Minnesota police officers can rely on the smell of marijuana as one of a number of factors to justify searching a vehicle during a traffic stop, but the odor can't be the sole consideration they lean on, the state's high court ruled in a split decision. By itself, a whiff of cannabis coming from a vehicle cannot support the "reasonable suspicion" that a search will turn up contraband or other criminal activity, the Minnesota Supreme Court said Wednesday in a 26-page opinion that upheld a trial court's decision to toss as evidence illicit items Litchfield police allegedly found in the vehicle of Adam Lloyd Torgerson. However, officers can still search a vehicle they claim reeks of marijuana, provided they can point to other factors that would establish probable cause, the justices said. "Our precedent shows that we have shied away from bright-line rules regarding probable cause and we have never held that the odor of marijuana (or any other substance), alone, is sufficient to create the requisite probable cause to search a vehicle," the high court's opinion said. "Instead, the probable cause analysis calls for the odor of marijuana to be one of the circumstances considered as part of the totality of the circumstances in assessing whether there is a fair probability that contraband or evidence of a crime will be found in a particular place." However, Chief Justice Lorie Skjerven Gildea wrote in her dissent that the majority's ruling was contrary to "common sense," saying the "medium-strength" odor the officers picked up should have been enough for them to assume that a search would turn up an illegal amount of marijuana. "The smell of burnt marijuana suggests that someone smoked marijuana in the car," Justice Gildea said. "Common sense tells us that when a person has recently smoked marijuana in their car, there is a fair chance that more marijuana for personal use will be in the car." Her dissent was joined by Justice Barry Anderson. They are the only two of the seven justices who were appointed by a Republican governor. The majority's opinion rested heavily on the high court's 2005 ruling in State v. Burbach , which said the smell of alcohol rising out of a vehicle alone can not support a vehicle search. The opinion came at an unusual time, months after Minnesota legalized the possession and sale of recreational cannabis. The ruling is therefore based on laws that were in effect at the time of Torgerson's July 5, 2021, arrest, which offered fewer reasons why a person would have marijuana in their car and allowed them to carry just 42.5 grams or less in public. The new laws allow for up to 3 ounces in public. According to the court record, police pulled over Torgerson, who was driving with his wife and child, for an infraction involving his vehicle's front-facing lights. One officer said he could smell what he would later describe as "a strong odor of burnt marijuana" coming from the vehicle, but Torgerson denied ever having pot in the automobile. The second officer asked both Torgerson and his wife if they had marijuana, as he, too, said he could smell it. Again, they insisted there was none in the vehicle, with Torgerson saying he had used it in the distant past, according to the court record. The first officer would later claim that he was trained to smell the difference between burnt and unburnt marijuana, as the former has a "skunkier smell," and he ranked the smell as a five out of 10 in strength, according to the court record. "The record does not describe the training the officers received on detecting the odors of marijuana," the justices note in their opinion. Body camera footage would show that the police told Torgerson the odor gave them probable cause to search the vehicle, according to the court record. The officers claimed to have found a "brown crystal-like substance" which they said was methamphetamine. Torgerson was arrested and later charged with possession of methamphetamine paraphernalia in the presence of a minor and fifth-degree possession of a controlled substance. On the trial court level, Torgerson moved to suppress the evidence obtained during the search, arguing the police could offer as their justification only the smell of marijuana. The lower court agreed. The state's appeal leaned on the high court's 1983 ruling in State v. Schinzing , where an officer smelled alcohol emanating from a passenger and used that as the justification for executing a search of the vehicle. But the justices noted that the officer in the Schinzing case saw the vehicle being driven recklessly, the passenger admitted to drinking alcohol, and both the driver and passenger were underage. All of this means the officer did not rely on just an odor to execute a search. Representatives for Torgerson and the state did not immediately respond to requests for comment. Minnesota is represented by Keith Ellison of the state attorney general's office, Brandi L. Schiefelbein and John P. Fitzgerald of the Meeker County Attorney's Office, Travis J. Smith and William C. Lundy. Torgerson is represented by Cathryn Middlebrook of the Office of the State Public Defender and Melvin R. Welch of Welch Law Firm LLC. The case is Minnesota v. Adam Lloyd Torgerson, case number A22-0425, in the Supreme Court of the State of Minnesota.
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Two Philadelphia police officers accused of causing a woman's miscarriage had their jury verdict win yanked by the Third Circuit after it ruled that evidence about the woman's marijuana usage was improperly allowed into the trial and likely skewed jurors' opinions on the matter. Medical experts on both sides had testified that Kenya Shujaa's marijuana use did not play a part in her miscarriage, yet a Pennsylvania federal judge still allowed it to be mentioned during the trial, the three-judge panel said in its Thursday order. Considering the general public's views on cannabis usage during pregnancy, it would be a stretch to assume that the jury would not vilify Shujaa upon hearing she smoked marijuana while pregnant, said Circuit Judge Theodore A. McKee, who wrote the opinion for the panel. "Evidence and argument regarding marijuana use had no probative value," the judge said. "Yet, it carried a great risk of causing unfair prejudice. Given that marijuana use during pregnancy is stigmatized and remains a contentious issue, it is conceivable that the jury found the officers were not liable, in large part due to negative or misplaced reactions about Shujaa's marijuana use." The appellate court ordered that a new trial be held, and it also reversed a pretrial ruling by U.S. District Judge Timothy R. Rice, who allowed evidence and arguments relating to Shujaa's marijuana use into the case. According to the lawsuit, officers Robert Schutte and Michael Navedo of the Philadelphia Police Department directly caused Shujaa's miscarriage on Sept. 13, 2015, by forcefully pushing a door that Shujaa was attempting to open and hitting her stomach in the process. The blow caused her to miscarry three days later, the suit said. The suit also names Sgt. Michael Melvin as a defendant for actions related to the incident, and the plaintiffs in the case — Shujaa and Darus L. Hunter — seek damages from the city under a theory of vicarious liability. Shujaa testified that she smoked marijuana a few times a week with Hunter, who is now her husband, according to the court record. The plaintiffs specifically asked that this evidence be excluded from the record, but Judge Rice denied this motion. Additionally, the judge brought the marijuana use up during the trial himself, the panel said. "Indeed, during the defense expert's testimony, the District Court — quizzically — raised this matter with the expert sua sponte," the panel said. "The District Court specifically asked the defense expert to comment on the impact, if any, of Shujaa's marijuana use in the case." But ultimately, the medical expert who was questioned by the judge about the cannabis did not explicitly argue that smoking marijuana was a primary, secondary or tertiary cause of Shujaa's miscarriage, according to the panel. During oral arguments, held on Dec. 13, 2022, counsel for the city, Jennifer MacNaughton, argued that Judge Rice properly admitted the evidence into trial, noting that the officers submitted an article by the National Institute of Child Health and Development stating that marijuana use is a risk factor that can lead to a stillbirth. But the panel's Thursday opinion said this finding was largely irrelevant, since the term "stillbirth" refers to the death of a fetus no more than 20 weeks old, and it was undisputed that Shujaa was only 18-weeks pregnant at the time she miscarried. MacNaughton further argued that the city's medical expert didn't totally abandon the marijuana issue, noting that he did testify that he advises his patients against using cannabis while pregnant. But Judge McKee said this was exactly the problem with allowing Shujaa's use of marijuana into the trial. "All the evidence says, as to this plaintiff, [marijuana usage] had no impact," he said during the oral arguments last year. "But jurors know that pregnant women shouldn't engage in certain kinds of behavior. They are going to think she's a lousy mother. They can't be sympathetic to her." Shujaa's alleged injury happened at Hunter's home, the lawsuit claimed. The police were responding to a call they had received from the mother of Hunter's daughter saying that he had violated his custody agreement. The suit alleged that the officers entered his home in an "unprofessional manner," but then left after Hunter presented them with the agreement showing that he was in compliance with the custody arrangement. Hunter then called the police department to file a complaint about the officers' behavior, the suit said. After which, Schutte and Navedo drove to his home again that night to tell him they were aware he had complained and