Here are a couple of legal concepts to get your head around before we continue: The Park Doctrine: Also known as the “Responsible Corporate Officer (RCO) Doctrine,” it allows a corporate officer, who in a position to prevent or correct a violation of the Food, Drug, and Cosmetic Act (FDCA) but who fails to do so, to be convicted of a misdemeanor by virtue of their authority, without any need to show knowledge or awareness of the violation. The doctrine stems from United States v. Park, 421 U.S. 658 (1975). Strict liability crime: Strict liability means that the defendant is held liable for the offense or violation even where there is no criminal intent and where there may be no knowledge of the illegal act. Rarely applied in felony cases, strict liability misdemeanor prosecutions have been used to enforce the FDCA. It was thought of as a “long dormant” tool when, on March 4, 2010, FDA Commissioner Margaret Hamburg wrote Sen. Charles Grassley (R-IA) to say that the agency was developing “criteria” to be used in selection of misdemeanor prosecution cases. In her letter, Hamburg said that FDA intended to consider “the appropriate use of misdemeanor prosecutions, a valuable enforcement tool, to hold responsible corporate officials accountable.” At the time, it was not unheard of for a corporation to plead guilty to a strict liability federal misdemeanor or two and pay a fine after a foodborne illness outbreak. Coca-Cola pleaded guilty to 16 misdemeanors and paid a $1.5-million fine to settle the 1996 Odwalla Inc. outbreak involving E. coli contamination of raw apple juice which killed a child and sickened dozens of others — all before Coke brought the juice maker. Sara Lee paid $4.4 million in fines and contributions after pleading guilty to a single misdemeanor in 2001 over the Listeria outbreak involving hot dogs and deli meats which caused 15 deaths. But corporations cannot be put in jail. Corporate officials are another story. It’s taken a long time to see how that 2010 policy change is playing out. In addition to its published criteria, FDA began bringing up the Park Doctrine in warning letters to companies. The first present-day test of the waters came from the U.S. Attorney for Colorado. He got cantaloupe growers Eric and Ryan Jensen to plead guilty to six misdemeanors each, and they agreed to six months of “home” confinement as punishment. While their liberty was restricted, the court did allow the brothers to move about in a fairly large rural area so they could continue their agricultural endeavors. Next up was the U.S. Attorney for Northern Iowa, who prosecuted Austin “Jack” DeCoster and his son, Peter DeCoster, for the 2010 Salmonella outbreak associated with their Wright County and Hillandale egg farms. The DeCosters reached a plea bargain, but their attorneys argue that the U.S. Constitution prohibits jail time for Park Doctrine prosecution where there is no evidence or admission that the corporate official had any criminal state of mind. Government attorneys never asked the court to jail the DeCosters, but the judge sentenced both of them to three months in federal custody. They’ve appealed and it’s gone largely unnoticed that corporate America is paying major attention to this case, so much so that about two dozen of the nation’s top business attorneys have officially waded into the appeal. Major time and money is being invested in this one. Even if the DeCosters had taken the judge’s offer to serve their sentences one after the other, they could have all this behind them now by doing 12 weeks each at a minimum-security federal prison in Yankton, SD, that is a former college campus. Not exactly hard time, but this appeal is now about more than the DeCosters and even more than the food industry. It has captured the attention the nation’s business bar. A couple dozen of the nation’s top business lawyers from such powerful organizations as the National Association of Manufacturers, The Cato Institute, Chamber of Commerce of the United States, Washington Legal Foundation, and the Pharmaceutical Research and Manufacturers of America have all waded into Appellate Case: 15-1890 in the U.S. Court of Appeals for the Eighth Circuit in St. Louis. They’ve all filed amici curiae (friend-of-the-court) briefs. “Amici have a vital interest in ensuring that the ‘responsible corporate officer’ concept is given a fair and rational construction, consistent with fundamental precepts of the Anglo-American legal tradition,” state the attorneys for the chamber and the pharmaceutical manufacturers. “Allowing imprisonment of a corporate officer based only on his position within a company, without proof that the officer had a criminal state of mind or any culpable connection to a violation of the Federal Food, Drug, and Cosmetic Act (FDCA) , will not advance public health or safety, is fundamentally unfair, and will likely result in over-deterrence, impairing the public’s access to pharmaceuticals and other products that extend or improve lives.” “The government’s recent determination to seek imprisonment of corporate officers who had neither knowledge of nor intent to commit violations of the FDCA raises substantial constitutional doubts about the responsible corporate officer concept,” they continue. “Those constitutional doubts had previously been avoided by decades of restraint in the government’s use of strict criminal liability theories under the FDCA, but now have been brought to the fore by the government’s decision to seek imprisonment of an individual for violation of a strict-liability misdemeanor. This Court can avoid those profound constitutional questions by holding that imprisonment is not a permissible form of punishment under … when the government proceeds solely under the theory that the defendant is liable as a responsible corporate officer.” They further argue that imprisonment for even short stints deprive the individual of liberty. And they say, neither is it effective for FDA in its enforcement of FDCA. “Even if one purpose of strict liability for corporate officers is to promote effective compliance systems, little in the way of deterrence is accomplished by imprisoning individuals who use their best efforts to maintain and enforce such systems and who themselves act in entirely appropriate ways merely because a violation happens on their watch,” adds the brief, written by attorneys David W. Ogden and Paul R.Q. Wolfson. “Because strict liability under the responsible corporate officer concept does not recognize mitigation, it cannot be effectively calibrated. Moreover, that rigid enforcement, coupled with the risk of imprisonment, may provide individual officers with a perverse incentive to protect their own interests at the risk of their employer company and the public at large. “ The government has also filed its arguments against the DeCoster appeal and the boatload of business attorneys who want to stop strict liability jail time before it gains any traction. Later this year or sometime during 2016, the case will go to oral arguments before a panel of judges from the Eight Circuit. Whenever they decide, it’s clear that the outcome will have significance far beyond the question of whether the DeCosters ever spend any time in jail.

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