The DOJ recently made a significant change to its policy regarding corporate cooperation. Since 2015, that policy has been governed by a memo titled "Individual Accountability for Corporate Wrongdoing" — popularly known as the "Yates Memo" — which stated that "[t]o be eligible for any cooperation credit, corporations must provide to the Department all relevant facts about the individuals involved in corporate misconduct." This policy was incorporated into the United States Attorney's Manual, which guides DOJ investigations.
On 29 November 2018, Deputy Attorney General Rod Rosenstein announced revisions to the Yates Memo policy. Under the revised policy, companies are only required to identify all individuals who were substantially involved in a potential crime in order to receive cooperation credit in criminal investigations. This is a significant change to the Yates Memo policy, which required companies to provide information on all individuals who were involved in potential misconduct, no matter how insubstantial their role.
In explaining the DOJ's policy shift, Mr. Rosenstein indicated a desire to focus on individuals who play "significant roles in setting a company on a course of criminal conduct" and that the DOJ wants to "know who authorized the misconduct, and what they knew about it." Mr. Rosenstein acknowledged that it is not practical to require a company to identify every employee who played any role in alleged illegal schemes that encompass otherwise routine activities of numerous employees, particularly when the government and company want to resolve the matter, but disagree over the scope of misconduct.
Under the revised Yates Memo policy, companies can now determine which individuals were substantially involved in wrongdoing, rather than providing the DOJ with information on every individual involved, no matter the level of involvement (although, of course, the government will have to agree with where the company draws the line on which employees were "substantially" involved). That being said, the policy shift may not impact the scope of internal investigations conducted by companies in response to government investigations, as there are still ample incentives for the company to understand the full breadth and scope of alleged misconduct. Indeed, a full understanding of the scope and facts underpinning potential misconduct will likely be necessary to effectively determine which individuals were "substantially" involved and which individuals were not. Furthermore, the revised Yates Memo policy conflicts with the FCPA Corporate Enforcement Policy, which still requires the disclosure of "all relevant facts about all individuals involved." As FCPA investigations are often among the most sprawling and expensive of white collar investigations, this conflict will likely be a discussion point between the defense bar and the DOJ in the context of ongoing FCPA investigations.
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