Judge Posner Chastises Prosecutor,
in an interesting case about salad dressing, of all things. Thanks to How Appealing for the pointer.
Judge Posner Chastises Prosecutor,
in an interesting case about salad dressing, of all things. Thanks to How Appealing for the pointer. |
"...beyond expressing our surprise that the government
would complain about the leniency of the sentence
for a crime it had failed to prove."
an appropriate sanction for the prosecutor’s misconduct
might be.... The government's appellate lawyer told us that the prosecutor’s superior would give her a talking-to. We are not impressed by the suggestion." Heh.
I wonder if it is the same person.
A real dressing down, I imagine....
http://www.linkedin.com/pub/7/b18/b73
us...". You know it's not a good sign for a lawyer when a judge refers you to as "able".
Lettuce not descend into puns. We're busy and have a lot of work to ketchup on.
Mayonnaise.
And, apparently, there were no consumer complaints about the quality of the product, so who exactly was deceived, and about what?
My faith in the general uselessness of lawyers is severely shaken. I trust someone in this comment thread will quickly restore it?
My only sad quibble is with Judge Posner's use of the world "reasonable" in averring a reasonable jury would've acquitted, barring government misconduct. To be sure, a reasonable jury would, if we are allowed an objective definition of "reasonable."
But if "reasonable" is more usually defined as what most people do most of the time, alas, this statement is very likely false. I think a typical jury (cf. tvk's clueless statement above) would have convicted even if the government had behaved scrupulously correctly.
I would say this is very lucky defendant, not only in having Judge Posner hear the appeal, but in having the government at the trial level make enough of an ass of itself to give Posner enough leverage to order his acquittal instead of retrial.
Judge Posner here is alluding to the legal test for sufficiency of evidence to sustain a verdict. Since there was a conviction, the appellate court has to review all of the evidence and give the government the benefit of all doubt, of all helpful inferences, and all credibility determinations. The issue then is whether there is enough evidence that a reasonable jury -- meaning a jury rationally weighing the evidence presented in light of the law as instructed, without passion or prejudice -- could arrive at a conviction. (The "law" here means not only the substantive law, but also that the proof must be beyond a reasonable doubt.)
A "reasonable jury" is an abstract fiction of the law. Like a point mass in physics.
Well, you know, "render unto Caesar" and all that.
But... I think the trial attorney's assumption ("best by" means "dangerous after") is more a sin of imprecise thinking than malice. Stupid, yes, but the kind of stupidity that is understandable in a prosecutor's office where one is trying to make a name for oneself.
And IMHO, the judge's opinion reflects a disconnect from the real world.
I'm no academic. Instead, I'm a line practitioner in a big legal market with big-firm experience. And in that experience, being given a "talking to" means being told that one best consider one's employment options ... elsewhere. In other words, I'm not so confident about the prosecutor's future career ambitions. And all for a bit of enthusiasm arising from a reasonable misapprehension. And in a published opinion.
Usually, that sort of dressing down (being mentioned by name in a published opinion) is (or should be) reserved for repeat offenders. Not so sure that young lady was one such...
Many of Posner's opinions have this problem.
Splunge: You are correct that Judge Posner writes exceptionally well, and his opinions are logical and accessible even to a lay audience. Unfortunately, his "pragmatist" opinions can be useless from the standpoint of advancing the law, in that they do not cite to precedent or bother distinguishing cases that go the other way. That is, to the extent you would like to restore your faith in the utter uselessness of lawyers, be assured few Judges are like Posner. Perhaps he can be the exception that proves your rule.
Incidentally, I'm thrilled to know that labeling laws don't apply if you sell to a discount store, where everyone knows only people who don't care about proper labeling or expiration dates shop. Remind me not to buy anything but paper at the Dollar Store.
It doesn't matter whether a consumer assumes that "best if purchased by" means "expires on" -- though no rational person could, in any case, since everyone knows there's routinely a gap between purchase and use -- because they aren't being deceived about when the product expires, because it doesn't expire then.
Is it appropriate for an appellate judge to take a swipe at a district court judge over courtroom behavior like that?
Yeah, um... that's not what he said. Seriously, how many times does Posner have to say "best when used by" is not the same as "expires by"? But yeah, if you're going to be a stickler about freshness, you're probably better off not buying your food at Big Lots.
