According to a new policy memo to be adopted in the U.S. Justice Manual, “[c]onsistent with the Criminal Division’s approach for the past several years, as well as recent Department-wide guidance, any submission or selection of a monitor candidate by either the Company or the Criminal Division should be made in keeping with the Department’s commitment to diversity, equity, and inclusion, and without unlawful discrimination against any person or class of persons. Corporate defendants should also expect that corporate resolution agreements themselves—whether guilty pleas, deferred prosecution agreements, or non-prosecution agreements that contemplate selection and imposition of a monitor team—specify this requirement and commitment.”
DOJ likes to say it is driven by data — do they have any data on the selection process? Do practitioners really feel diversity in selection is working so far?