Deputy Attorney General Rod Rosenstein made a candid admission last month: The Department of Justice couldn’t carry out its Yates Memorandum exactly as written.
Rosenstein announced Nov. 29 that the DOJ revised its cooperation credit policy under the Yates Memo issued in 2015. As a result, companies under federal investigation have more leeway in how much information they must turn over to the government, and on which employees, in order to get their penalties reduced.
The Yates Memo established a policy in 2015 under which DOJ attorneys would only offer companies credit for cooperating with an investigation if they produced all relevant information on any individuals who might be involved in corporate wrongdoing. The department recently revised its Justice Manual, however, to say DOJ attorneys may soften penalties against companies that “identify all individuals substantially involved in or responsible for the misconduct at issue.”
Speaking at a conference on the Foreign Corrupt Practices Act, Rosenstein said the Yates Memo’s “‘all or nothing’ approach to cooperation introduced a few years ago was counterproductive in civil cases.” Companies can now opt for a third category of cooperation where DOJ civil attorneys might offer “some credit” at their discretion when a company “honestly” and “meaningfully” assists with the government’s investigation.