Mass.) (Appellate Brief) Supreme Judicial Court of Massachusetts

COMMONWEALTH, v. LIFE CARE CENTERS OF..., 2010 WL 3612917...

2010 WL 3612917 (Mass.) (Appellate Brief) Supreme Judicial Court of Massachusetts.

COMMONWEALTH, v. LIFE CARE CENTERS OF AMERICA, INC.

No. SJC-10546. February 23, 2010.

Appellant Life Care Centers of America, Inc.'s Reply Brief on Report of Questions of Law Pursuant to Mass. R. Crim. P. 34

By Counsel for the Defendant, Don Howarth (pro hav vice), Suzelle M. Smith (pro hac vice), Howarth & Smith, 523 West Sixth Street, Suite 728, Los Angeles, CA 90014, (213) 955-9400, R. Matthew Rickman (BBO # 637160), Alathea E. Porter (BBO # 661100), LibbyHoopes, P.C., 175 Federal Street, Suite 800, Boston, MA 02110, (617) 338-9300.

*i TABLE OF CONTENTS TABLE OF CASES AND AUTHORITIES ...... ii I. Proper Application of the Doctrine of Respondeat Superior to a Criminal Case Is Not in Dispute ...... 1 A. Beneficial Finance Holds that Only if the Commonwealth Proves individual Employees Committed a 6 Crime Can the Corporate Employer Be Liable ...... B. Merely Negligent Acts May not be Aggregated to Create a Crime ...... 11 II. Proof Of Bad Purpose Is Required Under § 38 ...... 13 III. Fairness Requires Prospective Application If The Court Adopts The Proposed Aggregation Doctrine ... 17 IV. Conclusion ...... 20 CERTIFICATE OF COMPLIANCE ...... 21 CERTIFICATE OF SERVICE ...... 22

*ii TABLE OF CASES AND AUTHORITIES Statutes C.L. c. 265, § 13K(d1/2 ) ...... 16 G.L. c. 265, § 38 (since repealed) ...... 11, 13, 14, 15, 16, 17 Rules Mass. R. Crim. P. 34 ...... 2 Case Law Apprendi v. New Jersey, 530 U.S. 466 (2000) ...... 18 Birbiglia v. St. Vincent's Hospital, 427 Mass. 80 (1998) ...... 4, 19 Bouie v. City of Columbia, 378 U.S. 347 (1964) ...... 19 Brown v. Quinn, 406 Mass. 641 (1990) ...... 15 Clairborne & Hughes Convalescent Ctr., Inc. v. State 15 Department of Health, 88 S.W. 2d 671 (Tenn. Ct. App 1994) ...... Commonwealth v. Angelo Todesca Corp., 446 Mass. 128 8 9, 11 (2006) ...... Commonwealth v. Armand, 411 Mass. 167 (1991) ...... 15, 16 *iii Commonwealth v. Beneficial Fin. Co., 360 Mass. 188 1, 3, 6, 7, 8, 9, 10, 12, 13, 18, 20 (1971) ...... Commonwealth v. Erikson, 74 Mass. App. Ct. 172 (2009) .... 16 Commonwealth v. L.A.L. Corp., 400 Mass. 737 (1987) ...... 9 Commonwealth v. Lauzier, 53 Mass. App. Ct. 626 (2002) .... 15 Commonwealth v. McDowell, 62 Mass, App. Ct. 15 (2004) . 15, 16

Commonwealth v. McMaster, 21 Mass, App. Ct. 722 (Mass. 6 App. Ct. 1986) ...... Commonwealth v. Smith, 17 Mass. App, Ct. 918 (1983) ...... 16 Commonwealth v. Springfield Terminal Ry. Co., No. 13 MICR2008-00395 ...... Commonwealth v. Twitchell, 416 Mass. 114 (1993) ...... 19 Commonwealth v. Welansky, 316 Mass. 383 (1944) ...... 11 First Equity Corp. of Florida v. Standard & Poor's Corp., 4 690 F. Supp. 256 (S.D.N.Y. 1988) ...... *iv Inland Freight Lines v. United States, 191 F.2d 313 1, 2 (10 th Cir. 1951) ...... Lanzetta v. New Jersey, 306 U.S. 451 (1939) ...... 17 Nabob Oil Co. v. United States, 190 F.2d 478 (10 th Cir. 2 1951) ...... Rogers v. Tennessee, 532 U.S. 451 (2001) ...... 19 Town of Marshfield v. City of Springfield, 337 Mass. 633 17 (1958) ...... United States v. Sank of New England, 821 F.2d 844 (1st 11, 12, 19 Cir. 1987) ...... United States v. LBS Bank-New York, Inc., 757 F. Supp. 496 4 (E.D. Pa. 1990) ...... Jury Instructions MCLE Model Jury Instructions for Use In The District 9 Court, Section 4.180 (previously numbered 5.07) Corporate Criminal Responsibility (2009) ...... Other Authorities 2 Wayne R. LaFave, Substantive Criminal Law section 13.5 1 (b) at 387 (2 nd ed. 2003 & 2009 Supp.) ......

