The appointment of a monitor is one of the most common features of any corporate criminal resolution today, and can also be found in a number of civil resolutions. In almost every instance of corporate wrongdoing, either internal controls were absent or the controls that existed failed. In either event, from the government’s view, the corporation needs some outside, independent person to oversee and monitor the creation or enhancement of the relevant internal controls going forward.

As a company enters into this process, there are a numerous places where its decisions, one way or another, can dramatically affect how it plays out. The scope of a monitor’s role is a critical aspect of negotiating the resolution. How long the monitorship will last and what the monitor’s duties will encompass must be clearly defined. Further, the selection of the monitor needs to be done carefully. You should focus on balancing the person’s qualifications in the subject matter area with the individual’s experience establishing compliance programs more generally. The way the company will interact with the monitor can also make or break the experience. Although the process is not usually a pleasant one, a company should try to treat it as an opportunity instead of a burden. Finally, it is important to be able to work closely with the monitor in establishing the new controls so they will, in fact, be effective, sustainable, and compatible with the company’s culture.

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