Bunss Law

CHIEF JUSTICE BURGER:  The question presented was whether “the manager of a corporation, as well as the corporation itself, may be prosecuted under the Federal Food, Drug, and Cosmetic Act of 1938 for the introduction of misbranded and adulterated articles into interstate commerce.” In Dotterweich, a jury had disagreed as to the corporation, a jobber purchasing drugs from manufacturers and shipping them in interstate commerce under its own label, but had convicted Dotterweich, the corporation’s president and general manager.

p. 162   Central to the Court’s conclusion that individuals other than proprietors are subject to the criminal provisions of the Act was the reality that “the only way in which a corporation can act is through the individuals who act on its behalf.”

The rationale of the interpretation given the Act in Dotterweich, as holding criminally accountable the persons whose failure to exercise the authority and supervisory responsibility reposed in them by the business organization, resulted in the violation complained of, has been confirmed in our subsequent cases.… In order to make “distributors of food the strictest censors of their merchandise,” the Act punishes “neglect where the law requires care, and inaction where it imposes a duty.” “The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably extract from one who assumed his responsibilities.”

Thus, Dotterweich and the cases which have followed reveal that in providing sanctions which reach and touch the individuals who execute the corporate mission—and this by no means necessarily confined to a single corporate agent or employee—the Act imposes not only a positive duty to seek out and remedy violations when they occur, but also, and primarily, a duty to implement measures that will insure that violations will not occur. The requirements of foresight and vigilance imposed on responsible corporate agents are beyond question, demanding, and perhaps onerous, but they are not more stringent than the public has a right to expect of those who voluntarily assume positions of authority in business enterprises whose services and products affect the health and well-being of the public that supports them.

The Act does not, as we observed in Dotterweich, make criminal liability turn on “awareness of some wrongdoing” or “conscious fraud.” The duty imposed by Congress on responsible corporate agents is, we emphasize, one that requires the highest standard of foresight and vigilance, but the Act, in its criminal aspect, does not require that which is objectively impossible. The theory upon which responsible corporate agents are held criminally accountable for “causing” violations of the Act permits a claim that a defendant was “powerless” to prevent or correct the violation to “be raised defensively at a trial on the merits.”

… [I]t is equally clear that the Government established a prima facie case when it introduced evidence sufficient to warrant a finding by the trier of the facts that the defendant had, by reason of his position in the corporation, responsibility and authority either to prevent in the first instance, or promptly to correct, the violation complained of, and that he failed to do so. The failure thus to fulfill the duty imposed by the interaction of the corporate agent’s authority and that statute furnishes a sufficient causal link. The considerations, which prompted the imposition of this duty, and the scope of the duty, provide the measure of culpability.

Since United States v. Park (Case 7-2), the general rule that corporate executives may be held accountable for crimes arising from their failure to meet their responsibility has remained intact. In fact, it has broadened; now executives can be held criminally liable for offenses we generally do not think of as crimes. In United States v. Iverson,¹³ a corporate officer of a waste treatment facility was convicted and sentenced for violating the Clean Water Act after he ordered employees to illegally dispose of wastewater. This case demonstrates that corporate executives can be sentenced not only for committing common law crimes we have traditionally understood to be criminal offenses but also for violating provisions of regulatory statutes that permit criminal sanctions. Using the idea of vicarious liabilityThe liability or responsibility imposed on a person, a party, or an organization for damages caused by another; most commonly used in relation to employment, with the employer held vicariously liable for the damages caused by its employees., courts have held employers liable for the wrongful acts of their employees if the employer directed, partook in, or authorized the wrongful act.

p. 163

Legal Principle: As a general rule, when a lower-level employee commits a crime, she or he will be individually liable for the crime, and under the responsible corporate officer doctrine, the employee’s manager, and any other corporate official who could have prevented the crime, can also be held vicariously liable for the crime.