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First Wrongful Death Lawsuit Filed in Listeria Outbreak Linked to Caramel Apples

The first wrongful death lawsuit has been filed in California against Safeway Inc. over those commercially produced and prepackaged caramel apples now the subject of a 10-state Listeria outbreak responsible for five deaths so far.

The wrongful death action naming Safeway Inc. as the defendant was filed by James Raymond Frey on behalf of his late wife, Shirlee Jean Frey, 81, and her estate. The lawsuit claims she was a victim of the deadly outbreak. She and Mr. Frey, 87, were both longtime residents of California.

The Centers for Disease Control and Prevention (CDC) reports the 10-state outbreak of a genetically indistinguishable strain of the Listeria pathogen had infected 29 people as of Monday, Dec. 22, and all have required hospitalization.

States with illnesses associated with the outbreak strain are: Arizona (4), California (1), Minnesota (4), Missouri (5), New Mexico (5), North Carolina (1), Texas (4), Utah (1) Washington (1), and Wisconsin (3).

CDC’s investigation has found that the packaged caramel apples are the mostly likely source of the Listeria contamination. The agency reports that state and local health officials who have interviewed 18 of the sickened individuals say 83 percent remembered eating the suspect caramel apples.

The investigation is not over. “At this time, no illnesses related to this outbreak have been linked to apples that are not caramel-coated and not prepackaged or to caramel candy,” states the complaint filed Monday in California Superior Court in Santa Clara County.

Lawyers for Mr. Frey also stated in the complaint that CDC is working to identify specific brands that produced and packaged the caramel apples.

In the meantime, attorneys Harry Stern of San Francisco’s Rains Lucia Stern and William D. Marler of Marler Clark, the national food-safety law firm based in Seattle, say that CDC has warned the public not to eat any caramel apples. This warning extends to plain caramel apples and those with nuts or other toppings. (Marler Clark also underwrites Food Safety News.)

The wrongful death lawsuit seeks a jury trial for unspecified financial damages plus attorneys’ fees. Among its causes of action is a claim of “strict liability” that a Safeway ready-to-eat product tainted with the bacteria was sold to a customer. “Strict liability” means that a company is responsible whether or not it knew about the problem.

Meanwhile, it was reported Monday that Safeway had removed the caramel apples from its shelves.

“We are aware of the issue regarding caramel apples and have proactively removed the product from sale in our stores,” said Brian Dowling, the company’s vice president of public affairs, adding, “However, we are currently not aware of any illness tied to items purchased at our stores.”

Listeria is one of the more deadly pathogens. The last Listeria outbreak causing multiple deaths came three years ago when Colorado-grown cantaloupe was contaminated with the bacteria, causing three dozen deaths. The so-called “opportunistic pathogen” is a significant danger to the elderly, pregnant woman, and others with compromised immune systems.

Food Safety News

First Wrongful Death Lawsuit Filed in Listeria Outbreak Linked to Caramel Apples

The first wrongful death lawsuit has been filed in California against Safeway Inc. over those commercially produced and prepackaged caramel apples now the subject of a 10-state Listeria outbreak responsible for five deaths so far.

The wrongful death action naming Safeway Inc. as the defendant was filed by James Raymond Frey on behalf of his late wife, Shirlee Jean Frey, 81, and her estate. The lawsuit claims she was a victim of the deadly outbreak. She and Mr. Frey, 87, were both longtime residents of California.

The Centers for Disease Control and Prevention (CDC) reports the 10-state outbreak of a genetically indistinguishable strain of the Listeria pathogen had infected 29 people as of Monday, Dec. 22, and all have required hospitalization.

States with illnesses associated with the outbreak strain are: Arizona (4), California (1), Minnesota (4), Missouri (5), New Mexico (5), North Carolina (1), Texas (4), Utah (1) Washington (1), and Wisconsin (3).

CDC’s investigation has found that the packaged caramel apples are the mostly likely source of the Listeria contamination. The agency reports that state and local health officials who have interviewed 18 of the sickened individuals say 83 percent remembered eating the suspect caramel apples.

The investigation is not over. “At this time, no illnesses related to this outbreak have been linked to apples that are not caramel-coated and not prepackaged or to caramel candy,” states the complaint filed Monday in California Superior Court in Santa Clara County.

