Yates Memo has “Upset the Expectations of Businesses”

Subject:  Individual Accountability

Summary Analysis: 

The United States (US) Chamber of Commerce’s Institute for Legal Reform published a report examining the challenges posed by the Department of Justice’s (DOJ) Yates Memo, issued last September.  The Chamber of Commerce argues that in a post-Yates environment, it may not always be in the best interest of a corporation to support investigations into individual employees.  The Chamber explains, “The ‘all-or-nothing’ nature of the new cooperation standard also risks creating even more uncertainty for corporate decisions regarding the benefits of voluntary self-disclosure of suspected unlawful conduct.”  The Yates Memo has also ignited new concerns about waiving privilege.

While it is arguably too soon to fully assess the impact of the Yates Memo, it has had a nearly immediate effect of altering the course of corporate cooperation with DOJ investigations. The Chamber writes, “It is nonetheless clear that the new threshold for cooperation credit has upset the expectations of businesses historically inclined to cooperate with the government. The new policy is likely to have a number of unintended consequences that will muddy what was traditionally a straightforward decision—whether to cooperate with a government investigation.”


Chamber of Commerce Report:



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