USDA Backs Off Investigation of Mucci Pac USA

Mucci_logoAs reported by The Packer on October 9, 2014, a civil action filed against the USDA in the Eastern District of Michigan – seeking both injunctive and declaratory relief – resulted in the USDA’s closure of its investigation of Mucci Pac USA.  Specifically, Mucci Pac and the USDA entered into a stipulation and agreed that Mucci Pac does not buy or sell produce.  As such, the USDA agreed that Mucci Pac does not need to maintain a PACA license and is not subject to PACA.  The U.S. District Court ratified the stipulated agreement and closed the case.  See USDA Backs Off Investigation of Mucci Pac USA (identifying Jason Klinowski as lead counsel for Mucci Pac USA)

This case did not go to trial and the court order is not much of a precedent for others to utilize, but it does show the industry that produce companies do have rights.  More importantly, this case shows that Canadian produce companies can properly establish and maintain distribution centers in the United States without subjecting themselves to USDA jurisdiction.  This practice holds immediate and obvious financial benefits for those Canadian companies that sell into the U.S. marketplace.

Jason Klinowski to Speak at Social Media Marketing Summit for Law Firms

Social Media Marketing Summit

On October 15, 2014, the Business Development Institute will host a Social Media Marketing Summit for Law Firms in Chicago.  This half-day event will feature a variety of speakers who will share case studies and lessons learned from leading law firms about how they use social media and content marketing to highlight expertise, build business and expand relationships with existing clients.  Among the speakers, Jason Klinowski and Christina Solomon of Freeborn & Peters LLP will discuss The Fresh Facts Blog and how Jason uses social media as a marketing channel for his agricultural and food law practice.

Award Winning Blog!

Legal Marketing AssociationOn March 5, 2014, the Midwest Chapter of the Legal Marketing Association announced the winners of the 2014 Your Honor Awards at an event in Chicago, Illinois.  The Your Honor Awards recognize excellence by marketing and communication practitioners in legal marketing, sales, business development, and design. Entries were submitted by legal marketing professionals on behalf of their respective law firms. Entries were submitted in LMA Midwest’s annual regional competition from law firms and legal service providers in Illinois, Indiana, Wisconsin, Missouri, Michigan and Kansas. Submissions were judged on a variety of criteria, including product, strategy and results.

The Legal Marketing Association presented Freeborn & Peters  with an Honorable Mention Award recognizing the firm for Jason Klinowski’s blog – The Fresh Facts Blog – because of its innovative and effective utilization of social media to build a niche industry practice.

This is the blog’s first award and it is a good indication that The Fresh Facts Blog is a great resource for the food industry.  Thank you to all my readers!

PACA Trust Litigation Alert

PACA Trust Litigation Alert

PACA Trust Litigation Alert

On January 10, 2014, a civil action was filed in California against Sunfresh USA, Inc. to collect approximately $389,000 in alleged PACA trust debt.

On January 10, 2014, a civil action was filed in North Carolina against Nichols Foodservice, Inc. to collect approximately $204,000 in alleged PACA trust debt.

On January 14, 2014, a civil action was filed in Maryland against Five Days Market, Inc. t/a G Mart International to collect approximately $114,000 in alleged PACA trust debt.

On January 16, 2014, a civil action was filed in Illinois against T&T Food Service, Inc. a/t/a T&T Foodservice, Inc. to collect approximately $90,000 in alleged PACA trust debt.

On January 16, 2014, a civil action was filed in New Jersey against Rockaway Green Farmers Market LLC to collect approximately $38,000 in alleged PACA trust debt.

On January 16, 2014, a civil action was filed in New York against Global Tropical Fresh Fruit Corp. to collect approximately $349,000 in alleged PACA trust debt.

Please check your A/R to see if these cases affect you.  If they do, please do not wait to assert your rights.

Jason Klinowski to Serve as Special PACA Counsel to Allens Canning During its Chapter 11 Bankruptcy Case

Allens Canning

On October 28, 2013, Allens, Inc. d/b/a Allens Canning (the “Debtor”) filed for Chapter 11 bankruptcy protection.  Anticipating over $20 million in potential PACA claims, the Debtor retained Jason Klinowski of Freeborn & Peters LLP’s food industry team to serve as special PACA counsel.  In this capacity, Jason assisted the Debtor in the preparation of the PACA claims procedure order and now manages the Debtor’s obligations under the order.  To be clear, the PACA claims procedure order is a Court approved procedure by which the Debtor and all potential PACA trust beneciaries test the validity of the PACA claims.

In the Courtroom, Jason also helps the Debtors address such complex PACA trust issues as:

  • Whether the Court Should Compel the Debtor to Create and Fund a Segregated PACA Trust Account  (NO)
  • Whether the Debtor May Use PACA Trust Assets in Connection With its Efforts to Reorganize Under Chapter 11 of the Bankruptcy Code (YES)
  • The Proper Use of Pre-Transaction Written Agreements to Limit PACA Trust Liability (to be determined)
  • And more…

The Debtor’s Chapter 11 case not only involves significant amounts of potential PACA trust liability, but it also contains several complex PACA trust issues, the resolution of which could change how the produce industry does business.

PACA Trust Litigation Alert!

