PACA Trust Litigation Alert
On March 26, 2013, a civil action was filed in California against So Cal Fresh Choice, Inc. d/b/a Upland Farmers Market to collect about $15,000.00 in alleged PACA trust debt.
Please check your A/R to see if this case affects you. If it does, please do not wait to protect your rights.
This week the FDA launched an updated its Frequently Asked Question & Answer (“FAQs”) section to include detailed areas on the two recently introduced food safety rules, which addressed preventative controls and produce safety.
The updated FAQ section related to the Produce Safety Rule is a fifteen (15) page document that attempts to answer everything from “What does the proposed produce safety rule establish?” to questions about the FDA’s access to company records. Here is a link to The Produce Safety Rule: Frequently Asked Questions and Answers – Produce Safety Rule
Produce industry stakeholders and related associations should take the time to read and understand the Produce Safety Rule FAQs because it addresses such critical issues as:
As previously noted, the FDA extended the comment period on the Produce Safety Rule until May 16, 2013. Please exercise your right to let the FDA know if you have any specific or industry related concerns about this rule. Once the comment period closes, the FDA will respond to comments and finalize the rule. At that point, the Produce Safety Rule will be binding and enforceable.
If you operate in the food space and offer branded products and/or if your company name is valuable, please read this entry. Beginning on March 26, 2013, you will be able to record your trademarks with the Trademark Clearinghouse, which will help protect your marks from being registered as a domain name with a new generic Top-Level Domain. The new Trademark Clearinghouse will notify owners who record their trademarks with the Trademark Clearinghouse when a domain name under a new gTLD is filed that is identical to the owner’s trademark.
Why record your trademarks with the Trademark Clearinghouse?
If you record your trademark with the Trademark Clearinghouse and someone attempts to register a domain name under any gTLD that is identical to your mark, the Trademark Claims Service of the Trademark Clearinghouse will issue a notice to the potential registrant notifying it of your trademark. If the registrant then proceeds with the registration process, the Trademark Clearinghouse will notify you so that you can take appropriate action.
Another benefit of Trademark Clearinghouse recordation is that those who record their marks will have the benefit of “Sunrise Services.” Sunrise Services allow those who have trademarks registered with the Trademark Clearinghouse to register domains for a specified gTLD that match their trademarks for a period of at least 30 days before the general public.
What trademarks can be recorded with the Trademark Clearinghouse?
If your trademark is registered with the United States Patent and Trademark Office (“USPTO”), you can record it with the Trademark Clearinghouse (the Trademark Clearinghouse will not record marks that are the subject of a pending application). The Trademark Clearinghouse will also record trademarks that have been validated through a court of law or other judicial proceeding; trademarks protected by a statute or treaty; and, other marks that constitute intellectual property may be recorded in the Trademark Clearinghouse by arrangement with a registry.
The Trademark Clearinghouse’s recordation service is only available for trademarks consisting of textual elements, i.e., letters, words, numerals or typographical characters. Marks consisting solely of design elements cannot be recorded with the Trademark Clearinghouse.
For more information about the Trademark Clearinghouse, please see Andy Goldstein’s Article: New Trademark Clearinghouse Offers Protection for Your Trademarks in Cyberspace
PACA Trust Litigation Alert
On March 20, 2013, a civil action was filed in New Jersey against Morris Avenue USA Corporation t/a Associated Supermarket to collect about $21,400.00 in alleged PACA trust debt.
On March 21, 2013, a civil action was filed in California against Chieftain Harvesting, Inc. to enforce certain rights under the Perishable Agricultural Commodities Act.
Please check your A/R to see if these cases affect you. If they do, please do not wait to protect your rights.
PACA Trust Litigation Alert
On March 13, 2013, a civil action was filed in New York against Dutchie Enterprises LLC d/b/a ADJ Wholesale Produce to collect about $82,000.00 in alleged PACA trust debt.
On March 14, 2013, a civil action was filed in Florida against Quality Fruit Import-Export Corp. to collect about $610,995.00 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.
On March 14, 2013, SeaFax reported that:
East Coast Brokers & Packers Inc and six of its affiliates, Circle M Ranch Inc, Ruskin Vegetable Corporation, Oakwood Place Inc, Byrd Foods of Virginia Inc, Eastern Shore Properties Inc and Stellaro Bay Inc, and the companies’ principals, Batista and Evelyn Madonia, all filed petitions for Chapter 11 bankruptcy between March 6 and March 11 with the U.S. Bankruptcy Court for the Middle District of Florida.
