Much already has been written about the “Yates Memorandum,” a September 2015 pronouncement by Deputy U.S. Attorney General Sally Quillian Yates to Department of Justice prosecutors. The Yates Memorandum echoed what some top DOJ officials had been saying for at least a year, and what the DOJ’s Antitrust Division had been doing for the better part of the past 10 years: Companies seeking credit for their cooperation must disclose “all relevant facts” about the criminal culpability of individual employees and executives, in order to obtain any cooperation credit at all. In considering how the 3-month-old Yates Memorandum might affect Japanese companies, there are a few things we know, and a few things we don’t know.
We know from the Antitrust Division’s aggressive pursuit of individual Japanese nationals, most recently in the auto parts investigation, that the DOJ will not relax its efforts to build prosecutions and obtain jail sentences against individuals. In that sense, for U.S. and Japanese lawyers who have followed closely U.S. antitrust investigations, the Yates Memorandum is hardly new, and we can expect similar approaches in other cross-border investigations such as those involving the U.S. Foreign Corrupt Practices Act.
We also know that if the Yates Memorandum is telling us that companies must exhaustively investigate and “turn in” their individual employees in order to receive any cooperation credit at all, some companies may not seek cooperation credit as quickly or readily. If the environment is indeed “all” (cooperation against individuals) or “nothing” (no cooperation credit), some companies may be more deliberate. Some companies may be more willing to provide individuals with separate counsel early in an investigation, and some individuals may weigh more carefully their own decision to “cooperate,” even if they face corporate discipline, particularly if they are about to incriminate themselves. Amid this uncertainty, some companies may not decide to cooperate with DOJ until the internal investigation yields a clearer sense of just how effectively the company can reveal incriminating evidence against individuals.
Finally, we know that DOJ already has backtracked somewhat from the Yates Memorandum’s stern pronouncements about the “all or nothing” cooperation equation. In a recent series of public speeches in October and November 2015, Ms. Yates has clarified that she did not mean to say that companies must disclose “all the relevant facts” to establish the full extent of the individual misconduct that occurred. Rather, she said, companies simply must disclose all the facts they reasonably could develop, because the DOJ recognizes that an investigation might not uncover “all” the facts needed to build an individual criminal case.
Consequently, we do not yet know how successful Japanese companies will be in arguing that despite their best efforts, their investigation did not yield extensive evidence of individual culpability. We do not yet know how receptive the DOJ will be to those arguments, or how the DOJ will evaluate and test them. We do not know how effective a company’s less-than-complete account of its misconduct will be in earning the “cooperation credit” that is the very touchstone of why the company decided to cooperate in the first place.
In short, we know that companies entangled in crossborder DOJ investigations will continue to face many difficult decisions, with perhaps even less clarity than before about how far their cooperation will take them.