A. General Principle: In matters where a monitor is imposed pursuant to a corporate resolution with the Department, prosecutors should ensure that the monitor’s responsibilities and scope of authority are well-defined and recorded in writing. Corporate resolutions imposing monitors should specify the monitor’s mandate. At the beginning of such a monitorship, Department attorneys should ensure that a clear workplan is identified so as to establish a consensus among the corporation, monitor, and Department as to the expectations for the scope of the monitor’s review.

B. Comment: During the term of the monitorship, Department attorneys must remain apprised of the ongoing work conducted by the monitor and in communication with both the monitor and the corporation.

Department attorneys should receive regular updates from the monitor about the status and progress of the monitorship. Monitors should promptly alert Department attorneys if they are being denied access to information or personnel necessary to conduct its work. Prosecutors should also regularly receive information about the work the monitor is conducting to ensure that it remains tailored to the workplan and scope of the monitorship. In reviewing information relating to the monitor’s work, prosecutors should consider the reasonableness of the monitor’s review, including, where appropriate, issues relating to the cost of the monitor’s work.

In certain cases, the Department may determine, in its discretion, that the term of the monitorship agreed to by the parties is longer than necessary. For example, a corporation may demonstrate significant and better-than-anticipated improvements to its compliance program, which would negate the need for continued oversight from a monitor. In other cases, the corporation may be acquired by another corporation with an established, robust compliance program that is provably extended to the acquired corporation. Conversely, the Department may determine in other cases that it will be necessary to extend a monitorship beyond the initial period agreed to by the parties—for example, where additional or more pervasive misconduct is identified subsequent to the entry of the resolution, either by the monitor or through other means.

In cases where a corporation seeks to shorten or terminate the monitorship based on acquisition by another corporation, prosecutors should not presume that the underlying concerns that prompted the need for the monitor are automatically resolved. The acquirer must demonstrate that there have been meaningful, sustainable changes to the corporation’s personnel, compliance programs, and culture that have been embedded in the corporate culture and framework and have demonstrably reduced the chances of future misconduct.

[added March 2023]