an Illinois corporation, ) JOHN LABATT LIMITED, a Canadian

Transcription

UNITED STATES
FOR THE NORTHERN
EASTERN
GROVE FRESH DISTRIBUTORS,
DISTRICT
COURT
DISTRICT OF
ILLINOIS
DIVISION
INC.,
)
an Illinois corporation,
)
)
Plaintiff,
)
)
vs.
)
JOHN LABATT LIMITED,
corporation;
)
a Canadian
)
)
JOHN LABATT, INC., a California
corporation;
LABATT POOD COMPANY, a division of
John Labatt Limited;
EVERPRESH, a division of Labatt
Food Company;
EVERFRESH INC., a Michigan corporation, and EVERFRESH INC.,
a Canadian corporation,
jointly doing business as
)
)
)
)
)
)
)
)
)
)
EVERFRESH JUICE CO.;
AMERICAN CITRUS PRODUCTS
)
)
CORPORATION, an Illinois
corporation doing business as
)
)
HOME JUICE CO.;
DANIEL KOTWICKI;
)
)
ALBERT
)
"ACE" ALLEN;
MICHAEL ALLEN;
CHARLES JAMAIL; and
HENRY LANG,
No.
90 C 5009
Judge Zagel
)
)
)
)
Defendants.
)
FIRST AMENDED COMPLAINT
Plaintiff GROVE FRESH DISTRIBUTORS,
John P.
Messina,
Warren S.
Zimbrakos,
Esq.
Radler,Esq.,
Esq.,
INC.,
by its attorneys,
of the LAW OFFICE OF JOHN P.
Dale R.
Of RIVKIN,
Crider,
RADLER,
Esq.,
BAYH,
MESSINA,
and
and Dorothy B.
HART & KREMER,
for its
first amended complaint against defendants JOHN LABATT LIMITED,
Canadian corporation;
Labatt Limited;
EVERFRESH,
LABATT FOOD COMPANY,
JOHN LABATT,
INC.,
a division of Labatt
Michigan corporation,
jointly doing business
a
a division of John
a California corporation;
Food Company;
and EVERFRESH INC.,
EVERFRESH INC.,
a
a Canadian corporation,
as EVERFRESH JUICE CO.;
AMERICAN CITRUS
CORPORATION,
JUICE CO.;
CHARLES
an Illinois
corporation doing business as HOME
DANIEL KOTWICKI;
JAMAIL;
and HENRY
ALBERT
LANG,
"ACE" ALLEN;
states
JURISDICTION AND
1.
U.S.C.
as
MICHAEL ALLEN;
follows:
VENUE
This action arises under the federal RICO statutes,
Sections
Sections
1117,
1961,
1125,
et seq.,
the federal
Lanham Act,
18
15 U.S.C.
and the common law of civil conspiracy and
unfair competition.
Subject matter jurisdiction is based on 18
U.S.C.
28 U.S.C.
Section 1964;
Section
1338(b);
and 15 U.S.C.
Section 1121.
2.
Personal jurisdiction over the individual defendants is
based on their having conducted business
in Illinois relating to
the claims alleged herein and on this Court's long-arm jurisdic
tion.
3.
Personal
jurisdiction over the corporate defendants is
based on their having transacted business
in Illinois,
and on
this Court's long-arm jurisdiction.
4.
Venue
under 28 U.S.C.
is proper in the Northern District of Illinois
Section 1391(b),
in that the claims asserted
herein arose within this District.
U.S.C.
Section
1965,
or are found in this District.
SUMMARY OF
COMPLAINT
This case concerns the activities of individuals and
corporations associated with what
Home Juice organization,
paragraphs
is also proper under 18
in that the defendants conducted business,
transacted their affairs,
5.
Venue
76-80.
is referred to herein as the
which is more fully described below at
6.
At
The Home Juice organization was started in about 1952.
its largest the Home Juice organization consisted of at least
20 different corporations doing business in 13 jurisdictions in
the United States,
Home Juice Co.
Canada,
and Europe.
The entities included
of Illinois and Ever Fresh Juice Co.
of Michigan.
The controlling principals in the Home Juice organization were
the late Leonard Haddad and defendant Albert
"Ace"
Allen.
Defen
dant Daniel Kotwicki was an officer and director of several of
the entities
7.
in the Home Juice organization.
Beginning in May 1975 or earlier,
Michael Allen,
Lang,
and Kotwicki
but not joined as defendants)
Haddad,
(and others identified herein
entered into a civil conspiracy to
manufacture and distribute adulterated fruit juices,
(but not limited to)
juice.
Albert Allen,
orange juice,
grapefruit juice,
including
and apple
The adulterated products were distributed in Illinois,
Michigan,
and elsewhere in the United States.
Initially,
the
conspirators carried out their scheme through the Home Juice or
ganization.
8.
In May 1977,
Haddad,
Allen and Kotwicki extended the
conspiracy across the border into Canada,
together acquired a 67%
of Windsor,
Products,
Ontario.
when the three of them
interest in Jay-Zee Food Products Limited
After they took control
which they renamed Holiday Juice,
of Jay-Zee Food
Ltd.,
they put in
place the same techniques for adulterating orange juice and other
juices that were already at work in the Home Juice organization.
The conspiracy continued intact through several
of the corporate entities
later.
involved,
ownership changes
up through February
1989
or
9.
1983
Defendant John Labatt,
and designated
Food Group.
Ltd.
acquired Holiday Juice in
it as an operating division of
John Labatt,
Ltd.
its Packaged
learned about the adulteration
practices in this division no later than December 1986,
although
it very likely knew about these practices at the time it acquired
Holiday Juice in 1983.
10.
Ltd.
December 1986 is the latest date by which John Labatt,
learned about the adulteration practices.
acquired Ever Fresh Juice Co.
of Michigan,
spun off from the Home Juice organization
At that time it
which in 1978 had been
into an independent
corporation controlled by Albert and Michael Allen.
11.
On the date that John Labatt,
Juice Co.
of Michigan,
Ltd.
acquired Ever Fresh
the latter was a defendant in a law suit
that had been filed in March 1986 by Purity Products,
JFM 86-963
(D.
Maryland).
that Ever Fresh Juice Co.
The Purity Products
Inc.,
No.
complaint alleged
had been selling orange juice adul
terated with sugar since at least 1984.
The Purity Products com
plaint supported these allegations with the results of six tests
performed by an independent food testing laboratory*
Labatt,
Ltd.
12.
Ltd.
R.
settled this suit in August
Bruce Fraser,
John
1987.
the vice-president of John Labatt,
in charge of business development and acquisitions,
about the 1986
belief,
Purity Products complaint
(and,
learned
on information and
an earlier complaint alleging adulteration by Ever Fresh
Juice Co.
that had been filed in 1982)
ing a "due diligence"
in the course of conduct
investigation prior to John Labatt,
acquisition of Ever Fresh Juice Co.
Ltd.'s
13.
Grove Fresh alleges on information and belief that in
1986 or 1987
Dave Murray,
the vice-president at John Labatt,
in charge of quality control,
received the results of tests by
independent laboratories of products made by John Labatt,
fruit juice division.
These test results
made by John Labatt,
Ltd.'s
terated.
no later than 1987
Therefore,
John Labatt,
Ltd.
Ltd.'s
indicated that products
fruit juice division were adul
had actual
two key executives of
knowledge that products manufactured
by its fruit juice division were adulterated.
1989,
Ltd.
Prior to February
neither Fraser nor Murray took any steps to terminate the
adulteration practices at the fruit juice division.
14.
Daniel Kotwicki resigned from John Labatt,
December 1988.
In the spring of 1989 John Labatt,
Ltd.
Ltd.,
in
having
acquiesced in and profited from the adulteration practices at its
fruit juice division
for two years or more,
evading potential criminal
devised a scheme for
liability for those practices.
tives and agents of John Labatt,
Ltd.
Execu
devised a false explanation
of the practices at the fruit juice division that made Kotwicki
the scapegoat for the entire John Labatt,
15.
In May and June 1989,
agents of John Labatt,
Ltd.
Ltd.
organization.
in furtherance of this scheme,
arranged for meetings between select
Labatt executives and representatives of the United States Food
and Drug Administration
("FDA").
At these meetings Murray and
other executives and agents of John Labatt,
cert with him,
Ltd.
acting in con
gave the FDA a false and misleading account of the
history of the fruit juice division at John Labatt,
Specifically,
Ltd.
Murray and his fellow executives and agents mis
represented to the FDA that Kotwicki and others acting under his
direction had adulterated fruit juices without the knowledge or
approval
of the parent organization.
These representations were
false and misleading in that Murray and Fraser had known about,
had acquiesced in,
practices of the
and had implicitly approved the adulteration
fruit juice division since at least 1986,
if not
earlier.
THE
16.
Fresh")
PARTIES
Plaintiff GROVE FRESH DISTRIBUTORS,
INC.
("Grove
is an Illinois corporation with its principal place of
business at 7553
South Chicago Avenue,
Grove Fresh was established in 1962.
Chicago,
Illinois 60619.
Grove Fresh is
in the busi
ness of distributing fruit juices and other beverages.
17.
and,
Grove Fresh distributes both its own brand of juices
to a much lesser extent,
brands such as Tropicana.
of fruit juices.
Rather,
those of nationally-advertised
Grove Fresh is not itself a producer
Grove Fresh contracts with independent
processors for the production of juices and drinks bearing the
Grove Fresh brand name.
18.
CECIL TROY
("Troy")
is the principal shareholder and
chief executive officer of Grove Fresh.
served overseas in the Army,
During World War II,
he
and was honorably discharged with
the rank of staff sergeant in 1946.
In 1949 he received a degree
as a Doctor of Optometry from the Monroe
College of Optometry.
Troy is 75 years old.
19.
Over the years Troy has washed buses
Bus Terminal
in Chicago;
tional Harvester;
at the Trailways
worked on the assembly line at Interna
been a manager at the Grand Hotel,
Chicago;
worked part-time in the beer business as a salesman and then as
a sales manager;
20.
and owned and operated a cocktail
Troy is active in civic affairs.
trustee of the PUSH Foundation
He is a founding
(1970 to present).
on the boards of directors of four organizations:
ban League
(1974 to present);
(about 1978 to present);
to present);
lounge.
He also serves
the Chicago Ur
Businessmen For The Public Interest
Chicago Community Ventures,
Inc.
and the South Shore Chamber of Commerce
(1969
(1975
to
present).
He is the senior Commissioner of the Illinois Racing
Commission
(1975 to present),
and he is also a member of the ad
visory board for the Jackson Park Hospital Foundation.
21.
Defendant DANIEL KOTWICKI
resident of Sarasota,
1990,
Florida.
("Kotwicki")
From at least
he was a citizen and resident of Warren,
is a citizen and
1969 to about March
Michigan.
Kot
wicki is registered by the state of Michigan as a certified
public accountant.
Ltd.
from
1977
to
Kotwicki was a shareholder of Holiday Juice
1983,
when he and the other shareholders sold
the company to John Labatt,
Ltd.
From
1977
president and a director of Holiday Juice.
1977,
to
1988,
he was the
From about 1972 to
he was a vice-president of Ever Fresh Juice Co.,
based in Warren,
Michigan.
a company
He also served as an officer and
director of other entities affiliated with Ever Fresh Juice Co.
and the Home juice organization
(the Home Juice organization is
described below at paragraphs 76-80.)
22.
Windsor,
Defendant CHARLES E.
Ontario.
Juice Ltd.
JAMAIL
("Jamail")
is a
resident of
Jamail was a shareholder and officer of Holiday
from 1959 to 1983.
by defendant John Labatt,
Ltd.
After Holiday Juice was acquired
Jamail continued in management as
an officer and director of Holiday Juice until his retirement in
June
1990.
23.
On information and belief,
is a resident of Michigan.
1989,
At various times between
Allen was a shareholder,
Fresh Juice Co.
Juice Co.
of Michigan,
officer,
1959 and
and/or director of Ever
defendant Everfresh Inc.,
and Home
(Illinois).
24.
brother of Albert)
and Home Juice Co.
of Michigan,
(the
At various times
Allen was a shareholder,
director of Ever Fresh Juice Co.
25.
defendant MICHAEL ALLEN
is a resident of Michigan.
between 1959 and 1989,
Inc.,
defendant ALBERT "ACE" ALLEN
officer,
and/or
defendant Everfresh
(Illinois).
Defendant JOHN LABATT,
LIMITED
("Labatt")
is a corpora
tion organized under the laws of Canada or the Province of On
tario,
or both,
Ridout Street,
with its principal place of business at 451
London,
Ontario.
Labatt is a holding company that
owns numerous subsidiary corporations
States
in Canada,
the United
and Europe.
26.
