Succeeding across a Monitor’s Audiences

Introduction

It is a unique model: an unrelated, independent, private person, overseen by and responsible for issuing reports to a government agency or regulator, though paid for by the organisation, is tasked with reducing the risk of recurrence of an organisation’s misconduct. Although the monitorship is imposed at the same time as the entity is being punished for its prior misconduct, the role of the monitor is not to further punitive goals.^[2] Rather, it is to assess and recommend improvements to the organisation’s compliance programme.

One of the most common challenges faced in monitorships comes from the need for the monitor to fulfil these responsibilities at a time when hostilities may be elevated and trust is lacking among all parties. By their very nature, monitorships are imposed when the government does not trust the organisation to address or reduce the risk of future misconduct without direct oversight, and after what was likely years of costly, protracted investigations or litigation. The organisation has almost certainly spent years distracted from its core business and is unlikely to view the imposition of a monitor as a positive event. To add to this general feeling of mistrust, frustration and exhaustion, the organisation is reminded that this government-appointed monitor is independent, no privilege will attach to his or her work, the organisation’s cooperation must be full and forthcoming, and the multi-year costs associated with the monitor’s oversight must be borne by the organisation.

It is with this backdrop that the monitor must begin the task.

We define success in this challenging context as guiding the organisation to improve its compliance programme, assisting the organisation’s development and reinforcement of practical solutions and practices that reduce future risks, and ensuring the organisation’s compliance measures meet government expectations. One of the keys to success is creating an environment that enables these improvements to occur. Ultimately, we gauge success by whether the organisation, on completion of the monitorship, is in a better position to understand and control its own unique compliance risks and be a better corporate citizen, while also having avoided undue financial burdens and disruptions to operations.

This chapter provides insights regarding navigating the complex and delicate nature of the sensitive relationships among the parties to a monitorship, and the steps that can be taken to minimise and overcome the related challenges to increase the likelihood of a successful monitorship – one that will achieve the stated monitorship goals to each party’s satisfaction.

Laying the groundwork for success

In recent years, monitorships have been utilised in a variety of actions, including those involving alleged wrongdoing concerning (1) anti-bribery and anti-corruption,^[3] (2) anti-money laundering and economic sanctions,^[4] (3) export controls,^[5] (4) healthcare fraud,^[6] (5) environmental violations^[7] and (6) consumer-relief settlements,^[8] to name a few. Although 2021 was unique with respect to the absence of monitorships imposed by the US Department of Justice (DOJ) Fraud Section relating to the Foreign Corrupt Practices Act (FCPA),^[9] the DOJ recently reconfirmed its intention to impose monitorships as a compliance mechanism in all types of cases. As part of Deputy Attorney General Lisa Monaco’s revised DOJ monitorship guidance announcement on 28 October 2021, the DOJ reinforced its view that monitorships ‘can be an effective resource in assessing a corporation’s compliance with the terms of a corporate criminal resolution, whether a DPA [deferred prosecution agreement], NPA [non-prosecution agreement] or plea agreement’.^[10]

Regardless of the organisation, industry, sector, type of violation or government agency involved, it is essential that appropriate time and attention be given to laying the groundwork in any monitorship. Successful monitorships begin with identifying and selecting the best monitor for the job – an individual with a keen understanding of the goals of the monitorship, and the skills and experience necessary for achieving those goals. At the outset, and before jumping into the daily work of the monitorship, a successful monitor will work to establish trust and promote cooperation, set appropriate expectations regarding confidentiality and other sensitive issues, work hard to gain a thorough understanding of the organisation’s operations and concerns, and create a carefully tailored work plan with appropriate input from the organisation.

