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Dismissal denied in Listeria-related Primus suits

On Oct. 28, District Court Judge Charles M. Pratt denied two motions to dismiss filed by Primus Group Inc. The case involves multi-district litigation in Colorado stemming from cases pending against Primus relating to the distribution of tainted cantaloupe.

“These cases involve claims arising from the death and injury of numerous individuals resulting from their consumption of Listeria monocytogenes linked to cantaloupe produced by Jensen Farms in 2011,” the judge stated about the background of the case.

Addressing each of the motions, Pratt wrote in his rulings that, “Whether the facts, including those concerning the extent and purpose of the audit, will support such allegations will have to await a motion for summary judgment or trial; such disputed issues of fact cannot be resolved at this stage.”

An amended motion filed by Primus asked that 24 legal claims grouped as Case No. 20-11CV1891 be dismissed. Primus contended that the complaint failed to set forth claims for which it has a legal duty. PrimusLabs, hired by Jensen Farms to conduct a facilities audit, subcontracted the audit to the company, Bio Food Safety, which assigned James Dilorio to perform the audit. “The audit resulted in a ‘superior’ rating of 96 percent,” Pratt wrote in his ruling. “After the audit was issued, the cantaloupe were released for sale to the public.”

During September 2011 the Food & Drug Administration investigated Jensen Farms, linking Listeria-related illnesses and deaths.

“Under the common law claims the parties focus their arguments on the issue of whether Primus’ alleged negligence was misfeasance or nonfeasance,” the judge stated. "For the purposes of this order the difference is that misfeasance requires proof that the defendant engaged in conduct which created the condition which resulted in the harm, whereas nonfeasance results from the defendant’s failure to engage in conduct which would or might have discovered or prevented the harm.”

Allegations in the amended complaints supported the following:

  1. “One purpose for which the audit was undertaken was the protection of the public from exposure to and consumption of harmful cantaloupe;
  2. “The auditor should have reasonably recognized that the audit was necessary to protect the public from exposure and consumption of harmful cantaloupe;
  3. “Failure to exercise reasonable care in conducting the audit increased the risk to the public from exposure to and consumption of harmful cantaloupe;
  4. “The auditor undertook Jensen Farms’ duty to the cantaloupe consuming public to inspect the cantaloupe production facility to identify potential containment hazards; and
  5. “The plaintiffs, as members of the cantaloupe consuming public, suffered illness and death because they, Jensen Farms and others reasonably relied upon the audit and auditor to uncover or detect the conditions which led to the distribution of contaminated cantaloupe.”

The judge also stated that the allegations of the complaints “sufficiently allege that the consumers of the cantaloupe produced at Jensen Farms were intended beneficiaries of the audit.”

Another motion for dismissal filed by Primus involved cross-claims brought by defendants Frontera Produce LTD and Dillon Cos. Inc. “Frontera has brought cross-claims against Primus for negligence, negligent misrepresentation, breach of contract and contribution,” Pratt wrote. “Dillon has asserted cross-claims against Primus for negligence and contribution.”

“Primus contends that due to the time difference between when the audit was conducted and the date(s) when the contaminated cantaloupe were processed and/or the government investigation was conducted, the allegations are insufficient to support a claim that the conditions found by the governmental investigations existed at the time of the audit,” the ruling stated.

Pratt wrote that Primus also argued that it was not hired by Jensen Farms “to conduct an audit which would test the cantaloupe or the environment within the packinghouse with regard to the quality and safety of the cantaloupes.”

Frontera and Dillon both alleged that Primus failed to accurately audit the Jensen packinghouse in compliance with its own as well as industry standards, and provided a “superior” rating rather than failing the packinghouse in a manner consistent with these standards.

Primus argued that the cross claims failed to set forth claims for which Primus owned a legal duty. “Thus the question is: did Primus owe a duty to Frontera or Dillon with regard to the audit?” the judge said regarding the alleged breach of duty.

The issue of whether Primus’ alleged conduct was misfeasance or nonfeasance was raised.

Looking at the issue of control over the cantaloupe, Pratt wrote, “Primus had control over when the cantaloupe would be released for sale to the public. Primus knew or reasonably should have known that until it completed the Audit the cantaloupe would not be released for sale to the public.”

He also said, “The counter-claim allegations sufficiently allege that based upon the surrounding circumstances (including requiring a properly completed Audit before the cantaloupe were released for sale to the public) the marketers and distributors of the cantaloupe produced by Jenson Farms were intended beneficiaries of the audit. The audit was alleged to have been conducted for the protection of the public from physical dangers associated with consumption of tainted produce.”

Wakefern Food Corp. announces $14.7 billion in retail sales

Joseph S. Colalillo, Wakefern Food Corp.’s chairman and chief executive officer, and Joe Sheridan, president and chief operating officer, had good news for Wakefern’s shareholders, store management and staff at the company’s annual shareholder meeting in East Brunswick, NJ, Oct. 30.

