DOJ Confirms Changes in Requirements for Corporate Credit and Corporate Investigative Practices Under the Yates Memo

White Collar Crime Group Update

Date: May 13, 2016

In a speech delivered in New York on May 10, 2016, Deputy Attorney General Sally Q. Yates responded to criticism of the Yates Memo’s requirement that companies develop evidence against high-ranking corporate officials in order to obtain credit for cooperation. Yates explained that the changes in policy were a response to the traditional corporate investigations that often concluded—in the passive voice—that “‘Mistakes were made,’ … without identifying who made what mistakes.” According to Yates, companies were expecting to get cooperation credit “even though they hadn’t provided what is most valuable to us—the facts about individuals. So, we decided to make that information a threshold factor.”

Yates said that implementation of the policy has not led any company to decline to cooperate. To the contrary, companies are adhering to the mandate focusing on individual conduct and even “providing what I’m told are called ‘Yates Binders’ … that contain relevant emails of individuals.” Yates also said that she has seen “positive change within companies” with compliance officers confirming that the Yates Memo has “helped them steer officers and employees within their organizations toward best practices and higher standards.”

The changes within DOJ are also manifest, according to Yates. Prosecutors are now “talking about the potential culpability of individuals … from the investigation’s very beginning.” All in all, DOJ is shifting its emphasis “to a more uniform, systematic and sustained focus on individuals.” On the civil side, Yates acknowledged that DOJ’s civil lawyers had historically focused on “recovering the most money possible,” which meant “focusing on the corporate actor.” But now, Yates said, “we recognize that our obligation is about more than recovering the most money from the greatest number of companies.” The emphasis now will be on deterrence by stopping fraud from happening in the first place. “There is a real deterrent value in the prospect of being named in a civil suit or having a civil judgment. And this kind of deterrence can change corporate conduct,” said Yates.

A transcript of Deputy Attorney General Yates’s remarks is available on the DOJ website.

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Brian.Waller@ThompsonHine.com

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