The Back Alley Archives

CPSC is trying to warp well-established legal doctrine in its pursuit of Mr. Zucker. In order to hold him personally liable, CPSC would have the court *both* ignore the corporate form for unprecedented reasons *and* trample the traditional understanding of the responsible corporate officer (RCO) doctrine. Millar and Biszko note that the former move “rais[es] questions about whether other individuals involved in product safety decisions—especially those who disagree publicly with initial Commission decisions—could face exposure to personal liability if they resist a voluntary recall request.”

Even more insidious though is the CPSC’s latter effort to morph the responsible corporate officer doctrine into something that it is not and must never become. The RCO doctrine is a criminal liability doctrine that developed in the context of malum in se offenses against the public welfare, such as storing foodstuffs in rat-infested warehouses. Courts held that corporate officers with a responsible relation to such clear and obvious violations could be held criminally responsible for a misdemeanor offense without a showing that they had the requisite mens rea (or guilty state of mind) that a criminal case otherwise demands.

As the CPSC is attempting to wield the doctrine, none of those features apply:

• This is not a criminal case, and thus doctrines of criminal liability are not applicable
• No violation of law has even occurred; to the extent that a regulatory offense were found here, it would be a malum prohibitum offense rather than a malum in se offense
• Selling magnets is not a public welfare offense; it is not a clear and obvious offense, but rather a seemingly acceptable commercial activity
• Mr. Zucker would be at jeopardy for more than a misdemeanor; although criminal charges are not sought, the recall costs that the agency seeks to force him to pay personally might well exceed the misdemeanor fine level acceptable without a mens rea showing
• Mr. Zucker quite obviously did not have the requisite mens rea. He co-operated with the agency’s initial warning label requests and even obtained a letter from the agency’s general counsel allowing him to continue selling. At no point did he sell in the face of a final determination that his product posed a ‘substantial product hazard.’