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DOJ Announces Changes to the Yates Memo Policy on Individual Accountability

On Thursday, November 29th, the U.S. Department of Justice (DOJ) announced changes to its policy known as the “Yates Memo.” That policy, established in 2015 by then-Deputy Attorney General Sally Yates, had required companies to provide DOJ with all relevant information about any individuals involved in misconduct to be eligible to receive any cooperation credit in resolving corporate investigations.

Under the revised policy, to be eligible to receive cooperation credit, companies must provide relevant information about “all individuals substantially involved in or responsible for the misconduct.”

The announcement, made during a speech by Deputy Attorney General Rod Rosenstein, resolves months of speculation regarding how the DOJ would address its policy concerning individual accountability in corporate cases. In announcing the change, Rosenstein reinforced DOJ’s commitment to prosecuting the individuals responsible for corporate misconduct, while acknowledging the shortcomings of the “all or nothing” approach to cooperation that had been DOJ’s prior policy.

Although it remains to be seen, the new policy may have little practical impact in corporate criminal investigations. As Rosenstein acknowledged, the prior policy was not strictly enforced, because in some cases it would have impeded the resolution of cases and wasted resources. In criminal cases, corporations still must “identify every individual who was substantially involved in or responsible for the criminal conduct” to receive cooperation credit. However, the policy no longer requires companies to expend time and resources identifying and collecting information about individuals who are not substantially involved in the misconduct at issue and are therefore unlikely to be prosecuted.

In civil cases, the new DOJ policy seeks to return more discretion to prosecutors. Specifically, DOJ attorneys in civil cases are granted more discretion to accept settlements that remedy the harm and deter future violations, as well as to offer partial cooperation credit to corporations. Corporations still must identify all wrongdoing by senior officials, including senior management and the board of directors, to earn any cooperation credit at all, but attorneys do not have to pursue civil cases against every single employee who may be liable.

For companies faced with internal and government investigations, the practical effect of this policy change should be to allow the company to focus on addressing the misconduct at issue and deal with the key employees who were responsible. The new policy also allows for the possibility of cooperation credit even if companies aren’t able to provide evidence on all relevant individual wrongdoers, either for legal reasons or because they “genuinely cannot get access to certain evidence.” In these situations, the burden falls on the company to explain the impediments and restrictions to DOJ. Companies should not, however, interpret the changes to the policy to mean that they can protect culpable executives and employees. Indeed, the new policy is clear that DOJ attorneys may refuse to award cooperation credit “to any corporation that conceals misconduct by members of senior management or the board of directors, or otherwise demonstrates a lack of good faith in its representations.”

This new policy has been incorporated into the DOJ’s revised Justice Manual, available in whole here. The section on the Value of Cooperation can be found here. The text of Deputy Attorney General Rosenstein’s speech can be found here.

© 2020 Foley & Lardner LLPNational Law Review, Volume VIII, Number 338


About this Author

Thomas F. Carlucci, Foley Lardner, Health Care Fraud Lawyer, Off Label Marketing Attorney,

Thomas F. Carlucci is a partner and litigation attorney at Foley & Lardner LLP where he is managing partner of the San Francisco office. Mr. Carlucci represents corporations, organizations and individuals in white-collar matters and internal investigations with an emphasis on potential health care fraud, tax fraud, off-label marketing, and false claims. He also focuses on civil state and federal tax litigation.

Scott L. Fredericksen, Foley Lardner, White Collar Defense Attorney,

Scott L. Fredericksen is a former federal prosecutor and independent counsel, and is the senior white collar criminal defense partner in the Washington, D.C. office of Foley & Lardner LLP. His practice is focused on white collar criminal defense, including criminal and parallel litigation, involving Antitrust, FCPA, public corruption, fraud, ITAR and export control matters, and SEC enforcement actions. In addition to his active practice, Mr. Fredericksen is managing partner of the firm’s Washington, D.C. office and a member of the firm’s Management Committee. 

Jaime Guerrero, White collar criminal defense attorney, Foley law firm

Jaime Guerrero is a partner and litigation lawyer with Foley & Lardner LLP. Mr. Guerrero focuses in the areas of government enforcement actions, white collar criminal defense, Foreign Corrupt Practices Act ("FCPA") investigations, accounting litigation, securities litigation, and partnership disputes. He represents companies and individuals in parallel civil and criminal proceedings initiated by regulatory and prosecuting agencies for a variety of alleged wrongdoing and business disputes. Mr. Guerrero has conducted internal investigations, in both English and Spanish...

Lisa Noller, Trial Lawyer, Foley Lardner Law Firm

Lisa Noller is a trial lawyer and investigator with Foley & Lardner LLP, where she is chair of the Government Enforcement, Compliance & White Collar Defense Practice. She has spent almost 20 years investigating, litigating and trying complex criminal and civil cases, including responding to government investigations, conducting corporate internal investigations, and persuading the government not to pursue clients. When cases proceed to trial, Ms. Noller also has significant experience successfully trying a wide variety of over 30 civil and criminal matters in...

David Simon, Litigation Attorney, Foley and Lardner Law Firm

David W. Simon is a litigation attorney who devotes much of his practice to helping corporate clients avoid and manage crises that potentially give rise to government enforcement actions. He provides compliance advice, conducts internal investigations, defends companies against enforcement actions, and represents companies in litigation.

The Foreign Corrupt Practices Act is a principal focus of Mr. Simon’s practice. He also has extensive experience representing clients in antitrust matters and in defending False Claims Act investigations and...