By MORDECAI SPECKTOR
The long-running lawsuit alleging that Hebrew National hot dogs are not “100% kosher,” contrary to the maker’s claims, went another round in court.
The most recent hearing took place July 31 in Dakota County District Court, in Hastings, Minn. Judge Jerome B. Abrams heard arguments on a motion to dismiss the lawsuit brought by the defendant, ConAgra Foods, Inc., the parent company of Hebrew National. The plaintiffs in the lawsuit (Melvin Wallace, et al. v ConAgra Foods) contested the motion.
The lawsuit originally was filed in the Dakota County state court, in June 2012, then moved to federal court at the request of ConAgra. A federal court judge dismissed the lawsuit early in 2013; then the 8th Circuit Court of Appeals remanded the case back to the state court.
The July 31 hearing featured a reprise of the arguments made in the federal district and appellate courts.
Corey Gordon, attorney for defendant ConAgra, pointed out that U.S. District Court Judge Donovan W. Frank found that the court lacked jurisdiction in the case because it involved a determination of religious issues relating to kashrut, the Jewish dietary laws; and the First Amendment’s separation clause bars such intervention by the courts.
In his his questioning of Gordon, Judge Abrams said that he was “really vexed” by the 8th Circuit decision, saying that he thought the case fits within the parameters of class action lawsuits. He also wondered about the question of the plaintiffs’ “standing” to bring a lawsuit, as far their being able to prove that anyone consumed a product that was not strictly kosher.
“How can anybody figure it out?” the judge asked.
Gordon, who is with the Blackwell Burke law firm in Minneapolis, discussed various aspects of kosher slaughter and kashrut classification, using Hebrew terms.
The judge noted that the court reporter would have to consult with Gordon, regarding the transliteration of Hebrew words.
Judge Abrams said that, if asked, the court reporter would read back the transcript and “she’ll do so from right to left.”
“I understand your arguments,” Abrams told Gordon. “I’m trying to understand where the damages lie.”
The judge said, “[The plaintiffs] didn’t get what they paid for: 100 percent kosher beef”; but he allowed that “one might call the damages metaphysical, not cognizable in a legal claim.”
As far as the case going to trial in state court, Abrams asked, “Why not give them a chance to put it together?”
At another point, as Gordon piled on the Hebrew and mentioned the history of Hasidism, Abrams, a former president of Jewish Family Service of St. Paul, quoted a Yiddish proverb: “Shver tsu zein a Yid — It’s hard to be a Jew,” which he interpreted in terms of the difficulty navigating the various interpretations of Jewish law and practices.
When it was the plaintiffs’ turn, Anne Regan, who is with the Zimmerman Reed firm in Minneapolis, argued that Hebrew National’s “100 percent representation” for its products “is deceptive.” She said that the products were a mixture of kosher and non-kosher meat, and that quotas were employed for certifying cattle as kosher, as they were processed at slaughterhouses in the Midwest. Hebrew National employed a company called Triangle K to certify the meat as kosher. Another firm, AER Services, Inc., did the kosher slaughtering at leased facilities.
“For something to be kosher, it has to be 100 percent kosher all of the time,” said Regan.
Judge Abrams asked why the plaintiffs didn’t sue AER or Triangle K.
“It’s ConAgra making the representation,” replied Regan, who mentioned the firm’s advertising touting “100% kosher beef,” and the famous tag line: “We answer to a higher authority.”
“Maybe I should have taken more philosophy classes and read more Martin Buber as a young man,” mused the judge.
Regan said that consumers, including the plaintiffs, paid a premium price for Hebrew National hot dogs, “in the belief that it’s a better product.” She commented that kosher is the “new organic.”
When the judge suggested that the lawsuit involved an “extraordinary entanglement on the basis of religion,” Regan pointed out that consumers were relying not on the hechsher, the kosher certification on the label, “but on ConAgra’s claims” about the products.
At the conclusion of the hearing, which ran for more than an hour, Judge Abrams asked the lawyers to submit briefs just on the issue of legal standing to bring a lawsuit based on consumer protection laws. He asked that briefs be filed by the end of the month.