I'm glad to know that the government couldn't take a second look at Mike Nifong and the crooks in the Durham police department that tried their best to frame 3 innocent young men, but they're hot on the trail of perpretator of the great salad dressing caper.
Maybe if Ms. Sorenson's dad wasn't a fat-cat partner at Paul Weiss and she had actually been to a discount store, she would understand the difference between expires on dates and best if used by dates.
By the way, this was my favorite quote from the opinion:
Why wouldn't it be? It's not a gratuitous insult.
surprise! google her. she's a democrat.
/end noxious troll
that was a fun opinion.
I can't believe you mustard up the courage to say that in public, and with such relish, too.
I'm sure a lot of people do connect the two, and Posner acknowledged the possibility that "purchase by" dates are important to consumers. But the government provided no evidence of that, and if you want to criminally prosecute someone on the basis of such a connection you really need to provide some evidence.
The issue of whether or not the salad dressin was 'rotten' could have been supported by government testing. If I were sitting on a jury, I would note that the government did not offer such evidence. The lack of such evidence would be telling to me.
Bob
My faith in the general uselessness of lawyers is severely shaken. I trust someone in this comment thread will quickly restore it?
Very few judges and hardly any law professors write as well as Judge Posner does.
The other comments objecting to the decision seems to be based on that regular people would use the words interchangeably. But there are a whole lot of terms that in common understanding might be used interchangeably that have precise meanings in law. The slipperiness of the prosecutor's language was especially serious when (according to the opinion) is was not able to produce any evidence that "best when used by" equals "expires." Presumably this was a key legal and factual issue at trial, and the prosecutor should have known to be more precise.
Now a Best by date is not the same as an expiration date, but I have little doubt that the reason the jury convicted is not because of the prosecutor's manipulative argument, but because in their gut (granted not a legal term, but far more relevant) the jury knew what this guy did was wrong and this charge seemed right enough, so they went with it.
After all, it seems abundantly clear that the defendant engaged in some kind of fraud.
Posner should have confined his opinion to the merits of the case, not the behavior of the Judge.
Agreed. That took some serious bacon bits.
To juries, the argument that yes my client fraudulently changed the dates but that's not criminal prohibited under the charged statute is rarely going to fly, but seems much more likely to if the argument is pointed and well thought out to a judge. Maybe I'm off base, but this does seem like such a case.
I think you may be confusing private practice with government work.
Yeah, I am frequently in awe at the way he expresses himself in his opinions; he's miles ahead of virtually all his colleagues at writing ability. If you ever listen to oral arguments when he's on the panel, he's a real ball-buster; economics aside, the guy is just a fearsomely good lawyer.
Also, you get the feeling that in the last few years he is letting his hair down, as he knows he has only a few more years before he takes senior status or retires. His opinions seem, if possible, a little more freewheeling than they used to. You can see that in this opinion, and in personal touches he uses elsewhere (as in the horsemeat case, where for no real reason other than interest, he included a picture of a lion being fed a horsemeat cake).
p.s. This opinion has a curious loose-end feel to it. He says the lawyer should be sanctioned, and that a "talking to" is not good enough; but then just drops the subject, rather than issue a rule to show cause (according to oral argument, her name is on the appellate brief) or order the district court to do so.
LOL, good line.
Gov98: re waiving the jury, that is a good point, but among other things to consider are who your district judge is (and note that he tolerated a whole lot of what the appellate court considered prosecutorial misconduct).
By the way- having listened to the oral arguments (the briefs are not online), the defense lawyer on appeal was not impressive, at all. If he was the trial lawyer, maybe that could help explain how his client got convicted. For more reasons than one, the defendant really lucked out drawing Posner on his panel.
What "kind of fraud"? Who was deceived, and about what material fact were they deceived? What false statement was on the product label?
Keep in mind that (contrary to what the prosecution tried to claim) this isn't a situation where the defendant tricked consumers into thinking that an expired product was still good; at least as far as the evidence in the record, these products were still good. They weren't expired. There was no expiration date.
Yes, I was a little puzzled by that; perhaps the other judges on the panel wouldn't go along, or maybe there's a separate show-cause order issued?
The opinion said:
So was the defendant ripping off the consumer by selling salad dressing after its “best when purchased by” date had passed, without disclosing the fact? Apparently not, because it sold the salad dressing to dollar stores rather than to stores that cater to consumers who would not buy a product after its “best when purchased by” date.
