10 Takeaways From Deputy Attorney General Sally Q. Yates' Remarks At The 2016 New York City Bar Association White Collar Crime Conference

Author:Ms Sigal Mandelker and Lindsey A. Olson
Profession:Proskauer Rose LLP
 
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This week, Deputy Attorney General Sally Q. Yates delivered remarks at the New York City Bar Association reflecting on the eight months since the release of the "Yates Memo," or as Deputy AG Yates prefers, the "Individual Accountability Policy" ("the Policy"). The Policy's release in September 2015 followed prolonged criticism over a perceived lack of prosecution of individuals responsible for corporate misconduct. Aimed at increasing prosecutions of such individuals, the Policy outlined six directives to prosecutors, which we covered in an earlier post.

In providing her observations about how the Policy has been interpreted and implemented, Deputy AG Yates responded both to early commentators who thought the sky was falling and to those who interpreted the Policy to be business as usual. The truth, she reported, is "somewhere in the middle." Here are 10 takeaways from those observations:

The Justice Department's goal is not to "collect corporate heads" but instead "to get to the bottom of who did what and if there are culpable individuals, hold them accountable." Yates said that companies don't have to serve up what she called "the vice president in charge of going to jail" to get cooperation credit. DOJ may grant credit even when a company cannot identify the culpable parties so long as the company has conducted an "appropriately tailored investigation and truly did everything they could reasonably be expected to do [...]." Companies need only provide the facts relating to individual employees; they don't have to make a legal conclusion about whether an employee is culpable. The Department will come to its own conclusions about criminal or civil exposure for company employees. Cooperating with the Policy does not require companies to waive attorney-client privilege, and it is not intended to in any way roll back protections already in place. Yates emphasized the Department's position that it is only looking for facts, and that pressure to waive attorney-client privilege would be an "unintended consequence" of the Policy. She welcomed the defense bar to make reports of any such consequences. But she said that companies cannot — in the name of privilege — pick and choose which facts to provide. Rather than deciding not to cooperate, companies appear to be tailoring their cooperation to the Policy, including by providing prosecutors with 'Yates Binders,' i.e. collections of the relevant emails of individuals being interviewed. The Department has...

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