Asking Tough Questions About the Corporate Monitor Boom

Asking Tough Questions About the Corporate Monitor Boom

Are corporate monitors engaged in a boondoggle business? One analyst suggests that they are.

The corporate monitoring “industry,” Ohio State University law professor and New York Times columnist Steven Davidoff writes in a Times DealBook column published Tuesday, “is a full employment act for former federal prosecutors that may have little effect on the way any company that is forced to hire a monitor conducts its business.”

Such lawyers—appointed by judges to ensure that companies that have settled charges or been placed on probation meet fulfill their legal obligations—have only become prominent the past decade, Davidoff notes. The fees earned by the monitors are paid by the companies being watched, providing an additional form of punishment.

The process behind how monitors get their assignments is not transparent, one aspect of the practice that Davidoff criticizes. Though hard figures are impossible to come by, he estimates that hundreds may have been appointed by, and that all them were likely paid generously.

Davidoff devotes a good chunk of his column zeroing in the fact that corporate monitors often come from the ranks of former federal prosecutors and, in many instance, are likely being installed in the lucrative posts by friends and former colleagues.

Apple, BP, Deutsche Bank and JPMorgan Chase are among the companies Davidoff cites as having been required to engage monitors.

To underscore his criticisms of the practice, Davidoff considers the case of Bart Schwartz, a former federal prosecutor who serves as chairman of consulting firm Guidepost Solutions and has been appointed independent compliance consultant for SAC Capital. In that role, Schwartz is in responsible for monitoring the trading of legacy firm Point72 Asset Management, which has has been reconstituted as family firm focused mostly on the personal fortune of SAC founder Steven Cohen.

“The job is likely to earn Mr. Schwartz millions, but it will do little more than that,” contends Davidoff, who adds that Point72 has every reason to adhere to the rules that have been imposed on it in the wake of the federal government’s long-running insider trading investigation into SAC Capital.

“Why should this compliance be outsourced for millions of dollars? Wouldn’t it be better for the government to take the money and make its own assessment or arrange its own investigation?”

Elsewhere on the corporate monitor front, news organizations reported this week that Apple appears to have made peace with the lawyer appointed to oversee the company’s efforts to improve its antitrust policies.
The Wall Street Journal reported Monday that Goodwin Procter partner Michael Bromwich told the federal judge who appointed him to the post that his dealings with Apple had “significantly improved,” but that he still needs the company to provide him with more information.

“Based on the information Apple has provided to date, our view is that Apple has made a promising start to enhancing its Antitrust Compliance Program, but that Apple still has much work to do,” Bromwich said in a 77-page report filed Monday, the Journal reported.

Davidoff did not comment in his article on the particular terms and arrangements surrounding Bromwich’s engagement.

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