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The Department of Justice’s new guidance regarding the appointment of corporate monitors could significantly change the dynamics for companies dealing with the important element of corporate compliance. Although the new guidance is couched as simply supplementing prior DOJ guidance in the “Morford Memo,” it could be a difference maker—it requires prosecutors to carefully weigh the monetary costs, as well as the burdens to a company’s operations, in deciding whether a monitor is required as a condition of a negotiated settlement with DOJ and, if necessary, to tailor the scope of the monitorship as narrowly as possible. The policy shift therefore creates opportunities for institutions to potentially avoid the imposition of a monitor if they redouble compliance efforts before winding up in DOJ’s cross-hairs. This article explores key takeaways to consider as a result of the DOJ’s new approach.

 

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