So while it might be "ripping off the consumer" by selling the salad dressing after the BWPB date, it's not here SOLELY because you're selling it to a discount store where people don't care about the date. Never mind that that may not be the reason people shop at the discount store--maybe they can't afford to buy food anywhere else, but they still make a point of looking at the BWPB date? The mere fact that the defendant thought it was important to change the date, even though he was "just" selling to discount stores, implies that he had a reason to believe even discount store customers would be affected by the date.
And David, I'm not saying there was a labeling law specifically on BWPB dates, and I'm sorry if my earlier comment was imprecise. But here, the government charged that the defendant used misleading labels. Posner's entire tirade at the prosecutor seems to be based on his conclusion that "I don't think it's misleading, therefore the prosecutor was HORRIBLE for telling the jury that." But I think the jury was in the best position of saying, from the perspective of an ordinary consumer, the labels were misleading.
Incidentally, I'm not saying there aren't serious problems with the case. Just that (1) I thought this particular comment of Posner's was condescending and assumed too much, when he was criticizing the government for doing just that, and (2) the vitriol for the prosecutor personally is misplaced.
But the "behavior of the Judge" in terms of the rulings he makes is something that Appellate Courts have a duty to correct if it's wrong. Suppose a court in a criminal case let in improper evidence under FRE 404(b), or let the prosecutor repeatedly refer to how the criminal defendant did not testify on his behalf, or whatever else. Appellate courts say all the time what the district court should have done, the court should have excluded the evidence, the court should have declared a mistrial, should not have allowed that expert to testify, etc. There's nothing unusual in what Posner is doing here; it's perfectly typical.
If a salad dressing is properly labeled, "Best by 1/1/09," then it is simply false to relabel it as "Best by 1/2/09." Judge Posner's argument seems to be that the second label can be interpreted as, "Still just fine by 1/2/09," but that's not what it said.
At any rate, wasn't the defense attorney free to make all of the arguments Posner makes, and wasn't the jury free to accept or disregard them?
Perhaps if the prosecution had tried to prove that consumers had been induced to buy the product because they believed that the manufacturer had selected the later date they would have prevailed. Seems like the elements of fraud might have been there.
If it was a statement of fact, then the government would be obligated to provide evidence of the fact--which it apparently did not.
With respect to Judge Posner's rebuke to the trial judge, I agree it was a bit much, since it was, in effect, an advisory opinion in the form of dicta.
No. The first label was one person's opinion of when the dressing was best by. The defendant substituted his own opinion.
and wasn't the jury free to accept or disregard them?
No. Juries are not free to convict people who, on the government's own showing of the facts, have committed no crime. If I put a sticker on my 1996 Accord that says "My Other Car Is a Porsche," when in fact I have no other car ... that's a false statement, but I can't be convicted of fraud, because no one's relied to their detriment on the assertion in the sticker.
The government failed to show any detrimental reliance, and thus could not meet the elements of the offense; the trial court should never have let the case go to the jury.
As for the jury, juries are not asked for their untethered opinions; they're asked to evaluate evidence. According to Posner, no evidence was presented of any sort that would allow the jury to decide that the label was misleading. In order to show that a label to be misleading, you need to show (a) that X is true, and (b) that the label would lead a consumer to conclude Y, instead. But the government never showed what that "X" might be. The government didn't show that the dressing was actually best if used by the earlier date; if it had, then of course it would be up to the jury to decide whether the new sticker was misleading. In short, you can't say that it's "misleading" to write "Best if used by May 2004" -- which is what the defendant did -- unless you show that the product is not actually best if used by May 2004. The government didn't do that.
Anonfun:Your first statement is certainly true. But here's the problem: how does one determine that a salad dressing is "properly" labeled, "Best by 1/1/09"? There is no law or regulation that delineates a standard for determining this, nor is there any objective test for determining it. It's purely an opinion, and one cannot be convicted of making a false statement of opinion.
In other words, if a salad dressing is not properly labeled "Best by 1/1/09," then changing it to "Best by 1/2/09" is not false.
No. No reasonable jury can find someone guilty of making a false statement if there's no evidence in the record of a false statement.