Identifying and selecting the monitor

Once the likelihood of a monitorship becomes clear, one of the most important steps is monitor selection. The need to choose a competent monitor seems obvious; however, selecting the right monitor is not without challenge. Since 2008, the DOJ has issued monitor selection guidance.^[11] The first published guidance, the Memorandum from Acting Deputy Attorney General Craig S Morford of 7 March 2008, specified that both the entity to be monitored and the government should first focus on selecting (1) highly qualified individuals (2) with no conflicts of interests (3) who ‘instill public confidence’.^[12] Although these criteria are critical, the monitor’s capacity to establish and facilitate ongoing, fluid, trusted communications among the parties, which we discuss in detail below, may be paramount.

It is axiomatic that every monitorship differs because of the individual circumstances involved. Those circumstances may relate to a variety of factors, including industry, subject matter, geographical scope, historical compliance backdrop, period of wrongdoing, individuals involved, complexity of the wrongdoing and current management, among other things. However, no matter the degree of individualised circumstances, a successful monitorship typically begins with the identification of a monitor who instils confidence. Frequently, initial confidence begins with identification of a monitor with a thorough understanding of, and practical experience in, the specific sector or industry involved. Understanding how business is conducted in a particular industry provides the basic groundwork needed to assess the functionality and effectiveness of the entity’s existing compliance programme and structure.

Beyond industry knowledge, it is helpful for monitor candidates to have a legal background so that they can successfully navigate the many legal issues that may arise during a monitorship, such as those surrounding privilege. To ensure seamless interactions with both the forensic accountants who will assist the monitor team and personnel from the entity’s various financial control functions, it is equally important to identify candidates with not just a compliance background but also a good understanding of accounting principles and effective financial controls. This is especially true where the subject matter of the monitorship will require substantial financial forensic analysis. To the extent that monitor candidates lack either the necessary legal or accounting background, at a minimum, it is essential that individuals with such experience be included on the monitor team.

Establishing trust at the outset

A successful monitorship does not just happen. At a time when trust is in short supply, success across all constituencies requires a significant amount of understanding and work. A monitor who possesses a good understanding of the sector or industry in which the entity is operating may be positioned to garner the initial confidence of the organisation but building and keeping lasting trust, by all parties to the monitorship, requires far more than basic industry knowledge.

At the inception of every relationship, including one that involves a monitor, an organisation and the government, expectations are being set. Although this process may involve unspoken messaging in some of our personal relationships, expectations in the three-way monitorship relationship should not be left to chance or potential misinterpretation. Proactively setting expectations and fostering open communication enables monitors to secure needed buy-in, trust and cooperation from the organisation, while clearly establishing that the monitor will not set his or her independence aside.

Setting expectations and navigating confidentiality concerns

A monitor must be independent of both the government and the entity being monitored. ‘A monitor is an independent third party, not an employee or agent of the corporation or of the Government.’^[13] Moreover, independence precludes an attorney–client relationship, or any form of an advocacy relationship, between the monitor and the organisation prior to, throughout and for a designated period following completion of the monitorship.^[14] Accordingly, there should be no expectation that communications between the monitor and the organisation will be protected by the attorney–client privilege.

Despite the absence of any attorney–client protection, the interests of the government and the monitor – that the organisation will meet its obligation to fully cooperate, produce requested materials and information, and engage with the monitor – remain. Conversely, in the absence of any attorney–client protection, the monitored entity’s concerns regarding protecting any privileged, commercial, business or proprietary information subject to the monitor’s work is likely heightened. Accordingly, albeit for disparate reasons, all parties share an interest in maintaining and protecting confidentiality throughout the monitorship. For that reason, frequently government agreements or court orders are drafted to provide some level of protection to the organisation, such as requiring that reports and other information provided or generated as part of a monitorship be kept confidential.^[15]

Building confidence in the monitor’s abilities and approach, and thereby laying the proper groundwork for success, requires ensuring that expectations regarding confidentiality and privilege issues are clear among all parties from the start. As such, it is critical to gain a thorough understanding of the organisation’s legal obligations with respect to maintaining confidentiality of various information, including obligations stemming from data protection regulations, blocking statutes, privacy laws and even certain employment or labour laws, and for the monitor and the government to be mindful of those obligations. Working with the organisation to find mechanisms that maintain confidentiality, comply with the numerous laws and regulations to which the organisation is subject, and also meet the expectations of the government agreement or court order, to the extent possible, can lead to immeasurable value in promoting cooperation.

