Justice Department Deputy Assistant Sally Yates spoke this week at the New York City Bar Association White-Collar Crime Conference about the effect the Justice Department has seen since the release of the Yates Memo. From the tenor of her remarks, it is clear the Justice Department has seen a real impact emanating from it.
From the corporate side, companies are now submitting “Yate’s Binders,” which contain e-mails, documents, and other evidence from individual corporate employees being interviewed by the government. When information is coming into the Justice Department in a manner named for the incentive to bring to the Department, you can say a policy is working.
But the larger change just might be at the Justice Department itself, as its focus has re-oriented. On the criminal side of DoJ interest, its lawyers are working much more diligently to identify the individuals involved. From the civil side of the Department, its lawyers have refocused their efforts from trying to recoup as much money back to recompense the public for corporate wrongdoing to much more carefully assessing individual actors’ culpability for their actions.
The Department sees value in deterrence on the civil side. By investigating and bringing actions against individuals civilly, the agency believes it can send a strong message to employees about the importance of compliance. While this change has been most pronounced in the Anti-Trust Section, it soon may be true for the FCPA Unit as well.
Yates also noted that the new FCPA Pilot Program awarding enhanced and tangible benefits for self-disclosure, extraordinary cooperation during an investigation, and extensive remediation during the pendency of any FCPA investigation was a direct outgrowth from the Yates Memo. Yates said, “Those revisions account for the difference between a company raising its hand and voluntarily disclosing misconduct and a company simply agreeing to cooperate once it gets caught.”
Most interestingly, Yates concluded that the policy changes heralded by the Memo are the “new normal” for enforcement.