Labatt
ing business.
is
in the brewery business and the food process
Labatt carries on these businesses through sub
sidiaries that are organized into operating divisions.
year 1989,
billion,
27.
Labatt and its divisions had gross sales of $5,424
and gross earnings of $263.3 million.
Defendant LABATT FOOD CO.
is the Labatt division that
is engaged in the production and sale of
the United States and Canada.
Co.
In fiscal
In fiscal year 1989,
had gross sales of $3,606 billion,
$105.8 million.
food and beverages
Labatt Food Co.
was
8
in
Labatt Food
and gross earnings of
formed in or about
1988 when
Labatt combined its Packaged Food Group with its Agri Products
Group.
28.
One of the constituent corporations of Labatt Food Co.
is defendant JOHN LABATT,
INC.
("Labatt/USA"),
a California cor
poration with its principal place of business at Watchung,
Jersey.
New
Labatt/USA is a holding company for most of the Labatt
subsidiaries that are engaged in the food and beverage business
in the United States.
29.
Defendant EVERFRESH is a division of Labatt Food Co.
that is engaged in the business of producing and selling fruit
juices and drinks and sparkling beverages.
The constituent cor
porations of Everfresh are both named EVERFRESH INC.,
herein.
One is a Michigan corporation with its principal place
of business
in Franklin
"EVERFRESH INC./USA"),
Labatt/USA;
Ontario
INC./CANADA"),
30.
Park,
Illinois
(referred to hereafter as
and is a wholly-owned subsidiary of
the other is a federal corporation organized under
the laws of Canada,
Windsor,
defendants
with its principal place of business in
(referred to hereafter as "EVERFRESH
and is wholly-owned by Labatt.
Defendant AMERICAN CITRUS
("American Citrus"),
PRODUCTS CORPORATION
d/b/a Home Juice Co.,
is an Illinois cor
poration with its principal place of business at North 15th and
Bloomingdale Avenues,
Melrose Park,
Illinois.
was incorporated in Illinois in 1982,
all
American Citrus
at which time it acquired
of the stock of another Illinois corporation,
(hereafter referred to as
78(c)
below).
"Home Juice
Home Juice Co.
(Illinois);" see paragraph
31.
Forest,
Defendant HENRY LANG
Illinois.
Co.
is a resident of River
Lang is a member of the Illinois bar.
married to Caroline Haddad,
32.
("Lang")
He is
a daughter of Leonard Haddad.
Lang was employed in various capacities at Home Juice
(Illinois)
from the early 1970s to 1982.
In 1982,
caused defendant American Citrus to be incorporated,
Lang
and then
caused American Citrus to acquire all of the stock of Home Juice
Co.
(Illinois).
Lang is the chief executive officer and prin
cipal shareholder of American Citrus.
Co-Conspirators Not Joined
As
33.
LEONARD HADDAD
Party-Defendants
("Haddad")
He died suddenly on December 3,
HADDAD was a citizen of Ontario,
belief,
was a citizen of Illinois.
1978,
at the age of 60.
Canada.
George and Leonard were brothers.
On information and
Over the years
and George established more than a dozen corporations
United States,
Canada,
GEORGE
Leonard
in the
and Europe that were engaged in the
production and sale of fruit juices,
fruit juice concentrates,
and fruit drinks.
34.
Michigan.
GERALD WOLBERG
From about the late 1960s until the fall of
Wolberg was an officer of one or more of the entities in
the Home Juice organization.
1977,
is a resident of Southfield,
He is licensed by the state of Michigan as a certified
public accountant.
1976,
("Wolberg")
In particular,
from about 1972
he was president of Ever Fresh Juice Co.
to
of Warren,
Michigan.
35.
After leaving the Home Juice organization,
Wolberg es
tablished Southern Michigan Brokerage Company for the purpose of
10
brokering shipments of orange juice products from Florida to
Chicago,
and from Brazil to Windsor,
of New York and Baltimore.
Toronto,
and Chicago by way
He also engaged in the business of
hauling orange juice products to and from Canada for or in behalf
of Holiday Juice.
36.
See Appendix of Exhibits,
EDWARD M.
died in about 1986.
Exhibit 7,
ZAKOOR was a resident of Ontario,
In 1959,
Jay-Zee Food Products/
p.
Canada.
Zakoor and defendant Jamail
Limited.
In 1977,
2.
He
founded
Zakoor yielded a con
trolling interest in Jay-Zee Food Products,
Limited to a group
consisting of Leonard Haddad and defendants Albert Allen and
Daniel Kotwicki.
The following year the name of the corporation
was changed to Holiday Juice Ltd.
Holiday Juice Ltd.
Zakoor sold his interest in
to Labatt in 1983.
He continued as an officer
and director of Holiday Juice until his death.
37.
MR.
tablished in
JUICBY OP ILLINOIS is an Illinois corporation es
1974
by James Marshall.
In 1980,
linois organized FLAVOR FRESH JUICES CORP.
sidiary.
Mr.
Juicey of Il
as a wholly-owned sub
These two entities were merged in 1988,
ing entity was called FLAVOR FRESH FOODS CORP.
and the surviv
("Flavor Fresh").
Flavor Fresh is an Illinois corporation engaged in the business
of distributing fruit juices and concentrates to wholesalers and
retailers in the Chicago market.
Flavor Fresh is also a blender
and broker of concentrated orange juice
product,
which is referred to in the industry as
described below at paragraph
38.
for manufacturing
JAMES MARSHALL
until about 1972,
is
57.)
("Marshall")
and director of Flavor Fresh.
"COJM,"
(this
is a
shareholder,
officer
From some date in about the 1950s
Marshall worked for Home Juice
11
(Illinois)
as a
juice technologist in the quality control department.
to at least 1979,
Haddad in H.J.
From 1969
Marshall was also a co-shareholder with Leonard
Foods International,
Chur,
a Swiss corporation
engaged in the business of selling fruit juices and concentrates
in Europe.
39.
See paragraph 78(u),
JAMES BENTON
below.
("Benton")
became a shareholder,
officer
and director of Flavor Fresh sometime in the late 1970s or early
1980s.
From some date in about the
ton worked for Home Juice
1960s until about 1972,
(Illinois),
first as a driver,
Ben-
then as
a sales manager.
40.
R.
BRUCE FRASER is a resident of Mew Jersey.
an officer of Labatt Food Co.,
President,
Fraser is
having the title of Vice-
Corporate Planning and Development.
Fraser is also an
officer and director of one or more of Labatt#s subsidiaries.
Fraser was actively involved in Labatt's acquisitions of Holiday
Juice Ltd.,
Michigan,
41.
Boden Products,
Inc.,
Ever Fresh Juice Co.
of
and Wagner Juice Co.
J-Z JUICE CO.
is a corporation that was organized under
the laws of the state of Michigan in August 1981.
til about 1988,
Jenney Drive,
From 1981 un
the principal place of business of J-Z was 11524
Warren,
Michigan,
From 1981 until about 1989,
which was Kotwicki's residence.
J-Z Juice Co.
sidiary of Holiday Juice Ltd.
was a wholly-owned sub
In or about 1989,
J-Z Juice Co.
became a wholly-owned subsidiary of Labatt/USA.
42.
From 1981 to the present,
J-Z Juice Co.
has distributed
fruit juices
in the United States,
J.Z.
See the sample invoices reproduced in the Supplemen
label.
tal Appendix as Exhibit 26.)
including Illinois,
From 1981 to the present,
12
under the
J-Z Juice
Co.
has distributed its products in the Chicago market through
Flavor Fresh.
43.
The officers and directors of J-Z Juice Co.
James Emmerton,
George Taylor,
Kitts and Bruce Fraser,
Labatt or Labatt/USA.
Norman Davis,
Larry
include W.
Innanen,
Dean
who are also officers or directors of
As of April
1989,
Labatt is paying cor
porate filing fees to the state of Michigan on behalf of J-Z
Juice Co.
44.
In or about October 1978,
defendants Albert Allen and
Michael Allen organized HOLIDAY JUICE CO.
under the laws of the
state of Michigan as a wholly-owned subsidiary of Ever Fresh
Juice Co.
tributed products
this Holiday Juice Co.
dis
in the United States that had been manufactured
by Holiday Juice Ltd.
of Canada.
In 1988,
Holiday Juice Co.
was
merged into Everfresh Inc./USA.
45.
Co.,
DAVE W.
MURRAY is an officer of defendant Labatt Food
having the title of Director,
all relevant times Murray's duties
Technological Development.
At
included assuring the purity
and quality of the juices produced by Everfresh.
BACKGROUND FACTS
The Process For Manufacturing
Orange Juice Concentrate
46.
the 1930s,
Commercial
fruit juice production got started in about
with the perfection of techniques for flash pas
teurization.
The orange juice segment of the fruit juice in
dustry began to grow at an accelerated rate
tists at the Florida Department of Citrus
for making
when scien
invented the process
frozen concentrated orange juice.
13
in 1945,
In
1948,
the state
of Florida assigned this patent to the United States Department
of Agriculture as a public service patent.
47.
Orange juice is the natural liquid that is squeezed
from mature oranges.
The taste and appearance of
squeezed orange juice deteriorates rapidly,
being squeezed and exposed to the air.
market
often within hours of
Thus,
the commercial
for orange juice is dominated by processed products of
various kinds.
tween
freshly-
Processed orange juice has a shelf life of be
four weeks and 12 months,
depending on the method of
processing.
48.
Orange juice is commercially processed for retail sale
in either of two ways.
Frozen concentrated orange juice
is the retail product which,
of water,
("FCOJ")
when mixed at home with three parts
creates a potable juice.
For many years,
most popular form of processed orange juice.
FCOJ was the
In the 1950s,
accounted for about 70% or more of the orange juice market.
1989,
however,
less than 50%
49.
its popularity had declined,
By
and it accounted for
of the orange juice market.
The other type of processed orange juice,
single strength orange juice
to serve orange juice),
("SSOJ")
finished
(also referred to as ready
is packaged for consumption without any
further steps by the consumer.
SSOJ:
FCOJ
There are two basic types of
juice that has been reconstituted by commercial processors
from industry-strength concentrate
paragraphs
57-63)
(see discussion below at
and freshly squeezed orange juice that has been
pasteurized.
50.
There are three basic steps
orange juice concentrate:
extraction,
14
in the manufacture of
finishing,
and evaporation.
First,
whole oranges are placed in a press machine which extracts
liquid from the oranges.
This liquid
well as bits of rind and peel.
Then,
moved through pipes to a finisher.
pulp,
includes pulp and seeds as
the extracted liquid is
The finisher separates the
peel and seeds from the stream of liquid.
leaves the finisher is orange juice.
pipes to an evaporator,
produce concentrate.
The liquid which
This juice
is moved through
where the water is evaporated away to
The product that is created by the
evaporator is often referred to as solids or soluble solids.
the concentrate is
processors
If
intended for resale to secondary or tertiary
(see paragraphs 59-60,
below),
it is packed in either
55-gallon drums or in tankers.
51.
The second step in the processing of oranges
leaves
material in the finisher which is called finisher pulp or pomace.
This
1955,
finisher pulp still contains juice nutrients.
Prior to
there was no technically efficient way for reclaiming these
nutrients.
sold this
Consequently,
finisher pulp to feed mills,
marketed as animal
52.
prior to 1955 orange juice processors
In 1955,
where it was dried and
feed.
a method was developed for extracting juice
nutrients from finisher pulp.
The method involves a countercur-
rent flow of water which removes any liquid which has adhered to
the finisher pulp.
as pulpwash,
The resulting liquid
since the method involves
"pulp" with water.
is commonly referred to
"washing"
Finisher pulp can be
"washed"
the finisher
several times,
but with each successive washing the taste of the liquid becomes
increasingly bitter.
15
53.
Pulpwash,
like orange juice,
can be turned into con
centrated form by running it through an evaporator.
The techni
cal name for the product created by this process is Water Ex
tracted Soluble Orange Solids or WESOS;
referred to as pulpwash solids.
centrate
informally the product is
The price of pulpwash con
is about 40% of the price of pure orange juice con
centrate .
54.
In 1965,
the state of Florida prohibited the inclusion
of pulpwash in products labeled "orange juice."
Elsewhere in the
United States pulpwash is permitted in the manufacture of orange
juice concentrate,
"wash" of the pulp,
but only if the pulpwash is from the first
and only if the pulpwash has been obtained
from the same batch of fruit as the stream of pure juice to which
it is being added back.
When pulpwash is added to a stream of
pure juice in this fashion,
pulpwash.
it is referred to as "in-line"
In-line pulpwash can increase the concentrated orange
juice yield by about 6%.
55.
When pulpwash is processed without being added back to
pure juice,
the resulting product is the pulpwash solids that may
only be used in beverage production,
not in the preparation of a
standardized orange juice product.
