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The Yates Memo – 5 Years Later


As highlighted in this prior post, in September 2015 then DOJ Deputy Attorney General Sally Yates delivered this speech and released this memo titled “Individual Accountability for Corporate Wrongdoing. (See here for the video of the speech). Like prior DOJ policy memos, the memo took the name of the author and quickly became known as the “Yates Memo.”

The Yates Memo attracted substantial press, particularly the portion of the memo and associated speech that focused on individual liability for alleged corporate wrongdoing. (For instance, this post highlighted what others were saying about the Yates Memo).

While some called the DOJ’s focus on individual prosecutions for corporate wrongdoing “new”, the Yates Memo merely continued the DOJ’s rhetoric as to the importance of individual prosecutions and was substantively similar to this September 2014 speech delivered by then Principal Deputy Attorney General Marshall Miller, this September 2014 speech delivered by then Attorney General Eric Holder, not to mention several other DOJ speeches going back nearly 15 years.

In the FCPA context, the DOJ’s rhetoric about individual accountability did not match reality because between 2008-2014, 75% of DOJ corporate FCPA enforcement actions have not resulted in any DOJ charges against company employees.

As highlighted in this post, in November 2015 Yates defended her namesake memo. As to individual accountability, Yates stated:

“The revised factors [in the Yates Memo] now emphasize the primacy in any corporate case of holding individual wrongdoers accountable and list a variety of steps that prosecutors are expected to take to maximize the opportunity to achieve that goal.”

As highlighted in this post, in May 2016 Yates again defended her memo. As to individual accountability, Yates again stated that “it’s critical to hold individuals accountable” for alleged corporate wrongdoing.

In the same May 2016 speech, Yates made the fair point that the DOJ’s “intensified focus on individuals from the inception of an investigation is not expected to result in a flurry of individual indictments overnight.”

However, nearly five years have now passed since release of the Yates Memo and the DOJ’s supposed renewed goal of individual accountability for alleged corporate wrongdoing.

So what has happened since in the FCPA context?

Just as before the Yates Memo, the DOJ’s rhetoric about individual prosecutions for corporate wrongdoing does not match reality. In fact, since the Yates Memo the rhetoric has become even more hollow.

Specifically, there have been 39 DOJ corporate enforcement actions since the Yates Memo. At present, 32 of those actions (82%) have lacked any related FCPA charges against company employees.

In other words, in the years prior to the Yates Memo approximately 75% of corporate FCPA enforcement actions lacked individual charges against company employees and five years since the Yates Memo 82% of corporate FCPA enforcement actions lack individual charges against company employees.

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