Inside Counsel

The 'Yates Memo,' authored by then-Deputy Attorney General Sally Yates, is an effort to fundamentally change the way a company and outside counsel approach enforcement matters. It puts great effort on transparency, cooperation, and doing it the government way, rather than the historical approach of representing and protecting the company in investigations in return for potential reduction of penalties.

Although prosecuting individuals responsible for criminal antitrust violations has been longstanding U.S. Department of Justice (DOJ) policy, the DOJ's tools and practices for investigating and prosecuting both individuals and corporations suspected of criminal antitrust violations have evolved. In particular, the DOJ's focus on individuals increasingly early in investigations poses challenges that counsel must manage proactively.

Authors: Edward W. Duffy

The DOJ declared its focus on prosecuting individuals responsible for corporate misconduct in the September 9, 2015 "Individual Accountability for Corporate Wrongdoing" memorandum. The "Yates Memo" recognized that individual accountability "deters future illegal activity, it incentivizes change in corporate behavior, it ensures that the proper parties are held responsible for their actions, and it promotes the public's confidence in our justice system."

The Yates Memo identified six steps to further these objectives:

  1. Requiring corporations seeking cooperation credit to provide all relevant facts relating to responsible individuals;
  2. Focusing on individuals from the inception of the investigation;
  3. Coordination between criminal and civil DOJ attorneys;
  4. Not releasing culpable individuals from civil or criminal liability when resolving a matter with a corporation, absent extraordinary circumstances;
  5. Having a plan to address individuals before resolving matters with a corporation; and
  6. Holding individuals liable for civil liability.

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