It’s been a year since the Department of Justice issued the Yates Memo. That document advised federal prosecutors to hold individuals accountable for corporate wrongdoing and ordered companies to provide “all relevant facts” on culpable individuals in order to get credit for cooperating with the government. Houston attorney and corporate compliance consultant Thomas Fox says the jury is still out on the Yates Memo’s impact on corporate corruption. Mr. Fox is the former general counsel for an international oilfield services company and now works as an independent consultant advising companies on the Foreign Corrupt Practices Act.
First, there’s the corporate response, says Mr. Fox, who also founded and operates the FCPA Compliance Report website. “In a speech in May, Deputy U.S. Attorney General Sally Yates said companies are now presenting ‘Yates binders’ when meeting with the government. The binders hold information on individuals that the government can use in prosecutions. While some general counsel are uneasy having to investigate their own employees and turn over that information to the government, a positive effect has been that corporations set their investigation protocols to more quickly and efficiently respond to allegations of wrongdoing. Many companies are now moving to use outside counsel, who generally are more seasoned than in-house counsel when dealing with internal investigations. The government’s response has been equally interesting. It’s too early to see a trend, but the recent prosecution of Volkswagen engineer James Liang and his guilty plea for helping create the device that cheated air pollution tests may be a harbinger for the impact of Yates. It will be instructive to see if the U.S. government continues to prosecute others at VW for their conduct. The key will be whether the government is willing to prosecute a senior manager or board member for their role. If the Yates Memo is only going to be used to go after the little guy, then it will be seen as a meaningless gesture by corporate America.