#MeToo and Due Diligence: A Trillion Dollar Challenge

Posted by Andrew Borowiec on Jul 13, 2018 11:57:22 AM

metoo-and-due-diligence-a-trillion-dollar-challenge

IMDDA recently hosted a webinar, facilitated by Bloomberg reporter Simone Foxman and featuring Dan Schorr and Monica Monticello from Kroll’s Sexual Misconduct Investigations practice. They outlined some of the challenges you may face when doing due diligence for #MeToo issues and we have some of the highlights for you here.

Sensitivities

Due to the intensely personal nature of sexual harassment and misconduct allegations, they are a far more sensitive area to investigate than some of the other trending areas of due diligence investigations.

After all, discovering an organization you are looking to invest with has failings in its IT structures that present cyber security risks, whilst not desirable for the fund manager, are also not particularly embarrassing at a personal level or indicative of moral failing.

In addition to the sensitivity of the individuals who you are investigating, you also need to tread very carefully when speaking with alleged victims or witnesses, for the same reasons.

Tips:

  • Ask permission or notify the fund manager before conducting interviews with employees, former employees or those involved in previous litigation.
  • Build a rapport with interviewees before broaching the subject.
  • Offer anonymity to interviewees at the outset.

NDAs

Often, when litigation occurs, part of the settlement involves the victim signing an NDA that prevents them from discussing the details of the case with anyone after the fact. This can make things very tricky for the due diligence investigator, as the person cannot give you the answers you need, even if they were willing to do so.

Tips:

  • Read the terms of the NDA to see what information exactly is restricted by it.
  • Ask those bound by the NDA to comment at a more general level about the organization's culture, adherence to policy etc. as this is unlikely to be covered by the NDA and will give you a fair idea of what may have gone on, even if the details are denied to you.

Historical issues

Another challenge when doing due diligence on sexual misconduct is deciding how far back to take your investigations and how seriously to treat issues that happened some time ago. Whilst you don’t want to discount any evidence you find, there’s a degree to which you must assume that someone with red flags in their past but no recent issues must have changed their behavior.

Tips:

  • Bear in mind that firms with historical but not recent issues in the area are often the most diligent in applying robust policy and procedural measures to effect cultural change.
  • Take historical issues in the wider context of a firm’s lifespan or an individual’s career, a one off unsubstantiated allegation 20 years ago will carry very different implications from multiple successfully prosecuted lawsuits within the last 5 years.

International variations

When doing due diligence on sexual harassment outside the U.S. you face a couple of serious challenges. Firstly, public record is not as comprehensive or as open in other countries. Secondly, many cultures haven’t yet experienced the same awakening to the issues as the U.S. has, meaning that issues are not widely reported or taken with the same degree of seriousness as they are at home.

Tips:

  • Get a local to do the leg work. They’ll be more familiar with what is and isn’t available, plus they’ll be able to conduct interviews more easily.
  • Rely on media and source interviews more heavily, the latter being easier to obtain internationally.

For more tips on tackling the challenges in this emerging area of due diligence, watch the full webinar video recording here. You may also access the full survey report on sexual harassment by clicking the image below. 

Download IMDDA's Sexual Harassment and Due Diligence Survey Report

Image from flickr 

Tags: Due Diligence

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