The Yates Memo and the Evolving FCPA Enforcement Paradigm in the 2017 Landscape
Last September 2015, the Deputy Attorney General Sally Yates released a memo entitled "Individual Accountability for Corporate Wrongdoing," now known as the "Yates Memo," to provide a strengthened focus on individual liability for alleged corporate wrongdoing.
In this LIVE Webcast, a seasoned panel of thought leaders and professionals assembled by The Knowledge Group will help the audience understand all the important issues surrounding the Yates Memo and the evolving FCPA enforcement landscape. Speakers will provide the audience with the fundamentals as well as recent developments with regard to this significant topic.
Key topics include:
- Yates Memo - An Overview
- FCPA Enforcement Trends
- SEC Broken Windows Enforcement
- Trends and Developments
- What Lies Ahead in 2017?
What does the departure of Acting A.G. Sally Yates mean for the continued viability of the policies set forth in the Yates memo, or what might we see in place of them in the Trump administration?
Morgan A. Heavener, Of Counsel
Paul Hastings LLP
- In order to qualify for any cooperation credit, corporations must provide to the Department all relevant facts relating to the individuals responsible for the misconduct."
- Whether there have been any substantial changes in FCPA enforcement since issues of the Yates Memorandum.
- Issues concerning cooperation credit under the Yates Memorandum.
- Challenges for the Yates Memorandum in multijurisdictional cases.
- The Yates Memorandum in the context of the DOJ’s FCPA Pilot Program.
Claude W. Roxborough III, Managing Partner
Wilson Keadjian Browndorf, LLP
- "Criminal and civil corporate investigations should focus on individuals from the inception of the investigation."
- Views Memo as setting up a framework and it must be prepared for
- Yates memo, if enforced, will see the newly established procedures play out to a greater extent in the upcoming 2017 cycle. There is a big question mark there and I don’t know if this can be answered with certainty given what we know and don’t know about the new administration but the groundwork has been laid and it’s worth it to prepare. As you know indemnification provisions are deemed null and void.
- Yates memo in its own words.
- Market place reactions, one main reaction being the push down to consultants. What do lawyers of large companies and these consultants need to insert into their agreements.
- Maybe a few cases (e.g. the willful blindness cases) as well as some general cases, Hitachi and the JP Morgan (hiring program) cases.
Michael Kelly, Partner
Hogan Lovells US LLP
- "Criminal and civil attorneys handling corporate investigations should be in routine communication with one another."
- "Absent extraordinary circumstances or approved departmental policy, the Department will not release culpable individuals from civil or criminal liability when resolving a matter with a corporation."
- There is substantial uncertainty about whether the new Administration will embrace the Yates Memorandum.
- If applied strictly, the Yates Memorandum has the potential to change the way that corporations conduct internal investigations.
- If applied strictly, the Yates Memorandum may cause corporations to hesitate before reporting allegations of wrongdoing to the Justice Department.
- If prosecutors are required to identify culpable individuals at the outset of an investigation, it may cause prosecutors to prejudge targets and subjects at an earlier point in the investigation.
- If the Yates Memorandum is applied strictly, that could lead to continuing friction with the federal judiciary, which has expressed concern about the issue of over-criminalization
John F. Wood, Partner
Hughes Hubbard & Reed LLP
- "Department attorneys should not resolve matters with a corporation without a clear plan to resolve related individual cases, and should memorialize any declinations as to individuals in such cases."
- "Civil attorneys should consistently focus on individuals as well as the company and evaluate whether to bring suit against an individual based on considerations beyond that individual's ability to pay."
- Yates memo’s significance is a reflection of priorities
- Repeal unlikely
- Priority – individual executives
- The Yates memo itself did not create significant changes to long-standing DOJ policies. Instead, its significance is that it reflected the priorities of DOJ leadership. Thus, whether the memo is kept in place is not as significant as what the new DOJ leadership’s priorities will be.
- Based on comments he has made at Senate Judiciary Committee hearings, Jeff Sessions is likely to make corporate prosecutions and the prosecution of individual corporate executives a priority.
