Corporate Crime: Preliminary Observations on DOJ's Use and Oversight of Deferred Prosecution and Non-Prosecution Agreements
Released: 2009-06-25T00:00:00

Letter

DOJ Based the Use and Terms of DPAs and NPAs on Principles of Federal Prosecution and Other Factors, but Prosecutors’ Different Perspectives on DPAs and NPAs Led to Inconsistent Use and Labeling

DOJ prosecutors cited the Principles of Federal Prosecution of Business Organizations as a major factor in their decision on entering into a DPA or an NPA, and considered other factors, such as the Federal Sentencing Guidelines, in determining the terms of these agreements. Prosecutors also said that they generally negotiated these decisions with companies. However, in making these decisions, prosecutors differed in their willingness to use DPAs or NPAs. In addition, prosecutors’ different perspectives on the definitions of DPAs and NPAs led to inconsistencies in how they labeled the agreements. DOJ plans to determine the need to require consistency in the use of the labels DPA and NPA.

DOJ Prosecutors Cited Principles of Federal Prosecution as Influential in Their Decision on Entering into a DPA or NPA but Were Inconsistent in their Use and Labeling of Agreements

Prosecutors in all 13 DOJ offices we included in our review consistently said that they based their decision on whether to enter into a DPA or NPA rather than prosecute the company or decline to do so on the Principles of Federal Prosecution of Business Organizations. First issued in 1999, these principles are DOJ’s guidance to federal prosecutors on investigating, charging, and negotiating a plea or other agreement with respect to corporate crimes. The principles instruct prosecutors to consider nine factors when determining how to treat a corporation suspected of criminal misconduct and provide a number of actions prosecutors may take, including declining to prosecute, entering into a DPA or NPA, or criminally prosecuting, the corporation. The principles also include guidance on when the nine factors most appropriately apply. The factors, and examples of the manner in which they influence prosecutors’ choice of action, are shown in figure 1 below.

While the prosecutors with whom we spoke said that many of these factors may have influenced their decision on entering into a DPA or NPA in each case, they most frequently cited the company’s cooperation with the investigation, the collateral consequences of a criminal prosecution, and any remedial measures the company had taken or planned to take as most important in their decision on entering into a DPA or NPA. For instance, one prosecutor told us that the company’s cooperation is an important factor in cases involving violations of the Foreign Corrupt Practices Act because obtaining the evidence from foreign countries in these types of cases is a cumbersome and lengthy process that could take up to 10 years. However, with the company’s cooperation, which may entail assisting DOJ in tracing bribe payments through multiple overseas accounts, DOJ may be able to obtain the evidence it needs in a matter of weeks. With regard to collateral consequences, some DOJ prosecutors explained, for example, that the potential harm that prosecution and conviction of health care companies can have on innocent third parties may be a key factor in their decision on entering into a DPA or NPA with these kinds of companies. Federal law provides for health care companies convicted of certain crimes to be debarred from—or no longer eligible to participate in—federal health care programs. Prosecutors in one office said that they chose to enter into DPAs and an NPA simultaneously with five orthopedic device companies that provided kickbacks to physicians because, combined, these companies comprised the vast majority of the market for hip and knee replacements; therefore, conviction and debarment of these companies would have severely limited doctor and patient access to replacement hips and knees. In terms of remedial measures, prosecutors cited enhancements companies made to their compliance programs, the termination of employees responsible for the wrongdoing, and the company’s willingness to make payments to the victims of the crime as influential in their decision on entering into a DPA or NPA, rather than prosecute.

Our preliminary analysis suggests that officials from many of the DOJ offices we met with have made efforts to be transparent about the basis for their decisions on entering into DPAs or NPAs. For example, 10 of the 13 DOJ offices issued press releases explaining how they applied the Principles of Federal Prosecution of Business Organizations when deciding whether to enter into these agreements. According to an official in the Criminal Division’s Fraud section, its policy is to issue press releases upon entering into DPAs and NPAs with companies related to the Foreign Corrupt Practices Act, which helps to increase transparency. As part of our ongoing review, we will determine the extent to which DOJ offices have additional policies—including supervisory review and documentation of the reasons for their decisions to enter into a DPA or NPA—that promote transparency and accountability regarding these agreements.

DOJ’s reliance on the Principles of Federal Prosecution of Business Organizations was also apparent to many of the companies involved in the DPAs and NPAs. Ten of the 17 company officials with whom we spoke as of June 5, 2009, said that they were aware that DOJ based its decision on whether to enter into a DPA or NPA on the factors articulated in the Principles of Federal Prosecution of Business Organizations. Moreover, officials from 6 of these 10 companies reported making presentations to DOJ based on the nine factors in order to influence prosecutors’ decisions on using agreements in their cases, although companies generally reported that the prosecutors made the ultimate decision about whether to enter into a DPA or an NPA.

