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On Oct. 11, 2018, Assistant Attorney General for the Criminal Division, Brian Benczkowski, issued the “Selection of Monitors in Criminal Division Cases” memorandum to “establish standards, policy, and procedures, for the selection of monitors” in U.S. Department of Justice (DOJ) Criminal Division cases involving a deferred prosecution agreement (DPA), non-prosecution agreement (NPA), or plea bargain between the DOJ and business organizations.
Building on the 2008 memorandum issued by then Acting Deputy Attorney General, Craig Morford (“Selection and Use of monitors in Deferred Prosecution Agreements and Non-Prosecution Agreements with Corporations”), Benczkowski opens with a discussion of applicable DOJ considerations regarding appointment of a compliance monitor. Specifically, the factors considered by Criminal Division attorneys are as follows:
The memorandum further notes that the DOJ should take monetary costs to the business into account — particularly compared to any potential benefits gained by the monitorship — in addition to “the unique risks and compliance challenges the company faces” in light of its industry and operating jurisdictions.
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