Scrooge and Corporate Settlement Agreements

Although there seems to be a difference in the precise publication date between the online reference sites This Day in History and Wikipedia, today we celebrate the Charles Dickens’ work A Christmas Carol, which both sites acknowledge was published in 1843. This story has become well known and omnipresent in the Christmas season; in film, theater, radio, television, cartoon, opera and about every other form of media known to mankind. A Christmas Carol tells the story of a bitter old miser, Ebenezer Scrooge and his transformation into a gentler, kindlier man after visitations by the ghost of his former business partner Jacob Marley and the Ghosts of Christmases Past, Present and Yet to Come.

The book was written at a time when the English were examining and exploring Christmas traditions from the past as well as new customs such as Christmas cards and Christmas trees. Dickens’ source materials for the tale appear to be many and varied, but are principally, the humiliating experiences of his childhood, his sympathy for the poor and various Christmas stories and fairy tales. A Christmas Carol has been credited as one of the greatest influences in rejuvenating the old Christmas traditions of England. Scrooge himself is the embodiment of winter, and, just as winter is followed by spring and the renewal of life, so too Scrooge’s cold, pinched heart is restored to the innocent goodwill he had known in his childhood and youth. It is hardy tale that should be retold and remembered each holiday season as one of the true spirits for celebration.

I considered this work by Dickens when I read a recently released article entitled “Improving Corporate Settlement Agreements” by The Fraud Guy, John Hanson. In this piece Hanson considers some shortcomings in a variety of corporate misconduct settlement agreements, where he believes “the Terms of most Agreements lack a full and practical appreciation for what constitutes an effective Program within a particular organization.” He articulates that “A key reason for this is because the parties to the Agreement miss the forest for the trees in that they too narrowly focus on Program sub-components (that piece of a Program associated with a particular risk, such as Anti-Corruption, Anti-Trust, False Claims, Organizational Conflicts of Interest, etc.…), the failure of which is only symptomatic of a higher level and overall Program failure.” Although Hanson’s critique of Deferred Prosecution Agreements (DPAs), corporate monitors and settlement agreements was broader than simply those issues in Foreign Corrupt Practices Act (FCPA) enforcement, I found his comments provided some useful insights into how both companies and the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) might help to make the process more robust in helping companies create a culture of compliance and ethics as result of a resolved enforcement action.

Ethical Tone

Here Hanson says that DPAs do not tie the relationship of compliance and ethics together going forward. He believes that one cannot exist without the other. He thinks many compliance program overseers focus too much on the sub-parts and institute too much of “A piecemeal approach that overly focuses on Program sub-components and neglects ethical tone almost completely is doomed to failure. It is like placing a Band-Aid on an arterial wound.”

While many external monitors will drill down into the detailed specifics of a certain issue or even sub-issue under compliance, such a mechanism can be a useful exercise. For example if there is a particular compliance problem being faced such a detailed approach may be warranted. For instance, if the company got into FCPA trouble for its use of third parties that came into a business relationship with the company through the Supply Chain, an extreme deep dive into the Supply Chain and management of those relationships from the compliance perspective may be important. However what such an approach may cost is losing a greater focus of the overall picture.

Time

A second critique is that many DPAs are simply too short in time length to “effectively implement remediation.” While this criticism is largely for DPAs outside the FCPA context, it bears some discussion. Hanson believes that “A Program is a process, not a one-time event. Moreover, it is a process that perpetuates and improves continuously. Generally speaking, for organizations without a robust and effective Program, it realistically takes at least three years to stand up this process to the point where it is effective and begins annually repeating.” A compliance program design and implementation can take up to 18-months and it can often take another year to assess the implementation results and fine tune the compliance regime going forward.

While most DPAs in the FCPA context are for three years, there have been examples of where either a company was released early from a DPA or a monitorship ended at the 18-month mark rather than the full three years. An example of this is Pride International (now ENSCO) who were rewarded by being released early for its superior enhanced compliance efforts. In the latter category is Weatherford, among others, whose external monitorship can end at 18-months after the execution of the DPA, if sufficient progress is met.