Lawyers for Mr. Frey also stated in the complaint that CDC is working to identify specific brands that produced and packaged the caramel apples.

In the meantime, attorneys Harry Stern of San Francisco’s Rains Lucia Stern and William D. Marler of Marler Clark, the national food-safety law firm based in Seattle, say that CDC has warned the public not to eat any caramel apples. This warning extends to plain caramel apples and those with nuts or other toppings. (Marler Clark also underwrites Food Safety News.)

The wrongful death lawsuit seeks a jury trial for unspecified financial damages plus attorneys’ fees. Among its causes of action is a claim of “strict liability” that a Safeway ready-to-eat product tainted with the bacteria was sold to a customer. “Strict liability” means that a company is responsible whether or not it knew about the problem.

Meanwhile, it was reported Monday that Safeway had removed the caramel apples from its shelves.

“We are aware of the issue regarding caramel apples and have proactively removed the product from sale in our stores,” said Brian Dowling, the company’s vice president of public affairs, adding, “However, we are currently not aware of any illness tied to items purchased at our stores.”

Listeria is one of the more deadly pathogens. The last Listeria outbreak causing multiple deaths came three years ago when Colorado-grown cantaloupe was contaminated with the bacteria, causing three dozen deaths. The so-called “opportunistic pathogen” is a significant danger to the elderly, pregnant woman, and others with compromised immune systems.

Food Safety News

Lawsuit Filed Against Navitas Naturals Over Recalled Sprouted Chia Seed Powder

A Colorado woman who was hospitalized with a Salmonella Oranienburg infection linked to the nationwide recall of sprouted chia seed powder has filed a lawsuit against Navitas Naturals of Novato, CA, which manufactures and sells the product.

Carolyn Marie Shirley of Fort Collins, CO, is being represented by Marler Clark, the Seattle-based food safety law firm, and by co-counsel John Riley of Montgomery Little & Soran, PC, of Greenwood Village, CO. (Bill Marler of Marler Clark is the publisher of Food Safety News.)

“Many people think that healthy foods are not susceptible to Salmonella outbreaks, but that is just not true,” said Marler, who has been working to help improve food safety standards since representing victims of the Jack in the Box E. coli outbreak in the early 1990s. “Healthy foods are just as prone to Salmonella and E. coli as milk and eggs,” he added.

Shirley is one of at least 65 people in the U.S. and Canada who have been sickened by several brands of the powdered chia seed product, which were recently been recalled in both countries. She became ill on or about March 14, 2014, after consuming Navitas Naturals chia seed powder purchased at her local Sprouts Farmer’s Market, which was subject to the recent recall.

Soon after consuming the chia seed powder, Shirley began began suffering from a gastrointestinal illness. Her condition worsened daily until she required hospitalization. While hospitalized, she tested positive for Salmonella Oranienburg. The main symptoms of Salmonella infection include fever, diarrhea, nausea, vomiting and abdominal pain. At the time her complaint was filed against Navitas Naturals on Thursday, she was still recovering from the Salmonella infection.

Salmonella is transmitted by food, water, or surfaces that have been contaminated with the feces of an infected animal or person. Many animals carry Salmonella, yet do not get sick. Salmonella can also be found in unpasteurized egg and milk products. It is commonly transmitted via the fecal-oral route from one infected person to another. Symptoms (which typically develop six to 72 hours after infection) may be mild, and an infected person can continue to carry Salmonella for weeks after symptoms have subsided.

The best ways to prevent the spread of this illness are to avoid preparing food for others while ill, thoroughly cooking meat and egg products, not consuming unpasteurized eggs and milk products, and washing hands, especially after using the bathroom and before handling or preparing food.

Food Safety News

FDA Fights to Have GRAS Lawsuit Dismissed

The U.S. Food and Drug Administration has filed a motion to dismiss a lawsuit against them regarding a proposed rule on substances generally recognized as safe (GRAS). The 46-page motion, dated May 14, 2014, was filed with the U.S. District Court for the District of Columbia.

The Center for Food Safety (CFS) suit filed in February calls on the agency to vacate its never-finalized rule from 1997, which replaces the traditional petitioning process for a manufacturer seeking GRAS status for an additive, with a “procedure whereby any person may notify FDA of a determination that a particular use of a substance is GRAS.”

