This paper addresses the SEC's recent use of the corporate monitor as ancillary relief in its enforcement actions. The corporate monitor represents the latest example of the SEC seeking to shift its enforcement responsibilities to the public companies it regulates. Focusing on the role played by the corporate monitor imposed by the SEC in its enforcement action brought against WorldCom, this paper considers some of the dangers posed by the use of the corporate monitor, such as the whether the appointment of a corporate monitor constitutes impermissible overreaching by the SEC. The paper recognizes that the corporate monitor can be an effective weapon against securities fraud, but cautions that, given the dangers inherent in its use, the SEC should seek a corporate monitor only in rare cases and publish guidance explaining when it will seek this remedy. Moreover, courts should develop clear standards limiting their judicial discretion to order this extraordinary ancillary remedy.
Jennifer O’Hare (Wed,) studied this question.