United States: US Department Of Justice Targets Corporate Individuals

Last Updated: September 22 2015
Article by Nathan J. Hochman, Daniel A. Saunders and Eric W. Sitarchuk

DOJ announces tough new approach to the investigation and prosecution of corporate officers and employees.

On September 9, in a major change to its approach to the investigation of alleged corporate crime, the US Department of Justice (DOJ) announced a series of new policy directives that prioritize the investigation and prosecution of individual corporate officers and employees in addition to the companies themselves. US Deputy Attorney General Sally Quillian Yates issued a memorandum detailing a six-step plan to strengthen the DOJ's pursuit of individual corporate wrongdoers in both criminal and civil contexts (the Yates Memo). The Yates Memo reflects a very aggressive new stance by the DOJ in regards to white-collar crime in corporate America.

The six steps outlined in the Yates Memo are as follows:

  1. "All or nothing" cooperation requirement—The DOJ's corporate charging guidelines—the Principles of Federal Prosecution of Business Organizations—will be revised to require companies to completely disclose all relevant facts about individual misconduct in order to be eligible for any cooperation credit. Such credit can be the key factor in negotiating a non-prosecution or deferred prosecution agreement, as well as in gaining favorable consideration at sentencing. DOJ attorneys are directed to "vigorously review" information provided by companies to ensure that it is complete and does not seek to minimize the involvement of any individual, regardless of position, status, or seniority. As Yates told the New York Times, it will no longer be sufficient for companies to offer up the low-level officers—what she called "the vice president in charge of going to jail"—as a token of cooperation. Nor can companies simply plead ignorance; as Yates stated in a speech at New York University (NYU) School of Law the following day, "[i]f they don't know who is responsible, they will need to find out" through an internal investigation in order to receive cooperation credit. This "all or nothing" cooperation requirement applies equally in criminal and civil investigations, including when companies seek reduced damages under the False Claims Act. Moreover, full disclosure can be made a continuing obligation in any plea or settlement agreement, such that the company's failure to provide information about culpable individuals even after resolution of the company's case may be considered a material breach and result in revocation of the agreement or stipulated penalties.

  2. Build cases against individuals from the beginning—In both the criminal and civil contexts, DOJ attorneys investigating corporate misconduct will focus from the inception of an investigation on building a case against culpable individuals as well as the company itself.

  3. Increased civil/criminal communication and parallel investigations—Civil and criminal attorneys handling corporate investigations will communicate and consult with each other regarding potential individual liability, declinations, and the early pursuit of parallel criminal and civil investigations of individual misconduct.

  4. High hurdles to resolve corporate case without action against individuals—Absent extraordinary circumstances, which must be approved by the relevant Assistant Attorney General or United States Attorney, no civil or criminal case resolution between the DOJ and a company may include an agreement to dismiss charges, release claims, or provide immunity for individual officers and employees.

  5. Corporate settlements must address investigations against individuals—When seeking authorization to resolve a criminal or civil case against a company before the investigation of individual misconduct has been completed, DOJ attorneys must present in their authorization memorandum a description of the current status of that investigation and a plan to bring the matter to a resolution before the expiration of the statute of limitations. Where a decision is made not to bring civil or criminal claims against culpable individuals, the reasons for that declination must be presented to and approved by the relevant Assistant Attorney General or United States Attorney, or their designees.

  6. Corporate individuals' inability to pay fines and penalties no longer will result in automatic declinations—Finally, in a change to the DOJ's civil enforcement strategy, civil attorneys will no longer focus solely on an individual's ability to pay a significant monetary judgment when deciding whether to pursue actions against individual corporate wrongdoers. The Yates Memo recognizes that the government objectives of deterring individual misconduct and holding individual wrongdoers accountable are equally as important as the objective of recovering money.


The very aggressive stance announced in the Yates Memo can be read as an attempt by the DOJ to outsource the criminal and civil  investigation of white-collar crime to the corporations themselves. By setting forth an "all or nothing," black-and-white standard for corporate cooperation that focuses on potentially culpable individuals, the DOJ believes that it will achieve a shortcut around the "painstaking review" it otherwise would have to conduct. No longer will corporations be able to receive some level of credit (e.g., a non-prosecution agreement, a deferred prosecution agreement, or reduced fines and penalties) for voluntarily disclosing improper corporate practices. Now, unless the corporation also identifies every culpable individual at every level of the company, it will receive no credit at all for the voluntary disclosure.

As Ms. Yates has stated: "It's all or nothing." She even went so far in her NYU speech as to analogize corporate criminal investigations to drug trafficking investigations (in which cooperators are required to provide information about the cartel boss as well as the street-level dealers), stating that "[a] corporation should get no special treatment as a cooperator simply because the crimes took place behind a desk."

New Factors for Corporations to Consider

Going forward, corporations contemplating voluntary disclosures will have to weigh the following new factors in addition to those traditionally considered:

  • The time and expense of an internal investigation that will be required to determine all culpable people involved in the alleged wrongdoing
  • The possibility that the corporation will receive no credit for its efforts if the DOJ finds any culpable individuals who have not been fully disclosed or, even more concerning, refuses credit where they disagree with a company's good faith assessment of culpability
  • The fact that corporate cooperation only ends when the DOJ says it ends, not with the resolution of the corporation's case
  • The increased likelihood of parallel civil and criminal proceedings
  • The increased likelihood of civil suits against individuals

A Change That Will Affect Federal Law Enforcement Across the Board

The Yates Memo was sent not only to the 93 United States Attorney Offices nationwide, but also to the Criminal, Civil, Antitrust, Environment and Natural Resources, National Security, and Tax Divisions of the DOJ. Thus, there will be no aspect of federal law enforcement that will remain unaffected by the Yates Memo.

This article is provided as a general informational service and it should not be construed as imparting legal advice on any specific matter.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.