That's my understanding. Now, had the prosecution shown that the defendant was trying to deceive the purchasers into believing that it was the manufacturer's opinion rather than the re-seller's opinion, and that there were some consumers who were so deceived, and that the defendant benefited from that deception at the consumers' expense, the result would have been different.
That's the thing, Anonfun. It was not "properly labeled" with that original expiration date. That date, based on the evidence presented in the case, was entirely arbitrary. If anything, as commenter Steve noted earlier, it may be a fraudulent practice to put a "best by" date on a product that doesn't actually go bad at that time. For all we know, the manufacturer puts that "best by" date on there simply in hopes that consumers will be misled by it into throwing away good (but older) product and buying a new bottle from the manufacturer.
I am a bit concerned about the judge's apparent suggestion that testimony of consumers could make a difference in determining whether a crime was committed. What if the government found one single, solitary consumer to testify that he thought the product was bad, or that he (the consumer) felt "misled). Would that be sufficient to render these actions a crime? If so, wouldn't that mean that a reasonable person would have no way of knowing, ahead of time, whether the contemplated action was criminal, because it would depend ultimately on the subjective opinion of some future consumer?
Moreover, it's not clear that there could be such evidence, since "better" sounds an awful lot like an opinion.
You can't say, "In a blind taste test, consumers picked our product 3-1 over the competition" unless that actually happened; that's a statement of fact. But you can say, "Our product tastes better than theirs," because that's not.
This in fact is my standard assumption with expiration (not "best by") dates on OTC and prescription medicines. Haven't died yet!
Yes, I hope that Judge Posner's opinion causes the feds to think twice against prosecuting purveyors of the "World's Best Burger" in their jurisdiction.
The prosecutor was forced to admit that this was "just advertising" and not fraud, but struggled to explain why the "best if sold by" date was somehow different.
Don't try that trick with antibiotics, which really do lose efficacy with age.
But back to the "Best if purchased by" dates. It doesn't say *whom* it is best for. In many cases it may be best for the manufacturers stock turnover, as Posner notes.
This case does seem to be questionable on the merits and this prosecutor did, in my estimation, make improper arguments to the jury. However, the typical U.S. Attorney's office walks away from hundreds of borderline cases every year - I've said no to two cases this week - which goes almost undetected by either the defense bar or the general public. To call most U.S. Attorney's Offices overzealous is like calling most libraries too loud - overly cautious is far more accurate.
This case and this particular prosecutor's conduct are noteworthy only because they are the vast exception to the kind of cases brought by and trial conduct of federal prosecutors.
For drugs and medicines, the expiration date has a very precise meaning, something like this:
"We have scientifically proven that this drug will be effective in the prescribed dosages up until date X."
Note that that is a positive construction--"It is good on date X.", not a negative construction, "It will be bad on date X+1."
Often a drug manufacturer will test a product for shelf life and find that it is stable for a certain time period. If it is stable enough to last the expected treatment period (for example), there is no reason to spend the money test it against longer periods of time. It won't necessarily be bad after that point, but the manufacturer hasn't proven that it will be good, so they can't label it as being good.
On the other hand, you don't know that the test happened that way. As Scote says, some drugs do lose their effectiveness after a period of time, and the manufacturer may have actually found the limit.
Is that a risk you really want to take?
G
Although Judge Posner really hit the nail on the head when, at the end of his rather farfetched list of possible theories, he spouted: "All this is speculation..." Res Ipsa Loquitur, Judge. Anyone who can actually pen the phrase "labeling a product with a “best when purchased by” date is a method of price discrimination" has clearly spent waaaaay too much time over the years hanging out in seedy bars with underemployed antitrust lawyers.
Yeah, I'll believe it when I see it.
"Quotidian." I love it; had to look it up. I suppose it's less likely to be misinterpreted than "pedestrian."
At the risk of also digressing, you're a prosecutor. It may well be that your definition of "borderline" matches the public's definition of "ridiculous over-reaching" and the defense bar's definition of "that prosecutor is bat-shit crazy and shouldn't have the power to prosecutor people." I'm not saying that's the case, because I don't know you at all. But the prosecutors here try to explain why they bring "borderline" cases by describing scenarios where they've refused to prosecute. The scenarios where they've refused to prosecute usually fall into the "why the hell is the cop who recommended the charge still on the force after this kind of travesty of justice" category.
