FCPA Compliance and Ethics Blog

November 29, 2012

His Last Bow: Sherlock Holmes and Embracing Chaos To Build Compliance Programs

Fittingly, we end our tribute week of the 125th anniversary of the appearance of the world’s great consulting detective, Sherlock Holmes, with a look at the final Arthur Conan Doyle short story in the Holmes oeuvre, His Last Bow. The story, written in 1917 but set in August 1914, is a spy story rather than a detective story. In it we find that Holmes is retired from his detective consultancy and is now a beekeeper but is also writing the definitive treatise on investigation. In the story, Holmes and Watson, now much older than in their heyday, have not only caught several spies in their return from retirement, but fed the Germans some thoroughly untrustworthy intelligence. Holmes then identified the security leak through which British secrets were reaching the Germans. In reference to the impending war, which is about to begin, Doyle penned the following dialogue between Holmes and Watson.

“There’s an east wind coming, Watson.”

“I think not, Holmes. It is very warm.”

“Good old Watson! You are the one fixed point in a changing age. There’s an east wind coming all the same, such a wind as never blew on England yet. It will be cold and bitter, Watson, and a good many of us may wither before its blast. But it’s God’s own wind none the less, and a cleaner, better, stronger land will lie in the sunshine when the storm has cleared.”

I thought about this final Holmes short story when I read an article in the November edition of Fast Company, entitled “Secrets of the Flux Leader”, where author Robert Safian engaged in an interesting discussion how of brilliantly managed chaos can lead to success in a wide range of companies and enterprises. If there is one thing about Sherlock Holmes his mind brought clarity to the chaos of a crime scene and all the attendant evidence, both real and imaginary. Safian, who coined the term “Generation Flux” in a previous article, explained “how the dizzying velocity of change in our economy has made chaos the defining feature of modern business.” He described Generation Flux people as those who will thrive best in this environment of rapid change. “It is a psychographic, not a demographic–you can be any age and be GenFlux. Their characteristics are clear: an embrace of adaptability and flexibility; an openness to learning from anywhere.”

Safian recognized that sometimes companies need rules and hierarchy but “Where hierarchy clearly fails the modern organization is in fostering and encouraging the creative ideas needed to stay agile in today’s networked world. The challenge for the Generation Flux leader, then, is to encourage creativity and agility while retaining the advantages of hierarchy.” He pointed to the example of retired US Army General Stanley McChrystal who “experienced a reinvention challenge of his own when the threat of Al Qaeda emerged and the U.S. military had to rethink its assumptions.” He quoted McChrystal for the following, “We thought we knew the rules, that we knew what it took to be successful. But the sport we had been playing wasn’t good enough for the sport we were required to be effective at.” Further McChrystal stated that “Against Al Qaeda, we had to change our structure, to become a network. We were required to react quickly. Instead of decisions being made by people who were more senior–the assumption that senior meant wiser–we found that the wisest decisions were usually made by those closest to the problem.”

Safian wrote that “the smartest leaders recognize that a new kind of openness to ideas is required. This is where hierarchy fails us completely. How can a leader make sure that all the options and ideas from the trenches make their way to the top? If you rely on a traditional suggestion-box approach–“Please send me your ideas”–you’re doomed to limit your inputs, even in a digital, social age.” He believes that this is inherent in the system because “Self-censorship is endemic wherever there is a whiff of hierarchy. People assume that their opinions aren’t really valued. At the same time, leaders also need to be open to letting others make decisions for them. In a fast-changing world, the boots on the ground–be they soldiers or salespeople, engineers or intelligence officers–often need to react without going up the chain of command for approval. What’s more, they need to be empowered to act, to solve problems they encounter unexpectedly. This kind of openness requires not just free-flowing information but a new kind of collaborative trust.”

Safian cited the example of Mark Parker, Chief Executive Officer (CEO) at Nike, who regularly walks the halls of the company seeking ideas from employees, by asking about projects they are working on at their desks. Parker found “a young designer showed the CEO a side project he was working on, exploring shoes that would match a barefoot running experience; Free is now a billion-dollar Nike franchise.”

Interesting, Safian compared Generation Flux to the difference between Newtonian physics with the change wrought by Einstein and the quantum physics revolution. In Newtonian physics, there is no greater goal than stability. He wrote that “That scientific conclusion helped us to embrace hierarchy and one-size-fits-all models.” Yet in the world of quantum physics “We now know that cause and effect is not a given in the natural world. Creation comes not from stasis but from unpredictable movement. Chaos is everywhere.” This is state of the business world today.

So what does this mean for compliance? First, the hierarchical model of leadership will not work, but more importantly “There exists no single model that leads to success.” This means that compliance leadership must be ready to throw aside previous assumptions and “embrace hierarchical top-down leadership and bottom-up systems.” But this requires time for reflection both by the leadership teams and those below who are on the ground. Companies must recognize the diversity in their companies on a global basis. Not everything can be accomplished by the corporate office in the US nor can everything be run from the home office, wherever that may be. Safian ended his article by stating that “”Deciders find it really hard to accept failure, but tinkerers and engineers are undeterred by it. Failure is part of the process. We can’t run from it.” Nor should we.”