External Monitors

Hanson had some very interesting thoughts about the use of corporate monitors. He has long championed more professionalism for monitors, specifically regarding their training in implementing compliance programs, not simply as very good white-collar defense lawyers or internal investigators. However, in his paper Hanson notes that other concerns have lessened both the effectiveness of external monitors or even their use; when he writes, “Due to past negative publicity arising from problems resulting from poor/immature government agency Monitor selection policies and/or inexperienced and/or ineffective Monitors, government agencies and organizations alike have developed some misperceptions that have led to Monitors being underutilized, even avoided. While some government agencies are still developing or improving Monitor selection policies, many have already adopted policies that addressed past concerns.”

Hanson champions his concerns for monitors with the experience issue. He believes that “many Monitors come from the ranks of whitecollar defense attorneys, who, as noted above, frequently lack the requisite level of compliance and ethics training and knowledge, as well as practical Program experience, to serve in that role most effectively. Additionally, most persons selected to be a Monitor have never been a Monitor before and are unaware of the nuances associated with such a specialized role.” To rectify this issue, Hanson advocates greater monitor training from organizations such as the Society of Corporate Compliance and Ethics (SCCE) or others. Finally, as Hanson notes, “it is of much greater importance to engage a Monitor who is an expert in compliance and ethics rather than one who is an expert on the substantive underlying criminal and/or regulatory violations.”

As usual when John Hanson writes something relating to the compliance field, you should definitely read it. Hanson’s unique background as a forensic auditor, FBI agent and four-time corporate monitor provide valuable insights to any compliance related issue. His current article is no different. You can use many of his insights directly in your compliance program through engaging an outside expert, called monitor or something else, to help move your compliance and ethics program forward on a number of fronts.

Hanson’s article is available through JDSupra by clicking here.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2014

DPAs and NPAs – Powerful Tools in the Fight Against Corruption

As readers of this blog know the FCPA Professor and I usually look at the same Foreign Corrupt Practices Act (FCPA) enforcement action, item or remark and see different things. Sometimes we even hear the same thing and come away with different interpretations. Last week, we experienced yet another instance of the former where we both looked at the same article, that being one in Global Investigations Review entitled “Caldwell: settlement a “more powerful tool” than convictions” by Rahul Rose, yet came away with different interpretations. After some to-ing and fro-ing, we decided that we would both post our interpretations on the same day. So with a nod to Dan Fogelberg and Tim Weisberg, today we have the first twin posts from different bloggers dual- blog posts. Since we agreed to write our respective posts without seeing the other’s post and hence could not comment on each other’s post, I urge that after you finish reading my blog today, you click on over to the FCPA Professor’s site and see what his thoughts on Caldwell’s remarks might be.

The specific remarks we want to focus on were apparently made by during the Q&A session of Assistant Attorney General Leslie R. Caldwell who spoke at the Launch of the Organization for Economic Co-operation and Development Foreign Bribery Report, note these remarks were not found in the printed remarks of the speech on the Department of Justice (DOJ) website. In her Q&A, Rose reported the following, “Caldwell told the audience in Paris: “Companies cannot be sent to jail, so all a court can do is say you will pay ‘x’. We can say: ‘you will also have a monitor and will do all sorts of other things for the next five years, and if you don’t do them for the next five years then you can still be prosecuted’.” [And for the money shot] “In the United States system at least it is a more powerful tool than actually going to trial,” she said.”

It turns out that I have been thinking along these lines as well. The debate over the usefulness of Deferred Prosecution Agreement (DPAs) and Non-Prosecution Agreements (NPAs) has been long attended. Yet there are a couple of key reasons that DPAs and NPAs are such powerful tools in the fight against anti-corruption and anti-bribery which I do not believe have been fully articulated or explored. The first is that by settling, the DOJ (and Securities and Exchange Commission [SEC]) will have the ability to monitor the company going forward. This process began under the practice of formally appointing a corporate monitor nominated by the company in the throes of the enforcement action and who would be agreed to by the DOJ. This practice is generally referred to as a company having mandatory monitor.

