Is the Sky Falling? DOJ and Cooperation

Is the sky falling or are we on our way to a new normal when it comes to earning cooperation credit from the Department of Justice? These questions were raised in remarks by Deputy Attorney General Sally Yates in remarks delivered to the New York City Bar Association White Collar Crime Conference (May 10, 2016)(here).

At the center of the questions, of course, is the Yates memorandum on cooperation which requires that “a company provide all the facts about individual conduct in order to qualify for any cooperation credit.” The announcement of this policy, according to Ms. Yates, has drawn comments from the defense bar which range from “The sky is falling” to “Nothing has changed.”

While the individual accountability policy has been the focus of attention, Ms. Yates stated that “as I’m sure many of you would agree, the notion that a cooperating company must relate facts about the conduct of individuals within the corporation is nothing new.” This does not mean that the firm must conduct an overly broad, years long, multimillion dollar investigation “every time a company learns of misconduct . . .”

Likewise, the requirement does not mean that on “the first day” the company must have all the facts lined up or be disqualified. Firms “should also know that counsel for the company is not required to serve up someone to take the fall in order for the corporation to get cooperation credit – a hypothetical person sometimes referred to as the ‘vice president in charge of going to jail.’” To the contrary, if the firm conducted an “appropriately tailored investigation and truly did everything they could reasonably be expected to do to determine who did what, but simply can’t figure it out, they are not precluded from receiving cooperation credit,” Ms. Yates noted. At the same time the DOJ will “pressure test your investigation.”

The policy is having a salutary effect, according to the Deputy AG. First, while there were predictions that firms would no longer cooperate, that has not proven to be the case. To the contrary “companies are not only continuing to cooperate, they are making real and tangible efforts to adhere to our requirement that they identify facts about individual conduct, right down to providing what I’m told are called ‘Yates Binders’ . . . that contain relevant emails of individuals being interviewed by the government.” Second, nobody has “told us that they will be forced to waive privilege . . .” Third, “our new approach is causing positive change within the companies. Compliance officers have said that our focus on individuals has helped them steer officers and employees within their organizations toward best practices and higher standards.”

Finally, the policy is having a significant impact on the DOJ. In criminal and civil actions there is more of a focus on individuals as there should be. The Antitrust Division recently announced that it is revamping its procedures to ensure that culpable individuals are identified as early as possible. Likewise, the FCPA Unit of the Fraud Section recently announced a new 12 month pilot program. While “change is hard” the Deputy AG noted, and may result in “temporary uncertainty,” a “new normal will exist.”