In 2015 when the DOJ announced that it had retained a “compliance expert” to “provide expert guidance to Fraud Section prosecutors,” I called the move little more than a public relations move (see here for the prior post).
This March 2018 post checked in with the DOJ regarding its compliance counsel vacancy and mum was the word from the DOJ. The prior post suggested that if the position was that important it would have been filed after nine months, but then again it never was that important but rather a public relations move.
Last Friday in this speech Assistant Attorney General Brian Benczkowski formally announced that the DOJ has ditched the compliance counsel position and called it “shortsighted.” In addition, in his speech Benczkowski announced a new DOJ policy regarding corporate monitors.
Regarding compliance generally and compliance counsel position specifically, Benczkowski stated:
“[O]ne constant is that every case will at some stage require a deep look into the sufficiency and proper functioning of the subject company’s compliance program. As companies continue to grow in size, scope and complexity, and as international business becomes the norm rather than the exception, compliance is of ever greater importance in ensuring that companies operate efficiently and within the bounds of the law.
As many of our corporate enforcement policies make abundantly clear, from the 2008 Principles of Federal Prosecution of Business Organizations to the recent FCPA Corporate Enforcement Policy, compliance is an important factor we take into consideration in every corporate enforcement matter we review. In these cases, our prosecutors assess the compliance function both at the time of the conduct and at the time of resolution in order to reach a fair and appropriate resolution in cases involving corporate wrongdoing. As a result, our prosecutors and supervisors must have a strong foundational understanding of what constitutes an effective approach to compliance.
Previously, the Criminal Division attempted to address the need for this expertise by hiring a single compliance counsel who was housed in the Fraud Section. While this approach had its benefits, there are inherent limitations in having the locus of our compliance expertise consolidated in a single person in a single litigating section.
Even when fully briefed on a matter, a single compliance professional who has not been involved in a case throughout an investigation is not likely to have the same depth of factual knowledge as the attorneys who make up the case team. Nor can any one person be a true compliance expert in every industry we encounter. An effective, state of the art compliance program in the banking industry, for example, is going to look very different from one in the health care, energy, or casino industries.
Relying on a single person as the repository of all of our compliance expertise also is shortsighted from a management perspective. Anyone who holds such a job will inevitably and quickly feel a strong pull to the private sector. Their expertise is simply too valuable in this day and age. If and when that person departed, we would have to start from scratch and find a replacement. And that process undoubtedly would repeat itself every few years, with little long-term benefit to the Criminal Division. That is the position we find ourselves in right now.
Now, to be clear, I’m not suggesting that all or even most of our trial attorneys and supervisors lack compliance knowledge and experience. Indeed, it is just the opposite.
Our last compliance counsel spent considerable time training our attorneys and developing in-house knowledge and expertise among attorneys in the Division. That work was very beneficial.
Going forward, I intend to build upon this capacity and knowledge across every section in the Division that requires it, starting with Fraud and MLARS, where the bulk of our corporate enforcement activity takes place. We will accomplish this through a combination of diverse hiring and the development of targeted training programs.
When hiring in the Criminal Division, we will focus on building a team of attorneys who offer diverse skillsets. That means not just attorneys with experience as prosecutors and in the courtroom, but also those who bring compliance experience to the table.
In the context of corporate enforcement, having a trial attorney with experience litigating corporate cases paired with an attorney who has experience developing and testing corporate compliance programs allows us to leverage our talent, which should lead to better and more just outcomes.
Consistent with the Principles of Federal Prosecution of Business Organizations, our trial attorneys and supervisors must address a number of factors in each and every case as they weigh an appropriate resolution. It only makes sense to have the same attorneys evaluating all of those factors together.
I believe our prosecutors should consider the adequacy of a compliance program at the same time they are considering, for example, a company’s remedial actions or the timeliness of any voluntary self-disclosure. It makes little practical sense to outsource a separate review of the compliance program when considering the merits of a corporate matter. Instead, all of the Filip Factors should be weighed by the entire case team as part of a single, comprehensive review and determination of the right outcome.
As we move towards a workforce better steeped in compliance issues across the board, we also will need to increase training in this area.
Our expectation is that the Division will develop a training program that addresses compliance programs generally, as well as issues specific to each section and unit. As a result, more of our health care fraud attorneys who work on corporate cases will become experts in health care industry compliance; attorneys working on securities and commodities cases will become experts in compliance relating to securities laws and trading. We will take this same approach for attorneys who work on FCPA cases, or MLARS attorneys who do cases involving the banking industry. Ultimately, our goals are to ensure a balance of experience across the Division and to enhance the expertise of our trial attorney workforce.
We want to ensure that we build and maintain the capacity we need not just for today or next year, but for ten years down the road. And it will lessen the impact when people inevitably leave the Department to retire or follow other career paths.
Our renewed approach to compliance training makes good management sense, but also should be a plus for companies and defense attorneys that find themselves across the table from us. When negotiating a corporate resolution, we want to ensure that our attorneys can successfully navigate the difficult compliance and other issues that arise during these discussions, including whether the facts and circumstances of a particular case warrant the imposition of a corporate monitor.”
Regarding corporate monitors, Benczkowski stated:
“I know from personal experience that the issue of whether a monitor will be required is one of the most significant aspects of any corporate resolution. When the Criminal Division decides to impose a monitor, I believe we have an obligation to ensure that we have done so for the right reasons. We also have a continuing obligation to interact with the monitor and address any problems that may arise during the course of the monitorship.
