DOJ Results of Civil Monitor Review Provide Insight for Corporate Criminal Defendants

The Associate Attorney General submitted her 19 recommendations for the use of monitors to Attorney General Garland in August, and Garland issued a memorandum on September 13, 2021, announcing that DOJ would begin implementing the recommendations immediately. Garland underscored the obvious relevance of the guidance to various ongoing federal monitorships of local police departments by announcing the guidance during a speech to the International Association of Chiefs of Police.

The new recommendations center around five broad guiding principles that provide a useful window into DOJ’s general views regarding these types of monitorships and could apply in certain respects to monitors imposed in corporate criminal resolutions:

• Monitorships should be designed to minimize cost and to avoid any appearance of a conflict of interest. According to DOJ’s guidance, constraining costs is essential to conserving public resources and to avoiding any appearance that a monitor is primarily motivated by profit. The guidance recommends capping monitor fees, encouraging the use of pro bono and nonprofit organization involvement, encouraging alternative fee arrangements (such as flat fee arrangements instead of billable hours setups), and restricting the ability of the individual who serves as a lead monitor to serve on more than one monitoring team at a time.
• Monitorships must be accountable to the court, the parties, and the public. The guidance encourages accountability by proposing public input into monitor selection as well as term limits for monitors (with the option of renewal through judicial evaluation and reappointment) to ensure that monitors work efficiently. It also encourages public disclosure of monitoring documents, including the methodologies the monitor uses to assess compliance and routine reports detailing the monitor’s assessments of the subject’s progress.
• Monitors should assess compliance consistently across jurisdictions. The guidance proposes creation of a number of materials to be accessible to monitors to ensure consistency of compliance assessment. The proposed materials include a practice guide and a set of assessment tools for monitors, an “orientation program” for judges to educate them on the consent decree process and the role of judges and monitors in that process, and a monitorship “starter kit” for new monitors that sets expectations for what will be needed to reach compliance and explains the nuts and bolts of implementing a consent decree.
• Sustained, meaningful engagement with the community is critical to the success of a monitorship. The guidance provides that each monitorship should be guided by the individuals and groups with interests in the reform process. With that in mind, selected monitors should demonstrate an understanding of the perspectives of the stakeholders, including impacted communities; continually seek community members’ input; use modern tools of communication, such as social media, to ensure they are reaching community members whose voices are not regularly heard; and make the community aware of the jurisdictions’ successes and progress made toward compliance rather than focusing exclusively on the work that needs to be done.
• Monitoring must be structured to efficiently move jurisdictions into compliance. The guidance encourages steps to ensure the implementation of consent decrees in a timely manner, contrasting recent law enforcement consent decrees that set five-year compliance deadlines that passed without any formal assessment. Specifically, the guidance recommends setting a hearing to assess termination of the relevant consent decree after no more than five years, allowing the affected entity to be released from the decree in whole or in part and, if necessary, to receive a new timeline and a concrete plan for achieving full compliance. The guidance encourages parties to recommend termination of sections of the consent decree where the jurisdiction has achieved and sustained compliance (i.e., “partial termination provisions”), which allows DOJ to “reward jurisdictions that have been making efforts to come into compliance.” The guidance also urges parties to prioritize project management skills in monitor selection and to build in steps to transition the monitor’s responsibilities back to the jurisdiction after the monitor’s work has concluded.

Corporate criminal defendants can look to the principles in this guidance to assist them in developing arguments and positions regarding the monitorships that DOJ is seeking to impose on them during resolution discussions. For example, defense counsel can argue that the monitorship under consideration should be designed to minimize cost to the company and avoid the situation where the monitor is primarily motivated by profit. To that end, defense counsel can suggest arrangements that cap monitor fees or encourage flat or alternative fee arrangements rather than a billable hours arrangement. Defense counsel can also argue that the monitor be selected from a more diverse pool of candidates so that an individual or a firm is not serving on more than one monitor team at a time. Additionally, defense counsel can suggest that the DOJ provide guidance materials to monitors to ensure consistency of approach among monitors. Finally, defense counsel can argue that there should be provisions allowing for the termination of the monitorship early if a state of compliance is sustained, thereby rewarding companies that have come into continued compliance.