The primary goal of an internal investigation is usually figuring out what happened, including whether a law or policy was breached, and, if it was, by who, where and when. Recent statements from the DOJ and other enforcement authorities make clear that answering those questions is not enough: a company must also determine why
something happened. The process of getting to why is commonly called a “root cause analysis” but the term is often bandied about with little rigor. In this article series, we attempt to bring more structure to the topic. In this first article, we look at DOJ expectations about performing a root cause analysis in order to earn settlement credit when resolving an FCPA issue as well as what, exactly, a root cause analysis is. Additional articles will explain how to perform a root cause analysis in more detail, including what questions to ask and more advanced approaches companies can take when they look for patterns across investigations. See “Outside Counsel Perspectives on Key Steps in Internal Investigations
” (Jun. 10, 2020).