In a speech at the American Bar Associations’ Antitrust Fall Forum on November 12, Assistant U.S. Attorney General Bill Baer warned corporate executives not to ignore the civil consequences outlined in the September memorandum issued to federal attorneys nationwide by Deputy Attorney General Sally Quillian Yates. Now commonly referred to as the “Yates Memo”, federal prosecutors were directed to pursue individuals as well as companies for alleged corporate wrongdoing.
The Department of Justice’s new policy applies to all future investigations of corporate wrongdoing, both criminal and civil, in addition to matters pending as of the date (September 9) of the memorandum. However, Baer remarked that much of the public conversation regarding the Yates Memo has focused on the potential for criminal liability. While the memorandum outlined both civil and criminal enforcement, civil accountability for individuals has gone largely unreported stated Baer. He further said that his division, along with other civil divisions at the DOJ, are actively involved in implementing the Yates Memo and are ready to bring action against “high level” individuals if they believe that will help curb future violations.
“We will be looking, going forward, at whether there ought to be individual accountability,” he said. “It doesn’t mean we’re going to do it, but it is I think a fair thing for the deputy attorney general to ask all components [of the DOJ] to look at [whether] there is an additional deterrent effect that comes with holding responsible the individuals who adopt a policy that is in violation of the antitrust laws or some other federal standard.”
Corporate officers and executives should heed Baer’s warning that the civil divisions of the DOJ are fully implementing the guidelines and policies of the Yates Memo. It is clear that the government has a renewed focus on individual (and in particular C-Suite) accountability therefore, it is imperative that corporate officers and executives give serious consideration to the efficacy of the organization’s compliance program, including thorough internal investigations of alleged violations of policy and law and regular audits of high risk areas. Executives who promote a culture of compliance from the top down will be better positioned to defend the company and themselves against government accusations of wrongdoing.