TransFresh Corp. v. Ganzerla & Assoc., Inc., 2012 WL
994674 (N.D. Cal.)
TransFresh sued defendant PeakFresh for violations of federal
and California false advertising law.
Statements and a video on PeakFresh’s website allegedly compared the
parties’ systems for packaging fresh produce to maintain freshness during
transport and misleadingly depicted PeakFresh’s as more environmentally
friendly than TransFresh’s.
TransFresh’s Tectrol system uses “a relatively small amount
of CO 2 in connection with food products” to preserve freshness. TransFresh alleged that it recovers CO2 from
processes that would otherwise release it into the atmosphere, and that CO2 is
on the FDA’s Generally Recognized as Safe list for food additives.
Defendant does business as PeakFresh, directly competing
with TransFresh. Its website has a video
that “purports to discuss preserving the environment and to explore ‘one
promising example’ of working in greater harmony with the environment,” namely,
Defendants' PeakFresh system. TransFresh
alleged that the Video “features [its] equipment, [which is] readily
recognizable by consumers of each party's goods and services, to illustrate
what the Video claims are harmful practices in Plaintiff's use of CO 2 in its
fresh produce pallet covers.”
The video allegedly compared the CO 2 released by TransFresh’s
process to car exhaust, even though car exhaust contains far more CO 2, as well
as damaging components absent in Plaintiff's process, including ozone, nitrogen
oxide, hydrocarbons, carbon monoxide, and particulates. The video allegedly omitted the fact that a
significant amount of the CO2 released was produced by the produce itself, and
the net amount of CO2 released from using TransFresh was “only marginally
greater” than that released using the PeakFresh method. The video also used the pejorative term “gassing”
when referring to TransFresh’s process. In
addition, the video stated that PeakFresh uses “modified atmosphere packaging,”
but it doesn’t; the relevance is that in a MAP system the proportions of carbon
dioxide, nitrogen, and oxygen in a sealed container are different from those in
the normal (ambient) air to enhance the food's shelf life, while PeakFresh's
bag is open at the bottom and does not “significantly modify the ambient air.”
Further, TransFresh alleged that PeakFresh sent prospective strawberry
shipper customers a sealable sample of a PeakFresh consumer bag, “and told them
that they can test its pallet cover system by putting some strawberries inside
the sealable bag and putting it in the customer's home refrigerator.” PeakFresh “states or implies” that its
unsealed pallet cover system will work as well as the sealed bag on
strawberries, but that was unsubstantiated.
PeakFresh also allegedly falsely and without substantiation claimed that
strawberries shipped in a PeakFresh pallet bag have a shelf life of at least 20
days, and falsely claimed that TransFresh goods and services were not certified
as organic.
The results, TransFresh alleged, were false and unsubstantiated
claims that TransFresh’s process introduces an unhealthy amount of CO2 into the
atmosphere and that PeakFresh’s process was “green” and more environmentally
responsible. Other allegedly false claims
included that a 1999 UC Davis study “validated that PeakFresh works just as
effectively as the older gassing methods” when in fact, the study was
inconclusive. Despite TransFresh’s
complaints and requests for substantiation, PeakFresh allegedly refused to
respond.
In addition, TransFresh sought declaratory relief based on a
PeakFresh C&D alleging that TransFresh made false and disparaging
statements about PeakFresh’s products and stating that
Unless this matter is immediately
resolved to our client's satisfaction, we intend to hold TransFresh responsible
and liable for its unlawful and tortious conduct. We demand that TransFresh
respond to this letter by no later than December 9, 2011. If you fail or refuse
to comply with each of the demands listed above within the period specified, we
will take all necessary steps to enforce and protect PeakFresh's rights and
remedies. If this matter should proceed to litigation, please note that
TransFresh will be required to compensate our client for any and all damages
incurred and will be required to disgorge any and all revenues arising from its
unlawful conduct. Govern yourself accordingly.
Initially, the court analyzed whether Rule 9(b) applied to
the claims. The court concluded that,
except for the declaratory relief claim, it did because all the claims involved
allegations of willful and intentional misconduct—even though relief would be
available even without that state of mind.
TransFresh had provided enough detail about the video and
statements on the website to meet Rule 9(b)’s requirements. However, the allegations related to the sealable
bags promotion weren’t enough: TransFresh didn’t allege “who specifically made
these statements, when the statements were made, or to whom they were made.” (I can’t believe this really means that
TransFresh has to provide the name of the person at PeakFresh who sent out the
bags and accompanying claims. But then I
don’t agree that Rule 9(b) should apply to statutory claims that don’t require
any intent.) Likewise, the
statements about the UC Davis study weren’t identified with sufficient
specificity in terms of where and when, nor about why omissions about other
studies were misleading, and the shelf life/organic statements also lacked
sufficient detail.
PeakFresh also argued that its principle, Gregory Ganzerla,
shouldn’t be a defendant. Principals may
be liable if they participate in a wrong or authorize or direct that it be
done. A plaintiff must identify a
defendant’s role in an allegedly fraudulent scheme. Here, TransFresh didn’t plead with sufficient
specificity to identify Ganzerla’s role, or plead sufficient facts to support
alter-ego liability.
PeakFresh argued that the declaratory relief claim was
unripe. The court disagreed. The C&D “accused TransFresh of false
advertising, listed specific statements and addressed in detail why these
statements were false and misleading.” “Notably,”
the statements at issue were mirror images of the ones TransFresh attacked in
its own complaint. Also, PeakFresh threatened
to “hold TransFresh responsible and liable for its unlawful and tortious
conduct” if TransFresh did not comply with PeakFresh's demands by December 9,
2011. So the declaratory relief claim
was appropriate.
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