Following widespread criticism of its failure to prosecute corporate insiders in the aftermath of the 2008 financial crisis and other recent corporate malfeasance while collecting hundreds of millions of dollars in corporate civil penalties and criminal fines, the Department of Justice (Justice Department or DOJ), on Sept. 9, 2015, announced new policies intended to enhance the Justice Department’s ability to identify and prosecute culpable individuals at all levels in corporate cases.1 Authored by Deputy Attorney General Sally Q. Yates, the memorandum titled “Individual Accountability for Corporate Wrongdoing” (the Yates Memorandum) revises the Justice Department’s “Principles of Federal Prosecution of Business Organizations,” (the Filip Memorandum) principally by directing DOJ lawyers, both civil and criminal, to focus on collecting evidence that will lead to the prosecution of individuals in large corporate malfeasance cases.
The Yates Memorandum adopts a position that had been publicly espoused by several high ranking Justice Department officials over the last year and that has been largely followed by prosecutors around the country. For example, during his Sept. 17, 2014 speech, Principal Deputy Assistant Attorney General for the Criminal Division Marshall Miller announced that “if a company wants full cooperation credit, make your extensive efforts to secure evidence of individual culpability the first thing you talk about when you walk in the door to make your presentation.” Similarly, on Jan. 20, 2015, Sung-Hee Suh, Deputy Attorney General for the Criminal Division, announced that “corporations do not act criminally, but for the actions of individuals … the Criminal Division intends to prosecute those individuals, whether they are sitting on a sales desk or in a corporate suite.” Likewise, on April 17, 2015, at a speech delivered at New York University Law School, Assistant Attorney General for the Criminal Division Leslie R. Caldwell noted that the “mere voluntary disclosure of corporate misconduct—by itself—is not enough … . True cooperation, however, requires identifying the individuals actually responsible for the misconduct—be they executives or others—and the provision of all available facts relating to that misconduct.” The Yates Memorandum, together with the accompanying public statements by Deputy Attorney General Yates2 and Assistant Attorney General Caldwell,3 on Sept. 10, 2015 and Sept. 22, 2015 respectively, represent efforts to standardize what is essentially current practice in several parts of the Justice Department and various U.S. Attorneys’ Offices, notwithstanding the Yates Memorandum’s protestations that it represents a “substantial shift from [the Justice Department's] prior practice.”