to warn him not to get himself "locked up." It was during that second visit that Shujaa was hit, according to the suit. The Philadelphia Police Department declined to comment on this story Friday, and representatives for Shujaa and Hunter did not immediately respond to a request for comment. Circuit Judges L. Felipe Restrepo, Theodore A. McKee and D. Brooks Smith sat on the panel for the Third Circuit. Hunter and Shujaa are represented by David Costigan, John P. McClam and Monica Gorny of Dechert LLP. The city and the officers are represented by Jennifer MacNaughton of the Philadelphia Law Department. The case is Darus Hunter et al. v. City of Philadelphia et al., case number 21-2912, in the U.S. Court of Appeals for the Third Circuit. Federal OSHA protections don’t apply to 96 percent of the animal agriculture operations that hire workers in America. When people die on the job, the federal agency doesn’t respond 85 percent of the time. On a rainy morning in September 2013, Lazaro Alvarez Andrade greeted the cows at the small dairy where he worked in rural New York. He was preparing to lead them six at a time into the milking parlor when he heard the thunder of hooves behind him. Before he could run, a young bull—which had been brought to the farm without his knowledge—rammed into him from behind, slamming him to the ground. As he fell, his face struck a metal rail separating two cow stalls. He felt intense pain, and he could not see out of his right eye. Blood gushed from his face, soaking his short-sleeved shirt and denim pants and running over his oilcloth boots. The owner of the farm, an older white man, pulled the bull off. He led Andrade to a chair outside the milking parlor and told him to sit; he’d take him to the hospital once he had milked the cows—around 80 total—he said. For at least two hours, Andrade sat bleeding outside the milking parlor while the farmer finished the morning’s chores. Even more present than the intense pain, Andrade said later in Spanish, was his worry that he would lose his eye. “It’s not like losing a foot or a hand—vision is the most important thing,” he said. “I would have been totally useless.” Originally from Mexico City, Andrade had been in the United States for only five months. Prior to his arrival, he had worked in transportation logistics for the pharmaceutical industry for 40 years before his employer automated operations and laid him off. In search of work to put his son and daughter through college and support his wife and elderly parents, he emigrated to the U.S. at 55 years old. In his new country, he did not have family, he did not speak English, and he had no one—except his employer—to turn to for support. Outside the milking parlor, he did the only thing he could think of to help himself: he found a bottle of iodine used to disinfect the cows’ teats, applied some to a towel, and held it to his face to control the bleeding. “I felt really vulnerable,” he said. The bull attack nearly cost Andrade his vision, in addition to breaking two of his teeth, fracturing bones in his face and cracking two of his ribs. It also triggered a chain of events that revealed just how precarious his position was, working in the U.S. in an industry with few protections for workers like him. Even though agriculture is one of the most dangerous occupations in the country, ranking third among all occupations in fatal injuries, workers in the U.S. dairy, poultry, and livestock industries lack the basic protections that workers in most every other industry take for granted. While the federal Occupational Safety and Health Administration (OSHA), created in 1970 to oversee worker safety, has hundreds of standards to protect workers in industries like construction, it has only a handful protecting workers in agriculture. And workers like Andrade are often exempt from the labor protections it does offer. That’s because a rider attached to OSHA’s budget in 1976 aiming at protecting small farms from onerous government oversight prohibits the agency from using federal funds to investigate injuries and deaths on farms with 10 or fewer non-family employees. Exceptions are only made for farms that maintain labor camps. Today, in the increasingly industrialized and automated U.S. dairy, poultry, and livestock industries, where a single worker can tend thousands of animals and a staff of fewer than 10 is the norm, the rider leaves the vast majority of animal agriculture workers without oversight or recourse when they get hurt. Even when a worker is severely injured or killed on a farm with 10 or fewer workers, OSHA is prohibited from investigating. Despite research, news reports, and articles about worker injuries and deaths, a Civil Eats investigation has found that because of the exemption, workers are unprotected by federal OSHA labor laws at 96 percent of the operations that hire people to produce pork, eggs, beef, poultry, and milk in America. And federal OSHA sees only a sliver of the total fatalities associated with that work. Over the decade between 2011 and 2020, for instance, 85 percent of the deaths related to animal agriculture were not reported to the agency. OSHA confirmed that the rider handicaps its ability to address the safety of animal agriculture. “The rider places limitations on OSHA’s ability to intervene, but that does not diminish our concern for worker safety,” said Doug Parker, OSHA’s assistant secretary of labor. Parker did not respond to more detailed questions about the high percentage of fatalities falling outside the agency’s jurisdiction or OSHA’s inability to investigate worker deaths. It is impossible to know how many worker deaths this limited authority obscures. No other federal agency routinely gathers data that is specific to injuries and deaths among farm employees, making it tough to parse them from overall farm fatalities. What is clear, however, is that the federal government lacks a true picture of the dangers of animal agriculture, and though a small number of states can investigate small-farm incidents using state funds, federal OSHA legally cannot investigate or sanction employers in what may be a significant number of worker deaths. “Agriculture is dangerous, animals are dangerous, and really, the government’s hands are tied to help workers. And a lot of these are immigrant workers who are very scared to complain and speak up,” said Deborah Berkowitz, who spent six years as chief of staff and then a senior policy adviser for OSHA during President Obama’s administration. The lack of safeguards is especially alarming, given the factory-like state of animal agriculture today. More than 90 percent of agricultural animals in the U.S. are raised mostly indoors in facilities called concentrated animal feeding operations (CAFOs), which typically house at least 1,000 “animal units”—equal to about 1,000 beef cows, 2,500 hogs, or 125,000 broiler chickens—on site. What OSHA reports do exist paint an ugly picture. Thirteen people have drowned or asphyxiated in manure pits at dairies since 2003; others have died after being attacked, gored, or trampled by cows or bulls, entangled in rotating equipment, crushed or run over by heavy machinery, and suffocated in piles of hay, grain bins, and silos. In dairies and hog and poultry barns, a number of workers have accidentally injected themselves with vaccines intended for the animals, resulting in poisoning or wounds. Dairy workers have been hospitalized after drinking chemicals they mistook for water. Exposure to manure infected at least one hog barn worker with E-coli, and others have lacerated their feet with the power washers required to clean the floors. And workers across most animal-agriculture industries are frequent victims of amputations caused by oft-present heavy machinery that catches clothes and body parts, or by crushing injuries sustained while moving animals. These incidents are in addition to the innumerable broken bones, sprains, and head injuries normally associated with manual labor and animal contact. And though identified as “accidents,” many of them would be preventable through training, safety equipment, and more standardized protocols. Despite the dangers inherent in the work, the agricultural lobby, led by organizations like the American Farm Bureau Federation, opposes regulation and worker protection with arguments that hearken back to the idea of farming as a natural, wholesome occupation and farmers as self-reliant people who do not need government bureaucracy in their way. Members including the Farm Bureau, as well as poultry, meat, and dairy companies and trade groups, declined to comment on their anti-regulatory agenda or respond to detailed questions from Civil Eats about the OSHA exemption and its impact on the safety of animal agriculture workers. However, a few—namely the North American Meat Institute (NAMI), the National Pork Producers Council (NPPC), and Smithfield—pointed to voluntary industry safety programs as evidence of their concern for worker safety. “Smithfield Foods supports sensible government regulations that protect the health and safety of our workers,” said Ray Atkinson, Smithfield’s director of external communications, in a statement. “Worker safety and health is a key pillar of Smithfield’s industry-leading philosophy.” Still, critics say the industry’s exemptions from worker protections should be re-examined. “There’s always been this myth of the Yeoman farmer out there,” said Robert Martin, director of the food system policy program at the Johns Hopkins Center for a Livable Future. “‘We don’t need to regulate agriculture; it’s an individualized industry.’ There’s been this agricultural exceptionalism in policy, regulation, and legislation, and it’s really just not the way things are anymore.” Lazaro Alvarez Andrade is among those most impacted. After two hours outside the milking parlor, the farmer’s wife drove him to the hospital in the farm’s pickup truck, stopping by the house the farmer provided about five minutes down the road so he could put on a clean shirt. Because she spoke only English and he spoke only Spanish, they were quiet during the near half-hour drive from there to the hospital. Around 1 p.m., three hours after the incident, Andrade finally saw a medical team. The doctor was surprised, he remembered. “They said, ‘What happened to you? What happened to you?’” Andrade said. “I had a lot of blood on me, and it was continuing to bleed.” The doctor gave Andrade five stiches from the middle of his right cheek up to his right eye. He wanted to put in a sixth stitch as well, but it may have damaged his eyeball, so he refrained. The doctor told Andrade that given the seriousness of his injuries, he was lucky to have emerged with his vision—and his life. Minimizing Risk and Externalizing Impacts This country is dotted with CAFOs. From Washington to Iowa to North Carolina and across great swaths of the Southwest, barn after windowless barn holds cows, hogs, and chickens being milked, fed, and watered by the thousands, sometimes the tens or hundreds of thousands. A tiny handful of companies reap the largest share of profits from these operations. In pursuit of efficiency and revenue, animal agriculture has become extremely consolidated over the last few decades. Now, the top four companies in each industry control the majority of the market share—54 percent of the poultry industry, 70 percent of the pork industry, and 85 percent of the beef industry. They make billions—in fiscal year 2021, for example, the top processor Tyson Foods reported sales of $47.05 billion. Meat and poultry companies—including Tyson, JBS, Cargill, and Smithfield—are practiced at diffusing risk, minimizing liability, and externalizing the negative impacts of their operations through contracting and byzantine corporate structures. For instance, as vertically integrated corporations, or “integrators,” they contract with independent farmers to grow their animals, and those farmers then hire the laborers needed to manage the animals, a setup that distances the corporation from the people doing the work—and often allows the workforce to fall below the threshold for OSHA oversight. The companies named and their trade group affiliates did not respond to detailed questions from Civil Eats about their use of these techniques. Aaron Johnson, who manages the Challenging Corporate Power program with Rural Advancement Foundation International-USA (RAFI) and works most closely with the poultry industry, said the tactics externalize labor risks. “They have got more than 10 growers in a region, but because those are each independent entities, then none of those growers and whoever else is working on those farms would be under OSHA scrutiny,” he said. “Perdue’s overall labor pool is definitely above that OSHA exemption, but because they’ve externalized that out into the contract structure, they don’t have to worry about it.” In the hog industry, larger companies have also found a way to divide up the workforce and avoid liabilities, potentially also avoiding OSHA oversight. Take the Illinois-based Carthage System, for example. A top pork producer in the U.S., Carthage exemplifies a growing model of hog farming that brings management and service firms together with investors to cooperatively fund CAFOs that purport to be family farms. The CAFOs are registered as subsidiary LLCs and run by management firms, not by farmers. Other LLCs in the system are set up to site the CAFOs, train and manage employees, run labor camps that house workers, conduct animal research, and provide veterinary services. In the Carthage system, the CAFOs breed and then wean a supply of feeder piglets for more than 300 farmers in six states who have invested in the system. Those farmers then grow the pigs to market weight and send them to processors for meat. The network is specifically designed to protect corporate assets, shield the identities of investors and protect them from liability in the case of lawsuits, said Loka Ashwood, a sociologist at the University of Kentucky. Ashwood and her colleagues published a study about Carthage System and its network, which described how it allows one LLC to easily fold when faced with a pollution lawsuit or bankruptcy without impacting the assets of all the others. The same structure can also shield the CAFOs from liability connected to labor issues, said Ashwood. And it provides little incentive to improve working conditions. Within Carthage, an LLC called Professional Swine Management hires and manages the laborers for all the CAFOs, shielding investors from any disputes or investigations arising over worker health and safety. It’s nearly impossible to decipher who the investors are, she said, so workers can’t directly pressure or sue them. OSHA said that each CAFO registered as an LLC is liable as a separate entity. “Evaluation of corporate structure is assessed on a case-by-case basis,” the agency told Civil Eats. The scenario allows corporate networks to divvy up a large number of workers among dozens of CAFOs, potentially pushing some below the threshold for OSHA enforcement and keeping workers outside the reach of federal OSHA protections. “If something egregious does happen, they’re incredibly isolated,” Ashwood said. “It’s hard on the people, and I think [the CAFOs] are made that way by design.” Carthage isn’t unique in using the model, she said. Other pork powerhouses use a similar model, running a network of specialized LLCs to organize shareholder investments, deflect lawsuits, and minimize financial risks for investors, including for labor, Ashwood said. Carthage System’s founders, Joe Connor and Bill Hollis, did not respond to phone calls or to detailed questions from Civil Eats about the ownership and structure of the organization. A Compromised Mission As an employee at a small New York dairy, Andrade was also working in a consolidated industry bent on efficiency and profit, often at the expense of other values. Following his third doctor’s appointment, nine days after his accident, he struggled to talk because of his facial fractures and damaged teeth, and his broken ribs made bending and climbing stairs painful. He was eating a traditional Mexican breakfast in the two-story house he shared with a man named Salvador, a dairy worker at another operation in the area, when the farmer appeared in the doorway. With Salvador as translator, the farmer told Andrade that he was no longer going to be useful on the farm and had no more work there. He handed him $500 in cash owed for the previous week’s work and told him to leave. While the farmer had been kind to Andrade before the accident—even taking him to the store to buy groceries a few days prior—he approached Andrade in its aftermath with aggression, speaking harshly, and opening and closing his fists, Andrade said. “He was trying to scare me, to cause me to be fearful, saying I wasn’t going to be able to work there anymore,” he said. “The first thing that came into my head is, ‘Where am I going to go? I have nowhere to go if the house and the work go together,’” Andrade said. Given the farmer’s behavior, he sensed he needed to be out soon. To help Andrade have a place to live while he healed, Salvador quit his job to head south for different work. The two left that night. Especially at operations not under OSHA’s jurisdiction, workers like Andrade are at the mercy of their employers—the conditions they set, the rules they create. “In essence, there is no oversight for labor and housing conditions for immigrant farmworkers,” said Will Lambek of Migrant Justice, a Vermont-based nonprofit that helps farmworkers attain economic justice and human rights. For foreign workers especially, he said, there are no effective ways to protect their rights through litigation and no practicable means for workers to win rights through collective bargaining. “There is no effective regulatory apparatus,” he said. “What employers say goes, and workers have very little recourse.” It wasn’t supposed to be this way. President Richard Nixon created OSHA in 1970 to require that American employers provide their employees with safe work environments. But almost immediately, corporate forces began efforts to restrict or abolish it, citing what they viewed as its unnecessary and costly bureaucracy. “Congress passed this law with a lot of promise, and then Republicans and big business have tried to weaken and even kill the law ever since,” Berkowitz said. “I started in the field in 1978, and there were all these bills to get rid of OSHA enforcement. There are still bills coming now to get rid of OSHA. Even though it’s such a weak and small agency. . . . It’s always been a target of big business.” OSHA’s budget is consequently anemic. While the U.S. Environmental Protection Agency (EPA) had an $8 billion budget in 2020, OSHA’s budget was a mere $600 million that year, according to a report on the agency. And while OSHA oversees between 7 and 8 million workplaces employing around 130 million workers, federal and state OSHAs combined have only around 2,000 inspectors—and about 5.6 federal inspectors for every 1 million workers. That means that if OSHA inspectors were to visit each workplace once, it would take 165 years. “All that power [the agricultural lobby has] is because of dollars given to politicians, spent on campaigns, or spent influencing state and local politics at every stage,” Berkowitz said. “The lobby is huge, and it’s powerful, and politicians get scared.” Once the rider intended to relieve small farmers of the burdens of excessive bureaucracy passed in 1976, farms with 10 or fewer non-family employees and no temporary labor camp slipped out from under federal OSHA oversight. In addition to being prohibited from investigating worker injuries and deaths, OSHA also cannot conduct programmed safety or health inspections in these workplaces or