26. External Compliance Monitorships

What is an external monitorship?

In Latin America, and particularly in Brazil, external monitorships have become more common in recent years. This could be seen as a result of a recent surge of corruption-related enforcement and a more aggressive approach by authorities against companies that violate domestic and foreign anti-corruption and other relevant legislation.

An external monitorship is one of many penalties and controls that can be imposed by authorities to ensure that companies not only pay significant monetary fines but, most importantly, adopt effective compliance programmes and commit to lasting cultural changes in the way they conduct business.

Although external monitorships result from enforcement actions, corporations that have undergone an external monitorship ultimately may be perceived as better organised and more prepared to face the competitive business environment. This is because external monitors periodically assess and supervise potential deficiencies, gaps and failures in companies’ internal controls, compliance programmes and other related processes, enabling potential deficiencies to be addressed and procedures to be enhanced in a sustainable way.

General concept

According to the Resource Guide to the US Foreign Corrupt Practices Act (FCPA), the following factors are considered by US authorities when determining the need for an external monitorship:

• seriousness of the offence;
• duration of the misconduct;
• pervasiveness of the misconduct, including whether the conduct cuts across geographic or product lines;
• nature and size of the company;
• quality of the company’s compliance programme at the time of the misconduct;
• subsequent remediation efforts.^[2]

To ensure that companies will not face the same challenges and perhaps commit further violations, authorities may appoint, in certain circumstances, an independent monitor to oversee operations during an agreed period of time. An appointed monitor should conduct a thorough assessment of a company’s internal policies and procedures to identify gaps, mitigate risks, strengthen controls, and propose changes to the former business culture of the legal entity and of its executives and employees. The US Securities and Exchange Commission defines an independent monitor as ‘an independent third party who assesses and monitors a company’s adherence to the compliance requirements of an agreement that was designed to reduce the risk of recurrence of the company’s misconduct’.^[3]

To be able to fulfil the mandate, an independent monitor should be provided with full access to the relevant operations of the company and may request to participate in meetings, visit offices, talk to personnel, review books and records, business information and internal documents, and assess the overall structure of the company. To engage in these types of activities, the monitor selects a group (the monitorship team) to assist with the implementation of those activities. The monitorship team may also be comprised of external advisers, such as forensic consultants and financial experts.

Brief history

In the 1990s, it became more common for independent monitors to be appointed by authorities, in particular in the United States, as a reporting mechanism when new violations occurred. During the 2000s, the number of corporate monitorships increased exponentially, and their role expanded to assess companies’ internal policies and controls as well as to provide recommendations for how to strengthen companies’ compliance programmes.

The chart below provides the number of public enforcement actions undertaken by US authorities since 2000 in which the US authorities imposed corporate monitorships or self-reporting obligations.^[4]

As a consequence of the growing cooperation between authorities around the world, other agencies in different countries, such as Canada,^[5] the United Kingdom^[6] and Brazil,^[7] also included the imposition of a monitor as part of settlement resolutions.

The monitorship process

On 7 March 2008, the then Acting Deputy Attorney General at the US Department of Justice (US DOJ), Craig S Morford, issued a memorandum on external monitorships – commonly known as the Morford Memorandum – containing certain parameters for the imposition of external monitorships, which included ‘(1) the potential benefits that employing a monitor may have for the corporation and the public, and (2) the cost of a monitor and its impact on the operations of a corporation’.^[8]

The Morford Memorandum was updated on 11 October 2018 by a new document issued by the US DOJ – Memorandum on Selection of Monitors in Criminal Division Matters^[9] (the Benczkowski Memorandum). This new guidance provided updated standards for selecting independent monitors and clarified when a monitorship would be required.

Regarding ‘the potential benefits that employing a monitor may have’, the Benczkowski Memorandum provided more specific criteria to be considered:

In evaluating the ‘potential benefits’ of a monitor, Criminal Division attorneys should consider, among other factors: (a) whether the underlying misconduct involved the manipulation of corporate books and records or the exploitation of an inadequate compliance program or internal control systems; (b) whether the misconduct at issue was pervasive across the business organization or approved or facilitated by senior management; (c) whether the corporation has made significant investments in, and improvements to, its corporate compliance program and internal control systems; and (d) whether remedial improvements to the compliance program and internal controls have been tested to demonstrate that they would prevent or detect similar misconduct in the future.^[10]

If the criteria above are met and authorities understand that it is appropriate to appoint an independent monitor, the agreement between companies and authorities (e.g., deferred prosecution agreements, non-prosecution agreements or plea agreements) would establish the provisions for the external monitorship, such as its duration, scope, roles and responsibilities, and expected deliverables.

