Thursday, July 8, 2010
DOJ issued a press release, dated May 25, 2010, that provides additional guidance on the use of monitors in deferred and non-prosecution agreements. Where the Morford Memorandum had outlined nine basic principles for drafting monitor-related provisions in agreements, this new release provides an additional consideration. The memo provides that "[a]n agreement should explain what role the Department could play in resolving disputes that may arise between the monitor and the corporation, given the facts and circumstances of the case." Interestingly, the memo starts by stating that "the role that the Department plays in resolving particular types of disputes should be consistent with the fact that the Department is not a party to the contract between the company and the monitor." The DOJ policy provides examples of language that might be included in an agreement.