Let me be clear, I think our attorneys have performed quite admirably in this area. But I also recognize that there is always room for improvement in our policies and procedures to ensure we are acting responsibly when we impose this significant, but often times necessary burden on a corporation.
Last year, Deputy Attorney General Rosenstein spoke at another …. event and proclaimed that the Department would be actively reviewing a wide range of existing corporate enforcement policies. Consistent with this directive, we have been reviewing our monitorship policies and procedures since my arrival.
As a result of that review, I’m pleased to announce that … I issued new guidance relating to the imposition and selection of corporate monitors in Criminal Division matters. The new policy memorandum, as well as my prepared remarks …, will be made available on the Criminal Division’s website.
The goal of the new guidance is to further refine the factors that go into the determination of whether a monitor is needed, as well as clarify and refine the monitor selection process.
Importantly, the new policy supersedes the guidance contained in the 2009 Breuer Memorandum regarding the selection of corporate monitors, but it does not replace prior guidance contained in the memorandum issued in 2008 by then Acting Deputy Attorney General Morford. Rather, the new policy supplements the Morford Memo.
As an initial matter, while the Morford Memorandum applied by its terms only to deferred prosecution and non-prosecution agreements, our new memorandum makes clear that the Criminal Division also will apply the same principles to court-approved plea agreements that impose a monitor.
Our approach to the new policy began with the foundational principle that the imposition of a corporate monitor is never meant to be punitive. It should occur only as necessary to ensure compliance with the terms of a corporate resolution and to prevent future misconduct. That approach is consistent with our longstanding practice of imposing corporate monitors as the exception, not the rule.
I recently reviewed statistics for the Fraud Section, and over the past five years or so, approximately one in three corporate resolutions involved the imposition of a corporate monitor. So, the overwhelming majority of our resolutions do not involve a monitor.
Our new policy explicitly recognizes that, “the imposition of a monitor will not be necessary in many corporate criminal resolutions, and the scope of any monitorship should be appropriately tailored to address the specific issues and concerns that created the need for the monitor.”
In making their determination, Criminal Division attorneys must consider a number factors, including the type of misconduct – such as whether it involved the manipulation of books and records or the exploitation of inadequate internal controls and compliance programs. Attorneys also will assess the pervasiveness of the conduct and whether it involved senior management.
Other factors consider any investments and improvements a company has made to its corporate compliance program and internal control systems, and whether remedial measures have been tested for the ability to prevent or detect similar misconduct in the future. Similarly, the policy takes into consideration whether the misconduct took place in an inadequate compliance environment that no longer exists.
Notably, the new policy also considers whether misconduct took place under different corporate leadership, and recognizes the unique risks and compliance challenges of the particular region and industry in which a company operates.
Finally, in terms of whether a monitor is necessary, the policy directs Criminal Division attorneys to also consider both the financial costs to a company, as well as unnecessary burdens to the business’s operations.
We believe this pragmatic approach to monitorships will ensure that we continue to carefully evaluate each case, based on specific facts and after a careful assessment of a company’s corporate compliance program at the time of resolution. This means not only determining whether the program is adequate on its face, but also how its effectiveness has and will continue to be tested.
The policy also addresses the selection process for corporate monitors.
I’m not going to get into all the details, but our goal here is to ensure that the process is fair, ensures the selection of the best candidate, and avoids even the perception of any conflicts of interest. For this reason, the Division’s monitor selection committee will continue to include an ethics official from the Criminal Division. We want to ensure that businesses and the public are confident in the selection process, avoiding any suggestion that monitors are chosen for inappropriate reasons, including personal relationships or past employment in the Department.
Finally, the policy recognizes that there may be unique circumstances that require a departure from the procedures contained in the policy. This may occur when working a case jointly with a USAO that may have different policies and procedures, in which case the policy provides for some flexibility, with any departures from the policy subject to certain approvals by Criminal Division leadership.
Ultimately, a monitor should benefit the company, its employees, shareholders, and the public by effectively furthering the goal of preventing and detecting future misconduct.
As I wrap up, I’d like to take a few moments to address the Department’s obligations after imposing a monitor.
I want to make very clear that once a monitor is selected and installed, our work at the Department is far from over. We take seriously our burden of ensuring that monitorships are being carried out properly and effectively. In particular, it is incumbent on our prosecutors to ensure that monitors are operating within the appropriate scope of their mandate. Monitorships should never be expanded or extended for any illegitimate reason.
While the contractual agreement is ultimately between a monitor and the company, we are here to act as a referee of sorts where needed, consistent with the governing agreement. If a company that is subject to a monitor encounters problems, they should feel comfortable approaching the Department. While we do not want to encourage frivolous claims, we absolutely want to know of any legitimate concerns regarding the authorized scope of the monitorship, cost or team size. If a company wants to raise its hand with an issue, we are here to listen.
We also are committed to meeting regularly to assess the appropriateness of a monitor’s recommendations, including whether the company appears on track to complete the implementation of recommendations.”
At the same event, Geoffrey Berman (U.S. Attorney for the Southern District of New York) delivered this speech focusing on the following issues:
- How we determine whether to seek appointment of a monitor;
- The factors we consider in selecting a monitor;
- How an entity might avoid the appointment of a monitor; and
- What, in our experience, makes a monitorship successful?
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