The duration of a monitorship is usually between two and four years, but it can be extended for an additional period of one year, at the request of the independent monitor and with the approval of the enforcement agency. The reasons for requesting an extension of a monitorship should be clearly evidenced and duly substantiated by the monitor and accepted by the appropriate authorities. As an example, public news indicate that Odebrecht SA had agreed to extend its monitorship term for an additional nine months after the company forced the interruption of its monitorship as a result of the judicial recovery filing.^{[11] [12]}

The scope of external monitorships is described in the resolution with the responsible authorities and should encompass relevant aspects of the case that led to the settlement terms. For example, in United States of America v. Embraer SA, the deferred prosecution agreement stated the following:

The Monitor’s primary responsibility is to assess and monitor the Company’s compliance with the terms of the Agreement, including the Corporate Compliance Program in Attachment C, so as to specifically address and reduce the risk of any recurrence of the Company’s misconduct. During the Term of the Monitorship, the Monitor will evaluate, in the manner set forth below, the effectiveness of the internal accounting controls, record-keeping, and financial reporting policies and procedures of the Company as they relate to the Company’s current and ongoing compliance with the FCPA and other applicable anti-corruption laws (collectively, the ‘anti-corruption laws’) and take such reasonable steps as, in his or her view, may be necessary to fulfil the foregoing mandate (the Mandate). This Mandate shall include an assessment of the Board of Directors’ and senior management’s commitment to, and effective implementation of, the corporate compliance program described in Attachment C of the Agreement.^[13]

One of the goals of an independent monitor is to ensure that violations from the past do not recur and that appropriate controls are in place. For that purpose, external monitorships are forward-looking and aim to ensure that mistakes from the past are properly remediated and mitigated.

In the United States, an independent monitor is typically appointed by authorities after a proposal is made by the company negotiating a resolution. The company submits a written proposal identifying several monitor candidates as well as their résumés and qualifications. Following an interview process, authorities then select a candidate, based on the individual’s qualifications, credentials, and suitability for the assignment.^[14] Authorities may request that additional names are proposed by the company in case they do not accept the names initially proposed. In Brazil, although there is no legislation or written guidelines on the monitorship process (as discussed below), Brazilian authorities have adopted a similar process to assess and appoint independent monitors.

After a monitor is selected, he or she will be entitled to put together a monitorship team to advise and assist during the monitorship period, considering the scope of the monitor’s mandate and responsibilities.

The independent monitor and the monitorship team will prepare a workplan to guide their work throughout the year, outlining clear specifications and goals they intend to achieve. The plan may describe the activities and tests they intend to perform, documents they intend to review, as well as the sites they intend to visit and interviews to be conducted. The workplan is submitted and has to be approved by authorities.

A company should provide the monitorship team with information as required, ensure that executives and employees are available for interviews, facilitate site visits and make documents available for testing:

The Company shall cooperate fully with the Monitor, and the Monitor shall have the authority to take such reasonable steps as, in his or her view, may be necessary to be fully informed about the Company’s compliance program in accordance with the principles set forth herein and applicable law, including applicable data privacy and national security laws and regulations. To that end, the Company shall: facilitate the Monitor’s access to the Company’s documents and resources; not limit such access, except as provided in Paragraphs 5-6; and provide guidance on applicable local law (such as relevant data privacy and national security laws and regulations). The Company shall provide the Monitor with access to all information, documents, records, facilities, and employees, as reasonably requested by the Monitor, that fall within the scope of the Mandate of the Monitor under the Agreement, subject to applicable local laws, including data privacy and national security laws and regulations. The Company shall use its best efforts to provide the Monitor with access to the Company’s former employees and its third-party vendors, agents, and consultants.^[15]

According to a study released by Pohlmann & Company, the main topics that are of interest to independent monitors are the following:

