Outside Publication

DOJ’s New Threshold for “Cooperation”: Challenges Posed by the Yates Memo and USAM Revisions, U.S. Chamber Institute for Legal Reform

May 26, 2016

In September 2015, U.S. Deputy Attorney General Sally Yates issued a policy memorandum to Department of Justice (the Department, or DOJ) attorneys, directing them to focus enforcement efforts on holding individuals accountable for corporate malfeasance. Recognizing the challenge of doing so, the Department’s new policy seeks to leverage a corporate entity’s knowledge and access to information to bring cases against their own employees by making corporate cooperation credit conditional on the disclosure of all relevant facts as to any individuals involved in the misconduct.

Litigation partner Matt Miner authored this paper which explores the policy directive to federal prosecutors in the Yates Memo and addresses how that directive is implemented in the United States Attorneys’ Manual (USAM), which guides federal prosecutors and Department attorneys in their day-to-day practice. It also addresses how corporations may find themselves at odds with their employees’ interests in the course of internal investigations, to a larger degree than in the past, and the new realities faced by corporate counsel conducting internal investigations in a post-Yates Memo world.

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