DOJ Criminal Division Guidance on Monitorships Unlikely to Impact Antitrust Enforcement

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While the Criminal Division’s May 2025 guidance related to the selection of monitors has widely been interpreted as signaling the Administration’s preference to move away from corporate monitorships, the updated guidance is unlikely to impact civil antitrust enforcement, as the Criminal Division’s motivating concerns are largely inapplicable in the civil antitrust context.

In May 2025, the Department of Justice published revised guidance on the selection of monitors in Criminal Division matters. The revised guidance clarifies the factors that prosecutors should consider when determining whether or not to require a monitor and, when a monitor is determined to be necessary, requires that prosecutors narrowly tailor the scope of the monitor’s review. Specifically, the guidance requires prosecutors to consider the following factors when determining whether the imposition of a monitor is necessary:

1. Risk of recurrence of criminal conduct that significant impacts U.S. interests;
2. Availability and efficacy of other independent government oversight;
3. Efficacy of the compliance program and culture of compliance at the time of the resolution; and
4. Maturity of the company’s controls and its ability to independently test and update its compliance program.

At their core, these factors are focused on two principal inquiries: is there likely to be conduct that is impactful towards, and visible to, the United States; and does the company have a genuine and effective compliance program? If the answer to the first question is no and the second is yes, prosecutors are likely to determine that an independent monitor is unnecessary.

This guidance was widely interpreted as signaling a shift away from the use of monitors and towards government (or corporate) oversight of compliance programs following criminal resolutions. Supporting this, DOJ has ended several corporate monitoring efforts early, including those required of Glencore, NatWest, and Stericycle, and terminated a non-prosecution agreement with Albemarle Corporation before it was set to expire. There have also been numerous reports that DOJ is considering terminating an ongoing monitorship for Binance.

Although the revised guidance was released by the Criminal Division, practitioners have speculated about the potential implications, if any, for use of monitorships in civil and/or antitrust matters.

Civil Antitrust Enforcement is Unlikely to be Impacted by the Administration’s Policy Change

Despite these actions on the criminal side, the policy shift is unlikely to impact monitorships in connection with civil and merger enforcement.

As a starting matter, it is important to acknowledge that the May 2025 Criminal Division memo was, definitionally, not directed at the efforts of the Antitrust Division, especially with respect to civil enforcement. Semantics aside, however, there are good reasons to doubt that the policy considerations driving the memo are applicable in the civil antitrust context. Primarily this is due to the fact that, when considered in the context of civil antitrust enforcement, each the four factors articulated by the Criminal Division is either inapplicable or still weighs heavily in favor of monitorships:

1. Recurrence is unlikely to be an issue in the civil antitrust context. This is particularly true with respect to mergers, which unique events almost by definition, and multi-firm conduct matters, where the presence of multiple actors makes it less likely that a similar fact pattern will reoccur following an enforcement action. While there is potential risk of recurrence in a monopolization case, such cases are relatively rare and the factors described below would likely outweigh the risk of recurrence in such an event.
2. Other Government oversight is typically not available for civil antitrust remedies. This is true not only for the most common form of civil antitrust remedy—a divestiture agreement that resolves a merger investigation—but also for behavioral remedies that resolve conduct matters. In these types of cases, there is no continued oversight by a regulatory agency or other government actor. This means, if the Antitrust Division determines that some form of oversight is necessary, the only means to obtain it is to either perform the work itself or require the appointment of a monitor.
3. Existing compliance programs are unlikely to address the types of issues raised in civil antitrust remedies. When companies accept such remedies, the behaviors likely to be covered by a potential monitor are not likely to be included in the company’s existing compliance program. A complicated divestiture is the prototypical example: the company may be setting up entirely new workstreams to transition ownership or provide transition services and contract manufacturing. Most companies are unlikely to have such processes in place prior to resolution with the Antitrust Division, so there is no basis from which to judge the effectiveness of the existing program. The same is true with respect to conduct remedies, which are likely to require some form of changed behavior at the company. With no existing compliance program to review and test against, the Division has no way to verify its effectiveness. While there is some room for companies to argue that they have a strong compliance culture, such considerations are likely to be outweighed by the lack of a track record in the area of concern to the Antitrust Division.
4. Companies are unlikely to successfully demonstrate mature and effective controls in the area(s) of concern. This consideration is largely an outgrowth of factor two: if companies don’t have existing compliance programs for the area(s) of concern, they definitionally don’t have proven controls in place. Again, while companies will surely argue to the Antitrust Division that the success of other related controls should be taken into account, the lack of established success with respect to the specific concerns of the Antitrust Division is likely to outweigh any arguments about the overall maturity of other compliance-related controls at the company. These policy-driven differences can largely be explained by common sense: civil remedies, particularly with respect to mergers, are likely to be one-off events that implicate processes and individuals that are not otherwise heavily involved in most companies’ compliance programs. For this reason, a monitor, who can step in to provide what amounts to one-off compliance assurance for a time-limited period, can actually be a more efficient and effective solution than creating and relying on in-house compliance programs. Reflecting these advantages, I worked on a number of settlements that utilized monitors when I was a staff attorney and manager at the Antitrust Division, and my recent experience outside the Division has confirmed these same advantages.

In addition to these policy-related distinctions, it is also worth noting that there have been widespread reports that the current Administration intends be more business-friendly than prior administrations. This is likely to lead it to settle more civil antitrust matters, as such settlements remediate the problematic portions of proposed deals while in allowing the procompetitive aspects of the transaction to proceed. The use of monitors in civil antitrust matters may actually facilitate these settlements, as appointing a monitor to oversee a divestiture with execution risk could give the Antitrust Division sufficient confidence in the remedy to settle a case rather than challenge the underlying transaction.

In practice, the Antitrust Division’s actions with respect to Monitors have not changed

Recent enforcement actions appear to confirm the limited impact of the revised guidance. Reflecting the considerations above, the Antitrust Division has taken no clear steps to reduce its use of Monitors following civil cases Perhaps the easiest way to observe this is simply by looking at settlement agreements entered into by the Division since the May 2025 announcement. According to Press Statements released by the Antitrust Division, it has entered into ten civil settlements since May 2025. Seven are merger settlements (Keysight/Spirent, Safran/Raytheon, HPE/Juniper Networks, United Health/Amedisys, Constellation/Calpine, Columbus McKinnon/Kito Crosby, and Reddy Ice/Arctic Glacier) and three relate to the same conduct allegations (RealPage, Greystar, and LivCor). Three of the seven merger settlements (Safran/Raytheon, United Health Amedisys, and Reddy Ice/Arctic Glacier) allow the Division to appoint monitors, as do all three conduct resolutions (provided certain preconditions are met).

Conclusion

The Criminal Division’s policy changes with respect to monitors are unlikely to materially impact the resolution of civil antitrust matters, primarily because the Criminal Division’s updated considerations are not relevant for civil antitrust matters. This has been borne out in practice over the past ten months, as a majority of civil settlements by the Antitrust Division have included provisions related to monitors. Civil antitrust practitioners should expect to see this same approach to monitorships continue and should consider the Criminal Division’s guidance largely inapposite for their clients.

Endnotes

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Jay Owen

Committees

This content was produced by:

• Federal Civil Enforcement Committee

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