The Organization Of The Orange Juice Industry
56.
engaged
The orange juice industry is composed of corporations
in the business
of growing and processing
into juice and juice concentrates
cial,
for sale ultimately to commer
institutional and retail customers.
all oranges are processed for their juice.
16
fresh oranges
Approximately 80% of
57.
The companies that manufacture concentrate from fresh
oranges are commonly referred to as primary processors.
Most
primary processors are located in the states that grow oranges,
i.e..
Florida,
Texas and California.
primary processors
manufacturing
quantities
The product manufactured by
is termed concentrated orange juice for
("COJM").
This product is generally sold in bulk
(tankers or 55
gallon drums).
Contracts
for future
delivery of COJM are traded actively on various commodity ex
changes .
58.
"Orange solids"
refers to the processed product that
remains after water has been removed
juice.
Orange solids are,
from freshly squeezed orange
essentially,
sugars.
The amount of
orange solids in a juice is expressed as degrees Brix.
used,
along with acidity,
quality.
Brix is
as a measure of citrus maturity and
The custom in the manufacture of industrial quantities
of COJM is to concentrate the product so that it is reconstituted
to single strength by adding 5,
part of concentrate
59.
(58
5
1/2,
or 6 parts water to one
- 65 degrees Brix).
Manufacture of a SSOJ or FCOJ often requires blending
of COJM from several sources,
i.e..
secondary processing.
each batch of COJM may possess differing characteristics,
degree of sweetness,
acidity,
color and flavor,
quired to obtain a uniform product.
blending
Since
such as
is re
The blended product result
ing from secondary processing may be called either COJM or FCOJ.
Up to sometime
processors
60.
in the
1970s,
the vast majority of secondary
(also known as blenders)
were
A third stage of processing,
plaint as tertiary processing,
located in Florida.
referred to in this Com
takes place at the local
17
level
throughout the United States.
This third stage of processing is
the mere diluting of a blended COJM into a packaged product for
retail sale,
either as SSOJ from concentrate or FCOJ.
A large
number of these tertiary processors are supplied by companies
that only perform secondary processing.
Some primary and secon
dary processors are vertically integrated to perform secondary
and tertiary processing as well.
61.
There are two basic methods for packing juice at the
tertiary stage:
"hot pack" and "cold pack."
"Cold pack" refers
to reconstituted juice that is mixed at temperatures of 170 to
183 degrees
farenheit,
and which is then,
after being cooled,
packed in plastic containers or coated paper cartons.
This
product is called cold pack juice because it is packed at a cool
temperature,
sumption.
62.
to
late
and thereafter must be kept refrigerated until con
It has a shelf life of about four weeks.
"Hot pack"
1970s.
is a method that became popular in the mid-
It refers
to
reconstituted juice that
is mixed
and pasteurized at temperatures of 170 to 183 degrees farenheit,
and then immediately packed and capped in glass containers.
the juice cools in the glass bottle,
As
it creates a vacuum seal.
The result is a product that is shelf stable for up to 12 months.
63.
There are two principal advantages to hot pack juice.
It can be stored at room temperature,
thereby eliminating the ex
pense to the retailer of refrigeration;
and it has a shelf life
of many months,
due to
thereby reducing
losses
spoilage.
advantages are partially off-set by two disadvantages.
juice can only be packed in glass containers,
Hot pack
which are substan
tially more expensive than plastic or coated carton.
18
These
Moreover,
hot pack juice requires more elaborate
(and more expensive)
pack
ing machinery.
64.
"Co-packing"
processors.
Under
such
is an arrangement between two tertiary
an
arrangement
one
of
the processors
plies concentrate and packaging materials to the other,
reconstitutes the concentrate,
packages
it into SSOJ,
sup
who then
and
delivers the product according to the directions of the originat
ing packer.
65.
Co-packing can be a solution to any one of several dif
ferent business problems.
If the originating packer is operating
at capacity and still cannot satisfy the demand for its products,
a co-packing arrangement allows it to increase its production
volume without investing in new equipment.
As another example,
if the originating packer lacks the equipment to make a certain
type or size of product
(for example,
a 10 ounce hot pack orange
juice),
a co-packing arrangement allows
it to add that type or
size to
its product line,
investing
again without
in new equip
ment.
66.
One of the most common reasons
penetrate distant markets.
If,
for co-packing
for example,
is to
a processor in
Chicago wants to penetrate the market in Virginia,
co-packing
with a processor in the state of Virginia will result in a sub
stantial savings on freight,
since the raw materials being
shipped do not include the water needed to reconstitute COJM into
SSOJ.
Industry Standards of Identity
67.
As stated above,
the development of the commercial
orange juice industry was accelerated
19
in 1945 with the invention
of the process
for making orange juice concentrate.
Over the
next ten years the industry developed many different types of
products made from orange juice concentrate.
By 1956 and 1957,
the industry had developed standards of identity for many of
these products.
These standards
included:
Reconstituted orange iuice; identity, (a)
Reconstituted orange juice is the food prepared by
mixing water with concentrated orange juice or with a
mixture of concentrated orange juice and orange juice,
fresh orange juice or stabilized orange juice, processed
orange juice or both.
may be added.
Orange pulp and orange peel oil
The Brix value of reconstituted orange
juice is not less than 11.3.
(b)
For the purpose of this section, concentrated
orange juice means stabilized orange juice, processed
orange juice form which a portion of the moisture has
been evaporated.
Orange pulp, orange peel oil, orange
juice, fresh orange juice and stabilized orange,
processed orange juice may be added.
It may be frozen.
(c)
Reconstituted orange juice prepared from the
juice or concentrated juice of oranges grown in a single
State may be designated "Reconstituted
orange juice," the blank being filled in with the name
of
such State.
Canned
orange iuice;
identity;
label
statement of
optiona1 inqredients. (a)
Canned orange juice is the
unfermented, undiluted juice from mature oranges...
Dissolved air, peel oil, and other volatile components
present in such juice may be removed by vacuum distilla
tion but the water so removed is restored to the juice
to such extent that, after restoration, the juice con
tains not less than 95 percent by weight of the water
originally present therein.
Excess seeds and pulp are
removed
from the
food....
(b)
The name of the food is "orange juice."
If it
contains no sweetening ingredient, the word
"unsweetened" may immediately precede or follow the
words
"orange juice."
(c)
If the food contains an optional sweetening
ingredient, wherever the name of the food appears on the
label so as conspicuously as to be easily seen under
customary conditions of purchase, the word "sweetened"
or the words "sweetener added" or "with added sweetener"
shall conspicuously precede or follow the name, without
intervening written,
printed,
20
or graphic matter.
21 Fed.
Reg.
8511
(Nov.
6,
1956);
22
Fed.
Reg.
3893
(June 4,
1957).
With only slight modifications these standards of iden
tity were adopted as regulations by the Food and Drug Administra
tion in about 1962.
68.
In the fruit juice industry,
described as
reconstituted orange juice
"100% pure orange juice from concentrate,"
a product consisting of pure orange juice concentrate,
specified amount of water,
refers to
a
plus a certain defined amount of
orange oils and essences that were captured during the evapora
tion process and then added back to the finished product.
69.
In the
fruit juice industry,
of any orange juice product
"100% pure orange juice,"
ingredients:
(a)
grape juice;
(d)
preservatives,
the standard of
(whether FCOJ or SSOJ)
labeled as
does not include any of the following
pulpwash solids;
beet sugar,
(b)
grapefruit solids;
or corn sugar,
(g)
citric acid;
(h)
(c)
or cane sugar;
unless expressly declared on the label;
or emulsifiers;
identity
(f)
(e)
gums
amino acids.
The Adulteration Of Orange Juice
70.
in the
During the 1950s and 1960s there was explosive growth
fruit juice market as consumers demanded more ready-to-
serve juices,
binations.
frozen concentrated juices,
This
and varietal
juice com
increased demand triggered adulteration of
juices on a large scale.
In the 1950s,
fruit
fruit juices were adul
terated mostly through simple dilution with extra water and the
addition of sugar,
acid and colorant.
By the
1970s the rela
tively crude techniques of dilution had given way to sophisti
cated recipes of additives and chemicals that were specifically
designed to mask the fact of adulteration.
21
71.
Beginning in the late 1970s,
two circumstances combined
to make adulteration an especially acute problem in the orange
juice industry.
First,
there were a series of devastating
freezes which greatly reduced the orange crop in Florida.
This
reduction in the supply of oranges greatly increased the economic
incentive to adulterate orange juice.
72.
Also in the 1970s,
the orange juice packing industry
was changing by way of a substantial
increase
in the number of
secondary and tertiary processors outside the state of Florida.
As of 1972,
77% of the COJM produced in Florida was ultimately
packed in retail
containers,
was shipped to other states
and only
15%
for packaging
of the bulk concentrate
in retail
containers.
Concentrate packed in Florida has the highest assurance of
quality because Florida is the only state that requires orange
juice operations to be subject to continuous inspection by the
U.S.
Department of Agriculture.
By
concentrate shipped to other states
to 45%.
Today,
1984,
for packaging had
more than half of all retail
products are packed outside of Florida,
prophylactic watch of U.S.D.A.
73.
increased
orange juice
and therefore beyond the
inspectors.
The most common forms of orange juice adulteration are:
(a)
of
the percentage of bulk
dilution with extra water below the standard
11.8 degrees brix;
(b)
extension of orange juice with orange pulpwash
solids blended with a related amount of either beet
sugar,
corn
sugar,
or
cane
sugar;
22
(c)
the addition of undeclared grapefruit solids
when the price of grapefruit is much lower than that of
orange juice;
(d)
combinations of
(a),
(b)
and
(c),
along with
preservatives and specialized recipes of ingredients.
The Importance Of Orange Juice
74.
Orange juice is far and away the most popular fruit
juice in the world.
In 1988,
proximately 60% of all
orange juice accounted for ap
fruit juice sales
whether measured in dollars or gallons.
popular fruit juice,
apple juice,
In 1988 the next most
accounted
for only 20% of all
fruit juice sales.
75.
When it comes to stocking fruit juices and drinks,
retailers have a strong preference for dealing with a single dis
tributor.
Since orange juice is by far the best-selling of the
fruit juices,
retailers who are sensitive to price will generally
choose a fruit juice distributor on the basis of that
distributor's price for orange juice.
Thus,
if one distributor's
price for orange juice is higher than the price asked by its com
petitor,
it stands to lose sales not only of orange juice,
all other fruit juices and drinks as well.
23
but of
FACTS
OF
THIS
CASE
The Home Juice Organization
76.
Beginning in the 1950s,
Leonard Haddad and George Had-
dad organized more than a dozen businesses in the United States,
Canada and Europe.
All or most of these businesses specialized
in the home delivery of "bellywash."
Bellywash
is
industry ver
nacular for drinks that are made by combining water,
amounts of fruit juice,
77.
The Haddads'
businesses also produced and distributed
grapefruit juice,
Pure,"
78.
and
including orange
apple juice and grape juice.
major brand names distributed by the Haddads'
"Mr.
small
and various additives and preservatives.
beverages that purported to be pure fruit juice,
juice,
sugar,
The two
businesses were
"Everfresh."
Almost all of the businesses organized by the Haddads
used the name "Home Juice."
lowing corporations,
(a)
among others:
Chicago Home Juice Sales Corp.,
der the laws of Illinois
(b)
Their businesses included the fol
Home Juice Co.,
organized un
in 1952;
organized under the laws of
Michigan in 1952;
(c)
Illinois
Home Juice Co.,
in 1956
(referred to herein as "Home Juice
(Illinois)");
(d)
Home Juice Company of Canada,
under the laws of Canada
(e)
Ltd.,
organized
in 1964;
Home Juice Company Limited,
the laws of the province of Ontario,
24
organized under
Canada in 1963;
(f)
Oklahoma Home Juice Co.,
laws of Illinois
(g)
organized under the
in 1959;
Oklahoma Home Juice Co.,
organized under the
laws of Oklahoma in 1971;
(h)
Milwaukee Home Juice Co.,
laws of Illinois
(i)
in 1958;
Home Juice Management Corp.,
the laws of Illinois
(j)
organized under the
in
organized under
1963;
Madison Home Juice Co.,
Inc.,
organized under
the laws of Wisconsin in 1964;
(k)
Home Juice Company of Memphis,
under the laws of Tennessee
(1)
of Iowa
(m)
organized
in 1978.
Iowa Home Juice Co.,
organized under the laws
in 1964;
St.
Louis Home Juice Co.,
laws of Missouri
(n)
Inc.,
organized under the
in or about 1959;
Everfresh Juice Co.
of Virginia,
organized un
der the laws of Virginia in 1971;
(o)
Florida Home Juice Co.,
laws of Illinois
(p)
in
organized under the
1959;
Everfresh Transportation Co.,
organized under
the laws of Florida in 1973;
(q)
C-Rich Fruit Juice Inc.,
organized under the
laws of Massachusetts in 1968.
