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Claire J. Rauscher Womble Carlyle Sandridge & Rice Charlo9e, NC [email protected] (704) 3314961 HOW TO INTERPRET THE “YATES MEMO”
Claire J. Rauscher Womble Carlyle Sandridge & Rice
Charlo9e, NC [email protected]
(704) 331-‐4961
HOW TO INTERPRET THE “YATES MEMO”
The “Yates Memo”
• Issued September 9, 2015 by Deputy A9orney General Sally Q. Yates
• Titled -‐ “Individual Accountability for Corporate Wrongdoing”
• Takes effect immediately • Memo “designed to ensure that all a9orneys…are consistent in our best efforts to hold to account the individuals responsible for illegal corporate conduct.”
Six Key Points
1. To qualify for coopera_on credit, corpora_ons must provide to DOJ all relevant facts rela_ng to individuals responsible for the misconduct
2. Criminal and Civil inves_ga_ons should focus on individuals from the beginning
3. Criminal and Civil a9orneys should be in rou_ne communica_on with one another
Six Key Points
4. DOJ will not release culpable individuals from civil or criminal liability when resolving a ma9er with the corpora_on.
5. DOJ a9orneys should not resolve ma9ers with corpora_ons without plan to resolve individual cases
6. Civil a9orneys should focus on individuals and companies based on considera_ons beyond an individual’s ability to pay
Change Regarding Coopera_on
New change to both civil and criminal ma9ers: • To receive any considera_on for coopera_on under Sentencing Guidelines, the company must “completely disclose” to DOJ all relevant facts about individual misconduct”—no par_al credit
• If company declines to learn relevant facts about individuals, will no longer be considered a ‘mi_ga_ng factor’ under USAM §9-28.700 et. seq
Coopera_on between Civil and Criminal A9orneys
• Encouraged to occur at inves_ga_on incep_on • Communica_on between Civil and Criminal divisions should con_nue throughout the inves_ga_ons
• Criminal should no_fy Civil Division of individual civil liability regardless of whether criminal liability is sought
• And vice versa
Corporate Resolu_ons Can No Longer Provide Protec_on for Individuals
• Absent Extraordinary Circumstances or Approved Departmental Policy (An_-‐trust Leniency Policy)
• Applies to both Civil and Criminal divisions
• Process set forth for declina_ons
Pursue Civil Enforcement Regardless of Ability to Pay
• Goals:
– Return money to government coffers – Deterrence of individual misconduct
U.S. A9orney’s Manual-‐ Principles of Federal Prosecu_on of Business
Organiza_ons • November 2015-‐USAM revised to comport with “Yates Memo” – Updated the Filip factors to emphasize “the primacy of holding individuals accountable” in corporate cases
– Added new sec_on (USAM §4-‐3.100) direc_ng civil a9orneys to follow same principles when pursuing individuals
– Revised sec_on on parallel proceedings (USAM §1-‐12.000 to emphasize regular communica_on between civil and criminal inves_ga_ons
A9orney-‐Client Privilege Waiver
• September 22, 2015 Assistant A9orney General Leslie Caldwell addressed “Yates Memo”
• States memo does not change DOJ policy on a9orney-‐client privilege or work product protec_on
• On November 16, 2015, DAG Yates stressed legal advice is privileged but “facts are not”
How will the “Yates Memo” effect companies going forward?
• Inves_ga_ons may be more expensive • Tension created between voluntary disclosure and full coopera_on
• DOJ will scru_nize privilege asser_ons-‐can’t be used as a shield
• Enhanced fric_on created between company and execu_ves
• Advanced prepara_on is warranted (inves_ga_ve delay could be costly)
• Develop strong prac_ces to preserve a9orney-‐client privilege preserva_on (mee_ngs, emails, etc.)
What to Watch in 2016
• Watch the Current Inves_ga_ons of: – Volkswagen – Blue Bell – Chipotle
ANY QUESTIONS?
Thank you!
Claire J. Rauscher Womble Carlyle Sandridge & Rice
Charlo9e, NC [email protected]
(704) 331-‐4961
