Somebody's Watching Me: FCPA Monitorships and How They Can Work Better

13 U. Pa. J. Bus. L. 321 (2011)

61 Pages Posted: 13 Feb 2013

See all articles by F. Warin

F. Warin

Gibson, Dunn & Crutcher LLP

Michael Diamant

Gibson, Dunn & Crutcher LLP

Veronica Root Martinez

Notre Dame Law School

Date Written: June 1, 2011

Abstract

Few penalties imposed on a corporate criminal offender cause as much consternation as do compliance monitors. Fundamentally, the corporate compliance monitor stands in the way of forgetting the past and going back to “business as usual” — at least when it comes to obeying the law. The monitor’s purpose is to see that the company follows applicable laws and regulations going forward and institutes the proper policies and procedures to help ensure compliance. Corporations will never welcome this “tail” to their criminal prosecutions.

This article explores the rise of the corporate compliance monitor as a condition for settling violations of the U.S. Foreign Corrupt Practices Act (“FCPA”) — a setting in which federal prosecutors routinely impose monitors. If U.S. enforcement authorities maintain their current approach, the reality is that companies facing liability for violating the FCPA are likely to have a monitor imposed on them as part of a settlement agreement. From the U.S. government’s perspective, monitorships make sense for companies that violate anti-bribery laws, making it important for offending corporations to learn how to deal with monitors. Pulling from the authors’ extensive experience with three major FCPA compliance monitorships, as well as their work assisting clients operating under an FCPA monitorship, this article aids in that process. It also hopes to help monitors themselves, as well as the prosecutors who appoint them, in making the monitorship a more constructive feature of an FCPA settlement.

Keywords: FCPA, Monitor

Suggested Citation

Warin, F. and Diamant, Michael and Root Martinez, Veronica, Somebody's Watching Me: FCPA Monitorships and How They Can Work Better (June 1, 2011). 13 U. Pa. J. Bus. L. 321 (2011). Available at SSRN: https://ssrn.com/abstract=2215056

F. Warin

Gibson, Dunn & Crutcher LLP ( email )

1050 Connecticut Avenue, NW
Washington, DC 20036
United States

Michael Diamant

Gibson, Dunn & Crutcher LLP ( email )

1050 Connecticut Avenue NW
Washington, DC 20036
United States

Veronica Root Martinez (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

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