Deputy Attorney General Rod Rosenstein announced a series of changes to Department of Justice (DOJ) policy that clarified DOJ’s expectations for cooperation in investigations of corporate wrongdoing. The changes are sensible and should be welcomed by the business community as an improvement over the prior policy, commonly known as the Yates Memo.
As Rosenstein noted, the changes are intended to recognize how the Yates Memo has been applied on the ground, at least in many cases. Even so, the changes should provide companies with greater comfort in several respects.
Under the revised policy, corporations are now expected to identify individuals who were “substantially involved” in or responsible for the underlying misconduct. Whereas the Yates memo, at least on paper, required the cooperating company to identify for the government every individual in the organization involved in the misconduct – no matter their role in the organization or in the misconduct, before a settlement could be finalized. To be sure, that requirement was sometimes honored in the breach. But in combination, the threat of withheld cooperation credit on an all or nothing basis, plus the requirement that all potentially culpable individuals be identified before a settlement could be finalized, gave the government significant leverage to demand that target companies bend to the prosecutors’ view of the world about individual employees’ culpability. For companies, this dynamic sometimes created pressure to err on the side of over-inclusion in designating culpable individuals.
That pressure has not gone away, but it is lessened. The revised policy is an attempt, as Rosenstein recognized, to conserve resources – both for the government and the company involved – and prevent unnecessary delay in resolving corporate liability. For companies under investigation, this change may help to reduce the significant time and cost required to conduct an investigation deemed sufficient for cooperation credit. Now, if the government team disagrees with a target company about which employees are culpable and to what degree, the government attorneys have discretion to recommend partial cooperation credit as part of a settlement. More importantly, that discretion now exists as official DOJ policy, and not just an informal deviation from the rule.
Rosenstein also reported similar changes in civil cases. The new policy provides that corporate cooperation credit in civil cases can be awarded on a sliding scale – it need not be all or nothing. And in prepared remarks accompanying the rollout of the changes, Rosenstein noted that cooperation credit can still be awarded, in appropriate cases, where a company assists the government’s investigation, but the parties cannot reach agreement about the identity or culpability of every line employee potentially involved in misconduct. (Senior employees are different – as before, the company must identify all wrongdoers in senior management to receive any cooperation credit.)
All else equal, the changes modestly strengthen the hand of companies who sincerely seek to cooperate with the government to resolve investigations, but cannot reach agreement with the government over the role of particular individual employees in corporate misconduct. Companies now have a little bit more leeway to “agree to disagree” with the government about the status of lower-level employees while retaining the benefits of cooperation. Before, such a disagreement was (at least in principle) fatal to a successful settlement. Now it need not be. And that’s unquestionably a salutary development.