• analysis and remediation of underlying misconduct;
• senior and mid-level management – tone at the top and tone at the middle;
• autonomy and resources of the compliance function;
• implementation of robust policies and procedures;
• conducting risk assessments to identify risks;
• conducting training and constant communications;
• robust system for reporting and conducting internal investigations;
• well-established system to discipline offenders;
• conducting periodic testing and continuous improvement of the compliance programme;
• third-party management; and
• transactions in mergers and acquisitions.^[16]

Further, improvements in a company’s culture and practices and the full support of its key executives are central to achieving sustainable change in how it conducts its business. Independent monitors are keen to attest that senior management will support and abide by the new culture and procedures and that employees understand the importance of ethical conduct. To assess such factors, independent monitors usually hold a series of interviews with board members, officers and employees to understand their perspectives and experiences, and their commitment to and trust in the company’s culture, compliance and internal controls.

The information collected by the monitorship team is summarised in periodic reports (usually annual) that are submitted to the authorities. The reports not only assess the company’s current practices, according to the workplan, but also provide recommendations for how to improve potential deficiencies that may have been identified during the year. These recommendations may be shared with the monitored company in advance and need to be implemented within an agreed period of time. The recommendations are included within the scope of the review of the monitorship team and should be tested and approved continually by the monitor until the end of the monitorship term.

How are monitorships perceived by Latin American courts and agencies?

External monitorships in Latin America are still not very common. In recent years, with the surge of anti-corruption enforcement in Brazil, local authorities have imposed monitors on certain companies as part of their settlement terms. There are at least seven public cases in which Brazilian enforcement agencies, as part of settlement terms with local companies, have imposed local monitors: Odebrecht SA, Braskem SA, RodoNorte - Concessionária de Rodovias Integradas SA, Ecorodovias Infraestrutura e Logística S/A, J&F Investimentos SA,^[17] J. Malucelli Group (Companhia Paranaense de Construção SA, MLR Locações de Máquinas SA and Televisão Icaraí Ltda^[18]), and Philips Medical Systems Ltda.^[19]

In addition, there are at least two other public cases in which US authorities have imposed external monitorships on companies from Latin America, both headquartered in Chile: Latam SA^[20] and Sociedad Quimica y Minera de Chile SA.^[21]

Latin America is a high-risk market, with a surge in enforcement actions, especially in Brazil. As multi-jurisdictional cooperation continues to expand, local enforcement agencies are likely to implement additional controls, including external monitorships, as part of future settlement resolutions.

Emergence of external monitorships in Brazil

External monitorships have become more common in Brazil in the past few years, with a sharp increase in relevant investigations led by Brazilian authorities. The reporting of monitors to Brazilian authorities is an independent process, even in cases in which there is also a monitor appointed by US authorities. Nevertheless, certain practices adopted by Brazilian authorities are similar to those in the United States, as Brazilian enforcement agencies have not yet published regulations or guidelines regarding monitorships (e.g., when they are required, how to appoint monitors, duration, and the powers to be granted).

However, unlike the United States, the terms of external monitorships in Brazil may not be publicly released^[22] and the details of each case ordinarily remain under seal. Moreover, in certain instances, local authorities, such as the Office of the Federal Comptroller General (CGU), may conduct a different type of monitorship.

In some recent cases, the CGU has not appointed an external monitor and, instead, has conducted the monitorship itself. To date, the CGU has disclosed information about 13 leniency agreements entered into with national and foreign companies between July 2017 and February 2021.^[23] Of those, 11 agreements were released in full to the public, 10^[24] of which set forth that the CGU would conduct periodic assessments of companies’ internal controls and compliance programmes.

According to a public statement by Pedro Ruske Freitas, CGU’s Director for the Promotion of Integrity: ‘The CGU understands that the monitorship of corporate compliance programmes of companies that settled with the agency represents a state activity that needs to be conducted by the public administration itself.’ He added: ‘So far, the need for external monitors is not apparent.’^[25]

On the other hand, Brazil’s Federal Prosecutor’s Office (MPF) has appointed external monitors to oversee companies’ operations in at least seven public cases:

