This prior post highlighted the DOJ’s apparent new compliance program certification requirement in connection with certain FCPA enforcement action and demonstrated how the underlying certification process is plagued by legal standards that simply do not exist; internally inconsistent standards; and/or vague or ambiguous terms.

This prior post also highlighted how the SEC is now including apparent new certification language in certain FCPA settlements.

The SEC’s certification language (significantly different – and much less problematic – compared to the DOJ’s certification language although the SEC’s language also includes a legal standard that simply does not exist in the FCPA) first appeared in the KT Corp. enforcement action in February 2022, continued with the Stericycle enforcement action in April 2022, and continued with the Tenaris enforcement action in June 2022.

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This recent post highlighted the DOJ’s apparent new compliance program certification requirement in connection with the Glencore FCPA enforcement action.

As discussed in the post, the underlying certification process is plagued by legal standards that simply do not exist; internally inconsistent standards; and/or vague or ambiguous terms.

This is a big deal because executive officers and compliance professionals are being asked to make the certification subject to certain criminal statutes (18 USC 1001 and 18 USC 1519).

Beginning with the KT Corp. enforcement action in February 2022, continuing with the Stericycle enforcement action in April 2022, and most recently in the Tenaris enforcement action, SEC administrative orders used to resolve FCPA enforcement actions likewise contain a certification requirement.

However, as discussed below, the SEC’s apparent new certification language is significantly different – and much less problematic – compared to the DOJ’s certification language.

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