DOJ Seeing Signs of Cooperation After Yates Memo

Bloomberg BNA’s Corporate Law & Accountability Report is available on the Corporate Law Resource Center. This news service keeps corporate practitioners informed of legal developments of...

By Che Odom

May 10 — Companies are making “real and tangible efforts” to provide federal prosecutors with facts about culpable individuals as a result of a Justice Department policy announced last fall, Deputy Attorney General Sally Quillian Yates said May 10.

Companies are turning over what has been termed “Yates Binders” of relevant e-mails from individuals being interviewed by the government, the DOJ official said in a speech in New York.

Another consequence of the policy change is that corporate compliance officers have said the focus on individual liability has enabled them to “steer officers and employees within their organizations toward best practices and higher standards,” she said.

In September 2015, Yates released a memorandum stating that the DOJ will require a company to provide information about individual wrongdoers in order to qualify for cooperation credit in a white-collar investigation (13 CARE 1952, 9/11/15).

Since then, Yates said she has seen a shift in how the department approaches civil and criminal cases.

Department Changes

On the criminal side, federal prosecutors are now talking about potential culpability of individuals from the outset of investigations instead of at a case's resolution, Yates said.

“This is not to say that the department wasn't focused on individuals before,” she added.

On the civil side, the department's focus on individuals, in addition to the company, in complex corporate fraud cases has prevented it from having to go back over evidence to determine if a particular employee should be held accountable, she said.

A big concern expressed by some defense attorneys is that companies may be forced to waive privilege to comply with the Yates memo's call for information on individuals, but no one has reported such an instance to the Justice Department, Yates said. She added that the policy requires only that a company turn over relevant non-privileged information.

To contact the reporter on this story: Che Odom in Washington at codom@bna.com

To contact the editor responsible for this story: Yin Wilczek at ywilczek@bna.com

For More Information

The text of Yates's speech is available at http://src.bna.com/eRA.