respond to employee complaints. Thirteen states and territories that run their own OSHA programs—including California, Washington, Oregon, and Virginia, as well as Puerto Rico—do allow oversight of small livestock operations using state funds and they have lower fatality rates than other states. Andrade wasn’t living in one of those states. Wounded, and now unemployed and homeless, he was in an especially vulnerable position. He connected with Rebecca Fuentes at the Workers’ Center of Central New York, who he’d met at a health and safety outreach session she’d conducted at a large dairy where he’d worked. While advocating on Andrade’s behalf, Fuentes soon collided with the small farm exemption. She filed a complaint with OSHA detailing Andrade’s accident, but the federal agency responded that because the dairy had fewer than 11 hired employees (just two, Andrade said), it was not within OSHA’s jurisdiction. The agency said it was prohibited from conducting an investigation. “OSHA gave us a paper that said they couldn’t go there,” Fuentes said. “No matter if a worker dies, they cannot go there. They cannot do an inspection, they cannot fine them, they cannot spend one penny on a farm with 11 or less workers,” she said. “This is what the lobby is doing—they found this loophole, and they’re advising all the small farms not to be bothered.” In places where OSHA does have oversight, it can and has made a difference: while an average of 38 people were killed at work each day nationwide back when the agency was first created, as of 2015, only about 13 people were killed at work each day, even with a workforce almost twice as big. “At the end of the day, it has to come from regulation setting a playing field,” said Jessica Maxwell, the executive director of the Workers’ Center of Central New York, of improved conditions for workers. “Otherwise, that competition—that race to the bottom of cutting labor costs and increasing production to maximize profits—that’s always a losing game for workers.” An Unseen, Unsupported WorkforceThough it was against the rules, Salvador snuck Andrade into the on-farm housing of the new dairy where he worked and let him sleep on a broken-down couch in the living room while he recuperated out of sight. “Salvador means ‘savior,’” Andrade noted, telling the story later. In the months that followed, standing and talking were still painful and difficult, so he spent most of his time on the couch. But when Salvador would bring home groceries after his shift at the dairy—tortillas, rice, beans, meat, potatoes—Andrade would cook them into meals to show his appreciation. “I couldn’t exert myself too much, so I made simple things,” he said. The absence of protection and support for animal-agriculture workers like Andrade has deep roots in history. They are not—and never have been—subject to the same protections as workers in other industries. The National Labor Relations Act, a federal law enacted in 1935 as part of the New Deal, enables workers to collectively bargain—and specifically excludes most farmworkers. And the Fair Labor Standards Act, enacted in 1938, created a minimum wage, established overtime pay, and put child labor protections in place—and purposefully exempted most farmworkers as well. Its protections for agricultural workers have improved only slightly since. “In the creation of modern labor law regime in the U.S., two sectors were categorically excluded . . . agricultural workers and domestic workers,” said Lambek of Migrant Justice. “You don't need to be a history professor to guess who was performing agricultural and domestic work primarily in the United States in the 1930s. That is, of course, Black people—the descendants of slaves,” he said. “This was a legislative bargain that was deemed necessary to win the support of Southern Democratic senators to pass the landmark labor legislation.” And, he said, it forms the legislative basis for the conditions that we have today, nearly a century later. The structure of the animal-agriculture industry reinforces workers’ invisibility and inability to access help and support, says Alex Blanchette, a professor of anthropology at Tufts University who worked in pork CAFOs to write the book Porkopolis, about how the standardization and industrialization of factory farms affects the rural communities that house them. “A 20,000-head-a-day slaughterhouse for hogs might employ 1,000 to 2,000 different people on a single site. People are in constant contact with each other, and unions can form under those conditions,” he said. “But with CAFOs, with industrial animal production, we're talking companies that are splitting production across 500 different barn sites or something like that, spread across a 100-mile-radius region.” Organizing workers is especially challenging when dealing with a group of workers, “that do not know each other, they all have different formal bosses and a subcontracting relationship, and in turn have minimal legal federal rights to unionize or organize,” Blanchette said. And without the safeguard of formal OSHA oversight, workers at small livestock operations are at an extreme disadvantage if and when they try to access basic compensation and care for injuries. That was the case for Andrade, who, in the aftermath of the bull attack, was told he needed to see eye and bone specialists, care he was not able to afford without a job. The Workers’ Center of Central New York put him in touch with immigration and workers’ compensation attorney Jose Perez, who manages about 30 workers’ comp cases per week for farm and animal agriculture workers in central and western New York. According to Perez, the owner of the dairy farm where Andrade was hurt didn’t carry workers’ compensation insurance because he believed he did not employ enough workers to need it. And according to legal records, he disputed the claim that Andrade was an employee, saying he only hired him for temporary work. The farmer also denied witnessing the injury, according to the records. It was basically one person’s word against another’s, Perez said. “The farmer played dumb—‘I don’t know what happened; I was not there; I didn’t see anything,’” he said. Perez litigated the case. “They made many claims,” he said about the farmer. “What really saved us, to be honest, was when we went to get the medical records . . . Lazaro talked to one nurse and explained how the injury happened.” The medical record corroborated Andrade’s account. Andrade chose to settle in 2016, three years after the injury, for $10,000. When he saw specialists soon after, they advised recasting his broken ribs, which had healed out of alignment, to avoid lifelong pain. That outcome would likely have been different if OSHA had been allowed to investigate and document what happened after Andrade’s attack, Perez said. “It would have made my case right away.” In addition to resolving Andrade’s case and getting him the money he needed to see medical specialists sooner, an OSHA investigation may also have resulted in safer conditions on the dairy, Andrade said. “I believe OSHA would have given recommendations to make it safer for the workers, because bulls are big and always aggressive.” In a Consolidated Industry Corporations Create the Rules Even in circumstances where OSHA can intercede, penalties for lives lost and lifelong, debilitating injuries sustained in animal agriculture are often nominal and can vary widely. For example, in Parks, Nebraska, when an employee at a cattle feedlot became engulfed in grain and suffocated in 2011, OSHA fined the operation $64,000. Minnesota OSHA fined an egg-production facility in Mapleton, Minnesota, $32,350 after an employee became entangled in the rotating shaft of the conveyor system and died in 2018. But the agency in Virginia requested no apparent penalties from a dairy farm in Bridgewater, Virginia, after five people were asphyxiated by gasses in a liquid cow manure pit in 2007. Nor did it assign penalties after an employee was killed by a charging steer at a cattle ranch in Bland, Virginia in 2020. Still, OSHA did record violations in two of those cases and required that the operations abate health and safety issues. That’s much more accountability than in incidents like Andrade’s, which fall outside the agency’s purview. Some see farmers as caught in the fray between their workers and the industry. Because the meat and dairy industries are built on efficiency and profit margins are slim, those growers often focus on survival—and simply being able to pay their workers—rather than improving workplace safety.“On small farms, it’s not like people are saying, ‘I want to create an unsafe environment.’ It’s not like they’re saying, ‘I don’t care about my workers,’” said Maggie Gray, a professor of political science at Adelphi University in New York who studies low-wage, non-citizen workers in the food and agriculture industry. “A lot of these smaller farmers, they're trying to do the best they can. And because of the economics of farming, it's really hard for them to have safe workplaces.” Over the years, Congressional leaders have made attempts to remove the appropriations rider, though all have failed. In 1999, Senator Jack Reed (D-Rhode Island) proposed an amendment to give OSHA permission to investigate deaths on small farms if the victims were children. Reed emphasized that the agency would be restricted to determining the cause of the accident and would have no power to impose penalties. The proposal failed in a committee vote.In recent years, Representative Rosa DeLauro (D-Connecticut), who chairs the House Appropriations Committee and the Labor, Health and Human Services, Education, and Related Agencies appropriations subcommittee, has repeatedly tried to remove the rider from the bill that funds OSHA. “The implications this language has on worker health and safety and racial equity give it no place in our federal spending bill,” she said via email.
