Congrats to the Red Sox: What is tone at the top?

by Thomas Fox
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The Boston Red Sox defeated the Los Angeles Dodgers Sunday night (and mercifully it was Sundaynight) to win the 2018 World Series Championship. They formally dethroned the 2017 champs Houston Astros with the win. For all you Red Sox fans out there I tormented earlier in the playoffs I will cop to being, as noted by Red Sox homer Jay Rosen, “No Nostradamus”. Another great Red Sox homer in the compliance realm is Doug Cornelius, who wrote in his Compliance Building blog, in a piece entitled Tone at the Top, “I will sound like an obnoxious Boston Sports Fan this morning.” Having been an obnoxious Astros fan for the past year, I can certainly appreciate one when I read one and my friend, you are an obnoxious Boston sports fan.

Yet Boston sports can well gloat and gloat they should for as Cornelius points out in his blog that for the city of Boston, it is 4 World Series titles in 15 years, and 11 world titles for Boston sports teams in the 21stcentury (3 for Houston if you count the MLS championships but who’s counting, as that would be obnoxious.) What Cornelius does remind the compliance practitioner in his piece is that it starts with the top of the organization. There is a reason you have perennial failures like the Cleveland Browns and perennial also rans (even if they are America’s Team), the Dallas Cowboys and their once arch-rivals, the Washington Redskins. Their owners just muck everything up by sticking their noses in the football side of the operation when they have no subject matter expertise in running a football team. What they do have expertise in is running a business but that is far different than running a sports team.

Weirdly all this obnoxiousness and concern with numbers inform today’s blog post, which is about CBS Corporation and its ongoing investigations around the #MeToo scandals involving its former Chief Executive Officer (CEO) Les Moonves, host Charlie Rose and former 60 Minutes executive producer Jeff Fager. In an excoriating New York Times (NYT) article by Rachel Abrams, entitled “CBS Inquiry Into What Went Wrong in Les Moonves Era Hits Snags as It Advances”, she details the miss-steps the company and its outside advisors made in regard to Moonves and the claims against him for sexual harassment. This led the company to hiring not one, but two “law firms, Covington & Burling and Debevoise & Plimpton, to conduct a companywide investigation. In addition to examining allegations involving Mr. Moonves and CBS News, the inquiry would also explore “cultural issues at all levels of CBS.”” This now makes four investigations that CBS had or has ongoing around this scandal.

This latest effort came after two investigations were made about allegations against then CBS President Moonves. The first one was initiated by two Board members and “came after Ronan Farrow, of The New Yorker, had started to look into allegations against Mr. Moonves.” It was led by Michael Aiello, a partner at the law firm Weil Gotshal & Manges. As James Stewart had previously reported in the NYT, “When Mr. Aiello reported back to the board about his interview of Mr. Moonves, he spoke of “rebuffed advances,” and said the company had nothing to worry about.”

A second investigation began in April, “when the corporate compliance and legal department of the CBS corporate arm retained the law firm Proskauer Rose to investigate Mr. Rose and the network’s news division.” However, “By the time the firm got started in the spring, four months had passed since the publication of The Post’s investigative article about Mr. Rose, who was fired by the network the day after the story appeared.” Unfortunately it was not communicated within the company as “Several members of the CBS News staff said they were surprised to learn about it when David Rhodes, the news division’s president, informed staff members in an email on May 3.”

It was led by “Bettina B. Plevan, a partner who specializes in labor and employment law” who had “defended the network against allegations of discrimination, retaliation or harassment in at least three lawsuits.” Moreover, the “CBS Corporation board did not coordinate with CBS News when it announced the current investigation on Aug. 1” which is being handled by the law firms of Covington & Burling and Debevoise & Plimpton. Within a few days, Ms. Plevan stopped work on the case, after handing her materials over to the firms in charge of the current investigation.

An interesting wrinkle is rising on the problem regarding Non-Disclosure Agreements (NDAs) and Confidentiality Agreements (CAs) for former CBS employees or those who have settled with the company for discrimination or harassment. Several witnesses are concerned that although “CBS provided written assurances that it would release them from the agreements” it was not clear from Abrams piece if formal releases had been granted. Further, in such agreements with persons with “more serious complaints” there were non-disparagement clauses for the individual men accused of harassment. CBS has not said whether it would indemnify the women from any lawsuits by such men as third-party beneficiaries of these non-disparagement clauses. In other words, the very executives who may have harassed them may be protected from having the witnesses talk to the law firms now heading up in the investigations.

All of this goes back to Cornelius’ point about tone at the top. The actions engaged in by CBS to settle any prior harassment claims were done under the air of the pre-#MeToo movement. That rarefied air has long gone. Yet the effects of that prior regime still linger as there appear to be both trust issues and legal issues preventing those who may have been harassed from speaking to investigators. This in turn may make it difficult for CBS to remediate what was clearly a toxic culture for women.

As for the Red Sox and their fans. Your team was clearly the best team in baseball this year with 108 wins and in the playoffs: winning 3-1 against the Yankees in the ALDS; 4-1 against the Astros the ALCS; and 4-1 against the Dodgers in the World Series. Enjoy it, you earned it.

A special shout out to Adam Turteltaub for his Dodgers, joining the only other 21stcentury back-to-back World Series losers, the Texas Rangers. Hang in there buddy.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Thomas Fox, Compliance Evangelist | Attorney Advertising

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