A new approach to suspected corporate wrongdoing
Ann Skeet, Jon Hoak, David Callaway, Leo Cunningham
6 Points of the Yates Memo
The Yates memo represents a policy shift on how the DOJ will approach suspected corporate wrongdoing. It has 6 key points:
- Corporations must provide all relevant facts about individuals involved in corporate misconduct.
- Both criminal and civil investigations will focus on individuals from the beginning.
- Criminal and civil attorneys handling corporate investigations should be in routine communication.
- No corporate resolution will provide protection from criminal or civil liability for any individuals (in almost all circumstances).
- Investigators must plan to resolve related individual cases before resolving corporate cases.
- An individual鈥檚 ability to pay will not be the only consideration on whether civil charges should be brought against individuals.
Key Takeaways for the General Counsel鈥檚 Office
Encourage employees to seek outside counsel early on in the process.
Ensure that employees understand that in-house counsel represents the company, not them. Confirm that Upjohn Warnings are clear and appropriately timed.
Encouraging civil and criminal attorneys to communicate regularly is a controversial topic. This blurring of the line between civil and criminal investigations may be revisited in the near future.
Concerns and Responses
Does the Yates Memo infringe on the corporation鈥檚 ability to assert privilege? Prosecutors should ask, 鈥渨hat happened鈥, not 鈥渨ho said what鈥 as a way of mitigating this.
What does 鈥渃ooperation鈥 mean and who determines where the bar is set? A one size fits all definition will be hard to come by, rather this will likely be decided in practice and by looking at past cases.
Will the Memo result in the unintended consequence of individuals 鈥渃lamming up鈥 and refusing to cooperate at all? Our panel acknowledged this as a possibility, but the DOJ has room to adapt their practices if this becomes prevalent.