DOJ prosecutors also made decisions about which of these agreements— DPA versus NPA—the office would enter into. A commonly accepted distinction between these two types of agreements is that a DPA involves the filing of a charging document with the court, while, for an NPA, charges are not filed with the court. Officials from 12 of the 17 companies with whom we spoke preferred an NPA, largely because they viewed NPAs as more advantageous from a public relations perspective for the company. Some of these officials explained that, because a charge is not filed in court in association with an NPA, companies are able to report that they were not charged or prosecuted in the case; a DPA, on the other hand, involves the filing of charges in court, which can result in greater negative publicity for the company.

In choosing between a DPA and an NPA, prosecutors most frequently reported considering the same factors they did when deciding whether to enter into an agreement at all—namely, cooperation, collateral consequences, and the companies’ remedial actions. For example, prosecutors at 6 of the 13 DOJ offices said that they considered the company’s cooperation in their investigation when deciding between a DPA and an NPA. Prosecutors from one DOJ office said that once the company learned it was the target of the office’s investigation, its lawyers immediately called the office seeking to cooperate and continued to cooperate extensively throughout the office’s ensuing 3-year investigation, remaining in daily contact with the office and assisting in its investigation. As a result, the DOJ office chose to enter into an NPA rather than a DPA with the company. Not all of the 13 DOJ offices we included in our review reported entering into both types of agreements. For instance, 3 of the 13 DOJ offices we included in our study, including one section of the Criminal Division, exclusively entered into DPAs with companies. A prosecutor from one of these offices said that he did not consider entering into NPAs in any of its cases because he viewed NPAs as too lenient on the company. We will continue to assess this issue as part of our ongoing work.

Officials from 11 of the 17 companies with whom we spoke said that the decision between a DPA and an NPA was exclusively made by DOJ, and officials from 4 of these companies reported that DOJ’s reasons for choosing between a DPA and an NPA were not made clear. On the other hand, officials from 4 other companies said that the decision was a result of negotiations between DOJ and the company. Companies’ opinions varied on whether guidelines for choosing between a DPA and an NPA would be beneficial. Officials from 5 of the 17 companies we interviewed said that such guidelines would assist the companies in negotiating between a DPA and an NPA with DOJ, whereas officials from three companies believed that guidelines would make DOJ’s decision between a DPA and an NPA more transparent to the company. Officials from 6 companies cited reasons why guidelines may not be useful, such as concerns that such guidelines may not address the unique circumstances of each case, would not be binding on DOJ prosecutors, and were not necessary because DOJ’s rationale for choosing a DPA versus an NPA was made clear to the company. Prosecutors at 4 of the 13 offices we spoke with stated that these guidelines would not be beneficial because they need the flexibility to choose between a DPA and an NPA based on the unique circumstances of each case.

In addition, prosecutors differ in whether they called their agreements DPAs and NPAs. For example, prosecutors from 2 of the 13 offices with whom we spoke told us that they are reluctant to file agreements in court because of their understanding that some judges do not want the case to be open on their dockets for the length of the deferral period. While prosecutors from one of these offices called the agreements it did not file in court NPAs, the other office still labeled its agreements DPAs because it viewed DPAs as agreements in which the company admits guilt, regardless of whether charges are filed in court. Recognizing the inconsistent use of the labels DPA and NPA, in March 2008, then Acting Deputy Attorney General Craig Morford issued a memorandum—also known as the “Morford Memo”—which stated that a DPA is typically predicated on the filing of both a formal charging document and the agreement with the appropriate court, while an NPA is an agreement maintained by the parties, rather than being filed with the court. The Morford Memo also states that clear and consistent use of these terms will help DOJ more effectively identify and share best practices and track the use of DPAs and NPAs. However, based on our analysis of the agreements entered into after DOJ issued this guidance, not all the agreements were labeled in accordance with the definitions provided. Of the 27 agreements entered into after DOJ issued this guidance, 20 were labeled as DPAs or NPAs in the agreement or the press release announcing the agreement. Of these 20 agreements, 3 were not labeled in accordance with the definitions in the guidance. The remaining 7 agreements were labeled as agreement, case disposition agreement, or pretrial diversion agreement. One reason for the differences in the manner in which agreements are labeled is that not all prosecutors believe that the use of the definitions of DPAs and NPAs in the guidance is mandatory. For instance, a prosecutor at one office told us that the office believed that the definitions were provided only for the purposes of reading the Morford Memo and not as guidance for labeling DPAs and NPAs going forward, while a prosecutor at another office believed that the Morford Memo was intended as mandatory guidance on the use of the definitions of DPAs and NPAs in the future. According to the Office of the Deputy Attorney General, DOJ intends for the definitions in the Morford Memo to be mandatory and followed consistently by prosecutors for the purpose of internal reporting and tracking of these agreements. However, DOJ does not intend for the definitions to inhibit prosecutors’ ability to externally label these agreements in accordance with the unique circumstances of a particular case or the practices and preferences of a particular DOJ office, company, or judge. For instance, the company may prefer that an agreement be labeled as “agreement” rather than “deferred prosecution agreement” because companies believe this label is less severe. Thus, the prosecutor may negotiate with the company over the external label. Regardless of the external label on the agreement, DOJ intends for prosecutors to track the agreement either as a DPA or NPA in accordance with Morford Memo definitions. In addition, DOJ is aware that there may be agreements that share some of the elements of DPAs and NPAs but may not readily fit the Morford Memo definitions—for instance, the Office of the Deputy Attorney General explained that in one case the company had already been indicted on some of the criminal charges associated with the agreement prior to the agreement being reached, but had not been indicted on other charges associated with the agreement, and therefore it was not clear whether the agreement fit the definition of a DPA—in which charges are filed—or an NPA—in which charges are not filed. Taking into account external circumstances such as these, DOJ plans to determine whether there is a need to take additional steps to require the use of the definitions, to ensure consistency in the use of labels across offices.