Although honouring the need for confidentiality and compliance with laws and regulations is vital, it is equally important to ensure that the subject of the monitorship understands that communications to and from the monitor, documents and information provided to the monitor, as well as reports generated by the monitor, while afforded some confidentiality protections, are not protected by the attorney–client privilege or the work-product doctrine.^[16] To that end, a monitor focused on success across all constituencies will thoughtfully develop data collection requests and information gathering processes that ensure the monitor is given access to all information reasonably necessary to fulfil his or her duties without unnecessarily causing the company to risk the loss of existing privilege protections or placing the monitor in the position of potentially being compelled to produce the entity’s privileged materials.^[17]

The parties to the monitorship are far more likely to view a monitor as a success if he or she is always mindful that the goal is not to create unnecessary risks for the organisation or to put the organisation in a worse position, or to create litigation hurdles that the government will potentially have to address, but to reduce organisational risk, specifically to reduce the risk of future misconduct and compliance shortcomings.

Effectively using the work plan

Monitors are provided with guidance by the government on their remit, which will almost certainly require submission of periodic work plans. In this context, work plans are frequently like the initial steps in a compliance risk assessment conducted in the normal course of business (i.e., assessments that do not originate from an investigation or enforcement action). Beyond creating expectations for the stakeholders involved in the process – both at the entity and at the government – work plans have the ability to either instil or diminish confidence, as they evidence the monitor’s understanding of the scope. Though seldom discussed in this way, they can also be useful in avoiding the creation, or perception, of moving targets, and can be instrumental in preventing the creation of that most feared being – the runaway monitor. If handled wisely, the work plan, and the processes used to create it, offer unique opportunities to address some of the underlying mistrust between the parties and reduce potential resistance to the monitor’s efforts.

Most understand, and agree, that as part of laying the groundwork for a successful monitorship, the priority is investing time to understand the organisation’s business, customer base, compliance structure, governance model, management committees and relevant compliance personnel, in addition to understanding the underlying compliance deficiencies that resulted in the misconduct triggering the government action in the first place.

The process employed by the monitor to gather information regarding the prior wrongdoing is often what sets monitors apart. In most monitorships, efforts to gather background about the organisation and compliance structure do not prompt resistance or pushback. Requests targeted at this type of general information are expected. However, the moment the monitor informs the organisation of the need to understand the prior wrongdoing and underlying compliance deficiencies that triggered the government action in the first place, and the underlying compliance deficiencies that led to that wrongdoing, or the need to understand existing compliance-focused whistleblower allegations or investigations, concerns and resistance by the organisation frequently arise. Planning for these moments, and handling these concerns thoughtfully, can be the difference between success or utter disaster.

As a first step, identifying the basis for the resistance is critical. It is important to remember that the organisation has just been through years of costly investigations or litigation (or both), followed by what is likely to be years of costly disclosures and negotiations. Accordingly, assessing whether the company’s resistance is due to the fear that the monitor is seeking to reopen or reinvestigate resolved matters or, without any privilege protections, may be invading currently privileged space, rather than an unwillingness to cooperate, should be part of the monitor’s process.

Thorough and detailed work plans can assist in alleviating fears of moving targets or uncontrolled expansion of the monitor’s scope and potentially reduce resistance to the monitor’s efforts. In addition, it is helpful to establish the motivation for requesting information about the prior wrongdoing or current compliance-focused whistleblower allegations, including that the monitor is not inappropriately reinvestigating historical conduct or acting as a prosecutor, but rather seeking information that is necessary for developing improvements and achieving compliance going forward. Beyond alleviating certain fears, the inclusion of as many specifics as appropriate under the monitorship, such as projected work streams, projected data collection, timelines for critical events such as site or market visits, report drafting and review, and opportunities for the government and the organisation to provide feedback at critical junctures, will work to promote cooperation and trust from the beginning. Although it may seem challenging at first, building these types of processes and specifics into the work plan can prove invaluable.

