Last month’s “Yates Memo” from the Department of Justice (DOJ) (available here) promises to be a game-changer in the world of government investigations and enforcement activity. While several U.S. Attorney Offices had been applying many of these principles already, the Yates Memo now establishes the principles expected to be followed by all U.S. Attorney Offices and Main Justice.

Named for DOJ Deputy Attorney General Sally Quillian Yates, a career prosecutor and former United States Attorney for the Northern District of Georgia, the Memo sets forth guiding principles, applicable to both civil and criminal investigations, to ensure that individuals are held accountable for corporate wrongdoing. As noted in the Memo, “One of the most effective ways to combat corporate misconduct is by seeking accountability from the individuals who perpetrated the wrongdoing.” In this way, the Memo aims to deter future illegal activity, incentivize changes in corporate behavior, ensure the proper parties are held responsible for their actions, and promote public confidence in the justice system.

While the guiding principles are not themselves new,¹ they reflect important policy shifts in DOJ’s approach. In light of the vastly escalating numbers of civil False Claims Act cases brought in recent years by whistleblowers against health care and life sciences entities – whether based on false claims, kickbacks, Stark violations, or a multitude of other theories² – the Yates Memo represents a significant development for the health care delivery system as a whole.

1. DOJ has been espousing the need to pursue individuals since at least 1999, when then-Deputy Attorney General Eric Holder issued another memo entitled, "Bringing Criminal Charges Against Corporations." The principles enunciated in the Holder Memo continued via statements from later Deputy Attorneys General (Thompson Memo (2003), McNulty Memo (2006), Filip Memo (2008)), and were eventually articulated more officially in the U.S. Attorney’s Manual ("USAM") as the Principles of Federal Prosecution of Business Organizations (USAM § 9 28.000). More recent DOJ pronouncements include those by Leslie R. Caldwell, Assistant Attorney General, on Nov. 19, 2014 (http://www.justice.gov/opa/speech/assistant-attorney-general-leslie-r-caldwell-speaks-american-conference-institute-s-31st) and Sept. 17, 2014 (http://www.justice.gov/opa/speech/remarks-assistant-attorney-general-criminal-division-leslie-r-caldwell-taxpayers-against); and one by Marshall L. Miller, Principal Deputy Assistant Attorney General for the Criminal Division, on Sept. 17, 2014 (http://www.justice.gov/opa/speech/remarks-principal-deputy-assistant-attorney-general-criminal-division-marshall-l-miller).
2. See 11/20/14 DOJ Press Release, noting that while there typically were 300-400 qui tam/whistleblower cases filed in each fiscal year between 2000 and 2009, more than 700 cases were filed in each of the last two fiscal years. http://www.justice.gov/opa/pr/justice-department-recovers-nearly-6-billion-false-claims-act-cases-fiscal-year-2014

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