Given that there are between 75,000 - 80,000 convictions on average by federal prosecutors each year, that fact that you can pick out a couple of cases or areas of law that you personally disagree with hardly supports a charge of overzealousness.
My understanding is that one has to take a full course of antibiotics to be sure the infection's gone, so I never have any left over.
Darvocet, OTOH, does not seem to lose potency a year or two after the expiration. Not that I would ever take a prescribed pharmaceutical for any use other than that prescribed ... like a backache a year later ... no, sir.
(Happily, I'm not in Ms. Sorensen's jurisdiction.)
I not a fan of that relativistic "Who can really say what is and is not a prosecutable case?" argument because we're not talking about unlimited discretion or discretion measured against some unfathomable standard. The standard is: will the evidence probably be sufficient to obtain and sustain a conviction? If the answer is yes, the case may go forward. If the answer isn't clear, the vast, overwhelming majority of the time the case won't be even charged. We would disagree, I'm sure, sometimes about which cases fall on the "don't go forward" side of the ledger, but I'd wager we'd agree a substantial majority of the time as well.
I think the fact that on average more than 90% of the cases that we do go forward on result in a guilty plea speaks loudly as to how that discretion is exercised in the first place. To call federal prosecutors overzealous as a blanket statement is as silly as calling all defense attorneys dishonest.
Maybe the appellate counsel in that case and Ms. Sorensen could go hang up a shingle together.
enjointhis:
There ya go.
But how many plead out to the originally charged crimes? I know in state court that number is extremely low. What typically happens is that a crime was probably committed. The state charges a whole slew of crimes, maybe half of which are justified, including borderline cases (the other half of which are more sever and carry higher penalties). Then the state offers to reduce the charges to the justified case (once again including borderline cases). Because there are unjustified not even borderline charges which carry a higher penalty, the defendant has a high incentive to plead...including to the borderline cases. I'm not just talking about whether THIS defendant should be charged, but whether this defendant should be charged with THESE crimes. That probably wasn't clear in my first post. Also, my experience is in state court not federal. But, I can say this is the way it's done all over the state in my jurisdiciton.
The problem in this case was not the "expiration date" because the product didn't have one. It was the "Best if purchased by" date which is somewhat different.
Milk has an expiration date. Mayonnaise, salad dressing, etc. do not.
In my last post, please replace the phrase "expiration date" with the phrase "best by date." The comment continues to make sense, with that change.
How many cases have you tried/seen where the juries do inexplicable things??? Yes, the chance might be low. But a 1-3% chance of 25 years vs. a certainty of only getting 7 years is a BIG incentive.
Suppose that you bought a shiny new BMW, but discovered months later that it really is a Toyota with the brand stripped off and a BMW logo reattached. The seller gives you a bunch of studies showing that the Toyota performed in every way as good as a real BMW, and that the perceived difference is just those irrational consumers and their preferences. Suppose also that no one has complained about the quality (since they did not pick up the deception). Now, has there been consumer deception?
tvk.
Your analogy doesn't hold.
The BMW brand is worth something, regardless of the individual merits of the car. IOW, a person is buying the name "BMW" with the associated benefits (telling friends they bought a BMW, driving like an a$$hole, etc.). If a customer deterimentally relied on it being a BMW and drove like the aformentioned donkey, then yes, there would be fraud.
This is different. The "best buy" date was an arbitrary date selected by the manufacturer based on no evidence supplied during the trial. The new date was just as arbitrary.
Your analogy doesn't hold.
The BMW brand is worth something, regardless of the individual merits of the car. IOW, a person is buying the name "BMW" with the associated benefits (telling friends they bought a BMW, driving like an a$$hole, etc.). If a customer deterimentally relied on it being a BMW and drove like the aformentioned donkey, then yes, there would be fraud.
This is different. The "best buy" date was an arbitrary date selected by the manufacturer based on no evidence supplied during the trial. The new date was just as arbitrary.
Her salad *dressing* days are coming to an end. I hope her salad days are just beginning.
right after her superiors give her a good dressing down.
1. For those impressed with his opinion writing skills, it's worth knowing that he generally writes (or at least used to write) the initial his opinions in less than 24 hours. After the day of oral argument, he writes the opinions in the afternoon and evening, and then has them ready for his clerks to plug in cites and provide their comments/reactions the next day.
