Kelley Drye's White Collar, Investigations and Compliance
Practice Group has issued a client advisory describing the proliferation of independent monitorships in connection with deferred prosecutions or non-prosecution agreements and the increasing criticism of government over-reaching in private enterprise. It sets forth the possibility of a shifting landscape in which corporate criminal liability could be restricted.
If the issue of corporate criminal liability reaches the Supreme Court, the outcome could alter the landscape which now prevents corporations from inventing a meaningful defense in the face of a government investigation. Until that time, companies will have to continue to deal with the prevalence of deferred prosecution agreements and independent monitors.