• Odebrecht SA: leniency agreement in December 2016;^[26]
• Braskem SA: leniency agreement in December 2016;^[27]
• J&F Investimentos SA: leniency agreement in June 2017;^[28]
• RodoNorte – Concessionária de Rodovias Integradas SA: leniency agreement in March 2019;^[29]
• Ecorodovias Infraestrutura e Logística S/A: leniency agreement in September 2019;^[30]
• J. Malucelli Group (Companhia Paranaense de Construção SA, MLR Locações de Máquinas SA and Televisão Icaraí Ltda): leniency agreement in August 2020;^[31] and
• Philips Medical Systems Ltda: leniency agreement in November 2020.^[32]

Odebrecht and Braskem also had monitors appointed, with reporting obligations to US authorities, as a result of violations of the FCPA, whereas RodoNorte, Ecorodovias, J. Malucelli Group and Philips had reporting obligations to Brazilian authorities only and, as part of their settlement terms with the MPF, had external monitorships imposed as a result of violation of Brazilian laws. J&F also entered into a plea agreement in October 2020 and agreed to self-report annually to the US DOJ for a period of three years.^[33] DOJ’s decision towards an annual self-report was explained within the Plea Agreement as follows:

the fact that the Brazilian Leniency Agreement requires the implementation of an independent commission responsible for monitoring and reporting on internal investigations and compliance audits conducted at the Defendant with ongoing reporting requirements to the Brazilian authorities, and the Defendant’s agreement to report to the Fraud Section and the Office as set forth in Attachment D to this Agreement (Reporting Requirements), the Fraud Section and the Office determined that an independent compliance monitor is unnecessary.^[34]

Other Brazilian companies, such as Embraer SA^[35] and Petróleo Brasileiro SA (Petrobras)^[36] settled with both US and Brazilian authorities. Embraer had a US external monitor reporting to US authorities, and Petrobras did not have a monitor appointed as part of its corporate resolution.

Embraer, in particular, entered into an agreement with the MPF and with Brazil’s Securities and Exchange Commission (CVM), in which an external monitorship was not imposed but, rather, it was agreed that reports and information produced to foreign authorities under the terms of an external monitorship would also be shared with the MPF and the CVM.^[37]

As previously mentioned, the terms of the Brazilian corporate monitorships of Odebrecht, Braskem, RodoNorte, Ecorodovias, J&F Investimentos, J. Malucelli Group and Philips are sealed and have not been released to the public yet. However, there are similarities that can be noted between the US and Brazilian monitorships.

The Brazilian monitors that were appointed by the MPF are well-regarded lawyers with experience in corporate governance and anti-corruption matters. Otavio Yazbek, the external monitor of Odebrecht, mentioned^[38] that the process used by the MPF to appoint a monitor in Brazil is similar to the US process, with companies required to provide to the authorities with a list of candidates and the authorities then selecting the candidate they deem to be the more suitable for the role.

Also, although external monitors report directly to the authority that appointed them (e.g., the MPF), monitored companies should bear the costs associated with the monitorship, including all costs incurred by the monitor and the monitorship team.

Monitorships in Brazil also usually have the same duration as US monitorships, with mandates that may last from one to three years with the possibility of an extension.

Brazilian monitors usually also prepare and present a workplan to local authorities and issue periodic reports (normally annually) describing the scope of their review, areas of improvement, difficulties that a company or a monitor may be facing, proposed next steps and recommendations to be implemented within an agreed period of time to strengthen a company’s systems, processes and controls.

The future of external monitorships in Brazil is still unclear. On the one hand, there has been an increase in the number of external monitors imposed by the MPF. Recent agreements entered into by the CGU and several companies between 2017 and 2021 provide that the CGU will be entitled to monitor the compliance programmes implemented by the Brazilian companies and their operations. The results of current monitorships in Brazil may define whether this is a valid resource for authorities or if authorities will adopt other measures to monitor and assess the future activities of sanctioned companies.

What is the impact on companies and how should they adapt?

Companies usually consider having an external monitor to be a difficult and undesirable experience. Besides dealing with enforcement actions, deep scrutiny by the media and authorities, financial constraints resulting from monetary sanctions and other consequences of being sanctioned, an independent monitor scrutinises a company’s operations, verifies the effectiveness of its compliance programme and controls, and recommends related enhancements, all of which require time and resources.

