Individuals Face New Challeneges Following Yates Memo
It is never a good time to be an individual under criminal investigation. While corporate punishment is often harsh, involving fines, reputational damage and possible suspension and debarment, individuals facing criminal prosecution are confronted with a potential loss of liberty, forfeiture and fines.
Every decision made in response to a criminal investigation is significant. The recently issued Yates Memorandum has redoubled the complexity of advising an individual with potential criminal exposure.
The Yates Memorandum makes individuals a focus of the U.S. Department of Justice's enforcement efforts, and requires a company to disclose all information about individual wrongdoing in order for the company to be considered for cooperation credit.1 Because of the Yates Memo's focus on individuals, employees of companies may be reluctant to cooperate in civil lawsuits and internal investigations for fear—justified or not—that what they say will be disclosed by their employer to the DOJ in an attempt to garner cooperation credit. This, in turn, raises difficult issues about whether to assert one's Fifth Amendment right against self-incrimination and whether to refuse to cooperate at all in a company's own internal investigation. Of course, refusing to cooperate in an employer's investigation can have consequences all their own, but perhaps not as dire as the alternative. Individuals and their counsel will have to navigate these challenging issues carefully as the Yates Memo metastasizes into daily prosecutorial decision-making.
1. Sally Quillian Yates, U.S. Dep't of Justice, Individual Accountability for Corporate Wrongdoing (2015) (emphasis in the original).
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