The Justice Department has resumed FCPA enforcement with a bang. The new enforcement approach has been unveiled and the message for CCOs and corporate business leaders is clear — anti-corruption compliance should be a critical compliance priority. Companies that fail to do so will be severely punished.

The new DOJ approach stands as one of the most important events elevating the importance of corporate compliance over the last thirty years. However, DOJ’s new certification requirements are bound to be controversial because it strikes at a CCO’s most significant risk — personal liability. CCOs should take DOJ at its word — the certification requirement is intended to empower CCOs in the corporate governance landscape. This will be interesting to watch.

While the certification language includes acknowledgement that the certification statement is “material” and satisfies the obstruction of justice statute under 18 U.S.C. §1519, the likelihood of prosecution of a CCO will be rare (if at all) unless there is a blatant and intentional false representation. But relying on prosecutors to exercise proper prosecutorial discretion provides little comfort to CCOs who now will suffer increased anxiety.

CCOs will have to undertake their own due diligence process in reviewing a company’s global compliance program to confirm the accuracy of any certification. To the extent CCOs rely on reports prepared by third-party consultants and advisers (or even the independent compliance monitor)...

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