Corporate Criminal Liability in the COVID-19 Era

However, criminal liability remains a concern for all companies and organizations, and prosecuting corporate wrongdoers continues to be a "high priority" for the DOJ. See, Justice Manual §9-28.010. Consistent with its Principles of Federal Prosecution of Business Organizations, DOJ focuses criminal prosecutions on those corporate actions that endanger consumers, public health and safety, the environment and free markets. Id. Many of these violations can also give rise to civil regulatory enforcement, and companies must be mindful of the risk that a compliance failure could cross the line from civil to criminal (and possibly result in parallel civil and criminal enforcement). This happened to two companies in the food industry — Chipotle Mexican Grill and Blue Bell Creameries LP — who recently resolved criminal probes (through a deferred prosecution agreement and guilty plea, respectively) related to food safety failures that sickened customers.

The risk that a compliance or regulatory violation could result in customer illness could become a criminal matter is heightened in the ever-changing COVID-19 landscape, which presents novel challenges for operations and customer safety. For example, as the pandemic started, the media began questioning cruise ship companies' preventive measures regarding coronavirus transmission and passenger safety. Government investigations soon followed. Jacquie McNish et al., "Cruise Ships Set Sail Knowing the Deadly Risk to Passengers and Crew," Wall St. J. (May 1, 2020) (U.S. Coast Guard investigating whether cruise ships violated federal law by failing to alert health authorities to sick travelers disembarking at U.S. ports).