On October 11, 2018, Assistant Attorney General for the Criminal Division of the U.S. Department of Justice (DOJ) Brian A. Benczkowski issued new guidance on the selection of corporate compliance monitors in Criminal Division matters. The Benczkowski Memorandum signals a shift toward a more business-friendly approach to the imposition and use of monitors by the DOJ. Among other new provisions, the guidance directs prosecutors to weigh the potential benefits of a monitor against the costs and burdens on the company, and to consider whether the company’s existing compliance program and controls obviate the need for a monitor.

In his speech announcing the new guidance, Benczkowski stated the new policy is guided by the principle that “the imposition of a corporate monitor is never meant to be punitive” and should be “the exception, not the rule.” Benczkowski also invited companies that are subject to monitorship to contact the DOJ if they encounter problems regarding the scope of the supervision or the costs imposed on the company.

For the past five years, approximately one-third of the DOJ Fraud Section’s corporate resolutions involved the imposition of a corporate monitor. The new guidance will almost certainly lead to a drop in the number of monitors. But only those companies with robust compliance programs will be able to take advantage of the new policy and avoid the imposition of a monitor in resolutions with the Criminal Division.