On Friday, the head of the Department of Justice criminal division, Brian Benczkowski, released a memorandum regarding the selection of monitors in criminal division matters. The new policy was announced to a small audience at New York University School of Law. The memorandum supersedes guidance contained in Lanny Breuer’s memorandum from 2009 laying out the Department of Justice’s monitor selection process.
Mr. Benczkowski commented when announcing the new policy that “the imposition of a compliance monitor should be the exception, not the rule.”
While the new policy closes tracks the language of the 2009 Breuer memorandum, there are a few key differences designed to put limits on the number and scope of monitorships. For instance, the memorandum requires that a monitorship be “tailored to address the specific issues and concerns that created the need for the monitor.” The new policy requires prosecutors to consider the cost associated with monitorships and whether it can be limited scope to avoid unnecessary burdens to the business operations. Prosecutors will also be required to consider whether the bad actors were terminated and whether a new management team was put in place. If the bad actors are gone, this seems to be a factor weighing against the need for a monitorship.
The memorandum is located HERE.
Mr. Benczkowski also announced that the Department of Justice will do away with the compliance expert at the Department. Instead, the Department of Justice will hire prosecutors with a compliance background and/or train prosecutors on compliance.