Scapegoats CEOs Corporate Crime and Sally Yates

The Justice Department has formally incorporated the Yates memo into the U.S. Attorney’s Manual.

In announcing the changes today in Washington, Deputy Attorney General Sally Yates said that “in the white-collar context, one of the most effective ways to ensure this accountability and to deter future misconduct is by pursuing not just corporate entities, but also the individuals through which these corporations act.”

Sally Yates

Sally Yates

“An important component of the individual accountability policy and the new revisions to the factors involves corporate cooperation,” Yates said. “This seems to be the policy shift that has attracted the most attention. The new rule in the revised Filip factors is exactly how I laid it out two months ago. If a company wants credit for cooperating – any credit at all – it must provide all non-privileged information about individual wrongdoing. Companies seeking cooperation credit are expected to do investigations that are timely, appropriately thorough and independent and report to the government all relevant facts about all individuals involved, no matter where they fall in the corporate hierarchy.”

Yates said that corporate cooperation “includes giving all non-privileged information about the conduct of individuals – is nothing new.”

“It was in the Filip factors long before this most recent policy shift,” Yates said. “What is new is the consequence of not doing it. In the past, cooperation credit was a sliding scale of sorts and companies could still receive at least some credit for cooperation, even if they failed to fully disclose all facts about individuals. That’s changed now. As the policy makes clear, providing complete information about individuals’ involvement in wrongdoing is a threshold hurdle that must be crossed before we’ll consider any cooperation credit.”

Most in the business press see the change as the Department cracking down on corporate crime.

The Wall Street Journal, for example, ran its story under the headline — Justice Department Getting Tougher on Corporate Crime.

In fact, the policy tracks recommendations made by NYU Law Professor Jennifer Arlen, who prefers deferred and non prosecution agreements for corporate wrongdoers over guilty pleas and who argues that instead of focusing on criminally prosecuting corporations, we should put the focus on individuals — as the Yates memo seeks to do.

Other observers raise the possibility that the new changes might encourage corporate executives to toss lower level employees under the bus in exchange for leniency for corporate defendants in the form of deferred and non prosecution agreements or declinations.

University of Michigan Law Professor David Uhlmann said that “the Justice Department always charges individuals when it is possible to do so in corporate crime cases, so emphasizing individual accountability is not a new policy.”

“The requirement that corporations must identify culpable individuals to receive cooperation credit is a new approach, which would be beneficial if it results in greater cooperation from companies, but could be harmful if it results in scapegoating of individual employees.”

Jesse Eisinger of ProPublica said that prosecuting individuals “is essential to deterring white-collar crime.”

“In outlining new rules and guidelines for how corporations are supposed to cooperate with Justice Department investigations, the Yates Memo tacitly acknowledges that prosecutors don’t have the tools and skills to consistently police corporations when they aren’t cooperating. My fear is that this new policy will result more often in the government prosecution of scapegoats and schmoes rather than directors and CEOs.”

Duke Law Professor Samuel Buell doesn’t see much change in the new policy.

“Each iteration of these guidelines, since 1999, has emphasized something different in its tone,” Buell said. “But none has changed the basic fact that these guidelines are not law or rules. They are soft, non binding, descriptions of how a prosecutor ought to exercise discretion. Nor have the frequent changes in language altered the basic Department of Justice focus on the idea that corporate criminal liability is principally a way to lever evidence of crime out of corporations — chiefly through the work of their compliance departments and law firms. Indeed, this iteration shows that focus to be stronger than ever—the repeated emphasis on individual prosecutions is entirely in the context of a discussion of how to use the threat of criminal liability for corporations as the means to that end. I see more continuity here than change.”

University of Virginia Law Professor Brandon Garrett, author of Too Big to Jail, said that the Yates Memo changes affected the priority placed on individual prosecutions when considering cooperation.

“Now some broader changes have been made,” Garrett said. “Self-reporting has been elevated to a separate ‘factor.’ And there is additional language on the importance of voluntary disclosures. Otherwise much of the changes simply track the language from the earlier Yates memo. One thing that the changes do not mention is a central ‘too big to jail’ concern that I have raised and that many others have echoed – that far too many companies receive deferred and non-prosecution agreements. The new guidelines say nothing to discourage deferred and non-prosecution agreements or to say that they should be offered only in more limited circumstances.”

In an interview with Corporate Crime Reporter last month, Morrison & Foerster partner James Koukios questioned whether Yates’ policy would be all or nothing — if there is not 100 percent cooperation from the corporation as to individuals, there would be no credit for cooperation.

Turns out — as Yates confirmed today — it is all or nothing.

“First of all, if it’s true that it’s all or nothing, and if there is some kind of disagreement about how good the cooperation was, or if the cooperation was fulsome, does that mean that the Department at the end of the day can say — this wasn’t 100 percent, you get nothing?” Koukios asked last month.

“That would be an extreme result,” Koukios said last month. “I don’t think that is consistent with prior practice. I don’t think that would be a good result. That could result in companies being less likely to self report and less likely to cooperate. They instead might just wait for a subpoena to come and answer that subpoena when it arrives.”


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