Enforcement is frequently resolved by a negotiated order containing conduct obligations as well as payment.
Structure. Findings or a statement of facts; injunctive provisions; a compliance programme with specified elements; reporting; a term; and provisions for termination.
Findings. Whether the resolution includes admissions is the most consequential term. Admissions are used in follow-on private litigation and may trigger contractual and licensing consequences.
Injunctive provisions must be specific enough for enforcement by contempt, and vague obligations create risk for both sides.
Compliance obligations. Policies, training, testing, staffing, board oversight and independent review. Negotiate what is achievable on the timeline stated; missing a deadline in a consent order is a more serious matter than the underlying violation.
Reporting. Frequency, content and certification. Certifying compliance inaccurately is a separate and severe exposure.
Term and termination. Automatic termination after a period, or termination on application with a demonstration of compliance. Automatic is preferable and is achievable.
Modification. A mechanism for adjusting obligations on changed circumstances, since multi-year undertakings outlast the business as it existed.
Third parties. Whether the order can be used by private litigants, and whether it purports to bind successors.