Opinion: Supreme Court mulling whether to take on Responsible Corporate Officer Doctrine (they shouldn’t)

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Dave Dickey

If you’ve raised kids, you likely know something about “Sesame Street,” the long-running children’s workshop that teaches the alphabet, how to count and a bevy of other pre-school educational benchmarks. One staple of the show is “One of these Things (Is Not Like the Others).”

One of these things is not like the others,

One of these things just doesn’t belong,
Can you tell which thing is not like the others
By the time I finish my song?

So let’s play.

Thing One: The White House calls for cutting the corporate tax rate from 35 percent to 15 percent  and a 0 percent (zero, yup) tax on foreign profits.

Thing Two: The U.S. Supreme Court in its landmark free-speech ruling, Citizen United, says that corporations could spend unlimited amounts of money on political activities as long as it was spent independently of a candidate or party.

Thing Three: U.S. corporations increasingly are initiating lawmaking agenda in the Senate and House through lobbying, campaign donations and the insidious rolling door policy of hiring former lawmakers to influence policy issues.

Thing Four: Corporate CEOs can go to jail without due process under the Responsible Corporate Officer doctrine for acts of misconduct on their jobs. All that must be proved is that a CEO: 1) held a position of authority and responsibility in the corporation; 2) had ability to prevent the violation; and 3) failed to prevent the violation.

Three strikes and you could be headed to jail. No trial.

Did you guess which thing was not like the others?
Did you guess which thing just doesn’t belong?
If you guessed this thing is not like the others,
Then you’re know…you’re RIGHT!

Right now, a high-stakes, highly visible RCO case is working its way through the courts, involving the DeCosters and their corporation Quality Egg LLC.

Austin and Jack DeCoster pleaded guilty to selling contaminated eggs that led to a nationwide Salmonella outbreak in 2010 and to the largest recall of shell eggs in U.S. history. They were required to pay almost $7 million in fines and serve three months in jail under the RCO doctrine.

But as I wrote last September, the DeCosters are not too keen of jail time (even if it amounted to luxury digs in some of the swankier federal lockups) and vowed to fight the RCO doctrine all the way to the Supreme Court if necessary.

In January, the DeCosters filed a writ of certiorari asking the High Court to review whether the RCO doctrine was properly applied.

Given the friendly signals the new Trump White House has been sending corporations across the U. S. since last November, it had to be reasonable for the DeCosters to believe with a new sheriff in town the RCO doctrine would be abolished and they would skirt jail time.

Except… Acting Solicitor General of the United States Jeffrey B. Wall filed a brief with the Supreme Court OPPOSING any further review of the DeCoster case.

That’s right. Opposing.

The Trump Department of Justice thinks the Barack Obama Food and Drug Administration got it right, at least in this specific case; there is a place for the RCO doctrine to lock up CEOs who poke their heads in the sand while their companies break laws.

Needless to say, the corporate world is running around with its hair on fire. The Washington Legal Foundation and the National Association of Criminal Defense Lawyers both filed amicus briefs in support of the DeCosters’ petition.

Will the U.S. Supreme Court buck the Department of Justice and accept the cert?

In my view, the application of the RCO doctrine in the case of the DeCosters was fairly applied. The DeCosters have a history of skirting laws in the name of profit, even if it means putting public health at risk.

In the case now before the Supreme Court, the DeCosters pleaded guilty to allowing adulterated food into commerce and bribing federal egg inspectors to cover up the crime.

As FDA Law Bog reports:

“The government points to the DeCosters’ (1) ‘unqualified’ guilty pleas to FDC Act misdemeanor offenses, and (2) agreement to be sentenced based on facts by the district court judge based on a preponderance of the evidence, as dispositive of the issues surrounding their sentencing.”

The DeCosters should take their lumps, serve the three month jail sentence and become the poster CEOs for any other corporation’s chief that thinks cutting corners in the workplace is OK.

About Dave Dickey

Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For the past 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for Big Ag Watch covers agriculture and related issues including politics, government, environment and labor. Email him at dave.dickey@investigatemidwest.org.

This column reflects the writer’s own opinions and not those of Big Ag Watch.

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