Monday, 18 February 2013

Attorney Suing Hebrew National Says He Will Appeal Lawsuit's Dismissal

On Jan. 31, U.S. District Court Judge Donovan W. Frank today granted ConAgra Foods’ motion to dismiss the class action lawsuit brought by consumers who alleged that Hebrew National sold hot dogs and other meat products that were not “100% kosher,” as the company claimed in its advertising.

The St. Paul federal court judge sided with the lawyers for ConAgra, Hebrew National’s parent company, who argued that determining the kosher status of food is a religious matter and that the government is barred by the First Amendment from making such decisions on religious issues.

“The definition of the word ‘kosher’ is intrinsically religious in nature, and this Court may not entertain a lawsuit that will require it to evaluate the veracity of Defendant’s representations that its Hebrew National products meet any such religious standard,” wrote Frank, in his Jan. 31 decision. “Because all of Plaintiffs’ claims derive from Defendant’s alleged misrepresentation that its Hebrew National products are ’100% kosher,’ all counts of the Amended Complaint are barred by the First Amendment. The Court finds that it lacks the requisite subject matter jurisdiction to preside over this dispute. Therefore, the Amended Complaint is properly dismissed in its entirety.”

Judge Frank’s 10-page decision can be read in its entirety: HERE.

Hart Robinovitch, lead attorney for the 11 plaintiffs in the lawsuit, told the AJW this week that the district court’s ruling likely will be appealed to the 8th Circuit Court of Appeals.

Robinovitch said that he “did not read anything in Judge Frank’s decision that was contrary to our theory that if the meat at these plants is being granted kosher status or not, or determined to be kosher or not depending on whether or not [kosher slaughterers and supervisors] complied with quotas, instead of religious rules,” that would be a neutral question that “a court could evaluate… without violating the Establishment Clause.”
He added that the lawsuit presented two affidavits — and that there are “other witnesses, as well” — that provide evidence of the fact that the beef for Hebrew National products was granted kosher status based on a “predetermined quota,” rather than rules governing kosher slaughter.

“We always anticipated that this case was going up on an immediate appeal,” said Robinovitch.
In the complaint, which was filed in federal court last year, and during oral arguments on Nov. 30, 2012, in Judge Frank’s St. Paul courtroom (12-7-12 AJW), Robinovitch argued that the lawsuit could be decided in civil court as a matter of consumer fraud and breach of contract.

Robinovitch, who is with the Minneapolis-based Zimmerman Reed law firm, based in its Scottsdale, Ariz., office, contended that Hebrew National products were manufactured in a slipshod way, as far as adherence to the regulations of kosher slaughter, and consumers consequently paid a premium price in the false belief that they were getting a superior kosher item.

“We are not clashing with any religious doctrine,” Robinovitch told the court last November. He said that ConAgra is a “secular Fortune 500 company” that wants to maximize profits.

Judge Frank, however, did not see things that way.

“The Court recognizes that the laws of Kashrut and other issues of Biblical and Talmudic interpretation are quite properly the subject of rabbinical debate and have evolved over the course of many centuries,” he wrote, and noted further that the contention over whether or not there are objective standards for kosher slaughter “is immaterial for purposes of the Court’s analysis here.”

The Jewish World has previously reported on the substance of the complaint, which alleged that AER Services, Inc., the firm doing kosher slaughter for Hebrew National at leased facilities in the Upper Midwest, “did little or nothing” to correct transgressions in the kosher slaughtering process when its employees complained, and threatened or terminated employees who brought forward complaints. The lawsuit also charged that Triangle K, the firm that certifies meat as kosher for ConAgra Foods, was derelict in its duties.
Principals of AER Services and Triangle K have denied the allegations, saying that disgruntled former employees have tried to besmirch the firms’ reputations.

In June 2012, AER Services threatened to sue the American Jewish World for defamation, and attempted to summon this writer to a beit din, an Orthodox rabbinical court, after the newspaper broke the news of the lawsuit against ConAgra, in June 2012. However, there has been no lawsuit filed, nor a hazmana, summons, to a beit din.

The AJW has learned that the principals of AER Services and Triangle K declined to appear recently before the Bais Din Tzedek Umishpot, a rabbinical court in Brooklyn. The court issued a hazmana three times to the executives of the two firms. Previously, these individuals ignored a summons to an Israeli beit din (9-14-12 AJW).

Following the judge’s ruling, Becky Niiya, a ConAgra spokeswoman, said that the company has “always stood by our kosher distinction and status,” according to a Reuters report.
“We know how important kosher quality is to our consumers, and we look forward to continuing to make Hebrew National 100 percent pure kosher beef franks and other kosher offerings,” Niiya said.
Corey Gordon, of the Blackwell Burke firm in Minneapolis was the lead lawyer for the defendant, ConAgra Foods.
Judge Frank acknowledged that his decision “likely leaves consumers without a remedy — save opting not to purchase or ingest Defendant’s Hebrew National products, or other products certified by Triangle K — should the allegations in the Amended Complaint prove true. Nevertheless, whether such products are indeed ’100% kosher’ is a religious question that is not the proper subject of inquiry by this Court.”

(American Jewish World, 2.15.13)

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