*1 I. Proper Application of the Doctrine of Respondeat Superior to a Criminal Case Is Not in Dispute

The Commonwealth spends most of its brief (“CW” pp. 4-31) arguing a proposition that is not in dispute, namely that in Massachusetts, the acts, conduct and intent of employees and agents, within the scope of employment, are imputable to their corporate employer under the principle of respondeat superior, even those which constitute a crime. See Commonwealth v. Beneficial Fin. Co., 360 Mass. 188 (1971). 1 The Commonwealth states:

*2 “[T]he acts, knowledge and intent of each employee of a corporate defendant are imputed to his employer, as long as the employee worked within the scope of his employment regardless of whether all elements of a crime are satisfied as to him.” CW at p. 5.

Life Care agrees. But this does nothing more than restate respondeat superior. It does not mean that non-criminal acts become crimes by a process of collection or “aggregation” where a corporate employer exists. 2

*3 The Commonwealth also asserts: “It follows that a corporate defendant must be seen as performing all acts performed by, knowing all information known by and intending all that is intended by its various employees within the scope of their employment.” 3 CW at p. 5.

If this means that respondeat superior makes the employer responsible for the choices of each employee acting within the scope of employment, it again simply restates basics. It does not, however, mean that the existence of the corporate form somehow transmutes or transforms innocent or merely negligent acts, knowledge or intent into crimes. See Beneficial, 360 Mass. at 254-81. 4

*4 The Commonwealth makes a fundamental legal and logical mistake when, as its “conclusion” alleged to follow from those “premises,” it asserts; “To the extent that that [aggregated but unconnected conduct, acts and intentions] adds up to the commission of a crime, the corporation is liable.” CW at p. 5.

This is not the law of Massachusetts or any other jurisdiction. 5

Unrelated conduct, acts and intentions of *5 separate individuals, none of which constitutes a crime alone, do not become a crime when they are stirred together in a corporate pot. The new law the Commonwealth asks this Court to make is not the law of any jurisdiction nor should it be. The Commonwealth has not cited a single case or persuasive authority where a crime requiring intent or the intent substitutes of recklessness, wantonness, or willfulness, has been charged to a corporation based on uncoordinated, aggregated acts where no individual committed any crime. What the Commonwealth asks this Court to make criminal for the first time is conduct by one or more than one employee when that does not satisfy the elements of manslaughter or the abuse statute. CW at pp. 5-6. The Commonwealth urges this Court to hold that non-criminal knowledge, intent and conduct of any number of employees may be added together to create criminal intent which did not exist in any such employee, and a crime which was not committed by any employee. The Court should reject this request for such amorphous, indeed irrational criminal standards, and the corresponding unlimited and unchecked prosecutorial power inherent in them.

*6 A. Beneficial Finance Holds that Only if the Commonwealth Proves Individual Employees Committed a Crime Can the Corporate Employer Be Liable

The Commonwealth argues that its new corporate crime concocted by “aggregation” of non-crimes “follows naturally” from the landmark decision of Commonwealth v. Beneficial Financial Corporation, 360 Mass. 188 (1971). See CW at p. 8-9. The Commonwealth quotes fragments of sentences from Beneficial, which contort its meaning and holding.

