Category Archives: Individual Liability: Responsible Corporate Officer Doctrine

Securities Fraud Class Action Suits following Cyber Breaches: The Trickle Before the Wave

by Michael S. Flynn, Avi Gesser, Joseph A. Hall, Edmund Polubinski III, Neal A. Potischman, Brian S. Weinstein, Peter Starr and Jessica L. Turner

Overview

Large-scale data breaches can give rise to a host of legal problems for the breached entity, ranging from consumer class action litigation to congressional inquiries and state attorneys general investigations.  Increasingly, issuers are also facing the specter of federal securities fraud litigation.[1]

The existence of securities fraud litigation following a cyber breach is, to some extent, not surprising.  Lawyer-driven securities litigation often follows stock price declines, even declines that are ostensibly unrelated to any prior public disclosure by an issuer.  Until recently, significant declines in stock price following disclosures of cyber breaches were rare.  But that is changing.  The recent securities fraud class actions brought against Yahoo! and Equifax demonstrate this point; in both of those cases, significant stock price declines followed the disclosure of the breach.  Similar cases can be expected whenever stock price declines follow cyber breach disclosures.  Continue reading

Corporate Executives and Criminal Justice Reform

By Amy J. Sepinwall

On September 19, Senator Chuck Grassley (R-IA) issued a press release stating that the bipartisan authors of a 2015 landmark criminal justice reform bill were preparing to reintroduce that legislation. The Sentencing Reform and Corrections Act of 2015, to which Sen. Grassley will grant new life, was part of a widespread effort at criminal justice reform that appeared to have died with the 2016 election. A centerpiece of the effort would have clarified and enhanced the mens rea (or mental state) necessary for conviction: in the House version, a defendant could be convicted only if she knew she was engaged in criminal activity; the Senate version was even more defendant-friendly, requiring willful participation.

Criminal justice reform has a laudable overarching ambition—to reduce sentences and incarceration rates, especially for minor drug and firearms offenses. As Yale Law Professor Gideon Yaffe writes, this would benefit “those who are especially ill-treated by the criminal justice system: the poor and racial minorities.” But these efforts are being championed by some unusual suspects: Republican members of Congress, who don’t ordinarily vie for more leniency when it comes to street crime, and the Koch brothers, who also are not usually poster boys for the plight of the underclass, who are over-represented in criminal prosecutions, convictions and America’s prisons. Continue reading

DeCoster v. United States: Testing the Limits of the Responsible Corporate Officer Doctrine

by Jason Driscoll
This post is the first part of a multi-part post by the author.

Over the last decade, the Food and Drug Administration and the Department of Justice have revived the use of the Responsible Corporate Officer (“RCO”) doctrine in an attempt to increase compliance with the Food, Drug, and Cosmetic Act (“FDCA”). Two recent cases—United States v. Purdue Frederick Co.[1] and United States v. Quality Egg, LLC[2]—illustrate the regulators’ new approach: impose strict criminal liability on individual corporate officers and seek enhanced sanctions in the name of effective deterrence. However, while the Supreme Court has upheld criminal fines premised on the RCO doctrine,[3] the Court has not yet opined on the legality of more serious penalties such as long-term debarment or imprisonment. The Court now has that opportunity. In DeCoster v. United States,[4] the Quality Egg defendants (Jack and Peter DeCoster) have filed cert. petitions asking the Court to review the lawfulness of their prison sentences and the RCO doctrine altogether. For anyone concerned about the expanding scope of corporate officer liability, this case could mark a turning point. Continue reading