Page 82 - U.S. FOREIGN CORRUPT PRACTICES ACT

A Resource Guide to the U.S. Foreign Corrupt Practices Act. Second Edition.

party who assesses and monitors a company’s In civil cases, a company may similarly be
adherence to the compliance requirements of required to retain an independent compliance
an agreement that was designed to reduce the consultant or monitor to provide an independent,
risk of recurrence of the company’s misconduct. third-party review of the company’s internal controls.
Appointment of a monitor is not appropriate in The consultant recommends improvements, to

all circumstances, and a monitor should never the extent necessary, which the company must
be imposed for punitive purposes, but it may be adopt. When both DOJ and SEC require a company
appropriate, for example, where a company does to retain a monitor, the two agencies have been
not already have an effective internal compliance able to coordinate their requirements so that the
program or needs to establish necessary internal company can retain one monitor to fulfill both sets
controls. DOJ’s guidance provides that, in of requirements.

determining whether to impose a monitor as part The most successful monitoring relationships
of a corporate resolution, prosecutors should are those in which the company embraces the
assess (1) the potential benefits that employing monitor or consultant. If the company takes the
a monitor may have for the corporation and recommendations and suggestions seriously and
the public, and (2) the cost of a monitor and its uses the monitoring period as a time to find and fix

impact on the operations of a corporation. 402 In any outstanding compliance issues, the company
evaluating the potential benefits of a monitor, can emerge from the monitorship with a stronger,
prosecutors consider, among other factors: long-lasting compliance program.
(a) whether the underlying misconduct involved
the manipulation of corporate books and records
or the exploitation of an inadequate compliance Factors DOJ and SEC Consider

program or internal control systems; (b) whether When Determining Whether a Compliance
Monitor Is Appropriate Include:
the misconduct at issue was pervasive across
the business organization or approved or • Nature and seriousness of the offense
facilitated by senior management; (c) whether the • Duration of the misconduct

corporation has made significant investments in, • Pervasiveness of the misconduct,
including whether the conduct cuts across
and improvements to, its corporate compliance geographic and/or product lines
program and internal control systems; and • The risk profile of the company, including
(d) whether remedial improvements to the its nature, size, geographical reach, and
business model
compliance program and internal controls have • Quality of the company’s compliance
been tested to demonstrate that they would program at the time of the misconduct

prevent or detect similar misconduct in the • Subsequent remediation efforts and quality
of the company’s compliance program at
future. 403 “Where a corporation’s compliance the time of resolution
program and controls are demonstrated to be • Whether the company’s current
effective and appropriately resourced at the compliance program has been fully
implemented and tested
time of resolution, a monitor will likely not be

necessary.” 404

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