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, procedural, environmental, and patent issues.

CONSTANTINO SANCHEZ-RODRIGUEZ, JOSÉ ALBERTO AGUILERA-HERNANDEZ, ULISES EDGARDO CRUZ-GONZALEZ, ESMITH GONZALEZ-RODRIGUEZ, VALENTIN ALVARADO-HERNANDEZ, DANIEL RODRIGUEZ-GARCIA, and ESDRAS SAHIMENDIOLA-BORDES, on behalf of themselves and all other similarly situated persons, Plaintiffs, v. JACKSON’S FARMING COMPANY OF AUTRYVILLE a/k/a JACKSON’S FARMING COMPANY OF AUTRYVILLE, WILLIAM BRENT JACKSON, and WILLIAM RODNEY JACKSON, Defendants, No. 7:16-CV-28-D, 2017 WL 396667 (E.D.N.C. Jan. 27, 2017) concerned class action claims under the Fair Labor Standards Act (FLSA) and the North Carolina Wage and Hour Act (NCWHA). Plaintiffs, migrant ag workers who worked for defendants under the H-2A guest worker program, sought payment of back wages and liquidated damages based upon defendants’ alleged failure to pay the class members. Both parties asked the court to certify a class under the NCWHA for underpaid wages and liquidated damages. Court observed the named plaintiffs’ claims and claims of class members “arise from the same alleged practices and course of conduct by defendants during the relevant time period.” Furthermore, the court noted named plaintiffs and class members “were all employees of defendants and were all paid on a substantially similar basis when they performed similar work.” Parties’ joint motion for class certification granted.

In Michael Otto Hartmann, Appellant, v. Minnesota Department of Agriculture, et al., Respondents, A16-0755, 2017 WL 393892 (Minn. Ct. App. Jan. 30, 2017), appellant sued Minnesota Department of Agriculture (MDA) for property seized during searches of his farm and truck. He also sought an injunction barring MDA “from regulating raw-milk sales without going through rulemaking.” In previous litigation, a district court granted MDA’s petition for condemnation of food from appellant’s farm. Here, district court converted MDA’s motion to dismiss to one for summary judgment, dismissing appellant’s claims for injunctive relief per collateral estoppel. Appellant claimed “collateral estoppel does not bar his claims for injunctive relief and that a genuine dispute of material fact precludes summary judgment on his return-of-property petition.” Court concluded that “because identical issues were not actually litigated and determined in the prior action, the district court erred in determining that [appellant’s] claims for injunctive relief are barred by collateral estoppel.” Case reversed and remanded.

In TRAVELERS INDEMNITY COMPANY, TRAVELERS INDEMNITY COMPANY OF CONNECTICUT, f/k/a TRAVELERS INDEMNITY COMPANY OF RHODE ISLAND, Plaintiffs-Counter-Defendants-Appellees, TRAVELERS CASUALTY AND SURETY COMPANY, f/k/a THE AETNA CASUALTY AND SURETY COMPANY, Plaintiff-Counter-Defendant, TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, f/k/a TRAVELERS INDEMNITY COMPANY OF ILLINOIS, Plaintiff, v. NORTHROP GRUMMAN CORPORATION, NORTHROP GRUMMAN SYSTEMS CORPORATION, Defendants-Cross-Claimants-Counter-Claimants-Appellants, CENTURY INDEMNITY COMPANY, eventual successor in interest to INSURANCE COMPANY OF NORTH AMERICA, Defendant-Cross-Defendant-Appellee, No. 15-3117-cv, 2017 WL 391926 (2d Cir. Jan. 27, 2017), defendants appealed judgment in favor of Travelers Indemnity Company on claims regarding the insurers’ “indemnity obligations” on sites where defendant faced environmental claims. Defendant faced clean-up costs relating to pollution at an aircraft facility. Plaintiffs were not apprised of claims in a timely manner and court ruled defendant “owed notice to the insurers” regarding earlier groundwater contamination claims and that defendant, “understood that it might be responsible for costs associated with ensuring a clean water supply.” Court found defendant’s notice to insurers “was untimely as a matter of law, and coverage as to those claims is barred on that basis.”

EX PARTE XINGPING ZHANG AND THOMAS VARE WILLIAMS, Appeal 2015-004768, 2017 WL 394157 (Patent Tr. & App. Bd. Jan. 25, 2017) involved an appeal regarding a patent application concerning a watermelon breeding invention, “specifically relating to diploid watermelons used to pollinate triploid watermelon plants for the commercial production of seedless watermelon fruit.” Issue was whether the “Specification’s description shows that Appellants were in possession of the watermelon plant recited in their claim.” Examiner found appellants “are in possession of ‘a narrow invention limited to the watermelon pollenizer line NO1F3203B . . . however, they are broadly claiming every watermelon plant having the claimed characteristics.’” Examiner found appellants have “not disclosed a representative number of species falling within the scope of the genus,” and court ruled appellants failed to satisfy written description requirement.

REGULATORY: Includes FSA, FDA, ITA, and NOAA rules and notices.

FARM SERVICE AGENCY: Notice FSA requests comments on an extension of a currently approved information collection associated with the Power of Attorney form. Info here.

FOOD AND DRUG ADMINISTRATION: Rule revises date of the final rule (“Refuse to Accept Procedures for Premarket Tobacco Product Submissions”) from January 30, 2017, until March 21, 2017. Details here.


Notice setting forth the schedule of a meeting of the Environmental Technologies Trade Advisory Committee (ETTAC). Info here.

Notice the Renewable Energy and Energy Efficiency Advisory Committee will hold a meeting on Wednesday, March 1, 2017 at the U.S. Department of Commerce Herbert C. Hoover Building in Washington, DC. Info here.


Rule NMFS is prohibiting directed fishing for Pacific cod by catcher vessels greater than or equal to 60 feet length overall using pot gear in the Bering Sea and Aleutian Islands. Info here.

Rule NMFS is prohibiting directed fishing for Pacific cod by catcher/processors using pot gear in the Bering Sea and Aleutian Islands. Details here.

Rule NMFS is prohibiting directed fishing for pollock in Statistical Area 630 in the Gulf of Alaska. Details here.

Rule NMFS is reallocating the projected unused amount of Pacific cod from vessels using jig gear to catcher vessels less than 60 feet length overall using hook-and-line or pot gear in the Bering Sea and Aleutian Islands. Details here.

Notice ONMS is seeking applications for vacant seats for six of its 13 national marine sanctuary advisory councils and Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve Advisory Council. Details here.

Notice the Pacific Fishery Management Council will convene a Stock Assessment Review Panel meeting to review the Pacific sardine stock assessment. Info here.