Beyond the actual work plan, the process by which it is created, and the numerous interactions between the parties to the monitorship during that process, presents additional opportunities to build trust and reduce resistance. Expressing appreciation of the fact that the organisation may perceive the obligation to pay for the monitor’s work and oversight as an additional punishment, while suggesting it should also consider that this sunken cost, and the requirement to improve its compliance structure, also conversely presents a cost reduction opportunity. In other words, the work plan process can be utilised to encourage the organisation to find the value in the cost of a monitorship – an independent resource with significant experience and insights that can help improve compliance and serve as a mechanism for reducing future costs of non-compliance.

The work plan process further presents the opportunity to make clear that although the monitor’s task is to address and reduce the risk of future misconduct, this task is not to the exclusion of the organisation’s own insights. Although the monitor must ultimately determine the areas that should be included in the review, and understanding that the work plan is simply a guide and not a binding agreement with the entity, seeking input from the entity to be monitored during creation of the work plan can provide significant value to all parties to the monitorship. First, it focuses the monitor on issues with which the organisation is already struggling, without wasting valuable time or resources. Second, it allows the monitor to observe whether the organisation is developing the skills necessary to assess its own unique risks. Third, it enables the monitor to provide the government with information regarding high-risk areas without having to wait for completion of review cycles. In addition, seeking and respecting the organisation’s input helps the organisation see instant value relating to the costs of the monitorship, while also laying the foundation for trust and cooperation without compromising the monitor’s independence.

The need for ongoing commitment at all levels

Engagement by compliance personnel in the monitorship process typically occurs without request. It is expected that a monitor’s review of the effectiveness of the organisation’s compliance programme will necessarily involve personnel within the compliance or legal organisation. Continual engagement, including regularly scheduled meetings, with the organisation’s compliance or legal personnel provides critical efficiencies in the monitor’s review process, including assistance in tracking and gathering requested documents, scheduling market visits and interviews, and providing regular status updates. In addition, this direct interaction provides opportunities for internal personnel to observe, in real time, effectiveness testing of the organisation’s existing processes and controls, as well as a chance to gain an understanding of the root causes associated with compliance deficiencies and how best to develop effective remediation measures.

However, a successful monitorship requires engagement beyond the compliance or legal departments. Although compliance-related rules or controls may frequently be set by compliance or legal departments, culture is set from the top. An organisation with all the necessary and appropriate rules and controls will still fail if leadership is absolved from abiding by those rules and controls. Accordingly, setting expectations for commitment by board and senior management, from the beginning, is key to meeting compliance and monitorship requirements.^[18] Ensuring an organisation’s leadership is not only setting appropriate rules but is faithful to the rules that have been set, is essential to the monitor’s remit.

Balancing transparency and surprise

Although transparent processes that promote an organisation’s involvement in the path to compliance effectiveness, such as open communications with the board and senior management and opportunities for the organisation to provide input at various stages of the monitorship, lay a solid foundation for trust and cooperation, this transparency should not be without limits. Direct engagement must never be at the cost of independence. Effective monitor assessment also requires a certain degree of testing and observation of the compliance processes without advance warning to the organisation, so as to mitigate the possibility of results being skewed by efforts to prepare for assessments. Alerting the organisation that a certain amount of testing without warning may occur can prove helpful.

