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Government Enforcement Exposed - "The GEE"
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01 May 2017 The Yates Memo – DOJ Issues Questions and Answers: Question 7

  *This is the eighth in a series of blog posts that examines seven FAQs issued by the DOJ in response to questions the Yates Memo raised. The seventh of these questions addresses receiving cooperation credit in a civil matter.   Question: Does the “all facts” cooperation requirement apply in civil matters as well?   Answer: Yes. If a company wishes to receive cooperation credit in a civil matter, it must disclose the relevant facts regarding the individuals involved in the misconduct.   In two speeches following the issuance of the Yates Memo, Bill Baer, who was an associate attorney general at the time, provided additional guidance on what the DOJ expects in terms of cooperation in civil matters.   First, on June 9, 2016, Baer identified…

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27 Apr 2017 The Yates Memo – DOJ Issues Questions and Answers: Question 6

  *This is the seventh in a series of blog posts that examines seven FAQs issued by the DOJ in response to questions raised by the Yates Memo. The sixth of these questions addresses whether companies should enter into joint defense agreements.   Question: Can a cooperating company enter into a joint defense agreement with individuals’ counsel?   As mentioned in a previous post about the Yates Memo, the Department of Justice (DOJ) has certainly cast a pall on joint defense agreements (JDA) in potential criminal investigations. The DOJ’s guidance seems to indicate that any corporation interested in obtaining cooperation credit in the form of a reduced penalty or a deferred prosecution agreement must carefully consider whether entering into a JDA could stymie the corporation’s ability to…

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07 Apr 2017 The Yates Memo – DOJ Issues Questions and Answers: Question 4 (Part 2)

  What does the DOJ’s response to FAQ No. 4 tell us about cooperation?   This is the second of two posts relating to FAQ No. 4. In a previous post, we addressed the DOJ’s response to FAQ No. 4 regarding voluntary disclosure by a company. This post will address what the DOJ’s response says about a company cooperating, which includes, as we noted in Part 1, only a brief but important reference to cooperation:   “In recognition of the significant value early reporting holds for the government, the Principles [of Federal Prosecution Of Business Organizations] were revised to separate voluntary disclosure from cooperation in order to treat prompt voluntary disclosure as an independent factor to be considered.”   While it may be a rare,…

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04 Apr 2017 The Yates Memo – DOJ Issues Questions and Answers: Question 4 (Part 1)

  *This is the fifth in a series of blog posts that examines seven FAQs issued by the DOJ in response to questions the Yates Memo raised. The fourth of these questions concerns when a company should voluntarily disclose misconduct.   Question: When should a company report misconduct?   Let’s investigate what the DOJ’s response tells us about voluntary disclosure:   It is fair to say that the Yates Memo focuses on a company’s cooperation with the DOJ, focusing primarily on a company providing information about culpable individuals. For example, five of the seven FAQs refer to “cooperation” or “cooperating.” Yet, FAQ No. 4 relates to reporting misconduct and does not specifically mention cooperation. Similarly, the DOJ’s response to FAQ No. 4 makes only a brief, but…

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31 Mar 2017 The Yates Memo – DOJ Issues Questions and Answers: Question 3

  *This is the fourth in a series of blog posts that examines seven FAQs issued by the DOJ in response to questions the Yates Memo raised. The third of these questions concerns what a company is not required to do to earn cooperation credit.   Question: What is the cooperating company not required to do?    Answer: In order to receive cooperation credit, the Department of Justice (DOJ) has placed certain formal limitations on the Yates Memo’s reach. For instance, a company is not required to embark on an endless fishing expedition for information, nor is a company required to waive any attorney-client privilege to receive cooperation credit. At times, however, although there are formal limitations, the department’s limitations create an apparent conflict with its practical application….

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21 Mar 2017 The Yates Memo – DOJ Issues Questions and Answers: Question 2

  *This is the third in a series of blog posts that examines seven FAQs issued by the DOJ in an effort to clarify certain aspects of its Individual Accountability Policy—as articulated in the “Yates Memo.” The second of these questions concerns what a company is required to do to earn cooperation credit.   Question: What else, in addition to providing the DOJ with all non-privileged relevant information about individuals involved in misconduct, is a company required to do to earn cooperation credit?   Answer: The United States Attorneys’ Manual (“USAM”) identifies several factors that will be considered by the Department of Justice to determine the level of cooperation credit a company will receive. In short, the level of cooperation credit the DOJ will bestow directly correlates with…

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17 Mar 2017 The Yates Memo – DOJ Issues Questions and Answers: Question No. 1

  *This is the second in a series of blog posts that examines seven FAQs issued by the DOJ in an effort to clarify certain aspects of its Individual Accountability Policy—as articulated in the “Yates Memo.” The first of these questions concerns the change in corporate cooperation requirements.   Question: How did the Individual Accountability Policy change the requirements of corporate cooperation?   Answer: Before the Individual Accountability Policy (the “Policy”) took effect, the United States Attorneys’ Manual (“USAM”) identified a company’s “willingness to provide relevant information and evidence and identify relevant actors” as one of several factors that a prosecutor “may consider” in determining the nature and extent of the company’s cooperation. Thus, a company could be eligible for some degree of cooperation credit even…

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15 Mar 2017 The Yates Memo – DOJ Issues Questions and Answers

  *This is the first in a series of blog posts that will examine seven FAQs issued by the DOJ in response to questions the Yates Memo raised. Check back frequently for more in depth analysis and best practices in response to these questions.   The U.S. Justice of Department (DOJ) nearly two years ago announced an uptick in its battle against corporate wrongdoing, taking the fight into boardrooms and offices in pursuit of individuals involved in corporate misconduct. The effort, announced in a memo authored by then-Deputy Attorney General Sally Yates, applied “new” guidance for both criminal and civil matters.   The memo identified four principal goals: (1) deterring future illegal activity; (2) incentivizing change in corporate behavior; (3) ensuring the proper parties are…

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