Jay Rosen explores what an organization must think about when in need of a corporate monitor – from his or her expertise to whether the monitor is truly independent.
The selection of an appropriate monitor can make or break the entire monitorship program for an organization. To prevent a problem, a company needs to have a clear understanding of what it is trying to achieve with a monitorship. If you are at the end of a FCPA enforcement action, your goals may be different than if you are attempting to engage in a pre-settlement monitorship. You also need to understand any government requirements in a post-resolution settlement.
Considering the Monitor
After this initial self-assessment of the company’s goals, you can move on to considering the monitor. Here, you need to assess the philosophy of potential candidates. Is the monitor coming in to simply investigate the company, or will the monitor help the company to remediate, prevent or resolve issues? A monitor who adds value will avoid the prosecutorial “gotcha” mentality and instead will focus on remediation “to help you be a better company.”
The next line of inquiry is, can the company obtain the maximum value from the expertise, independence and viewpoints the monitor can provide? In other words, what is the value the monitor will deliver to your organization? You should ask, “can the monitor help my business?”
Monitorship Expertise
You must also ask, “what is the monitor’s expertise?” This question is about more than being a subject matter expert in the area of law being applied, such as the FCPA; it concerns being an expert in monitorships. It is also more than simple cost-effectiveness; it is how the monitor will perform the work without disrupting your organization or how the monitor will work to keep disruptions to a minimum. An expertise in monitorships would include how to conduct an evaluation, how to create a work plan that is rigorous yet cost-effective and how to “socialize the work plan with the company and with the government.”
Balancing the Interests
The monitor should have experience in balancing the interests of the government and the company.
Other necessary proficiencies include interview skills and ability to conduct focus groups; data gathering and analytics are also critical. Finally, there is the writing of the report and communication of information to interested stakeholders. There’s no value added if the monitor does not deliver a clearly written, factually based monitoring report at the end of the process. This report should make recommendations that logically flow from the information gathered and are culturally appropriate for this specific company. Remember, there is no one-size-fits-all solution for reporting or recommendations.
Bringing Value to a Company
There are different types of value a monitor can bring to a company. Obviously, a situation with a deferred prosecution agreement (DPA), or other enforcement action resolution document in place would suggest one type of value, yet there are other more business-process focused values a monitor can add. In the area of internal controls, a monitor’s assessment can lead to more effective internal controls, often through a reduced number of overall internal controls.
In working with companies, Affiliated Monitors has discovered another ‘soft’ factor that benefits and adds value to a company. This is the by-product of the actual methods that monitors employ to do the monitoring. The going in to the company and talking to employees, performing employee surveys and conducting interviews. That alone can have something of a cathartic effect on the company’s employees and on the mood and the morale in the company.
And we’ve seen it over and over again: When employees see that the company cares enough to bring in an independent firm that asks their opinions on what works and what doesn’t work and whether their managers are creating an open environment to communicate issues and to report issues, it helps improve the company.
And, as we know, better morale in the company improves the bottom line.
Independent and Conflict-Free
Lastly, a company needs to consider whether a monitor candidate is truly “independent and conflict-free.” This is important, because if not, then the value of the findings as well as the value of the entire effort can be at risk. And we’ve seen this over time in organizations that bring in monitors that they may know within their broader organizational structure and may have some kind of a conflict within the industry or within that company.
Any company faced with the selection of a monitor should run a thoughtful and diligent process. By employing this type of deliberation, the company will make sure to understand not only its goals, but also the value the company will obtain by working with the appropriate monitor.
In case you missed the earlier installments of this ongoing series, please see the links below.
Part 1: Corporate Monitorship 101: Who Are They, and What Can You Expect?
Part 2: What is a Post-Resolution Monitorship?
Part 3: What is the Power of a Pre-Settlement Monitorship?