Beneficial does not support the Commonwealth's position either directly, or indirectly, by its reasoning. To the contrary, the Beneficial Court expressly holds that only where individual employees commit crimes can the corporation be liable. The relevant issue there before the Supreme Judicial Court was whether the civil doctrine of respondeat superior should be extended to allow conviction of a corporation for a criminal act committed by an employee, even where the crime was not committed by an officer and director. 6

*7 No Massachusetts case before Beneficial had imposed criminal liability on a corporation when the crime was not committed by an officer or director: “[I]t is fundamental to our criminal jurisprudence that for more serious offences guilt is personal and not vicarious. ‘One is punished for his own blameworthy conduct, not that of others...” Since a corporation is a legal fiction, comprised only cf individuals, it has no existence separate and distinct from those whom it has clothed with authority and commissioned to act for it whether such individuals are directors, officers, shareholders or employees. Thus, the issue is... whether the acts and intent of natural persons, be they officers, directors or employees, can be treated as the acts and intent of the corporation itself.”

Beneficial, 360 Mass. at 265 (emphasis added).

The Beneficial Court found that a corporation could be liable for the criminal acts of employees, even if they were not at the executive level of the corporation, if they were acting within the scope of employment. And, as the Beneficial Court made clear, the sine qua non for corporate criminal liability is proof beyond a reasonable doubt that some employee actually committed a crime. The Court approved the jury instructions given by the trial court and stated:

“(T)he Commonwealth must prove beyond a reasonable doubt that there existed between the guilty individual or individuals and the corporation which is being charged with the conduct of the individuals, such a relationship that the acts and the intent of the individuals *8 were the acts and intent of the corporation. Or, to put it differently, the Commonwealth must prove beyond a reasonable doubt that when the individuals were acting criminally in committing the acts which constitute the crime, and in having the intent required for the crime, the corporation was actually so acting and intending, and therefore is criminally liable... The Commonwealth must prove that the individual for whose conduct it seeks to charge the corporation criminally was placed in a position by the corporation... to act for... the corporation to handle the particular business.. of the corporation in which he was engaged at the time that he committed the criminal act, with power of decision... and that he was acting for... the corporation in the accomplishment of that particular business or operation or project, and that he committed a criminal act while so acting.

The Commonwealth must prove all that beyond a reasonable doubt before you can hold a corporation criminally liable or guilty by reason of the criminal acts or conduct of an individual....”

Beneficial, 360 Mass. at 255 & 273 (internal citations omitted, emphasis added).

This Court in Beneficial set forth the clear standard and limit for imposing criminal liability on a corporation for the acts of its employee agents. The corporation is liable for criminal acts, but only when at least one individual employee is guilty of a crime. Id. 7 AS the Beneficial Court stated in *9 justifying its imposition of criminal liability on a corporation for the criminal acts of non-management employees, the corporation, a legal fiction, has no “intent” and commits no “acts” except those of individuals. When an individual, within his scope of authority, has the necessary intent and carries it out so that a crime is committed, the corporation is docmed liable. But Beneficial, dealing with multiple acts of numerous employees did not hold, and could not *10 have consistently held, given its extensive reasoning on the issue of vicarious liability, that the corporation does have a “mind” which is distinct from, and can form a fictional intent not present in, any of its employees, so that a new crime can emerge from the aggregation of the innocent or negligent knowledge, conduct and intent of its multiple employees. 8 It is the intent, acts and criminal conduct of individuals, which is imputed, and under Beneficial the corporation is vicariously liable for such criminal conduct. And since this is the limit set by the Court, the converse is also true - if no individual acting within the scope of employment committed a crime, the fictional *11 corporation cannot be guilty vicariously of a non-existent crime, Id.

B. Merely Negligent Acts May not be Aggregated to Create a Crime

As this Court has held, “[c]learly, a corporation cannot be criminally liable for acts of employee negligence that are not criminal.” Todesca, 446 Mass. at 136. And, further, “conduct does not become criminal until it passes the borders of negligence and gross negligence and enters the domain of wanton or reckless.” Commonwealth v. Welansky, 31.6 Mass. 383, 400 (1944)

In the face of controlling authority, the Commonwealth asserts that under its new collective or aggregate intent theory, corporations will not be “prosecuted for mere negligence.” CW at p. 31. The Commonwealth's justification for this statement is that it will still have to prove “collective recklessness” for manslaughter and “collective intent” under G.L. c. 265 § 38 (“§ 38”). See id. The Commonwealth cites United States v. Bank of New England, 821 F. 2d 844 (1st Cir, 1987), in support of its statements. The Bank of New England case is discussed in Life Care's opening brief at length. See *12 Appellant's Opening Brief at pp. 24-26. Neither Bank of New England, nor the cases it cites (also cited by the Commonwealth in its brief) hold that individual acts of negligence can be aggregated and thereby transformed into wantonness, recklessness or willful intent. The Commonwealth admits the Bank of New England holding concerning collective knowledge does not relieve the government of proving specific intent by allowing for proof of mere negligence. See CW at p. 32. In Bank of New England, an individual employee knew and intended to violate the banking act at issue. See Bank of New England, 821 F.2d at 855-6.