2. The discussion Posner had with the governmnent's counsel during oral argument about the "appropriate sanction" shows one of his more fearsome traits, which is that once he gets focused on a point he simply will not let it go and instead will beat it into the ground. Most appellate judges I've seen will ask the question two or three time if counsel is dodging, and if counsel keeps dodging will just assume he or she has no good answer. Posner has no problem with asking the same or similar questions again and again and again.
For example, suppose a manufacturer has two "editions" of a product, the standard and the pro. Say the pro costs $20 more, but the only difference is that the pro product has the word "pro" on the box. If I put a "pro" sticker on a standard edition product but still sell it for the standard price, there is no harm whatsoever. The *only* difference is the sticker, I put the sticker on, and didn't charge the premium. Where's the fraud? What's the harm?
1. Could the trial judge have hit her for contempt, Rule 11, etc for her false arguments, for bringing in an incompetent witness, or for bringing a frivolous case?
2. Could the appellate court have inflicted any punishment?
sdfsdf, the trial judge certainly had the authority to sanction her for misconduct (though FRCP 11 applies only to civil cases). The case was extremely weak but the point of sanction would not be frivolity, but her misstatement of facts to the jury. Whether the appellate court could have sanctioned her: her name was on the appellate brief, so any misconduct in the brief in the appellate court could've been punished. As for what she did in the district court, I'd assume that what they would have done is order the district judge to have a hearing in the first instance, to determine what sanctions if any were appropriate. In fact I'm surprised they did not.
Dude!...Fraud is defined in Webster's dictionary as: 1(b) an act of deceiving or misrepresenting.
The defendant took the bottles and changed the best by dates and lied about where he got the "authority" to do that.
Believe it or not...Not every fraud is criminal. Most frauds are going to cause a negative reaction, but it doesn't change the fact that this defendant was clearly deceptive, about something.
And to those who say the best by date is worth nothing...I call "Shenangins" I know I do not throw out my salad dressings after the best by date, BUT I do know that I certainly will look at the date when I buy the product because I'd rather not buy a product, no matter how "shelf stable" that's 10 years old. If that's the case, then the best by date is worth something...and to change it is to deceive. And I have felt cheated when I buy something off the shelf that was "best" a year ago. The conduct is not criminally prohibited (at least by this statute), but certainly deceptive.
Uh, no, it isn't. See, in the criminal law we require due process; it's not enough to kind of handwave around an argument saying that the defendant is bad. You have to pick a specific crime, and show that the defendant actually did each of the elements of that crime.
I'm not stupid, my point was that the jury reacted to something, improperly, and outside the law, but I don't expect any defense attorney would be foolish enough to expect that a jury is going to say that the defendant's conduct is generally okay. The jury is going to react negatively to the defendant, and that feeling on the jury is going to cause the conviction...not the "don't let the defendant buy an acquittal" is going to cause an improper verdict. Because that's a dumb unpersuasive argument. Instead, anyone who's done any criminal law work easily understand that reasonable doubt is directly related to the defendant's badness. It shouldn't...BUT it does.
He said the FDA told him it was legal for him to do it. It was legal for him to do it. The FDA could not find a record of having told him this. So you could reasonably conclude he was lying. Or you could conclude that the FDA didn't keep or couldn't find their record.
But even if you do, that's a red herring, and here's why: a "best if sold by" date is not a statement about the product's age. A statement about a product's age is a statement of fact. A "best if sold by" date is not.Deceive you about what?But there's no evidence that it was "best a year ago."
It's a fact of life. That's what it is...People generally would rather have the newer thing than the older, I don't think I'm alone in that, and I don't think I need to establish it by a study in a Volokh comment thread.
But even if you do, that's a red herring, and here's why: a "best if sold by" date is not a statement about the product's age. A statement about a product's age is a statement of fact. A "best if sold by" date is not.
A best by date is most absolutely a statement about a product's age. I would be shocked if the best by date is anything other then the day the product is batched and bottled plus so many days or months. I seriously doubt ACH just randomly picks dates.
Deceive you about what?
It's deceptive about the perceived date when the item was bottled/batched.
But there's no evidence that it was "best a year ago."
I know this...I said earlier:
I was stating that I thought an improper argument objection would be well taken for stating facts not in evidence. How much clearer do I have to be. That fact or series of facts not in evidence is that the dressing was "rancid," that the dressing had in fact "exprired," etc.
