Academic journal article Defense Counsel Journal

DOJ's Yates Memorandum: Focus Enforcement Efforts on Individuals

Academic journal article Defense Counsel Journal

DOJ's Yates Memorandum: Focus Enforcement Efforts on Individuals

Article excerpt

International Association of Defense Counsel Committee members prepare newsletters on a monthly basis that contain a wide range of practical and helpful material. This section of the Defense Counsel Journal is dedicated to highlighting interesting topics covered in recent newsletters so that other readers can benefit from committee specific articles.

William E. Lawler, III is the co-head of the Vinson & Elkins Government Investigations and White Collar Practice Group. Bill represents corporations, organizations, government entities, and individuals in a wide variety of difficult and sensitive matters. He represents clients in federal and state courts, as well as before regulatory agencies and Congress. Bill has handled matters in 35 US. states and more than 30 countries. He has tried more than 70 jury cases to verdict, has had 15 appellate arguments, and has conducted hundreds of grand jury and motions proceedings. Jeremy Keeney is an associate at Vinson & Elkins. His principal areas of practice include complex commercial litigation and investigations, with a focus on antitrust, government investigations, and FCPA compliance matters.

This article originally appeared in the December 2015 White Collar Defense and Investigation and Corporate Counsel Committee newsletter.

ON September 9, 2015, Deputy Attorney General Sally Yates attempted to raise the bar for companies seeking cooperation credit by announcing new directives for the Department of Justice ("DOJ") to require cooperating companies to, among other things, affirmatively hand over potentially culpable employees. The Yates Memorandum ("the Memo") explicitly directs DOJ attorneys to focus enforcement efforts on individuals who in the past may otherwise have escaped liability. (1)

The Memo discusses six steps aimed at strengthening the DOJ's "pursuit of individual corporate wrongdoing." Together, the Memo provides six directives: 1) to be eligible for any cooperation credit, companies must provide the Department all relevant facts about the individuals involved in corporate misconduct; 2) both criminal and civil corporate investigations should focus on individuals from the inception of the investigation; 3) criminal and civil attorneys handling corporate investigations should be in routine communication with one another; 4) absent extraordinary circumstances, no corporate resolution will provide protection from criminal or civil liability for any individuals; 5) corporate cases should not be resolved without a clear path to resolve related individual cases before the statute of limitations expires and declinations as to individuals in such cases must be memorialized; 6) 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.

While the Memo has strong language and has been portrayed in the media as the start of a new era in individual enforcement, that portrayal is open to question. In fact, the Memo, which might also be seen as the DOJ's response to the many constituencies, including Congress, that have criticized the DOJ for not doing enough to go after individuals, relies on a number of existing policies. The emphasis may be new, but the Memo may really be seen as reminder of things prosecutors could and should have been doing all along.

Still, the fanfare with which the Memo was rolled out shows that the DOJ wanted to make a statement. The four areas in which we think the statement is most interesting are discussed below.

I. Companies Must Provide All Relevant Facts Regarding Involved Individuals to Be Eligible for Any Cooperation Credit

To even be considered for any cooperation credit in a criminal or civil matter, the directives require that the company identify for the DOJ all individuals involved in or responsible for the misconduct, regardless of their position, status or seniority, to the satisfaction of the DOJ. …

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