New DOJ guidance will likely reduce the situations in which the Criminal Division imposes an independent monitor as a condition of a non-prosecution agreement, deferred-prosecution agreement, or plea agreement. The guidance will also change the process by which monitors are proposed and selected. We follow these developments because our clients are, on occasion, faced with decisions to enter into monitorships, and we have an active practice as monitors ourselves. Nichols Liu is currently the independent monitor under an administrative agreement between Agility Public Warehousing Company and the Defense Logistics Agency. We also currently serve as monitors under resolutions with federal and state agencies: the Department of Transportation, NASA and the State of New York. Our extensive background in government contracts—especially in areas of investigations and compliance—make our firm particularly suited to these matters. On October 11, 2018, the Department of Justice issued a new memorandum on the selection of monitors in Criminal Division matters (hereinafter the “Beneczkowski memo”). That memo elaborates on the original, 2008 guidance (the “Morford memo”) and supersedes intervening guidance from the Obama administration (the 2009 “Breuer memo”). Thus, the guidance going forward is the original Morford memo as elaborated upon by the Beneczkowski memo.