While this specific practice received a fair amount of criticism from a variety of sources, the basic concept was sound. That concept was that a neutral third party would review a company’s compliance with the terms and conditions of a DPA or NPA and report to the DOJ at intervals generally no shorter than annually. This would give the DOJ eyes and ears into a company to oversee its adherence to the terms of the settlement. But what information did Caldwell convey in her statement as to why she thinks settlements are such a powerful tool? I read three pieces of information her statement about why FCPA settlements are such powerful tools.

‘Do All Sorts of Other Things’

Under this prong a settling defendant is required to do “all sorts of other things.” We know from the DPAs and NPAs relating to FCPA enforcement over the past several years, the minimum that a company will be required to institute is a best practices anti-corruption compliance program. While the FCPA Guidance specifies ten hallmarks of an effective compliance program, the DPAs and NPAs have had between 9 to 16 items listed in the best practices anti-corruption compliance programs that settling companies’ have agreed to institute. If the DOJ went to trial and secured a conviction the company would not have to put such a compliance program in place but only pay a fine or some other monetary penalty. Further, by requiring such a best practices anti-corruption compliance program in such a public manner, through a publicly filed DPA or NPA, the DOJ can communicate its current thinking on what it believes constitutes such a program. This provides valuable information to the compliance practitioner going forward and I believe completely disabuses the argument that companies cannot know what their obligations might be to comply with the FCPA or that companies do not know what the DOJ expects from them in the area of a FCPA compliance regime.

‘You will also have a monitor’

David E. Matyas and Lynn Shapiro Snyder
from the law firm of Epstein Becker & Green P.C., described the duties of a corporate monitor in their article entitled, “Monitoring the Monitor? The Need for Further Guidance Governing Corporate Monitors Under Pre-Trial Diversion Agreements”. The monitor would meet with “the company’s board and employees. A monitor then develops a work plan which defines the scope, access, and power the monitor will have over the company. The monitor’s work involves frequent visits to the company (including possible on-site accommodations) and broad access to company documents and meetings. The monitor should be knowledgeable about the regulatory aspects of the company’s operations, but that is not necessarily a criterion for selection of the monitor. Indeed, a monitor can hire others to assist in his or her responsibilities at the company’s expense. The monitor files periodic reports with the U.S. Attorney’s Office and makes visits with that office as well as with the company. At the conclusion of a monitor’s term – often 24-36 months – the monitor files a final report that details the activities accomplished and whether the company complied with all the terms of the agreement.”

So the monitor provides the DOJ with continued insight into what the company is doing to satisfy its settlement obligations around the implementation of its compliance program. If the DOJ has high confidence that the company has and will continue to put significant resources and efforts into its compliance program, it may agree to a voluntary monitor, as we have seen with the Parker Drilling and Hewlett-Packard (HP) DPAs. If the DOJ does not have such confidence, it may require a monitor for the length of the DPA, such as we saw in the Total DPA, which was three years. The DOJ may also take an interim position on the mandatory or voluntary nature of the monitor by allowing a company to end a mandatory monitorship half-way through the pendency of a DPA as it did with the Weatherford DPA, which allowed the mandatory monitorship to end at the 18 month mark of a three year DPA, if certain criteria were met.

‘You can still be prosecuted’ 

This final point is not to be underestimated. Once again if a company is found guilty at trial, a fine and/or penalty will be assessed and payment is the end of it. While it still may be under enhanced scrutiny, it will not have the affirmative obligation to report any FCPA violations going forward, nor will it bear potential liability and prosecution for failure to implement the terms and conditions of the DPA or NPA. Indeed, the company will agree to be prosecuted if there is another violation or it fails to implement as agreed to.