DOJ Considers Input from Company Negotiations and Other Factors, such as the Sentencing Guidelines, When Setting the Terms of DPAs and NPAs

Prosecutors in 11 of the 13 offices and officials from 14 of the 17 companies with whom we spoke reported that they negotiated at least one of the terms in their DPAs and NPAs, including monetary payments to victims or the government, the duration of the agreement, or compliance program requirements, as well as additional terms, such as monetary donations to foundations or educational institutions. Furthermore, according to prosecutors in all 13 DOJ offices, they considered other factors, such as guidance provided in the Federal Sentencing Guidelines or the terms included in other DPAs or NPAs as examples, when determining the terms of their agreements.

Monetary payments: Of the 57 DPAs and NPAs we reviewed, 45 required monetary payments—which may include restitution to victims of the crime, forfeiture of the proceeds of the crime, and monetary penalties imposed by DOJ—ranging from $30,000 to $615 million. While the remaining 12 agreements did not require such payments, in 3 agreements the companies were required to make payments to organizations or individuals that were not directly affected by the crime; for 7 agreements the company had already agreed to make payments as part of a separate agreement with another agency or DOJ division, such as the Securities and Exchange Commission or DOJ’s Civil Division; and for 1 agreement, two of the company’s subsidiaries had already agreed to make monetary payments as part of a plea agreement and a DPA. In the remaining agreement, the company was not required to make a payment and did not enter into a civil settlement in order to obtain release from its civil liability in the case. In setting the payment amounts in DPAs and NPAs, prosecutors reported that they considered the following: (1) the section of the Federal Sentencing Guidelines on determining fines for business organizations, which includes consideration of the seriousness of the offense, culpability of the organization, and the company’s cooperation, among other factors; (2) monetary gains to the company or losses to its victims as a result of its crime; and (3) the company’s ability to pay. Prosecutors in 6 of the 12 offices with whom we spoke whose DPAs and NPAs included monetary payments reported that they negotiated the monetary payments with the other party. While representatives of 7 of the 13 companies we interviewed that were required to make monetary payments told us that they were able to negotiate the monetary payment with DOJ, representatives of 4 companies told us that they were not able to negotiate the payment. Representatives from 2 of these companies did not express concern over the lack of negotiation—1 said that DOJ’s reasons for setting the payment were made clear to the company, while the other said that the company had no reason to question the payment figure DOJ set. One of these companies reported that DOJ did not provide its rationale for the monetary payment, and the remaining company did not provide opinions about the process by which the payment was set.

Duration: The durations of DPAs and NPAs have ranged from 3 months to 5 years. Prosecutors at 9 of the 13 DOJ offices with whom we spoke based the duration of the agreement on the amount of time they believed was necessary for the company to correct the problems underlying the criminal conduct. For instance, one prosecutor said that the company was replacing its old computer billing system, which had overbilled a federal agency, resulting in the criminal conduct underlying the DPA. The prosecutor set the duration at 27 months in order to allow the company to install the new billing system and ensure it was functioning appropriately, and not continuing to overbill the agency. Prosecutors at 5 of the 13 offices we visited also reported that they negotiated with companies over the duration of the agreement. On the other hand, companies that had agreements with 5 other DOJ offices told us that they did not negotiate the duration, although none of these companies expressed concern over the duration of the agreement. For instance, an official from one of these companies said that the company would have preferred a shorter duration, but was satisfied with the duration DOJ set. Prosecutors in 3 DOJ offices also told us that they considered the duration of other DPAs or NPAs as examples when setting the duration of their agreements.