The company reported that the cooperative had reached a record sales level of $14.7 billion in retail sales for the fiscal year ending Sept. 27, a 4 percent increase from the same period last year, and $11.9 billion in Wakefern sales. The cooperative opened six new ShopRite stores, five new Price Rite stores and six The Fresh Grocer stores during the same period. In addition, the company expanded its ShopRite from Home services to include 214 stores.

At the meeting, it was announced that four members have retired from the company’s board of directors: Rocco Cingari of Grade A Market Inc.; Bernard Kenny of Delaware Supermarkets Inc.; Joel Perlmutter of Perlmart Inc.; and James Sumas of Village Super Market Inc.

Four new members have been added to the board of directors, effective immediately: Jordan Coe of Waverly Markets LLC; Harry Garafalo of Milford Markets LLC; Nicholas Sumas of Village Super Market Inc.; and David Zallie of Somerset Stores LLC.

“The strength of our cooperative lies in the strength of our family businesses and their enduring commitment to their customers, which is handed down from generation to generation,” Colalillo said in a press release. “The decades of service, wisdom and expertise that Rocky, Bernie, Jim and Joel have brought to Wakefern will continue to guide us as we move forward as a company. They will remain active in their own companies and at the Wakefern committees on which they serve. We welcome our new members and look forward to their new perspective on our businesses and their contributions to future successes.”

“Year after year, Wakefern continues to grow and adapt to meet the needs of an ever-changing industry and an increasingly demanding customer,” Sheridan said. “After more than 65 years in this business, we rely on the lessons from past successes while always looking to the future for new and better ways to help our members succeed.”

Wakefern shareholders re-elected the following members to the board of directors: Joseph S. Colalillo as chairman and CEO; Larri Wolfson and Irv Glass as vice chairmen; Lawrence Inserra Jr., treasurer; Richard Saker, Jeffrey Brown and Kenneth Capano as assistant treasurers; Dominick J. Romano as secretary;  Ned Gladstein and Steven Ravitz, assistant secretaries; as well as Robert Clare, Lawrence Collins, Jon Greenfield, Charles Infusino, Vincent Lo Curcio III, Leonard Sitar, Richard Tully and Richard McMenamin.  Joe Sheridan was also re-elected as president and COO.

C&S Wholesale Grocers acquires Associated Wholesalers

C&S Wholesale Grocer’s bid to purchase Associated Wholesalers Inc. and its subsidiaries has been approved. AWI, a regional cooperative food distributor based in Robesonia, PA, operates two distribution centers in Pennsylvania and also provides retail services to its customers and members. Its subsidiaries include White Rose, which operates three distribution centers in New Jersey, and Nell’s Shurfine Markets, which operates four retail stores. The acquisition, expected to be finalized before Thanksgiving, would include substantially all of AWI/White Rose’s assets as well as their 2,200 employees.

“We are excited to have the opportunity to partner with Associated Wholesalers’ and White Rose’s strong team and customer base of independent grocers,” Rick Cohen, C&S chairman and chief executive officer, said in a press release. “My grandfather founded C&S to supply independent retailers, and while we now proudly service grocers of all sizes, this transaction will give us an even greater capacity to provide the unique services required by independents and regional chains.”

AWI entered into Chapter 11 bankruptcy Sept. 9, with C&S named as the “stalking horse” bidder, although SuperValu Inc. was also a bidder for AWI. Now that C&S’s bid has been approved, the transaction is expected to close on or about Nov. 11.

“Our first priority is to provide exceptional service to the customers, especially as we approach the holiday season,” Christopher Brown, C&S senior vice president of independent sales, said in the release. “We are committed to maintaining and enhancing the services provided to the numerous retailers who have relied on AWI and White Rose for their grocery supply needs.”

Avocados from Mexico will run eight major promotions for 2014-15

In the most aggressive marketing plan yet for Mexican avocados in the United States, Avocados from Mexico — which expects to capture a 70 percent market share for the current marketing year, has plans to run eight major promotions this season in what Avocados from Mexico President Alvaro Luque called “the boldest plan we have ever had.”

The campaign consist of five national promotions for the general market presented in key stores throughout the country and three promotions specifically for the Hispanic market.06-MexAvos-AvosFromMex-AlvaAlvaro Luque

The first promotion of the series was launched Sept. 15 in conjunction with Hispanic Heritage month, “and we’ll go up to June without stopping,” Luque said. “We don’t have one month of the year until June 2015 that we are not going to have a promotion out there.”

The next promotion was rolled out Oct. 15. “We are partnering with Conagra RoTel” in RoTel’s sports-related promotion called Hungry for Football, he said. That promotion will feature “our joint recipe” called  Rock & Guac.