The debtors filed motions March 12 seeking to have the bankruptcy cases jointly administered under East Coast Brokers & Packers Inc, Case #13-02894.
The debtors have not yet presented their schedules, but estimate they hold assets totaling from $50 million to $100 million and owe between 200 and 999 creditors liabilities ranging from $50 million to $100 million.
Although East Coast Brokers & Packers Inc, Circle M Ranch Inc, Ruskin Vegetable Corporation, Oakwood Place Inc and the Madonias each submitted their top 20 list of unsecured creditors, only one of the debtors names food vendors on the documents and claims total $15,500 or less.
According to court documents, East Coast Brokers & Packers Inc distributes tomatoes and other agricultural products farmed by Circle M Ranch Inc. Additionally, East Coast Brokers & Packers Inc is also responsible for managing the packing and sales operations of the Madonias’ businesses.
The debtors informed the bankruptcy court that Ruskin Vegetable Corporation and Byrd Foods of Virginia Inc own packing houses. In addition, court documents state Eastern Shore Properties Inc owns property used to house farm workers, Stellaro Bay Inc owns property in Virginia and Oakwood Place Inc owns property which previously operated as a hotel known as Red Rose Inn & Suites, but the hotel operations have ceased.
Court documents state the Madonias own more than 20% of the issued and outstanding common stock or membership interests in East Coast Brokers & Packers Inc, Circle M Ranch Inc, Ruskin Vegetable Corporation, Oakwood Place Inc, Byrd Foods of Virginia Inc, Eastern Shore Properties Inc and Stellaro Bay Inc.
The debtors said in their motions seeking joint administration that their operations are closely intertwined, other than Oakwood Place Inc.
According to the joint administration motion, each of the debtors is indirectly obligated on significant debts, with MetLife Agriculture Investments owed around $46 million by the Madonias, East Coast Brokers & Packers Inc and Circle M Ranch Inc, while Stellaro Bay Inc guaranteed that debt.
The debtors conveyed to the bankruptcy court that their farming operations have been reduced in scope due to their lack of funds to support farming operations, leading to the Chapter 11 filings.
On March 11, 2013, the Bankruptcy Court issued an order setting the initial status conference to be held on March 28, 2013. At this conference, the court will: (l) fixing a date by which the Debtor−in−Possession (DIP/Trustee) must assume or reject executory contracts or unexpired leases; (2) to set a date by which the DIP or Trustee, if one has been appointed, is to file a disclosure statement and the plan; (3) to set a date to solicit acceptance of the plan; (4) to set a date for which a party of interest, other than the Debtor, may file a plan; (5) to set a date by which a proponent of a plan, other than the Debtor, shall solicit acceptance of the plan; (6) to set the scope and format of the notice concerning a hearing on the approval of the disclosure statement; (7) and to consider whether or not the approval of the disclosure statement should be combined with the hearing on confirmation of the plan.
As reported by The Packer (and announced by the FDA), “the FDA is reopening the comment period for a draft risk assessment for certain food facilities that include farm packing operations for fresh fruits and vegetables.” See FDA Reopens Comment Period on Food Facilities.
To be clear, comments on the FDA’s “Draft Qualitative Risk Assessment of Risk Activity/Food Combinations for Activities (Outside the Farm Definition) Conducted in a Facility Co-Located on a Farm” are DUE ON MAY 16, 2013.
Here is a link to the Risk Assessment: DRAFT Qualitative Risk Assessment Risk of Activity/Food Combinations for Activities (Outside the Farm Definition) Conducted in a Facility Co-Located on a Farm
For those of you who have not yet read the risk assessment document mentioned above, this document addresses the various activities that occur on farms and other food facilities and categorizes the activities based on risk to human/animal health. Make no mistake, a food facilities’ activities will directly affect its registration classification (high risk or low risk). Specifically, the FDA will subject high risk food facilities (based on activity conducted therein) to more frequent inspections and other increased scrutiny. Low risk food facilities are subject to a more lenient inspection schedule because the activities conducted in low risk facilities present a lower risk to human/animal health.
