Deferred prosecutions and the independent monitor

Abstract

In response to today's wave of corporate investigations and prosecutions, prosecutors have sought to require significant changes in corporate culture, compliance and controls and, as importantly, to monitor those changes for a reasonable time. The result is the corporate deferred prosecution agreement and its adjunct, the Independent Monitor. This paper first will review the development of deferred prosecution agreements and the factors which may determine which companies receive such treatment; secondly, it will analyse the Independent Monitor's role, both the common terms of reference and certain unique terms relevant to specific cases; and thirdly, it will suggest the outlines of an Independent Monitor's workplan.