On May 10, 2016, Deputy Attorney General Sally Yates spoke out in defense of the so-called “Yates Memo,” a policy statement she issued in September 2015 that announced new policies intended to enhance the Department of Justice’s (“DOJ”) ability to identify and prosecute culpable individuals at all levels in corporate cases. Deputy Attorney General Sally Q. Yates, Remarks at the N.Y. City Bar Ass’n White Collar Crime Conference
(May 10, 2016). In remarks at the New York City Bar Association White Collar Crime Conference, Yates defended these policies, which largely direct civil and criminal government attorneys to focus on collecting evidence in corporate cases that will lead to the prosecution of individuals, against what she described as predictions of many legal commentators that the policies will cause a “cascading cavalcade of terribles.”
Many commentators have suggested that the Yates Memo, which, among other things, requires companies to disclose “all relevant facts” relating to individual misconduct to be eligible for any cooperation credit, may have the effect either of requiring companies to waive attorney-client privilege or of rolling back protections already in pace. Yates addressed this criticism head-on, stating that “We’re asking for the facts. And we have always asked for the facts.” Yates also said that, to her knowledge, “no one has told [the DOJ] that they will be forced to waive privilege in order to comply with the policy,” and implored those in attendance to bring forward any “specific examples of unintended consequences of the policy,” should they arise in practice.
Yates also commented on the collateral effect of what some have described as a shift away from pursuing deep-pocketed corporations in favor of individual actors who might not have the financial resources to allow to government to recover meaningful financial penalties. Yates acknowledged that while her office is obligated to recover “the most money from the greatest number of companies,” it is also responsible for deterring “fraud from happening in the first place,” and “redressing misconduct of those responsible.” Yates said that she believed that individual liability – even when not designed to significantly impact the bottom line of the recovery – is an effective deterrence tool that will spur positive shifts in corporate culture.
Perhaps recognizing that the Yates Memo itself said that its policies were a “substantial shift from [the DOJ’s] prior practice,” at the end of her remarks Yates acknowledged that “[c]hange is hard.” Noting that both prosecutors and defense attorneys crave certainty in the law, she promised the crowd that, in time, “[a] new normal will exist.” As to whether that new normal will involve traditional privilege protections for corporations, however, only time will tell.