On November 29, 2018, U.S. Deputy Attorney General Rod Rosenstein announced revisions to the Yates Memo during a speech at ACI’s Conference on the Foreign Corrupt Practices Act (FCPA). (The Yates Memo, formally titled “Individual Accountability for Corporate Wrongdoing,” was issued by then Deputy Attorney General Sally Q. Yates on September 9, 2015, and set forth DOJ’s policy on prioritizing the prosecution of individuals in a corporate crime setting). These changes to DOJ’s corporate enforcement policies have been incorporated into DOJ’s Justice Manual (formerly known as the United States Attorneys’ Manual).
Although billed as substantive changes, the modifications announced by the DAG are slight tweaks to the existing DOJ policy that prioritizes the prosecution of individuals and rewards companies with cooperation credit when they provide meaningful assistance and evidence that enables the DOJ to prosecute the individuals responsible for such violations. Indeed, the most meaningful changes announced by Rosenstein affect DOJ civil investigations, not criminal ones.
The principal changes announced are:
- On the criminal side, Rosenstein stated that the “revised policy … makes clear that any company seeking cooperation credit in criminal cases must identify every individual who was substantially involved in or responsible for the criminal conduct.” Here, the emphasis is on the term “substantially involved.” The DAG’s remarks made clear that DOJ, in an effort to streamline investigations and reduce the burden on cooperating companies, will not expect companies to provide information on relatively minor players “who are not likely to be prosecuted” in order to qualify for cooperation credit.
- Recognizing that civil cases are different, Rosenstein stated that the revised policy will permit DOJ civil litigators to provide partial cooperation credit when a company “meaningfully assist[s]” the government’s investigation. In civil cases, DOJ will no longer require cooperating companies to identify all individual wrongdoers to earn maximum credit; rather, they must identify all wrongdoing by “senior officials” and “every individual person who was substantially involved in or responsible for the misconduct.”
- Rosenstein also announced that the revised policy will permit DOJ civil attorneys in corporate resolutions to negotiate civil releases for individuals who do not warrant additional investigation, and to consider an individual’s ability to pay when deciding whether to pursue a civil judgment.
The changes announced by the DAG have the stated purpose of giving DOJ criminal and civil attorneys greater flexibility and discretion in corporate investigations in order to reduce the time it takes to conclude those investigations. However, the changes preserve the Yates Memo’s core principle, i.e., that the prosecution of culpable individuals remains a paramount DOJ priority.