Compliance program requirements: Forty-five of the 57 DPAs and NPAs we reviewed included requirements that the company improve or enhance its compliance program, while 12 did not include this type of requirement. According to prosecutors in 6 of the 13 DOJ offices we met with, they required companies to enhance or implement a compliance program in order to reform the company, prevent further misconduct, or help establish and publicize a compliance program standard for the industry. In deciding not to include compliance requirements, prosecutors reported that they considered whether the company that committed the wrongdoing could engage in such criminal conduct again. For instance, one prosecutor said that a compliance program was not required as part of an agreement because the company’s violations occurred during its participation in the United Nation’s Oil-for-Food Program, which was no longer in existence when the agreement was signed. In addition, prosecutors were aware that 2 of the companies involved in DPAs or NPAs that did not include compliance program requirements had entered into agreements with other regulatory agencies that did include such requirements. When developing compliance requirements in DPAs and NPAs, prosecutors most commonly (8 of 13 offices) worked with regulatory agencies with relevant jurisdiction over the companies—such as Immigration and Customs Enforcement for issues related to the hiring of illegal immigrants, the Environmental Protection Agency for environmental crimes, or the Securities and Exchange Commission for issues involving accounting and financial fraud—to develop the compliance requirements included in the agreement. Several prosecutors and company officials also reported that they negotiated over the compliance requirements in the DPA or NPA. For instance, one company official said that DOJ initially developed the compliance program requirements, but when the company raised concerns about the practicality and effectiveness of the requirements, DOJ worked with the company to revise them. In the end, the official felt that the company’s enhanced program was a best practice in the industry.

Extraordinary restitution: DPAs and NPAs have also included additional terms, such as payments or services to organizations or individuals not directly affected by the crime; these payments are sometimes referred to as extraordinary restitution. Of the 57 DPAs and NPAs we reviewed, 4 included such terms. Prosecutors and companies with whom we spoke about these provisions generally reported that the provisions were determined through negotiations between the two parties. In addition, these prosecutors were supportive of including extraordinary restitution provisions in DPAs and NPAs because, for example, they believe such terms can help improve the availability of services in the community and prevent similar misconduct from occurring in the future, not just within the company, but in a larger context. For instance, 1 DPA required the organization to provide uncompensated medical care to the state’s residents, while an NPA required the company to provide funding for a not-for-profit organization to support projects designed to improve the quality and affordability of health care services in the state. Another DPA required a company that had not complied with water treatment regulations to provide an endowment of $1 million to the U.S. Coast Guard Academy for the purposes of enhancing the study of maritime environmental enforcement, with an emphasis on compliance, enforcement, and ethics issues. In May 2008, DOJ issued guidance prohibiting the use of terms requiring payments to charitable, educational, community, or other organizations or individuals that are not the victims of the criminal activity or are not providing services to redress the harm caused by the criminal conduct because the use of such terms could create actual or perceived conflicts of interest or other ethical issues. Based on our preliminary analysis, none of the 25 DPAs and NPAs that were entered into since this guidance was issued required companies to make payments or perform services for individuals or organizations that were not directly harmed by the crime.

While most company officials stated that they had input into, or were able to negotiate over, whether to enter into a DPA or NPA and the terms of the agreements, officials from nine of these companies reported that DOJ had greater power in the negotiations than the company because, for instance, if the negotiations were not successful, DOJ could have proceeded with prosecution. However, prosecutors at 4 of the 13 offices with whom we spoke noted that if companies had concerns about the terms of their DPAs or NPAs, they could express them to their office, or appeal them to a higher level within DOJ. Representatives from six companies expressed reluctance to appeal any concerns they had with the terms of the agreement. Officials from two of these companies explained that appealing to a higher level in DOJ could negatively affect their interactions with the prosecutors involved in the case. On the other hand, officials from four companies told us that they would have been comfortable appealing the terms, if needed. As part of our ongoing review, we will continue to assess the extent of the companies’ role in setting the terms of the agreements and obtain DOJ’s perspective on this issue.

DOJ Oversaw Companies’ Compliance through the Use of Independent Monitors, Coordination with Regulatory Agencies, and Other Means

In 26 of the 57 DPAs or NPAs we have reviewed to date, prosecutors required that the company hire, at its own expense, an independent monitor to assist the company in establishing a compliance program, review the effectiveness of a company’s internal control measures, and otherwise meet the terms of the agreements. In the remaining cases, DOJ coordinated with the relevant regulatory agency already monitoring or overseeing the company, or used other means, such as requiring companies to certify their compliance, to ensure the terms were met.

When deciding whether a monitor was needed to help oversee the development or operations of a company’s compliance program, DOJ considered factors such as the availability of DOJ resources for this oversight, the level of expertise among DOJ prosecutors to monitor compliance in more technical or complex areas, and existing regulatory oversight. Of the 13 DOJ offices we met with, 10 utilized monitors.

