Yates Memo - an Update from the DOJ

Many in-house lawyers got heartburn last year after the release of the Yates Memo.  The memo, authored by DOJ Deputy Attorney General Deborah Yates, set out the latest DOJ thinking around the prosecution of corporate wrongdoing and how the DOJ will credit corporate cooperation.  The memo led to numerous articles and commentary about potential negative impacts on executives, corporations and the lawyers who defend them (internal and external).  While the sky has not fallen, lawyers are right to be watchful.  Last week, DAG Yates attempted to put minds at ease somewhat, conceding that the impact of the memo is somewhere between the sky is falling and business as usual.  Click here to read a story about some takeaways from her remarks. From the article:

"The Justice Department’s goal is not to “collect corporate heads” but instead “to get to the bottom of who did what and if there are culpable individuals, hold them accountable.”  Yates said that companies don’t have to serve up what she called “the vice president in charge of going to jail” to get cooperation credit.  DOJ may grant credit even when a company cannot identify the culpable parties so long as the company has conducted an “appropriately tailored investigation and truly did everything they could reasonably be expected to do […].”

Companies need only provide the facts relating to individual employees; they don’t have to make a legal conclusion about whether an employee is culpable.  The Department will come to its own conclusions about criminal or civil exposure for company employees."

In-house counsel should continue to watch for developments and real-life examples of what the DOJ means/intends under the Yates Memo.  If you haven't already done so, it's time to look at: your internal policies and processes around employee wrongdoing, how you conduct investigations of such wrongdoing, and ensuring that your senior management understands that the rules of the game are changing and the focus is more and more on punishing individuals for bad corporate behavior.  See also my legal blog "Ten Things You Need to Know as In-House Counsel" and my posts on planning for a crisis and on a 2016 "to do" list.