(r)
Ever-Fresh Juice Co.,
of Michigan in
(s)
organized under the
laws
1969;
Ever Fresh Juice Co.,
of Delaware in 1976;
25
organized under the laws
(t)
HJ Foods Holland,
the Netherlands
(u)
H.J.
in
1970;
Foods International,
under the laws of Switzerland in
A.G.
Chur,
organized
1969.
These entities are referred to collectively herein as the "Home
Juice organization."
79.
Beginning in or about 1959,
LEN and his brother,
defendant ALBERT "ACE" AL
defendant MICHAEL ALLEN,
acquired interests
in one or more of the corporations in the Home Juice organiza
tion.
At various times between 1959 and 1978,
Albert and Michael
served as officers or directors of one or more of the entities
in
the Home Juice organization.
80.
Defendant Daniel Kotwicki went to work for the Home
Juice organization in about 1971.
tered into a long-term,
Juice
On June 7,
1975,
Kotwicki en
written employment agreement with Home
(Illinois).
Home Juice's Entry
Into The Canadian Market
81.
in 1963
or earlier the Home
Juice organization entered the Canadian market through business
arrangements with an entity based in Windsor,
Jay-Zee Food Products,
Limited
("Jay-Zee").
Ontario,
known as
As a result of the
arrangements between the Home Juice organization and Jay-Zee,
the
Home Juice organization held the exclusive right to distribute
Mr.
Pure and Everfresh products
held the exclusive right to distribute Mr.
products
in Canada.
26
and Jay-Zee
Pure and Everfresh
82.
For a decade or more,
both the Home Juice organization
and Jay-Zee prospered under their mutual arrangements.
beginning in about 1975,
Then,
Jay-Zee suffered a series of reverses
that put it on the verge of bankruptcy.
83.
Among other things,
Edward M.
Zakoor,
Jay-Zee's chair
man and chief executive officer, had serious health problems that
impeded his ability to manage the business effectively.
He even
tually underwent open heart surgery and took an indefinite medi
cal
leave of absence.
Also,
the largest distributor of Jay-Zee
products in Canada started manufacturing juice and drink products
in competition with Jay-Zee.
This former distributor initiated a
cut-throat price war which led eventually to costly litigation.
As a result of these problems and business conditions generally,
Jay-Zee began to run out of working capital.
84.
Jay-Zee's business problems threatened to diminish the
profitability of the Home Juice organization.
bankrupt and went out of business,
would lose
85.
If Jay-Zee became
the Home Juice organization
its access to the valuable markets in Canada.
In June 1976,
in order to preserve the Home Juice
organization's access to Canadian markets,
agreed to make a $500,000
loan to Jay-Zee.
by a debenture and floating lien on all
personal property.
Home Juice
(Illinois)
The loan was secured
of Jay-Zee's real and
Under the terms of the debenture,
principal
was to be repaid in monthly installments commencing one year
thereafter,
on July
1,
debenture mortgage is
herewith as Exhibit
1977.
A true
and
correct
copy
of the
included in the Appendix of exhibits
1.
27
filed
86.
Even with the loan from Home Juice
(Illinois),
however,
Jay-Zee was not able to resolve all of its business and financial
problems.
Accordingly,
in May 1977,
prove Jay-Zee's prospects,
Edward M.
ten agreement with Leonard Haddad,
and Home Juice
(Illinois)
in a further effort to im
Zakoor entered into a writ
Albert Allen,
Daniel Kotwicki
(the "May 1977 Agreement").
correct copy of the May 1977 Agreement
is
A true and
included in the Appen
dix as Exhibit 2.
87.
Pursuant to the May
1977 Agreement,
the first repayment of principal under the
deferred for one year,
to July 1,
1978.
the due date
for
1976 debenture was
In exchange for this
deferral and other good and valuable consideration,
Zakoor,
at the time was the registered owner of
issued shares
of Jay-Zee,
relinquished control of Jay-Zee by transferring 28.3%
of the registered shares to Haddad,
Kotwicki.
100% of the
Zakoor
28.3% to Allen,
(and the beneficiaries,
held any portion of the registered stock)
terest
in Jay-Zee of
88.
who
if any,
and 10% to
for whom he
retained a minority in
33%.
Immediately after the May
trolling shareholders
(i.e..
protect their new investment,
1977 Agreement the new con
Haddad and Allen),
in order to
appointed Kotwicki as president and
chief executive officer of Jay-Zee and changed the name of the
company to Holiday Juice.
pointment,
Home Juice
Kotwicki,
as of the date of his ap
was under a long-term personal services contract with
(Illinois).
tinued to receive a salary from Home Juice
a
salary
(Illinois)
from Jay-Zee because of Jay-Zee's poor
tion.
28
Kotwicki con
in lieu of
financial
condi
89.
In July 1977,
Juice Ltd.,
after Jay-Zee had been renamed Holiday
Kotwicki caused Holiday Juice to apply for registra
tion of the brand name
"Everfresh"
as a trademark of the company.
A summary of the Holiday Juice trademark application is included
in the Appendix as Exhibit 3.
The Allocation Of Markets
Between And Among Principals
Of The Home Juice Organization
90.
As of 1978 the Home Juice organization had been in
business for nearly three decades.
Over the course of that time
the organization had grown from an operation serving two local
markets in Detroit and Chicago into a national and international
enterprise serving diverse markets
Canada
and Europe.
91.
Between April 1978 and April
1979,
the principals in
the Home Juice organization entered into agreements for the pur
pose of allocating between and among themselves the markets
served by the Home Juice organization.
92.
The first market allocation agreement came in or about
April 1978,
when Leonard Haddad and Albert Allen decided that it
"would be advantageous to separate some or all of their joint
business ventures
efficiency."
in the interest of better management and
As part of the separation agreement,
Allen surren
dered his minority interests in Jay-Zee and Home Juice
to Haddad.
At the same time Ever Fresh Juice Co.
wholly-owned subsidiary of Home Juice
(Illinois),
(Illinois)
of Michigan,
was spun off
into an independent corporation,
of which Allen became the sole
or the controlling shareholder.
(A copy of an indemnification
29
a
agreement executed in connection with this transaction is
in
cluded in the Appendix as Exhibit 4.)
93.
The result of this arrangement was that Allen and his
brother Michael gained control over the Home Juice markets in
Michigan and the eastern and southern United States,
and Haddad
gained control over the Home Juice markets in Illinois,
western United States
94.
(except Michigan)
the mid-
and Canada.
The next allocation agreement came in April
1979,
about
five months after Leonard Haddad's sudden death on December 3,
1978.
At his death the controlling interest in the Home Juice
organization passed to his widow,
however,
Marie Boden Haddad.
had no experience in the business and no inclination to
operate it on a day-to-day basis.
Therefore,
her controlling ownership of the business,
control to her son-in-law,
95.
His widow,
while maintaining
she ceded operating
Henry Lang.
At the date of Haddad's death the Home Juice organiza
tion included a controlling interest in Jay-Zee,
had changed its name to Holiday Juice.
Kotwicki,
chief executive officer at Holiday Juice,
which by then
who was the
had been in competition
with Lang to eventually succeed Haddad as chief of the Home Juice
organization.
The sudden death of Haddad had left the issue of
succession unclear.
Lang and Kotwicki resolved the issue of suc
cession between themselves through a further allocation of the
markets served by the Home Juice organization.
96.
The allocation was effected by virtue of two agreements
dated in April and May 1979,
to purchase
whereby Kotwicki and Zakoor agreed
from Haddad's estate all of the estate's
Holiday Juice Ltd.
interest in
As of the date of Kotwicki's and Zakoor's ac-
30
quisition,
Holiday Juice Ltd.
had a negative net worth of about
$500,000.
True and correct copies of these agreements are in
cluded in the Appendix as Exhibits 5A and 5B.
The Conspiracy To Manufacture And
Distribute Adulterated Orange Juice
97.
The Home Juice organization's
initial entry into the
orange juice market in the 1950s was as a tertiary processor.
Over time,
Home Juice
facilities
for secondary processing.
Home Juice
(Illinois)
use by other entities
(Illinois)
developed the expertise and the
At some date prior to 1975,
began blending COJM for its own use,
in the Home Juice organization,
for
and for
re-sale to independent tertiary processors.
98.
Over the years the Home Juice organization conducted
extensive research and development of bellywash formulas.
result of this research,
As a
and of the experience the organization
had gained as a secondary processor of COJM,
the Home Juice or
ganization developed the capability for creating sophisticated
formulas
99.
brothers,
for adulterated orange juice.
Beginning in 1975 or earlier,
Wolberg,
Kotwicki,
Lang,
Leonard Haddad,
Marshall,
the Allen
and Benton entered
into a scheme for making unlawful profits from adulterated orange
juice and other fruit juices.
100.
In furtherance of this scheme the Home Juice organiza
tion developed a formula for producing a beverage that had the
look and taste of
100% pure orange juice from concentrate,
and
which was labeled and described to the consuming public as 100%
pure orange juice from concentrate,
of significant amounts of sugar,
but which,
chemicals,
31
in fact,
consisted
flavorings and pre-
servatives,
mixed in a solution of water and only a minimal
amount of orange juice concentrate.
referred to as
101.
(This
formula is hereafter
"the Home Juice Formula").
Exhibit 6
in the Appendix is
a version of the Home Juice Formula that was in use at Ever Fresh
Juice Co.
in Warren,
Fresh Juice Co.
Juice
Michigan,
as of May 1975.
At that time Ever
of Michigan was a wholly-owned subsidiary of Home
(Illinois).
102.
perts
The Home Juice Formula was created by Haddad and ex
in chemistry working under his supervision and direction.
Marshall
is one of the experts who as
sisted Haddad in the development of the Home Juice Formula.
Home Juice
The
Formula was designed so that the beverage produced ac
cording to the Formula could escape detection by contemporary
tests for measuring the purity of beverages labeled as "100% pure
orange juice from concentrate."
As regulatory agencies
developed more sophisticated techniques
adulterated juices,
for the detection of
the Home Juice Formula was revised so as to
evade detection by the newer techniques.
103.
In or about May 1977,
with their business on the verge
of bankruptcy and in substantial debt to the Home Juice organiza
tion,
Jamail and Zakoor joined the Home Juice conspiracy to
manufacture and distribute adulterated juices.
conspiracy Jamail and Zakoor gave Haddad,
wicki ownership interests
in Jay-Zee.
In joining this
Albert Allen and Kot-
They also permitted their
new co-owners to control Jay-Zee's management and business prac
tices.
In
furtherance of this conspiracy,
32
Zakoor,
Allen and Kot-
wicki entered into the agreement included in the Appendix as Ex
hibit 2.
104.
After Kotwicki took over the management of Jay-Zee,
the
corporation entered into an agreement whereby Home Juice
(Illinois)
agreed to provide Jay-Zee with a regular supply of a
product known as "HJ-20."
HJ-20 is a
liquid base used in the manufacture of adulterated orange juice.
Home Juice
(Illinois)
also agreed to provide Jay-Zee with com
puter services for accounting,
inventory and other business pur
poses.
105.
Between April
1979 and September 1983,
Kotwicki,
as a
direct and intended consequence of the Home Juice conspiracy,
transformed Holiday Juice Ltd.
from a money-losing operation into
one of the largest and most profitable manufacturers and dis
tributors of fruit juices and drinks in Canada,
with substantial
sales in the United states as well.
A Recent Variation Of The Conspiracy
106.
In the early 1980s,
fruit juices packed in 10 ounce
glass bottles became a popular item with consumers.
American Citrus,
not)
doing business as Home Juice,
Defendant
did not
(and does
have the equipment necessary for packing fruit juices in 10
ounce bottles.
107.
In order to add a 10 ounce bottle to its line of fruit
juice products,
Lang,
on behalf of American Citrus,
co-packing arrangement with Wagner Juice Co.
1984.
At the time of this arrangement,
independently-owned,
negotiated a
in or about 1983
Wagner Juice Co.
or
was an
tertiary processor with a plant in Chicago,
Illinois.
33
108.
In June
1987,
Wagner was acquired by Labatt and in
tegrated into the Holiday Juice division.
After this acquisi
tion,
Kotwicki negotiated a long-term co-packing agreement with
Lang,
his fellow conspirator and former Home Juice colleague.
Under this agreement Labatt's
fruit juice division agreed to pack
fruit juices and drinks for American Citrus in 10 ounce bottles.
Evidence Of Adulteration
109.
In January 1989,
Hugo Powell
succeeded Kotwicki
president of Labatt's fruit juice division.