This rule recognizes that food facilities are often co-located on farms, but the activities conducted at the facility could be very different from the types of activities conducted on the farm itself. As such, this rule provides a way for to classify food facilities based on the realities associated with they types of the activities actually conducted at the facility and without regard to its location or association with a high risk food facility or farming operation. The differences will save the industry money in terms of the cost of legal compliance and that makes this document worthy of comment.
More importantly, the Risk Assessment document provides detailed responses to the following important questions:
Question 1: What are the foods that would be manufactured, processed, packed or held by a farm mixed-type facility?
Question 2: What are the activities that might be conducted by farm mixed-type facilities on those foods?
Question 3: What are the hazards reasonably likely to occur in those foods?
Question 4: For the purpose of determining whether an activity/food combination is low risk, which hazards should be considered to have a reasonable probability of causing serious adverse health consequences or death?
Question 5: For the purpose of determining whether an activity/food combination is low risk, what foods have inherent controls that significantly minimize or prevent a biological hazard that is reasonably likely to occur in these foods and that is reasonably likely to cause serious adverse health consequences or death?
Question 6: What interventions significantly minimize or prevent a hazard that is reasonably likely to occur in these foods and that is reasonably likely to cause serious adverse health consequences or death?
Question 7: Which of these activities are reasonably likely to introduce, or increase the potential for occurrence of, hazards that are reasonably likely to cause serious adverse health consequences or death and what are these hazards?
Question 8: Which of these activities are interventions to significantly minimize or prevent hazards that are reasonably likely to cause serious adverse health consequences or death from consumption of these foods?
Question 9: Which activity/food combinations are low risk?
Please take the time to read this document and exercise your right to comment upon how it affects your business. Now is the time to voice any concerns.
On Thursday, May 9, 2013, Jason Klinowski will be one of three panel speakers addressing the “Hottest Topics in Food Today” at a food industry event hosted by Arthur J. Gallagher & Co. The topics the panel speakers will cover at this event include new food safety technology related to combating Listeria, alternative risk solutions for the middle market and a survey of legal issues affecting the food industry. At this event, Jason Klinowski will specifically address issues relating to food recalls, FDA/USDA inspection management and the critical components of a good hold harmless agreement.
More information about this event will shortly follow.
PACA Trust Litigation Alert
On March 5, 2013, a civil action was filed in Connecticut against Sardilli Produce & Dairy Co., Inc. in an effort to collect approximately $40,700.00 in alleged PACA trust debt.
On March 5, 2013, a civil action was filed in Tennessee against Green Hill Farms Produce, Inc. in an effort to collect approximately $141,200.00 in alleged PACA trust debt.
On March 7, 2013, a civil action was filed in Illinois against Agri-Sales, Inc. in an effort to collect approximately $82,900.00 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.
On March 6, 2013, East Coast Brokers & Packers, Inc. (“East Coast Brokers”) filed a Ch. 11 bankruptcy in the Middle District of Florida. Along with East Coast Brokers, Circle M Ranch, Inc., Ruskin Vegetable Corporation, Oakwood Place, Inc., and both Batista J. Madonia, Sr. and Evelyn M. Madonia all filed for bankruptcy protection. The Debtors are currently seeking the Court’s permission to administer all of the separately filed bankruptcy cases jointly.
Although the Debtors have not (as of the time of this entry) filed their schedules or list of top 20 creditors, court documents show that all of the debtors are “closely intertwined” and that the Madonias own at least 20% of the shares for each of the entities listed above. The Debtors did acknowledge that they owe “significant debts” and cited MetLife Agricultural Investments as an example of a creditor to whom they owe about $46 Million. The Debtors’ court documents also acknowledged owing money to Anthony Marano Company, Crop Production, and Triangle Chemical.
For those of you familiar with East Coast Brokers and the Madonias, you may remember that various news sources reported that East Coast “quit tomatoes” back in December of 2012 and that they owed “more than $15 million in judgments and liens to state and federal governments and crop production services.” At that time, Anthony Marano Company was reported to hold a $5.6 million dollar lien against East Coast Brokers.” See East Coast Brokers Quit Tomatoes
Counsel for East Coast Brokers should be filing various first day motions and the balance of its schedules in the very near future. These filings will contain additional information. Right now, we know that claims are due on May 20, 2013.