So by using DPAs and NPAs as settlement tools, I believe that the DOJ is able to impact on an ongoing basis, for two to three years, the compliance program of a settling company. This continued oversight usually translates into greater enthusiasm by a settling company to get compliance right so that it does not have to go through the full FCPA investigation and enforcement process. Of course there will always be recalcitrant companies such as Marubeni Corporation, which do not take the agreed to compliance obligations seriously going forward. When they get into trouble as recidivists, the second penalty is usually much higher. But there is also benefit to the compliance practitioner and greater compliance community because the DOJ communicates its expectations in these DPAs and NPAs. So they also work as powerful communication tools. Finally, by requiring a third party to act as the monitor, whether voluntary or mandatory, the DOJ can get some independent insight into what a company is doing compliance-wise.

Not knowing what the Professor has said, I have not tried to anticipate his arguments or rebut them directly. Nonetheless, I have tried to articulate why I agree with Ms. Caldwell’s remarks and why I continue to find the DOJ’s use of DPAs and NPAs as settlement tools a powerful weapon in the fight against bribery and corruption. I also hope that you will find favor with this exercise that the FCPA Professor and I have engaged in because we both believe that ongoing debate over FCPA enforcement is worthwhile for the compliance practitioner and necessary for the long-term success of compliance moving forward.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2014

Take the A Train to Find Your Compliance Team

Some organizations, such as the SCCE provide specialized training for compliance professionals. Others, such as Trace International, are beginning to offer such specialization and certification. My This Week in FCPA Colleague Howard Sklar wrote a great piece last year on who to call when you need some serious help for a Foreign Corrupt Practices Act (FCPA) issue, entitled “Getting Advice”, other than calling Ghostbusters it is the best single source for who you should call when the FCPA going gets tough.

However, as the compliance field evolves and matures, the need for more experienced compliance professionals continues to grow, there is the need to hire top notch compliance talent to do the day-to-day work of implementing, enhancing or running a compliance program. Where can you go if you want to hire some experienced compliance professionals to insert in your organization who can hit the ground running? I thought about that question when reading a book review of David Schiff’s “The Ellington Century” in a recent issue of the Times Literary Supplement. In this review, entitled “Sentimentals”, Stephen Brown noted that Ellington’s instrument was his band. While the Duke was very good at spotting talent, he was willing “to let it have its own voice, and more, to highlight and showcase it, and most importantly to involve it in the creative process.” When a musician came out of the Ellington Band, they had worked steadily with other great musicians and had learned from one of the greatest composers and arrangers of the past century.

How does that relate to finding some top notch compliance talent? It means there is no better place to look than people who have worked where compliance is under the microscope, usually because of a Department of Justice (DOJ) investigation or company which is under a Deferred Prosecution Agreement (DPA). In Houston one company that went through that process was BakerHughes. It’s Chief Compliance Officer (CCO), Jay Martin, is recognized as one of the leaders in our field not only here in Houston but across the country. The team Jay put together has now fanned out to become CCO’s at several other major companies here in Houston. Dan Chapman is the CCO at Parker Drilling, Brian Moffatt is the CCO at ENSCO, Rod Hardie is the CCO at Exterran and most recently Doug Walter was named as CCO at the newly formed company (albeit with a long and storied name) Phillips 66. There are probably others as well but I have worked or been on panels with each of the above folks and I can attest, they have all learned their compliance stuff and understand how to practice compliance.

Another place you can look is to law firms which have performed monitoring services. But here I would suggest that you look to the associate ranks for the lawyer who generally did the day-to-day spade work for the lead lawyer who had been appointed monitor. In my last corporate position, my company was under a Monitorship and we worked closely with the full team of lawyers in the law firm to implement, train and operate the company’s compliance program. Several of the former associates from the firm now hold prominent in-house positions and the experience they gained in their oversight roles was no doubt very instrumental in their current level of (compliance) experience.

