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


ANNOUNCEMENT: Join us TODAY at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: Be In The Know:  Legal Tips for Your Ag Start-Up. Details available here.


JUDICIAL: Includes food labeling, CWA, and secured transactions issues.

In ALEX ANG, et al., Plaintiffs, v. BIMBO BAKERIES USA, INC., Defendant, No.13-cv-01196-HSG, 2018 WL 4181896 (N.D. Cal. August 31, 2018), plaintiffs alleged violations of California’s Unfair Competition Law and False Advertising Law, and sought to certify four classes of consumers that purchased food products manufactured by defendant. Regarding class certification, defendant countered that plaintiffs failed to fail to satisfy the “typicality requirement” because they “purchased fewer than 20% of the products named in the lawsuit.” Court observed that “[t]ypicality is satisfied when each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the [defendant’s] liability.” Court noted that plaintiffs “did not purchase all (or even most) of the challenged products,” but found their claims “’reasonably co-extensive’ with those of the proposed class because they are alleging the same injury based on their purchase of similar products.” Plaintiffs’ motion affirmed in part.

In NATALIA BRUTON, Plaintiff, v. GERBER PRODUCTS COMPANY, Defendant, No. 12-CV-02412-LHK, 2018 WL 4181903 (N.D. Cal. August 31, 2018), plaintiff claimed Gerber violated state law by making unlawful “nutrient content claims,” and “sugar-related claims,” on its product labels. One issue concerned plaintiff’s unjust enrichment claim seeking “the remedy of nonrestitutionary disgorgement.” Defendant argued for a dismissal of those claims, contending that “restitution is the remedy for an unjust enrichment claim arising from product mislabeling.” Court agreed with Gerber and concluded that “[t]he proper measure of restitution in a mislabeling case is the amount necessary to compensate the purchaser for the difference between a product as labeled and the product as received.” Motion to dismiss plaintiff’s unjust enrichment claim granted.

In PUGET SOUNDKEEPER ALLIANCE, Petitioner, v. STATE of Washington, DEPARTMENT OF ECOLOGY; and State of Washington Pollution Control Hearings Board, Respondents, No. 94293-5, 2018 WL 4140744 (Wash. August 30, 2018), plaintiff sought review of Department of Ecology’s issuance of a “waste discharge permit” to a an auto shredding facility. Appellate court affirmed and issue for State Supreme Court was whether defendant’s permitting process complies with statutory requirements for “permit conditions [to] require all known, available, and reasonable methods to control toxicants in the applicant’s wastewater.” Plaintiff maintained that since the testing procedure at issue under the regulation “cannot detect water quality violations that the statute prohibits, the permit conditions violate state law.” Court, however, concluded that the “newly-developed testing method for wastewater toxicants was not a ‘superseding method,” and therefore, did not “void previously-adopted, less sensitive testing method as permissible means of monitoring compliance.” Affirmed.

IN RE: RONALD LEE NOVAK BETH MARIE NOVAK, Debtors. IN RE: FIRST NATIONAL BANK AND TRUST, Plaintiff, v. RONALD LEE NOVAK, BETH MARIE NOVAK, AND GREGORY H. THOMAN TRUST, Defendants, No. 17-11978, Adv. No. 17-5152, 2018 WL 4177831 (Bankr. D. Kan. August 27, 2018) concerned a Chapter 12 bankruptcy wherein defendants perfected a security interest in farm equipment sold to debtors. Defendants’ financing statement lapsed allowing debtors’ farm lender “to vault into first place on nearly all the seller’s collateral, including the insurance proceeds of a burnt-up grinder.” Court observed that “[l]etting your financing statement lapse is a fatal error” because the lapse “’unperfects’ the security interest the financing statement was filed to protect.” Court noted that plaintiff filed its financing statement a week prior to defendant and concluded the “valid and perfected first lien” entitled plaintiff to summary judgment. Affirmed.


REGULATORY: includes EPA, FSA, FWS, FS, NRCS, USPTO, RBCS, and RUS rules and notices.

ENVIRONMENTAL PROTECTION AGENCY:

Rule Idaho has applied to the EPA for authorization of certain changes to its hazardous waste program under the Resource Conservation and Recovery Act. Details here.

Rule the State of Louisiana Department of Environmental Quality  has applied to the Environmental Protection Agency for final authorization of the changes to its hazardous waste program under the Resource Conservation and Recovery Act. Info here.

FARM SERVICE AGENCY: Notice FSA is requesting comments from all interested individuals and organizations on a revision and an extension of a currently approved information collection associated with FSA Aerial Photography Program. Info here.

FISH AND WILDLIFE SERVICE:

Rule FWS announces a 12-month finding on a petition to delist or downlist the golden conure under the Endangered Species Act. Info here.

Notice FWS received an application from the Coachella Valley Association of Governments for a 30-year incidental take permit under the Endangered Species Act. Info here.

Notice FWS received applications from the Michigan Department of Natural Resources and the Indiana Department of Natural Resources for incidental take permits under the Endangered Species Act. Details here.

FOREST SERVICE: Notice lists the newspapers that will be used by all Ranger Districts, Grasslands, Forests, and the Regional Office of the Southwestern Region to publish legal notices. Details here.

NATURAL RESOURCES CONSERVATION SERVICE: Notice NRCS will issue a series of revised conservation practice standards in the NHCP. Details here.

PATENT AND TRADEMARK OFFICE:

Notice USPTO invites comments on a proposed extension of an existing information collection: 0651-0069 (Matters Relating to First Inventor to File). Details here.

Notice USPTO invites comments on a proposed extension of an existing information collection: 0651-0069 (Patent Review and Derivation Proceedings). Info here.

RURAL-BUSINESS COOPERATIVE SERVICE: Notice USDA Rural Development (RD), comprised of the Rural Business-Cooperative Service (RBS), Rural Housing Service (RHS), and Rural Utilities Service (RUS) announces that it is hosting listening sessions for public input regarding development of a common platform to deliver four guaranteed loan programs. Info here.

RURAL UTILITIES SERVICE: Rule RUS is issuing a final rule to conform with newly implemented uniform posting requirements for federal grants, so that interested applicants need only search one federal posting site on grant opportunities. Details here.