WilmerHale’s practical and efficient approach to monitorships is built upon our deep understanding of the process, informed by our experience serving as an independent monitor under varied circumstances as well as our experience counseling multinational companies that are subject to independent compliance monitorships, and our broad experience helping companies of various sizes across industries build effective compliance programs. WilmerHale is currently leading one active US Department of Justice (DOJ) monitorship and was previously the only law firm leading two separate DOJ monitorships while simultaneously serving as lead counsel for two companies under active DOJ monitorships.
Our lawyers have served as DOJ and US Securities and Exchange Commission (SEC) appointed independent compliance monitors for two healthcare companies. These multi-year monitorships involve numerous rounds of review and regular reporting to the DOJ and SEC. In addition to our active federal monitorships, we regularly represent companies under monitorships working to build successful compliance programs while minimizing the burdens and inefficiencies of the monitorship process and advocating for our clients’ interests in successfully completing monitorships in a timely manner.
Indeed, a number of our partners have experience in selecting and interacting with monitors in the financial services, accounting, manufacturing, construction and other sectors. Our experience as insiders in the monitorship process from every perspective allows our team to approach monitorships with a strong understanding of what is required and enables us to execute efficient, successful monitorships.
Our approach to monitorships and compliance enhancements typically includes gathering information concerning business operations, assessing a company’s commitment to achieving a culture of compliance, understanding policies and procedures, evaluating and testing controls and monitoring mechanisms, preparing reports, and providing recommendations concerning oversight, reporting, testing and other activities. We make these determinations and identify improvements to existing systems that are necessary for certification of compliance.
Our work spans six continents and stretches across our offices in the United States, the United Kingdom, Belgium, Germany and China. Over the past few years alone, our lawyers have conducted investigations-related work in more than 100 countries, and our monitorships team has the ability to draw upon lawyers across the firm fluent in 29 languages.
Additionally, our lawyers work alongside companies’ existing legal, compliance and internal audit functions and in conjunction with outside counsel to enhance existing controls and processes and to detect and deter future rogue actors. Our ability to craft work plans appropriately tailored to the business and risks at issue is bolstered by the deep bench of our team, which includes numerous former senior DOJ and SEC enforcement officials.
We also have significant experience serving as independent compliance monitors for numerous public companies in connection with the resolution of criminal and civil charges:
- In 2017, Partners David Ogden and Ronald Machen were chosen to share independent compliance monitorship duties for Tenet Healthcare Corporation. Tenet and the DOJ jointly selected these WilmerHale partners for a three-year engagement, pursuant to the terms of the non-prosecution agreement the healthcare giant reached with the DOJ, to settle kickback allegations. At the time, The National Law Journal stated: “Tenet Healthcare Corp. has tapped two of Washington's most well-known lawyers to monitor its compliance under a non-prosecution agreement with the federal government.”
- In 2019, Partner Erin Sloane was appointed by the DOJ and SEC as the independent Foreign Corrupt Practices Act (FCPA) compliance monitor for a German-based supplier of global dialysis products and services in connection with the company’s $231 million resolution of charges that it violated the FCPA. Sloane’s appointment was only the second FCPA monitorship awarded in 2019. Global Investigations Review observed that the role of FCPA monitor is one that has traditionally been characterized by a gender and racial imbalance, with past monitorships typically going to white male lawyers with senior government experience. Sloane is not only one of the few women selected as an FCPA monitor, but also one of the youngest lawyers to take on the role.
- In 2016, Retired Partner Robert S. Mueller III was appointed by Judge Charles R. Breyer of the US District Court for the Northern District of California as settlement master to facilitate settlement discussions for the multibillion-dollar, multi-district consumer class action and regulatory enforcement actions against Volkswagen for excess diesel emissions. In 2017, one month before Mueller’s appointment as special counsel, Judge George C. Steeh of the US District Court for the Eastern District of Michigan issued a notice of intent to select Mueller as special master to administer the multimillion-dollar restitution funds paid by Takata Corporation in connection with its February 2017 guilty plea. The courts cited Mueller’s well-known reputation for integrity in making the appointments.