On September 9, 2015, Deputy Attorney General ("DAG") Sally Yates announced six changes to policies and practices governing investigations of corporate misconduct in a memorandum (the "Yates Memo") to prosecutors throughout the United States Department of Justice ("DOJ").
The changes, which cover virtually all criminal and civil investigations of corporate wrongdoing, result from the DOJ's internal examination of its approach to building cases against individuals at all levels in white collar cases. The six changes will be incorporated into the Department's governing policies contained in the U.S. Attorneys' Manual, and they are effective for all new investigations, as well as on existing investigations "to the extent … practicable …."
The Six Policy Changes
- In order to qualify for any cooperation credit, corporations must provide to the Department all relevant facts relating to the individuals responsible for the misconduct;
- Criminal and civil corporate investigations should focus on individuals from the inception of the investigation;
- 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;
- Department attorneys should not resolve matters with a corporation without a clear plan to resolve related individual cases and should memorialize any declinations as to individuals in such cases; and
- 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.
