On September 9, 2015, U.S. Department of Justice ("DOJ" or the "Department"), Deputy Attorney General Sally Yates issued a memorandum to all U.S. Attorneys regarding individual accountability for corporate wrongdoing (the "Yates Memo").
The point of the Yates Memo is clear: while DOJ will continue to pursue companies for corporate wrongdoing, the Department will also simultaneously pursue charges against individual employees. According to the Yates Memo, "[b]ecause a corporation only acts through individuals, investigating the conduct of individuals is the most efficient and effective way to determine the facts and extent of any corporate misconduct."
And the ultimate target of these efforts? Corporate executives. The DOJ understands that lower-level employees facing individual civil or criminal liability are likely to cooperate against their superiors, thereby facilitating DOJ's ability to obtain information necessary to prosecute individuals further up the corporate ladder.
The Yates Memo outlines six key principles intended to strengthen the DOJ's pursuit of individual corporate wrongdoing:
- To be eligible for any cooperation credit in a criminal or civil matter, a corporation must identify all individuals involved in or responsible for the misconduct at issue, regardless of their position, status, or seniority, and provide the Department all facts relating to that misconduct.
- Criminal and civil corporate investigations should focus on individuals from the inception of the investigation.
- The Department's criminal and civil attorneys handling corporate investigations should be in routine communication with one another.
- Absent extraordinary circumstances or approved Departmental policy, the Department will not release culpable individuals from civil or criminal liability when resolving a matter with a corporation.
- DOJ attorneys should not resolve matters with a corporation without a clear plan to resolve related individuals cases, and should memorialize any declinations as to individuals in such cases.
- Civil attorneys should consistently focus on individuals as well as the company and evaluate whether to bring suit against an individual based on considerations beyond that individual's ability to pay (e.g., the seriousness of the conduct, past misconduct, whether it is actionable, the burden of proof, and federal resources and priorities).
Regarding the first principle, importantly, companies are required only to cooperate "within the bounds of the law and legal privileges." This means, among other things, that companies are not required to waive the attorney-client and work-product privileges; indeed, under current DOJ policy, DOJ attorneys cannot even ask a company to waive privilege in criminal investigations.
The fifth principle may represent a significant change in overall DOJ practice (although the principle doubtless was already being applied in many cases). Among other things, this fifth principle may force prosecutors to bring more criminal cases against individuals than they otherwise would, resulting in an increase in both indictments and trials.
It remains to be seen the extent to which the Yates Memo represents a substantial policy change for DOJ as opposed to a confirmation of existing practices. It also remains to be seen how meaningfully the memo will impact the Department's enforcement efforts going forward.
Our Compliance & Government Investigations team is already taking stock of the ramifications of the Yates Memo, including in informal discussions with DOJ officials. It was a point of emphasis throughout our annual Compliance & Government Investigations seminar in Nashville on September 10. (We timed the seminar well!)
Please contact us at any time to discuss the Yates Memo and how it could affect you and your company.
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