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Walmart Store Photo: Diego M. Radzinschi/ALM

Last year, Assistant Attorney General Brian A. Benczkowski issued a memorandum to all Department of Justice (DOJ) Criminal Division personnel providing new guidance for the selection of corporate monitors. The Benczkowski Memo sets forth, among other things, considerations for determining whether a monitor is needed in a particular case, which include whether the misconduct involved exploitation of inadequate internal controls, whether the misconduct was pervasive across the business organization, whether the company has made significant improvements to its compliance programs and internal controls, and whether those improvements have been tested to demonstrate effective deterrence for similar misconduct in the future. The Memo also instructs that DOJ should take into consideration “whether the changes in corporate culture and/or leadership are adequate to safeguard against a recurrence of misconduct,” as well as whether adequate remedial measures were taken to address the misconduct.

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