Recently, John C. Cruden, DOJ’s Assistant Attorney General in charge of the Environmental and Natural Resources Division (ENRD), which oversees DOJ’s environmental litigation, voiced a heightened commitment to enforcing environmental laws through criminal prosecution.  In the May-June 2016 issue of The Environmental Forum, in a piece presented alongside a separate article entitled “Time for Environmental Crimes,” Cruden emphasized the following:

Without adequate enforcement, our environmental laws have little meaning, and fail to serve their purpose . . . .  I believe criminal prosecutions can and should address and deter egregious conduct that imperils public health and the environment.  The [ENRD] has responded in an exceptional fashion, strategically increasing our criminal enforcement work.

Considering the source, this is a remarkable statement.  ENRD, the division within DOJ tasked with handling diverse environmental and natural resources litigation, primarily brings civil enforcement actions.  Within ENRD, however, is the Environmental Crimes Section (ECS), an office comprised of specialized attorneys who are entirely separate from DOJ’s Criminal Division and who oversee prosecution of environmental criminal statutes.  In comparison with the breadth of civil enforcement responsibilities undertaken by ENRD’s other offices, ECS has had a relatively narrow mandate.  So what does it mean when the head of ENRD, an agency primarily focused on civil litigation, forecasts that ENRD is “increasing” its “criminal enforcement work?”
Continue Reading DOJ’s Increased Focus on Environmental Criminal Cases

On April 29, 2016, Dole Foods Company announced that the Department of Justice (DOJ) had launched an investigation concerning listeria outbreaks at certain Dole plants.  The investigation comes on the heels of a number of high profile DOJ probes into outbreaks of food-related illnesses, most recently Blue Bell Creameries, and continues the DOJ’s recent trend towards aggressive pursuit of food safety violations and criminal charges against corporate executives.

The federal Food, Drug, and Cosmetic Act (FDCA) creates a strict liability criminal offense arising from the introduction of adulterated food into interstate commerce.  The DOJ may elect to pursue misdemeanor or felony charges based on the nature and seriousness of the violation and the scope of the outbreak.  If the outbreak is a first-time offense or is the result of an unintentional violation, then the DOJ is more likely to pursue misdemeanor charges.  If, on the other hand, the company responsible for the outbreak has repeatedly violated the FDCA or has introduced the adulterated food intentionally or knowingly, the DOJ has not hesitated to bring felony charges.  Importantly, both companies and individual executives may face liability for outbreaks, and company executives may be held vicariously liable and face criminal charges even if they were unaware of the contamination.
Continue Reading DOJ’s Focus on Food Safety and Corporate Executives

On March 3, 2016, DOJ Criminal Division’s Assistant Attorney General Leslie Caldwell addressed recent media reports claiming that companies under investigation by DOJ will soon need to certify their full disclosure of certain documents as a prerequisite to obtaining a settlement agreement with the Department.  Caldwell addressed—and dismissed—the rumored certification requirement while speaking on a panel at the American Bar Association’s 30th Annual National Institute on White Collar Crime in San Diego. 
Continue Reading AAG Caldwell Dispels Rumors of “Yates Certification” Requirement