DOJ Releases New Memorandum on Standards and Policies for Retention of Corporate Compliance Monitors: The New Memorandum Emphasizes the Need for a Careful Weighing of Costs and Benefits by Prosecutors Before Seeking the Imposition of a Monitorship in Connection with a Corporate Criminal Settlement

Sullivan & Cromwell LLP - October 22, 2018

On October 12, 2018, the U.S. Department of Justice (“DOJ”) Criminal Division released a memorandum (dated the previous day) on standards, policy, and procedures for the selection and appointment of corporate compliance monitors in connection with deferred prosecution agreements, non-prosecution agreements, and plea agreements with corporations entering into resolutions with the Criminal Division. The memorandum, signed by Assistant Attorney General Brian Benczkowski, is the first significant published guidance relating to the retention of compliance monitors from the DOJ in eight years and is the product of the DOJ’s recent review of the monitor program. Although the Benczkowski memorandum largely incorporates and restates prior guidance relating to specific procedures for the selection and retention of monitors, the “principles” articulated at the outset of the memorandum appear to reflect a renewed focus by the DOJ on the costs and burdens associated with, and the process for, the appointment of a monitor (including both monetary costs and disruption to company operations). The memorandum indicates that the DOJ will opt for a monitor only in the exceptional cases in which the DOJ determines that the company has deficient compliance procedures and controls and that the benefits of a monitor’s appointment outweigh the associated costs and burdens.