“Although Plaintiff notes that years have passed since the issuance of the proposal and acknowledges, as it must, that FDA has not actually ‘promulgate[d] a final rule,’” FDA states in the memorandum.

The arguments for dismissal FDA puts forward are that CFS has not identified any member “who has actually suffered this clearly speculative injury” and that “the proposed rule does not cause the alleged injuries from consumption of food substances.”

In addition, the agency argues that the rule is not “final agency action” and therefore is “not subject to judicial review.”

The document also states that FDA plans to clear the final rule by July 2016.

Food Safety News

Shareholder lawsuit questions Safeway-Albertsons merger

On behalf of shareholders of Safeway Inc., a class action lawsuit has been filed against Safeway, its board of directors, Albertson’s LLC, Saturn Acquisition Merger Sub Inc. and Cerberus Capital Management L.P. In March, Safeway and Albertsons announced a $ 9 billion merger agreement that was unanimously approved by Safeway’s board of directors. According to a statement from shareholder rights attorneys at Robbins Arroyo LLP, which will represent the Safeway shareholders, “Omitted and/or misrepresented information is believed to be material to Safeway shareholders’ ability to make an informed decision whether to approve the proposed transaction.”

The complaint arises out of a March 6 press release announcing that Safeway had entered into the definitive merger agreement with Albertson’s, pursuant to which Safeway shareholders would receive, for each Safeway share they own, $ 32.50 in cash and the right to receive pro-rata distributions of net proceeds from primarily non-core assets, estimated to be worth $ 3.65 per share. The complaint seeks injunctive relief on behalf of shareholders of Safeway plaintiff and all other similarly situated shareholders of Safeway as of March 6.

According to the Robbins Arroyo satement, Safeway shareholders allege that certain of the defendants, in connection with the proposed transaction, breached or aided and abetted the other defendants’ breaches of their duties and obligations owed to Safeway shareholders. The complaint further alleges that, in an attempt to secure shareholder approval of the proposed transaction, the defendants filed a materially false and misleading preliminary proxy statement on Schedule 14A with the U.S. SEC in violation of the Exchange Act and their duties of candor and full disclosure.

The lawsuit claims there were violations of sections of the U.S. Securities & Exchange Act of 1934 related to shareholder approval of executive compensation and liability to contemporaneous traders for insider trading, as well as a U.S. Securities & Exchange Commission rule about false or misleading statements.

The proposed merger would join more than 2,400 stores, something the national consumer group Food & Water Watch has taken issue with. The group estimated that increased retail grocery concentration in the markets where the two chains currently compete could increase consumer grocery prices between $ 900 million and $ 2 billion every year. The group also suggested that the merger could harm farmers that are selling into Safeway’s ‘locally grown’ program.

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US (CA): UC Davis asks for strawberry commission lawsuit to be dismissed

TGF-FruitImageUS (CA): UC Davis asks for strawberry commission lawsuit to be dismissedThe University of California, Davis, has filed a motion with the Alameda County Superior Court this week asking that the lawsuit filed against the university by the California Strawberry Commission be dismissed.

“We continue to be disappointed with the actions of the commission and its pursuit of a meritless lawsuit,” said Chancellor Linda P.B. Katehi. “The strawberry breeding program at UC Davis is the pre-eminent public breeding program in the world today and the only public breeding program in the state. We are committed to maintaining that status for years to come.”

The strawberry breeding program, housed within the College of Agricultural and Environmental Sciences, is focused on developing the strawberry germplasm in the interests of advancing agricultural methods. Consistent with UC Davis’ land-grant mission, the program includes fundamental and applied research as well as plant improvement.

The college’s new dean, Helene Dillard, is also meeting with legislators at the state capitol in Sacramento this week to reaffirm the university’s commitment to the program and address misconceptions set forth in the lawsuit.

California Strawberry Commission

Commission communications director Carolyn O’Donnell said the commission has been trying to resolve issues with the university for several years.

“For the past five years, commission members and staff have met with the university administration to discuss ongoing concerns regarding the management, oversight and long-term viability of the public strawberry breeding program,” according to a statement from the commission.

