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Practitioner's Guide to Health Care Law and Policy

Article Title

Not Guilty, Again

Authors

Chase Doscher

Abstract

Historically, there has been little incentive for healthcare and pharmaceutical corporations to adhere strictly to federal administrative regulations. The monetary penalties, while in the billions of dollars, have paled in comparison to the profits reaped by the unlawful marketing, off-label usages, and fraudulent billing to federal healthcare programs. In 2015, former Attorney General, Sally Yates, issued the now famous Yates Memorandum to take the first step in curbing this trend of corporate misconduct. Through this memorandum, the Department of Justice reaffirmed its commitment to prosecuting not only corporations, but to hold their executives personally liable for regulatory violations committed under their watch. On paper, this is an attainable goal. In reality, federal prosecutors have been faced with seemingly insurmountable difficulties of proving executive intent and knowledge, overcoming attorney-client corporate privilege, and ultimately, convincing juries that are reluctant to convict corporate individuals for the crimes of their company. This note will examine the history of criminal prosecution of corporate executives which gave rise to the need for the Yates Memorandum, it will analyze the Yates Memorandum and explore the expanding impact of the document, and, finally, discuss potential solutions to the numerous challenges faced by federal prosecutors in accomplishing the goals of the Yates Memorandum. This Note will argue that despite the mounting challenges of implementation and prosecution of corporate officers, there are viable solutions to give teeth to the original purpose of the Yates Memorandum and curb corporate misconduct.

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