Tuesday, March 11, 2008

Monitors in Deferred Prosecution Hearings

The hearing on monitors in Deferred Prosecution Agreements was held yesterday.  To listen and view a video webcast of the hearing go here.  It is 2 hours and 54 minutes, but there is a long break between the two sessions.

In his opening comments, Hon. John Conyors, Jr. called for judicial oversight of these agreements. He stated as his second point that "despite the guidance the Department released just yesterday regarding use of corporate monitors in these agreements, this guidance still fails to ensure uniformity in the agreements themselves. Indeed, some agreements require the implementation of compliance programs, restitution and fines, while others do not."  His fourth point was that "there should be independent judicial oversight of corporate settlement agreements because currently there is no transparency and no requirement that they be made public."  Additionally he stated,

"Judicial oversight would help to ensure greater legitimacy of these agreements by providing a neutral decision-maker to prevent abuses and improper politicization, as well as ensure proper completion of the terms of the agreements. Judicial oversight would also provide some currently lacking public exposure of some aspects of the agreement process itself."

Former AG John Ashcroft's written testimony can be found here. From the DOJ, David Nahmais, (see written testimony here), noted the recent adoption of new DOJ guidelines.  A few interesting items discussed in the hearing:

  • Ashcroft was hit with questions such as - "who besides yourself was considered for the Zimmer Case?"  He admitted that he did not know who else was considered for this position, and he did not know if the appointment of the monitor was bid out for others to be considered.
  • As one might suspect there was discussion of the ethics chair being given to a U.S. Attorney's alma mater.  A comment was made that another law school had been approached first, but that they already had a business ethics chair.   This listener was wondering - should that have precluded them from receiving this new chair, and aren't there other law schools out there - even in this same state or close by in an adjoining state?
  • There was also discussion of the transparency problems when there are non-prosecution agreements. After all, these agreements bypass the court system.
  • There were also comments on whether these agreements should even be allowed.
  • It was brought out that there have been over 80 agreements.



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