- DOJ is likely to continue its aggressive enforcement of the FCPA. While DOJ might be slightly less inclined to investigate minor or technical violations under the new Administration, it is also possible that DOJ will increase the already significant scrutiny of non-U.S. corporations that are subject to FCPA jurisdiction.
Who Should Attend:
- FCPA Securities and Corporate Governance Attorneys
- FCPA Practicing Lawyers
- In-House Counsel
- Regulatory and Policy Managers
- Corporate Counsel
Michael P. Kelly is a partner at the law firm of Hogan Lovells U.S. LLP and represents corporations and individuals in a wide range of matters involving federal criminal law. He has defended companies and individuals facing criminal cases and investigations brought by the United States Department of Justice. He has helped boards of directors and corporations respond to allegations of potentially illegal conduct, including through extensive, thorough, and swift internal investigations. He works from the firm’s Washington, D.C. office, and represents clients in matters nationally and internationally.
Michael P. Kelly is a partner at the law firm of Hogan Lovells U.S. LLP and represents corporations and individuals …
Morgan Heavener is of counsel in the Litigation Department of Paul Hastings. His practice focuses largely on matters relating to international anticorruption laws, including the U.S. Foreign Corrupt Practices Act. Mr. Heavener has extensive experience conducting corruption-related internal and government-initiated investigations around the world, including representing clients in enforcement actions brought by the U.S. U.S. Department of Justice (DOJ), the U.S. Securities and Exchange Commission (SEC), and multilateral development banks.
Morgan Heavener is of counsel in the Litigation Department of Paul Hastings. His practice focuses largely on matters relating to …
John F. Wood is a partner in Hughes Hubbard & Reed LLP’s Washington, D.C. office. He is chairman of the firm’s Defense Industry Practice Group and focuses his practice on providing compliance program-related advice to corporations and conducting internal corporate investigations. Prior to joining Hughes Hubbard, John served as United States Attorney for the Western District of Missouri, the chief federal law enforcement official for that district.
John F. Wood is a partner in Hughes Hubbard & Reed LLP’s Washington, D.C. office. He is chairman of the …
Claude W. Roxborough III is Chair of the Africa Law Practice Group at Wilson Keadjian Browndorf LLP, a 60 person law firm covering major markets in the U.S. and in London, U.K. Claude specializes in FCPA and U.K. Bribery Act compliance (including internal investigations, due diligence in M&A transactions, and development of compliance programs). He also specializes in domestic and international securities offerings, mergers and acquisitions, various partnership agreements and investment fund formation. Claude has a particular and personal interest in the African continent though his clients have also entered Eastern European and Latin American markets.
Claude W. Roxborough III is Chair of the Africa Law Practice Group at Wilson Keadjian Browndorf LLP, a 60 person …
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About Hogan Lovells US LLP
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About Paul Hastings LLP
Paul Hastings provides innovative legal solutions to many of the world’s top financial institutions and Fortune 500 companies in markets across Asia, Europe, Latin America, and the United States. Our Investigations & White Collar Defense group helps clients secure successful outcomes in high-stakes government investigations, litigation, and corporate compliance matters, including anti-corruption and FCPA, global trade controls, privacy and data security, securities enforcement, and white collar matters. We lead the way in our respective areas of law, from developing innovative compliance programs and measures to conducting complex, sensitive internal investigations. Our team represents numerous multinational corporations that do business in a wide array of industries and countries and, consequently, are potentially subject to simultaneous U.S. and multi-jurisdictional enforcement actions.
About Hughes Hubbard & Reed LLP
Hughes Hubbard & Reed LLP is an international law firm ranked for ten years, including five years in a row as the top-ranked New York-based firm, on The American Lawyer’s A-List of what the magazine calls “the top firms among the nation’s legal elite.” Our attorneys advise and represent clients in over 30 specialized practices from offices in New York, Washington, D.C., Paris, Los Angeles, Miami, Jersey City, Kansas City, and Tokyo. For more information, please visit www.hugheshubbard.com.