Published In

Journal of Corporation Law

Document Type

Working Paper

Publication Date

2009

Subjects

Compliance Programs; Corporate Crime; Corporate Culture; Corruption; Deferred Prosecution Agreements; FCPA; Monitors; Organizational Ethics

Abstract

Over the last few years, prosecutors and SEC enforcement attorneys have increasingly relied on settlement agreements (such as deferred prosecution agreements) to combat securities violations and other corporate criminal acts. Many of these agreements require the use of corporate monitors to oversee the corporation's compliance with the settlement and its implementation of a compliance program to prevent future violations of the law. Although these agreements have received significant attention from legislators and scholars, there has been no investigation into the critically important question of whether or not the use of corporate monitors achieves its intended goals. Based primarily on interviews with individuals directly involved in monitorships, we look at the entire monitorship process - including the selection of the monitor, how the monitor conducts his or her work, and what happens after a monitorship - and find that decisions at critical points during this process lead to monitorships that are significantly less ambitious than government pronouncements behind them and seem unlikely to achieve their goals on any consistent basis. After identifying these problems, we suggest measures for reform.

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