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Has the Game Changed? New Considerations for General Counsel Post-Yates

Bloomberg BNA White Collar Crime Report

Kate Shrout, Veena Viswanatha, Matthew E. Newman, Benjamin B. Klubes

On Sept. 9, 2015, the Department of Justice (DOJ) issued a memorandum from Deputy Attorney General Sally Quillian Yates announcing that the DOJ would require a company to fully disclose all relevant facts about individuals responsible for the misconduct at issue in order to receive any cooperation credit in a criminal investigation or prosecution.

Under the so-called ‘‘Yates Memo,’’ a company will lose eligibility for any cooperation credit if it appears to be shielding any information about individual wrongdoers. The DOJ is now reportedly asking some companies to certify that they have fully disclosed all information about individuals involved in wrongdoing as a precondition to securing cooperation credit, though the DOJ has denied that written certifications will be a formal requirement in every case.

The Yates Memo is not exactly a sea change, given the DOJ’s focus in recent years on prosecuting individual executives for corporate misconduct. However, the new requirement that companies identify individual wrongdoers and turn over all evidence of their wrongdoing as a threshold condition for cooperation credit does change the calculus for general counsel overseeing internal investigations. Below, we describe two areas of concern for general counsel — planning for individuals with exposure and ensuring that no constitutional rights are violated — and describe the benefits of identifying separate counsel in addressing those concerns.

Originally published in Bloomberg BNA White Collar Crime Report; reprinted with permission.

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