April 1989,
Between January and
Powell oversaw an audit of the practices in the juice
division under Kotwicki.
In April 1990,
Powell,
in response to
interrogatories propounded in Grove Fresh Distributors.
Everfresh Juice Co...
fidavit
as
No.
89
C 1113
(N.D.
111.),
Inc.
v.
executed an af
in which he made the following admissions about the
business practices under Kotwicki:
Mr. Kotwicki had [Everfresh] prepare orange juice not
only from concentrate, water and orange oils, but also
with some additional orange pulp wash and/or liquid
sugar.
... [0]n some of the occasions that liquid sugar
was added, Mr. Kotwicki had [Everfresh] bolster the
orange juice's levels of vitamin c, potassium, citrate
and amino acids.
In addition, ... for some of the
orange juice packaged in plastic bottles during part of
that time, Mr. Kotwicki had [Everfresh] add a preserva
tive.
Powell has also testified under oath that under Kotwicki,
the
Labatt fruit juice division manufactured adulterated grapefruit
juice and adulterated apple juice.
110.
During the years
1979
through 1989,
independent
laboratories tested numerous retail samples of orange juice
products manufactured or distributed by Home Juice
34
(Illinois),
American Citrus,
and Everfresh,
Inc.
of Michigan,
Holiday Juice,
During this period of time approximately 106
samples of products manufactured by the foregoing entities were
adulterated through dilution and/or with one or more of the fol
lowing ingredients:
sugar,
corn sugar,
cals and additives.
the Appendix as
(a)
pulpwash solids,
cane sugar,
grapefruit solids*
preservatives,
beet
and various chemi
Copies of these test results are included in
follows:
Beginning in 1979,
the Florida Department of
Citrus established procedures for testing samples of
orange juice products sold by various manufacturers and
distributors at retail throughout the United Sates.
During the period
1979
to 1988,
at least 28
samples of
orange juice products manufactured or distributed by
Home Juice
(Illinois),
of Michigan,
and Holiday Juice tested positive for adulteration.
Copies of the Department's test results are set forth in
the Supplemental Appendix as Amended Group Exhibit 9.
(b)
Group Exhibit 10 consists of reports of
13
tests conducted by Krueger Food Laboratories on samples
of Everfresh orange juice.
These tests were commis
sioned by an unknown client of the laboratory.
(c)
Group Exhibit
11 consists of reports of
12
tests conducted on samples of Everfresh orange juice.
These tests were commissioned by Everfresh.
(d)
Group Exhibit
12
tests conducted by General
consists
of reports of
Physics Corporation on
35
15
samples of Everfresh orange juice.
These tests were
commissioned by an unknown client of the laboratory.
(e)
Group Exhibit 13 consists of reports of 4
tests conducted by General Physics Corporation on
samples of Home Juice orange juice.
These tests were
commissioned by Grove Fresh.
(f)
Group Exhibit 14 consists of reports of 3
tests conducted by General
Physics Corporation on
samples of Everfresh orange juice.
These tests were
(g)
Group Exhibit
15 consists of reports of 12
tests conducted by Krueger Food Laboratories on samples
of Home Juice orange juice.
These tests were commis
sioned by Home Juice.
(h)
Exhibit 16
Products.
(D.
Inc.
Maryland).
v.
is the complaint
Everfresh Juice Co..
in Purity
No.
JFM-86-963
This complaint summarizes the results
of
six tests performed by an independent testing laboratory
concerning Everfresh products during the period 1984
through 1986.
(i)
Exhibit 23
Products.
Inc.
Maryland).
v.
is the complaint in Purity
Holiday Juice.
Ltd.f
No.
N-88-41
(D.
This complaint summarizes the results of 4
tests performed by an independent testing laboratory
concerning Holiday Juice products during the period
January,
(j)
Products.
1987
to October,
Exhibit 24
Inc.
v.
from
1987.
is the complaint in Purity
American Citrus
36
Products Corp..
No.
N-88-40
(D.
Maryland).
This complaint summarizes the
results of 6 tests performed by an independent testing
laboratory concerning American Citrus products during
the period from August,
(k)
1985 to October,
1987.
Exhibit 25 consists of reports of 3 tests con
ducted by General Physics Corporation on samples of
"Flavor Fresh" brand orange juice.
These tests were
(Some of the tests summarized in the complaints described in subparagraphs
(h),
(i),
and
(j)
may be among the test reports
unidentified clients mentioned in subparagraphs
111.
In addition to the 106 test results
teration,
Everfresh.
No.
89 C 1113)
and
(d).)
indicating adul
there are approximately 600 batch sheets
trol number 10006383 through 10006984,
Fresh v.
(b)
for
(bearing con
and produced in Grove
which
indicate that adul
terated orange juice was manufactured at Labatt's Warren,
Michigan facility on at least 600 different occasions during
1987.
112.
The earliest direct evidence of adulteration dates to
March 1976.
At that time,
the United States Food and Drug Ad
ministration inspected the facility in Warren,
owned and operated by Ever Fresh Juice Co.
inspection,
Michigan that was
At the date of this
was a wholly-owned subsidiary of
Home Juice
(Illinois).
"Mr.
orange juice that was adulterated with undeclared pre
Pure"
servatives.
During this inspection the FDA seized
A copy of the FDA report of this seizure is included
in the Appendix as Exhibit 8.
37
113.
Preservatives such as sodium benzoate extend the shelf
life of cold pack orange juice by several weeks.
Extending the
shelf life of orange juice has substantial economic consequence.
The local custom and practice in the juice industry is for a dis
tributor to give credit to a retailer if products have spoiled
before being purchased by a consumer.
If the shelf life of cold
pack orange juice products is extended with undeclared preserva
tives,
there is a greater chance that such products will be pur
chased by a consumer before they become spoiled.
114.
Preservatives are not popular with consumers.
If con
sumers have a choice between two products that cost approximately
the same,
and one contains preservatives and the other does not,
they will chose the product without preservatives.
The Competitive Injury
Caused By The Conspiracy
115.
The mixture of ingredients in the Home Juice Formula
costs significantly less than the mixture of concentrate and
water required to manufacture a beverage consisting of 100% pure
orange juice from concentrate.
By falsely labeling and selling
beverages made according to the Home Juice Formula or variants
thereof as
"100% pure orange juice from concentrate,"
the en
tities using the Home Juice Formula or its variants enjoyed a
substantial but unfair economic edge over honest competitors such
as Grove
116.
Fresh.
When a juice manufacturer lowers
through adulteration,
and then lowers
its
its cost of production
selling price to
reflect the more favorable cost of production,
it causes a chain
effect of lower prices throughout the market place.
38
This chain
effect will injure even those companies that are not directly in
competition with the adulterator.
117.
The conspirators using the Home Juice Formula or its
variants have been misleading, by false advertising, the parties
to whom they sell goods as to the identity and quality of their
products.
As a proximate result thereof,
Grove Fresh has suf
fered injury and financial damage to its business.
118.
The conspirators using the Home Juice Formula or its
variants,
at all relevant times during the course of their deal
ings,
falsely,
respondence,
fraudulently and repeatedly represented by cor
shipping orders,
invoices,
that the products sold by them contained
concentrate.
labels and advertising,
100%
orange juice from
These statements constituted both repeated material
misrepresentations and material omissions to disclose.
119.
described,
The conspirators'
represented,
use in commerce of the falsely
labeled,
and advertised products is
likely to and has caused confusion,
mistake and deception and has
infringed on Grove Fresh's sale of orange juice products.
The
conduct of the conspirators in representing that their "100%
orange juice from concentrate" had characteristics and/or in
gredients that it did not have,
as alleged herein,
constitutes
unfair competition and trade practices and has resulted in a loss
of business sustained by Grove Fresh with substantial
harm caused by the conspirators'
advertising,
120.
president,
irreparable
false representations,
labeling,
unfair competition and trade practices.
At a deposition in April
1990,
Hugo Powell,
Everfresh's
testified about the destructive effect that adultera
tion can have on the price structure of the market place.
39
Powell testified that when a juice manufacturer lowers its cost
of production through adulteration,
and then lowers its selling
price to reflect the more favorable cost of production,
it causes
a chain effect of lower prices throughout the market place.
cording to Powell,
Ac
this chain effect will injure even those com
panies that are not directly in competition with the adulterator.
The Decline Of Grove Fresh'a Business
121.
From 1962 to 1975,
Grove Fresh distributed its products
on company-owned trucks driven by company-paid drivers.
most part,
For the
Grove Fresh's customers were neighborhood grocers,
convenience stores,
and liquor stores.
In 1976,
Grove Fresh con
verted to a system of independent jobbers by selling its trucks
and customer lists to its existing drivers
at the time).
(there were 10 to 12
With an occasional exception,
the newly-
independent jobbers sold Grove Fresh products exclusively.
122.
In the period
immediately following this conversion,
Grove Fresh's gross sales increased by about 33%.
Fresh's peak,
products.
13
At Grove
independent jobbers distributed Grove Fresh
Grove Fresh's best year was
in 1979,
when it had gross
revenues of $3,226,896.
123.
By 1982,
$1 million,
regularly
Grove Fresh's revenues had declined by nearly
to $2,314,971.
lost business
Throughout the 1980s,
Grove Fresh
to competitors who slashed prices,
times to levels that were lower than Grove Fresh's costs.
Grove Fresh has only four jobbers,
time.
40
some
Today,
two of whom work only part-
124.
In 1979,
Grove Fresh's best year,
the corporation paid
its president and principal shareholder, Cecil Troy, a salary of
$68,500.
1986,
In six of the next ten years
and 1989),
1983,
1986,
1989)
full
1983,
1984,
Troy
in four of those years
he received no salary at all.
he received a salary of $50,000,
loaned the
1982,
as Grove Fresh's business declined,
received a salary of $5,000 or less;
(1981,
(1981,
paid taxes on it,
In 1988,
and then
amount of his net salary back to the company for
working capital.
Since about 1981,
Troy's largest source of in
come has been his social security benefits.
125.
By 1987,
Grove Fresh's financial
condition had worsened
to the point that the company had no choice but to terminate and
distribute its pension and profit sharing plans.
lump-sum distribution from these plans,
Grove Fresh in business,
to the company
126.
Troy received a
but in order to keep
he loaned most of his distributions back
for working capital.
For many years Grove Fresh had had a
working capital at a local bank.
In April
1989
line of credit for
the bank ter
minated the line of credit due to Grove Fresh's poor financial
condition.
Labatt's
Entry
Into
The Fruit Juice Industry
127.
John Labatt founded the company that bears his name in
1828.
The modern-day successor to his company was established in
1911.
This company went
into the brewery business
in about 1930.
Through internal expansion and the acquisition of competing
breweries,
Labatt had become,
by the early 1980s,
brewery in Canada.
41
the dominant
128.
By 1983 Labatt was faced with a mature beer market in
Canada and a fiercely competitive market for imported beers in
the United States.
growth,
For the sake of continued sales and earnings
Labatt adopted a strategy of expanding its holdings in
the packaged food and agricultural products industries.
At the
time this strategy was adopted in about 1983, these industries
were highly fragmented and offered opportunities for Labatt to
pick up market share quickly and relatively inexpensively.
129.
Another strategy that Labatt adopted in or about 1983
was to expand its overall holdings and sales in the United
States.
In the fiscal year ending April 30,
in the United Sates were about $220 million,
total sales.
By fiscal year ending April
1983,
Labatt's sales
or about 10% of its
30,
1989,
sales
United States had grown nearly tenfold,
to $2,025 billion.
represented about 37% of Labatt's total
sales.
in the
This
During this
period Labatt made at least 16 acquisitions of U.S.-based
businesses,
130.
at a cost in excess of $500 million.
One of the focal points
strategies was the
for Labatt's
fruit juice business.
tion in this industry was Holiday Juice.
expansion
Labatt's
first acquisi
Holiday Juice was
designated as one of five operating divisions in Labatt's
Packaged Food Group.
(John Labatt Annual Report
cerpts of which are included in Group Exhibit
131.
1984,
p.
10,
ex
17).
Holiday Juice distributed fruit juices and beverages in
both Canada and the United States.
Holiday Juice's sales
At the date of acquisition
in the United States were "concentrated in
Illinois and Michigan."
(John Labatt Annual Report 1984,
Exhibit 17.)
42
p.
13,
132.
Juice,
In the four years following the acquisition of Holiday
Labatt acquired four other companies in the fruit juice
industry,
all of which were based in the United States:
(a)
Johanna Farms,
a dairy products and fruit juice
concern based in New Jersey,
(b)
Boden Products,
lywash under the "Rich
(c)
Inc.,
'n Ready11
juices and fruit drinks,
(d)
in 1985;
label,
in January 1986;
a Michigan producer of fruit
in December 1986;
Wagner Juice Co.,
juices and drinks,
an Illinois producer of bel-
and
an Illinois producer of fruit
in about June 1987.