Handling disagreements

It should not be surprising that disagreements between the monitor and the organisation arise to varying degrees during the life of the monitorship. Some of the more common disagreements concern (1) the perception that the monitor is inappropriately reinvestigating historical conduct,^[19] (2) the organisation’s resistance to employee interviews, (3) the organisation’s view that the monitor’s recommendations are unduly burdensome, impracticable or expensive, and (4) the costs of the monitorship. From a practical perspective, assuming the data requests or proposed interviews are focused on understanding the existing compliance culture, implementation of controls, areas for improvement and overall compliance issues at hand, the monitor should not be deterred by the organisation’s resistance. However, as previously stated, establishing the motivation for requesting this information, including that the monitor is not inappropriately reinvestigating historical conduct or acting as a prosecutor, but that this information is necessary for developing improvements and achieving compliance going forward, is not inappropriate. The risk of disagreements, although not eliminated, can be reduced significantly by ensuring that clear expectations, such as those regarding scope, timeline and costs, are established at the outset. Preparing everyone for potential disagreements before they occur, and agreeing in advance on how disagreements will be resolved, will help to build a relationship of transparency and trust. It will also increase the likelihood that disagreements will be managed and resolved in a timely and cost-efficient manner and, perhaps most importantly, will not require escalation to the government.

In most circumstances, the monitor should try every avenue for resolving disagreements with the organisation before reporting or escalating issues to the government. Not surprisingly, there may be situations where despite best efforts, government involvement in the dispute cannot be avoided. Even in these circumstances, the monitor’s willingness to work with the organisation to attempt to find a solution before involving the government will go a long way to continuing to build trust between all parties.

Of course, attempting to resolve issues prior to government escalation is not always feasible or appropriate. In certain circumstances, the monitor is obliged to report to the government directly, without informing the organisation. For example, a monitor typically must disclose issues that put public health or the environment at risk, or involve senior management, obstruction of justice, criminal activities or otherwise pose substantial harm.^[20] In these circumstances, as with disagreements that cannot be resolved without government involvement, a monitorship agreement that lays out the role of the government in resolving a dispute, or reporting an issue, will prove invaluable.^[21]

Managing the monitor’s written recommendations

Because one of the most common disagreements between the monitor and the organisation concerns the monitor’s written recommendations, discussing this risk with the organisation at the outset and creating a process that minimises the disruptive nature of this type of disagreement is constructive.

While reinforcing the importance of independence and the monitor’s ultimate responsibility – to ensure that the organisation has an effective compliance programme – creating a process that allows the organisation an opportunity to provide feedback on the monitor’s draft written report and recommendations prior to submission to the government serves many purposes, including fostering continued trust and cooperation, reducing the risk of protracted disagreement and advancing the interests of all stakeholders. First, the process provides the organisation with an opportunity to correct misconceptions or potential factual errors on the part of the monitor and gives perspective to whether the monitor’s recommendations are feasible. The organisation may be able to present more practical alternatives that do not impose undue burden on the organisation or a needless drain on resources, though still achieve the monitor’s desired results. Second, the process provides the monitor with additional information for consideration in assessing the organisation’s progress, including assessing the organisation’s ideas for improvements – ideas that the monitor may not have considered. Third, and perhaps most importantly, this process is in keeping with the DOJ’s guidance^[22] and helps to ensure the government will receive a final report and recommendations that have been fully vetted and contain the most accurate and complete information. A process that offers the organisation an opportunity to provide input on the report and recommendations and obliges the monitor to give fair consideration to that input reduces the likelihood that the government will have to step in and resolve disputes or disagreements, which can also impede the progress and success of the monitorship.

