The DOJ's Yates Memo

6 Points of the Yates Memo

The Yates memo represents a policy shift on how the DOJ will approach suspected corporate wrongdoing. It has 6 key points: 

1. Corporations must provide all relevant facts about individuals involved in corporate misconduct.
2. Both criminal and civil investigations will focus on individuals from the beginning.
3. Criminal and civil attorneys handling corporate investigations should be in routine communication.
4. No corporate resolution will provide protection from criminal or civil liability for any individuals (in almost all circumstances).
5. Investigators must plan to resolve related individual cases before resolving corporate cases.
6. An individual’s ability to pay will not be the only consideration on whether civil charges should be brought against individuals.

Key Takeaways for the General Counsel’s Office

Encourage employees to seek outside counsel early on in the process.

Ensure that employees understand that in-house counsel represents the company, not them. Confirm that Upjohn Warnings are clear and appropriately timed.

Encouraging civil and criminal attorneys to communicate regularly is a controversial topic. This blurring of the line between civil and criminal investigations may be revisited in the near future.

Concerns and Responses

Does the Yates Memo infringe on the corporation’s ability to assert privilege? Prosecutors should ask, “what happened”, not “who said what” as a way of mitigating this.

What does “cooperation” mean and who determines where the bar is set? A one size fits all definition will be hard to come by, rather this will likely be decided in practice and by looking at past cases.

Will the Memo result in the unintended consequence of individuals “clamming up” and refusing to cooperate at all? Our panel acknowledged this as a possibility, but the DOJ has room to adapt their practices if this becomes prevalent.