The Justice Department's effort to hold individual executives accountable for corporate wrongdoing could backfire by posing conflicts that discourage cooperation from companies, the country's biggest business lobby warned.
The U.S. Chamber of Commerce's Institute for Legal Reform, in a report issued Thursday, evaluated policy changes issued by Deputy Attorney General Sally Quillian Yates last year. The changes, described in a treatise known as the Yates memo, require companies to develop evidence against their employees and turn over possible suspects in order to win leniency.
In what represents the most prominent opposition to the Yates memo, the Chamber of Commerce said the government's "all or nothing" approach to gaining cooperation creates uncertainty for businesses because there is no guarantee that compliant companies will receive a break in penalties.
The required disclosures could also force some companies to waive attorney-client privilege in order to give the government the information it seeks, said the report, written by Matthew Miner, a partner at the law firm Morgan Lewis & Bockius LLP
"Paradoxically, in seeking to make it easier to bring cases against culpable individuals in corporate investigations, the department has complicated the mix for individuals, the corporate community — and ultimately, for the department itself," the chamber's report states.
For an analysis of the Yates memo, click here.
The report's release coincides with a symposium in Washington on Thursday sponsored by the Chamber of Commerce and the National Association of Criminal Defense Lawyers. At the event, attorneys and Republican lawmakers, including Senator Orrin Hatch, the chairman of the Finance Committee, are scheduled to speak about what the group calls the "over-criminalizing" of U.S. business interests.
Yates, in a speech this month, said she was not aware of any company that has refused to cooperate because of the new policy requirements.
"Companies are not only continuing to cooperate, they are making real and tangible efforts to adhere to our requirement that they identify facts about individual conduct, right down to providing what I'm told are called 'Yates Binders' — an unnecessary term if you ask me — that contain relevant e-mails of individuals being interviewed by the government," she said during the May 10 speech.