Key takeaways

• On September 9, 2015, DOJ issued a memorandum by Deputy Attorney General Sally Q. Yates – now being called “the Yates Memorandum” – detailing how DOJ expects prosecutors to hold individuals accountable for criminal wrongdoing. The Yates Memorandum outlines a six point program that DOJ claims is designed to assure greater accountability by individuals associated with corporate wrongdoing.
• While its impact will be seen only when it is implemented, the Yates Memorandum could alter the outcomes in certain cases by increasing the cost of cooperation, accelerating timetables under which internal investigations must be completed, and deterring some employees from cooperating as they may have before.
• But, by causing DOJ to focus early – and, at a minimum, at the time when a corporate resolution is definitively proposed – on whether and how individuals can and should be prosecuted, the DOJ’s new focus could deter DOJ from the pattern of coercing large-scale monetary settlements from those individuals’ employers in cases in which marginal theories of liability or weak evidence form the basis of a settlement.