But here the Commonwealth's new aggregation doctrine would go beyond Bank of New England, and any other case, by allowing negligent acts to become something different, by aggregation, due to the corporate storm. If the Commonwealth can show

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 COMMONWEALTH, v. LIFE CARE CENTERS OF..., 2010 WL 3612917... reckless, wanton or intentional conduct by an employee within the scope - and at whatever level - the corporation does not escape liability due to its form. See Beneficial, 360 Mass. at 272-81. If a corporate employee designed or employed a policy keeping other employees ignorant to provide plausible deniability or willful blindness to risks of substantial harm that *13 were foreseeable, such individual intent, conduct and knowledge would be a basis for criminal liability. See id. It is precisely to avoid having to prove that anyone acted recklessly, wantonly or intentionally that the Commonwealth seeks this legal sea change. 9

Despite its protestations to the contrary, the Commonwealth seeks to take individual, merely negligent acts or states of mind, and use the sum of these unrelated factors to prove an “aggregated corporate intent” which is entirely different in nature than its merely negligent or innocent parts. The law does not so provide and no law should so provide.

II. Proof Of Bad Purpose Is Required Under § 38

In the lower court, the Commonwealth conceded in *14 pleadings and oral argument that Life Care did not intend any harm to Ms. McCauley and if intent to cause harm, not just the intent to act, is required under now repealed § 38, then Count II fails. 10

Aggregated innocent, accidental or even careless mind sets cannot be stirred up in a pot and transformed into specific intent to cause harmful consequences for all the reasons set forth above in Section I above. Additionally, the Commonwealth should be held to its admissions below, and not be permitted to raise for the first time on appeal the idea that aggregation can suffice for the specific intent to cause harm, which contradicts its earlier position that it had to show Nurse Edwards committed this crime. 11

*15 §38 violations under the old statute required not just intent to act but intent for the harmful consequences. The statute's language and well established rules of construction require proof of both knowing and willful abuse, not simply “willful” as the Commonwealth argues. See Commonwealth v. McDowell, 62 Mass. App. Ct. 15, 23 (2004) (“In construing a statute... no word should be considered superfluous.”). The Commonwealth cites no criminal case, and there is none, holding that where a statute uses “knowing and willful.” this means only intending the acts and not consequences. 12 The Commonwealth does cite this Court in Armand verbatim: “willfulness requires a showing that the defendant intended the conduct and its harmful consequences...” Commonwealth v. Armand, 411 Mass. 167, 170 (1991). But since the *16 Commonwealth does not like this Court's Armand holding, it says the Court did not really mean what it said. Cw at p. 35. 13 The Commonwealth's argument is that with Section 38, the legislature said “willful” meaning “reckless” and “knowing” meaning “reckless,” so § 38 means that “reckless and reckless” conduct is prohibited. See id.

Massachusetts law draws a distinction between “willful” and “wanton and reckless” and they are not the same words or concepts. Commonwealth v. Smith, 17 Mass. App. Ct. 918, 920 (1.983) (reversible error to equate willful conduct with wanton and reckless conduct); see also Commonwealth v. Erikson, 74 Mass. App. Ct. 172, 176 (2009) (word “knowingly” signals heightened intent requirement) And even more important, the successor abuse statute now in effect, expressly requires only wanton and reckless conduct for a violation. 14 The change in the language from the *17 old statute to the new one demonstrates a deliberate, Legislative decision to change and lessen the required intent, “Presumably some change of meaning was intended by amendment changing the language of the statute.' ” Town of Marshfield v. City of Springfield, 337 Mass. 633, 637-38 (1958); see also Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939) By any rational reading, repealed § 38 required intentional acts and intentional consequences. The Commonwealth admits Life Care had no such intent and Count II should be dismissed.

