Over the past several years, there have been many attempts to garner greater transparency of the government’s use of nonprosecution agreements and monitorships. On three occasions the party attempting to obtain a ruling that would reign in the government’s authority over these matters has won at the district court level. In each of these instances, however, the court of appeals reversed. Continue reading
Tag Archives: Veronica Root
Repeat Corporate Misconduct
But for other more salacious political concerns, the biggest story of the last couple weeks likely would have been Mark Zuckerberg’s testimony before Congress. Zuckerberg spent two days answering hundreds of questions from lawmakers.[1] Much of the questioning was concerned with Facebook’s protection, or alleged lack thereof, of its users’ privacy. The testimony, however, once again raises questions about how companies that engage in repeated instances of misconduct should be sanctioned. Continue reading
What Does it Mean to be a Monitor?
Monitorships are utilized when misconduct is found within an organization, but what does it mean to be a monitor? In the past, I have spoken to monitors who insist that I don’t understand what it is they do, but what the conversations revealed over time is that the word monitor is used to encompass a great deal of similar, yet distinct, activity. Continue reading
Greater Transparency in Monitor Reports: An Unintentional Result?
For several years, scholars, regulators, corporations, practitioners, reporters, and the public have debated whether monitor reports should be publicly available. Those in favor of greater transparency argue, in part, that allowing access to monitor reports would serve as an additional check on efforts to improve compliance within corporations. Those in favor of robust confidentiality argue, in part, that confidentiality serves to encourage more frank conversations and effective participation in the monitorship process by employees at the monitored organization. The debate, however, was largely an academic one, because courts appeared to defer to the government’s contention that monitor reports should be kept confidential.[1] Yet in January 2016, a district court ordered that HSBC’s monitor’s report be made publicly available, subject to certain redactions. The district court’s ruling triggered yet another round of commentary and discussion regarding the appropriate norms governing the disclosure of monitor reports. Continue reading