However, I am certain people use the best by dates on products and choose more recent products over older products, that they choose products where the date has not passed over dates that have...If this is not the case why would the defendant have bothered to change the date.
If the date is genuinely meaningless to everyone in the world, then why would the defendant change the date? The thing, as they say in the law, speaks for itself.
In any event, the defendant was clearly deceptive as I indicated earlier...let's go back to the opinion...
As I said, the defendant was clearly deceptive, as a result, juror sympathy would be running at a low, and that more likely than the prosecutor's argument about buying justice is what led to the verdict.
Let me be more clear...
While the facts were not present legally to convict the defendant, the facts that were there cast the defendant in a negative enough light that the jury convicted more on the basis of the defendant being a bad guy and the charges seem right (to the average post-premept juror). That's what, in my opinion, drove the verdict far more than any other cause. This does NOT excuse the prosecutor's argument.
As the shopper for my household, when I want to go to the store, I want to get the *freshest* products possible. If there is bread marked with a sell by date of 3 days ahead and 5 days ahead, even if I plan to eat all the bread within 3 days, I always buy the 5 day bread. The freshness of the product is important to me as a consumer, even if it does not translate into any discernable difference in the way it tastes.
So I *always* look at and consider the best buy dates as an indication of whether I am getting the freshest product possible. I am not mistaking these dates for an expiration date, though I would argue that consumers like me would rely on the two somewhat interchangeably. I would simply not buy a product that is beyond the manufacturer's warranty period, whether arbitrary or not. I might eat a product that has been sitting in my cabinet past the "best by" date, but that is a different issue.
I think that the jury in this case is composed of everyday consumers like me, who understand the fraud that was perpetrated as a matter of common sense. While I don't have a problem with courts taking a close look at the elements of a crime, and throwing out those that rely too heavily on common sense inferences, I do have a problem when the courts do so only in the context of white collar or unusual prosecutions.
Make no mistake: this opinion will have a chilling effect on white collar prosecutions, and will encourage prosecutors to focus exclusively on the routine gun-drug-kiddie porn crimes that are readily affirmed. Although these cases often raise the same existential problems of proof that the this case did, you are not likely to see an opinion like this tossing out on of those convictions or tearing into the prosecutor. And it is a real shame.
I don't agree. I think this will have a chilling effect on bad white collar prosecutions, and that's good. The fact that the prosecutors, in court and in pleadings, repeatedly referred to the best if sold by date as an expiration date shows to me that they knew how weak the case was and knew they needed smoke and mirrors for a conviction.
Maybe, maybe not. Peruse some of Posner's opinions or, say, Kozinski's opinions and you'll find them challenging prosecutors on non-white collar prosecutions. In any event, I'm not comfortable with the apparent argument that an innocent white collar defendant should be convicted in the hopes that another defendant might not be convicted.
(Once again, to reiterate: the "best if purchased by" date does not tell you when it was actually made. One manufacturer might pick a date 1 year after manufacture, while another might pick a date 2 years after, and if the defendant here bought the first product and added a year, you'd be getting two products equally fresh.)
The "best if purchased by" date is not a "warranty period." To the extent a consumer would interpret it as such, and to the extent that in fact such an interpretation would be reasonable, and to the extent that the product is no longer good after that date, and to the extent that because of the changed date the consumer was unable to secure a refund, he might have a breach of contract or even fraud claim. Again, assumes lots of facts not in evidence, and not at all what he was charged with. There were no aggrieved consumers here.
I would have convicted, too, if I were on the jury and were told that the guy had changed the expiration date, against FDA rules. Which is what they were told... wrongly.
You missed part of the opinion, the part which introduced those comments: "The facts, stated as favorably to the government as the record permits..." In other words, those are not established facts; they're facts that could have been inferred from the evidence. Because those are not the basis of the misbranding charge, we don't know whether the jury believed the government's witnesses on these points.
I am genuinely curious. If you were hankering for a salad, but all you could find for dressing was a bottle of Henri's salad dressing, tucked away in the back of your cupboard, with a label reading: "Best By 3/14/1999," would you eat it? Would Posner?
Casper,
I would do what I usually do when this sort of thing happens to me (and it does, occasionally): I would open the bottle, sniff, and taste cautiously. If it seemed fine, then yes, I would eat it.
