On Monday, November 16, 2015, the U.S. Department of Justice’s Deputy Attorney General Sally Q. Yates spoke at the American Bankers Association and American Bar Association Money Laundering Enforcement Conference in Washington, D.C. Her remarks related to the implementation of the Yates Memo and the subsequent revisions being issued in the U.S. Attorney’s Manual (USAM). The USAM is the road map for federal prosecutors handling both criminal and civil cases. Her remarks detailed three sets of revisions that were made to the USAM:

Principles of federal prosecution of business organizations, more commonly referred to as the “Filip Factors”

• There is a new emphasis on the primacy in any corporate case of holding individual wrongdoers accountable; the memo lists a variety of steps that prosecutors are expected to take to maximize the opportunity to achieve that goal.
• The new threshold for cooperation credit is to disclose all relevant non-privileged information about any individual involvement in wrongdoing, irrespective of where that individual falls in the corporate hierarchy.
• Companies seeking cooperation credit are expected to conduct investigations that are timely, appropriately thorough and independent.
• The DOJ does not require companies to waive attorney-client privilege and will respect the privilege, but it expects that companies will not use it wrongly to shield non-privileged information. Yates stated, “As we all know, legal advice is privileged. Facts are not.”
• Companies are encouraged to work with the DOJ in the early stages of an investigation, and as a result the DOJ created two separate factors when evaluating charging decisions against a company: early reporting and prompt voluntary disclosure.

Civil cases

• Similar to criminal matters, the DOJ now mandates that civil attorneys focus on individuals from the beginning of investigations.
• The DOJ has explicitly instructed its attorneys that an individual’s ability to pay a judgment cannot be the sole factor in deciding whether to pursue individual misconduct.
• Civil attorneys will only be permitted to resolve corporate cases when there is a plan to focus on individuals from the beginning, and cooperation credit is only granted when companies provide all relevant non-privileged information concerning individuals.
• The goal in civil corporate cases is not just to recover money, but to redress and deter misconduct.

Parallel proceedings

• The DOJ is revising the USAM to detail specific steps that both criminal and civil attorneys should use for collaborating on white collar matters, including specific steps taken in communication and referrals between departments.
• Cooperation between criminal prosecutors and civil attorneys allows the DOJ to approach matters with the full use of their resources and allows cases to be resolved for both individuals and the corporation in the best interest of the public.

During her closing remarks, Yates stressed that “our mission is not to recover the largest amount of money from the greatest number of corporations; our job is to seek accountability from those who break our laws and victimize our citizens.”

Much remains to be seen in the weeks and months ahead on how line prosecutors will implement these revisions to the USAM. However, there are valid concerns within the defense bar and business community that these revisions may result in unnecessarily time-consuming and costly internal investigations, that a company without full access to all facts will be at a disadvantage, despite their best efforts to cooperate, and that the revisions may result in a chilling effect on employees’ willingness to cooperate in their companies’ internal investigations.