Luque said he expects Avocados from Mexico to have more than 7,000 bins of product in the stores for the promotion. It will also involve a free-standing insert and some in-store coupons.

“Right after that promotion, we are going to start one called Guac Fiesta” for the months of December and January, leading up to the Super Bowl weekend. That will be a partnership between Avocados from Mexico and Old El Paso, who is “a great partner. We are going to have a lot of excitement around it.” Old El Paso is “a company, so we are going to have a lot of extra communications in radio and digital that we are working out with them,” Luque said.

“We wanted to develop something different for the brand this year,” so immediately after Guac Fiesta, Avocados from Mexico will roll out a promotion called Fanwich. Having focused on “owning” guacamole during the football season, “we want to  make the switch from guacamole to sandwiches,” he said.

The objective, according to a written statement by Avocados from Mexico to The Produce News, is “to keep momentum strong after the big game through an in-store program and an attractive consumer promotion supported by national media.”

Simultaneously, “we are going to have a crepe promotion, probably partnering with Mission Foods, and we are also  going to have  a foodservice promotion that we are working out with some big partners,” he said. “It is going to be the first time” that Avocados from Mexico has worked promotions “at three different levels at the same time.”

After the Fanwich promotion, “we go immediately into Cinco mode,” Luque said. For the Cinco de Mayo holiday, a prommotion called Ultimate Mexican Fiesta will run April and May with Heiniken and possibly another major brand as partners.

Following Cinco, in May and June Avocados from Mexico will  run a promotion called Summer Salad Festival “to inspire consumers with fresh, healthy new summer salad ideas” using Mexican avocados, according to the written statement.

In parallel with the general market promotions, Avocados from Mexico will run promotions specifically for stores  catering to the Hispanic market, he said. Those will include a Hispanic version of the Cinco festival and, in April and May, a soccer-related promotion “where we are probably going to bring back again, the soccer stars to partner with us” as was the case in 2014.

Supporting the promotions will be an extensive communications strategy, Luque said. It will include an advertising campaign with seven new television ads. “The first four are ready to roll, and we are going to launch our first ad Nov. 11 during the pregame show of the Notre Dame football game,” introducing the new “Made with Love” campaign theme.

In addition to television, starting in October and continuing through May, the campaign will include print and digital ads. The combined effort is expected to build up 16 billion impressions, he said.

Avocados from Mexico will also be doing an extensive re-design of its website, expanding the one website into four: one for the general market, one for Hispanics, one exclusively for the trade, and “for the first time,” one for foodservice, he said. The concepts were unveiled at PMA Fresh  Summit in October and the websites will go live in November.

“The core focus of our plan is to influence avocado consumers to eat more avocados more frequently,” said the written statement.

“We are concentrating our efforts in increasing penetration and frequency with the avocado medium consumers and in building more avocado baskets with the heavy consumers.”

Avocados from Mexico is committed to maintaining and accelerating the growth of avocado consumption in the United States, the statement said.

Mushroom Council announces new direction for 2015 marketing plan

Mushroom Council board members met in Kennett Square, PA, to finalize a new marketing plan to focus on the enormous market potential of mushroom blendability, which will be the primary focus of the its marketing efforts. The new targeted approach will develop mushroom blendability pilots, promotions and events in retail and foodservice. This is a shift away from the nutrition communication and influencer platform previously performed by the council to a focused market activation strategy.

“The board feels very optimistic about the new direction and plan we have developed over the past several months for 2015," Council Chairman Anthony D’Amico, president of To-Jo Mushrooms, said in a press release. "We believe 2015 will go down in history as a pivotal year for the Mushroom Council and the evolution of mushroom blendability. The industry believes strongly in the potential of the mushroom blend. We are willing to position our marketing strategy to fully support this growth.”

Mushroom blendability, the culinary technique of blending fresh, chopped mushrooms with ground meat entrees, has taken off largely in the non-commercial foodservice segment, including school nutrition, university dining, health care and corporate dining. Several commercial foodservice outlets — such as Seasons 52, Macaroni Grill and Cheesecake Factory — have also started featuring the mushroom blend on their menus. The natural progression of the blend will be deeper infiltration into foodservice and introduction to retail.

The council will develop mushroom blend pilots and promotions with retailers across the United States. Mushroom blendability opens up an entire new market for the industry by expanding the consumer experience opportunity of fresh mushrooms past the fresh produce section and into the deli, meat case and more.

“The mushroom blend is the solution to the changing consumer landscape, focusing on the transitional meat consumer which makes up one-third of the U.S. population,” Bart Minor, council president, said in the release. “The council’s new focus on the blend will allow the program to fully develop the existing tremendous blend momentum.”