Prosecutors in four of these nine offices cited as a reason for requiring an independent monitor the limited time and resources their offices had to oversee a company’s compliance program, make appropriate recommendations, and reform the company’s compliance behavior, whereas monitors often have an entire staff available to them to perform these activities. Prosecutors in five of the nine DOJ offices we met with that had utilized monitors, cited as a reason for requiring an independent monitor the limited expertise the office had in overseeing company compliance in a particular area of misconduct. For example, prosecutors in one office stated that part of the company’s wrongdoing dealt with commodities trading, and while they did not have this background, the monitor selected by the office had commodities trading experts on his staff. Other prosecutors cited the need for technical expertise regarding misconduct in a particular geographic region to oversee company compliance effectively—resources and skills which DOJ prosecutors did not have—as the reason to require that a company hire a monitor.

In 22 of the 26 agreements requiring an independent monitor, the monitor was required to file written reports with DOJ prosecutors. The frequency of reporting to DOJ prosecutors varied by agreement, with 13 monitors required to report every 3 or 4 months; 2 monitors required to file semiannual reports; 5 monitors required to file annual reports or an initial report with annual or semiannual follow-up reports; 1 monitor required to report within 120 days of entering into the agreement; and 1 monitor required to report no later than 45 days and 90 days after the commencement of the agreement, on or before 90 prior to termination of the agreement and at such other times as designated by DOJ. For two of the three agreements overseen by an independent monitor where the agreement did not specifically require written reports, the prosecutors we spoke with said that they typically met frequently with the monitor themselves to discuss the company’s progress towards fulfilling the agreements. We have not assessed whether the monitors’ reports were filed in a timely fashion or covered the elements required by the agreements, but plan to obtain information on monitor reporting as part of our ongoing review.

In one instance, the district court judge also received the reports filed with federal prosecutors by the independent monitor because, in that district, the office typically involved the court in the selection of the independent monitor, and the judge had issued an order requiring quarterly reporting to the court. We are in the process of collecting information from federal judges who have been involved with DPAs to determine the extent to which judges received monitor reports, or assessments of these reports provided by DOJ, in their oversight of DPAs.

In 18 of the 57 agreements we reviewed to date, there was a requirement for companies to make improvements to existing ethics and compliance programs or implement new programs, but there was no requirement for companies to hire an independent monitor to review the effectiveness of these programs or the companies’ compliance with the terms of the agreement. In 4 cases, the company had signed a civil or administrative agreement with a federal regulatory agency as part of a settlement related to the underlying criminal misconduct, which required the company to hire an independent consultant, review organization or compliance officer. In such cases, DOJ officials said that they depended on the reports of these regulatory monitors or the regulatory agency to assure themselves of companies’ compliance in part to avoid unnecessary duplication. In the other 14 cases, where the company had not signed a settlement agreement with a regulatory agency requiring an independent monitor, DOJ officials stated that they used other methods to determine companies’ compliance with the agreement. In 9 of the 14 cases, they stated that they depended on the regulatory agency to inform them if, in the course of its regulatory oversight, the agency discovered the company was violating any of the provisions of the agreement. For example, in 2 DPAs we reviewed where financial institutions failed to maintain effective anti-money laundering programs, DOJ prosecutors said that they communicated frequently with financial regulators, reviewed reports submitted to the regulators, and spoke to the regulators before the agreements were completed. In the remaining 5 cases, the prosecutors said they reviewed documents submitted by the company or depended on the companies to self-certify that they had complied with the provisions of the agreement.

For the remaining 12 of the 57 agreements that did not require companies to improve or expand ethics and compliance programs, DOJ offices conducted oversight through various mechanisms, including: Assuring that monetary penalties or restitution payments were paid in full. For example, an accounting firm agreed to make restitution payments to a fund established to repay wronged investors, and to pay an administrator to administer the fund. The administrator provided reports to the office on the names of victims that received payments from the fund, and the amount received.

Assuring that the company cooperated with DOJ in continuing investigations, including responding to information requests from federal prosecutors. For example, an energy trading company in a DPA with one office agreed to continue to cooperate with federal prosecutors by providing information relevant to ongoing investigations in the natural gas industry.

Requiring the company to certify that it had followed certain requirements in the agreement. For example, one pharmaceutical company was required to certify that it had not filled prescriptions for off-label uses of one of its drugs. In that case, the prosecutors stated that it would be easy to examine the company’s prescription records at the end of the agreement to determine if the certification was accurate, and if not, the company would additionally be liable for falsely certifying compliance.