The costs of a monitor also can be significant, though are not usually made public. In the case of Zimmer Holdings, public information indicates that the fees varied between US$28 million and US$52 million.^[39] In this context, litigator Robert Anello noted: ‘These highly qualified monitors, who often bring their own consultants and advisors to a company, frequently come with an equally high price tag that can affect the bottom line. Monitorships often cost more than $30 million and, in one case, a company reportedly spent more than $130 million in monitor-related costs.’^[40]

The Benczkowski Memorandum clarifies that external monitorships should not be applied in all, or even most cases, but to specific cases in which all conditions are met and an independent monitor is indeed necessary:

In weighing the benefit of a contemplated monitorship against the potential costs, Criminal Division attorneys should consider not only the projected monetary costs to the business organization, but also whether the proposed scope of a monitor’s role is appropriately tailored to avoid unnecessary burdens to the business’s operations.
In general, the Criminal Division should favor the imposition of a monitor only where there is a demonstrated need for, and clear benefit to be derived from, a monitorship relative to the projected costs and burdens. Where a corporation’s compliance program and controls are demonstrated to be effective and appropriately resourced at the time of resolution, a monitor will likely not be necessary.^[41]

To manage these potentially heavy costs, it is important for companies and their monitors to implement practices that could minimise the financial effects of the monitorship, without diminishing the effectiveness of the monitorship process.

A transparent and open line of communication between the company’s senior management and the monitorship team is the best way to periodically align expectations regarding the monitorship’s strategy and its duration, costs and other practical concerns.

During an external monitorship, it is extremely important that the company remains open and transparent with its employees about the ongoing process. Employees will have to understand – and companies need to reinforce – that the independent monitor should be an ally and not an enemy of the company, and working with the monitor will certainly result in a much more positive outcome for the company and all its stakeholders. This is also a task for the independent monitor: to provide confidence instead of fear and to work with the company and its employees, which also helps to re-establish the company’s reputation in the marketplace.

For the monitorship to succeed, there must also be an open and transparent line of communication regarding misconduct in the past. Although there may be facts identified in the course of negotiations with authorities that may not have been made public or disclosed to the market or that remain under seal, monitors need to fully understand the improper conduct from the past to implement an effective plan for their mandates.

External monitorships can be an asset rather than a burden for companies. For example, the fact that a company undergoes such an extensive and thorough assessment should convey to stakeholders a lesser likelihood of misconduct taking place during the monitorship and afterwards (if changes are sustainable), compared to companies that do not undergo such a process. Internal controls and compliance procedures are usually enhanced by the recommendations of monitors, which may also help the company to rebuild trust in the marketplace.

Generally, companies that successfully complete a monitorship process are deemed to have a more robust compliance programme in place, given the scrutiny during the monitorship. Siemens, the German-based corporation that, in 2008, agreed to pay approximately US$1.6 billion to US and German authorities for violations under the FCPA^[42] due to a worldwide bribery scheme, agreed to an external monitorship for four years.^[43] The result is recognised as follows:

Siemens was the archetype for the modern corrupt enterprise. Its growth strategy relied on a willingness to bribe government officials wherever it wanted to do business. And yet, after Siemens narrowly escaped the corporate death sentence in late 2008 and embarked on an epic corporate clean up, it became a world leader in compliance.^[44]

Also, the fact that a respected and well-regarded compliance monitor attests, at the end of the monitorship period, about the effectiveness of the company’s compliance programme should be considered by various stakeholders as a positive outcome.

There are certainly challenges for companies facing a monitorship process, such as the costs, the potential negative effects on the company’s image and low employee morale. However, those challenges can be attenuated by the position that the company adopts towards the monitor. In this context, Olga Pontes, chief compliance officer at Odebrecht, noted:

We embraced the monitorship as an oxygen to survive. The monitors that are at the company did that with several companies around the world and have experience of what worked and what didn’t work. Why would we ignore this knowledge? Why would we ignore this guidance?^[45]

External monitors should have a positive effect on a company’s culture, controls, compliance programme and overall business strategy, and should help the company in repositioning itself towards more positive results and a more favourable perception by stakeholders.

Facing an external monitorship is far from easy and may pose great challenges, but once companies are willing to make a change and embrace the benefits arising from a monitorship, they become stronger and better prepared to succeed in competitive marketplaces.

Footnotes