On November 29, 2018, at the American Conference Institute’s International Conference on the Foreign Corrupt Practices Act in National Harbor, Maryland, Mr. Rosenstein announced noteworthy policy changes related to the Individual Accountability for Corporate Wrongdoing Memo, also known as the Yates Memo.  The Yates Memo was issued by former Deputy Attorney General Sally Yates in September 2015, and required that, to be eligible for cooperation credit in resolving matters with DOJ, corporations under investigation provide DOJ with all relevant facts about the individuals involved in corporate misconduct.  The recent policy changes are the product of the DOJ’s yearlong review of the Yates Memo.

The revised policy changes how the government will handle criminal and civil investigations.  Specifically, under the revised policy, companies under civil investigation are only required to identify individuals that were “substantially” involved in the corporate misconduct, rather than all potential individuals involved in the matter.  Mr. Rosenstein noted that the DOJ is most interested in “individuals who play significant roles in setting a company on a course of criminal conduct,” meaning those who “authorized the misconduct.”  Mr. Rosenstein further clarified that a corporate resolution to an investigation will not protect culpable individuals from criminal liability.  By allowing prosecutors to move forward without requiring that companies identify all individuals involved in the misconduct, DOJ prosecutors will have greater discretion to provide cooperation credit.

Further, under the revised policy, the DOJ prosecutors will be permitted to consider an individual’s ability to pay when deciding whether it will pursue a civil judgment against the person.  Overall, the DOJ hopes that these changes will result in the more efficient use of the department’s resources, and encourage cooperation in DOJ investigations.  The revised Justice Manual implementing the revisions at Section 4-3.100 can be found here.  The text of Mr. Rosenstein’s remarks can be found here.