A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu


JUDICIAL: Includes FLSA, bankruptcy, FSA, zoning, and landowner liability issues.

In Laurel Werner, Plaintiff, v. East Coast Fresh, LLC, et al., Defendants, No. RDB-15-2381, 2017 WL 588464 (D. Md. Feb. 13, 2017), plaintiff claimed defendant, a food processing company, failed to pay her overtime wages because the company improperly classified her as an “exempt employee” under the Fair Labor Standards Act’s (FLSA) administrative function exception. Court observed that, “Whether an employee is exempt from the FLSA’s overtime requirements is a mixed question of law and fact; ‘[t]he question of how the [employees] spent their working time … is a question of fact. The question whether their particular activities excluded them from the overtime benefits of the FLSA is a question of law.’” Plaintiff argued that defendant tried to “dress up what is essentially a sales/customer service position, which has little, if anything to do with [defendant’s] management policies or general business operations.” Court ruled questions of fact remain and defendant’s motion for summary judgment denied.

In In re: Escalera Resources Co., Debtor. Bankruptcy Case No. 15–22395 TBM, 2017 WL 564495 (Bankr. D. Colo. February 10, 2017), court considered whether “the electrical energy supplied by PacifiCorp (power company) in the days leading up to the Debtor’s bankruptcy constitutes ‘goods’ entitled to priority status under the Bankruptcy Code.” Here, debtor is an energy company that develops natural gas and crude oil and PacifiCorp is a public utility company selling electricity to debtor. Upon extensive analysis, the court determined that “there really can be no doubt electrical energy falls within the ambit of ‘goods’ under typical usage definitions.” Court reasoned that “the Debtor is seeking to have the Court impose a policy preference in favor of debtors and against electric utilities in bankruptcy cases,” and eventually ruled that “the metered electrical energy delivered by PacifiCorp to the Debtor constitutes ‘goods.’” Court ruled PacifiCorp “shall have an allowed administrative priority claim for electrical energy delivered to the Debtor.”

In In re: Milky Way Organic Farm, LLC, Debtor. In re: Robert H. Clark, Jr., Debtor. Case # 12-10742, Case # 12-10777, 2017 WL 598473 (Bankr. D. Vt. Feb. 14, 2017), two secured creditors, People’s United Bank and the USDA Farm Service Agency (FSA), filed motions to dismiss based upon debtors’ default under a Chapter 12 plan. Debtors argued they should be allowed to modify their plan to reflect “their operational transition away from use of their assets as a full-time dairy farm to a much reduced dairy operation supplemented by income from non-farm employment and lease of the farm homestead through Airbnb.” Court balanced “the rights of family farmers to reorganize under Chapter 12 against the rights of secured creditors to enforce their bargained-for remedies when the terms of the reorganization are breached.” Court found debtors’ plan payment default a “material default under the Plan” and granted creditors’ motions to dismiss.

In ROBERT KOLKOWSKI and WENDY KOLKOWSKI, Plaintiffs, v. OCONTO COUNTY ZONING DEPARTMENT, KEVIN J. BREHMER, CHERYL ANN MICK, and PATRICK NORMAN VIRTUES, Defendants, No. 16-C-526, 2017 WL 530514 (E.D. Wis. Feb. 9, 2017), plaintiffs were cited for operating a junk yard without permits and for having three or more semi-trailers and farm equipment on their property. On appeal, plaintiffs argued they needed the equipment to “take care of the life God gifted to them and that they cannot come into compliance with the Oconto County Zoning Ordinances without conflicting with their duty to God.” Court ruled that because the issue “could have been brought during their state court proceedings, their claim is thus precluded.”

In Zaine Kasem v. State Farm Fire and Casualty Company, Joyce B. Williams, and H.R. Williams Cattle Company, NO. 2016 CA 0217, 2017 WL 570804 (La. Ct. App. Feb. 10, 2017), plaintiff appealed judgment for defendant and their insurer after dismissal of her claims alleging injuries sustained when she was “run over” by a cow that had gotten loose from a herd co-owned by defendants. The cow escaped through a fence that had enclosed the herd, but had been damaged by a fallen tree. Court noted that per LA statute, “to find an owner liable for injury caused by his animal (other than a dog), applying a duty-risk analysis, a plaintiff must now show, among other factors, that the animal’s owner knew or should have reasonably known of the danger posed by the animal, and that the owner could have taken reasonable measures to prevent injury, but failed to do so.” With respect to summary judgment ruling of lower court, appellate court determined that, “There remain genuine issues of material fact regarding the reasonableness of defendants’ actions in light of the possibility of other options that may have been employed to recapture the cow that would have been less stressful for the cow, and therefore, prevent any resulting damage.” Case reversed and remanded.


REGULATORY: Includes USDA, APHIS, FDA, FNS, and NOAA rules and notices.

AGRICULTURE DEPARTMENT: Notice USDA will submit the following information collection requirement(s) to OMB for review. Title: Processed Egg and Egg Products Verification Program. Info here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Rule delaying effective date of rule published on January 19, 2017, amending the select agent and toxin regulations. Details here.

FOOD AND DRUG ADMINISTRATION: Rule announcing a meeting entitled “Use of the Term `Healthy’ in the Labeling of Human Food Products.” Details here.

FOOD AND NUTRITION SERVICE: Notice seeking comment on a currently approved collection in the Supplemental Nutrition Assistance Program concerning Retail Store Applications. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION: Notice NOAA will submit to OMB a proposal for collection of information. Title: Alaska Region Gear Identification. Info here.

Notice NOAA will submit to OMB a proposal for collection of information. Title: Statement of Financial Interests, Regional Fishery Management Councils. Info here.