The 1986 acquisition of Ever Fresh Juice Co.
was especially sig
nificant because it gave Holiday Juice the rights in the United
States to its leading brand name in Canada,
passim Group Exhibits
133.
18,
19,
"EverFresh.11
(See
20.)
Johanna Farms was unique among the acquired companies
in that its juice business,
its dairy business.
though substantial,
was secondary to
For this and other reasons Johanna
made into a stand-alone operating division.
Farms was
(See Group Exhibit
18.)
134.
According to a Fact Sheet prepared and distributed by
Labatt's public relations agent in June
solidated
Farms)
This
four of
its
1990,
five juice businesses
in 1988
(all
Labatt con
except Johanna
into a single subsidiary and named it Everfresh Juice Co..
Fact Sheet describes Everfresh Juice Co.
as
"the North
American fruit and beverage subsidiary of John Labatt,
Canada."
Ltd.
of
(A copy of this Fact Sheet is attached as Exhibit 21.
Prior to the distribution of this
43
Fact Sheet,
the contents were
reviewed and approved by Gordon Putz, Everfresh's Director of
Marketing.)
Labatt's Liability For Ratifying The
Adulteration Practiced By The Entities
In Its Fruit Juice Division
135.
In part,
Labatt was attracted to acquire Holiday Juice
because it would also acquire the services of an executive,
Daniel Kotwicki, who had a record of remarkable success in the
fruit juice industry.
In four years'
time Kotwicki had com
pletely turned around the fortunes of Holiday Juice,
pany that
one that
in April
from a com
1979 had a negative net worth of $500,000,
to
four years later had a positive net worth of several
million dollars.
The financial results that Kotwicki achieved at
Holiday Juice earned him a reputation as the wunderkind of the
fruit juice industry in North America.
136.
Because of Kotwicki's record of success,
Labatt placed
him in charge of its newly-created fruit juice division.
As
Labatt built its fruit juice division through subsequent acquisi
tions,
it placed the chief executives of the acquired companies
(i.e..
Boden Products,
Juice Co.)
Inc.,
and Wagner
under Kotwicki's supervision and direction.
As Labatt
expanded the fruit juice division through these acquisitions,
it
gave Kotwicki a mandate to increase the division's sales and
market
share.
137.
Labatt knew or should have known
Kotwicki's success
in the fruit juice
from the
outset that
industry was due
in large
part to his mastery of the economics and techniques of manufac
turing adulterated orange juice and other fruit juices.
The
manufacture of adulterated fruit juices requires an inventory of
44
ingredients (such as beet sugar and certain types of preserva
tives)
that are inappropriate for the manufacture of any
legitimate pure juice or fruit drink.
Plaintiff alleges on in
formation and belief that when Labatt acquired Holiday Juice in
1983,
Holiday Juice had on hand an inventory of ingredients that
was such as to put a reasonable person on notice that Holiday
Juice was in the practice of manufacturing adulterated orange
juice and other fruit juices.
138.
If Labatt did not discern the reasons for Kotwicki's
success at the outset of his employment by Labatt,
learned about those reasons
in or about May
1985,
it should have
when Peter
Goldman became an officer of another subsidiary wholly-owned by
Labatt.
Goldman became a Labatt officer by virtue of the
latter's acquisition of Johanna Farms.
orange juice adulteration,
Goldman had knowledge of
especially as
Chicago market in the early 1980s.
it existed in the
As of that period of time,
Holiday Juice was distributing a substantial volume of orange
juice in the Chicago market under the J.Z.
139.
label.
Goldman's knowledge of orange juice adulteration in
Chicago is evident from a news story that appeared in July 1981,
entitled "FDA Probe Under Way on Adulteration of Private Label
Frozen and Chilled OJ."
The story appeared in QUICK FROZEN
FOODS,
and quoted Goldman:
a trade magazine,
The widespread problem [of orange juice adultera
tion] is common knowledge in the industry, according to
Peter Goldman, vice president, Johanna Farms,
Flemington,
N.J.,
juice packer.
"Our trade organiza
tion, the National Juice Products Association, has been
after the FDA for some time to crack down on those com
panies that are adulterating orange Juice," he told
QUICK FROZEN FOODS.
The nationwide problem is par
ticularly bad in the Chicago area, he said, adding that,
with the exception of a
few packers'
45
products,
real un-
adulterated private label orange juice is hard to find
in Chicago, (emphasis added)
(A copy of this article is included in the Appendix as Ex
hibit 22.)
140.
After Labatt acquired Johanna Farms in May 1985,
Bruce Fraser was named as an officer of the acquired entity,
holding the title of Vice-President, U.S.
Also after the acquisition,
Vice-President.
Thus,
Dairy Development.
Goldman continued on as Executive
Goldman and Fraser became colleagues.
Grove Fresh alleges that Goldman
communicated his knowledge of adulteration in the Chicago
market to Fraser.
141.
When Labatt acquired Boden Products,
January 1986,
Inc.
in
it knew or should have known that the acquired
company had engaged in the adulteration of orange juice.
or about 1980,
Boden Products,
Inc.
In
was discontinued as a
supplier of orange juice to the Jewel Tea supermarket chain
because of independent test reports that its orange juice was
adulterated.
This episode became notorious
and led to a trade libel suit.
Liguidating Companyf
No.
Boden Products.
81 C 4149
settled in about June 1983,
in the industry
(N.D.
111.)
v.
HMFD
This suit was
or about two and one-half years
prior to Labatt's acquisition of Boden Products,
Nevertheless,
Inc.
a "due diligence"
Inc.
investigation prior to the
closing of the acquisition would have brought the adultera
tion claims
142.
to light.
Certainly the latest date by which Labatt learned about
the adulteration practices
in
its fruit juice division was Decem-
46
ber 1986,
when it acquired Ever Fresh Juice Co.
At that time
Labatt knew or should have known that the company it was acquir
ing had systematically manufactured and distributed adulterated
orange juice over a period of years:
(i)
In 1982 Ever Fresh Juice Co.
of Michigan was sued
by a Baltimore competitor for allegedly manufacturing and
distributing adulterated orange juice.
Purity Products.
Inc.
(D.
v.
Ever Fresh Juice Co..
Y-82-3253
Maryland).
case was eventually settled prior to trial.
This
Although this
litigation commenced several years before Labatt acquired
a "due diligence"
investigation prior
to the closing of the acquisition would have brought these
charges to light.
(ii)
In March 1986 Ever Fresh Juice Co.
of Michigan was
again sued for allegedly manufacturing and distributing
adulterated orange juice.
Fresh Juice Co.f
Purity Products.
JFM-86-963
(D.
Maryland).
Inc.
Ever
This suit was
pending on the date of Labatt's acquisition,
closed to Labatt prior to closing.
v.
and it was dis
Labatt settled this case
for a substantial sum in August 1987,
six months after the
acquisition.
143.
Notwithstanding
its actual
knowledge of the adultera
tion practices in its fruit juice division,
those practices to continue,
Labatt permitted
to the detriment of honest com
petitors such as Grove Fresh as well as to the detriment of con
sumers.
In January 1988,
Holiday Juice Ltd.
was sued by the same
Maryland competitor that had sued Ever Fresh Juice Co.
Michigan in
1982
and
1986.
Purity Products.
47
Inc.
v.
of
Holiday
Juice. Ltd.. et al. No. N 88-41 (D. Maryland).
(A copy of this
complaint is included in the Appendix as Exhibit 23).
This com
plaint cited four tests, dated between January and October 1987,
of orange juice packed by Holiday Juice that was adulterated with
pulpwash,
144.
beet medium invert sugar and sorbate,
As
late as October
1988,
two months
a preservative.
after the settle
ment of the complaint against Holiday Juice in No.
N 88-41,
the
fruit juice division was still adding 10% to 15% pulpwash to its
orange juice products on a regular basis.
referred to by defendant Jamail
This practice was
in a memorandum dated in October
1988 to Kotwicki and the quality control chiefs at each of the
division's three plants.
145.
Labatt has been doing business
in Illinois through the
activities of its wholly-owned subsidiary Everfresh Inc./Canada
and its sub-subsidiary Everfresh Inc./USA.
Labatt has dis
regarded the separate corporate existence of these two entities
and,
is,
instead,
in effect,
146.
has treated them as a single operating entity that
a department of Labatt.
In or about January 1987,
ment of about $11,000,000
by Boden Products,
Inc.,
the physical plant.
Labatt made a capital
invest
in the Chicago facility formerly owned
for purposes of updating and expanding
With the additional
capacity from the Ever
Fresh acquisition and the expansion at the Chicago facility,
Labatt expected Holiday Juice to double its volume of business in
the next
Report,
fiscal year,
1987,
ending April
Group Exhibit 19,
p.
48
30,
23)
1988.
(See Labatt Annual
COUNT
ONE
(Lanham Act Claims — Everfresh Entities)
147.
Plaintiff realleges paragraphs 1 through 146.
148.
This count asserts a claim under the Lanham Act against
Everfresh Inc./USA and Everfresh Inc./Canada,
jointly as Everfresh Juice Co.,
to Holiday Juice Ltd.,
orange juice,
for selling in interstate commerce
fruit juices,
including,
grapefruit juice,
Sections 35 and 43
Inc., Wagner Juice Co.,
(hereafter referred to collectively as
the "Everfresh Entities"),
falsely labeled
and as the successors in interest
Boden Products,
and Ever Fresh Juice Co.
doing business
but not limited to,
and apple juice,
of the Lanham Act,
15 U.S.C.
in violation of
Sections 1117 and
1125.
COUNT
TWO
(Common Law of Unfair Competition — Everfresh Entities)
149.
Plaintiff realleges paragraphs
150.
This count asserts a claim for common law unfair com
petition against the Everfresh Entities,
false representations about the nature
tured and distributed by them.
1 through 146.
in that they have made
of the products manufac
The falsity of their representa
tions has adversely affected the sale of Grove Fresh's products
as more specifically set forth above.
These actions were made
with reckless disregard for the rights of Grove Fresh and were
wanton and malicious
151.
in nature.
The conduct of the Everfresh Entities
the frauds described herein was malicious,
in perpetrating
willful,
wanton and
oppressive or in reckless disregard of the rights of Grove Fresh.
49
COUNT THREE
(Common Law of Unfair Competition — Labatt Entities)
Co.,
152.
153.
Plaintiff alleges that defendants Labatt,
Labatt Food
and Labatt/USA ratified or approved the illicit activities
of Kotwicki, Jamail,
alternative,
Albert Allen,
and Michael Allen,
or in the
that Labatt was reckless in retaining these in
dividuals as executives.
COUNT
FOUR
(Lanham Act — Home Juice/American Citrus)
154.
155.
This count asserts a claim under the Lanham Act against
American Citrus,
doing business as Home Juice Co.
sor in interest of Home Juice
(Illinois)
collectively as "Home Juice11) ,
falsely labeled fruit juices,
orange juice,
Sections
(hereafter referred to
for selling in interstate commerce
including,
grapefruit juice,
35 and 43
and as succes
but not limited to,
and apple juice,
in violation of
of the Lanham Act.
COUNT
FIVE
(Common Law of Unfair Competition — Home Juice/American Citrus)
156.
157.
This count asserts a claim against Home Juice for un
fair competition,
in that Home Juice has made false representa
tions about the nature of the products manufactured and dis
tributed by it,
and that falsity has adversely affected the sale
of Grove Fresh's products as more specifically set
forth above.
These actions were made with reckless disregard for the rights of
Grove Fresh and were wanton and malicious
50
in nature.
158.
The conduct of Home Juice in perpetrating the frauds
described herein was malicious, willful, wanton and oppressive or
in reckless disregard of the rights of Grove Fresh.
COUNT
SIX
(Common Law Conspiracy — Unfair Competition)
159.
160.
All of the individual and corporate defendants named
herein conspired between and among themselves,
and with others,
to unlawfully and wrongfully benefit themselves through the
methods of unfair competition described herein.
161.
The co-conspirators not joined as defendants include,
but are not limited to:
Leonard Haddad,
Marshall,
Edward Zakoor,
Benton,
Fraser,
COUNT
Flavor Fresh,
Murray,
Wolberg,
and J-Z Juice Co.
SEVEN
(RICO - Association In Fact)
162.
1 through 146.
The RICO Enterprise
163.
Citrus,
The defendants
Everfresh,
Kotwicki,
in this count seven are:
Everfresh Inc./USA,
Albert Allen,
Michael Allen,
"Count Seven Defendants").
Everfresh Inc./Canada,
Lang,
The Count Seven
"persons" within the meaning of 18 U.S.C.
