Judge Richard Posner dressed down a federal prosecutor over expired salad dressing. Posner issued the ruling for his panel on United States Court of Appeals for the Seventh Circuit which included criticism of Assistant U.S. Attorney Juliet Sorensen for misleading statements.

The court threw out the conviction of a businessman who relabeled and sold bottles of salad dressing.

Posner and his colleagues was not satisfied with a promise by the Justice Department that it would rap Sorensen on the knuckles for the alleged violations. Posner wrote “The government’s appellate lawyer told us that the prosecutor’s superior would give her a talking-to. We are not impressed by the suggestion.” The court clearly views this as a clear violation of court rules and ethics and expects the Justice Department to take formal actions against Sorensen. If the Justice Department does not take such action, it could be viewed as a slap in the face of the court and undermine significantly its relationship with the judges of the Seventh Circuit.

Sorensen made allegedly misleading statements about the “best when purchased by” dates on bottles of Henri’s salad dressing. She prosecuted Charles Farinella for allegedly buying 1.6 million bottles of the dressing and putting on new labels extending the “best when purchased by” dates by a year. He then sold them to discount stores. Sorensen repeatedly argued that the date represented the expiration date when in fact such dressing lasts long after the “best” date. It appears that this is a bit of a misleading marketing techniques by salad companies that prompts customers to toss perfectly good dressing. It is not clear why the Federal Trade Commission has not looked into this new “saladgate.”

As Posner noted:

In like vein the prosecutor told the jury that if what the defendant “did was business as usual in the food industry, I suggest we stop going to the store right now and start growing our own food.” That was a veiled reference to the nonexistent issue of safety, which she pressed further when she said that “in spite of all this talk about the quality of the dressing, I don’t see them opening any of these bottles and taking a whiff.” The implication, which has no basis in the evidence, was that the dressing in some of the bottles was rotten. She told the jury that the defendant was indifferent to “safety” and that “the harm caused by the fraud was to public confidence in the safety of the food supply.” (The government repeats this in its brief; there is no basis in the evidence for the remark.) She also called the bottles of salad dressing “truckfulls of nasty, expired salad dressing,” which was another groundless comment about quality and safety.

She said that after the “expiration date” the salad dressing was no longer “fresh” and that the defendant had “had to convert the expired dressing into new, fresh product,” a proposition that is not completely intelligible, but sounds ominous.

After explaining Law and Economics to the world, Posner has now educated salad eaters on a critical and (for me) previously unknown point of labeling: “The term ‘expiration date’ … on a food product … has a generally understood meaning: It is the date after which you shouldn’t eat the product. Salad dressing, however, or at least the type of salad dressing represented by Henri’s, is what is called ‘shelf stable’; it has no expiration date.”

Posner noted that Sorensen repeatedly made misleading and prejudicial statements to the jury (which was not stopped by the trial judge in the case). For example, in her closing argument, she argued: “Ladies and gentlemen, don’t let the defendant and his high-paid lawyer buy his way out of this. You have to earn justice. You can’t buy it.” I am astonished that the trial judge did not immediately stop her argument immediately and admonish her for such a clearly improper and prejudicial statement. The trial judge was William J. Hibbler of the Northern District of Illinois, Eastern Division.

Notably, Farinella’s partner, Ross Marks, pleaded guilty to wire fraud before the trial and received a 21/2-year prison sentence. He may really regret that plea at this point and could seek review.

For a copy of the opinion, click here.

Above the Law reports that Sorensen is the daughter of Ted Sorensen, adviser to JFK and former Paul Weiss senior partner.
For the full story, click here.