(*) Actually, I'd probably look at it, then ask my wife to sniff it.
Does that make it right? Who knows - but for now, it's not a law. Even the FDA said it wasn't a law.
I for one am glad to see a rouge prosecutor finally get crushed for improprieties in a court room. When you go up against an unlimited budget, you are already at a substantial disadvantage. When you get someone like this prosecutor who will stop at nothing to get a conviction - even lying (looks like over 20 times) this just ads to the difficulty of getting a fair trial.
I'd like to see her fired at least, prosecuted at best. If the defendant lied in court, what would have happened to him?
This should have NEVER made it to a court room. What a giant waste of our money.
Freudian slip?
David, the 'best when' may not have any particular legal consequences, but clearly the reseller intended to deceive the buyers.
Actionable? Well, every used car salesman in the country could be convicted.
It's a nice question to decide when sharp practice crosses over from marketing to criminality. AIP comes to mind, for example.
What, she's a Commie, too? That may explain why she went after an innocent capitalist entrepreneur.
In fact, I'm pretty sure there was no intent to deceive at all. I think he was concerned people might be deceived by the original "best if purchased by" (suspecting incorrectly that there is some quality difference after that date) and changed it to avoid such deception.
First, eeeeew.
Second, thanks for answering. I am apparently wrong about consumers' common-sense understandings, so I withdraw my objections to the opinion.
"Pristine 2007 BMW M5, only 23,000 miles, one owner..."
Everything in the ad is true, only it's really a 2006 model that came off the assembly line 2 weeks before BMW started building the next year's models. And the dealer covered the original VIN plate and doctored the title to hide the real model year. Does it matter? Sure it does. Even tho both years' cars perform equally well in their intended uses. And if it matters with otherwise identical BMWs with the same mileage, it should matter with salad dressing.
And the inevitable naysayer's response "but a 2006 model has a lower market value than a 2007 model" proves my point - salad dressing with a "best if purchased by" date that's past is obviously also worth less than identical salad dressing with a more recent date. If the dressing hadn't been altered, the dollar store would likely have had to sell the bottles at an even greater discount.
Based on some of the comments, I'm apparently an unreasonable consumer, but if I see two bottles of shelf-stable whatever with a "best if purchased by..." date, I will inevitably buy the one with the newer date, especially if it's going to get deposited into my black hole of a kitchen pantry for some indeterminate time. Or perhaps I've just been brainwashed into believing all those [actionably deceptive?] "skunky beer" ads that Budweiser used to run?
But here, everything on the label is true. You just aren't quite getting it: when a car was made is a statement of fact. When a salad dressing was made is also a statement of fact. But as far as the evidence shows, "best if sold by" is a statement of opinion, not fact. It is not a statement about how old the bottle is.
I can take a recipe, make salad dressing, put it in a David's Salad Dressing bottle, and put "Best if sold by January 2010" on it. You can take part of that same batch of dressing, put it in a Zippy's Salad Dressing bottle, and put "Best if sold by January 2011" on it. As a consumer, if you looked at David's and thought it was older than Zippy's, you'd be mistaken. But neither of us is "lying."
This is completely irrelevant. If I add a sticker to some salad dressing I make that says "the best tasting caesar dressing in the world", that might increase the value of the dressing and allow it to be sold at a higher price.
In this case, the extra value comes from the owner/seller of the dressing vouching for its freshness. In this case, by altering the labels, he was truthfully vouching for its freshness. So the dressing was fully entitled to the higher price once its labeling was altered to reflect the fact that it was in fact still vouched for as fresh by someone in the supply chain.
This is about a consumer fraud prosecution (mislabeling is basically fraud if it's not one of the explicitly covered categories of labeling, which this wasn't) with no evidence whatsoever that even one consumer was given an impression that was not correct. There was no evidence whatsoever provided what impression consumers get from the label nor that the impression given was incorrect. None at all. Not one whit.
If that doesn't shock the conscience, what does?
I agree with you about disenfranchisement. I won't comment about Posner.
I can agree with you on this, the prosecutor hammered home a misleading point (including with an expert witness). I did have a problem with Posner's odd statement about dollar store shoppers vs. typical grocery shoppers, though i see that he was trying to make the point that not a single customer had complained about test or freshness, which is what the "best by' date is really about (not expiration). However, other than that, I think I see your side more now, thanks.
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