Future of Corporate Monitors

DPANo company wants a corporate monitor. If you ask any General Counsel, Chief Compliance Officer or Chief Executive Officer, they can list an infinite number of alternative punishments they would rather suffer than have a corporate monitor.

The idea of a corporate monitor is a good one. If you ask a company after the corporate monitor departs about the experience, many will tell you that the company benefited from the monitor. Of course, this really depends on the situation. Apple has been at war with its corporate monitor, and I suspect they would not say positive things about the experience.

Corporate monitors as a reform mechanism began in the early 2000s. The idea behind it was simple – a court-appointed monitor could oversee internal corporate reforms, improve governance and compliance, and build a culture of ethics and compliance. As a means to prevent future violations, a corporate monitor was believed to be a very effective tool.

Unfortunately, companies complained of abuses, and Congressional allegations of favoritism riddled the initial assignment of lucrative corporate monitor assignments. Nonetheless, the institution survived and monitors continued to be used in resolving criminal and regulatory cases.

Legal and ethics and compliance staffs often welcome corporate monitors, notwithstanding the opposition of senior management. Why? Because the corporate monitor will insist on prioritizing various tasks and functions that legal and compliance professionals have been seeking for years. Legal and compliance will see their pet projects suddenly rise in the corporate to-do list. Corporate monitors have a way of making sure adequate resources are assigned to legal and compliance functions, and that they are given the tools to ensure company compliance.monitor

It is ironic that a company’s governance structure has to go through a costly criminal investigation, pay a hefty fine, suffer serious reputational damage, and then have a corporate monitor appointed to ensure that the company’s board and senior management team devote adequate time and attention to ethics and compliance. If only a company would devote the attention and resources up front, then it could avoid the costly and damaging experience of a government investigation and settlement.

Recently, the head of the Justice Department’s Criminal Division stated that the Department would reduce the number of deferred prosecution agreements or DPAs. That statement does not mean that there will be fewer corporate monitors. Instead, I expect that the Justice Department will insist on more criminal guilty pleas, along with comprehensive settlements, similar to those now included in a DPA, which will include appointment of a corporate monitor for a period of 18 months.

Under a criminal guilty plea, the hammer over the company’s head will not be a resumption of a deferred criminal charge but will be the possibility of a violation of  probation. The Justice Department has demonstrated that a company, including heavily regulated financial institutions, can plead guilty to a criminal offense and continue to operate. As a result, heavily regulated companies no longer can argue that they should be given a DPA instead of a criminal guilty plea.

dpa4In recent years, in response to criticism of corporate monitors, the Justice Department has cut back on the usual term of assignment. For years, the monitor was appointed for a three-year term. The last FCPA settlement with a three-year monitor was Total in 2012. Since then, corporate monitors have been limited to 18-month terms.

Whether the trend will continue, DOJ has to preserve its discretion to appoint a three-year term in appropriate cases. It is not hard to envision situations where a three-year term would be required (e.g. Siemens-type cases).

Depending on the extent of remediation and reform that is needed, corporate monitors have to be given sufficient time to bring about real and lasting change in a company’s culture, its ethics and compliance program, and surrounding controls and operations.

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