Prosecutors We Contacted Varied in the Extent to which They Involved Companies in the Monitor Selection Process, and DOJ Does Not Require Documentation of the Process and Reasons for Selecting Monitors, Making It Difficult to Determine whether Monitor Selection Guidance Is Followed

We reviewed 26 agreements that required the company to hire a monitor. Although DOJ was not a party to the contracts between companies and monitors, DOJ generally took the lead in approving the monitors. Specifically, according to officials in the 10 DOJ offices we contacted that entered into DPAs and NPAs that required monitors, DOJ had the final say in selecting the monitor for all but one of these agreements. However, according to these officials, the monitors were not selected by any one individual; rather, the decision was made among several DOJ officials and, in most instances, companies were able to provide input to DOJ on who the monitor should be, although the extent of company involvement varied.

For 12 of the agreements we reviewed, DOJ prosecutors said that the companies proposed a single monitor or a list of several monitors from which DOJ could choose. In all of these cases, DOJ officials said they were able to select an appropriate monitor for the DPA or NPA based on the company’s suggestions.

For three of the agreements we reviewed, DOJ prosecutors said that they and the company developed separate lists of monitor candidates, shared their lists with one another, and worked together to choose the monitor.

For seven of these agreements, DOJ prosecutors said that they chose the monitor. For five of the seven agreements, according to DOJ officials, the prosecutors selected the monitors and later provided the companies with the opportunity to meet with the selected individual. According to the prosecutors, they gave companies the option to object to DOJ’s monitor selection, but none of the companies did so. However, our preliminary work suggests that at least one company reported that they did not have this opportunity. For one of these agreements, DOJ officials said that they sought the companies’ input on monitor qualifications before making their selection. For another of these agreements, it was unclear whether the company had any discussion with DOJ regarding monitor qualifications before DOJ selected the monitor.

For the agreements we reviewed where DOJ officials identified monitor candidates, the selection processes employed across these offices were similar. DOJ officials generally stated that in these instances, they identified monitor candidates based on their personal knowledge of individuals whose reputations suggest they would be effective monitors, or through recommendations from colleagues or professional associates who were familiar with requirements of a monitorship. After identifying several candidates, the prosecutors established a committee, which generally consisted of individuals such as the prosecutors involved in the case, the DOJ office section chief, and sometimes the Chief Assistant U.S. Attorney or a Deputy U.S. Attorney. The committees were responsible for evaluating the candidates and selecting a monitor. Prosecutors said they evaluated candidates based on whether they had any conflicts of interest with the company and their qualifications and expertise in a particular area.

Officials from the five companies we interviewed who identified monitor candidates for DOJ approval used a similar process as DOJ. For example, officials from one company reached out to their associates who they believed could help them identify individuals who would be effective monitors. Company officials said that they were looking for a monitor with experience working with DOJ and knowledge of the specific area of law that the company violated. From these suggestions, the company developed a list of candidates to interview, and based on the results of the interviews, generated a shorter list of candidates from which DOJ would choose the monitor.

In selecting the monitors, DOJ sometimes sought input from federal regulatory agencies. According to prosecutors in DOJ’s Criminal Division, it is not uncommon for the division to collaborate with agencies such as the Securities and Exchange Commission to select a monitor to serve under agreements both agencies have reached with a company, particularly if the agreements contain similar requirements for the company. The prosecutors said having two different monitors could be cost-prohibitive and result in duplication of effort.

Courts were rarely involved in monitor selection. Of the 26 agreements we reviewed that had monitor requirements, 2 required court approval of the selected monitor. One of the 13 DOJ offices included in our review has a formal monitor selection policy. According to the prosecutors in this office, court involvement in monitor selection limits the possibility of favoritism in monitor selection by the office. The policy requires prosecutors to compile a list of potential monitor candidates and submit the list to the court, where a district judge would then appoint a monitor from this list. We plan to solicit input on court involvement from the judiciary as a part of our ongoing review.

When we asked DOJ officials, company representatives, and monitors about other methods to prevent the appearance of favoritism in monitor selection, such as developing a national list of prescreened monitors from which DOJ would make its selection, they identified both advantages and disadvantages. Some of the advantages identified were (1) assurance that the monitors have been prescreened and are considered qualified by the government, (2) increased consistency in the monitor selection process, and (3) the ability to expedite the monitor selection process. The disadvantages they cited were (1) not all of the monitors on the list would have the specific expertise required for certain cases, such as commodities trading expertise; (2) based on their own experiences searching for monitors, it is likely that many of the monitors on a prescreened list will have conflicts of interest with the companies—such as the monitor having previously provided services for the company in an unrelated matter; (3) use of the list would limit company input in monitor selection; and (4) use of the list may actually increase the likelihood of favoritism because DOJ officials could populate the list with their associates, and could exclude other qualified monitor candidates. As a part of our ongoing work, we will continue to identify other models that aim to reduce favoritism in monitor selection. For example, one company official with whom we spoke cited the International Association of Independent Private Sector Inspectors General (IAIPSIG) as a possible model for developing a national pool of monitors. Members of this association are individuals or private sector firms with legal, auditing, investigative, and management skills who are available to be employed by an organization to ensure compliance with relevant laws and regulations. According to IAIPSIG, members—who may be retained by the government to prevent fraud in contracting and by private firms conducting internal investigations—must also adhere to the principles and standards in IAIPSIG’s code of ethics which require, among other things, that its members remain independent of both the monitored entity and the entity to which it is reporting, and refrain from accepting or performing work involving an actual or potential conflict of interest.

