In an article published in the National Attorneys General Training & Research Institute (NAGTRI) Journal, Bass, Berry & Sims attorney Bob Cooper and co-author Todd Leatherman of the Kentucky Attorney General’s Office provided insight on the history and use of independent compliance monitors by federal and state law enforcement in the past two decades, with particular focus on the growing use of monitors by state attorneys general in consumer protection settlements.
Over the past 10 years, three separate sets of guidelines concerning monitor selection and duties have been published. These include Department of Justice (DOJ) memos, the American Bar Association’s (ABA) “black letter” Standards for Monitors, and the International Association of Independent Corporate Monitors’ (IAICM) Code of Professional Conduct. The NAGTRI article reviews the guidelines’ provisions for monitor selection and operations and outlines developing practices by state attorneys general.
While duties and reach of a monitor is decided on a case-by-case basis, typical responsibilities include creating and supervising compliance programs that remediate the corporate misconduct targeted by a government investigation, and monitors can be either individuals or entities, according to DOJ Memos and ABA Standards. While the federal government usually chooses monitors from a slate of candidates, state attorneys general typically include monitor selection and scope of duties as a significant part of settlement negotiations.
“The DOJ Memos and the ABA Standards both stress that a monitor is independent of the company and the government. Even if the monitor is an attorney, the monitor does not have an attorney-client or agency relationship with either side,” said the authors. There are tensions within the DOJ Memos and ABA Standards between requiring the monitor to report regularly to the court and government and protecting the company’s proprietary and confidential information from public disclosure. Companies should be aware of this tension in working with a monitor.
“To date, the use of monitors by state attorneys general in multistate settlements has resulted in successful implementation of national consumer settlements while reducing enforcement costs for the states,” the authors point out. “Given these advantages, state attorneys general are likely to increase the use of monitors, both at the state and multistate level.”
The full article, “Compliance Monitoring and State Attorney General Investigations: Issues in Appointment and Operation,” was published in the February 2018 edition of the NAGTRI Journal and is available online.