On May 10, 2016, US Deputy Attorney General Sally Yates discussed the history and implementation of the so-called “Yates Memo,” a September 2015 policy statement issued by the US Department of Justice entitled “Individual Accountability for Corporate Wrongdoing.” Yates stressed that the prosecution of individual employees and executives has always been a priority of the DOJ, and is essential to having a substantial impact on corporate culture. She highlighted the application of the policy to corporate actors in the financial services sector. However, determining which individuals are actually responsible for corporate misdeeds can be challenging in light of blurred authority lines and large amounts of documents that may be subject to privacy protection laws. Accordingly, Yates shared that the DOJ convened a group of Department lawyers to focus on ways the DOJ could overcome these challenges, and their discussions culminated in the issuance of the Yates Memo. While, pursuant to the Yates memo, companies are required to provide all facts about individual misconduct to qualify for any “cooperation credit,” Yates emphasized that the scope of a company’s investigation into such misconduct should be tailored to the scope of the wrongdoing, and that companies should continually turn over information as it becomes known during the course of their investigations. Yates further clarified that it is not necessary for companies to make judgments about individual culpability; instead, the DOJ wants facts about individual conduct. With respect to implementation, Yates noted that both the civil and the criminal sides of the DOJ have shifted their focus to individual culpability, and that the civil side in particular has shifted its focus from seeking out the largest penalties (often, from the largest corporate actor) to focus on determining and redressing the culpable conduct as a means of deterring corporate misconduct.

Deputy Attorney General Yates’s remarks are available at: https://www.justice.gov/opa/speech/deputy-attorney-general-sally-qyates-delivers-remarks-new-york-city-bar-association