PACA Trust Litigation Alert

PACA Trust Litigation Alert

On October 8, 2013, a civil action was filed in Florida against High Point Marketing of NJ, Inc. to collect approximately $30,000 in alleged PACA trust debt.

On October 10, 2013, a civil action was filed in New York against Isadore A. Rapasadi and Sons, Inc. to collect approximately $96,000 in alleged PACA trust debt.

On October 11, 2013, a civil action was filed in New Mexico against Duke City Produce, Inc. to collect approximately $129,000 in alleged PACA trust debt.

On October 14, 2013, a civil action was filed in Ohio against JAO Distributors, Inc. d/b/a Gentile Bros. Company to collect approximately $138,000 in alleged PACA trust debt.

On October 16, 2013, a civil action was filed in California against IBC Produce, Inc. to collect approximately $30,000 in alleged PACA trust debt.

On October 24, 2013, a civil action was filed in Florida against PNL Produce LLC d/b/a Watson’s Produce to collect approximately $9,000 in alleged PACA trust debt.

On October 25, 2013, a civil action was filed in Florida against both Sergio Felipe Produce Corp. and First Coast of Miami LLC to collect approximately $180,000 in alleged PACA trust debt.

On October 25, 2013, a civil action was filed in Pennsylvania against Andrew DePoala Mushrooms, Inc. to collect approximately $188,000 in alleged PACA trust debt.

Please check your A/R to see if these cases affect you.  If they do, please do not wait to assert your rights.

PACA Trust Litigation Alert!

PACA Trust Litigation Alert

     PACA Trust Litigation Alert

On September 24, 2013, a civil action was filed in New York against YCK LLC d/b/a Cross Island Super Foods to collect about $154,000.00 in alleged PACA trust debt.

On September 27, 2013, a civil action was filed in California against Hayes Produce Marketing LP to collect about $68,000.00 in alleged PACA trust debt.

On September 27, 2013, a civil action was filed in Virginia against Andrews Farming LLC to collect about $88,000.00 in alleged PACA trust debt.

Please check your A/R to see if theses cases affect you.  If they do, please do not wait to assert your rights.

 

 

Government Not Required to Prove Intent or Consciousness of Wrongdoing to Convict the Jensen Brothers

Jensen Farms PicAs the produce industry follows the fate of Eric and Ryan Jensen many articles and commentary have surfaced in support of the brothers Jensen.  However, these articles and commentary all focus around a significant misconception about the government’s burden  of proof.  Specifically, the general misconception is that the U.S. Attorney’s Office must prove or otherwise show intent on the part of the Jensen brothers to obtain a criminal conviction.  This is wrong!

The Federal Food Drug and Cosmetic Act (“FD&C Act”) protects the consuming public by allowing the government to regulate the conditions under which food and drugs are manufactured and distributed and it requires those responsible to comply with its provisions.  Under the FD&C Act, misdemeanor criminal responsibility does not require intent or consciousness of wrongdoing.  On the other hand, felony criminal responsibility requires a knowing violation with the specific intent to defraud or mislead.  The FD&C Act also states that a  corporation may commit an offense and all persons who aid and abet its commission are equally guilty.

The Jensen brothers are facing misdemeanor criminal charges, which still carry the threat of imprisonment and significant financial penalties.  Given the misdemeanor nature of the charges, the U.S. Attorney’s Office does not need to allege or prove any type of intent on the part of the Jensen brothers to obtain a criminal conviction.

The foregoing is but one example of why the Jensen brothers’ criminal case is alarming to the produce industry.  With that said, are there any real and meaningful defenses available to the Jensen brothers?  The answer is yes!

Fresh & Easy Neighborhood Market, Inc. Files for Chapter 11 Bankruptcy Protection

freshandeasyneighborhoodmarketOn September 30, 2013, Fresh & Easy Neighborhood Market, Inc. filed for chapter 11 bankruptcy protection in the District of Delaware and was assigned case number 13-12569.  The Debtor’s voluntary petition estimates: (i) between 10,000 and 25,000 creditors; (ii) holding assets valued between $100 million and $500 million, and; (iii) liabilities between $500 million and $1 billion dollars.  This case was assigned to Judge Kevin J. Carey.

A review of the first day motions shows the Debtor has already filed a Motion to Pay PACA/PASA claims and are seeking permission from the Court to use $5,000,000.00 (in the aggregate) to pay all the PACA/PASA claims.  In addition, the Debtor is asking for a court order directing the Debtor’s bank to honor all checks presented for payment.  In addition to several other motions, the Debtor filed a 305 page list of creditors.

Please check back for updates.  I will update this entry further after I review the first day pleadings more fully and additional pleadings are filed.

Jason Klinowski to Speak at the Upcoming Food Regulatory Compliance Summit in Chicago

Food Regulatory Compliance Summit Logo

On October 4, 2013, Jason Klinowski will join Daniel Shaw – Vice President, Deputy General Counsel at H.J. Heinz Company – to address food recalls and to discuss practical tips and best practices for preventing common pitfalls and minimizing downstream litigation exposure.  Please join us at theWit for this two-day conference and connect with food industry leaders from The Hillshire Brands Company, Kellogg, US Foods, Nestle, MOM Brands, Cargill, H.J. Heinz Company, and others.