164.
was formed
The RICO enterprise that
American
and Jamail
Defendants
Section
(the
are all
1961(3).
is the subject of this count
in 1975 or earlier for the purpose of manufacturing
and distributing adulterated
Enterprise").
(the
"Count Seven
The Count Seven Enterprise consisted of the as
sociation in fact of the
Leonard Haddad,
fruit juices
following individuals and entities:
Albert Allen,
Michael Allen,
51
Kotwicki,
Lang,
Wol-
berg,
Marshall,
and the Home Juice organization as described
above in paragraph 78,
(Illinois)
165.
but not limited to,
Home Juice
and Ever Fresh Juice Co.
Over the years the Count Seven Enterprise was expanded
to include Jamail,
Co.,
including,
Edward Zakoor,
Holiday Juice Co.,
Holiday Juice Ltd.,
American Citrus,
Benton,
J-Z Juice
and Flavor
Fresh.
166.
The Count Seven Enterprise continued to operate through
at least as
late as February 1989
all relevant times,
and may be ongoing today.
At
the activities of the Count Seven Enterprise
affected interstate and foreign commerce within the meaning of 18
U.S.C.
Sections
167.
At all
1961(4)
and
1962.
relevant times the Count Seven Defendants were
engaged in an unlawful
scheme to manufacture and distribute adul
terated fruit juices and to compete unfairly with Grove Fresh.
The Count Seven Defendants carried out this scheme by falsely
representing to their customers and to the consuming public that
their fruit juice products were 100% pure,
when in fact their
fruit juice products consisted of significant amounts of sugar,
chemicals,
flavorings,
preservatives,
and other undeclared in
gredients.
168.
At all
relevant times,
the Count Seven Defendants knew
that the representations concerning their products were false and
misleading,
and they took steps to suppress and conceal
tion which showed the true
facts.
These
informa
false and misleading
representations enabled the Count Seven Defendants to charge sub
stantially higher prices
for their "pure"
52
fruit juices than they
could have charged had they disclosed the true ingredients of
those products.
Mail Fraud and Wire Fraud
169.
In furtherance of their unlawful
scheme to manufacture
and distribute adulterated fruit juices and to compete unfairly
with Grove Fresh,
the Count Seven Defendants have intentionally
placed in the United States mail within the past ten years
numerous mailings of invoices,
purchase orders,
advertisements,
and other business materials associated with the manufacture and
distribution of adulterated fruit juices.
170.
The Count Seven Defendants have also used the inter
state wires on numerous occasions within the past ten years in
furtherance of their fraudulent scheme to manufacture and dis
tribute adulterated fruit juices.
171.
The Count Seven Defendants have used the interstate
mails and wires to further their unlawful
scheme and to make
false representations concerning their products with the intent
to defraud Grove Fresh and others and to obtain money unlawfully
as a proximate result of these false representations and omis
sions to disclose.
172.
The specific dates on which the Count Seven Defendants
made the aforesaid mailings and used the interstate wires can be
determined from the "product codes11
that appeared on the bottles
and cartons of the adulterated juices they manufactured and dis
tributed.
which,
A product code
is a combination of numbers and letters
when cross-referenced with information in the business
records of the manufacturer or distributor,
date,
indicates the place,
and time that the contents of the bottle or carton were
53
manufactured and packaged.
It is a custom and practice in the
beverage industry for packers to place such codes on the labels
of each and every bottle of juice or beverage packed.
173.
Most of the test reports reproduced in the Appendix at
Group Exhibits 9,
10,
11,
12,
13,
14 and 15,
identify the product
codes that were printed on the bottles and cartons of orange
juice that were the subjects of those reports.
Chart I below
identifies the product codes of specific samples of adulterated
orange juice that were manufactured and distributed by the Count
Seven Defendants.
The specific dates on which the Count Seven
Defendants used the interstate mails and the
interstate wires in
furtherance of their fraudulent scheme can be ascertained by
cross-referencing the product codes listed in Chart I with infor
mation in the business records of American Citrus,
Everfresh/USA,
and
Everfresh/Canada.
CHART
54
I
Everfresh,
55
56
174.
The wire communications and mailings described herein
falsely represented products to be 100% pure orange juice from
concentrate,
when in fact the products contained numerous un
declared ingredients such as sugar,
preservatives.
herein,
chemicals,
flavorings and
The wire communications and mailings described
and others,
were made knowingly and intentionally for the
purpose of defrauding Grove Fresh and others and to obtain money
57
unlawfully,
and mail
and constitute violations of the federal wire fraud
fraud statutes,
175.
18 U.S.C.
Sections
1341 and 1343.
Each of the aforesaid violations by the Count Seven
Defendants of the mail
fraud and wire fraud statutes constitutes
an instance of "racketeering activity" as defined in 18 U.S.C.
Section 1961(1).
176.
The multiple acts of racketeering activity by the Count
Seven Defendants were
interrelated,
part of a common and con
tinuous pattern of fraudulent schemes,
same or similar purposes,
and perpetrated for the
thus constituting a "pattern of rack
eteering activity" as defined in 18 U.S.C.
177.
events,
By reason of the aforementioned circumstances and
the Count Seven Defendants unlawfully,
knowingly maintained,
control
directly and indirectly,
willfully,
and
an interest and
in the Count Seven Enterprise through a pattern of rack
eteering activity,
178.
events,
Section 1961(5).
in violation of 18 U.S.C.
Section 1962(b).
knowingly conducted and participated,
willfully,
and
in
the conduct of the affairs of the Count Seven Enterprise through
a pattern of racketeering activity,
Section 1962(c).
179.
By reason of the aforesaid circumstances and events,
willfully,
conspired to violate the provisions of 18 U.S.C.
and
1962(c),
180.
Section
and knowingly
Sections 1962(b)
1962(d).
In carrying out the violations described herein the
Count Seven Defendants deceived not only Grove Fresh and others,
58
but also the FDA.
In so doing,
the Count Seven Defendants under
mined industry standards and federal regulations and statutes
designed to protect the public interest and proximately caused
Grove Fresh to incur substantial damages and financial loss.
181. As a direct and proximate result of said violations of
18 U.S.C.
Sections 1962(b),
1962(c),
and 1962(d),
plaintiff Grove
Fresh has suffered actual damages to its business and property of
at least $2,000,000.
182.
The Count Seven Defendants are liable to plaintiff
Grove Fresh for treble damages,
together with interest and all
costs of this action plus reasonable attorney's
provided under 18 U.S.C.
fees,
all as
Section 1964(c).
COUNT
EIGHT
(RICO - Labatt As The RICO Enterprise)
183.
184.
The defendants
Jamail,
Albert Allen,
Everfresh Inc./Canada
1 through 146.
in this count eight are Kotwicki,
Michael Allen,
Everfresh Inc./USA and
(sometimes referred to collectively as the
"Count Eight Defendants").
185.
At all times relevant to this count,
was a wholly-owned subsidiary of Labatt/USA,
a wholly-owned subsidiary of Labatt.
this count,
of
Everfresh Inc./USA
which,
in turn,
was
At all times relevant to
Everfresh Inc./Canada was a wholly-owned subsidiary
Labatt.
59
The RICO Enterprise
186.
At all relevant times Labatt has been an enterprise
whose activities affected interstate and
the meaning of 18 U.S.C.
Sections 1961(4)
foreign commerce within
and 1962.
At all
relevant times the Count Eight Defendants conducted the affairs
of Labatt through a pattern of racketeering activity,
including
an unlawful scheme to manufacture and distribute adulterated
orange and other fruit juices.
187.
The unlawful
was formed in 1983
Juice,
Ltd.
scheme that is the subject of this count
on the date that Labatt acquired Holiday
On and after that date the Count Eight Defendants
were engaged in an unlawful
scheme to manufacture and distribute
adulterated fruit juices and to compete unfairly with Grove
Fresh.
The Count Eight Defendants carried out this scheme by
falsely representing to their customers and to the consuming
public that their fruit juice products were 100% pure,
when in
fact their fruit juice products consisted of significant amounts
of sugar,
chemicals,
flavorings,
preservatives,
and other un
declared ingredients.
188.
At all
relevant times,
the Count Eight Defendants knew
that the representations concerning their products were false and
misleading,
and they took steps to suppress and conceal informa
tion which showed the true facts.
These false and misleading
representations enabled the Count Eight Defendants to charge sub
stantially higher prices
for their "pure"
fruit juices than they
could have charged had they disclosed the true
those products.
60
ingredients of
189.
In furtherance of their unlawful scheme to manufacture
with Grove Fresh, the Count Eight Defendants have intentionally
placed in the United States mail within the past ten years
numerous mailings of invoices,
purchase orders,
advertisements,
and other business material associated with the manufacture and
distribution of adulterated fruit juices.
190.
The Count Eight Defendants have also used the inter
state wires on numerous occasions within the past ten years in
furtherance of their fraudulent scheme to manufacture and dis
tribute adulterated fruit juices.
191.
The Count Eight Defendants have used the interstate
mails and wires to further their unlawful
scheme and to make
false representations concerning their products with the intent
to defraud Grove Fresh and others and to obtain money unlawfully
as a proximate result of these
false representations and omis
sions to disclose.
192.
The specific dates on which the Count Eight Defendants
made the aforesaid mailings and used the interstate wires can be
determined from the "product codes"
that appeared on the bottles
and cartons of the adulterated juices they manufactured and dis
tributed.
which,
A product code is a combination of numbers and letters
date,
61
193.
Most of the test reports reproduced
Group Exhibits 9,
10,
11,
12,
and 14,
in the Appendix at
identify the product codes
that were printed on the bottles and cartons of orange juice that
were the subjects of those reports.
Chart II below identifies
the product codes of specific samples of adulterated orange juice
that were manufactured and distributed by the Count Eight Defen
dants.
The specific dates on which the Count Eight Defendants
used the interstate mails and the interstate wires in furtherance
of their fraudulent scheme can be ascertained by cross-
referencing the product codes listed in Chart II with information
in the business records of Everfresh/USA and Everfresh/Canada.
CHART
62
II
63
194.
falsely represented products to be
concentrate,
100% pure orange juice
from
preservatives.
chemicals,
flavorings and
64
herein, and others, were made knowingly and intentionally for the
unlawfully,
and mail fraud statutes,
195.
18 U.S.C. Sections 1341 and 1343.
Each of the aforesaid violations by the Count Eight
Defendants of the mail fraud and wire fraud statutes constitutes
an instance of "racketeering activity" as defined in 18 U.S.C.
Section 1961(1).
196.
The multiple acts of racketeering activity by the Count
Eight Defendants were interrelated,
part of a common and con
tinuous pattern of fraudulent schemes,
same or similar purposes,
and perpetrated for the
thus constituting a "pattern of rack
eteering activity" as defined in 18 U.S.C.
197.
events,
Section 1961(5).
the Count Eight Defendants unlawfully,
knowingly conducted and participated,
willfully,
and
in
the conduct of the affairs of Labatt through a pattern of rack
eteering activity,
198.
Section 1962(c).
the Count Eight Defendants unlawfully,
willfully,
conspired to violate the provisions of 18 U.S.C.
and 1962(c),
199.
eight,
and knowingly
Sections 1962(b)
Section 1962(d).
In carrying out the activities described in this count
the Count Eight Defendants deceived not only Grove Fresh
and others,
but also the FDA.
In so doing,
Defendants undermined industry standards and
the Count Eight
federal
regulations
and statutes designed to protect the public interest and
65
proximately caused Grove Fresh to incur substantial damages and
financial loss.
200.
18 U.S.C.
As a direct and proximate result of said violations of
Sections 1962(b),
1962(c),
and 1962(d),
plaintiff Grove
at least $2,000,000.
201.
The Count Eight Defendants are liable to plaintiff
Grove Fresh for treble damages,
together with interest and all
costs of this action plus reasonable attorney's fees,
provided under 18 U.S.C.
all as
Section 1964(c).
COUNT NINE
(Labatt's Investment of Racketeering Proceeds)
202.
The defendant in this count is Labatt.
203.
204.
The unlawful scheme that is the subject of this count
was formed in 1983
Juice,
Ltd.
1 through 146.
on the date that Labatt acquired Holiday
On and after that date Holiday Juice,
Kotwicki,
and
Jamail were engaged in an unlawful scheme to manufacture and dis
tribute adulterated fruit juices and to compete unfairly with
Grove Fresh.
Holiday Juice carried out this scheme by falsely
representing to its customers and to the consuming public that
its fruit juice products were
100% pure,
when in fact its fruit
juice products consisted of significant amounts of sugar,
cals,
flavorings,
preservatives,
chemi
and other undeclared in
gredients.
205.
At all
relevant times,
resentations concerning
Holiday Juice knew that the rep
its products were false and misleading,
and it took steps to suppress and conceal
66
information which
showed the true facts.
