Deputy Attorney General Announces Changes to the DOJ’s Use of Independent Corporate Monitors

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Treliant Takeaway:

During the past half-decade, Treliant has been appointed to undertake and manage several of the major independent corporate monitorships, compliance audits, and independent consultancies that have been initiated by federal and state financial regulators and law enforcement.

Among the agencies that have selected Treliant include the U.S. Department of Justice, Securities and Exchange Commission, Federal Reserve, Comptroller of the Currency, Federal Deposit Insurance Corporation, and New York Department of Financial Services.

The projects have included assessments of global trading activities, compliance with anti-money laundering (AML), anti-fraud, and Office of Foreign Assets Control (OFAC) laws, securities laws compliance, evaluation of global bank’s internal control systems, and compliance with retail mortgage lending disclosures and control systems.

Treliant can assist companies in avoiding a potential monitorship by providing trusted advisory services that examine the strength of the firm’s compliance program in addressing AML, anti-fraud, and OFAC laws, securities laws compliance, internal control systems. Further and separately, Treliant has the expertise and independence to undertake an independent monitorship should the need arise.

Report Highlights:

On October 28, 2021, Deputy Attorney General (“Deputy AG”) Lisa O. Monaco delivered the keynote address to the American Bar Association’s 36th National Institute on White Collar Crime outlining her she priorities and describing three new actions that the Department of Justice (“Department” or “DOJ”) is taking to strengthen the way the government responds to corporate crime.

Of particular note is the Department’s renewed emphasis on the use of independent corporate monitors.

In Deputy AG Monaco’s remarks she notes that in recent past “some have suggested that monitors would be the exception and not the rule” and “[t]o the extent that prior Justice Department guidance suggested that monitorships are disfavored or are the exception, [she] is rescinding that guidance.”   Deputy AG Monaco noted further that  DOJ is now “free to require the imposition of independent monitors whenever it is appropriate to do so. . . .”

In determining whether the imposition of a monitorship is needed, prosecutors will look at a monitorship as a tool to use to ensure that a company is living up to its obligations under the deferred prosecution or non-prosecution agreement (“DPA/NPA”).

Deputy AG Monaco further noted that the decision on whether to use monitors must also consider how the monitorship is administered, how monitors are expected to do their work and the continued importance of independence and the elimination of “even the perception of favoritism.”  She noted that the Department will study how it selects monitors and whether standardization of that process should be used across all divisions and offices within the Department.

In closing her remarks, Deputy AG Monaco noted a number of key points. Of relevance here is:

  • “Companies need to actively review their compliance programs to ensure they adequately monitor for and remediate misconduct – or else it is going to cost them down the line.”
  • “For clients negotiating resolutions, there is no default presumption against corporate monitors. That decision about a monitor will be made by the facts and circumstances of each case.”
  • “Looking to the future, this is a start — and not the end — of this administration’s actions to better combat corporate crime.”

Recent Treliant Publications:

Selecting a Corporate Monitor

How to Drive Success Under a Monitorship


John P. Carey

John Carey is a Senior Managing Director with Treliant. He is an accomplished banking executive and attorney with an extensive mix of business, regulatory, legal, corporate governance, compliance, and management experience. He has led teams at major consumer financial services companies, at a national law firm as a…