BPI wins first victory with judgeâs ruling on LFTB

Apr 4, 2014

South Dakota Judge Cheryle Gering recently refused to throw out the defamation lawsuit against ABC over its coverage of lean, finely textured beef (LFTB).

Beef Products Inc. filed a lawsuit against ABC in September of 2012 seeking $1.2 billion in damages. The South Dakota company says the television network’s coverage led to the closure of three plants and roughly 700 layoffs by misleading consumers into believing the product is unsafe. The networks coverage of LFTB, turned into a media frenzy over a safe product, that became dubbed “pink slime.”

“There is not a more offensive way of describing a food product than to call it ‘slime,’ which is a noxious, repulsive, and filthy fluid not safe for human consumption,” the lawsuit reads.

“The blatantly false and disparaging statements made about our lean beef have done more than hurt my family and our companies, they have jeopardized the future of our employees and their families,” said Eldon Roth, founder and CEO of BPI.

The lawsuit centers around ABC’s word choice used throughout its coverage. But attorneys for ABC say the network did nothing wrong, and in each of its broadcasts stated the U.S. Department of Agriculture deemed the product safe to eat. They say BPI might not like the phrase that was used during the broadcasts, “pink slime,” but it is pink and has a slimy texture.

In her ruling, Judge Gering did dismiss some of the claims but allowed 22 of the 27 to go forward, including over alleged product disparagement and interference with business relationships. Gering ruled that ABC isn’t protected against liability by saying in its news reports that the product is beef, is safe and is nutritious.

“The entirety of the broadcasts can be reasonably interpreted as insinuating that plaintiffs are improperly selling a product that is not nutritious and/or not safe for the public’s consumption,” Judge Gering wrote.

“For example, the use of the term ‘pink slime’ with a food product can be reasonably interpreted as implying that the food product is not meat and is not fit to eat, which are objective facts which can be proven,” she wrote.

“We are pleased with the court’s decision, which rejected nearly all of the defendants’ arguments,” said Erik Connolly, a partner at Winston & Strawn representing BPI. “We look forward to starting discovery and ultimately presenting our case to a jury.”

But ABC says their coverage of LFTB did not include any disparaging statements, and that their reporters did not make any claims that the product was not safe.

“We will defend our reporting vigorously on the merits,” Jeffrey W. Schneider, Senior Vice President of ABC News wrote in an email.

ABC tried to get the lawsuit moved to the U.S. District Court in Sioux Falls, but federal Judge Karen Schreier sent it back to the state circuit court in Elk Point, SD, last June.

In addition to ABC, the lawsuit names ABC News Anchor Diane Sawyer; ABC Correspondents Jim Avila and David Kerley; Gerald Zirnstein, the U.S. Department of Agriculture microbiologist who named the product “pink slime;” former Federal Food Scientist Carl Custer; and Kit Foshee, a former BPI Quality Assurance Manager who was interviewed by ABC.

Zirnstein and Custer also requested for a dismissal based on “lack of personal jurisdiction.”

But according to BPI’s opposition, during Zinstein and Custer’s on-camera interviews with ABC, they made dozens of false statements about LFTB. “Among other things, they falsely called LFTB an ‘economic fraud’ and an ‘adulterant’ that is not beef, and they falsely suggested that a USDA official approved BPI’s product (over their own objections) because of corruption.”

While the judge ruled that the suit could move forward, she did add that the court was not drawing any conclusions.

“In making this ruling, it must be noted that the issue before the court is whether the plaintiffs have sufficiently alleged, as a matter of law, claims for defamation and disparagement,” Gering wrote. “The court is not reaching any conclusions as to whether the alleged defamatory or disparaging statements are actually true or not true.” — Traci Eatherton, WLJ Editor