Yates’ Update on Yates Memo

By Anne K. Walsh & John R. Fleder –

DOJ Deputy Attorney General Sally Q. Yates spoke last week before the New York City Bar Association White Collar Crime Institute to provide an update on the DOJ policy she announced in September 2015, about which we reported here and here. The focus of her speech was to describe the changes, “both within the Department and outside the Department,” that have been implemented as a result of the eponymous policy, which Ms. Yates refers to as the Individual Accountability Policy.

Companies under DOJ scrutiny continue to provide facts about individuals to the government. Indeed, Ms. Yates reported that no company has decided not to cooperate with DOJ’s requests for information, despite some critics’ predictions of cooperation fallout from the new policy.  Ms. Yates opined that a decision to forego the benefits accorded cooperation and to “roll the dice” would be a “particularly risky calculus, especially for a publicly traded company.”  Indeed, according to her, companies not only continue to cooperate, but are making “real and tangible efforts” to identify facts about individual conduct.  She described how some companies even provide prosecutors with “Yates Binders,” another eponymous term used to describe compilations of relevant emails of individuals being interviewed by the government.  For companies unsure how to satisfy the government, Ms. Yates offered that companies should turn over information to DOJ “as they receive it,” recognizing that companies may not have all the facts lined up early in the investigation.  And she also encouraged company counsel to ask the prosecutors questions regarding the scope and how to proceed, noting that these question are case-specific and that it is not possible to identify hard and fast rules.

Ms. Yates emphasized that the policy does not require a company to make a “legal conclusion” about whether any employee is civilly or criminally responsible for the conduct. She stated that DOJ just wants the facts, and that DOJ will make its own judgment about whether an action results in civil or criminal exposure.  Although this sounds like an opportunity for a company to avoid having to “serve up” an individual to DOJ, corporate counsel will almost always have to link the conduct to a legal conclusion to the extent the facts expose the company to civil or criminal liability.

Moreover, the policy continues to pose very troublesome questions for corporations and their counsel. How do they disclose all the “facts” to the government without waiving privilege?  What “warnings” should be given to employees being interviewed by outside counsel when counsel knows that there is a reasonable chance that the company may need to disclose the facts uncovered in the interviews of those employees?

Expressing no doubt that the new policy has shaken up the rules of the road, Ms. Yates assured that “equilibrium will return” and that a “new normal will exist.” She defined the new normal to hold wrongdoers accountable based on facts and evidence, not on position or title, power or wealth. As Ms. Yates herself acknowledged, however, the policy is not even a year old; it remains to be seen if there are true benefits of this shift in approach.