III. Fairness Requires Prospective Application If The Court Adopts The Proposed Aggregation Doctrine

For the state's action to have authenticity and public acceptance, fairness by the state in establishing what is criminal for each individual and corporation is required. This concept of “fairness” is the simple emotional and ethical quality embodied in the Due Process clause, federal and state, which trumps all legalisms historically designed to advance various forms of political

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 COMMONWEALTH, v. LIFE CARE CENTERS OF..., 2010 WL 3612917... self-interest, whether by the Crown, certain individuals or the executive and *18 legislative branches. See Apprendi v. New Jersey, 530 U.S. 466, 476-477 (2000).

One cannot avoid forbidden conduct if one docs not know in advance what is forbidden. In an attempt to address that concern, the Commonwealth suggests that its proposed ‘aggregation doctrine” is no more than a “mere refinement” for corporations doing business in Massachusetts. The “refinement” here is as dramatic as if the burden of proof was reduced from beyond a reasonable doubt to a preponderance of the evidence. The Commonwealth implicitly acknowledges as much by asserting that its proposed new doctrine, allowing more prosecutorial power for punishing corporations, would “create” where they do not allegedly exist now, stronger incentives for better elder care. But imposing corporate death sentences for accidental conduct, which becomes reckless or intentional due to aggregation not individual intent, is the opposite of the reasoned rule set forth in Beneficial, its progeny and the current model jury instructions, which are over twenty years old.

Further, the Commonwealth suggests that its proposed doctrine should have been expected. This is frankly preposterous when this Court rejected *19 aggregation in the civil context for a cause of action requiring specific intent. See Birbilgia v. St. Vincent Hospital, 427 Mass. 80, 87 n. 5 (1998) (decided ten years after Bank of Now England stating “specific intent... cannot be established by aggregating the knowledge of all the [entity's] employees acting within the scope of their authority.”).

The Commonwealth argues that Bouie/Rogers 15 should not apply because its proposed “aggregation” doctrine has never been precluded for use in a criminal case by a Massachusetts appellate court. The doctrine has never been precluded because no Massachusetts prosecutor since the founding of the colony has ever before tried to assert that such a doctrine should apply - or an appeal would have followed. The Commonwealth's very argument establishes the novelty of its claim and hence the unfairness in retroactive application is without peradventure. The Commonwealth cites Commonwealth v. Twitchell, 416 Mass. 114 (1993), claiming that the Bouie/Rogers doctrine should not apply. But Twitchell states; “We have applied the doctrine of the Bouie case where we have changed or *20 eliminated a longstanding common law rule.” CW at p. 50, citing Twitchell, at. 124, n. 12). It would be against public policy for this Court to change the longstanding rule of law that Beneficial established, which. has been followed in Massachusetts for decades, requiring an individual criminal act in order for a corporation to be held vicariously liable. But to do so retrospectively would be contrary to equally long standing rules of fairness and due process. Id.

IV. Conclusion

For the foregoing reasons, and as set forth in Life Care's Opening Brief, this Court should affirm the trial court's ruling rejecting the theory of criminal collective knowledge/intent.

Footnotes 1 The Commonwealth also cites numerous cases and articles for the proposition that Beneficial was a “landmark” case. See CW at pp. 8-9, fn. 5. Life Care agrees that Beneficial effected a radical change in corporate criminal law, holding that a corporation could be vicariously liable for the criminal acts of non-management level employees. None of the cases or articles cited by the Commonwealth support the proposition that aggregation of non-criminal knowledge, intent and conduct can be transformed into criminal conduct merely due to the corporate form. See, e.g., 2 Wayne R. LaFave, Substantive Criminal Law section 13.5 (b) at 387 (2 nd ed. 2003 & 2009 Supp.) cited by the Commonwealth extensively in its brief, which states: “Rather, the tort principle of respondeat superior is applied without question, so that the crimes of any employee - no matter what his position in the corporate hierarchy - become the crimes of the corporation. And if the crimes require ‘intent,’ ‘knowledge,’ or some other mental state, it is often said that such a mental state by some ‘subordinate, even menial, employees' suffices.” Id. (emphasis added). The Wayne article cites Inland Freight Liens v. United States, 191 F.2d 313 (10 th Cir. 1951). The Commonwealth claims that Inland supports the notion that “an inference of deliberateness ‘may be drawn from an inference of acts, conduct and circumstances.’ CW at p. 43. However, Inland is discussing this idea in the context of the conduct of individuals acting on behalf of the corporation in concert. And the Tenth Circuit reversed the jury verdict for improper instructions stating: “In order to warrant a conviction under the statute the false logs must have been knowingly and wilfully kept and preserved as records of the company. And willful or wilfully as used means the keeping of them

