A Guide to Compliance From the Bard

Next, we consider Measure for Measure. In the age of #MeToothis play has taken on a renewed and frankly disturbing existence. Seeing the play in the past year was a much difference experience for me than the 20 years or so ago when I last saw it. Once again while there are comic elements, largely around the switching out of partners in a bedroom farce and a marriage proposal to end the play, there are some dark, indeed very dark, parts in the middle of the play. These include demeaning and the debasement of the female protagonist Isabel, leading to what modern day critics see as a rape scene of Isabel.

The basic plot line is the Duke of Vienna leaves town ostensibly on a diplomatic mission but, in reality, goes undercover to see how the city fairs in his absence from his appointed Judge, Angelo, who will lead a moral crackdown. Claudio get his fiancé pregnant and although ready, willing and able to do the right thing and marry her, Angelo condemns him to death. Claudio’s sister, who is about to join a convent, goes to Angelo to plead for his life. Angelo offers to spare her brother if she will cede her virginity to Angelo. She refuses and says she will report his conduct and then is one of the most chilling lines in all of Shakespeare “Who will believe thee, Isabel?”

Measure for Measure informs #MeToo. In Bloomberg Business Week article, “How to Clean Up a #MeToo Mess”, Mary Pilon, details the story of Cynthia Marshall, the new CEO of the Dallas Mavericks, who was brought in to the organization after the devastating Sports Illustrated article detailed both sexual harassment and sexual assault by Mavericks senior management upon female employees. Some of her advice:

1. Own the mistake(s) but move forward. Cooperate with the investigators. Make clear there are new values and you are going to support them going forward.
2. Create supportive communities for employees. No company’s employees want to be known as the bribery company or the cheaters. This can be a powerful tool to help unearth unethical or even illegal conduct.
3. Make the new values clear.Continually drive home the message that unethical behavior will not be tolerated.
4. Do not be afraid to ask for help, both inside and outside.If you need subject matter expertise, go get it. Use the talent inside your organization as well.
5. Invest in talent. If there is talent that has not been brought forward do so now.

In this era of #MeToo, Measure for Measure may be more important than ever.

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Today, we consider The Winter’s Tale. In this play, King Leontes of Sicily and King Polixenes of Bohemia are old friends and Polixenes is about to return home after a six month visit to Sicily. Leontes wants him to remain longer and asks his wife to persuade him to stay. At this point the green-eyed monster of jealously takes hold of Leontes and he becomes obsessed with the idea that his wife has been unfaithful to him with Polixenes. He tries to have her killed but she escapes and so he puts her in prison where she gives birth. The baby daughter is taken away to the Kingdom of Bohemia and as you might guess she ends up falling in love with the son of King Polixenes. They return years later to Sicily and father and daughter are united and reconciled. The daughter also marries the son of King Polixenes, hence the confusion which makes this a Problem Play.

I thought of the difficulties of King Leontes when it comes to terminating a third party. At some point, you will be required to terminate a third-party and there will be multiple legal, compliance and business issues to navigate going forward. If you are stuck doing it in the middle of a Foreign Corrupt Practices Act (FCPA) investigation, there may well be some tension to do so and do so quickly. If you have not thought through this issue and created a process to follow before it all hits the fan, you may well be in for a very tough road.

The key theme in termination is planning. The Office of Comptroller of the Currency, OCC Bulletin 2013-29, said that regarding third-party termination, a bank should develop a “contingency plan to ensure that the bank can transition the activities to another third party, bring the activities in-house, or discontinue the activities when a contract expires, the terms of the contract have been satisfied, in response to contract default, or in response to changes to the bank’s or third party’s business strategy.”

In an article entitled “Breaking Up Is Hard To Do”, Carol Switzer related how to avoid pain by planning for the end of a third-party relationship. She said it all should begin with “an exit strategy, a transition plan or a pre-nup—whatever the title, it’s best to begin by planning for the end which, in the case of business at least, will always eventually come.

Although rarely considered, the termination of a third-party relationship can be as important a step as any other in the management of the third-party lifecycle. While having the contractual right to terminate is a good starting point, it is only the starting point. You not only need to have a compliance and legal plan in place but a business plan as well. If you do not, the cost in both monetary and potential business reputation can be quite high.

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Today, I round out the series by discussing the final play considered in this oeuvre, “Timon of Athens”. While the first four Problem Plays are most generally described as a play where the mask of comedy (not the mask of tragedy) ends the plays; i.e. everyone gets married at the end of the day, even though these were really not happy endings. They are not precisely tragedies either because of one or more comedic element. Usually in the middle is some very dark part, which tests the reader, play-goer or listener with some very difficult subjects. However today’s offering is a Problem Play for yet another reason – it does not seem to be finished.

First, the play was apparently co-written by Shakespeare with Thomas Middleton. Moreover, much about this play makes it seem unfinished including unexplained plot developments, characters who appear unexplained and say little, and the two epitaphs. “The Riverside Shakespeare” calls Timon of Athens “a poor relation of the major tragedies.” Finally, according to Nicole Gluckstern, the play “doesn’t appear to have ever been performed during Shakespeare’s time.”

The Foreign Corrupt Practices Act (FCPA) world is littered with cases involving freight forwarders, brokers and agents in the shipping and express delivery arena. How can a company respond to protect itself or at least reduce its potential FCPA risk with regards to a logistics company, freight forwarder or express delivery company?

James Min, former Vice President and Global Head of International Trade Law for Deutsche Post DHL in its Legal Department, developed a risk matrix for the freight forwarders/express delivery industry. In this Min analyzes risks by multiplying factors noted herein and thus scoring. The key in this approach is how often the Customs Broker/Express Delivery Service varies above the average for customs clearance times. If the percentage of customs clearance performance is so great that your vendors variance is above 100% most of the time, this could be a Red Flag that bribery or corruption is involved. This should lead to further investigation, due diligence, or asking questions of your vendor.

Timon of Athens did not seem to have a process in mind when he gave all his possessions away. In the forest, he could only seethe with rage and contemplate the destruction of his former city and friends. Creative uses of your own risk ranking tools will go a long way in determining your company’s FCPA liability. You must have a thoughtful process and document that process.

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I recently saw the performance of King Lear with Glenda Jackson as the mad king. It was a magnificent production and if you have the chance to see, I would certainly urge you to do so. The production had many interesting features and interpretations which seemed to be great entrees into several compliance topics. The play was directed by Sam Gold and it was scored by Phillip Glass but the star power was derived from Jackson as King Lear. It was a fabulous take on the story and one that will resonate directly to our turbulent times. Therefore, inspired by octogenarian Jackson and her performance, I am going to use King Lear as a deep dive into several compliance topics this week. Today, I want to use the nature of the production, to introduce the day’s topic of innovation in compliance.

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