I am pleased to announce that an article I co-authored with Sara Winik, of Kirkland & Ellis L.L.P. of New York City, has been published in the just released Comparative Law Yearbook of International Business published by Wolters Kluwer (www.wklawbusiness.com). The Yearbook is printed by the Center for International Legal Studies, a non-profit research and publications institute established and operating under Austrian law, with its international headquarters in Salzburg, Austria (firstname.lastname@example.org).
The Responsible Corporate Officer Doctrine, also known as the “Park” doctrine from a 1975 Supreme Court case, is a 1943 theory of liability that allows the United States Department of Justice to charge high-ranking corporate executives with strict liability misdemeanors for criminal offenses without proof of “awareness of wrongdoing” (mens rea). In Park prosecutions, the Department of Justice may hold executives criminally responsible for violations of law committed by their company, even if the executives did not have knowledge of, or participate, in the violations.
The article explores the doctrine, its current use by the Department of Justice, and five cases where it was implemented.
Although it might appear that the government, and particularly the federal Drug Administration, appears to support increased use of the Park doctrine, prosecutions remain rare and judges appear reluctant to impose strict liability prison sentences outside egregious cases.
However, the Department of Justice just (September 9, 2015) released a memorandum (the “Yates Memo“), authored by Sally Quillian Yates, Deputy Attorney General, entitled Individual Accountability for Corporate Wrongdoing ( http://www.justice.gov/dag/file/769036/download) which indicates an increased awareness of the deterrent effect of holding individual corporate executives responsible for fraud committed by their companies.This memo, in light of the conclusions reached in our article, seems to demonstrate a new lens to view prior cases and policy statements.
In my opinion, corporate executives of regulated companies, compliance officers, and lawyers representing any of the foregoing ought to consider our article and the Yates Memo and discuss their consequences.
Compliance is good business!!