The issue of flawed relationships between companies and their compliance monitors came into focus when a federal judge in Miami raised concerns about the power held by Carnival Corp.'s monitor to spur systemic change at the world's largest cruise operator.

The company was in court April 10 for allegedly dumping pollutants at sea in violation of a 2016 probation agreement that came with a record $40 million fine for operations by Carnival-owned Princess Cruises. Eight of its cruise lines were subject to compliance monitoring.

After the hearing, a Carnival spokesman issued a statement saying the cruise company heard the concerns of U.S. District Judge Patricia Seitz and “will do our utmost to ensure we meet all expectations under the [environmental compliance program] and continue to strive to be best in class on environmental compliance.” He declined to comment beyond the statement.

Speaking in general terms about the larger compliance issue, Eric Feldman, senior vice president and managing director of corporate ethics and compliance programs for Affiliated Monitors Inc. in Los Angeles, said, “The effectiveness of the monitor in any of these kinds of cases goes back to the level of specificity in the agreement.”

“Whether the agreement is a consent decree or deferred prosecution agreement … it needs to really spell out the duties and responsibilities of the monitors,” added Feldman, who joined Affiliated in 2011 after retiring from the CIA and National Reconnaissance Office.

If the government drafts an agreement that is too narrow, it can tie the monitor's hands. But if the scope of the agreement is too broad, it can send the monitor on a fishing expedition, which will likely strain the relationship between the monitor and the company in question.

Feldman said he's seen companies attempt to take advantage of unclear compliance monitoring agreements by trying to limit what the monitors can do, having outside or in-house counsel sit in on the monitor's interviews with employees, or requiring company lawyers to review all documents before they reach the monitor.

Those tactics are “nonstarters” from a compliance monitoring perspective as they can have a chilling effect on employees and prevent the monitors from doing their jobs, according to Feldman.  

Former in-house ethics and compliance manager Sarah Foley, now a compliance specialist at Orrick, Herrington & Sutcliffe in New York, acknowledged being under a corporate monitor's microscope can be “pretty invasive and disruptive for a company.”

“But ultimately these monitorships help affect change when a company is not meeting intended compliance results and expectations,” she added. “It's important to look at these corporate monitorships as a tool to make sure ethics and compliance practices work day-to-day for a company's business operations and activities and, perhaps more importantly, are sustainable at its most basic operational level.”

After being assigned a monitor, a company should immediately begin planning and coordinating with the monitor for all the work that lies ahead for both sides, according to Foley. She stressed every stakeholder in a company should be involved in the process, not just the compliance department, and everyone should be working toward the same goal.

“Corporate values, corporate culture — all of that establishes the framework for how a company is going to respond to a monitorship,” Foley said. “You want to make sure that all the work the company is doing is to support the monitorship and result in improvements to the business operations and commercial strategy.”

She added, “Compliance isn't successful as a bolt-on to operational or commercial processes. It needs to be ingrained within the DNA of a company.”   

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