December 2018

In a shift in policy, Deputy Attorney General Rod Rosenstein announced on November 29, 2018, that the DOJ would relax certain policies, dating back to 2015, requiring companies to provide all information in their possession on potentially culpable individuals before receiving any cooperation credit in cases involving corporate malfeasance. The policy requiring full cooperation and a focus on prosecuting individuals, commonly referred to as the “Yates memo”, outlined policies focused on leveraging the cooperation of corporations in targeting individuals involved in corporate wrongdoing. The announced change in policy—addressed to prosecutors at the DOJ—may have significant implications for individuals on the periphery of DOJ investigations.

Rosenstein specifically announced that companies no longer need to disclose the names of all individuals involved in misconduct to receive cooperation credit, so long as they named those individuals who were “substantially involved in or responsible for” the misconduct. He also announced that the DOJ would reinstate discretion to the agency’s staff attorneys in civil cases to accept settlements that remedy the harm and deter future violations, even when not every employee that may be involved in the misconduct is named.

Moving forward, the policy change means companies facing DOJ investigations may have an easier time receiving cooperation credit. Oftentimes, companies have difficulty providing (or proving that they have provided) all relevant information on individual wrongdoers. The policy change may also provide relief to individuals whose role in the corporate wrongdoing was minimal.

It remains to be seen whether top executives and board members are able to seek any relief from the new policy; companies will likely not be able to shield them if they wish to receive cooperation credit.

The new changes have been incorporated into the DOJ’s Justice Manual.1



1  https://www.justice.gov/jm/jm-9-28000-principles-federal-prosecution-business-organizations#9-28.700