While the House labor appropriations committee for fiscal years 2020, 2021, and 2022 removed the provision, she said Republicans refused to remove it from funding legislation, and the rider has gone through each time. “The meat industry continues to push back against sensible protection measures for their workers, prioritizing production and profits over health, safety, and equity,” she wrote. About a dozen meat, dairy, and poultry trade associations and companies contacted by Civil Eats declined to comment on this characterization or answer detailed questions regarding the industry’s lobbying expenditures and reliance on family farm narratives to discourage regulation. A few did, however, pointed to voluntary industry safety programs. The North American Meat Institute, which represents the companies that process 95 percent of the pork, beef, and veal in the U.S., said its partners’ Protein PACT aims to reduce 2019 workplace injury levels by 50 percent by 2030. Smithfield described its Smithfield Injury Prevention System (SIPS) program, a worker-safety program implemented in 2018 that involves annual audits of all facilities, including farms. “These initiatives, among others, are responsible for Smithfield’s safety record that not only exceeds our industry peers, but also tracks better than a broad range of non-manufacturing-industry sectors,” said Atkinson, Smithfield’s director of communications, in a statement. The National Pork Producers Council similarly stressed “agriculture’s proven track record” of developing health and safety management plans and worker safety training programs. “While OSHA regulations cover all farms, pig farmers go beyond regulatory compliance to protect the health and well-being of their employees,” a council representative said in a statement, describing the industry’s investments in on-farm certification and auditing programs and training to support worker safety. Berkowitz, however, describes the agricultural lobby as "incredibly powerful" and bent on fighting government regulation. In 2021, for example, the National Pork Producers Council alone spent $2.2 million lobbying at the federal level, and Dairy Farmers of America spent $1.3 million. Individual companies spent nearly as much or more. Tyson Foods spent almost $2 million in 2021; the China-based WH Group, the largest pork company in the world and owner of Smithfield Foods, spent $920,000; and the Brazil-based JBS, the largest meatpacking company in the world, spent $794,000. The lobby relies on a number of techniques to sway legislation and public opinion, using campaign contributions to influence politicians toward their causes, employing ag gag laws to silence critics, and relying on philanthropic arms that fund things like community centers and child nutrition programs to build goodwill—and distract from the harm they cause. The meat industry’s arguments against regulation and worker protection are often most strident when they center on the idea of “family farms”—of small, independent, mom-and-pop operations just scraping by, according to numerous interviews, as well as industry statements on proposed legislation. They emphasize that these homespun establishments are the American way and that requiring them to abide by government health and safety standards, like other workplaces, could put them out of business. In one 2012 example, when the Obama administration tried to pass agricultural child labor laws to protect children from dying on farms (which was happening for teens at a rate more than four times that of those working in non-agriculture industries), the agricultural lobby and its representatives rallied government leaders and the general public the against it. Though the proposal exempted children who worked on their parents’ farms, it drew vehement criticism from the Farm Bureau as well as Republican lawmakers and a few Democrats, too—all centered on the idea that the protections would prevent farm children from being able to do chores, destroying family farms. More than 70 House lawmakers, led by Representative Denny Rehberg (R-Montana), wrote the Labor Department a letter saying the rule challenged “the conventional wisdom of what defines a family farm in the United States.” “Even though they specifically exempted any relative,” said Berkowitz, who was leading OSHA at the time, “the farm lobby screamed and yelled at the top of their lungs and got ginned up that this would be the ‘end of the family farms.’” In response, the Labor Department withdrew the proposal. Hard Realities on the Ground After a couple months on his friend’s couch, Andrade eventually felt well enough to take a job at another dairy, and he has continued to work at dairies ever since, about 20 in all, ranging in size from small to huge. The largest CAFO he worked for employed about 50 people, all Latino, in demanding 12-hour shifts; he and five others were responsible for milking the operation’s 15,000 cows two to three times a day. “It’s really work under pressure. You have to finish milking all the cows you’re supposed to,” he said. “You can’t let them go un-milked.” Absent new legislation and increased scrutiny of animal agriculture, challenges for workers like Andrade continue. Over his near decade in the industry, he said he has never received training from his employers in any language and he has relied instead on word-of-mouth instruction from his colleagues to learn the ropes. Because of this, he has witnessed accidents in addition to his own. In 2015, a coworker found an unmarked bottle containing a mixture of bleach and acid and, thinking it was liquid soap, applied it to his skin. When he inhaled the fumes, he began to have trouble breathing and talking. Hearing his screams, his coworkers, including Andrade, almost called an ambulance, but the man was able to recover his breath after a few hours without a trip to the hospital. And a few months ago, a near 1,500-pound dairy cow stepped on the foot of a woman he works with, putting her in the hospital and out of work for three months. Additionally, through the Workers’ Center, Andrade knew a 31-year-old Guatemalan dairy worker named Marco Antonio who was killed in 2014 at a family-owned organic dairy farm in Penn Yan, New York. He had been cleaning an auger in the grain silo—a task he had never been trained to do—when his body got caught and mangled in the rotating machinery. The lack of training and protocols in the dairy industry—on top of the long hours and demanding work—puts workers at a disadvantage when trying to stay safe. “If there were protocols in place, they would be followed,” said Andrade, who, through his affiliation with the Workers’ Center, has begun speaking out for other workers. “In the pharmaceutical industry where I worked for 40 years, we had written protocols.” Recounting his experience with his own injury, and OSHA’s limited jurisdiction and ability to help him, Andrade said he believes the agency should play a greater role in protecting the people who produce America’s meat, eggs, and milk. “The economy in agriculture in the U.S. is based on Latino labor,” Andrade said. “The work is dirty, risky, and poorly paid.” In addition to investigating small farms, the federal agency should be stricter with all farms, he said. “There would be better supervision that way, and better work, and there wouldn’t be as many accidents.” Trump Changes Lawyers in Georgia, As More Defense Attorneys Enter Election Interference Case8/24/2023 What You Need to Know
As Donald Trump is scheduled to surrender Thursday to authorities in Georgia on charges that he schemed to overturn the 2020 election in that state, he is changing defense attorneys. Steven Sadow is replacing Drew Findling on Trump’s Georgia legal team, according to multiple news reports. According to news reports, Sadow said in a statement that Trump “should never have been indicted,” adding, “He is innocent of all the charges brought against him.” He added that “prosecutions intended to advance or serve the ambitions and careers of political opponents of the president have no place in our justice system.” Sadow is a longtime Atlanta criminal defense attorney who handles high-profile and white-collar on a counsel basis for Schulten Ward Turner & Weiss. Among Sadow’s recent clients have been rapper Gunna who was charged in a racketeering case in Georgia in 2022. Sadow earlier this year helped represent Christian Fletcher, CEO of Atlanta medical testing company LifeBrite Laboratories, as part of a group accused of having roles in an alleged $1.4 billion drug-testing fraud case. A federal jury acquitted Fletcher in a retrial in Jacksonville, Fla., in March. Sadow’s clients also have included Baltimore Ravens football legend Ray Lewis, who was found not guilty of murder in a 1999 case following the Super Bowl in Atlanta; and rapper and business mogul Rick Ross, who pleaded no contest to misdemeanors and received probation after facing mandatory life imprisonment on kidnapping and multiple violent felony charges in 2017. Trump’s presence in Fulton County follows many of his associates. Rudy Giuliani turned himself in Wednesday to the Fulton County Jail to be booked on a variety of charges related to being former President Donald Trump’s chief organizer of an alleged plot to interfere in the 2020 election in Georgia. Attorney Brian Tevis of The Tevis Law Firm in Atlanta entered the Fulton County Courthouse on Wednesday afternoon to negotiate a bond for Giuliani. The former New York mayor agreed to a bond of $150,000 in the racketeering case, CNN reported. In a video posted to the X social media platform, previously known as Twitter, Tevis told reporters on his way to the courthouse it “remained to be seen” if he would be representing Giuliani long-term, who reportedly is cash-strapped. “First we’re going in to negotiate a bond and I’m sure we’ll make those decisions after that,” he told a reporter. Trump reportedly is scheduled to host a $100,000-a-plate benefit dinner and roundtable discussion with Trump and Giuliani at Trump National Golf Club in Bedminster, New Jersey, on Sept. 7 to raise funds for the former New York mayor’s legal fees. Trump and 18 other defendants were charged in an Aug. 14 indictment for alleged interference in Georgia’s 2020 presidential election. Trump agreed to a $200,000 bond Monday while co-defendants and attorneys John Eastman, Sidney Powell (who also turned herself in Wednesday), Jenna Ellis and Kenneth Chesebro each agreed to $100,000 bonds, according to The Associated Press. The 41-count indictment in Fulton County Superior Court names Trump and some of his former attorneys, including Giuliani and Eastman, as well as some national and Georgia supporters of the former president, a sitting state senator and some former local election and Republican Party officials. Those indicted included Trump; Giuliani; Eastman; former Chief of Staff Mark Meadows; former Georgia GOP leader David Shafer; State Sen. Shawn Still; pro-Trump attorneys Robert Cheeley and Chesebro; former Coffee County GOP official Cathy Latham; former Coffee County elections director Misty Hampton; Trump campaign official Michael Roman; Atlanta bail bondsman Scott Graham Hall; and former Trump campaign attorneys Ray Smith III, Ellis and Powell. Others include Harrison “Willie” Floyd, head of Black Voices for Trump, as well as Trevian Kutti, a publicist, and Illinois pastor Stephen Lee, both tied to an alleged intimidation effort of an election official. All the defendants were required to turn themselves in by Friday. As the Daily Report earlier reported, defense lawyers for Trump and the 18 other defendants charged in the indictment range from a small-town defense lawyer to current and former Am Law 200 partners. More defense attorney names have surfaced in the last two days.
