Will the Boeing Monitorship Lead to a New Selection Process?

Virtually from the time the first corporate monitor was installed approximately 20 years ago, there has been controversy over the selection process.  The wide discretion enjoyed by the Department of Justice ("DOJ") bubbled over into concerns about creating boondoggles and promoting patronage.  Flowing out of this criticism, the DOJ created a more structured selection process:  it would select the monitor from three candidates put forward by the subject of the monitorship, and request additional candidates as needed.  This approach has remained relatively stable over the last 15 years.

And now comes the Boeing resolution, which calls for imposition of a compliance monitor to oversee safety and quality initiatives at the company.  As has been reported, the DOJ abandoned its usual process after meeting with victims’ families. The DOJ will now solicit monitorship proposals and select among the candidates after seeking input from the company.  The Court would then have 10 days to object.  This approach has not been embraced by the victims’ families, who want the selection to be made by the Court.

As a consequence, this promises to be one of the most scrutinized monitorship selection processes in the history of the program.  Not only are the safety concerns a matter of great public import, but the future of monitorships may well turn on the ability of the parties and the Court to navigate this issue to successful completion.  The monitor selected will then have to carry out the requirements of the monitorship with demonstrable effectiveness and efficiency.