Never losing sight of the monitor’s remit

The goal of a monitorship is not to control every potential issue that arises but rather to ensure that the organisation develops and implements the tools necessary to identify, appropriately investigate and promptly remediate compliance deficiencies, both during the monitorship and long after the monitorship is over. Regulatory breaches, challenges, mistakes, wrongdoing or operational failures may be identified during the monitorship that do not fit squarely within the scope of the monitorship. In such cases, while it may be tempting for the monitor to conduct a full-blown investigation, especially since the monitor will want to understand the root cause of the compliance deficiency, it is more in keeping with the goal of a monitorship to allow the organisation an opportunity to conduct and manage the investigation itself and apply the processes in place to address the deficiency. Assessing the effectiveness of the organisation’s compliance programme includes reviewing its response and the degree to which that response meets compliance expectations. Indeed, in certain circumstances where a brief delay is acceptable and in accordance with the terms of the government agreement, it may be appropriate for the monitor to give the organisation a reasonable amount of time to conduct the investigation in advance of disclosing it. This brief delay allows the monitor to focus on his or her true remit – to determine whether the organisation’s compliance processes were implemented in an effective manner for the purposes of adequately detecting, addressing and remediating deficiencies.

Avoiding a runaway monitor

A runaway monitor is one who causes the subject of a monitorship to incur unnecessary and excessive fees that do not further the goal of improving the organisation’s compliance programme. Mindful of the historical issues and need to reduce the future risk of runaway monitors, the DOJ has published various guidance on the topic. The DOJ’s Memorandum on Corporate Crime Advisory Group cautions that the need for a monitor should be assessed case by case and that an important consideration is ‘the cost of a monitor and its impact on the operations of a corporation’.^[23] Similarly, DOJ guidance regarding monitorships of state and local entities stresses the importance of being mindful of the costs associated with monitorships, noting that ‘every dollar spent on a monitorship is a dollar that cannot be spent [by the monitored state or local entity] on other policy priorities’.^[24]

Because no two monitorships are the same, the moment at which monitorship expenses become unnecessary or excessive cannot be easily defined. It is no surprise that the longer the monitorship, the higher the costs associated with it. For that reason, it is critical that the government determines what it believes represents a reasonable amount of time to put in place an adequate, sustainable compliance system and works those time limitations into the monitorship agreement. Indeed, including provisions allowing for early termination of the monitorship if the organisation meets certain benchmarks may be an effective tool for aligning interests and containing monitorship costs by appropriately limiting the duration of the monitorship.^[25] Once the monitorship is up and running, it is imperative that the monitor carefully considers cost issues at every stage and takes all appropriate measures to avoid requiring the organisation to spend resources that are not necessary to achieve the ultimate goal. A successful monitor is mindful of the fact that the role is not inappropriately to investigate historical misconduct nor to take a scorched earth approach in trying to identify any possible compliance vulnerability in all aspects of the organisation’s operations. Such an approach is well beyond what is needed to carry out the monitor’s mission and would impose tremendous burdens on the organisation in terms of time, money and disruption to its operations. Rather, the monitor should be focused on reducing the risk of recurrence of the misconduct that gave rise to the need for the monitorship in the first instance.

Conclusion

As the theme of this chapter suggests, a big part of setting the right expectations is to define at the outset what ‘success’ means in any particular case. Laying the groundwork for success encompasses a series of logical steps, such as identifying the monitor, setting the tone at the beginning, addressing confidentiality, building an efficient work plan and preparing the parties for inevitable disagreements. As explained in the chapter, the fact that the steps are obvious does not mean they are without challenge. A good monitor is constantly working to build confidence, across all constituencies, that he or she is up to the task – to guide the organisation to improve its compliance programme, to ensure that compliance measures meet government expectations, and to reinforce practical solutions and practices that reduce future risks. With the confidence of the government and the organisation, the monitor can build trust among the parties.

The monitor’s role is not to appease the organisation or abide by its desires, nor, conversely, to serve as an adversary to the organisation. The monitor’s role is to make the organisation better from a compliance perspective: simply stated, to assist the organisation in becoming a better corporate citizen.

Although there is no guaranteed process to prevent potential pitfalls in a monitorship, nor can any chapter address all the potential pitfalls the parties may confront during the pendency of a monitorship, the recommendations set forth in this chapter may help create a path to a successful monitorship – one that achieves success across all constituencies.

Footnotes