An Idaho Department of Health and Welfare policy that places women on a registry for ingesting cannabis while pregnant discriminates against them for not living up to a certain "image of pregnancy and motherhood," according to a woman fighting to remove herself from the database. Keeva Rossow is currently on the hook for using THC while pregnant, facing 10 years on a state list of alleged child abusers. But she argued in a Monday response that the registry is illegitimate as fetuses are not yet children, with the state exceeding its authority granted under the Idaho Child Protective Act, which doesn't have to do with prenatal life. Plus, she argued, pregnant women have a constitutional right to be free from government interference with their bodies, including during pregnancy. And the U.S. Supreme Court's decision in Dobbs v. Jackson Women's Health Organization does not suggest prenatal life confers personhood under the 14th Amendment, the response said. "The leap in defendant's argument to expand current constitutional law would create not just a slippery slope, but rather an uncontrollable landslide," the response said. "If a zygote at the moment of conception were legally recognized as a 'child,' what legal rights would it have?" it added. "Would a pregnant person have any right at all to smoke cigarettes, drink alcohol or engage in long-distance running? If a pregnant person were to lose a pregnancy due to poor nutrition, would she be liable for negligent homicide?" In short, the response said, a woman's decision to ingest what she wants while pregnant is "no less substantial" than her right to use contraception or to carry to term. Rossow named Department of Health and Welfare Director Dave Jeppesen as the defendant. Rossow sued in March and said she, along with other women, had been placed on the registry for 10 years because of a prenatal drug test that showed she used THC, which she used to treat severe nausea and vomiting associated with her pregnancy. Her suit noted that while THC is considered a controlled substance under Idaho law, alcohol and cigarettes are not, and the policy does not consider whether the substance poses any risk to the unborn fetus. Rossow said her daughter, born in December 2021, is healthy with no known medical issues. But she received a letter two weeks after her daughter's birth saying she was being placed on Level 2 of the registry, a designation that states she poses a "medium to high risk to children," her suit said. And while Rossow exhausted the administrative process for review of her placement on the registry, that does not mean she or other pregnant women receive due process under the law, she argued. Counsel for Rossow and the state did not immediately respond to requests for comment on Wednesday. Rossow is represented by Emily MacMaster of MacMaster Law PLLC. The state is represented by Lincoln Wilson of the Idaho Attorney General's Office. The case is Rossow v. Jeppesen, case number 1:23-cv-00131, in the U.S. District Court for the District of Idaho. A cannabis-friendly banking firm has agreed to pay $5 million to resolve a former client's claims that the firm failed to pay taxes on its behalf to California, the parties told a federal court Wednesday, with the firm asking the court to close the case. Pacific Banking Corp. and Cann Distributors Inc. have settled the cannabis company's claims that the banking firm breached a contract by failing to pay taxes to the California Department of Tax and Fee Administration on Cann's behalf, according to a stipulation filed with a California federal court. An attorney for Pacific Banking asked the court to close the case, citing the resolution. Cann filed the case in March 2020, alleging Pacific Banking failed to pay millions of dollars in California tax payments and vendor invoices on its behalf. Cann and CCSAC Inc., an affiliated company, entered into agreements with Pacific Banking to conduct some transactions on their behalf and had asked the banking firm to make a $1 million payment to California for Cann's taxes, according to the complaint. The banking firm has operated as an intermediary between cannabis companies and more traditional banks. While Pacific Banking said the payment had been made to the California tax department, the department said no payment had been made and assessed penalties and interest for nonpayment, according to the complaint. Cann and CCSAC believe that their funds had been transferred to a company controlled by Pacific Banking's CEO, the complaint said. The court in April 2020 issued an injunction blocking the banking firm from using its funds while the litigation proceeded. The parties have since sparred over discovery, and Cann has sought sanctions, contending that Pacific Banking's CEO turned in doctored business records. The $5 million resolution settles all of Cann and CCSAC's claims in the case, including their bid for sanctions, according to the stipulation. Steven M. Selna of Benesch Friedlander Coplan & Aronoff LLP, who is representing Cann and CCSAC in the case, told Law360 that "after more than three years of litigation, our client is pleased with the outcome and can now focus all their efforts on expanding and diversifying their cannabis business portfolio." A representative of Pacific Banking did not respond to a request for comment Wednesday. Cann Distributors Inc. and CCSAC Inc. are represented by Steven M. Selna of Benesch Friedlander Coplan & Aronoff LLP and Robert W. Selna of Selna Partners LLP. Pacific Banking Corp. is represented by Stephen M. Lobbin of SML Avvocati PC. The case is CCSAC Inc. et al. v. Pacific Banking Corp. et al., case number 3:20-cv-02102, in the U.S. District Court for the Northern District of California. The U.S. Department of Labor has determined that Ostrom Mushroom Farms owes $74,000 in penalties and $54,000 in back wages for failing to pay the required wage rate to 62 foreign H-2A farmworkers and depriving them of cooking facilities and meals.
The Washington farm placed arriving workers in a hotel, rather than the housing it listed in the job order, the DOL said in a statement Thursday. The hotel lacked cooking facilities, and Ostrom did not provide meals, leaving the workers to fend for themselves and buy their own daily meals, according to DOL. The penalties come less than three months after the farm agreed to pay $3.4 million to settle claims from Washington state Attorney General Bob Ferguson, who accused the farm in an August 2022 lawsuit of firing female workers from the U.S. and replacing them with male workers from other countries through the H-2A Temporary Agricultural Program, which allows U.S. employers facing a shortage of domestic workers to bring in seasonal agricultural workers from other countries who must continue to work for the employer if they wish to stay in the U.S. The DOL's wage and hour division said Thursday it hit the farm with $70,000 in penalties "due to the violations' seriousness." More than $4,000 in additional penalties were tacked on because Ostrom did not get housing inspected before the workers arrived, it failed to keep accurate records and did not include all necessary information on paystubs. Additionally, one worker paid roughly $10,000 to a recruiter for a visa, DOL said. Thomas Silva, who directs the department's wage and hour division in Seattle, Washington, said in a statement that the U.S. is dependent on agricultural workers to put food on families' tables, and the DOL is committed to ensuring industry employers live up to their legal obligations. "Employers participating in the H-2A guest worker program must make sure that they provide housing as required, that housing is sanitary, that vehicles used to transport workers are safe and that workers are paid correctly for all hours they work," Silva said. According to a consent decree in the Washington state litigation, Ostrom sold its business in February to Greenwood Mushroom Sunnyside IA LLC, and said it was winding up its business. Ragan Powers with Davis Wright Tremaine LLP, who represents Ostrom, told Law360 on Friday that Sunnyside's new owner is well positioned for continued success and growth, while hundreds of local jobs have been secured in the community. "Our investment in state-of-the-art facilities and in a dedicated local workforce over the past four years helped solidify the production of high-quality mushrooms as a valuable economic driver in this region," Powers said. According to Ferguson's suit, Ostrom laid off 79% of its U.S.