Sending food industry executives to jail for company food safety violations, even if they did not know about them, might seem a useful way to bring about more compliance, but corporate America is rising up to strike down the practice. Amicus briefs are pouring in from industry groups to support the appeal to the St. Louis-based U.S. Court of Appeals for the Eighth Circuit by Austin (Jack) and Peter DeCoster of their 90-day federal jail sentences. With the work of 18 additional lawyers joining the cause, amicus briefs in support of the two former Iowa poultry executives were filed in recent days by the National Association of Manufacturers, The Cato Institute, The Washington Legal Foundation, Chamber of Commerce of the United States, and the Pharmaceutical Research and Manufacturers of America. These “Amicus on Behalf of Appellant(s)” briefs were all filed since Peter D. Keisler, a former acting U.S. Attorney General, filed the original appellant brief last month on behalf of the DeCosters, who are father and son. In September, Jeffrey E. Sandberg, who heads the U.S. Department of Justice’s civil division appellate staff, will respond for the federal government. The Eighth Circuit has notified the 30 or more attorneys now involved in the much-watched case that the appeal has been scheduled for oral arguments in late 2015 or early 2016, depending on the schedules of all necessary parties. The justices are scheduled to hold oral argument sessions in St. Louis, St. Paul, Kansas City and Omaha over the coming months. “Should an executive be subject to prison time because, without his or her knowledge or participation, direct or indirect, an employee in the executive’s company unknowingly committed a criminal offense?” asks one of the amicus filings. “The district court erroneously said yes. Amici ask this Court to reaffirm a century-long legal tradition of federal courts and answer this question ‘decidedly not.’” In 2010, when Jack DeCoster owned Quality Egg LLC and Peter DeCoster was his chief operating officer, two of their Iowa egg-producing farms were connected to a Salmonella outbreak which sickened an estimated 1,939 people and resulted in the largest recall of shell eggs in U.S. history. The pair of executives ended up pleading guilty to introducing eggs contaminated with Salmonella into interstate commerce. There was no evidence of personal involvement, however. They pleaded to a so-called “strict liability” misdemeanor offense, meaning that the government did not have to produce any evidence of their intent or mental state. “The DeCosters plead guilty to violating the FDCA (Food, Drug, and Cosmetic Act) as ‘Responsible Corporate Officers,’” the Amicus brief continues. “They were subject to criminal liability merely because they had ‘by reason of (their) positions in the corporation, responsibility and authority to either prevent in the first instance, or promptly to correct’ the FDCA violations.” The defendants cited constitutional arguments in asking the trial court to refrain from including jail time in their sentences, but their motion was unsuccessful. Instead, the trial court sentenced both the DeCosters to three months in prison, one year of supervised release, and a $100,000 fine. They have paid their fines and are free on supervised release pending the outcome of the appeal. The non-partisan, free-market Cato Institute goes so far as to suggest that if the DeCosters are jailed for 90 days, the U.S. economy will be harmed. “If executives can be imprisoned for criminal violations of strict liability laws by virtue of the position they hold within a company, the United States economy would suffer,” Cato’s amicus brief states. “Executive business decisions would be motivated less by good business principals and more by fear of possible future prison sentences. And, even then, corporate officers would not be able to fully protect themselves from criminal liability; under the responsible corporate officer doctrine, executives could be held criminally liable for conduct that is entirely outside of their control. Executives would have to hope that one of their employees does not unwittingly commit a regulatory violation—or else they could face prison time.” Attorneys for Cato said, “Such a regime would be contrary to basic notions of fairness and justice, contrary to law, and would put at risk the liberty of every executive.” In an editorial published Tuesday, Aug. 25, 2015, The Des Moines Register called the arguments the business groups are making “pure claptrap.” Iowa’s largest newspaper said that thousand of people were sickened by the DeCosters’ mismanagement of Quality Egg LLC and its employees. “A prison sentence is entirely appropriate,” the editorial stated.
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