Legal Ethics
Posner Dresses Down Prosecutor in Salad Dressing Dispute
Posted Mar 17, 2009 9:52 AM CST
By Debra Cassens Weiss
Judge Richard Posner has blasted a federal prosecutor in an appellate opinion tossing the conviction of a businessman who relabeled and sold bottles of salad dressing.
Posner, a judge on the Chicago-based 7th U.S. Circuit Court of Appeals, identified the prosecutor by name and called for sanctions, the Chicago Tribune reports.
"The government's appellate lawyer told us that the prosecutor's superior would give her a talking-to," Posner wrote. "We are not impressed by the suggestion."
Posner said Assistant U.S. Attorney Juliet Sorensen made misleading statements about the nature of the "best when purchased by" dates on bottles of Henri’s salad dressing. The businessman she prosecuted had bought 1.6 million bottles of the dressing, attached new labels extending the “best when purchased by” dates by a year, and sold them to discount stores, according to Above the Law.
Posner said Sorensen repeatedly referred to the “best when purchased by” date as the date the dressing would expire. That’s not true, the judge wrote.
"The term 'expiration date' ... on a food product ... has a generally understood meaning: It is the date after which you shouldn't eat the product," Posner said. "Salad dressing, however, or at least the type of salad dressing represented by Henri's, is what is called 'shelf stable'; it has no expiration date."
Posner also targeted Sorensen for statements she made in closing arguments. "Ladies and gentlemen, don't let the defendant and his high-paid lawyer buy his way out of this," Sorensen told jurors. After an objection, Sorensen said, "You have to earn justice. You can't buy it."
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Comments
Wow
Mar 18, 2009 9:59 AM CST
Im glad that a prosecutor actually got called out for doing anything to win a case. Its usually defense attorneys who get a bad rap in that regard.
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jbo
Mar 18, 2009 1:23 PM CST
What’s even more amazing is that it was Posner who did it. He sides with the government on most issues and even argued strenuously in favor of the government’s detention of 1,000’s of innocent Arab residents based on some trumped up charge under the Patriot Act. Posner is another Scalia. In fact, Scalia has acknowledged his indebtedness to the King of Sleaze, the man who brought fallacious economics to law.
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Goose_Gander
Mar 18, 2009 3:05 PM CST
Hmmm…interesting that jbo seems to use the same tactics as the prosecutor. Namecalling, is a primitive and not particularly effective form of rhetoric, and is never professional.
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Debra Veoli
Mar 20, 2009 5:04 AM CST
I don’t even LIKE salad dressing. So why should I care about this guy POZNER?
My husband, Al, does not like salad dressing either.
I have a lot of work to do.
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Hadley V. Baxendale
Mar 20, 2009 6:01 AM CST
Did the defendant’s lawyer object during trrial?
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kj
Mar 20, 2009 6:34 AM CST
This woman should not be alone. Let’s sanction more of these jury trial lawyers. What this one said sounds like an exaggeration, but its not unlike what many trial lawyers stoop to everyday in court. Trial judges don’t rein in this sort of BS, however; so apparently the appellate courts need to start doing so.
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Jimmy Jazz
Mar 20, 2009 6:42 AM CST
Al Veoli. I get it. An anatomy joke. Breathe much?
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notassmartastherestofyou
Mar 20, 2009 7:00 AM CST
Ravioli? That’s not an anatomy joke.
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John G
Mar 20, 2009 7:27 AM CST
Well, the difference between an expiration date and a best-purchased-before date seems a bit narrow for Posner J’s rant. After all, if the date was meaningless, why did the defendant bother to relabel with a date a year after the original date? Was the original date meaningless? True, ‘best before’ does not mean ‘poisonous after’, but changing the date surely should have some legal consequences.
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abogada
Mar 20, 2009 7:43 AM CST
I think Debra Veoli might be Ellen Barshevsky in disguise….
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i heart Ellen
Mar 20, 2009 7:59 AM CST
Bring back Ellen Barchevsky.
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Michael Duff
Mar 20, 2009 9:16 AM CST
I suspect that best-purchased-before, when translated into the language of today’s corporate culture, really means, “will definitely kill you after…” Imagine - the government actually saying close to accurate things about their usual corporate bedfellows (actual in the case of the Department of the Interior - you can’t make this stuff up!)
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Mikey
Mar 20, 2009 9:22 AM CST
#2, jbo - weak. Posner is not only brilliant but a pretty decent human being, unlike, say, his colleague Easterbunny. However, “Posner is another Scalia” - very high praise indeed. That is all.
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jbo
Mar 20, 2009 9:50 AM CST
Well, Goose, normally I would agree with you. But being “professional” has taken on entirely new meanings in todays legal profession. The ability to parse a phrase so as to make duplicity appear to be brilliance is at a premium. Straight, honest talk is considered unprofessional and demeaned. And just because someone is a “pretty decent human being.” (isn’t that name-calling, too?) in their personal relations doesn’t mean they can’t be a professional ogre. Judge Posner doesn’t particularly care for justice; he prefers a well-phrased nuance that poses as brilliance to some.
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i heart Ellen 2
Mar 20, 2009 10:07 AM CST
response to #14 -
maybe my reading comprehension is limited, but it seems to me that Posner sanctioned the prosecutor precisely because she abused a “well-phrased nuance” as you put it.
oh yeah, and if you want to avoid name-calling in the future you might want to use more adjectives and fewer terms such as “ogre.”
