Washington Lawyer - January/February 2019 - 34

TAKING THE STAND
Even with all these countermeasures, a monitor may well run up against resistance or obfuscation within the company. Despite this, the monitor must insist
upon interviewing the necessary employees and independently viewing
records relevant to the matter being investigated; accepting management's
word isn't enough. It helps if the lawyers have experience with the specific
industry or enterprise they are overseeing. If it's a pharmaceutical company, the
monitor should be thoroughly familiar with the regulatory process and issues
related to approved and off-label marketing practices, generic and non-generic
pricing structures, and Medicaid reimbursement. A monitor appointed to
oversee a labor union should probably have experience as a prosecutor
investigating labor racketeering.
After some criticism in the mid-2000s over how monitors were appointed,
Justice Department officials put out a series of memoranda making the process
more transparent and allowing corporate defendants to object to monitorships
that would be too onerous or expensive.

SCOPE OF THE WORK
Under current Justice Department rules, monitors have clearly defined roles and
duties. Those include:
* Independence. The monitor isn't an employee of the company or the
government.
* Oversight. The monitor must regularly ensure the company is complying
with the terms of the settlement agreement.
* Scope. The monitor's role should be limited to ensuring the company
doesn't engage in further misconduct.
* Reporting. All three parties - the monitor, the government, and the
company - should communicate freely and the monitor should make
periodic written reports.
* Implementation. The company isn't required to implement the monitor's
recommendations, but the government must be notified if it doesn't. Refusal
might signal the company isn't complying with the terms of its settlement.
*
*
*
*

* Recurrence. The settlement agreement should specify which misconduct the
monitor must report immediately to the government, but the monitor should
also have discretion to report other types of misconduct.

Subject-matter expertise;
Trusted colleagues and associates worldwide;
Translation services; and
Forensic accounting team.

Of these, the last is frequently essential. The monitor must not only be able to
pull internal financial statements but have access to forensic accountants who
can detect the signs of fraud, money laundering, and other improper activities.
The attorneys in charge of a monitorship frequently have background experience as prosecutors and apply the same type of reasoning and investigative
instincts as a government lawyer investigating a crime. They know which
questions to ask and how to get answers.
Forensic accountants, on the other hand, are trained to identify suspicious
patterns such as abnormalities in spending and revenue trends or bookkeeping
gamesmanship. Their role is to help the monitor uncover and understand the
company's finances, which often provide the first signs of wrongdoing.
The requirement for complete independence also dictates practices that are
foreign to any sort of normal attorney-client relationship. Team members
should have counterintelligence training to thwart efforts to infiltrate and influence their monitoring efforts. There should be redundancies in vital functions
and safe reporting mechanisms. On long-running assignments, it's also a good
idea to switch team members around on a regular basis to reduce the risk of
fraternization. Here, the challenge is balancing the need for independence with
the benefits of gaining expertise with how the business operates.
34 WASHINGTON LAWYER

*

JANUARY/FEBRUARY 2019

*

* Duration. The monitorship should last long enough to solve the problems
identified in the settlement. The agreement should provide the government
the power to extend the monitorship or end it early.
When a company finds itself in the crosshairs of a government investigation,
sometimes the best strategy is to start negotiating. And the end result of those
negotiations often will include a corporate monitor. For the relationship to
work, both sides must understand the role of the monitor and the stakes for
failing to maintain openness and transparency for the entire time the monitor
is in place.
When it works, it can be an extraordinarily effective mechanism for change -
if the company is willing to accept an independent agent in its midst.
Michael A. Battle is a partner in Barnes & Thornburg LLP's Washington, D.C., office
and a member of the firm's litigation department. His practice focuses on commercial
and civil litigation, white collar criminal matters, and appeals.
Karen A. McGee is a partner in Barnes & Thornburg LLP's Washington, D.C., office and
a member of the firm's international trade practice group and the corporate and
intellectual property departments. She concentrates her practice in the international
trade area.


http://www.dcbar.org/

Washington Lawyer - January/February 2019

Table of Contents for the Digital Edition of Washington Lawyer - January/February 2019

