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John Davis Discusses Possible Impacts of Monaco Memo in Anti-Corruption Report: Use of SOX, Compliance in Corporate Bonus Structure, and Consistency in Monitorships

"Revised Monaco Memo Affects Compensation, Clawbacks, and Monitorships"

Anti-Corruption Report

John Davis discussed the various potential impacts of the U.S Department of Justice's (DOJ) recent revisions to its corporate criminal enforcement policies, including the possible use of policies under the Sarbanes-Oxley Act (SOX) to allow compensation clawbacks, integrating compliance into corporate compensation structures, and creating consistency in the DOJ's approach to monitorships. In the September 15, 2022 Monaco Memo, Deputy Attorney General Lisa Monaco noted that some extant policies under Sarbanes-Oxley Act (SOX)/Dodd-Frank may suffice or provide a template for enhancing the role of compliance in corporate compensation processes. "The SOX standards could be a good starting point, since they already apply to many companies and the DOJ is coordinating with the SEC on this issue," Davis said. He added, "[m]any companies do incorporate compliance into bonus systems, though many companies also do not, on the theory that compliance is a baseline expectation. Even the latter types of companies often have other systems in place to reward compliant behavior such as consideration for promotion, public recognition, or the use of compliance-related metrics (such as, for example, addressing controls or compliance-related audit findings in a timely and appropriate manner) as part of the overall compensation calculation." Davis noted, "[w]hile the promised further guidance may clarify things, the DOJ is signaling that they expect to see more direct links between compensation/bonuses and compliance-related performance than perhaps was the case before." 

As to the Monaco Memo's updated guidance on Independent Compliance Monitors, Davis noted that "[h]istorically in the FCPA area, DOJ involvement has varied based on a number of factors, including the specific circumstances of the underlying matter, the involvement of other agencies, such as the SEC, and resource and time issues." "The DOJ has always had an established role in FCPA monitorships, for example, as it should," Davis continued. DOJ prosecutors "have been informed of and commented on the monitor's scope, received monitor reports (as well as information on potential compliance issues discovered during the time of the monitorship), and have been available to intervene in any disputes between the company and monitors regarding issues such as access to information," Davis noted. "It appears that the goal of this new guidance is to create consistency in the DOJ's approach to monitorships across its components and to make sure prosecutors are doing what dispositions that impose monitors say prosecutors should be doing."