A Fair Assessment of the Impact of the Yates Memorandum
Never argue with stupid people, they will drag you down to their level and then beat you with experience. – Mark Twain
If only Mark Twain were alive today, he would have many opportunities to articulate his wisdom, especially when it comes to politicians. Not to say that the compliance field is as important as politics (or would have been a good target), but I have to say that a lot of what has been written about the Justice Department’s Yates Memorandum reflects a lack of understanding of how prosecutors work.
More troubling, is the twisting of legal analysis to favor a pre-determined bias or conclusion, either for or against the Justice Department. The field of legal commentary no longer has the discipline to provide careful analysis of important trends and issues. Instead, what we see coming out in the Internet is headlines in an attempt to gain a marketing advantage with little attention paid to critical legal thinking and review.
Many have been quick to dismiss the impact of the Yates memorandum as a meaningless statement or a political document intended to mollify DOJ critics. These criticisms are completely devoid of merit.
Instead, the Yates Memorandum is an important policy statement because it will guide prosecutors’ work, internal review of enforcement actions, and evaluation of prosecutors’ individual performance. When you combine these three factors, there is no doubt there will be (or should be) an increase in the prosecution of individuals.
A similar sea change is going to occur with respect to corporate internal investigations. Companies have to conduct internal investigations with a new focus on culpable individuals. More time and attention has to be paid to the issue of individual culpability. Some have lamented that internal investigations will take even longer to complete. I am not so sure that is true – the evidence must still be collected but the analysis for each individual may require a little extra thinking and writing. I would not expect that an increase in the focus on individuals will automatically extend the time of internal investigations.
In the end, however, the proof of the impact of the Yates Memorandum will be in the pudding. The number of individuals prosecuted should increase. The quality of criminal cases against individuals should also improve. So, the question is how do you measure the impact of the Yates Memorandum?
The bottom line is did the number of individuals convicted for white-collar criminal offenses increase? To state the obvious, isn’t that the best measure of the impact of the Yates Memorandum?
The Yates Memorandum applies to not just criminal enforcement but extends to civil enforcement. Does that mean there should be an increase in the number of civil enforcement cases against individuals? Or will some civil cases now turn into criminal cases because more evidence was collected and a stronger criminal case was put together?
Another important consideration is how long will it take for the Yates Memorandum to have an impact on individual prosecutions? That is a more difficult question. Criminal investigations, especially when outsourced to company internal investigations, take time. We may not see any appreciable difference in criminal prosecutions of individuals for as long as a year. The Justice Department cannot impose the Yates Memorandum requirements on companies that conducted the bulk of an internal investigation before September 9, 2015, the release date. That would not be fair.
I am sure when the dust settles and the numbers are looked at over the next few years there will be some interesting trends to analyze. I am not so sure the picture will be clear on the overall issue of individual accountability. I am sure we will see some increase and potentially a significant increase in criminal prosecutions of individuals. Until we see the numbers and we evaluate the quality of the cases being prosecuted, it is hard to render a final verdict on the impact of the Yates memorandum. The one thing we can say for sue — things will change.