-based workforce — many of whom had spent years working on the farm — in order to qualify for the H-2A program beginning in January 2021. Around the same time, an Ostrom manager posted to a Facebook group for Yakima, Washington, agricultural workers seeking "only males" to apply for its impending harvest season, the complaint had said. Ostrom ultimately hired 65 mostly male workers under the H-2A system and only four female workers and 18 male workers who were based in the U.S., according to the complaint, which said there were dozens of Washington residents who were willing to work at the farm. However, Ostrom discouraged domestic workers from applying by misrepresenting the required qualifications for the job, according to the now-settled suit. Instead, the farm turned down multiple domestic applicants in favor of foreign workers with no agricultural experience, and some U.S. workers were also paid less than the H-2A workers, receiving an average of $14 an hour while foreign recruits were paid $17.41 an hour, the attorney general had said. The $3.4 million settlement was doled out to the domestic workers who the farm fired between January 2021 and December 2022, according to a consent decree in the case. The complaint alleges that the regulators overstepped by issuing the first New York retail cannabis licenses exclusively through the CAURD program, which they say has no basis in law. A New York state judge on Monday temporarily barred cannabis regulators from awarding retail licenses and ordered them to appear in court at the end of the week to defend their policy. The temporary restraining order comes in response to a lawsuit filed Wednesday in Albany state court by four service-disabled veterans, alleging the Office of Cannabis Management and the Cannabis Control Board violated separation-of-powers doctrine when they developed the conditional adult-use dispensary retail dispensary, or CAURD, program. The order specifically enjoins regulators "from awarding or further processing any more conditional adult-use retail dispensary ... licenses and/or conferring operational approval upon any more provisional or existing CAURD licensees." The court ordered a hearing on Friday on the veterans' request for a preliminary injunction, which would keep the block in place until this litigation and another lawsuit challenging the CAURD program are resolved. In a letter arguing against a temporary restraining order, an attorney for the state parties told the court last Friday that regulators did not anticipate awarding any licenses until the next CCB meeting in September but would likely spend time "processing" the applications, such as by contacting applicants and reviewing results from background checks. "Defendants respectfully submit that such processing activity, absent any approval of licenses, causes no harm to plaintiffs and has no impact on the court's consideration of the pending application for temporary relief," an attorney for the regulators said. The regulators said they would not agree to cease all activities related to getting provisionally approved licensees up and running, noting the process of opening cannabis stores is expensive and onerous, involving multiple stakeholders. "Asking for a stop to all this activity is not asking for the status quo to be maintained, but rather is asking for affirmative mandatory action that will harm current licensees, and which should be issued only in extraordinary circumstances, which plaintiffs have not established here," the regulators argued. In their complaint, the veterans argued that the Marihuana Regulation and Taxation Act MRTA, the 2021 law that legalized cannabis in the Empire State, mandated the creation of a legal cannabis marketplace, but that regulators instead implemented a licensure program that exclusively privileged "justice-involved individuals" over other special interest groups. "Rather than perform the tasks required by the MRTA, CCB and OCM have improperly assumed the role of the Legislature to impose their own social and economic policies over those of New York's elected officials and, by extension, their constituents," the complaint said. The complaint notes the MRTA set a statutory requirement that 50% of all retail licenses go to "economic equity" applicants, a group that included businesses owned by women, minorities and service-disabled veterans. The veterans argue cannabis regulators ignored that provision in favor of establishing the CAURD program with a narrower set of qualifications: CAURD applicants must either have a cannabis-related conviction or a relative with such a conviction, and also have experience running a business. The veterans' complaint is the latest lawsuit to accuse New York's cannabis regulators of botching the rollout of regulated adult-use marijuana by focusing exclusively on licensing "justice-involved" individuals. A coalition of medical cannabis operators and would-be adult-use retailers filed a lawsuit in New York state court in March, similarly alleging that when the OCM designed the CAURD program, it went beyond the scope of its remit in violation of the separation of powers doctrine. The coalition's complaint alleges the regulators overstepped by issuing the first New York retail cannabis licenses exclusively through the CAURD program, which they say has no basis in law. This is at least the second time a court has issued an order enjoining a piece of the CAURD program. A New York federal judge in November blocked cannabis regulators from issuing retail licenses for five geographic regions across the state, after a would-be applicant from Michigan said the process was discriminatory. A federal appeals court later reduced the scope of that injunction to just one region, and the order was ultimately rescinded when regulators settled the lawsuit in May. Regulators have come under increased pressure to get licensed stores up and running in the Empire State, which has seen the explosion of hundreds of unlicensed cannabis sellers in the two years since marijuana was legalized for personal use and possession. By contrast, fewer than two dozen licensed cannabis retailers have opened across the state. A spokesperson for the veterans declined to comment on Monday. The New York Office of Cannabis Management did not immediately respond to a request for comment. The veterans are represented by Christopher J. Clark, Patrick J. Smith, Brian T. Burns and Selbie L. Jason of Clark Smith Villazor LLP. The state parties are represented by Shannan C. Krasnokutski of the New York Attorney General's Office. The case is Carmine Fiore et al. v. New York State Cannabis Control Board et al., case number 907282-23, in the Supreme Court of the State of New York, County of Albany.
The U.S. Supreme Court on Tuesday left the door open for companies to be sued in states where they have merely registered to do business, reviving a lawsuit that a Virginia man brought against Norfolk Southern in Pennsylvania despite his alleged injuries occurring in other states. A 5-4 majority held that the Supreme Court's 1917 ruling in Pennsylvania Fire Insurance Co. v. Gold Issue Mining & Milling Co. allowed states to have "registration by consent" laws, where an out-of-state company can be subjected to that state's jurisdiction regardless of how much business the company actually does there. "Norfolk Southern applied for a 'Certificate of Authority' from the Commonwealth which, once approved, conferred on Norfolk Southern both the benefits and burdens shared by domestic corporations, including amenability to suit in state court on any claim. For more than two decades, Norfolk Southern has agreed to be found in Pennsylvania and answer any suit there," Justice Neil Gorsuch wrote for the majority opinion. "To decide this case, the court need not speculate whether any other statutory scheme and set of facts would suffice to establish consent to suit. It is enough to acknowledge that the state law and facts before the court fall squarely within Pennsylvania Fire's rule." Justices Gorsuch, Ketanji Brown Jackson, Samuel A. Alito Jr., Clarence Thomas and Sonia Sotomayor said the ruling of the Supreme Court of Pennsylvania should be reversed and the case remanded to that court for further proceedings. Chief Justice John Roberts and Justices Amy Coney Barrett, Elena Kagan and Brett Kavanaugh dissented. Virginia resident Robert Mallory had sued his former employer, Norfolk Southern, over his alleged exposure to toxic chemicals on the job in Virginia and Ohio, but he wanted the case to be pursued in Pennsylvania on the theory that because the railroad had registered to do business in the Keystone State, that gave its courts jurisdiction over the dispute. The Supreme Court of Pennsylvania had thrown out the case late in 2021, striking down Pennsylvania's so-called long-arm statute, which gave its courts jurisdiction over any out-of-state corporation that had registered there, and finding such statutes violated a defendant's due process rights. The U.S. Supreme Court agreed to hear the case in April 2022. Mallory's counsel had argued in November that the Pennsylvania Fire precedent allowed such "consent by registration" statutes and was still in effect. Norfolk Southern, however, said such "consent" had been coerced, since nationwide companies had little choice but to register to do business in Pennsylvania if they wanted to do anything more than just pass through. The railroad argued that more recent Supreme Court decisions, like 1945's International Shoe Co. v. Washington , 2014's Daimler AG v. Bauman and 2011's Goodyear Dunlop Tires Operations SA v. Brown , had overridden and replaced the Pennsylvania Fire Insurance precedent. The U.S. Solicitor General's Office had joined the case on Norfolk Southern's side, arguing that allowing such broad jurisdiction over corporations from out-of-state could discourage trade if international corporations grew wary of being hauled into any state's courts. But the Supreme Court majority said the factual parallels to the Pennsylvania Fire case were unmistakable, where an insurance company headquartered in Pennsylvania was sued to cover a mine fire in Colorado, but the suit was brought in Missouri because the insurer had registered there. Pennsylvania's justices had been mistaken in not following the most applicable precedent, the majority said. They rejected the railroad's argument that the International Shoe decision — which dealt with specific jurisdiction tied to a company's activities in a state, and general jurisdiction in states that a company had its principal place of business — had "undermined" Pennsylvania Fire. "All International Shoe did was stake out an additional road to jurisdiction over out-of-state corporations," the majority opinion said. "Pennsylvania Fire held that an out-of-state corporation that has consented to in-state suits in order to do business in the forum is susceptible to suit there. International Shoe held that an out-of-state corporation that has not consented to in-state suits may also be susceptible to claims in the forum state based on 'the quality and nature of its activity' in the forum." Justice Gorsuch also rejected Norfolk Southern's argument that facing suits in Pennsylvania would not follow the "fair play and substantial justice" principle in International Shoe, embedding in the opinion some of Norfolk Southern's own marketing graphics showing its railroads criss-crossing the Keystone State, the tonnage of freight it moved, and its