In this podcast, I have been joined by Mikhail Reider-Gordon, Managing Director of Global Affairs at Affiliated Monitors, Inc. We have discussed various aspects of monitorships, including why independence matters, the American Bar Association’s (ABA) Guidelines on Monitors, Gordon’s professorial career at the International Anti-Corruption Academy, cultural differences between international and US domestic monitorships and the continuing evolution in monitorships. In this episode, we consider the continuing evolution in monitorships.
Just as compliance programs and the role of the Chief Compliance Officer (CCO) have evolved, the situations involving a monitor have evolved. We began with a consideration of some of Gordon’s thoughts about how the intersection of law and technology, including privacy, data management and data bias are really driving the conversation with clients around oversight and monitorships. Gordon began with the trend and growth in monitoring entities that have violated data privacy laws. Interestingly, this can come not from any overt or even poor decision on a company’s part or action. It could be from a data breach or it could be they misuse data. Gordon pointed to misuse such as Facebook, under evolving privacy laws. Here Gordon related that “Companies are a little on the back foot.”
The evolution of monitorships has also occurred around timing. Originally, monitors were brought in at the conclusion of an enforcement action. Now monitors are often brought in during and even before an enforcement action begins on a pro-active basis, to get out ahead of the problem. This can be to see if an issue exists or to remediate the issue before the conclusion of an enforcement action. If it is the former situation, it can help to prevent an enforcement action from even getting off the ground. If the enforcement action has already begun, the pro-active approach can help a company garner a declination or if one cannot be obtained prevent a multi-year, post-settlement monitorship from being mandated.