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Al B. Sure
Mar 20, 2009 10:25 AM CST
Makes sense to me that the guy would extend the “best if purchased by” date by one year so he could sell more salad dressing to discount retailers. I’m not saying it’s right, but I understand the motivation - gives him, and the retailers, 12 more months to sell the stuff.
Certainly, if the prosecutor was trying to equate “best if sold by” with “best if consumed by”, she was being disengenuous at best and deceitful at worst.
High time a judge gave a federal government prosecutor the big smack down. Hit ‘em again! Hit ‘em again! Harder! Harder!
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R
Mar 20, 2009 10:47 AM CST
There oughtta be a law against those “Best When Purchased By…” and “Best When Used By…” labels.
I mean, for starters, shouldn’t they all AUTOMATICALLY list as the date the day the stuff was MADE? Isn’t that almost always when the stuff is “best” - right after it’s made? Except for fine wine, anyway.
Those Pringles you’re thinking of buying aren’tt gonna get any BETTER sitting around on a dusty shelf at your neighborhood Piggly Wiggly for another couple of months.
If “Best” means something else, then what DOES it mean exactly? Suppose I buy a new car. (A guy can dream.) Is it “Best When Driven By…” the first week after I buy it, when it still has that great new-car smell? Or is it “Best” during the first year, when it hasn’t yet gotten more than, say, half a dozen dings in its side from my wife always carelessly throwing open her door right into the side of mine whenever she parks next to me in the garage, even though I’ve politely reminded her not to do that over and over until I’m hoarse from yelling? Or is it “Best” up to ten years after it’s bought - the day BEFORE the axle breaks due to steadily developing metal fatigue and the wheel spins off while I’m driving down the freeway, causing me to uncontrollably veer and crash into the back of a fuel truck and perish in a blazing fireball?
And what comes after “Best”? “Better?” “Passable?” “Marginally Edible But May Cause Sphincter Tightening (a.k.a. LaTourette Syndrome)”?
I mean, what does “Best By…” mean, exactly?
And don’t get me started on “Best BUY.”
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Rob G
Mar 20, 2009 10:55 AM CST
The issue is that this was a criminal prosecution. Even if the law applies to any relabeling, the government does not get to imply that there is a health risk if there isn’t. As a juror, I’m far more likely to convict somebody for risking lives then for not clearly telling people how old the product is. From a policy perspective, risking lives is appropriately a criminal matter to be handled by prosecutors while misleading advertising should be left to class-action blackmail artists who practice in the civil courts.
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I miss Ellen too
Mar 20, 2009 11:36 AM CST
I wish Ellen would/could post and tell us about the lovely lunch she had with her boss, the partner, and what type of salad dressing he opted for, and whether or not she had the same type of salad dressing, and other such comments that tangentially involve the law and lawyers. Ellen’s posts used to brighten my day.
(And let me tell you something, fans of Al and Debra Veoli, you think they are the new Ellen? I knew Ellen Barshevsky, and you, sirs, are no Ellen Barshevsky.)
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SgtDad
Mar 20, 2009 12:06 PM CST
Hadley V. Baxendale —very good!! One bottle of salad dressing to the individual that can correctly cite the case. Two bottles for an accurate brief. No peeking (we’re all honorable lawyers here, right?).
Just what did the prosecutor NOT tell the grand jury so as to get an indictment? Now you know why people hate lawyers.
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Big fan of discount stores
Mar 20, 2009 12:47 PM CST
I wonder which discount stores the repackaged salad dressing was sold at. Family Dollar? Dollar General? Big Lots?
I’ve heard that “the new economy” has a lot more people buying their groceries at dollar stores. If you’ve ever been inside a dollar store, or any of those “discount” type stores, you’ll know that nowhere on earth has the motto BUYER BEWARE been stronger or more in effect. The vast majority of the wares in those stores are pieces of plastic crap that will fall apart before you get them home.
Don’t you think “repackaged-yet-probably-edible” is par for the course, when buying consumables at Big Lots or General Dollar? I think Posner was right on the money on this one.
I have never bought food at a dollar store, but if I did, I imagine I’d probably EXPECT it to have been produced at a rat-infested slave-labor factory that has since been condemned, bulldozed to the ground, and the site declared toxic, and then shipped to the USA in a cargo contianer on a dilapidated tanker that sank, and after spending six months or more on the bottom of the sea, the cargo container was recovered by a pirate/salvage crew who discovered they could get most of the mildew smell off your food item by spraying it with pesticides, then it was sold through a series of middlemen, spent at least another year in storage being crawled over by cockroaches while some entrepreneur hoped the price might go up, then eventually it made its way to the USA where the defendant repacked it and sold it to Big Lots as “Premium Aged Salad Dressing.” But maybe that’s just me.
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Hub
Mar 20, 2009 2:11 PM CST
jbo should be sanctioned for lying.
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NCLawyer
Mar 20, 2009 4:27 PM CST
#21, you are right on.
I have relatives who buy “edibles” at Big Lots because they’re thrilled to have saved a few bucks. These are people who don’t need the money ... to some, the idea that they are buying something “perfectly good” for a whole lot less is more important than the degree to which it may have fermented while sitting at the bottom of the ocean.
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I want
Mar 20, 2009 6:35 PM CST
I want to read more stories about prosecutors getting blasted for prosecutorial misconduct, and I hope there’s a follow-up story on whether this prosecutor actually got sanctioned, as Posner apparently suggested. Prosecutors get away with too much. It’s time to bring some justice back into our criminal justice system. If a few prosecutors have to lose their licenses to turn it around, fair enough.
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Andy the Lawyer
Mar 23, 2009 4:22 PM CST
BigFan (# 21)—It’s just you.
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