“During this time, there was no meaningful movement regarding any of these issues. The commission filed this lawsuit as a last resort to protect the public strawberry breeding program.”

O’Donnell said the university breeding program is a “critical” industry partner and the strawberry commission has contributed to it since 1955. She said the commission’s members have given the school more than $ 18 million in the past 25 years.

Among the allegations in its civil suit, the commission says growers are no longer receiving strawberry germplasm specifically developed for them. The commission wants the court to stop UC-Davis from allowing two scientists to control and profit from research and cultivars commission members paid for already.

- See more at: http://www.thepacker.com/fruit-vegetable-news/Fight-continues-between-UC-Davis-and-strawberry-commission-256610531.html#sthash.poFKCots.dpuf

Commission communications director Carolyn O’Donnell said the commission has been trying to resolve issues with the university for several years.

“For the past five years, commission members and staff have met with the university administration to discuss ongoing concerns regarding the management, oversight and long-term viability of the public strawberry breeding program,” according to a statement from the commission.

“During this time, there was no meaningful movement regarding any of these issues. The commission filed this lawsuit as a last resort to protect the public strawberry breeding program.”

O’Donnell said the university breeding program is a “critical” industry partner and the strawberry commission has contributed to it since 1955. She said the commission’s members have given the school more than $ 18 million in the past 25 years.

Among the allegations in its civil suit, the commission says growers are no longer receiving strawberry germplasm specifically developed for them. The commission wants the court to stop UC-Davis from allowing two scientists to control and profit from research and cultivars commission members paid for already.

According to UC Davis, they have currently two copies of the strawberry germplasm, which includes patented varieties, advanced selection lines, breeding stock and historical plants. One collection is in use by the current breeders, and the second collection is being maintained by the College of Agricultural and Environmental Sciences. In addition, additional geneticists are currently being recruited to join the program.

“Despite the path the commission has chosen, UC Davis is committed to a long-term positive relationship for the benefit of California strawberry growers and more generally for state agriculture and the public,” added Katehi. “We are hopeful the commission, too, is ready to move forward and continue the important collaboration we have enjoyed for decades.”

Source: UC Davis and The Packer

Publication date: 4/25/2014

 

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Judge Orders Lawsuit by Safeway Customers Seeking Recall Notification Can Proceed

The nation’s second-largest grocery chain might have to notify shopper card holders in California about certain food recalls under a putative class-action lawsuit a San Francisco judge has allowed to proceed.

Safeway’s motion for a summary judgment in the case that dates back to early 2011 was denied in an April 7 order signed by U.S. District Court Judge Richard Seeborg. Instead, the judge called the parties to a May 15 conference for further case management.

Safeway asked the judge for the summary judgment by advancing the argument that California law does not impose a post-sale duty to warn on grocers. Like numerous other retail stores, Safeway makes its best prices available to customers who obtain one of their loyalty cards.

Shopper cards are playing roles in both recalls and foodborne illness outbreak investigations. Costco, for example, recently notified 50,000 of its card-holding customers about the recall of peanut butter by a Minnesota manufacturer. And state and local health departments have been known to obtain shopper card records in epidemiological investigations to help consumers remember what they may have consumed.

Plaintiffs, who claim to be regular Safeway customers and members of the “Club Card” loyalty program originally brought the case in state court, arguing that, under California law, Safeway is legally required to notify its customers of Class I recalls.

Safeway got the case moved to U.S. District Court for Northern California, and it was certified as a class action in May 2013. Safeway has about 500 stores in California.

Attorneys for the Safeway customers say there is a “duty to warn” under California common law and the concept of strict liability. Seeborg found the California Supreme Court has extended strict liability to product retailers because “as an ‘integral part of the overall producing and marketing enterprise,’ they too should bear the cost of injuries from defective products.”

The judge also found that, under California law, strict liability for failure to warn is only imposed when the risk of harm is known or knowable.

“Thus, under well-established principles of California law, Safeway’s duty to warn under strict liability extends only to those risks of which it had actual or constructive knowledge at the time of sale,” Seeborg wrote. “Without evidence indicating Safeway was aware of the Class 1 Recalls at the time the Recalled Products, strict liability cannot sustain plaintiffs’ post-sale duty to warn theory.”