facilities there to demonstrate that the company was no stranger to Pennsylvania. Justice Jackson wrote in a concurring opinion that the court's 1986 opinion in Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, which held that personal jurisdiction was a waivable right, also applied, and that Norfolk Southern could not claim it had been "compelled" into waiving its right to fight jurisdiction of a state where it did so much business. Justice Alito said he concurred with the final result, but was not convinced that the U.S. Constitution allowed states to impose consent-by-registration laws. The Supreme Court of Pennsylvania had not addressed Norfolk Southern's argument that the law violated the Constitution's dormant Commerce Clause, and the railroad could presumably press the court to make such a ruling on remand, Justice Alito wrote. "In my view, there is a good prospect that Pennsylvania's assertion of jurisdiction here — over an out-of-state company in a suit brought by an out-of-state plaintiff on claims wholly unrelated to Pennsylvania — violates the Commerce Clause," he wrote. "Aside from the operational burdens it places on out-of-state companies, Pennsylvania's scheme injects intolerable unpredictability into doing business across state borders. … I am hard-pressed to identify any legitimate local interest that is advanced by requiring an out-of-state company to defend a suit brought by an out-of-state plaintiff on claims wholly unconnected to the forum state." For the dissenting opinion, Justice Barrett said International Shoe had established that just doing business in a state was not enough to establish jurisdiction there, and she said that state statutes like Pennsylvania's "manufacture consent" to jurisdiction. She pointed to similarities between Mallory's case and BNSF v. Tyrrell, another suit where a railroad worker sued over cancer contracted on the job. But in the BNSF case, the U.S. Supreme Court had ruled against letting the case be brought in Montana. Pennsylvania's law was not clear enough in stating that an out-of-state corporation's registration included consent to its courts' jurisdiction, the dissent said, and letting just any state's long-arm statute convey consent could violate companies' due process rights and impinge on other states' rights to have cases affecting them brought on their home turf. "On the court's reasoning, corporations that choose to do business in the state impliedly consent to general jurisdiction," Justice Barrett wrote. "The result: A state could defeat the due process clause by adopting a law at odds with the due process clause." Counsel for Norfolk Southern declined to comment Tuesday. "I am so honored that Mr. Mallory and his superlative trial counsel trusted me to argue this important case," said Ashley Keller of Keller Postman, one of the attorneys representing Mallory. "And I am obviously grateful that the Supreme Court correctly interpreted our nation's Constitution to permit his suit to continue in the court where he filed it." Mallory is represented by Ashley Keller, Zina Bash, Warren Postman, Matthew A. Seligman and Noah Heinz of Keller Postman LLC; Daniel C. Levin and Frederick S. Longer of Levin Sedran & Berman; and Charles J. Cooper of Cooper & Kirk PLLC. Norfolk Southern is represented by Carter G. Phillips, Tobias S. Loss-Eaton, Daniel J. Hay and Chike B. Croslin of Sidley Austin LLP; Ralph G. Wellington and Bruce P. Merenstein of Schnader Harrison Segal & Lewis LLP; and Daniel B. Donahoe and Ira L. Podheiser of Burns White LLC. The government is represented by Curtis E. Gannon of the U.S. Solicitor General's Office. The case is Mallory v. Norfolk Southern Railway Co., case number 21-1168, in the Supreme Court of the United States.
A landmark decision by the California Supreme Court confirming that the California Medical Association can sue Aetna Health of California for alleged violations of the Unfair Competition Law paves the way for other nonprofits, unions and public interest groups to sue companies in the Golden State for engaging in allegedly illegal practices to stifle competition. In the unanimous decision issued Monday, the California Supreme Court held, for the first time, that a public interest advocacy organization can have standing to bring claims alleging unlawful, unfair or fraudulent business practices that threaten their organization's mission, if they have incurred costs responding to those perceived bad acts. When an organization has incurred such expenditures as the CMA has, it has standing to bring claims under the UCL because it "suffered injury in fact" and "lost money or property as a result of the unfair competition," wrote California Supreme Court Justice Kelli Evans in the 7-0 opinion. The decision brings back to life a case that began more than a decade ago. The CMA, a professional association that represents more than 37,000 California physicians, sued Aetna Health in 2012 claiming that the insurance company, via its "Network Intervention Policy," had been discouraging Aetna-insured patients from going out of network, even though their preferred provider organization, or PPO, plans included such benefits. According to the CMA, Aetna harassed physicians or terminated relationships with physicians for referring patients with PPO plans to out-of-network facilities. Such a "harmful and illegal" policy, the CMA said, "directly interfered with the doctor-patient relationship and physicians' independent medical judgment, in violation of numerous state laws." The CMA's general counsel estimated that the organization diverted hundreds of hours of staff time to responding to Aetna's alleged policy. Aetna, however, maintained that the policy was adopted, in part, to stop physicians from referring patients to facilities in which they had financial interests. Furthermore, Aetna argued that its policy applied to individual physicians — not to the CMA and that the CMA lacked standing to sue. A Los Angeles County trial court in 2019 agreed with Aetna that the CMA's diversion-of-resources argument wasn't enough to establish standing under the UCL and granted summary judgment to Aetna. The Court of Appeal affirmed that decision, holding that amendments to the UCL in 2004 had eliminated such representational standing. The CMA appealed to the California Supreme Court, which agreed in 2021 to review the case. The California attorney general as well as local prosecutors from San Francisco, Oakland, San Jose and San Diego waded into the fight, filing amicus briefs in support of the CMA. Likewise, the public interest nonprofit Consumer Watchdog filed an amicus brief supporting the CMA, as did labor unions, including the Writers Guild of America West, United Food and Commercial Workers Western States Council and United Farm Workers of America. Meanwhile, the U.S. Chamber of Commerce penned an amicus brief siding with Aetna, warning the court that a ruling in the CMA's favor could open the floodgates for frivolous lawsuits against companies. The California Association of Health Plans and the Association of California Life and Health Insurance Companies also submitted amicus briefs in support of Aetna. But on Monday, California's top court unanimously agreed that the trial court had erred in granting Aetna's bid for summary judgment and that the Court of Appeal had likewise erred in affirming the lower court ruling. "We hold that the UCL's standing requirements are satisfied when an organization, in furtherance of a bona fide, preexisting mission, incurs costs to respond to perceived unfair competition that threatens that mission, so long as those expenditures are independent of costs incurred in UCL litigation or preparations for such litigation," Justice Evans wrote. The high court also rejected concerns aired by Aetna and its amici. "We are not persuaded that recognizing a diversion-of-resources theory in this case will open the door to abuses of the sort suggested by Aetna and the amicus curiae," the court wrote in the opinion. The justices noted the question of UCL standing presented in this case "is one of first impression in this court" and that the diversion of salaried staff time and other office resources can constitute a loss of money or property for CMA. The California Medical Association lauded the decision in a statement Monday, calling it "a significant victory for providers, consumers and public interest advocates." "The outcome of this case highlights the importance of the UCL to combat unfair and deceptive business practices in the health insurance industry and beyond," the CMA said. "The ruling empowers membership organizations like CMA and other public interest advocates in California to defend their interests and the interests of their constituents against corporations engaging in unlawful conduct." The CMA's counsel, Stacey Leyton of Altshuler Berzon LLP, told Law360 in an email Tuesday, "We are very pleased that the California Supreme Court has preserved the rights of associations like the California Medical Association to sue under California's Unfair Competition Law when businesses are violating the law." "Our position that organizations have standing under the UCL when they are forced to divert resources to counter a business' unlawful activity was vindicated in every respect by the unanimous decision," Leyton said. Aetna's executive director of communications, Alex Kepnes, declined Law360's request for comment Tuesday. The California Medical Association is represented by Alan M. Mansfield of Whatley Kallas LLP and Stacey M. Leyton and Michael Rubin of Altshuler Berzon LLP. Aetna Health of California Inc. is represented by Matthew D. Umhofer and Elizabeth Anne Mitchell of Umhofer Mitchell & King LLP and Benjamin N. Hazelwood, Enu A Mainigi, Grant Geyerman and Craig Singer of Williams & Connolly LLP. The case is California Medical Association v. Aetna Health Of California Inc., case number S269212, in the Supreme Court Of California. |
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