Reed Smith Client Alerts

The United States Department of Justice (DOJ) recently announced that chief compliance officers (CCOs), and potentially even chief executive officers (CEOs), will be required to certify under penalty of perjury representations about their companies’ compliance programs in all corporate resolutions and settlement agreements with the DOJ. While the expressed intent of this new certification requirement is to “empower” compliance professionals and ensure that they have a “seat at the table” with senior management, it has led many CCOs to question whether they may be subject to additional civil or criminal liability and whether this new policy will undermine their authority by subjecting them to internal pressure to execute these certifications despite concerns the CCOs may have about the companies’ compliance programs.

This certification requirement highlights the DOJ’s recent focus on compliance and enforcement as part of its strategy to tackle corporate crime. Indeed, the DOJ’s Corporate Enforcement Compliance and Policy unit – previously known as the Strategy, Policy and Training Unit – has recently been reformulated to better reflect its focus on compliance, including by hiring more people with in-house compliance experience. Speaking at the Association of Certified Anti-Money Laundering Specialists’ 26th Annual International Conference in March 2022, Assistant Attorney General of the DOJ’s Criminal Division Kenneth A. Polite, Jr. (who himself has in-house experience as a compliance officer) called on prosecutors to consider requiring CCOs to certify, in all DOJ corporate resolutions, that their companies’ compliance programs are “reasonably designed and implemented to detect and prevent violations of the law” and are “functioning effectively.” In addition, Polite said that in certain resolutions where companies are required to provide annual self-reports to the DOJ on the state of their compliance programs (as opposed to monitorships, where the monitor is the one submitting such reports), the DOJ will consider requiring CCOs to certify that all compliance reports submitted during the term of the resolution are true, accurate, and complete. Polite assured CCOs that these new certification requirements are not intended to be “punitive,” but rather are meant to “empower” CCOs and ensure that CCOs receive all relevant compliance-related information and can more freely voice and effectively vet their concerns with the companies’ compliance programs prior to certification. He also expressed his hope that the additional requirements will “help companies cultivate cultures that promote compliance, including such that employees feel empowered to raise issues to management, and management prioritizes ethics over profit.”