In late 2022, FTI Technology announced its expansion into Switzerland, launching a full presence in the region and the addition of Jerry Lay as Senior Managing Director and country lead for the segment. With Switzerland serving as a gateway for international and EU business, and persisting as a highly regulated country with a competitive economy, multinational corporations doing business in Switzerland require strong support and programmes across information governance, privacy, compliance, disputes and investigations and other critical risk areas. In this Q&A, Jerry discusses these issues and his plan for serving clients in the region.
Jerry, as you look ahead to FTI Technology’s first year in the Swiss market, what are the key trends you see in the present environment and the year ahead?
Generally, corporate leaders have many issues to track heading into this year. Many organisations will grapple with issues including continuous economic uncertainty relating to inflation, the energy crisis, supply chain disruptions, the war in Ukraine, evolving sanctions and related conflicts, and challenges stemming from China’s matters with Taiwan and changing Covid policies.
These types of highly disrupted and turbulent environments are often accompanied by an uprise of fraud, misappropriation of assets, corruption, IP theft, etc., given that people may be motivated to take risks or engage in activities that lead to personal gain when under economic pressure or feeling a lack of loyalty towards their employers.
Additionally, hybrid working and the continuous shift to the cloud will cause the challenges of “protecting” company values to persist, especially within companies that operate under frameworks that were designed around on-site working models.
How do you think FTI Technology stands out as different in our ability to help clients tackle this difficult landscape?
When I started looking for my next career move, I was focused on finding an organisation that was centered on technology and was also truly international, where working together cross-jurisdiction would not trigger the need to negotiate inter-company issues. I also wanted to work at a firm that was expert-led and driven, i.e., clients turn to us for expert advisory, not only manpower. It was important to me that the firm also offered a dynamic in which forensic capabilities were strategically important to the firm, but not the only offering. It’s worth noting that some high profile cases FTI worked on as early as in the 1980s were some of the first-ever matters in which electronic evidence was admitted. So, it could be argued that FTI has defined this space (and personally, I feel that it has helped define my profession).
All this background about why I chose FTI points to the reasons why clients should turn to us for their complex challenges. We understand digital risk and can help our clients mitigate it, while also deriving insights from data. We can scale to invest in many unparalleled solutions, including those around emerging data and new media, as well as multi-jurisdiction, high-profile, large cases, where data volumes are unprecedented.
How does Switzerland — in terms of the types of client engagements, attitudes toward analytics, information governance and privacy sophistication, etc. — differ from other sub-regions within Europe?
There are several differences. Most notably, there is no typical e-disclosure or Second Requests in the Swiss legal system. Thus, digital forensics and e-discovery skills are sought after in the context of investigations. Consequently, the use of analytics is key on every project. In the early phases, analytics are essential to support getting insights earlier and faster (and to help with scoping the approach). At later phases of the project, they help provide assurances around completeness and quality control. This is somewhat more sophisticated in terms of widespread acceptance than in other regions.
Can you share any stories from past client engagements that provided interesting lessons learned?
I worked on a patent dispute between two pharmaceutical companies that was extremely interesting. My client at the time was a generics manufacturer, and due to a court injunction, was prevented by the patent owner from entering the market with its generic product for six months. In the meantime, the opponent passed on the drug information to its own generics manufacturer, which went on the market and was listed by the regulator on the reimbursement list.
In the ensuing patent dispute, it was eventually ruled that the client did not infringe on any patents, and hence, should have been allowed onto the market, possibly as the first product on the market with the larger reimbursement share. The opponent filed a counter lawsuit claiming the client would not have been ready to enter the market as claimed.
This case became a large e-discovery project, spanning multiple jurisdictions and corporate functions, including research and development, production, market entry, marketing, etc. A key goal was to find evidence that the client was in fact ready to enter the market with its own generics version of the product by the date specified in the suit. The catch was that had we only followed the parameters of the court’s e-disclosure order (which was based on custodians, systems/data sources and keywords) we would not have found any documents pre-dating the specified date.
Using concept clusters, we found that there was another product in proximity. Upon a closer look, we found that the client had used a different internal product name for the product at the early stages — a name that was not in the search terms.
The big lesson learned was to build a methodology that applies analytic functions, even when this is not explicitly given by the e-disclosure orders (or investigation plan on other cases), in order to establish extra checks and balances on the data. Doing this can be a great source of uncovering tangible and often “unexpected” value-add information.
Given that you work on such complex and high-pressure matters, how do you lead teams so everyone can solve problems and stay on course together?
Generally, I try to have a very collaborative and inclusive leadership style, as I strongly believe people perform much better when they are fully on board. I also believe we need to start practicing early, so I tend to involve people early on, even in tasks that are usually “exclusive” to more senior people.
Is there anything you’d like to share about your life outside of work?
My two boys keep me busy (and young!). Also, I’m a bit of a nerd in the sense that I can’t cope with half-knowledge, so I read a lot and there is almost an obsession about not just knowing, but understanding. Outside of work and parenting, I like going to concerts, movies and musicals, and I used to be a passionate Salsa dancer (Cuban!).
The views expressed herein are those of the author(s) and not necessarily the views of FTI Consulting, its management, its subsidiaries, its affiliates, or its other professionals.