With the so-called “Yates Memo,” the US Department of Justice fired a warning shot across the bow of Corporate America. Going forward, according to the Yates Memo, the DOJ will hold individuals personally responsible for corporate wrong-doing.
Womble Carlyle White Collar Criminal Defense/Government Investigations attorney Claire Rauscher counsels corporate leaders under DOJ scrutiny. She has written a new article for the Association of Corporate Counsel’s Docket magazine (online version) titled “How to Interpret the ‘Yates Memo’”
The Yates Memo contains six key points for prosecutors. In-house counsel charged with compliance should be aware of them, as well. The key points are:
1. To qualify for cooperation credit, corporations must provide to DOJ all relevant facts relating to individuals responsible for the misconduct.
2. Criminal and civil investigations should focus on individuals from the onset of the investigation.
3. Criminal and civil attorneys should be in routine communication with one another.
4. DOJ will not release culpable individuals from civil or criminal liability when resolving a matter with the corporation absent extraordinary circumstances.
5. DOJ attorneys should not resolve matters with corporations without a plan to resolve individual cases.
6. Civil attorneys should focus on individuals and companies based on considerations beyond an individual’s ability to pay.
Rauscher’s article follows a recent Yates Memo presentation she gave to the ACC’s Compliance & Ethics Committee.
Claire Rauscher focuses her practice on complex white collar litigation, and has represented clients in all phases of state and federal proceedings, including pre-indictment investigations, grand jury practice and criminal trials. Rauscher conducts corporate internal investigations and assists clients in developing and implementing compliance programs. She also counsels clients in responding to subpoenas, search warrants and other white collar inquiries.