The Department of Justice has signaled that a new policy is around the corner; one that would require as part of the Department's settlements that Chief Compliance Officers certify that their companies' compliance programs are reasonably designed to prevent future violations. Speaking at a June 22, 2022, panel discussion presented by the Women's White Collar Defense Association, Lauren Kootman, assistant chief of corporate enforcement, compliance, and policy at the DOJ's fraud section, stated that such a certification will most likely be required in all settlements going forward.
Such certifications by CCOs have already begun to appear in DOJ settlements, beginning with the recent high-profile $1 Billion settlement with Glencore. Remarks by other DOJ officials, including Deputy Attorney General Lisa Monaco and Assistant Attorney General Kenneth A. Polite Jr., have also suggested that such a policy may be in the offing. Kootman's remarks confirmed the Department's intention to implement a CCO certification policy.
Kootman emphasized that requiring CCO certification is meant to "empower" CCOs and to ensure that they are involved in the settlement process and more generally have a "seat at the table" on all matters involving compliance. She also stated that effective compliance programs will be ones that "empower" CCOs by giving them access to information and involving them in the company's high-risk transactions and important decisions.
While Kootman stated that the new certification requirement is not meant to "punish" CCOs or to "put a target" on their backs, the policy must be read in the context of other DOJ comments and policies placing a greater emphasis on individual accountability, and in particular that of CCOs. Requiring CCOs to certify the adequacy of their compliance program gives the DOJ a powerful new tool with which to impose liability on CCOs. Even if prosecutors might not be able to prove a CCO's substantive involvement in wrongdoing, they may be able to establish CCO liability, even—criminal liability—for making a false certification.
Companies and their CCOs need to heed DOJ's warnings and ensure they have robust compliance programs in place and that CCOs are actively involved in the company's decision-making. The consequences of failing to do so could not only kill a settlement deal but could result in charges against individual CCOs.
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