So this brings me to my final post in the tribute week to my favorite character in fiction, Sherlock Holmes. I hope that you have enjoyed reading this week’s post as much as I have writing them. I end this week with His Last Bow as a fitting tribute to Holmes use of chaos to help him solve mysteries. On a superficial level, it may appear that Holmes solved the chaos around him to solve the crimes he investigated but I would submit that he embraced it and used it to push the art of detecting to new levels. Perhaps he even presaged Einstein.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2012

Sherlock Holmes as Teacher

We continue our exploration of all things Sherlock Holmes this week by considering Holmes as a teacher. In an article in Scientific American, entitled “Don’t Just See, Observe: What Sherlock Holmes Can Teach Us About Mindful Decisions”, author Maria Konnikova explored some of the ways that Holmes “insights into the human mind do more to teach us about how we do think and how we should think than many a more conventional source.” Her insights included that Holmes “teaches us to be constantly mindful of our surroundings”; he goes beyond seeing to actually observing; and teaches us to use our senses to increase our mindfulness.

I thought about Konnikova’s insights into Holmes while reading an article in the Corner Office Section of the New York Times (NYT), entitled “In Sports or Business, Always Be Prepared for the Next Play”, where Adam Bryant reported on an interview he did with LinkedIn Chief Executive Officer (CEO) Jeff Weiner. The article had many nuggets of wisdom from Weiner who talked about his journey to becoming the CEO of LinkedIn and some of the things he has learned along the way.

I.                   Be Prepared

The first thing is to be prepared; which Weiner expressed in the phrase “next play”. He came up with this from Duke University basketball coach Mike Krzyzewski who says it each time his Blue Devil team goes up and down the court “he doesn’t want the team lingering too long on what just took place. He doesn’t want them celebrating that incredible alley-oop dunk, and he doesn’t want them lamenting the fact that the opposing team just stole the ball and had a fast break that led to an easy layup. You can take a moment to reflect on what just happened, and you probably should, but you shouldn’t linger too long on it, and then move on to the next play.”

I thought about this statement in the context of something I touched on in yesterday’s post regarding Wal-Mart and this  was that the company started its initial Foreign Corrupt Practices Act (FCPA) investigation in a relatively routine audit of how well its foreign subsidiaries were complying with its anti-corruption policies. According to the NYT, “The review was initiated by Jeffrey J. Gearhart, Wal-Mart’s general counsel, who had seen news reports about how Tyson Foods had been charged with relatively minor violations of the Foreign Corrupt Practices Act. He decided it made sense to test Wal-Mart’s internal defenses against corruption.”

Indeed this was a similar scenario to the Watts Water Technology, Inc. (Watts) matter. In this enforcement action, the ball was put into motion when the Watts General Counsel (GC) became aware of an enforcement action against another company for unlawful payments to Chinese state-owned design institutes. This led to FCPA training for certain Watts Valve (Changsha) Co Ltd (CWV) management where allegations were disclosed. Subsequently, the company instituted an internal investigation and self-disclosed to the Securities and Exchange Commission (SEC). Watts paid a fine of $200,000, agreed to disgorge profits of $2,755,815 and paid prejudgment interest of $820,791.

In another context, I have previously written about Stephen Martin, of Baker & McKenzie, who urges compliance counsel to put together a 1, 3 and 5 year strategic plan which should be utilized as a road map for a compliance program in these time frames. Martin believes that such a strategic plan could well lead to the development of credibility for your company and your compliance program in the event of one of the aforementioned eventualities. In other words, “next play”.

II.                Culture and Values

Weiner spoke about LinkedIn’s culture and values. He defined culture as “who we are” while defining values as “the principles upon which we make day-to-day decisions.” He stated that the company’s culture has five dimensions: transformation, integrity, collaboration, humor and results. The company has six values which are “members first; relationships matter; be open, honest and constructive; demand excellence; take intelligent risks; and act like an owner. And by far the most important one is members first. We as a company are only as valuable as the value we create for our members.” Weiner recognizes that values are a subset of culture so that they are “inextricably linked”. He believes that the company’s culture and values help in several ways including recruiting, motivating, inspiring and productivity.

III.             Going Forward

Bryant ended his interview with Weiner by asking him “What career advice do you give to business school students?” While recognizing that Weiner’s answer was for a different target market than compliance professionals, nevertheless I found his advice highly practical for the compliance practitioner. First, you must have two things, passion and skill. In other words, to do compliance well you not only need the technical capacity but you should also be passionate about doing it. Second, you should endeavor “to surround yourself with amazing people.” Weiner believes that “in this more networked, interconnected world we live in, it’s just all about the people you work with.” This is not about having a mentor but it’s “about the people you work with and the people who report to you. It’s about everyone you’re associated with, day in and day out. Surround yourself with only the best you can find.” Lastly, Weiner said that you should always be learning. You should never lose your intellectual curiosity.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2012

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