– OPiNION –
ROSEMONT, IL — This year’s keynote at the 24th Annual Food Safety Summit was about “food safety culture.” FDA officials Conrad Choiniere and Donald Prater did a stand-up act, reminding the audience of about 800 that “food safety culture” is already on their radar screen. FDA’s “New Era” acknowledges the importance of a “food safety culture”
Further, the Department of Justice’s Consumer Affairs Branch Assistant Director Mathew Lash explained that if a company’s food safety culture includes cooperation during an investigation, it could make a difference in how DOJ processes the case.
Michael Roberson, the director of corporate quality assurance for the South’s Publix Super Markets, provided a case study for a company that makes “food safety culture” part of its daily existence for the 298,000 employee-owners of Publix.
There is a bit of “you’ll know it when you see it” when food safety culture is discussed. But in both the session about getting to know your regulators and the food safety culture keynote presentations, questions were raised about companies that are cooperative during severe investigations and those that are not.
Maybe it’s just “large law firms” as one questioner suggested, or maybe some just “lawyer up.”
But these discussions trigger something in the back of my mind. Then I remembered it was the infamous “Yates Memo.” It addressed “Individual Accountability for Corporate Wrongdoing.” Then Deputy Attorney General Sally Quillian Yates was the author of the 2015 policy memo, which was addressed to all federal government attorneys.
“Fighting corporate fraud and other misconduct is a top priority of the Department of Justice. Our nation’s economy depends on effective enforcement of the civil and criminal laws that protect our financial system and, by extension, all our citizens” begins the Yates memo, which in revised form remains in effect.
The Yates memo went on to discuss how DOJ should pursue corporate wrongdoing. At the time many large law firms sent out client advisory memos, including those representing the food industry. Here were the six major topic areas of the Yates memo:
1. To be eligible for any cooperation credit, corporations must provide to the Department all relevant facts about the individuals involved in corporate misconduct.
2. Both criminal and civil corporate investigations should focus on individuals from the inception of the investigation.
3. Criminal and civil attorneys handling corporate investigations should be in routine communication with one another.
4. Absent extraordinary circumstances, no corporate resolution will provide protection from criminal or civil liability for any individuals.
5. Corporate cases should not be resolved without a clear plan to resolve related individual cases before the statute of limitations expires and declinations as to individuals in such cases must be memorialized.
6. Civil attorneys should consistently focus on individuals as well as the company and evaluate whether to bring suit against an individual based on considerations beyond that individual’s ability to pay.
The major shakeup was charging corporate officials as individuals, and including offenses for which the corporate officials may not personally know about. It’s easy to see how a “food safety culture” could run aground if corporate counsel was defending against DOJ’s tactics.
And we’ve seen them play out. Blue Bell pleaded guilty to misdemeanors and paid millions in fines. Its retired president, however, is charged with a half dozen felonies with his criminal trial set to begin Aug.1. The prosecutions are associated with a listeriosis outbreak that occurred during the same year as the Yates memo.
Also at the keynote session, Joe Stout, founder and general manager of Commercial Food Sanitation LLC was presented with the Distinguished Service Award.
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