deliberately, voluntarily, or intentionally as distinguished from inadvertence or ordinary negligence. Nabob Oil Co. v. United States, 10 Cir., 190 F.2d 478.” Id. at 316. Employees keep false logs, not some fictional collective mind. 2 The Commonwealth submitted to the trial court in its Proposed Form of Report of Questions of Law Pursuant to Mass R. Crim. P. 34, dated March 12, 2009, the issues which the trial court should report. The issues as stated by the Commonwealth were almost identical to the ones the trial court indeed reported and which were allowed by this Court. The Commonwealth has now abandoned its language of “collective knowledge and intent” when setting out the issues presented in its Brief and has used the term “aggregated.” Whatever it is called, there is no law from any jurisdiction holding that separate non-criminal conduct, knowledge and intent of different employees may be “aggregated” to create a crime by virtue of the corporate form of the employer. 3 The Commonwealth is incorrect in its statement to the Court that “Defendant takes the view that conduct, knowledge and intent, are not imputed to a corporate employer unless and until all elements of crime are satisfied as to a given employee.” CW at p. 5. The agents of the corporation act for the corporation, that is the essence of respondeat superior, and it has been applied in Massachusetts to criminal conduct. See e.g., Beneficial. However, the law of Massachusetts holds that a crime is not committed by a corporation, unless an individual employee has committed a crime. Id. 4 The Commonwealth cites to a number of civil cases, which stand for the proposition that employee knowledge and acts of agents may be imputed to the corporation. See e.g., CW at p. 14. The proposition that knowledge and conduct may be imputed in a civil case where there is no intent requirement is not contested. However, despite the Commonwealth's assertions to the contrary, Massachusetts has rejected the concept that intent can be manufactured by collecting or aggregating what is not in fact intent, even in civil cases where such is required for the claim, as shown in Birbiglia v. St. Vincent's Hospital. See Birbiglia v. St. Vincent's Hospital, 427 Mass. 80, 87, n. 5 (1998). 5 The Commonwealth cites for example to United States v. LBS Bank-N.Y., Inc., 757 F. Supp. 496 (E.D. Pa. 1990) and the cases cited therein repeatedly in its Brief. See CW at pp. 16, 17, 23 and 45. However, LBS Bank expressly rejects the concept that intent can be created from “aggregation.” “Although knowledge possessed by employees is aggregated so that a corporate defendant is considered to have acquired the collective knowledge of its employees, specific intent cannot be aggregated similarly.” See First Equity Corp. v. Standard & Poor's Corp., 690 F.Supp. 256, 260 (S.D.N.Y. 1988) (“A corporation can be held to have a particular state of mind only when that state of mind is possessed by a single individual.”) (internal citations omitted). “Thus, in order for the verdict against LBS to stand, there must be evidence from which a jury could reasonably determine that at least one agent of LBS had the specific intent to join the conspiracy to defraud the government.” LBS Bank-N.Y., Inc., 757 F. Supp. at 501, n. 7. 6 Under Massachusetts law, individual employers cannot be held liable for the unauthorized crimes of their employees, as personal criminal liability cannot be vicarious. See id.; Commonwealth v. McMaster, 21 Mass. App. Ct. 722, 731 (Mass. App. Ct. 1986). 7 The Commonwealth seeks to diminish the significance of Commonwealth v. Angelo Todesca Corp., 446 128 (2006), which follows Beneficial, also requiring an individual criminal act in order to convict a corporation, by claiming Todesca's language should “not be taken literally.” CW at p. 13. The Commonwealth states that in Todesca an individual committed a criminal act in itself sufficient to convict the corporate employer, and thus, the Todesca Court did not have to consider aggregation; and concludes that Todesca did not intend any “substantive refinement of the law as expressed in Beneficial Finance.” Id. In fact, Beneficial, as quoted at length above, uses precisely the same language as Todesca, which quotes Beneficial's language requiring an individual criminal act. And in Beneficial, multiple employees engaged into bribery, some charged, some not. In Todesca, more than one employee's conduct was also at issue. Todesca and Beneficial are clear: an individual must have committed a crime for the corporation to be liable. Todesca did not substantively refine Beneficial, it adopted its holding verbatim. Finally, the Commonwealth demonstrates how far out of the mainstream its position is by claiming that the model jury instructions based on Beneficial, Todesca and Commonwealth v. L.A.L. Corp., 400 Mass. 737 (1987) (also stating that an individual must commit a crime in order for a corporation to be liable), which have been in use for twenty years by the Commonwealth, are simply wrong. See Model Jury Instructions for Use in the District Court Section 4.180 (previously numbered 5.07) (2009) and CW at p.13, n. 12. 8 By the Commonwealth's proposed rule of law, it might even logically follow that a corporation could argue its innocence from admitted crimes of individual employees acting within the scope of employment. After all, the recipe the Commonwealth urges would point to a new, fictional mind and intent which would also have to reflect the collected, aggregated and overwhelming exculpatory intents and conduct of others folded in from the corporate hierocracy in opposition to the isolated “bad apple.” There is no reason a new collective fictional mind, as contemplated by the Commonwealth in this bold new world to which it invites the Court, would absorb only that which is adverse and would reject the countervailing benefit of redemptive input flowing Loward it. See CW at p. 11 (“the corporation is charged with the sum total of all such conduct, knowledge arid intent...” (emphasis added)). Indeed, in this very case, the Commonwealth brought a motion in limine to preclude all evidence of the good intent, acts or character of Life Care. 9 The Commonwealth refers to a recent trial court decision, Commonwealth v. Springfield Terminal Ry. Co., No. MICR2008-00395, on appeal, and claims that the trial judge instructed the jury on collective knowledge. CW at p. 11. To the extent the jury was instructed both that it had to find an individual committed a crime and that it did not due to “collective knowledge,” such instructions

