"How to Find a Business-Minded Compliance Monitor and Minimize Reporting Requirements When Negotiating an FCPA Settlement (Part Three of Three)"The FCPA Report
In this article, Kathryn Cameron Atkinson discusses the importance of doing due diligence when selecting a compliance monitor. According to Atkinson, it is recommended that potential monitor candidates complete "questionnaires" in addition to a formal interview. The questionnaire should be "designed to get the monitors to express what is their philosophy, how they would they approach it, what do they think is important to a successful monitorship, who do they view as the client, and how does that drive how they are going to behave going forward."
Companies should make sure that any potential monitor candidate has significant FCPA compliance experience. "Companies want somebody who understands how programs work. It is a very different analytical framework to evaluate where something broke versus how to build it for the start to work properly," Atkinson explained. There are "a lot of strong FCPA practitioners who may have a really good understanding of the statute but haven't had enough experience building something from scratch or looking at the whole picture."
When selecting a monitor, a company should keep the potential costs in mind from the beginning. Atkinson recommends that companies have frank conversations about costs when selecting monitor candidates. "At the front end of the relationship and at the time the work plans are being developed, those are the key points in terms of understanding what are the likely costs," she said. "There are ways that a company can work with them just as they would with outside counsel in terms of cost management, while at the same time recognizing that it is not entirely within the company’s control."