Ten months ago, the Justice Department fired a shot across corporate America's bow by issuing the now notorious Yates Memo. Authored by Deputy Attorney General Patricia Yates and arriving just two months before the appointment of Hui Chen, the US Justice Department's first-ever compliance counsel, the memo was intended to refocus and reenergize the pursuit and prosecution of individual executives and other employees engaged in corporate wrongdoing. While many of its concepts weren't new, the Yates Memo did direct the attention of corporate legal and compliance departments—which serve as the gatekeepers in the most heavily regulated industries—to six specific policies.
As recently as May, Ms. Yates cited the memo's success as a deterrent. But media reports have hinted at a distinct lack of consensus about its impact among those affected. Though it remains to be seen how effective (and burdensome) the memo will ultimately be—and it's likely to be several years before the data is conclusive—the rhetoric from Washington continues to stir apprehension among corporate compliance officers (CCOs). Earlier this year, DLA Piper surveyed a select group of compliance officers, gauging their reactions to the DOJ's stated priorities and intentions. Given the focus on prosecuting individuals in corporate cases, it wasn't surprising to find that 81 percent of CCOs were concerned about their personal liability in the inevitable event that misconduct occurs.
The effects of the memo are even rippling through the compliance talent pool; two-thirds of respondents to our survey said they would consider the current regulatory and prosecutorial environment when considering a job change. "If it's a higher-risk company or one with a prosecutorial history, you’re going to weigh the risk of whether it could destroy your career and your personal life," one CCO told us after completing the survey.
And yet, despite the DOJ's show of aggression, 79 percent of our survey respondents said they had not altered their compliance programs in response. We certainly understand and empathize with CCOs who may lack sufficient resources, which is why companies must be prudent and take practical steps to limit their exposure to risk.
Amid an increased focus on investigating and prosecuting perceived compliance failures, both in the US and around the world, we'll be devoting a panel session at DLA Piper's Global Women’s Leadership Summit to global risk management and compliance. On September 20, the female GCs in attendance will discuss strategies for developing and implementing an effective cross border compliance program.
With so much happening, and so much at stake, we are looking forward to a lively and insightful discussion about the state of compliance.
Stasia Kelly is co-managing partner (Americas) of DLA Piper and a member of the firm's Global Board and Executive Committee. As co-chair of DLA Piper's Global Governance and Compliance practice, she counsels boards of directors, in-house legal teams and executives on issues related to their governance and compliance programs and crisis management. Stasia is on the leadership committee of DLA Piper's Leadership Alliance for Women and serves as a mentor to a number of the women lawyers at the firm.
Keara Gordon is co-chair of DLA Piper's Class Action Litigation practice and a partner in the firm's New York office. She is facilitating the panel discussion on "Legal Governance, Risk Management and Compliance in a Global Economy" at the 2016 Global Women's Leadership Summit.