In September 2015, the Department of Justice (DOJ) issued guidance to its prosecutors aimed at encouraging white collar criminal and civil cases against corporate executives. This policy is commonly known as the Yates Memorandum.
On November 29, 2018, DOJ Deputy Attorney General Rod J. Rosenstein announced the revised policy. Citing inefficiencies and wasted resources, he discussed two primary areas where the Yates Memo will be revised. Specifically, (1) in criminal and civil cases, corporations may receive cooperation credit if they provide information regarding individuals with substantial involvement or responsibility for criminal conduct, and (2) civil attorneys will again have more discretion to settle cases and can consider factors such as an individual’s ability to pay. (https://www.justice.gov/opa/speech/deputy-attorney-general-rod-j-rosenstein-delivers-remarks-american-conference-institute-0).
The Yates Memo
There are six main principles in the Yates Memorandum as follows:
- To be eligible for any cooperation credit, corporations must provide to the Department all relevant facts about the individuals involved in corporate misconduct;
- Both 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, no corporate resolution will provide protection from criminal or civil liability for any individuals;
- Corporate cases should not be resolved without a clear plan to resolve related individual cases before the statute of limitations expires and declinations as to individuals in such cases must be memorialized; 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.
The recent changes focus on the first and last principles.
Rothstein’s Changes to the Yates Memo
While there will still be a focus on individuals in both civil and criminal cases, in order to give cooperation credit to a corporation it is no longer all or nothing as far as an entity’s providing information regarding individuals. Rothstein emphasized that “[u]nder our revised policy, pursuing individuals responsible for wrongdoing will be a top priority in every corporate investigation…. Our revised policy also makes clear that any company seeking cooperation credit in criminal cases must identify every individual who was substantially involved in or responsible for the criminal conduct.” (Emphasis added). However, “in response to concerns raised about the inefficiency of requiring companies to identify every employee involved regardless of relative culpability,”… “investigations should not be delayed merely to collect information about individuals whose involvement was not substantial, and who are not likely to be prosecuted.” And therefore, “[w]e want to focus on the individuals who play significant roles in setting a company on a course of criminal conduct. We want to know who authorized the misconduct, and what they knew about it.”
The change in policy also recognizes that civil cases, including false claims act cases, are different. “The primary goal of affirmative civil enforcement cases is to recover money, and we have a responsibility to use the resources entrusted to us efficiently….Our civil litigators simply cannot take the time to pursue civil cases against every individual employee who may be liable for misconduct, and we cannot afford to delay corporate resolutions because a bureaucratic rule suggests that companies need to continue investigating until they identify all involved employees and reach an agreement with the government about their roles.
Therefore, the policy was revised to restore some of the discretion that civil attorneys traditionally exercised. Notably, DOJ attorneys are once again are permitted to consider an individual’s ability to pay in deciding whether to pursue a civil judgment. However, Rothstein emphasized that company “must identify all wrongdoing by senior officials, including members of senior management or the board of directors, if it wants to earn any credit for cooperating in a civil case,” and “[i]f a corporation wants to earn maximum credit, it must identify every individual person who was substantially involved in or responsible for the misconduct.” Therefore, the identification of alleged wrongdoers applies similarly in civil and criminal cases.
It appears that the DOJ is going back to how it handled corporate cooperation from 2006 through 2015. It appears that the hope is that these changes result in companies’ increased willingness to cooperate with the DOJ. The DOJ also plans to more efficiently use their resources based on these revisions. These changes are incorporated in the Justice Manual (formerly the United States Attorney’s Manual), sections 1-12.000, 4-3.100, 9-28.210, 9-28.300, 9-28.700.