The Yates Memorandum and Government Enforcement Against Individuals
In September 2015, Sally Quillian Yates, a United States Deputy Attorney General, issued a seven-page memorandum entitled “Individual Accountability for Corporate Wrongdoing,” which has attracted an enormous amount of attention. The so-called “Yates Memo” sets out six points which Yates says demonstrate the Department of Justice’s (DOJ) attitude in prosecuting individual malefactors. This memo, which applies to both criminal and civil actions brought by the DOJ, states that it is the department’s intention to assure that the individuals responsible for misdeeds are targeted from the beginning of every investigation.
The six steps are:
- Corporations are eligible for cooperation credit3 only if they provide DOJ with “all relevant facts” relating to all individuals responsible for misconduct, regardless of their level of seniority;
- Both criminal and civil DOJ investigations should focus on investigating individuals “from the inception of the investigation;”
- Criminal and civil DOJ attorneys should be in “routine communication” with each other, including criminal attorneys notifying civil counterparts “as early as permissible” when conduct giving rise to potential individual civil liability is discovered (and vice versa);
- “Absent extraordinary circumstances,” DOJ should not agree to immunity for potentially culpable individuals;
- DOJ should have a “clear plan” to resolve open investigations of individuals when the case against the corporation is resolved; and
- Civil, as well as criminal, DOJ attorneys should focus on individuals’ activities, taking into account accountability and deterrence value, in addition to the ability to pay.