Will the DOJ’s Changes to Guidance Surrounding Monitorships Impact You?

At the American Bar Association (ABA)’s 36th National Institute on White Collar Crime on October 28th, 2021, Deputy Attorney General Lisa Monaco discussed the shifts in the Justice Department’s priorities and guidance under the Biden administration.

Among other things, Monaco addressed revised guidance surrounding monitorships.

Independent monitorships, normally established as a result of Department of Justice (DOJ) enforcements or agreements, have been a hot topic of debate from administration to administration. They can be costly and time consuming for companies, yet help the DOJ free up resources and ensure that it is not letting a company off too easily or without fully addressing the issue at hand. Historically, monitorships have been employed to oversee compliance programs in only the most serious of cases to implement strict, structured requirements; and to ensure that specific areas of concern are addressed.

Up until Monaco’s keynote address, the most recent guidance from the DOJ had come in 2018 from then-Assistant Attorney General Brian Benczkowski, whose memo stressed that monitors should be imposed as the exception, not the rule. Monaco walked back this guidance in her speech, stating “to the extent that prior Justice Department guidance suggested that monitorships are disfavored or are the exception, I am rescinding that guidance. Instead, I am making clear that the Department is free to require the imposition of independent monitors whenever it is appropriate to do so in order to satisfy our prosecutors that a company is living up to its compliance and disclosure obligations.”

Monaco also announced that the DOJ will be re-evaluating the selection of independent monitors, including how to standardize the selection process across all divisions and offices.

As the new administration prioritizes monitorships, it is important to ensure that you are actively reviewing your company’s compliance programs and internal controls, and that you are adequately monitoring for and remediating misconduct. When evaluating potential monitors for your company, make sure to consider whether the monitor has expertise in your industry and if their services are scalable to your specific needs and circumstances.

Anchin’s Regulatory Compliance and Investigations (RCI) team, led by Anchin Principal and former Inspector General for the State of New York, Brian Sanvidge, has experience completing monitorships for organizations with revenues between $3 million and several billion dollars. To check the robustness of your company’s compliance programs and internal controls, read more about Anchin’s monitorship capabilities, please review our monitorship one-pager and feel free to reach out to Brian Sanvidge or your Anchin Relationship Partner with any further questions.