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Empowered or Exposed?

DOJ’s new compliance certification requirement seeks to “empower” CCOs.

A new policy at the U.S. Department of Justice (“DOJ”) pertaining to Foreign Corrupt Practices Act (“FCPA”)/anti-corruption compliance has recently sent shockwaves through the corporate compliance community. The change was first previewed by Assistant Attorney General (“AAG”) for the DOJ’s Criminal Division Kenneth Polite in a speech delivered on March 22, 2022: “I have asked my team to consider requiring both the Chief Executive Officer and the Chief Compliance Officer to certify at the end of the term of the agreement that the company’s compliance program is reasonably designed and implemented to detect and prevent violations of the law… and is functioning effectively,” said AAG Polite.1 Speaking to a room full of compliance professionals, he reassured the audience that DOJ’s new certification policy is intended to “further empower” Chief Compliance Officers (“CCOs”) and ensure they “have true independence, authority, and stature within the company.” Still, the prospect of facing personal liability has many in the compliance community unsettled. The new DOJ policy, AAG Polite explained, applies to all corporate resolutions, including guilty pleas, deferred prosecution agreements (“DPAs”), and non-prosecution agreements (“NPAs”). Read more…