In March 2008, the Acting Deputy Attorney General issued the Morford Memo to help ensure that the monitor selection process is collaborative, results in the selection of a highly qualified monitor suitable for the assignment, avoids potential and actual conflicts of interest, and is carried out in a manner that instills public confidence. The guidance requires U.S. Attorneys Offices and other DOJ litigation divisions to establish ad hoc or standing committees, consisting of the office’s ethics advisor, criminal or section chief, and at least one other experienced prosecutor to consider the candidates for each monitorship. DOJ components are also reminded to follow federal conflict of interest guidelines and to check monitor candidates for potential conflict of interest relationships with the company. In addition, the names of all selected monitors must be submitted to the Office of the Deputy Attorney General for final approval. According to the Senior Counsel to the Deputy Attorney General, this approval is required in order to ensure public integrity in the monitor selection process.

While the Morford Memo established policies and guidance for the selection of independent monitors, including that the Office of the Deputy Attorney General approve the monitor selection, the memo does not require documentation of the process used and the reasons for selecting a specific monitor. Standards for internal control in the federal government state that all transactions and significant events, which could include the selection of monitors, should be clearly documented and that the documentation be readily available for examination. In addition, our prior work suggests that documenting the reasons for selecting a particular monitor helps avoid the appearance of favoritism and verify that selection processes and practices were followed. Since the release of the Morford Memo, we have identified two DPAs and NPAs that DOJ entered into for which monitors have been selected. According to the Office of the Deputy Attorney General, which is responsible for approving monitor selections, the United States Attorneys Offices involved in these two cases submitted e-mails to predecessors in the Office of the Deputy Attorney General regarding their proposed monitor selections. DOJ provided us with a summary of the correspondence from the prosecutors seeking Deputy Attorney General approval. While the correspondence in one case included information describing how prosecutors adhered to the processes required by DOJ guidance, the correspondence in the other case did not. For instance, the correspondence did not describe the membership of the committee that considered the monitor candidate. In addition, because the approval of one of the monitors was relayed via telephone and no documentation was readily available at the Office of the Deputy Attorney General, DOJ officials had to reach out to the individuals who were involved in the telephone call to obtain information regarding the monitor’s approval. As this example demonstrates, without requiring documentation of the process used and the reasons for selecting a particular monitor, it may be difficult for DOJ to validate whether its monitors have been selected and approved across DOJ offices in a manner that is consistent with the Morford Memo, which established monitor selection principles intended to instill public confidence.

In commenting on a draft of this report in June 2009, the Office of the Deputy Attorney General agreed that documenting the process used and reasons for monitor selection would be beneficial. However, because the office has not had to approve any monitor selections since the presidential transition in January 2009, the office did not believe it was in a position to determine exactly what internal procedures should be adopted to document the monitor selection process until it had reviewed more selection proposals. From January 2009 through May 2009, DOJ had four ongoing agreements that required the appointment of a monitor where, to date, the monitors have not yet been selected. We expect that when the Office of the Deputy Attorney General reviews the monitor proposals for these agreements, once they are submitted, the office will be in a better position to establish procedures for documenting monitor selection decisions.

Companies We Contacted Reported that Monitors Generally Charged Their Customary Rates but Raised Concerns about Scope of Monitors’ Work; Companies Would Like DOJ to Help Them Address Issues with Monitors

Of the 12 companies we have met with so far for which DOJ required a monitor, 6 told us that they did not have any concerns about the rate charged by the monitor, 3 expressed concern that the monitor’s rate was high, and the remaining 3 did not comment on the monitor’s rate. Officials from 6 of the 12 companies perceived that the monitors were either charging their customary rates or, in two additional cases, lower rates because the companies could not afford the customary rates. While the companies we met with generally did not express concern about the monitors’ rates, they reported concerns with other aspects of the monitorship that affected the overall compensation to the monitor. Specifically, 6 of the 12 companies raised concerns about the scope of the monitor’s responsibilities or the amount of work completed by the monitor; and four of the six companies reported that they did not feel they could adequately address their concerns by discussing them with the monitors. For instance, 1 company said that the monitor had a large number of staff assisting him on the engagement, and he and his staff attended more meetings than the company felt was necessary, some of which were unrelated to the monitor responsibilities delineated in the agreement. As a result, the company believes that the overall cost of the monitorship was higher than it needed to be. While the company reportedly tried to negotiate with the monitor over the scope of work and number of staff involved, the company stated that the monitor was generally unwilling to make changes. The company did not feel that there was a mechanism at DOJ whereby it could raise concerns regarding monitor costs because the costs were not delineated in the agreement. Instead, the costs were identified in an agreement between the company and the monitor and, therefore, DOJ was not responsible for overseeing the costs of the monitorship. Another company reported that its monitor did not complete the work required in the agreement in the first phase of the monitorship, which necessitated the monitor completing more work than the company anticipated in the final phase of the monitorship. This led to unexpectedly high costs in the final phase. The company official believed it was DOJ’s responsibility, not the company’s, to address this issue because the monitor had failed to complete the requirements DOJ had delineated in the agreement. As part of our ongoing review, we plan to obtain the perspectives of DOJ officials and monitors, in addition to companies, regarding the amount and scope of the monitors’ work and the most appropriate mechanisms companies can use to address any concerns they may have related to this issue.