These false and misleading representa
tions enabled Holiday Juice to charge substantially higher prices
for its "pure"
fruit juices than it could have charged had it
disclosed the true ingredients of those products.
206.
In furtherance of
its unlawful
with Grove Fresh,
Holiday Juice has intentionally placed in the
United States mail within the past ten years numerous mailings of
invoices,
purchase orders,
advertisements,
and other business
materials associated with the manufacture and distribution of
adulterated fruit juices.
207.
Holiday Juice has also used the interstate wires on
numerous occasions within the past ten years in furtherance of
its fraudulent scheme to manufacture and distribute adulterated
fruit juices.
208.
Holiday Juice has used the interstate mails and wires
to further its unlawful
scheme and to make false representations
concerning its products with the intent to defraud Grove Fresh
and others and to obtain money unlawfully as a proximate result
of these false representations and omissions to disclose.
209.
The specific dates on which Holiday Juice made the
aforesaid mailings and used the interstate wires can be deter
mined from the "product codes" that appeared on the bottles and
cartons of the adulterated juices
tributed.
which,
it manufactured and dis
A product code is a combination of numbers and letters
67
date,
210.
Group Exhibit 9
identify the product codes that were printed on
the bottles and cartons of orange juice that were the subjects of
those reports.
Chart III below identifies the product codes of
specific samples of adulterated orange juice that were manufac
tured or distributed by Holiday Juice.
The specific dates on
which Holiday Juice used the interstate mails and the interstate
wires in furtherance of its
fraudulent scheme can be ascertained
by cross-referencing the product codes listed
in Chart III with
information in the business records of Holiday Juice.
(The busi
ness records of Holiday Juice are now in the custody,
possession
and control
of Everfresh
Inc./USA and Everfresh Inc./Canada.)
CHART
68
III
Manufacturer/
Location of
Distributor
Retail Source
(Label)
Date of
of Sample
Holiday
Brentford, ONT,
Juice, Ltd.
Product
Report
Code Ho.
2/28/84
3294
Exhibit
No.
9-0
Canada
(Everfresh)
211.
falsely represented products to be 100% pure orange juice from
concentrate,
when in
fact the products contained numerous un
preservatives.
herein,
chemicals,
flavorings and
and others,
unlawfully,
and mail
fraud statutes,
212.
the mail
Sections
1341 and 1343.
Each of the aforesaid violations by Holiday Juice of
fraud and wire
fraud statutes constitutes an instance of
"racketeering activity11
213.
as defined in
of fraudulent schemes,
purposes,
as defined
18 U.S.C.
Section 1961(1).
The multiple acts of racketeering activity by Holiday
Juice were interrelated,
214.
18 U.S.C.
part of a common and continuous pattern
and perpetrated for the same or similar
thus constituting a "pattern of racketeering activity"
in 18 U.S.C.
Labatt,
Section 1961(5).
as the sole owner of Holiday Juice,
realized
substantial proceeds from the pattern of racketeering activity
engaged
in by Holiday Juice,
Kotwicki and Jamail.
Labatt used
these racketeering proceeds to acquire an ownership interest
three other enterprises whose activities affect
merce,
namely,
Boden Products,
Inc.
69
in
interstate com
(acquired in January 1986);
Juice Co.
(acquired in December 1986);
and Wagner
(acquired in about July 1987).
215.
After investing racketeering proceeds to acquire owner
ship and control of the enterprises formerly known as Boden
Products,
Inc.,
and Wagner Juice Co.,
Labatt
conducted the affairs of each of these enterprises through a pat
tern of racketeering activity,
in that Labatt directed these en
terprises to manufacture and distribute adulterated fruit juices.
216.
18 U.S.C.
Sections 1962(a),
and 1962(d),
plaintiff Grove Fresh
has suffered actual damages to its business and property of at
least $2,000,000.
217.
damages,
Labatt is liable to plaintiff Grove Fresh for treble
together with
reasonable attorney's
interest and all costs of this action plus
fees,
all
as provided under 18 U.S.C.
Sec
tion 1964(c).
COUNT TEN
(RICO-American Citrus/Home Juice(Illinois)
as the RICO Enterprise)
218.
219.
The defendant in this count is Henry Lang.
The RICO Enterprise
220.
At all times relevant to this count Home Juice
(Illinois)
was an enterprise whose activities affected interstate
and foreign commerce within the meaning of 18 U.S.C.
1961(4)
and
221.
Sections
1962.
American Citrus
is an Illinois corporation that was es
tablished by Lang in or about 1982.
70
At all times relevant to
this count Lang was the president and principal shareholder of
American Citrus.
In 1982,
American Citrus,
acquired all of the stock of Home Juice
1984,
Home Juice
222.
(Illinois)
at Lang's instance,
(Illinois)♦
In June
was merged into American Citrus.
At all times relevant to this count American Citrus was
an enterprise whose activities affected interstate and foreign
commerce within the meaning of 18 U.S.C.
1962.
(Home Juice
(Illinois)
Sections 1961(4)
and
and American Citrus are collec
tively referred hereafter to as the "Home Juice Enterprises").
223.
The unlawful
scheme that
is
was formed in or about December 1978.
on December 3,
Juice
1978,
(Illinois).
trol of Home Juice
the subject of this count
After Leonard Haddad died
Lang took control of the operations of Home
On and after the date on which Lang took con
(Illinois),
Lang engaged in an unlawful scheme
to manufacture and distribute adulterated fruit juices and to
compete unfairly with Grove Fresh.
Lang carried out this scheme
by falsely representing to the customers of the Home Juice En
terprises and to the consuming public that the fruit juice
products of the Home Juice Enterprises were 100% pure,
when in
fact their fruit juice products consisted of significant amounts
of sugar,
chemicals,
flavorings,
preservatives,
and other un
declared ingredients.
224.
At all relevant times,
Lang knew that the representa
tions concerning the products of the Home Juice Enterprises were
false and misleading,
and he took steps to suppress and conceal
information which showed the true facts.
These false and mis
leading representations enabled the Home Juice Enterprises to
charge substantially higher prices for their "pure"
71
fruit juices
than they could have charged had Lang disclosed the true in
gredients of those products.
225.
In furtherance of this unlawful
with Grove Fresh,
Lang has intentionally placed in the United
States mail within the past ten years numerous mailings of in
voices,
purchase orders,
advertisements,
and other business
material associated with the manufacture and distribution of
adulterated fruit juices.
226.
Lang has also used the interstate wires on numerous oc
casions within the past ten years in furtherance of this
fraudulent scheme to manufacture and distribute adulterated fruit
juices.
227.
Lang has used the
this unlawful
interstate mails and wires to
further
scheme and to make false representations concerning
the products of the Home Juice Enterprises with the
intent to
defraud Grove Fresh and others and to obtain money unlawfully as
a proximate result of these false representations and omissions
to disclose.
228.
The specific dates on which Lang made the aforesaid
mailings and used the interstate wires can be determined from the
"product codes" that appeared on the bottles and cartons of the
adulterated juices manufactured and distributed by the Home Juice
Enterprises.
ters which,
A product code is a combination of numbers and let
when cross-referenced with information in the busi
ness records of the manufacturer or distributor,
place,
date,
indicates the
and time that the contents of the bottle or carton
72
were manufactured and packaged.
It
is a custom and practice
in
the beverage industry for packers to place such codes on the
labels of each and every bottle of juice or beverage packed.
229.
Group Exhibits 9,
13,
14 and 15,
identify the product codes that
were printed on the bottles and cartons of orange juice that were
the subjects of those reports.
Chart IV below identifies the
product codes of specific samples of adulterated orange juice
that were manufactured or distributed by the Home Juice En
terprises.
The specific dates on which Lang used the interstate
mails and the interstate wires in furtherance of the abovedescribed fraudulent scheme can be ascertained by crossreferencing the product codes listed in Chart IV with information
in the business records of the Home Juice Enterprises.
CHART
73
IV
230.
falsely represented products to be 100% pure orange juice
concentrate,
preservatives.
herein,
from
chemicals,
flavorings and
and others,
74
unlawfully,
and mail fraud statutes,
231.
18 U.S.C.
Sections 1341 and 1343.
Each of the aforesaid violations by Lang of the mail
fraud and wire fraud statutes constitutes an instance of
"racketeering activity" as defined in 18 U.S.C.
232.
Section 1961(1).
The multiple acts of racketeering activity by Lang were
interrelated, part of a common and continuous pattern of
fraudulent schemes,
poses,
and perpetrated for the same or similar pur
thus constituting a "pattern of racketeering activity" as
defined in 18 U.S.C.
233.
events,
Section 1961(5).
Lang unlawfully,
willfully,
and knowingly maintained,
an interest and control in the Home
Juice Enterprises through a pattern of racketeering activity,
violation of 18 U.S.C.
234.
events,
in
Section 1962(b).
Lang unlawfully,
participated,
willfully,
and knowingly conducted and
in the conduct of the af
fairs of the Home Juice Enterprises through a pattern of rack
eteering activity,
235.
Lang unlawfully,
willfully,
the provisions of 18 U.S.C.
and knowingly conspired to violate
Sections 1962(b)
Section 1962(d).
deceived not only Grove Fresh and others,
236.
Section 1962(c).
and 1962(c),
In so doing,
in
Lang
but also the FDA.
In carrying out the acts described in this count ten,
Lang undermined industry standards and federal regulations and
statutes designed to protect the public interest and proximately
75
caused Grove Fresh to incur substantial damages and financial
loss.
237.
18 U.S.C.
Sections 1962(b),
1962(c),
and 1962(d),
plaintiff Grove
at least $2,000,000.
238.
damages,
Lang is liable to plaintiff Grove Fresh for treble
together with interest and all costs of this action plus
reasonable attorney's
fees,
all
as provided under
18 U.S.C.
Sec
tion 1964(c).
WHEREFORE,
A.
Grove Fresh prays for the following relief:
That the Everfresh Entities be required to account for
their respective profits related to conduct comprising unfair
competition in violation of 15 U.S.C.
Section 1125,
and that same
be entered as judgment in favor of Grove Fresh.
B.
profits,
That American Citrus be required to account for its
and those of its predecessor-in-interest,
(Illinois),
Home Juice
related to conduct comprising unfair competition in
Section 1125,
and that same be entered as
judgment in favor of Grove Fresh.
C.
That the Everfresh Entities and American Citrus be
preliminarily and finally enjoined against further acts con
stituting a violation of 15 U.S.C.
Sections
D.
1961,
Section 1125 and 18 U.S.C.
et seq.
That damages
be awarded to Grove
Grove Fresh for lost profits,
lost sales,
Fresh to compensate
injury to good will
reputation in the amount of Two Million Dollars
($2,000,000.00),
the costs of these proceedings and reasonable attorney fees.
76
and
E.
That all of the corporate and individual defendants be
assessed punitive damages for their knowing and intentional
wrongs which are as shocking to the conscience of the community
as to demand punishment in the amount of Ten Million Dollars
($10,000,000.00).
F.
That pursuant to 15 U.S.C.
Section 1117,
the Court
enter judgment against the Everfresh Entities in an amount equal
to their respective profits,
Fresh,
plus any damages sustained by Grove
and the costs of this action,
ney fees,
including reasonable attor
to Grove Fresh as prevailing party.
G.
That pursuant to
15 U.S.C.
Section
1117,
the Court
enter judgment against American Citrus in an amount equal to its
profits,
and those of its predecessor-in-interest,
(Illinois),
Home Juice
plus any damages sustained by Grove Fresh,
costs of this action,
and the
including reasonable attorney fees,
to
Grove Fresh as prevailing party.
H.
That
the amount
I.
the Court enter judgment for a sum above
found as actual
exceed three
be just,
further,
(3)
damages under the
Lanham Act,
not to
times such amount that the Court shall find to
according to the circumstances of the case.
That,
pursuant to
18 U.S.C.
Section
enter judgment against each of the defendants
through Ten,
1964(c),
the Court
in Counts Seven
in an amount equal to treble the damages Grove Fresh
77
suffered,
plus interest,
reasonable
DATED:
attorney's
September 17,
all the costs of this action,
and
fees.
1990
Respectfully submitted,
By:
One of the attorneys for
Grove Fresh Distributors,
John P.
135
S.
Messina,
Esq.
LaSalle Street
Suite 1960
Chicago, Illinois
(312)
60603-4303
630-1105
- and Warren S.
Dale R.
Radler,
Crider,
Dorothy B.
RIVKIN,
HART
Zimbrakos,
RADLER,
&
Esq.
Esq.
Esq.
BAYH,
KREMER
30 North LaSalle Street
Suite 4300
Chicago, Illinois 60602
(312) 782-5680
78
Inc.

an Illinois corporation, ) JOHN LABATT LIMITED, a Canadian

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