In September 2015, Sally Yates, then Assistant Attorney General, announced the Memo that bears her name (Yates Memo), saying, “we have revised our policy guidance to require that if a company wants any credit for cooperation, any credit at all, it must identify all individuals involved in the wrongdoing, regardless of their position, status or seniority in the company and provide all relevant facts about their misconduct. It’s all or nothing. No more picking and choosing what gets disclosed. No more partial credit for cooperation that doesn’t include information about individuals.” This statement tied directly into the first point of the Yates Memo, which stated, “To be eligible for any cooperation credit, corporations must provide to the Department all relevant facts about the individuals involved in corporate misconduct.”

More than three years after the announcement of the Yates Memo, the DOJ modified this course slightly. In 2018, then-Deputy Attorney General Rod Rosenstein relaxed  the rigid approach required by the Yates Memo and inserting more flexibility and discretion to government investigators. Rosenstein said that the DOJ would continue to focus on individuals in its white-collar investigations, but he ended the Yates Memo’s approach requiring ALL relevant facts to be turned over to the DOJ. This permitted corporations to receive credit for their cooperation if they identify individuals who were significantly involved in or caused the criminal conduct and permitted greater flexibility and discretion in awarding cooperation credit in civil cases.

Then Attorney General Jeff Sessions echoed these concepts in his Keynote remarks at the Ethics and Compliance Initiative in April 2017. He reiterated that the DOJ would focus on individual criminal misconduct in the context of enforcing the FCPA. This continued emphasis will mean that there is even more pressure on corporate compliance programs to get it right and get it right sooner rather than later.

Three key takeaways:

  1. What is a Yates binder?
  2. While the Yates Memo required you to hand over ALL evidence, the Rosenstein Corollary added flexibility.
  3. Senior management is now in the firing line.

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