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

JUDICIAL: Includes labor, secured transactions, CWA, urb & ag, pesticides, and food labeling issues.

In Edward MONROE, Fabian Moore, and Timothy Williams, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. FTS USA, LLC and UniTek USA, LLC, Defendants-Appellants, No. 14-6063, 2017 WL 2662418 (6^th Cir. June 21, 2017), employees sued employer under Fair Labor Standards Act (FLSA), alleging employer implemented a company-wide policy of requiring employees to “systematically underreport overtime hours.” District Court certified the case as a collective action and a jury returned a verdict for employees. Employer appealed and eventually, the Supreme Court of the United States granted writ, vacated judgment, and remanded case. On remand, Court of Appeals held the employees were “similarly situated” and that employer’s “claimed right to present individualized defenses did not warrant decertification.”

Wayne MARABLE Individually and as Curator on Behalf of Connie Marable v. EMPIRE TRUCK SALES OF LOUISIANA, LLC and Curtis Wayne Hudspeth, Wayne Marable Individually and as Curator on Behalf of Connie Marable v. Empire Truck Sales of Louisiana, LLC and Curtis Wayne Hudspeth, William “Bill” Jones and Engelique Jones v. Empire Truck Sales, LLC, Curtis Wayne Hudspeth, Wayne Marable, Great West Casualty Company, Daimler Trucks North Americal, LLC and Kllm Transport Services, LLC, NO. 2016–CA–0876, NO. 2016–CA–0877, NO. 2016–CA–0878, 2017 WL 2687739 (La. Ct. App. June 22, 2017) concerned a products liability action wherein plaintiff suffered a brain injury after being pinned underneath the rear tires of a tractor while running alongside it and attempting to shut off its engine. A jury found the defendants (the manufacturer of the tractor and the owner of the tractor), liable and apportioned fault between the two. Manufacturer appealed and argued that because an accident like [plaintiff’s] was “unprecedented” and “unforeseeable,” the jury erred in finding defendant “could have (or should have) foreseen that a different or alternate design of the vehicle would be necessary in order to prevent it.” Appellate court concluded there was sufficient evidence for the jury to conclude that manufacturer “either knew, or should have known . . . the vehicle could move suddenly, which could result in personal injury.

In CONSERVATION LAW FOUNDATION, INC. v. AMERICAN RECYCLED MATERIALS, INC., NO. 16-12451-RGS, 2017 WL 2622737 (D. Mass. June 16, 2017), plaintiff sued under the Clean Water Act claiming defendant was discharging pollutants into waters of the United States without required permits. Defendant moved to dismiss and asserted plaintiff failed to “make out a viable legal claim.” Court found for defendant, concluding that plaintiff’s allegations of discharge are “so general and conclusory as to amount merely to an assertion that unspecified facts exist to conform to the legal blueprint.”

In WESTERN FARM PRODUCTS, LLC, INC. v. SUMNER COUNTY, TN, et al. No. M2015–02003–COA–R3–CV, 2017 WL 2633612 (Tenn. Ct. App. June 19, 2017), plaintiff wanted to operate a quarry and sought a judgment that a zoning resolution, alleged to exclude quarrying and mining activities, was unconstitutional and violated Tennessee zoning enabling statutes. Adjoining property owners intervened and the court granted summary judgment to the county and adjoining property owners. On appeal, court found that the evidence “relied upon by the property owner does not establish that the ordinance at issue prohibits all quarrying activities.” Trial court judgment affirmed.

In BAYER CROPSCIENCE LP, Plaintiff-Appellant, v. ALBEMARLE CORPORATION, Defendant-Appellee, No. 16-1555, 2017 WL 2645547 (4^th Cir. June 20, 2017), Bayer claimed defendant used contractual leverage to artificially inflate the price of methyl bromide “in violation of the good faith and fair dealing requirements of the UCC,” and in violation of the North Carolina Unfair and Deceptive Trade Practices Act (UDTPA). Defendant counterclaimed alleging Bayer breached their contract “by purchasing methyl bromide from other sources without giving [defendant] the opportunity to price match.” Court observed that “when a UDTPA claim is based on an alleged misrepresentation, the plaintiff must establish ‘reliance on the misrepresentation in order to show the necessary proximate cause.’” Like the trial court, the appellate court found Bayer “failed to demonstrate that egregious or aggravating circumstances surrounded Albemarle’s statement regarding the basis of the first price increase.”

In LORI CANALE, individually and on behalf of all others similarly situated, Plaintiff, v. COLGATE-PALMOLIVE CO., Defendant, No. 16-CV-3308 (CS), 2017 WL 2729493 (S.D.N.Y. June 23, 2017), plaintiff filed class action claiming defendant’s labeling on its whitening toothpastes is misleading and alleges breach of express warranty and violations under the New York General Business Law. Defendant countered plaintiff’s claims under state law are expressly preempted by the Food Drug & Cosmetics Act (FDCA). Defendant argued that the FDCA says states may not “establish or continue in effect any requirement for labeling or packaging of a cosmetic that is different from or in addition to, or that is otherwise not identical with, a requirement specifically applicable to a particular cosmetic or class of cosmetics under this chapter.” However, the court reasoned that defendant did not identify any federal requirements “applicable to its Optic White products beyond the FDCA’s general prohibition against false and misleading labeling,” and denied defendant’s motion to dismiss.

REGULATORY: Includes USDA, EPA, FWS, and NOAA rules and notices.

AGRICULTURE DEPARTMENT: Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Request for Credit Account Approval for Reimbursable Services. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is using its authority under the Clean Air Act (CAA) to extend by 1 year the deadline for promulgating initial area designations for the ozone national ambient air quality standards that were promulgated in October 2015. Info here.

Rule EPA establishes fees related to the provision of federal credit assistance under Subtitle C of the Water Resources Reform and Development Act of 2014, which is referred to as the Water Infrastructure Finance and Innovation Act of 2014. Details here.

FISH AND WILDLIFE SERVICE: Notice the North American Wetlands Conservation Council will meet via teleconference to select North American Wetlands Conservation Act U.S. Standard grant proposals for recommendation to the Migratory Bird Conservation Commission. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS proposes regulations to implement Amendment 6 to the Tilefish Fishery Management Plan. Details here.

Notice that Melissa McKinney, Ph.D., University of Connecticut, Center for Environmental Sciences and Engineering, has applied for an amendment to Scientific Research Permit No. 19425. Details here.