Monitorship Practice

The appointment of an independent monitor at the conclusion of a government investigation has become increasingly common.  Having a monitor with the skill and experience to navigate the transition following an investigation is critical to a company’s future success.  Our lawyers have that skill and experience and have served successfully as appointed monitors of global companies and organizations such as Credit Suisse, Citigroup, and Education Management Corporation.

Our approach combines a strict adherence to our independent role with a deep understanding that, to be sustainable, reform must be practical, executable and sensitive to the broader mission and business of the monitored entity.  Our work provides the confidence that government agencies and corporate boards and managers must have that, by the end of a monitorship, all remaining problems have been identified and remediated and a compliant culture has been instilled at the company.

The group has:

• Monitored compliance with terms of agreements and court orders;
• Evaluated and helped improve internal controls, compliance programs, trainings, and codes of conduct;
• Investigated the root causes of the misconduct that led to the monitorship;
• Reported findings and recommendations to the government, the monitored party and, in those matters in which it is mandated, the public; and
• Provided counseling and testing for companies to remediate misconduct in advance of a formal appointment of a monitor.

Our lawyers have served as monitors domestically and abroad, across an array of industries, with reporting to both federal and state governmental officials.  Members of the group have represented clients and/or served as monitors in matters involving a diverse range of subject matters, including financial fraud, bribery (including Foreign Corrupt Practices Act and UK Bribery Act issues), mortgage fraud, health care fraud (including the anti-kickback statute and the Stark Law),labor and employment violations, economic sanctions and export control issues, environmental violations, theft of intellectual property, money laundering, securities fraud, and tax violations. 

Members of our group bring with them the experience that comes from holding high-profile assignments in and out of government: the former Special Inspector General of the Troubled Asset Relief Program; the former Associate Attorney General of the United States; the former Principal Deputy Assistant Attorney General for the Criminal Division of the US Department of Justice (DOJ); four former Assistant US Attorneys and supervisors; and a former prosecutor at Her Majesty’s Revenue and Customs Office and at the UK’s Serious Fraud Office.

OUR APPROACH

With experience in matters of different sizes and across industries, our approach is grounded in adhering to our independent role and faithfully implementing monitorship agreements.  We fairly assess the need for reform at a monitored entity, and then, as appropriate, work with the company to achieve sustainable and practical change, with a focus on improving the culture of compliance.

We tailor our approach to the unique challenges confronting the monitored entity while working within the four corners of the agreement or order that creates the monitor’s mandate.  We build upon our extensive experience in monitorships and compliance counseling to benchmark ethics and compliance programs against companies with comparable risk profiles.  We work closely with management teams to identify compliance gaps, develop workable solutions, and create effective compliance programs that reflect the best practices outlined in the US Sentencing Guidelines for Business Organizations, and DOJ and US Securities and Exchange Commission guidance.  Where monitorship agreements include an investigative component, we leverage our prosecutorial and investigative experience to root out the causes of the misconduct that led to the monitorship itself. 

As important as our independence and the quality of our work product, our monitorship group is committed to delivering value.  We institute strict controls over our own teams to ensure that our work is efficient and cost sensitive and use analytics and project management tools to constantly test and improve our efficiency.

MONITORSHIP APPOINTMENTS

We are regularly called upon to serve as independent monitor and settlement administrator in some of the most notable matters of the day.  Below is a list of our appointments over the past several years.

• Appointed monitor to Credit Suisse AG following the bank’s $715 million settlement with the New York State Department of Financial Services related to the assistance of tax evasion, part of a broader $2.6 billion settlement that involved DOJ and federal regulators.
• Appointed monitor to determine Citigroup Inc.’s compliance with consumer relief obligations, valued at $2.5 billion, under its settlement agreement with DOJ and five states over the sale of residential mortgage securities, including determining the appropriate methodology to validate the credit claimed with respect to different types of consumer relief activities and the types of evidence required to establish each element.  View publicly available reports.
• Appointed monitor to oversee the ongoing compliance by Credit Suisse Securities (USA) LLC with the consumer relief terms of its $5.3 billion settlement with DOJ over the sales of residential mortgage-backed securities in the run-up to the 2008 financial crisis.  View publicly available reports.
• Appointed Special Master by the Hon. Jack B. Weinstein (US District Court for the EDNY) to ensure that approximately 20 firearms dealers in five states complied with court orders obtained through litigation brought by New York City.
• Appointed Settlement Administrator of an Assurance of Voluntary Compliance (Agreement) between the state of Iowa and Bridgepoint Education, Inc. and Ashford University to review compliance with the terms of the Agreement and provide annual reports to the state.
• Appointed an independent settlement administrator to oversee Education Management Corporation’s compliance with required reforms to its recruiting and enrollment practices and more than $100 million in loan-debt forgiveness to more than 80,000 former students in its four education systems.