DOJ’s New Settlement Policy Demonstrates Increased Focus on Robust Compliance Programs

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On Wednesday, Assistant Chief of DOJ Fraud Section’s Corporate Enforcement, Compliance, and Policy Unit, Lauren Kootman, confirmed the Department’s new policy of having chief compliance officers certify settlement agreements with the DOJ. These certifications will “most likely” be a part of every new agreement with the Department going forward.

Under this new policy, both CCOs and CEOs will be required to certify that a company’s compliance programs are “reasonably designed” to prevent future violations of the law. The first such certification was incorporated into the Department’s $1.1 billion settlement with mining giant Glencore in May, following its guilty plea to U.S. bribery and market manipulation charges.

Kootman defended the policy as not intended to subject CCOs to additional liability, but rather, to empower both CCOs and companies’ compliance programs with additional visibility and resources to ensure compliance. Kootman stressed that the inclusion of the CCO in important company decisions is key to a solid compliance program. She also pointed out additional measures companies can take to ensure robust compliance, including employee surveys and analysis of those surveys, tying compensation to compliance incentives, effective processes for reporting potential misconduct and tracking and investigating such reports.

This new policy demonstrates the Department’s increasing focus on companies’ compliance measures following civil and criminal settlements. Going forward, entities engaging in settlement negotiations with the DOJ should be prepared to include their CCOs in the negotiation process as their certification will likely be a pre-requisite to settlement.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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