In late 2018, the Department of Justice announced that it was updating its policies relating to corporate monitors. The DOJ’s memo mandated that monitorships be more narrowly tailored to the conduct at issue and also emphasized that a company’s remedial measures and testing will be weighed heavily when the government is determining whether a monitor is necessary. Although both MTS
have been assigned monitors in FCPA matters since the DOJ’s announcement, Walmart is the first company to receive a substantially different monitor agreement as part of its FCPA settlement. Most notably, Walmart’s agreement limits the scope of the monitorship, requiring that the monitor only review issues relating to “Key Risk Areas” in the countries at issue in the settlement. To show exactly how the Walmart agreement differs from a more typical monitor agreement, we compare the language included in the monitor agreement entered into by Fresenius in April with the language included in Walmart’s agreement. Further analysis of the Walmart settlement can be found here
. See our two-part series on the DOJ’s “new” monitor policy: “An Announcement of the Obvious
” (Dec. 12, 2018), and “Carefully Selected Monitors, Thoughtfully Scoped Monitorships
” (Jan. 9, 2019).