Overview
(July 20, 2016, Washington, DC) — A jury in Boston today acquitted ex-Acclarent CEO William Facteau and former vice president of sales Patrick Fabian of felony fraud charges brought by the government in an indictment returned in 2015. The jury acquitted the defendants of all 14 felony charges brought by the government. The jury unanimously acquitted both defendants on one count of conspiracy, three counts of wire fraud and 10 counts of felony adulteration and misbranding.
The jury convicted both defendants of 10 misdemeanor counts of misbranding and adulteration under the strict liability provisions of the Food, Drug & Cosmetic Act, which do not require proof of any wrongful intent. The jury specifically found that the product’s labeling was not false or misleading, and that the product in question did not lack adequate directions for use. Proof at trial made clear that no injuries were associated with use of the device, which was widely used by surgeons to successfully treat patients with chronic sinus problems.
Steptoe’s Reid Weingarten, lead lawyer for Mr. Facteau, and Frank Libby of Libby Hoopes, PC, lead lawyer for Mr. Fabian, immediately informed the court that the defendants would move to set aside the misdemeanor charges on multiple grounds.
Following the verdict, Mr. Weingarten said: “I am grateful that the jury exonerated Mr. Facteau of all charges requiring criminal intent and affirmatively concluded that the case did not involve false or misleading statements. It is difficult to understand how someone in America could be convicted of even misdemeanor crimes without a finding of intentional wrongdoing. We will fight vigorously to overturn these few remaining charges and will not rest until Mr. Facteau is completely vindicated.”
Mr. Libby added: “After five years of investigation and a six week trial, the jury flatly rejected the government’s core fraud and conspiracy theories. We’re completely confident that, during the proceedings to come, the remaining ‘no wrongful intent’ misdemeanor counts of conviction will meet the same fate.”
Both counsel stated that future motions would include the lack of due process associated with the non-intent misdemeanor convictions, and the fact that the instructions received by the jury permitted the defendants to be convicted based on truthful, non-misleading statements by sales personnel, in violation of the First Amendment and recent court of appeals decisions.
The government’s investigation of this case began in 2011. The original indictment included 18 felony charges, four of which were dismissed prior to trial.
Along with Mr. Weingarten, the Steptoe DC-based litigation team was led by partner William Hassler.
The case is US v. Facteau et al., case number 1:15-cr-10076, in the US District Court for the District of Massachusetts.
About Steptoe
Steptoe & Johnson LLP is an international law firm widely recognized for vigorous advocacy in complex litigation and arbitration, successful representation of clients before governmental agencies, and creative and practical advice in guiding business transactions. The firm has more than 500 lawyers and other professionals in offices in Beijing, Brussels, Chicago, London, Los Angeles, New York, Palo Alto, Phoenix and Washington. For more information, visit www.steptoe.com.
