April 1, 2022

AAG Polite announces that the DOJ is considering CEO and CCO certification requirements in corporate resolutions

US Assistant Attorney General Kenneth A Polite Jr. recently delivered two speeches in which he emphasized the importance of a strong compliance program in preventing the occurrence or recurrence of misconduct and announced that, in connection with corporate resolutions, the US Department of Justice (DOJ) was considering requiring that a company’s Chief Executive Officer (CEO) and Chief Compliance Officer (CCO) certify to statements the company provides to the DOJ concerning the state of its compliance program.
Polite initially made these remarks on March 22, 2022, at the ACAMS AML and Financial Crime Conference in Hollywood, Florida, and then repeated and expanded on them on March 25, 2022, at the NYU Program on Corporate Compliance and Enforcement.  In his more detailed March 25 remarks, Polite explained that, in an effort to “further empower” CCOs, the DOJ was considering—for all corporate resolutions (including guilty pleas, deferred prosecution agreements, and non-prosecution agreements)—requiring that a company’s CEO and CCO 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 (based on the nature of the legal violation that gave rise to the resolution, as relevant),” and that it is “functioning effectively.”  He stated that the DOJ was also considering, in circumstances where a monitor has not been imposed and a company is required to provide annual self-reports on the state of its compliance program, requiring that the CEO and CCO “certify that all compliance reports submitted during the term of the resolution are true, accurate, and complete.”
Polite explained that these certification requirements would not be intended to be punitive in nature but instead would be “a new tool in [the] arsenal” of CCOs, which would empower CCOs and place them in a role of “true independence, authority and stature within the company.”  Polite, who formerly served as a CCO before assuming his current DOJ role, also reiterated that the DOJ is committed to rewarding responsible companies that promote an ethical corporate culture and invest in effective compliance programs, and that the DOJ would more favorably view “companies that make a serious investment in improving their compliance programs and internal controls,” whether in connection with initially resolving misconduct or in considering the appropriate consequences for breaching a corporate resolution.

AAG Remarks at ACAMS 2022 Hollywood Conference – March 22, 2022 | AAG Remarks at NYU Program on Corporate Compliance and Enforcement – March 25, 2022