By: Mark Grider, Partner, Husch Blackwell
Mark A. Grider is a Partner at Husch Blackwell, a litigation and business services law firm. Grider is an experienced trial lawyer and investigator who has been involved with a number of high-profile matters in Washington, D.C., during more than 16 years in the federal government. For more information about Grider, click here.
How understanding the symbiotic relationship between investigations, compliance, and ethics (“I.C.E.”) will help you retake corporate culture.
A federal investigation or a regulatory action can consume an entire company. Even when the company is exonerated, tremendous damage is done. The investigation becomes the tail that wags the dog, fingers are pointed over who is at fault, employee morale declines, and performance suffers. Remember the legal battle that ensued when the rock band Queen accused hip-hop star Vanilla Ice of copying the bass line from the song “Under Pressure” in “Ice Ice Baby”? Think of it this way: By using I.C.E., or investigations, compliance, and ethics, programs proactively and positively, you’ll relieve your company of being “under pressure” by avoiding or being prepared to respond to a federal investigation.
I.C.E. Final by Mark Grider Approaching investigations, compliance, and ethics in a holistic manner prevent policies from being reactionary and, in fact, provides an opportunity for growth. By implementing the I.C.E. approach to corporate governance, letting ethics or ethos drive your culture rather than corporate catastrophes, you will stop the tail from wagging the dog. This, in turn, will elevate your company to a position that maintains integrity and prevents misconduct or immediately exposes the rogue employee engaged in misconduct. Thus, internal moral and external reputation can be enhanced by a strong I.C.E. program.
The I.C.E. Method’s purpose is to empower all executives, but particularly General Counsels and Chief Compliance and Ethics Officers, as they lead others in their company to combat possible fraud, waste, and abuse. The I.C.E. Method offers a holistic approach to corporate governance that views compliance and ethics programs, and the tools such programs utilize like internal investigations and internal audits, as an opportunity to lean in to vibrant corporate culture. Too often, compliance is just a cumbersome function that the rest of the company has to tolerate. Deployed properly, I.C.E. can expose opportunities for better performance, and better performance is a valuable commodity in any industry.
This article will highlight some of the current and persistent enforcement trends relating to I.C.E., including the False Claims Act (FCA), the Foreign Corrupt Practices Act (FCPA), and the Consumer Financial Protection Act (CFPA). These laws are broadly applicable. The I.C.E Method is particularly relevant as the Department of Justice (DOJ) continues to focus on Corporate Compliance. On February 8, 2017, the DOJ released its new “Evaluation of Corporate Compliance Programs” addressing key topics that the DOJ Fraud Section considers when evaluating programs during a possible investigation. All professionals, from the banking industry to higher education, can glean insight from their application in case law. The thematic overlap between each area of I.C.E. is evident and reflects the federal government’s preference for an integrated approach to corporate governance that is based on the symbiotic relationship between investigations, compliance, and ethics.
(Additional contributions were made to this article by Husch Blackwell Associates: Sylvia Bartell, Sarah Zimmerman, Mark Milton and Partners: Catherine Hanaway, Jeff Jensen and Matthew Schelp).