Petition for Cert Revisits Park Doctrine

Those in the life sciences need little or no explanation regarding the implications of Park doctrine, but this relatively relaxed threshold for federal criminal prosecution may soon undergo a scrub-down at the Supreme Court of the U.S. Whether the Court will conclude the time is ripe to revisit Park doctrine is tough to predict, particularly since the acting Solicitor General has argued that this case deserves none of the Court’s attention. Nonetheless, there is a new justice at the Supreme Court, one whose track record suggests a degree of skepticism about deference to the federal government’s position on legal matters.

Jail time at heart of debate

The case of Decoster v. U.S. revolves around a three-month jail sentence imposed on the father-son team of Jack and Peter DeCoster, whose Quality Egg LLC company was charged in connection with an outbreak of Salmonella in 2010. The DeCosters agreed to pay personal fines of $100,000 each, and Quality Egg gave up nearly $7 million as well.

Prosecutors were unable to offer evidence that the DeCosters were aware that the company was shipping tainted eggs, and thus the three-month sentence imposed in the district court hearing is seen as a break with routine sentencing practice under Park doctrine. The district court judge concluded that the duo had acted negligently, and the U.S. Court of Appeals for the Eight Circuit upheld the jail term by a 2-1 vote. Subsequently, a request for an en banc hearing at the Eight Circuit was denied, whereupon counsel for the defendants petitioned the Supreme Court to take the case.

In response to the petition, acting Solicitor General Jeffrey Wall argued that the petitioners had effectively waived “any challenge to the statutory basis for their convictions” with their guilty pleas in district court, a state of affairs that carried over to the appeals court proceedings. Wall is unlikely to hold onto the job, given that the White House has named Noel Francisco, formerly a partner at Jones Day, as the administration’s pick for the position. Little or nothing has happened since the White House mentioned Francisco, however, so it may that Wall’s is the only name from the Solicitor General’s office the Supreme Court will hear in connection with DeCoster before deciding whether to grant cert.

WLF cites ‘disturbing trend’ in federal cases

In marked contrast to the position staked out by the federal government, the Washington Legal Foundation – no stranger to controversies surrounding federal prosecution of FDA-regulated entities – has written in support of a Supreme Court review, citing a “disturbing trend at the federal level to criminalize normal, everyday business decisions.” WLF argued that the prison sentence “vastly expands the scope of the Park doctrine beyond constitutional limits,” and that should this outcome develop into a trend, “it will become intolerably risky to be an executive in the food and drug industries” in the U.S.

Also on record with a friend-of-the-court brief is the National Association of Criminal Defense Lawyers, but that may not be the last of the organizations that will weigh in on this matter. The Pharmaceutical Research and Manufacturers of America and the Cato Institute both made their opposition to the jail term known as the case made its way through the lower courts, a clear sign that this case has piqued the interest of a wide range of stakeholders.

Companies in the life sciences will certainly want to track this case closely, particularly since the confirmation of Justice Neil Gorsuch to the bench would seem to suggest that the Court would at least be open to the notion that the district court was out of bounds in imposing a jail sentence. There is little to indicate that Gorsuch has a track record in Park doctrine cases, but he has exhibited a willingness to question the practice of judicial deference to the positions staked out by the executive branch. That skepticism on Gorsuch’s part offers some hope that the Court will not simply accept at face value the Solicitor General’s opinion that this case merits no review.

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