In 1657, mathematician Blaise Pascal commented in a letter to his church leaders "I have made this longer than usual because I did not have time to make it shorter." More than 100 years later, another Frenchman, Napoleon Bonaparte, offered a similar remark to his valet as he prepared to head out for battle. "Dress me slowly," he said, "I'm in a hurry." The irony of the quotations makes people smile, but few quibble with their underlying truthfulness. Often, the more in a hurry you are, the more you need to slow down.
Over the past six weeks, businesses across the country have been in a hurry. Sales leaders are rushing to find innovative ways to preserve revenue in the face of a shuttered economy courtesy of COVID-19. Contracts Managers are dusting off terms and conditions they had all but forgotten about prior to the pandemic. HR teams are figuring out how to deal with unplanned furloughs and/or layoffs. And in-house counsel are working nonstop to make sense of an endless stream of new statutes, executive orders, regulations, directives, and guidelines from federal, state, and local officials.
With all that going on, who can afford to slow down? I submit the better question, however, is "who can afford not to slow down?"
If there is one thing businesses have learned from past crises and emergencies it is that, without fail, they leave a trail of audits, investigations, and lawsuits in their wake. The Persian Gulf War of the 1990s, the Afghan and Iraqi wars of the early 2000s, the Wall Street Bailout of 2008, and the H1N1 public health emergency of 2009 all presaged such a trail. And we already can see the enforcement authorities readying themselves for the end of the current emergency.
- Attorney General Barr directed all federal prosecutors "to prioritize the investigation and prosecution of Coronavirusrelated fraud schemes."
- Deputy Attorney General Jeffrey Rosen directed each U.S. Attorney "to appoint a Coronavirus Fraud Coordinator to serve as the legal counsel for the federal judicial district on matters relating to the Coronavirus, direct the prosecution of Coronavirus-related crimes, and to conduct outreach and awareness."
- Various U.S. Attorneys offices already have taken up the call by standing up their own COVID-19 prosecutorial task forces.
- The federal Office of Inspector General community is gearing up for a fight. The HHS OIG already rolled out a dedicated online portal focusing on COVID-19 fraud.
- The Pandemic Response Accountability Committee ("PRAC"), made up of 21 inspectors general from across the federal government, now has a leader and is ready for action.
- Congress stood up a five-member Congressional Oversight Committee to oversee CARES Act spending, and increased funding to the Government Accountability Office to the same end.
And, of course, there is the brand new Inspector General focusing specifically on the pandemic recovery effort, the Special Inspector General for Pandemic Recovery (SIGPR). SIGPR will be housed within the Department of Treasury and has been given a $25 million budget and subpoena authority to root out fraud, waste, and abuse.
But this all represents just one part of the enforcement equation. Whistleblower law firms have begun circling just waiting for their chance to swoop in at the first whiff of blood. One well-known whistleblower attorney recently had this to say to a reporter: "When trillions of dollars are involved, the potential for fraud is almost endless. . . ." You can practically hear the drool. The National Whistleblower Center has announced a Coronavirus Accountability Campaign. It has called upon the Attorney General to launch a Coronavirus fraud task force and on Congress to pass legislation enhancing whistleblower protections and increasing whistleblower incentives.
Sadly, trying times do bring out the worst in some people. And few would argue that oversight is important — perhaps even more important — in times of crisis. But we all know that the nets the enforcement community cast entangle wellintentioned actors as well as bad ones.
These entanglements often are followed by a CEO, General Counsel, or Board member asking the following question: "How did we not see that coming?" Everything seems so obvious in hindsight. Compliance gaps are clearer. Internal control inadequacies are obvious. Problematic personnel stare you right in the face. You (and your employees, shareholders, and customers) are incredulous that you could have been so blind. But when you're running a mile a minute, single-mindedly focusing on the needs of your customers, it's easy to miss what seems obvious in hindsight. Which is why taking a moment to "slow down the scene" and think is a worthwhile endeavor.
Think about what, you ask? Anything and everything. But primarily, about how your actions today will look to those sitting in judgment tomorrow.
Obviously, it would be wonderful if we could hop in our time machines and take a peek at how our actions will be viewed — and judged — weeks, months, or years down the road. Alas, unless we are Michael J. Fox (and I recognize I'm dating myself with the Back To The Future reference), such a journey is unlikely. But some very smart people in the social sciences have developed a way to convert some of that hindsight into foresight. It's called "prospective hindsight," and Sheppard Mullin's Organizational Integrity Group uses it to help clients solve problems before they materialize. We do this by slowing down the scene, if only for a moment, and conducting what author Gary Klein has dubbed a "premortem."
Most of us are familiar with a post-mortem, the process through which doctors determine why a patient died. Over time, the term has come to describe any after-the-fact effort to glean "lessons learned" from a (usually) unsuccessful project.
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Originally published Sheppard Mullin, May 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
