A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.


JUDICIAL: Includes biotechnology, labor, CWA, agritourism, international trade, and environmental issues.

IN RE: SYNGENTA AG MIR 162 CORN LITIGATION This Document Relates To: The Nationwide and Kansas Classes Certified by the Court, MDL No. 2591, No. 14-md-2591-JWL, 2017 WL 1250791 (D. Kan. April 5, 2017) concerned the mass tort action against Syngenta regarding the company’s Viptera brand corn seed containing genetically modified traits. Plaintiffs asserted claims under the false advertising provision of the Lanham Act, providing for “liability of one who makes false or misleading representations in commercial advertising or promotion.” Syngenta argued plaintiffs cannot prove causation as required under the law. Court found “there is no evidence that sales occurring after the Grower Letter affected the fact or duration of plaintiffs’ economic injuries.” Plaintiffs failed to provide the necessary evidence of causation and granted Syngenta summary judgment on plaintiffs’ Lanham Act claims.

In Kevin O’CONNOR; Christopher O’Connor; James Adam Cox; Michael Fraser; Robert McNally, Plaintiffs, Appellants, v. OAKHURST DAIRY; Dairy Farmers of America, Inc., Defendants, Appellees, No. 16-1901, 2017 WL 957195 (1st Cir. March 13, 2017), delivery drivers sued dairy company for not paying them overtime wages in violation of state law. District court entered partial summary judgment in company’s favor, and drivers appealed. Appellate court considered applicable overtime statute exempting employees whose work involved “canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of” perishable foods. Court found law “ambiguous” and delivery drivers not within exemption’s scope. Reversed and remanded.

KIRK CURLS, Plaintiff, v. CLARK COUNTY SCHOOL DISTRICT, Defendant, No. 2:16-cv-00979-JAD-PAL, 2017 WL 1228409 (D. Nev. March 31, 2017) concerned a screening order in which plaintiff claimed he was discriminated against on the basis of national origin in violation of the Civil Rights Act. Plaintiff, an African American employed as a baker, claimed his supervisor “never posted . . . open positions through the employment office and, instead, selected the Hispanic employees she wanted to fill the positions without opening the positions to competitive bidding.” Court considered plaintiff’s pleadings and found they stated “a colorable national origin discrimination claim under Title VII and Nevada law.”

In GARY BATZE et al., Plaintiffs and Appellants, v. SAFEWAY, INC., et al., Defendants and Respondents, B258732, 2017 WL 1231382 (S.D. Cal. April 4, 2017), appellants sued for failure to pay overtime wages, alleging that in their positions as Assistant Managers for defendant’s stores they worked long hours performing non-managerial tasks. Trial court ruled appellants were engaged “for more than 50 percent of their work week” in managerial tasks, and met all the other qualifications to be “exempt from the overtime rules.” Appellants argued trial court’s decision that they spent the majority of their time at work engaged in managerial activities was not supported by evidence. Specifically, they argued that “an employee’s ratio of exempt to non-exempt activities must be determined on a week-by-week basis, that no inferences may be drawn from the employee’s activities in surrounding weeks.” Appellate court concluded trial court “drew reasonable inferences from the witnesses’ testimony and other evidence that established how appellants spent the majority of their time.” Affirmed.

In CONSERVATION LAW FOUNDATION, INC. & Charles River Watershed Association, Inc. v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY et al., NO. 16–10397–RGS, 2017 WL 1115155 (D. Mass. March 24, 2017), plaintiff sued under the Clean Water Act (CWA) against the Environmental Protection Agency (EPA), claiming the “abdicated a nondiscretionary duty to require stormwater dischargers along the Charles River to apply for pollution discharge permits.” Plaintiffs argued EPA’s interpretation of “the exercise of residual designation authority (RDA) contradicts the regulation itself and the underlying statutory authority upon which it draws.” Specifically, plaintiffs argued phrase “determines” means that permits for stormwater are required “whenever EPA substantively determines that the permit triggers are met.” Court concluded that “plaintiffs’ argument demonstrates that the meaning of “determines” is ambiguous.” Case dismissed.

MLF3 JAGGER LLC, Plaintiff, v. Cecilia KEMPTON; United Bank, Inc. and “John Doe No.1 through John Doe # 12”, the last twelve names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest upon the premises described in the complaint, Defendants, 2017 WL 1216766 (N.Y. March 27, 2017) involved a mortgage foreclosure wherein defendant argued property at issue is a residence and plaintiff claimed the premises as a business, specifically a bed and breakfast. Plaintiff submitted copies of advertisements listing the premises as a bed and breakfast and provided copy of the Tax Assessment Roll designating defendant’s property as a commercial establishment under the zoning applied to “Inns, Lodges, Boarding Homes and Rooming Houses.” Court ordered hearing to determine if the defendant’s note and mortgage should be deemed a “home loan.”

RE: Preliminary Results of Changed Circumstances Review Regarding Successor-In-Interest Analysis: Certain Pasta from Italy, A-475-818, Changed Circumstances Review, E&C AD/CVD OIII: JZ, 82 ITADOC 14501 (March 21, 2017) concerned an antidumping duty order on pasta from Italy, wherein Department of Commerce determined that Delverde/TIAC had a “de minimis dumping margin” and should be excluded from the order on pasta from Italy. Issue was whether a change in a company and its relationship with outside entities results in a new company that is not a successor to the pre-change company for purposes of applying the antidumping duty law. Department looked at company’s “changes in structure, management, production facilities, supplier relationships, and customer base.” Secretary determined that Tamma “is not the successor-in-interest to TIAC, the company in the Delverde/TIAC entity, which was excluded from the Pasta Order.”

In WESTERN EXPLORATION, LLC et al., Plaintiffs, v. U.S. DEPARTMENT OF THE INTERIOR, et al., Defendants, Case No. 3:15–cv–00491–MMD–VPC, 2017 WL 1237971 (D. Nev. March 31, 2017), plaintiffs sued Department of the Interior (DOI), Bureau of Land Management (BLM), and the US Forest Service (USFS) seeking review of the agencies’ decisions to :amend their resource management plans to provide greater protection to the greater-sage grouse (GSG) species and their habitat.” Plaintiffs asked court enjoin the agencies from “implementing these resource management plans in Nevada.” Court agreed with plaintiffs that defendants “failed to comply with National Environmental Policy Act (NEPA) and remands for preparation of a supplemental environmental impact statement.” However, court denied plaintiffs’ request to enjoin the agencies’ resource management plans pending remand.


REGULATORY: Includes FWS, FDA, FS, and NOAA rules and notices.

FISH AND WILDLIFE SERVICE:

Rule FWS withdraws the proposed rule to list the headwater chub and a distinct population segment of the roundtail chub from the lower Colorado River basin as threatened species. Info here.

Notice FWS invites the public to comment on applications to conduct certain activities with endangered species. Details here.

FOOD AND DRUG ADMINISTRATION: Notice FDA announces a forthcoming public advisory committee meeting of the Antimicrobial Drugs Advisory Committee. Details here.

FOREST SERVICE: Notice the Lincoln National Forest will prepare an Environmental Impact Statement to document and publicly disclose environmental effects of its management strategy for restoring forest health. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is prohibiting directed fishing for Pacific cod by catcher/processors using hook-and-line gear in the Western Regulatory Area of the Gulf of Alaska. Details here.

Rule NMFS is opening directed fishing for Pacific cod by vessels using pot gear in the Central Regulatory Area of the Gulf of Alaska. Info here.

Notice Department of Commerce, seeks comment on proposed economic surveys of American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands Small Boat-Based Fisheries. Info here.