The talent is out there. If you wanted a very good musician for a project, last century you could turn to an alumna of Ellington’s band. In the compliance arena, you can do no better than hiring someone who has been under the gun, so to speak, and worked for or with a company under significant DOJ scrutiny. So, sit back, listen to some great music by the Duke and ask around about who has gone through such an experience. If you want to populate your compliance team, it is a great way to do so.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2012

JGC Deferred Prosecution Agreement: Cooperation with DOJ Still Key

I had not, at least in recent years, thought I would be able to say that the Houston Astros have a better record this late in the season than the Boston Red Sox. But at least as of yesterday, now 1-5 Astros no longer share the worst record in baseball, which now belongs to the Red Sox and Tampa Bay Rays, both with a 0-6 starts. So baseball fans, you had best put on your seat belt for it could well be a bumpy ride this season.

All of which brings us to the JGC settlement this week with the Department of Justice (DOJ) regarding the Nigerian Bribery Scandal. JGC agreed to enter into a Deferred Prosecution Agreement (DPA) and agreed to pay a fine of $218 million. This settlement closes out the FCPA chapter (corporate division) on the Scandal where the DOJ obtained fines and penalties in the range of $1.5 Billion. The DPA itself had a couple of interesting features.

The first is that JGC (apparently) did not cooperate with the DOJ as well or as thoroughly as other companies have done in the FCPA investigation. JGC received a -1 credit for reduction in its overall Culpability Score for “clearly demonstrated recognition and affirmative acceptance of responsibility for criminal conduct”. Readers will note that this is the same score received by Alcatel-Lucent in its DPA and the estimated costs to Alcatel-Lucent for this perceived lack of recognition and acceptance ranged between $20MM to $10MM, which ‘only’ paid a monetary penalty of $92MM. Contrast this score with that received by Maxwell Technologies, -5 reduction in its overall Culpability Score for its “Voluntary Disclosure, Cooperation and Acceptance. The clear message here is that full cooperation will bring down a company’s fine and in a very significant amount.

 The next items of interest are that JGC agreed to implement (1) a system of internal controls and (2) a rigorous anti-corruption compliance code consistent with the FCPA, Japanese anti-corruption laws and other applicable anti-corruption laws. This language sounds like the company needs to start at the beginning to create such an anti-corruption program. Attachment C of the DPA fleshes out the specifics of the compliance program the DOJ recommends for JGC.

Last is that instead of a Corporate Monitor, JGC agreed to an “Independent Compliance Consultant, who is to “evaluate JGC’s corporate compliance program with respect to the FCPA, Japanese laws implementing the OECD convention…and other relevant anti-corruption laws. The interesting thing here is that while this position is termed “Independent Compliance Consultant” it really sounds like a Corporate Monitor as the DOJ has the right to choose the candidate, from those proposed by JGC.

 Once again the DOJ has clearly informed the compliance community that cooperation in the investigation and enforcement process can pay dividends in terms of a lower fine. I hope companies are getting the message.

For a copy of the JGC Deferred Prosecution Agreement, click here.

For a copy of the JGC Criminal Information, click here.
 This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2011

The Fraud Guy and Corporate Monitors under the FCPA

Most compliance practitioners are aware of the use of corporate monitors. There are many benefits to the use of a corporate monitor for a company coming out of a lengthy Foreign Corrupt Practices Act (FCPA) investigation. Some of these benefits can include increased corporate awareness of compliance and the integration of best practices into a company’s compliance program. A corporate monitor can also boost shareholder, employee and public confidence in a company which has had a lengthy FCPA investigation and enforcement action.

One of the more vexing questions which a General Counsel or Chief Compliance Officer may face is how to select and interact with a corporate monitor? There is very little helpful guidance for compliance practitioners on this subject. However, one such resource has arisen in the past year which is welcome addition for the compliance practitioner, it is “The Monitor” and it is issued by Artifice Financial Forensic Services, LLC, and its head, John Hanson. Hanson is a CPA, CFE and, furthermore, he’s a former FBI Agent, who also publishes a very useful blog entitled “The Fraud Guy”. 

