Two months after sending a memo to federal prosecutors across the country, the Department of Justice (DOJ) has finalized changes to the United States Attorney's Manual (USAM), which solidifies its new approach to prosecuting individuals involved in white-collar crime.
The changes were announced by Deputy Attorney General Sally Q. Yates in remarks at the American Banking Association and American Bar Association Money Laundering Enforcement Conference. In September, Yates authored what has become known as the "Yates memo," which outlined ways in which civil and criminal investigators should look for individual wrongdoing in corporate crimes, including healthcare fraud.
In her remarks, Yates noted that DOJ does not often revise USAM unless "it's for something important." The revisions included updates to the "Filip factors," which now outline steps prosecutors are expected to take in order to achieve individual accountability in corporate investigations. Part of those revisions include requirements for a company that wants credit for cooperating, including a minimum standard that it must provide "all non-privileged information about individual wrongdoing" promptly, regardless of how that implicates the corporate hierarchy. This represents a distinct shift from past enforcement, where prosecutors worked on a "sliding scale," regarding cooperation.
Yates also announced the addition of a new USAM chapter on civil cases, which also addresses "enforcing claims against individuals in corporate matters," offering criminal and civil prosecutors a framework to work together on corporate cases. Like criminal attorneys, civil prosecutors are directed to adhere to strength of evidence and seriousness of misconduct when pursuing a case, rather than "an individual's ability to pay."
"Just because wrongdoers are judgment-proof, doesn't mean they should escape all judgment," Yates said. "This change acknowledges that our mission in civil corporate cases is not just to recover money. It is also to redress and deter misconduct. And, while hefty corporate fines can be a necessary part of achieving these goals, our job is not complete if we fail to focus on the individuals who committed the wrongful acts in the first place."
Earlier this month, we saw the impact of the Yates memo play out when the president of Warner Chilcott PLC, a subsidiary of Allergan, was arrested for his involvement in a kickback scheme, a particularly powerful message given the government's leniency with the pharmaceutical industry.
To learn more:
- here are the remarks from Yates