California’s negligence law is another matter. The general rule is that each person has a duty to use ordinary care and is liable for injuries caused by failure to exercise reasonable care. The judge said that Safeway has not yet shown a statutory or public policy exception justifying a post-sale, no-duty rule.

At an early hearing in the case, attorneys for Safeway said that, unlike many others, their stores do not require customers to provide complete or even accurate information to obtain a Club Card. Anyone gets a card for simply providing a name, any name, they said.

If California shoppers with cards do eventually win the right to be notified about food recalls, it might not be long before it would be required elsewhere.

“The principles of California law discussed by the court are generally consistent with the law in most every state,” explains Arnold (Arnie) I. Friede, a former associate chief counsel in FDA’s Chief Counsel’s Office. “So if judges were to follow the ruling nationwide, the same result would likely ensue, at the motion-to-dismiss stage at least.”

Friede is currently of counsel and a senior food and drug law attorney with Florida-based Sandler, Travis & Rosenberg. He says the Safeway case will likely cause others with customer contact lists to voluntarily provide such notices as Costco currently does.

Safeway was recently acquired for $ 9.4 billion by the New York private equity firm that already owns Albertsons, the nation’s fifth-largest grocery chain.

Cerberus Capital plans to merge Safeway, it’s Vons and Vons Pavilion stores, and Albertsons  into a network of 2,400 retail stores, 27 distribution centers, and 20 manufacturing plants. Fully implemented, the Safeway-Albertsons merger would be nearly equal to Kroger’s 2,600-store chain.

Food Safety News

Idaho Joins Utah in Asking Federal Court to Dismiss ‘Ag-Gag’ Lawsuit

Idaho wants a federal court to dismiss a lawsuit brought against the state by the Animal Legal Defense Fund (ALDF).

“ALDF attacks a statute it wishes had passed,” say attorneys for Idaho Gov. C.L “Butch” Otter and Attorney General Lawrence Wasden.

“The statute actually passed has nothing to do with speech or employee whistleblowing,” they wrote in a motion to dismiss the lawsuit. Instead, they say the law to protect the state’s agricultural production facilities deals with specific forms of conduct by non-employees who gain access through force, threat, or misrepresentation.

“The law may interfere with ALDF’s preferred business model, but as a statute applicable to all individuals’ and organizations’ conduct, it violates neither Free Speech nor the Equal Protection Clause,” Clay R. Smith and Carl J. Withroe, deputy Idaho attorneys general, wrote.

Denver University law professors sued Idaho on behalf of the ALDF and other individuals and groups after Otter signed a bill into law that animal activists called an “ag-gag” measure because it makes it more difficult for outsiders to collect evidence of animal abuse. The suit asks that the Idaho law be struck down as unconstitutional.

Utah is also being sued by ALDF, and state attorneys have also asked a federal judge to dismiss that lawsuit, largely because they claim none of the plaintiffs have standing to challenge state law. Idaho attorneys, however, are making their arguments for dismissal on additional arguments.

They point to a 1971 Court of Appeals case, Dietemann v. Time Inc., in which Life magazine journalists had taken photographs and surreptitiously recorded conversations inside a house where access was gained by subterfuge.

“The First Amendment has never been construed to accord newsmen immunity from torts or crimes committed during the course of newsgathering,” the appeals court wrote. “The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another’s home or office. It does not become a license simply because the person subjected to the intrusion is reasonably suspected of committing a crime.”

U.S. District Court Judge B. Lynn Winmill has scheduled a telephonic hearing for scheduling purposes for May 8. The U.S. District Court for Utah has scheduled the dismissal motion for consideration on May 15.

Food Safety News

Settlement proposed for Trader Joe’s ‘natural’ claims lawsuit

Trader Joe’s Co. has agreed to a proposed $ 3.375 million settlement to a class action lawsuit over alleged misuse of “natural” claims, according to a press release from the court-appointed settlement administrator Rust Consulting.

The suit claims Trader Joe’s mislabeled products as “All Natural” or “100% Natural” that contained certain, allegedly synthetic ingredients, such as ascorbic acid, cocoa processed with alkali, sodium acid pyrophosphate, sodium citrate, xanthan gum and vegetable mono- and diglycerides.