In September, Hanson presented a session on corporate monitors at the 9th Annual Compliance & Ethics Institute of the Society of Corporate Compliance and Ethics (SCCE) entitled, “Understanding and Working Effectively With Independent Corporate Monitors”. In this session Hanson outlined some of the key points a compliance practitioner needs to understand when engaging or dealing with a corporate monitor. In this presentation, which included panelists Doug Lankler, Senior VP and Chief Compliance Officer of Pfizer, Inc., and Jacob Frankel, partner in the law firm of Shulman Rogers, Hanson noted that a corporate monitor is one who is an  independent third-party used to verify an company’s compliance with an Agreement between the company and a Governmental Agency or Agencies (think Department of Justice [DOJ] and Securities and Exchange Commission [SEC] and a Deferred Prosecution Agreement [DPA] or Non-Prosecution Agreement [NPA]). Additionally a corporate monitor has the primary responsibility to assess and monitor a corporation’s compliance with the terms of a DPA, NPA or other relevant Agreement.

 Hanson suggested several qualifications that a company should look towards in selecting a corporate monitor. These include the capability of the monitor candidate to handle a large and potentially multi-year assignment. A determination should be made on the credibility and integrity of the business and professional reputation of the corporate monitor. There must be real and perceived independence and objectivity by the corporation monitor, who should not have had prior business dealings with the company. A corporate monitor should have desirable, relevant experience and must have the staying power to remain on the job during the entire term of the monitorship. 

Hanson emphasized that the role of the corporate monitor should be driven by the relevant DPA, NPA or other Agreement. The over-riding goals of the corporate monitor should be independent verification of a company’s compliance with the terms and conditions of its relevant agreement, whether DPA, NPA or other Agreement. This focus is primarily through corporate compliance assessments. A corporate monitor should primarily observe, test and report. While a corporate monitor may utilize some investigative techniques, it is generally not within the corporate monitor’s scope to investigate. To this final point, Hanson has recently published an article entitled, “Corporate Monitor Not an In-House Investigator” which further expanded on this issue. 

Hanson discussed the need for transparency in the monitorship. This begins with the negotiations involved with the work plan, including the projected costs of the monitorship. The cost of a corporate monitor has been identified as a significant issue with even US Federal District Court judges so care should be taken so that the corporate monitor cost itself does not become an issue.  We recommend the following list of topics be considered by any company in regards to the cost of a corporate monitor: hourly rate v. fixed fee; expenses; rate adjustments, both upward and downward. If other personnel are to be used in the process, there should be full disclosure of the personnel and their rates. One item that Hanson related was that the bulk of costs for a corporate monitorship occur during the initial reporting period. 

With regard to the Report itself, its scope and timing are determined by the DPA, NPA or other relevant Agreement. However, both the company and the governmental agency should agree on the form and content of the Report. Generally, there should be no review by the company of the report prior to the delivery to the governmental agency. However, if during the pendency of the reporting period, there is sharing of concerns, observations and findings, there should not be any surprises in the final Report, absent extraordinary circumstances. The Report itself should include the presentation method, it should address any potential inaccuracies in reporting and it should highlight any expansions or contractions in overall monitorship scope. The Report should also list appropriate remedial measures that the company should employ but note both positive compliance actions and any self-corrective actions by the company during the pendency of the reporting period. 

Hanson recommends that to work effectively with a monitor, a company should assume a non-adversarial, collaborative position with the corporate monitor with open and frequent communications. The company should have a full understanding of the monitor’s roles and responsibilities as well as its own role and responsibility in the monitorship. Hanson ended by emphasizing that the company should recognize that there is joint effort for any monitorship to succeed between the company and corporate monitor. By working collaboratively with a corporate monitor, the company puts itself in the best position to work through any obligations it may have assumed in a DPA, NPA or other Agreement and come through the process as one of its industry’s leaders in compliance. 

We recommend John Hanson, his newsletter “The Monitor” and website “The Fraud Guy” to all FCPA compliance practitioners as an excellent resource for the issue of corporate monitors. 

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2010