enormous pressure on companies around the world with regard to asset values, stock price, or in some cases mere survival. Sophisticated observers know that illegal activity – particularly in the areas of financial reporting and corporate governance – typically do not start with dishonesty but with adverse business pressure. There is every reason to believe, therefore, that the subprime-related issues of the last 18 months are going to give rise to a new generation of corporate malfeasance.
It may turn out, therefore, that the timing is propitious for this new book published last month. Entitled “Corporate Internal Investigations: An International Guide,” it is the first comprehensive treatise on the conduct of worldwide corporate internal investigations. It is a text that almost anyone involved in a corporate investigation will find invaluable.
That is all the more so because of the extent to which investigations, regardless of the location of a company’s headquarters, increasingly have taken on an international dimension. Gone are the days in which corporate investigators can simply interview executives and accountants at headquarters and call it a day. These days, executives and financial personnel are likely to be scattered almost anywhere – the United Kingdom, Ireland, France, Belgium, Singapore, Malaysia, you name it. It is a rare investigator, no matter how worldly, who has memorized the legal environments and cultures of pretty much every commercially developed country on earth.
And the challenges of a worldwide investigation are significant and the perils many. For what may be commendable investigative effort in one location may be criminal wrongdoing in another. For example, in the United Kingdom, the collection of employee documents is expected and supported by a legal regime that places significant capability to do so in the hands of an employer. In other countries, particularly those with histories of oppressive governments, the law is precisely the opposite. In some, to collect and transport information from an employee’s computer, even where that computer is company-owned and contains company data, could land an investigator in prison.
It is precisely these kinds of perils that book editors Paul Lomas and Daniel Kramer, partners in the United Kingdom’s Freshfields and the United States’ Paul Weiss respectively, seek to take on. The basic structure of the text lends itself to the practical needs of the task at hand.
The book opens with an overview of international investigations and a discussion of investigative issues that highlights differences among various nations. From there, the book concentrates on investigations within the borders of those commercially developed countries in which investigative activity is most likely to take place. The book thus includes extensive discussion of the practicalities of investigation in the United States, the United Kingdom, the Netherlands, Germany, France, Spain, Italy, Hong Kong, and Japan.
It is a singular virtue of the book, particularly one written by lawyers, that it is not preoccupied with the law. True, the legal concepts are important, and helping the reader avoid violations of law is one of the book’s main goals. But the book’s focus is not on law but on the practicalities of an investigation and how to get the thing done as effectively and efficiently as possible. Thus, for example, each geographic section opens with a discussion of the country’s regulatory regime so that the reader can understand exactly what kind of governmental forces he or she will be dealing with. From there, each section takes on such practical and timely topics as the mechanics of self-reporting, public relations strategies, document collection and preservation, attorney-client privilege, handling employees, and litigation risks.
All in all, the book’s practical approach, comprehensive sweep, and exquisite timeliness – not to mention, at 728 pages, its enormous heft – will render it an invaluable tool as the phenomenon of corporate internal investigations takes over the world.
And the logic behind the book’s insights makes many of its observations almost irrefutable. In fact, in the entirety of its text, only one statement stands out as particularly worthy of second-guessing. That is its observation that, when an internal investigation is necessary in the United Kingdom, “There is no fundamental reason why, if it is decided to retain an external adviser to lead the process, that adviser has to be a law firm.” What kind of heresy is that?
Michael R. Young is a partner at Willkie Farr & Gallagher and the author of “Accounting Irregularities and Financial Fraud” (2006).