As legal experts were predicting, the appellant attorney for Austin “Jack” DeCoster and Peter DeCoster got a deadline extension in his quest to obtain another review of the pair’s sentences in a case about the 2010 Salmonella outbreak linked to their eggs.
Attorney Peter Keisler of the Washington D.C. firm of Sidley & Austin is representing the father and son duo who were each sentenced to three months in relation to the outbreak that sickened at least 1,940 people — and as many as 56,000 — according to the U.S. Centers for Disease Control and Prevention.
Keisler, a former acting U.S. Attorney General, now has until Aug. 3 to file briefs in support of either a rehearing or a rehearing en banc review by the full 8th Circuit U.S. Court of Appeals. An en banc review would mean all of the judges in the 8th Circuit would hear the case instead of a three-judge panel, which is the regular procedure.
The extension means the July 6 appeals court ruling that upheld U.S. District Court Judge Mark W. Bennett’s sentencing of the DeCosters may get at least one more review. The two men were sentenced as “responsible corporate officers” for introducing eggs contaminated with Salmonella into interstate commerce, a violation of the Federal Food, Drug and Cosmetic Act (FDCA).
A three-judge panel heard oral arguments in the case on March 17 and split 2-1 in favor of Bennett’s sentencing decision. However, each judge on the panel wrote a separate opinion, and appellant attorneys say “each opinion adopted a distinct approach to constitutional questions presented. As these divergent opinions reflect, appellants’ arguments are substantial and deserving of careful consideration by the court.”
The issue of whether jail time can be imposed upon “responsible corporate officials” for violation of a “strict liability” statute such as the FDCA has raised concerns that go beyond the DeCosters and their eggs, with the potential to impact other businesses regulated by FDA and other potential “white collar” statutes involving businesses.
Those concerns have brought business groups, including the National Association of Manufacturers, the U.S. Chamber of Commerce and others, into the dispute with amici briefs voicing support for the DeCosters.
In an agreement with the government, the DeCosters agreed to plead guilty to introducing misbranded eggs into interstate commerce with intent to defraud. They each agreed to pay a $100,000 fine, but objected to any jail time. Sentencing guidelines suggested sentences ranging from no jail time to six months. Judge Bennett sentenced each of the DeCosters to three months in federal prison.
Federal litigation against the DeCosters and their family business, Quality Egg LLC, stemmed from the nationwide outbreak of Salmonella that was linked to two Iowa egg farms they owned. It led to the largest shell egg recall — more than half a billion eggs — in U.S. history.
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