Corporation as Snitch — Yates Memo May Lead to Leniency for Corporate Criminals

In September 2015, Deputy Attorney General Sally Yates announced that to be eligible for cooperation credit, a corporation “must identify all individuals involved or responsible for the misconduct at issue.”

Elizabeth Joh

Elizabeth Joh

The Yates memo was praised as a step forward in cracking down on corporate crime.

In fact, it may instead be a step back.

That’s according to two University of California Davis Law Professors — Elizabeth Joh and Thomas Joo.

“In some cases, the new cooperation policy’s emphasis on individual prosecutions could itself result in leniency — prosecutors may award excessively generous credit to corporations in order to build cases against individuals,” they write in The Corporation as Snitch: The New DOJ Guidelines on Prosecuting White Collar Crime (Virginia Law Review, 2015).

Joo and Joh write that the “all or nothing” approach to cooperation “may backfire because it not only allows the corporation to choose ‘nothing,’ but may encourage that choice. If prosecutors will grant leniency only to corporations that implicate individuals, the corporation may choose not to cooperate at all.”

Thomas Joo

Thomas Joo

“The board that speaks for the corporation is likely to protect its own,” they write. “An offer of leniency toward the corporate entity is unlikely to entice CEOs and other board members to incriminate themselves. If corporate leaders implicate anyone at all, they will most likely be lower-level agents.”

In announcing the new guidelines, Yates said that the Justice Department would not be satisfied if a corporation were to give information incriminating only “the vice president in charge of going to jail,” — a designated sacrificial lamb.

“But there is no way of guaranteeing that high-level agents are incriminated,” Joo and Joh wrote. “Indeed, many cases may not involve any high-level misconduct. If prosecutors are dependent on the corporation for information, they cannot know whether the board has implicated all the true culprits or merely offered up a scapegoat.”

They conclude that  “the Justice Department’s new focus on individual accountability in the white collar context is laudable, but problematic.”

“The new ‘all-or nothing’ policy toward corporate cooperation is based on the notion that ‘crime is crime’ — that is, that crime in the corporate context should be treated the same as crime in other contexts,” they write.

“But while corporate wrongdoing may be as harmful as other crimes, the corporate entity and its structure create unique issues. Corporate decisionmaking involves multiple people with potentially conflicting priorities. As a result, the new policy may not yield more information or convictions with regard to high level officials — those the Department is most interested in investigating.”


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