Boar’s Head Executives and Employees Need to Lawyer Up.

As I am writing this (3:37 a.m. EST, 8/30/24), a tragedy is unfolding across America. Nine people have died after consuming Boar’s Head products—more may.  57 people have reportedly become sick in 18 states—more will. The illness striking these people down is the result of meat contaminated by Listeria bacteria. It can take up to ten weeks for symptoms of that illness to develop.

 https://www.cdc.gov/media/releases/2024/s0828-listeria-outbreak-deli-meats.html

Boar’s Head’s C-Suite has already met with their outside counsel to address the best way to address the host of problems the company faces.  I imagine that these are good people whose primary concern is doing everything possible to prevent anyone else from being harmed.

Few Americans were aware of the problem until yesterday when the press reported the deaths and illnesses. Indeed, yesterday afternoon I went to the grocery store and purchased a half pound of Boar’s Head Honey Maple Ham. I offered a slice to my two-year-old grandson. He shook his head no. You can imagine what went through my mind when I heard what was happening. I had eaten the slice, but that product was not on the recall list (at least at that time).

Food plants are regularly inspected by federal or state officials. The products recalled all came from one plant in Jarratt Virginia. That plant had received warnings 69 times for deficiencies in record keeping and cleanliness. You can read the non-compliance reports at

 https://www.scribd.com/document/763954974/USDA-FOIA-records-requested-by-Alexander-Tin. I won’t repeat what they say but they are pretty disgusting.

Boar’s Head claims that these were all addressed when brought to their attention.

As a USDA-inspected food producer, the agency has inspectors in our Jarratt, Virginia plant every day and if at any time inspectors identify something that needs to be addressed, our team does so immediately, as was the case with each and every issue raised by USDA in this report," company spokesperson Elizabeth Ward said.

The USDA agrees:

The agency spokesperson said that Boar's Head "implemented corrective actions in keeping with FSIS regulations."

https://www.cbsnews.com/news/bugs-mold-mildew-inspection-Boar’s-head-plant-listeria/

But either the problems were addressed too late, not sufficiently dealt with, or there were other problems that inspectors failed to uncover. No matter, Boar’s Head is responsible. AND, these problems should never have occurred in the first place.

Who knows how much Boar’s Head will have to pay in damages (and attorney fees)? Who TF cares. But the executives who were aware of these warnings and the employees who failed to ensure that the plant was in pristine condition could face serious state and federal criminal charges. And the sooner they understand that cold, hard fact, the better off they will be.

This should be obvious. But right now, they may not understand the jeopardy they are in.

Management will likely have told them that the company is cooperating with federal officials and that federal officials want to speak to them. Management undoubtedly told them that lawyers representing the company wanted to interview them, that they were required to answer counsel's questions, and that if they refused, they would be disciplined or fired.

Employees need to understand that everything they say to the company's attorneys will almost certainly be disclosed to federal officials, that nothing they say is protected by the attorney-client privilege, and that if the government decides to charge them with a crime, whatever they tell the company’s lawyers will be used by prosecutors to put them in jail. Again, cold, hard facts.

Employees who had any knowledge of the conditions of the plant, who had any involvement in decisions concerning the plant, who were responsible for maintaining the plant should not speak to anyone, whether it be from the company, the government, or the press without first speaking to a lawyer, and not just any lawyer, but to a lawyer who has experience representing individuals accused of committing federal crimes.

If an employee has not already spoken to the company’s lawyers or federal agents, they should put off any such interviews until they have spoken to a lawyer who has federal criminal experience. Even if they have already spoken to counsel for the company or federal investigators, they need to speak to an attorney. Statements they made initially may not have harmed them, but future statements might.

This is not rocket science.

Here’s what is. High-level executives in the chain of command over management of the plant need to retain their own defense counsel even if they relied on subordinates to take care of any safety problems.

This is because, while they have no criminal exposure for anyone getting sick or dying, they may be subject to criminal prosecution for lesser federal offenses under the Federal Food and Drug Act. This is because under the “responsible corporate officer doctrine,” an executive can be held accountable “because of the responsibility and authority of his position, for the conditions which gave rise to the charges against him.” This is a near-strict liability standard that has been upheld by the Supreme Court of the United States in a case called United States v. Park, 421 U.S. 658, 675 (1975). Look it up. https://supreme.justia.com/cases/federal/us/421/658/

Final thoughts. In a few hours, I will be taking my grandson to preschool. And I will thank God that nothing happened to him and say a prayer for the families of those who have died and are sick. But there are times when innocent people are crushed by the wheels of justice. And the families of those responsible for this catastrophe will also suffer (emotionally and financially) when their loved ones are punished. They also need to protect themselves.