4 Conclusion It is unclear whether the Securities and Exchange Commission, which has also had its share of high-dollar civil settlements with corporations, will follow the DOJ’s lead in defining adequate cooperation. If the SEC does not do so, then the discrepancy in requirements could lead to ‘‘forum shopping’’ by corporations under investigation by civil authorities that are considering selfreporting. For example, it is unclear whether the Securities and Exchange Commission, which has also had its share of high-dollar civil settlements with corporations, will follow the DOJ’s lead in defining adequate cooperation. If the SEC does not do so, then the discrepancy in requirements could lead to ‘‘forum shopping’’ by corporations under investigation by civil authorities that are considering self-reporting. Another unclear area is the impact of the Yates Memo on ongoing cases. Yates stated that the policy changes are ‘‘effective immediately.’’ She also noted that the new policies will affect cases just getting underway, the impact of which may not be felt for years. Internal investigations that are not close to resolution may need to be re-examined to determine compliance with the stricter scrutiny required for cooperation credit.

Yates stated in an interview that the changes would impact ongoing cases only to the extent that it was ‘‘practicable.’’ However, the $900 million General Motors criminal settlement announced just after the Yates Memo was published includes no individual criminal charges. Yates said that the DOJ would not ‘‘renege on verbal agreements,’’ indicating that individual charging decisions were determined prior to the policy change. Counsel involved in current investigations should get clarity on where their case falls on the continuum of practicality. 11/15 Yates’s memo and speech formally announced a policy shift towards individual accountability. Even though the new focus is on individuals, corporations will be affected by the policy shift as much as, if not more so than, their employees, officers and directors. Corporate officers should discuss the ramifications of the policy with counsel and take steps to ensure that their companies are positioned to prevent misconduct from occurring, to receive full cooperation credit and to intelligently assess whether the DOJ’s all-or-nothing requirement for cooperation might be a less desirable path to follow than a straight plea and fine. The full text of Yates’s memorandum is available at http:// www.justice.gov/dag/file/769036/download. The full text of Yates’s speech as prepared for delivery is available at http://www.justice.gov/opa/speech/deputy-attorneygeneral-sally-quillian-yates-delivers-remarks-new-york-universityschool. Jodi L.

Avergun is a Partner at Cadwalader, Wickersham & Taft LLP in Washington. Her practice focuses on representing corporations and individuals in criminal and regulatory matters involving, among other things, the Foreign Corrupt Practices Act, securities enforcement, health care, and general white collar matters. Prior to joining Cadwalader, she spent 17 years as a federal prosecutor with the U.S.

Attorney’s Office for the Eastern District of New York and with the Department of Justice’s Criminal Division. She may be contacted at jodi.avergun@cwt.com. Anne M. Tompkins is a Partner in Cadwalader’s White Collar Defense and Investigations Group and resident in the Charlotte, N.C., and Washington offices.

Her practice focuses on representing companies and financial institutions, as well as their officers and directors in criminal, civil and administrative investigations. Tompkins was the U.S. Attorney for the Western District of North Carolina from April 2010 to March 2015.

She has more than 18 years of experience as a state and federal prosecutor. She may be contacted at anne.tompkins@cwt.com. J. Robert Duncan is a Law Clerk at Cadwalader in Washington. COPYRIGHT ஽ 2015 BY THE BUREAU OF NATIONAL AFFAIRS, INC., WASHINGTON, D.C. WSLR ISSN 1357-0889 .