Morning Docket

Morning Docket: 01.11.08

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* The surest way to avoid being wiretapped: Don’t pay your Wait for the FBI not to pay its phone bill. [Washington Post]
* In this gloomy economy, at least someone is still shopping. B of A picks up Countrywide Financial — and maybe its lawsuits, too. [Bank of America (press release) via WSJ Law Blog]
* Contentious sentencing for Jose Padilla. [Christian Science Monitor via How Appealing]
* Canada to the gays: we don’t want your orgrans. But your fashion and cooking tips are still welcome. [Toronto Star via A Stitch in Haste]
* Earlier this week, our former boss did battle with She Who Must Not Be Named. He won this round, but it may just be the beginning.[How Appealing]
P.S. A correction / addendum to yesterday’s Morning Docket, which mentioned that the DOJ is looking at how independent monitoring contracts are awarded. According to the Department, “[t]hese discussions were not prompted by United States Attorney Chris Christie’s selection of Attorney General John Ashcroft as a monitor. There is no inquiry into that selection.”
The DOJ’s full statement appears after the jump.


U.S. DEPARTMENT OF JUSTICE — STATEMENT ON INDEPENDENT MONITORS
The provisions in any agreement with the government to resolve criminal matters are highly specific to the facts and circumstances of a particular matter. This includes whether a monitor is appropriate and, if so, what the responsibilities of the monitor will be. These are matters negotiated between the government and counsel for a particular company. A provision for an independent monitor is not included in every agreement, nor is it used in the majority of corporate resolutions. It is very fact specific.
Monitors may be appropriate for various reasons. For example, if a company does not have the appropriate internal controls in place, an independent monitor may be appropriate to assure the government that compliance will occur within the company.
The Department of Justice has been having ongoing discussions about independent monitors for several months.
Due to the increased use of independent monitors in deferred prosecution agreements, and in order to obtain comprehensive input about the use of monitors, the Criminal Division and others within the Department solicited views from both within the Department as well as from experts outside the Department. For example, attorneys from the private bar, in-house counsel from companies who have had monitors, and former monitors have provided input to the Department about the work of monitors.
These discussions were not prompted by United States Attorney Chris Christie’s selection of Attorney General John Ashcroft as a monitor. There is no inquiry into that selection. Likewise, the consideration of guidance was not prompted by the actions of any U.S. Attorney.
The Department is currently considering whether policy guidance should be issued regarding the selection of monitors and scope of a monitor’s responsibilities to increase consistency in approach throughout the Department.
Peter Carr
Principal Deputy Director of Public Affairs
Department of Justice

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