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Specific products mentioned in the lawsuit include Joe-Joe’s Chocolate Vanilla Creme Cookies, Joe-Joe’s Chocolate Sandwich Creme Cookies, Trader Joe’s Jumbo Cinnamon Rolls, Trader Joe’s Buttermilk Biscuits, Trader Giotto’s 100% Natural Fat Free Ricotta Cheese and Trader Joe’s Fresh Pressed Apple Juice.

Trader Joe’s denies any wrongdoing and says its products were labeled in accordance with existing laws, but has agreed to the settlement to avoid further costs and inconvenience. 

The U.S. District Court for the Northern District of California will make a final ruling on the settlement at a hearing on July 9 in San Francisco.

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Raisin growers file lawsuit against USDA

Raisin growers file lawsuit against USDA

Raisin growers are fighting back against the USDA. Struggling small farmers have banded together to tell the federal government they will no longer turn over 47 percent of their raisin crop to the USDA each year. A little known and antiquated Depression era law still on the books allows the United States Department of Agriculture to seize nearly half of raisin farmers’ crops each year to “hold in reserve,” thus manipulating the supply and market price.

The Fifth Amendment states that private property will not be taken for public use without compensation. The USDA maintains they did not violate raisin farmer Marvin Horne’s rights because they did not literally come onto the land and take his property, they merely enforced a farming regulation. Horne supporters feel that any agriculture regulation which orders a farmer to turn over even a single plant to the government violates the spirit of the Fifth Amendment and should be revoked. Not surprisingly, many small farmers have lost their land or given up raisin growing altogether because they simply cannot pay their bills when the government takes 47 percent of their crop. Horne has been facing bankruptcy due to the unconstitutional federal intrusion into his business. The proud raisin grower owns and operates the Kerman, California-based Raisin Valley Farms.

After he opted to sell all of his raisins on the open market and not turn any over to the federal government, letters announcing hefty fines began arriving in the mail. The USDA levied about $ 650,000 in fines against Horne; the amount now totals more than a million dollars due to interest on the unpaid fees. In addition to the huge amount of fines, the USDA also wants 1.2 million pounds of free raisins from Horne. Since the refused to turn over 47 percent of his crop and sold them all, the federal agency feels slighted and is demanding their bounty.

If Marvin Horne and his wife win their case, a ripple effect could occur for farmers growing other crops, according to a Los Angeles Times report. The Raisin Administrative Committee is only one of many similar boards created under the Agricultural Marketing Agreement Act of 1937.

Source: inquisitr.com

Publication date: 1/23/2014


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Jensens seek jury trial, financial redress in lawsuit against Primus

On Oct. 15, Attorney Forrest W. Lewis filed a complaint with the District Court in Prowers County, CO, requesting a six-person jury trial in behalf of his client, Jensen Farms of Holly, CO. Primus Group Inc., a California corporation doing business as PrimusLabs, was named as the defendant.

Legal proceedings against Eric and Ryan Jensen, the company’s owners, ramped up Sept. 26 when they were taken into custody and formally charged with six misdemeanor charges of introducing adulterated food into interstate commerce. The charges stemmed from the 2011 distribution of cantaloupes produced at the farm found to be tainted with Listeria. During the outbreak, 33 people died and another 147 people were sickened in the United States.

The Jensens formally changed their plea to federal charges to guilty in U.S. District Court on Oct. 22.

The detailed 10-page complaint filed in Prowers County provided the following information concerning the lawsuit.

Lewis wrote that “Primus represents itself as ‘a global leader in food safety.’ It claims to provide ‘internationally recognized audits’ and ‘expert education and training programs.’ Primus claims to ‘develop customized programs based on [the customer's] unique demands and requirements’.”

According to the document, Primus conducted an audit of Jensen Farms’ ranchlands and packinghouse operations on or around July 25, 2011, through its agent, Bio Food Safety, which is based in Texas. Cantaloupes produced at Jensen Farms were being distributed by Frontera Produce Ltd., which had requested Primus certification.

The 2011 audit was conducted by James Dilorio, who “gave Jensen a score of 96 percent and a ‘Superior’ rating at the conclusion of the audit.”

Although BFS had audited Jensen Farm operations in 2010, Lewis wrote that the auditor was a different individual.