Two company officials reported that they had little leverage to negotiate fees, monitoring costs, or the monitor’s roles and responsibilities with the monitor because the monitor had the ability to find that the company was not in compliance with the DPA or NPA. Officials from three companies suggested that DOJ should play a larger role in helping companies address concerns with their monitors. For example, one company official said that DOJ may need to develop a mechanism for companies to raise issues regarding their monitors without fear of retribution, while another company official suggested that DOJ meet routinely with the company to allow for a conversation between the company and DOJ about the monitoring relationship. Two companies felt that having a sense of the potential overall costs at the beginning of the monitorship, such as developing a work plan and estimated costs, would be beneficial for companies. For instance, one of these officials said that this would help establish clear expectations for the monitor and minimize unanticipated costs. DOJ has taken some actions which may address these concerns. In 2 of the 26 DPAs or NPAs we discussed with DOJ that had monitoring requirements, the monitor was required to submit a work plan prior to the monitor’s first review of the company. Additionally, an official in the Criminal Division Fraud Section said that it is the section’s general practice to meet with the monitor to discuss the monitor’s work plan. The Morford Memo also instructs DOJ prosecutors to tailor the scope of the monitor’s duties to address the misconduct in each specific case, which the memo indicates may align the expense of the monitorship with the failure that led to the company’s misconduct covered by the agreement. However, we have not yet been able to evaluate how these actions may address companies’ concerns. We will continue to obtain information on the ways in which company concerns regarding the monitors’ responsibilities and workload can be addressed.

We are conducting a survey of companies to solicit more comprehensive information on monitors’ fees, total compensation and roles and responsibilities, as well as the companies’ perceptions of the monitor costs in relation to the work performed. We will integrate these survey results into our final report. In addition, we are continuing to assess the potential need for additional guidance or other improvements in the use of DPAs and NPAs in our ongoing work.

Conclusions

One of DOJ’s chief missions is to ensure the integrity of the nation’s business organizations and protect the public from corporate corruption. DOJ has increasingly employed the tools of DPAs and NPAs in order to carry out this mission, and has recognized the potential long-term benefits to the company and the public of assigning an independent monitor to oversee implementation of a DPA or NPA. On the other hand, DOJ has also acknowledged concerns about the cost to the company of hiring a monitor and perceived favoritism in the selection of monitors, and thus the resultant need to instill public confidence in the monitor selection process. DOJ has made efforts to allay these concerns by issuing guidance requiring prosecutors to create committees to consider monitor candidates; evaluate potential conflicts of interest the monitor may have with the government and the company; and obtain approval of selected candidates from the Office of the Deputy Attorney General. Nevertheless, more could be done to avoid the appearance of favoritism. Requiring that the process and reasons for selecting a specific monitor be documented would assist DOJ in validating that monitors were chosen in accordance with DOJ’s guidance that is intended to help assure the public that monitors were chosen based on their merits and through a collaborative process.

We are continuing to assess the potential need for additional guidance or other improvements in the use of DPAs and NPAs in our ongoing work.

Recommendation for Executive Action

To enhance DOJ’s ability to ensure that monitors are selected according to DOJ’s guidelines, we recommend that the Deputy Attorney General adopt internal procedures to document both the process used and reasons for monitor selection decisions.

Agency Comments and Our Evaluation

We requested comments on a draft of this statement from DOJ. DOJ did not provide official written comments to include in the statement. However, in an email sent to us on June 18, 2009, DOJ stated that the department agreed with our recommendation. DOJ also provided technical comments, which we incorporated into the statement, as appropriate.

GAO Contact and Staff Acknowledgments

For questions about this statement, please contact Eileen R. Larence at (202) 512-8777 or larencee@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this statement. Individuals making key contributions to this statement include Kristy N. Brown, Jill Evancho, Tom Jessor, Danielle Pakdaman, and Janet Temko as well as Katherine Davis, Sarah Kaczmarek, Amanda Miller, Janay Sam, and Mandana Yousefi.

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