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The real-world impact of the Yates Memo

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In September 2015, the U.S. Department of Justice (DOJ) released its policy on Individual Accountability for Corporate Wrongdoing—better known as the “Yates Memo”—which is 'designed to ensure that individual accountability is at the heart of [DOJ’s] corporate enforcement strategy'. 

I recently published an article in Law Journal Newsletters’ Business Crimes Bulletin that considers the scope and aims of the Yates Memo, certain changes the Yate Memo has brought about both within and outside of the DOJ, and what those changes mean for corporations seeking to obtain cooperation credit in connection with DOJ investigations.

peopleIn short, the Yates Memo announced a policy shift with respect to cooperation credit: In order to qualify for any cooperation credit, corporations must provide all known facts about the conduct of individuals who may have been responsible for corporate wrongdoing.

To implement the Yates Memo’s policy pronouncement, several divisions within the DOJ have put in place new policies focused on individual accountability, including revisions to the U.S. Attorney’s Manual, new procedures in the Antitrust Division, and the Fraud Section’s FCPA pilot program.

Meanwhile, corporations and their counsel are coming to terms with 'new' expectations announced in the Yates Memo. New practices designed to comply with the memo are beginning to emerge, including the production of so-called 'Yates Binders' that contain relevant emails relating to the conduct of certain individuals.

One of our clients’ lingering questions is, 'What does adequate cooperation look like in the post-Yates Memo world?' The DOJ has given us some clues through recent declinations and DPAs and, perhaps, the expected level of cooperation is not very different from what corporations and their counsel have been doing.

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