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Firm, ex-worker withdraw suits, file new ones

Rochester Business Journal
June 21, 2013

A court battle between a former Brothers International Food Corp. official and the Rochester-based fruit juice trading and snack food firm has moved to new venues with both sides pulling their original complaints and making the same charges in new actions.
 
In a whistleblower suit filed this month in U.S. District Court in Rochester, Colin Chase repeats accusations he made first in an Occupational Safety and Health Administration complaint last year.
 
Chase filed the OSHA complaint shortly after his former employer began the court battle by accusing Chase in federal lawsuit of misappropriating computer files.
 
In the OSHA and federal complaints, Chase accuses Brothers International of firing him for raising questions about the company's alleged relabeling and selling of expired and possibly contaminated packages of dried fruit and potato snacks.
 
The food safety allegations are baseless and ill-considered and will be thrown out of court, an attorney for the snack food company predicted in an interview this month.
 
Brothers International is based in Rochester and has branches in Qingdao, China, and Quito, Ecuador. It bills itself as one of the world's largest suppliers of fruit juice concentrates and blends. The company also provides private-label dried-fruit and other bagged snacks to clients including the Walt Disney Co., and it sells snacks under its own name.
 
The privately owned Brothers International was founded some 10 years ago by three brothers from Batavia, co-CEOs Matthew and Travis Betters and James Betters, vice president of sales and marketing.
 
Chase, first employed by Brothers International in 2010, was director of e-commerce for some two years.
 
Chase's new federal court complaint came four days after Brothers International filed suit in state court, repeating allegations it first made in a 2012 federal lawsuit accusing Chase of computer crimes.
 
Filed June 6, the company's state court action came eight days after it withdrew its federal complaint against Chase.
 
In both of its complaints, Brothers International said it had fired Chase for refusing to sign a non-disclosure agreement that all of its workers were required to accept.
 
Chase responded to his termination by stealing proprietary information and refusing to reveal a master password that only he knew, which kept the firm locked out of its own data for several weeks, the snack food company claims in court papers.
 
Chase filed the OSHA complaint roughly a month after Brothers International filed the September 2012 federal lawsuit.
 
Attorneys for both parties explained their court jockeying this month as attempts to move along their stalled cases.
 
Chase's lawyer, Elizabeth Cordello of Underberg & Kessler LLP, said she withdrew the OSHA complaint and filed the federal suit because OSHA had yet to rule and an investigator assigned to the case could not say when a ruling might come. Agency regulations bar complainants from filing court actions for 210 days after a complaint's filing, she said.
 
Brothers International attorney Stephen Jones of Nixon Peabody LLP similarly explained the move of the company's complaint from federal court to a state Supreme Court. Largely because of a backup of civil cases in Western New York's federal courts, the federal case was going nowhere, Jones said.
 
In court papers, Chase claims he and Brothers International began to part ways in April last year, when Chase told co-CEO Travis Betters the company was selling expired potato crisp snacks online.
 
Betters responded by ordering sales of the allegedly expired product to be suspended, but only until packages could be relabeled with new expiration dates, Chase alleges in his court and OSHA complaints.
 
Betters also ordered Brothers International workers to keep selling a batch of dried apple crisp snacks that had become partially rehydrated after Chase and another employee alerted him to customer complaints about the soggy snacks, Chase adds in the filings.
 
Visibly angered by his calling attention to the expired-product sales and soggy apple snacks, Chase charges in court papers, Travis and Matthew Betters tried in a July 2012 meeting to pressure him into signing a non-disclosure agreement.
 
When he asked for time for his attorney to review the agreement, he was fired immediately and walked off the company's premises. Other workers were given more time to consider the agreement, and some who initially refused were given a chance to reconsider, an opportunity not offered to him, Chase alleges.
 
That is entirely untrue, Jones countered in an interview last week.
 
On Nixon Peabody's advice, all of the firm's workers were asked to sign the pact for reasons that had nothing to do with Chase's food-safety concerns, Jones said. Chase was one of four workers who refused to sign, and all four were fired.
 
The OSHA and whistleblower complaints are meritless, Jones said, as is Chase's claim that Brothers International sold or tried to mislabel defective products.
 
"Chase's job duties had nothing whatsoever to do with the processing, packaging or quality control of Brothers' products," the attorney said. "(He has) no background in food science or nutrition (and) simply does not know what actually constitutes a harmful or unsafe food product."
 
Chase is asking the federal court to award him compensation for lost pay, plus unspecified damages.
 
In state court, Brothers International asks for damages at least equal to losses that resulted from Chase's alleged online interference.
 
As of this week, Brothers International had not made a request for judicial intervention, a filing needed to begin court action, in the state court case.
 
Chase's federal complaint awaits a mandatory mediation session.

6/14/13 (c) 2013 Rochester Business Journal. To obtain permission to reprint this article, call 585-546-8303 or email service@rbj.net.


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