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Chase v. Brothers Int'l Food Corp.

United States District Court, W.D. New York

February 27, 2014

COLIN CHASE, Plaintiff,

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For Colin Chase, Plaintiff: Elizabeth A. Cordello, LEAD ATTORNEY, Underberg & Kessler LLP, Rochester, NY.

For International Food Corp. Brothers, Defendant: Joseph A. Carello, Stephen J. Jones, LEAD ATTORNEYS, Nixon Peabody LLP, Rochester, NY.


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MICHAEL A. TELESCA, United States District Judge.


Plaintiff Colin Chase (" Chase" ), a former employee of defendant Brothers International Food Corporation (" Brothers" ), an importer and distributor of packaged foods, brings this action pursuant to the employee protection provision of the Food Safety Modernization Act, (" FSMA" ) (codified at 21 U.S.C. § 399d) claiming that he was unlawfully terminated from his employment in retaliation for raising concerns over the safety of food which Brothers was selling to customers. Specifically, plaintiff, who was the director of defendant's internet sales, alleges that after he raised concerns about the defendant allegedly altering the " sell by" dates of certain potato chips being sold by the defendant, and after raising concerns about the potential for bacterial contamination of partially re-hydrated apple crisps being sold by Brothers, the defendant attempted to force him to sign an agreement preventing him from disclosing his concerns outside the company, and then fired him when he refused to sign the agreement.

Defendant denies plaintiff's allegations and moves pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss plaintiff's Complaint for failure to state a claim. Specifically, Brothers contends that because Chase did not engage in protected activity under the FSMA, he cannot establish that he was fired as a result of engaging in protected activity. In support of this argument, Brothers contends that because Chase could not have reasonably believed that Brothers was violating the FSMA by re-hydrating apple crisps or re-dating expired potato chips, he can not state a claim for retaliation for having complained of such acts. Chase contends that he did have an objectively reasonable good-faith belief that Brothers was in violation of the FSMA, and therefore, he has stated a valid cause of action under that statute.

For the reasons set forth below, I find that the issue of whether or not the plaintiff held a reasonable belief that the defendant was violating the FSMA can not be determined from the pleadings, and therefore, defendant's motion to dismiss the Complaint for failure to state a claim must be denied.


According to the Complaint, plaintiff Colin Chase began working for the defendant Brothers International Food Corporation

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in July, 2010 as the director of e-commerce. In April, 2012, Chase allegedly alerted a manager at Brothers, and a co-CEO of Brothers, that expired potato chips were being sold online by Brothers. Although plaintiff claims that the chips were " expired," defendant contends that the chips had not in fact expired, but instead had passed their " best by" date. Chase alleges that he was told by co-CEO Travis Betters (" Betters" ) to halt sales of the chips until stickers with new dates could be placed over the expired dates. Chase contends that he was told by Betters to explain that the chips had originally been dated for sale in Europe if anyone asked why the dates had been changed. According to Chase, Brothers routinely sold expired products, and routinely altered the printed expiration dates on products.

Thereafter, Chase allegedly reported to Betters that a batch of Fuji Apple Fruit Crisps that were being sold by Brothers had become soggy. According to the Complaint, Chase was concerned that the soggy crisps might be subject to an increased risk of bacterial contamination. Betters allegedly told Chase to continue to sell the crisps, and to give discount coupons to any customers who complained about the products.

Following these incidents in which Chase raised concerns about Brothers' practice of selling expired products or products which may have been compromised in terms of their quality, Chase was called into a meeting with Matt and Travis Betters, the co-CEO's of the Company, and was asked to " prove his loyalty" to the Company by signing a non-disclosure/non-competition agreement, pursuant to which Chase would not be allowed to discuss his concerns about Brothers' practices with anyone outside of the Company. Plaintiff's request for additional time to review the agreement with an attorney was denied, following which Brothers fired him for his refusal to sign the agreement. Thereafter, Brothers filed a civil action in this Court accusing Chase of, inter alia, misappropriating confidential documents and information, ...

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