Digital Extras
Your Voice
From Our President
Career & Professional Development
Calendar of Events
Goverment & Gavel
Feature: Fighting the Stigma: The D.C. Bar Lawyer Assistance Program
Feature: The Road to Wellness
Feature: Taking the Stand: How Corporate Monitorships Rein in Misbehavior
Global & Domestic Outlook
Worth Reading & Media Bytes
Attorney Briefs
Ask The Ethics Experts
Disciplinary Summaries
Community & Connections
Last Word
Washington Lawyer - January/February 2019 - Cover1
Washington Lawyer - January/February 2019 - Cover2
Washington Lawyer - January/February 2019 - 1
Washington Lawyer - January/February 2019 - 2
Washington Lawyer - January/February 2019 - 3
Washington Lawyer - January/February 2019 - Digital Extras
Washington Lawyer - January/February 2019 - Your Voice
Washington Lawyer - January/February 2019 - From Our President
Washington Lawyer - January/February 2019 - 7
Washington Lawyer - January/February 2019 - Career & Professional Development
Washington Lawyer - January/February 2019 - 9
Washington Lawyer - January/February 2019 - Calendar of Events
Washington Lawyer - January/February 2019 - 11
Washington Lawyer - January/February 2019 - Goverment & Gavel
Washington Lawyer - January/February 2019 - 13
Washington Lawyer - January/February 2019 - Feature: Fighting the Stigma: The D.C. Bar Lawyer Assistance Program
Washington Lawyer - January/February 2019 - 15
Washington Lawyer - January/February 2019 - 16
Washington Lawyer - January/February 2019 - 17
Washington Lawyer - January/February 2019 - 18
Washington Lawyer - January/February 2019 - 19
Washington Lawyer - January/February 2019 - 20
Washington Lawyer - January/February 2019 - 21
Washington Lawyer - January/February 2019 - 22
Washington Lawyer - January/February 2019 - 23
Washington Lawyer - January/February 2019 - 24
Washington Lawyer - January/February 2019 - 25
Washington Lawyer - January/February 2019 - Feature: The Road to Wellness
Washington Lawyer - January/February 2019 - 27
Washington Lawyer - January/February 2019 - 28
Washington Lawyer - January/February 2019 - 29
Washington Lawyer - January/February 2019 - 30
Washington Lawyer - January/February 2019 - 31
Washington Lawyer - January/February 2019 - Feature: Taking the Stand: How Corporate Monitorships Rein in Misbehavior
Washington Lawyer - January/February 2019 - 33
Washington Lawyer - January/February 2019 - 34
Washington Lawyer - January/February 2019 - 35
Washington Lawyer - January/February 2019 - Global & Domestic Outlook
Washington Lawyer - January/February 2019 - 37
Washington Lawyer - January/February 2019 - Worth Reading & Media Bytes
Washington Lawyer - January/February 2019 - 39
Washington Lawyer - January/February 2019 - Attorney Briefs
Washington Lawyer - January/February 2019 - 41
Washington Lawyer - January/February 2019 - Ask The Ethics Experts
Washington Lawyer - January/February 2019 - 43
Washington Lawyer - January/February 2019 - Disciplinary Summaries
Washington Lawyer - January/February 2019 - 45
Washington Lawyer - January/February 2019 - Community & Connections
Washington Lawyer - January/February 2019 - 47
Washington Lawyer - January/February 2019 - Last Word
Washington Lawyer - January/February 2019 - Cover3
Washington Lawyer - January/February 2019 - Cover4
https://washingtonlawyer.dcbar.org/januaryfebruary2022
https://washingtonlawyer.dcbar.org/januaryfebruary2022
https://washingtonlawyer.dcbar.org/januaryfebruary2022
https://washingtonlawyer.dcbar.org/januaryfebruary2022
https://washingtonlawyer.dcbar.org/januaryfebruary2022
https://washingtonlawyer.dcbar.org/novemberdecember2021
https://washingtonlawyer.dcbar.org/julyaugust2021
https://washingtonlawyer.dcbar.org/julyaugust2021
https://washingtonlawyer.dcbar.org/marchapril2021
https://washingtonlawyer.dcbar.org/marchapril2021
http://washingtonlawyer.dcbar.org/novemberdecember2020
https://washingtonlawyer.dcbar.org/novemberdecember2020
https://washingtonlawyer.dcbar.org/septemberoctober2020
https://washingtonlawyer.dcbar.org/julyaugust2020
https://washingtonlawyer.dcbar.org/june2020
https://washingtonlawyer.dcbar.org/may2020
https://washingtonlawyer.dcbar.org/march2020
https://washingtonlawyer.dcbar.org/january2020
https://washingtonlawyer.dcbar.org/november2019
https://washingtonlawyer.dcbar.org/october2019
https://washingtonlawyer.dcbar.org/september2019
https://washingtonlawyer.dcbar.org/julyaugust2019
https://washingtonlawyer.dcbar.org/june2019
https://washingtonlawyer.dcbar.org/may2019
https://washingtonlawyer.dcbar.org/april2019
https://washingtonlawyer.dcbar.org/march2019
https://washingtonlawyer.dcbar.org/january2019
https://washingtonlawyer.dcbar.org/november2018
https://washingtonlawyer.dcbar.org/november2018
https://washingtonlawyer.dcbar.org/november2018
https://washingtonlawyer.dcbar.org/august2018
https://washingtonlawyer.dcbar.org/august2018
https://washingtonlawyer.dcbar.org/June/July2018
https://washingtonlawyer.dcbar.org/april2018
https://washingtonlawyer.dcbar.org/March2018
https://washingtonlawyer.dcbar.org/February2018
https://washingtonlawyer.dcbar.org/january2018
http://washingtonlawyer.dcbar.org/december2017
http://washingtonlawyer.dcbar.org/November2017
http://washingtonlawyer.dcbar.org/september 2017
http://washingtonlawyer.dcbar.org/september 2017
http://washingtonlawyer.dcbar.org/august2017
http://washingtonlawyer.dcbar.org/july2017
http://washingtonlawyer.dcbar.org/June2017
http://washingtonlawyer.dcbar.org/may2017
http://washingtonlawyer.dcbar.org/april2017
http://washingtonlawyer.dcbar.org/march2017
http://washingtonlawyer.dcbar.org/february2017
http://washingtonlawyer.dcbar.org/january2017
http://washingtonlawyer.dcbar.org/december2016
http://washingtonlawyer.dcbar.org/november2016/
http://washingtonlawyer.dcbar.org/october2016
http://washingtonlawyer.dcbar.org/september2016
https://www.nxtbookmedia.com