are inherently contradictory, as the trial court in this Life Care case found. (Appendix 361.} To the extent that the Springfield jury found that no individual employee committed a crime, but the negligent or innocent acts of all of the rallroads employees could be aggregated to form criminal intent due to corporate form, this is exactly the error that Justice Connors identified arid avoided. Id. 10 AAG HOFFMAN: “A few points which are probably self-evident ... [C]learly, there is no evidence and the Commonwealth does not content [sic] that Nurse Edwards intended to harm Julie McCauley.” (Appendix 167.) “Gayle Edwards did not intent to cause injury to Julia McCauley...” Commonwealth's Memorandum in Opposition to Defendant's Motion to Reconsider Decision and Order on Motion to Dismiss, dated Nov. 11, 2008, at 2. The only Life Care employee identified with particular events in the Bill of Particulars is Nurse Edwards. 11 The Commonwealth below argued that Section 38 required only wanton and reckless conduct not specific intent to harm, and that Nurse Edwards acted reckless. (Appendix 146). Accidental conduct is, at worst, negligent conduct. Non-accidental conduct is either reckless or the specific consequences are intended. CW at p. 35. “[L]itigants are estopped from reversing their earlier positions.” Brown v. Quinn, 406 Mass. 641, 646 (1990); see also Commonwealth v. Lauzier, 53 Mass. App. Ct. 626, 633 (2002) (“A party ‘is not permitted to raise an issue before the trial court on a specific ground, and then to present that issue to [the reviewing] court on a different ground.’ ”) 12 Clairborne & Hughes Convalescent Ctr., Inc. v. State Department of Health, 88 S.W. 2d 671 (Tenn. Ct. App 1994), is quoted by the Commonwealth as: “construing word ‘willful’ ... to mean... ‘intending the result which actually comes to pass....' ” CW at p. 36. 13 In Commonwealth v. McDowell, 62 Mass. App. Ct. 626, 634 (2002), the Commonwealth argued on appeal the reverse of its position here. In that case, it argued that willful conduct could not also be wanton conduct. 14 § 38 was repealed and replaced by G.L. c. 265, §13K(??), which lowered the requisite intent to wanton or reckless conduct. See G.L. c. 265, § 13K (??) (“Whoever, being a caretaker of an elder, wantonly or recklessly commits or permits another to commit abuse, neglect or mistreatment upon such elder, shall be punished...”). 15 See Bouie v. City of Columbia, 378 U.S. 347 (1964) and Rogers v. Tennessee, 532 U.S. 451 (2001).