EXTRAIT DE LA REVUE INTERNATIONALE DE LA COMPLIANCE ET DE L’ÉTHIQUE DES AFFAIRES – N° 1 – FÉVRIER 2019
The Independent Corporate Monitor: Who, What, When and How?
Feedback from Laurent Cohen-Tanugi
A monitorship may be imposed on a company pursuant to a settlement with the DOJ, the SEC, the SFO, the World Bank, competition authorities, or other law enforcement agency. It is an additional sanction usually imposed along with a monetary penalty. An independent monitor is appointed to assess and audit the implementation of the commitments made by the company in the field of compliance. In France, this new instrument is under the control of the French Anticorruption Agency in its area of competence. Laurent Cohen-Tanugi, who has performed several monitorship mandates, has agreed to answer our questions.
International Review of Compliance and Business Ethics: What are the role and missions of a monitor?
Laurent Cohen-Tanugi: A monitor is occasionally imposed on a company as part of a settlement with prosecuting authorities, such as the US Department of Justice (“DoJ”), to ensure that the sanctioned company will abide by its undertakings and implement a compliance program robust enough to avoid future wrongdoing. The fundamental role of the monitor is to perform a systemic and dynamic assessment of the sanctioned company’s compliance program and organization, and to cause the company to bring such program and organization to a level consistent with international best practices. The monitor is independent from both the company and the authorities, and has significant discretion to perform his/ her mandate according to his/her best professional judgment. But to be effective as an independent professional, the monitor must have the trust of both the company and the prosecuting authorities, as it is a cooperative endeavour.
IRCBE: You were appointed as an independent corporate monitor by the DoJ and the Securities and Exchange Commission for Alcatel-Lucent in 2010. Can you tell us more about the case and the selection process?
L. C.-T.: Alcatel-Lucent, a French-American company listed on the New York Stock Exchange, reached a settlement in 2010 in the form of a Deferred Prosecution Agreement (“DPA”) with the DoJ and the Securities and Exchange Commission (“SEC”) in connection with violations of the Foreign Corrupt Practices Act (“FCPA”) in a number of countries. As part of the DPA, the company agreed to appoint an independent compliance monitor for a three-year period. Sanctioned companies are typically invited to propose three candidates, among whom the authorities select and appoint the monitor. As was the case for other French companies such as Technip and Total, the US authorities agreed to let the company nominate a French monitor. As a French international lawyer fully familiar with the US legal system, I was nominated as the company’s preferred candidate and was appointed by the US authorities following an interview and vetting process…
Revue Internationale de la Compliance et de l’éthique des affaires
La 1re revue à dimension internationale dédiée à la compliance et à l’éthique des affaires intégrant des contributions rédigées en anglais