In 2017, the U.S. Department of Justice (DOJ) initiated a review of its 2015 policy concerning individual accountability in corporate cases (known as the "Yates Memo"). In the course of that review, the DOJ considered suggestions from its own employees as well as outside stakeholders about how to increase the efficiency and effectiveness of the policy. On Nov. 29, 2018, Deputy Attorney General Rod Rosenstein announced changes to the policy that will affect both criminal and civil cases.
Policy Changes Affecting Criminal Cases
- Under the DOJ's revised criminal cooperation credit policy, companies seeking cooperation credit in criminal cases must still identify culpable individuals but they need only identify individuals who were substantially involved in or responsible for criminal conduct.
- Investigations will no longer be delayed merely to collect information about individuals 1) whose involvement was not substantial and 2) who are not likely to be prosecuted.
- This change was made because the DOJ learned that the prior policy of requiring companies to identify every employee who played any role in the misconduct often impeded resolutions and wasted resources.
Policy Changes Affecting Civil Cases
- Under the DOJ's revised civil cooperation credit policy, companies seeking cooperation credit in civil cases need identify only all wrongdoing by senior management or the board of directors.
- No longer must companies identify every individual who was substantially involved in or responsible for the misconduct to earn any cooperation credit. Rather, if companies identify every individual who was substantially involved in or responsible for the misconduct, they can earn full credit. Thus, in civil cases, the tripartite cooperation credit choice is now as follows.
- No credit: Fail to identify wrongdoing by senior management or the board of directors
- Some credit: Identify wrongdoing by senior management and the board of directors
- Full credit: Identify wrongdoing by everyone substantially involved in or responsible for the misconduct
- This change was made because the DOJ found that allowing only a binary choice – full credit or no credit – often delayed resolution of cases while offering little or no benefit. The new no credit, some credit or full credit choice returns discretion to civil attorneys – discretion that the DOJ hopes will help its civil attorneys to most efficiently achieve their enforcement mission.