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Strict Criminal Liability of 'Responsible Corporate Officers'
Many lawyers think it's black-letter law that prosecutors can't convict a criminal defendant without proving mens rea. This is not so, however, for “Responsible Corporate Officers” (RCOs) in businesses that affect public health and safety. A recent, controversial decision by the Food and Drug Administration (FDA) to step up misdemeanor prosecutions of RCOs whose conduct amounts at most to managerial negligence should ring alarm bells for defense counsel and put them on the alert to challenge these prosecutions.
The Challenges
When executives of Purdue Frederick Co., Inc., pleaded guilty in 2007, one Purdue defendant's attorney explained that the guilty pleas were to a “strict liability, no intent misdemeanor resulting solely from their status as officers of Purdue at a time when others engaged in conduct of which they were unaware.” Sue Reisinger, Ex-Purdue Pharma Lawyer Asks Court: Give Me Back My Career, Corporate Counsel, Dec. 22, 2009. Likewise, the lawyer for an executive of C.R. Bard, Inc., convicted in a health-care case in Massachusetts, noted that, despite the “deeply held (and legally correct) belief that he had committed no crime,” Leichter agreed to plea guilty to a “strict liability misdemeanor.” Harvey Silvergate, “Three Felonies a Day,“ 75, 85 (Encounter Books 2009).
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Yachts, Jets, Horses & Hooch: Specialized Commercial Leasing Models
Defining commercial real estate asset class is essentially a property explaining how it identifies — not necessarily what its original intention was or what others think it ought to be. This article discusses, from a general issue-spot and contextual analysis perspective, how lawyers ought to think about specialized leasing formats and the regulatory backdrops that may inform what the documentation needs to contain for compliance purposes.
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