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Signs of Increased Prosecution of Executives Illustrate the Yates Memo's Staying Power and Increased Risks for Corporate Owners and Insiders

June 5, 2019

By: Carolyn H. Kendall and Yune D. Emeritz

When originally issued in September 2015, the “Yates Memo” was an effort by the U.S. DOJ and then-DAG Sally Yates to strengthen the Department’s commitment to holding executives and other responsible individuals at corporations criminally liable for their companies’ malfeasance.  Although the Yates Memo’s future under the current Administration has been at times uncertain, a series of recent prosecutions of corporate insiders suggest that the principles the Yates Memo embodies are here to stay. 

We recently examined this apparent trend of increased criminal enforcement activity against individuals for corporate wrongdoing in an article for the June 2019 issue of Business Crimes Bulletin (The Yates Memo Is Here to Stay: Signs of Increasing Efforts to Hold Individuals Criminally Liable for Corporate Wrongdoing).  These prosecutions involve application of never-before-used laws that carry substantial penalties, including felony liability and incarceration, which is a significant departure from the limited misdemeanor liability to which corporate executives traditionally have been exposed to under the Responsible Corporate Officer Doctrine.

In addition to discussing three cases that are part of this trend, the article considers recent amendments to the Justice Manual regarding the availability of cooperation credit for companies that provide information about culpable individuals and a proposal by Senator Elizabeth Warren to radically expand criminal liability for executives of certain large corporations, modeled on the Federal Food, Drug, and Cosmetic Act’s (FDCA) enforcement provisions.  Understanding these recent developments is essential for companies, their officers, and the lawyers who advise them. 

To read the full article click here.

Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.

About the Authors:

Carolyn Kendall

Carolyn H. Kendall conducts internal investigations and defends corporations, officers and other individuals facing criminal and civil investigation. Her practice includes matters relating to potential criminal tax and money laundering violations, as well as allegations involving securities violations, mortgage, and financial institution fraud, the Federal Anti-Kickback Statute and Stark Law, and other fraud and regulatory statutes. She also assists clients in offshore account disclosure and compliance via IRS disclosure programs (OVDP and Streamlined Procedures). Learn More.

Yune Emeritz Yune D. Emeritz is an Associate in Post & Schell's Internal Investigations & White Collar Defense Practice Group, a national practice which collaborates with clients in a broad spectrum of industries, including health care, pharmaceutical and medical device, securities, insurance and financial services, and defense. Learn More.

 

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