Deferred Prosecution Agreements – Legislation and DOJ Guidelines
March 2008
George J. Terwilliger, III
DOWNLOAD PDF: George J. Terwilliger III's Written Testimony on Deferred Prosecution Agreements (PDF)
As we reported earlier, pending federal legislation would require court-appointed monitors for all deferred prosecution agreements and dictate guidelines for prosecutors' execution of such agreements. On March 11, 2008, a subcommittee of the House Judiciary Committee conducted an oversight hearing on the selection and duties of corporate monitors. George J. Terwilliger III, head of White & Case's global White Collar Practice, testified before the subcommittee. A copy of Mr. Terwilliger's written testimony is attached.
The subcommittee reviewed the selection of monitors, including that of former Attorney General John Ashcroft for Zimmer Holdings. The Subcommittee questioned the selection of the former Attorney General by one of his former subordinates and the estimated $28 to $52 million cost of the monitor and associates.
Mr. Terwilliger testified that a company's payment of a monitor's fees justifies the company's input in the monitor's selection, that monitors should provide outside observation and internal advice, and that such "compliance consultant" monitors can be an asset. Because the decision to defer or decline prosecution is an Executive Branch function, Mr. Terwilliger cautioned that the Department of Justice (DOJ) should regulate monitors' selection and duties. Recent DOJ advisory guidelines regarding monitors are, therefore, an important — but untested — step forward. White & Case LLP's White Collar Practice Group will provide further updates regarding these guidelines' effect.
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