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

ANNOUNCEMENT: Join us Wednesday, August 16, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Using LLCs in Agriculture: Beyond Liability Protection.” Details available here.

JUDICIAL: Includes CWA, labor, food labeling, bankruptcy, and securities issues.

In DUKE ENERGY PROGRESS, LLC, Plaintiff, v. ROANOKE RIVER BASIS ASSOCIATION, Defendant, No. 4:17-CV-00032, 2017 WL 3326970 (W.D. Va. August 3, 2017), plaintiff sought judgment regarding compliance of one of its power generating stations with the Clean Water Act. Defendant had alleged Clean Water Act violations at one of plaintiff’s stations. Defendant sought dismissal and argued lack of subject matter jurisdiction and improper venue. The Court held subject matter jurisdiction existed because defendant “could have affirmatively asserted such claims in federal court under the Clean Water Act.” However, court found venue improper and stated plaintiff “is impermissibly using the Declaratory Judgment Act . . . to engage in forum shopping and skirt the explicit terms of the Clean Water Act.” Case dismissed.

ARNAUDO BROTHERS, L.P. et al., Petitioners, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; UNITED FARM WORKERS OF AMERICA, Real Party in Interest, F072420, 2017 WL 3381393 (S.D. Cal. August 7, 2017) involved a writ proceeding concerning decisions by the Agricultural Labor Relations Board (Board) that an agricultural employer committed unfair labor practices by refusing to bargain with the United Farm Workers. Employer argued the Union expressly disclaimed any interest in representing the bargaining unit in the 1980s. The Board rejected the employer’s disclaimer defense to the failure to bargain charge, because “the purported disclaimer was not ‘clear and unequivocal.’” On appeal, the court ruled that the Board failed to consider “how the Union’s 30 years of inactivity and employee turnover is related to the current employees’ right to freedom of association, which includes the right to refrain from collectively bargaining and the right to a representative ‘of their own choosing.’” Court reversed part of the Board’s decisions awarding “make whole relief.”

Jeremy GREENE and Cetaria Wilkerson, on behalf of themselves and all others similarly situated, Plaintiffs, v. GERBER PRODUCTS CO., d/b/a Nestlé Nutrition, Nestlé Infant Nutrition or Nestlé Nutrition North America, Defendant. Wendy Manemeit, on behalf of herself and all others similarly situated, Plaintiff, v. Gerber Products Co., d/b/a Nestlé Nutrition, Nestlé Infant Nutrition or Nestlé Nutrition North America, Defendant, 16-CV-1153 (MKB), 2017 WL 3327583 (E.D.N.Y. August 2, 2017) concerned alleged violations of the Ohio Consumer Sales Practices Act (OCSPA), wherein class-action plaintiffs claimed defendant’s advertising “misrepresent that Defendant’s Infant Formula reduces the risk that infants will develop allergies.” Defendant argued the court should dismiss because OCSPA requires, “that [Defendant] had prior notice that its conduct was ‘deceptive or unconscionable.’ ” Court agreed with defendant on this point and ruled that consent judgments plaintiff relied on “as having provided prior notice under the OCSPA do not satisfy the notice prerequisite.” Plaintiffs’ OCSPA claim dismissed.

In IN RE: JAMES INGLES, Debtor, No. 17-00018, 2017 WL 3381812 (Bankr. N.D. Iowa August 4, 2017), debtor executed a mortgage on his home to secure a debt with bank. The mortgage omitted the word “feet” in the legal description and bank asked court to lift a stay so it could foreclose. Debtor argued the error made the mortgage invalid and the bank unsecured. Bank asked court to reform the mortgage. Court recognized that “there was never a dispute about the proper unit of measurement,” and determined that since debtor did not discover the error, “would have corrected it if he did, and intended to create a mortgage, shows that the Court should reform the mortgage.” Court ordered a mortgage reformation.

In UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL COSCIA, Defendant-Appellant, No. 16-3017, 2017 WL 3381433 (7th Cir. August 7, 2017), defendant was convicted of violating the anti-spoofing provision of the Commodity Exchange Act and of commodities fraud, after using a computer program to place orders simultaneously on opposite sides of the commodities market “in order to create illusory supply and demand and induce artificial market movement.” On appeal, defendant argued the anti-spoofing statute is “void for vagueness.” The court observed that It shall be unlawful for any person to engage in any trading . . . that is . . . commonly known to the trade as, ‘spoofing’ (bidding or offering with the intent to cancel the bid or offer before execution).” Court disagreed with defendant, finding the anti-spoofing provision is “not unconstitutionally vague and provides clear notice and does not allow for arbitrary enforcement.” Conviction affirmed.


S. 826: WILD Act. This bill’s text for status Referred to House Committee (Aug 8, 2017) is now available.

REGULATORY: Includes USDA, EDA, EPA, FAS, and NOAA rules and notices.

AGRICULTURE DEPARTMENT: Rule amends the scope and applicability of USDA uniform rules of practice governing adjudicatory proceedings to include actions initiated under subtitles B and D of the Agricultural Marketing Act. Details here.

ECONOMIC DEVELOPMENT AGENCY: Notice the National Advisory Council on Innovation and Entrepreneurship will hold a public meeting on Thursday, August 24. Details here.

ENVIRONMENTAL PROTECTION AGENCY: Rule EPA is proposing to approve an April 10, 2017 request from the Louisiana Department of Environmental Quality to relax the Federal Reid Vapor Pressure (RVP) volatility standard applicable to gasoline introduced into commerce from June 1 to September 15. Details here.

FOREIGN AGRICULTURAL SERVICE: Notice FAS will request an extension for a currently approved information collection for the Pima Agricultural Cotton Trust Fund. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMNISTRATION: Notice NMFS announces approval of a Marine Conservation Plan (MCP) for the Northern Mariana Islands. Info here.