“During that audit, the president of BFS expressed concerns that the hydrocooler used in processing was a ‘hot spot’ for contamination because of its use of recirculating chlorinated water,” Lewis wrote in the complaint.

Prior to the 2011 audit, Jensen Farms installed new processing equipment to wash cantaloupes, using city water and a brush system.

“The hydrocooler was taken out of the system,” Lewis stated. “The only chlorination was in the city water used to wash the cantaloupes.”

He further stated that the 2011 auditor did not question removal of the hydrocooler and did not warn Jensen Farms that “the new system created a hazard or a risk of contamination. He did not discuss [Food and Drug Administration] guidelines with Jensen.”

Lewis stated that Dilorio did not downscore Jensen Farms based upon conditions and practices that were “in violation of Primus’s own audit standards applicable to cantaloupe packing house, industry standards and relevant FDA industry guidance.”

Citing that Dilorio erroneously represented his professional expertise, Lewis said he “negligently gave Jensen false information, on which Jensen reasonably relied, in Jensen’s evaluation of the safety and quality of its facilities and procedures and cantaloupes.”

Jensen Farms began a voluntary recall of its cantaloupes around Sept. 14, 2011, and received a warning letter from the Food & Drug Administration dated Oct. 18, 2011. “The FDA identified potential causes of the contamination as the design of the conveyer system and the removal of the hydrocooler, conditions observed by Primus during its audit and passed as safe” Lewis wrote.

Lewis has filed five claims of relief for Jensen Farms. The claims against Primus include negligence, breach of contract, negligent hire, negligent misrepresentation, and unfair and deceptive trade practices.

Lewis noted that the case has irreparably affected the ability of Jensen Farms to conduct business.

“Jensen’s relationship with its buyers and its reputation in the business were irreparably destroyed. Jensen, a fourth-generation family farm, is no longer a viable entity,” he said in the complaint.

He stated that the brothers have been adversely affected by the case.

“Due to the breach by Primus of its contractual duties to Jensen, Jensen suffered loss of income and revenue, past and future; incurred significant attorney fees and court costs; and is subject to future civil judgments and possible restitution orders in the criminal matter against Eric and Ryan Jensen,” he wrote.

Jensen Farms seeks a six-person jury trial to be held in Lamar, CO and is seeing the following relief:

  • “That the Court award Jensen judgment against the Defendant in such sums as shall be determined to fully and fairly compensate Jensen for all damages incurred, or to be incurred, by Jensen as the direct and proximate result of the acts and omissions of the Defendant;
  • “That the Court award Jensen its costs, including experts fees, and reasonable attorneys’ fees incurred, and prejudgment interest at the statutory rate;
  • “That the Court award Jensen its treble damages; and;
  • “That the Court award Jensen such other and further relief as it deems necessary and proper in the circumstances.”

Diane Crow, clerk of the court, told The Produce News on Oct. 22 the case has not yet been scheduled for a jury trial.

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Court Rejects COOL Lawsuit Injunction Request

WASHINGTON — A U.S. District Court denied a preliminary injunction for new country-of-origin labeling requirements sought by industry groups in a lawsuit filed in July. 


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The American Meat Institute, American Association of Meat Processors, Canadian Cattlemen’s Association, Canadian Pork Council, Confedaracion Nacional de Organizaciones Ganaderas, National Cattlemen’s Beef Association, National Pork Producers Council, North American Meat Association and the Southwest Meat Association had sued the U.S. Department of Agriculture over a final COOL rule with requirements the groups deemed “onerous.” 

The groups expressed disappointment with the court’s decision but said they plan to appeal the ruling. 

Read more: Industry Groups Sue USDA Over Final COOL Rule

“We disagree strongly with the court’s decision and believe that several aspects of the ruling are susceptible to challenge,” AMI President and CEO J. Patrick Boyle said in a statement. “We intend to pursue them on appeal.”

“This decision will have real consequences and, at a time of rising meat prices and record low herd size, they will be damaging,” North American Meat Association CEO Barry Carpenter said in a statement. “In the absence of preliminary relief, NAMA members and the industry at large will suffer irreparable harm.”

In the lawsuit, the groups had argued the COOL rule violates the Constitution, goes beyond the intentions of the original mandate, and is arbitrary and capricious. 

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