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United States v. 24 Cases (Sixteen, of Raisin Bran Cereal an Article on Food

United States District Court, W.D. Arkansas, Fort Smith Division

July 18, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
24 CASES (SIXTEEN, 18.7 OZ. BOXES PER CASE) MORE OR LESS, OF RAISIN BRAN CEREAL, AN ARTICLE OF FOOD, et al. Defendant Articles in rem, and J AND L GROCERY, LLC, a corporation, and JAMES T. WHITE and LORI A. LAYNE, individuals, Defendants.

          FOR THE DEFENDANTS: FOR THED STATES J. DALTON PERSON, ESQ. JONES JACKSON & MOLL, PLC, JAMES T. WHITE, LORI A. LAYNE INDIVIDUALLY

          FOR THE UNITED STATES DUANE (OAK) KEES UNITED STATES ATTOREY, MARK W. WEBB

          OF COUNSEL ROBERT CHARROW GENERAL COUNSEL, STACY CLINE AMIN CHIEF COUNSEL, ANNAMARIE KEMPIC DEPUTY CHIEF COUNSEL. LITIGATION, SETH I. HELLER ASSOCIATE CHIEF COUNSEL

          CONSENT DECREE OF CONDEMNATION AND PERMANENT INJUNCTION

          P.K. HOLMES, III UNITED STATES DISTRICT JUDGE

         On November 7, 2018, a Complaint for Forfeiture against the above-captioned articles was filed in this Court on behalf of the United States of America by its attorneys for the Western District of Arkansas. The Complaint alleges that the articles proceeded against are articles of food, drug, device, and cosmetic within the meaning of the Federal Food, Drug, and Cosmetic Act (the "Act"), 21 U.S.C. §§ 301 -399i, that are adulterated while held for sale after shipment of one or more of their components in interstate commerce, within the meaning of 21 U.S.C. §§ 342(a)(4), 351(a)(2)(A), and 361(c), in that they have been prepared, packed, or held under insanitary conditions whereby they may have become contaminated with filth or may have been rendered injurious to health. The Complaint additionally alleges that the defendant articles of drug are also adulterated while held for sale after shipment of one or more of their components in interstate commerce, within the meaning of 21 U.S.C. § 351(a)(2)(B), in that the facilities or controls used for their manufacture, processing, packing, or holding do not conform to, or are not operated or administered in conformity with, current good manufacturing practice to assure that such drugs meet the requirements of the Act as to safety, and have the identity and strength, and meet the quality and purity characteristics, which they purport or are represented to possess.

         Pursuant to the Warrant for Arrest issued by this Court, the United States Marshals Service (the "USMS") for this District seized the articles on November 7 and 8. 2018. Thereafter, notice of the complaint and seizure were published in accordance with the applicable rules of this Court.

         On November 9, 2018, J and L Grocery, LLC ("J&L" or "Claimant") intervened and filed a claim to the seized articles. On June 14, 2019, the United States amended the Complaint to seek injunctive relief and add J&L, J&L's owner, James T. White, and J&L's manager, Lori A. Layne (collectively "Defendants") as parties.

         Defendants now consent to the entry of this Decree without contest, before any testimony has been taken.

         Whereupon, the Court being fully advised, it is on motion of the parties hereto, ORDERED, ADJUDGED, AND DECREED as follows:

         1. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1345 and 21 U.S.C. § 334. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b) and 1395.

         SEIZURE PROVISIONS

         2. Claimant affirms that it is the sole owner of the seized articles of food, drug, device, and cosmetic and that no other person has an interest in the goods.

         3. The seized articles are adulterated while held for sale after shipment of one or more of their components in interstate commerce, within the meaning of 21 U.S.C. §§ 342(a)(4), 351(a)(2)(A), or 361(c), in that they have been prepared, packed, or held under insanitary conditions whereby they may have become contaminated with filth or may have been rendered injurious to health. The seized articles of drug are also adulterated while held for sale after shipment of one or more of their components in interstate commerce, within the meaning of 21 U.S.C. § 351(a)(2)(B), in that the facilities or controls used for their manufacture, processing, packing, or holding do not conform to or are not operated or administered in conformity with current good manufacturing practice to assure that such drugs meet the requirements of the Act as to safety, and have the identity and strength, and meet the quality and purity characteristics, which they purport or are represented to possess.

         4. The seized articles are hereby condemned pursuant to 21 U.S.C. § 334(a) and forfeited to the United States.

         5. Pursuant to 21 U.S.C. § 334(e), the United States of America shall recover from the Claimant all court costs and fees, storage and other proper expenses already incurred with respect to the condemned articles, and such additional expenses as may hereafter be incurred and taxed pursuant to the authority set forth in 21 U.S.C. § 334. Claimant shall pay these costs within sixty (60) calendar days after receiving notice of such costs from the United States Food and Drug Administration ("FDA"), the USMS, and/or the United States Department of Justice ("DOJ").

         6. Within twenty (20) calendar days after entry of this Decree, Claimant shall execute and file with the Clerk of this Court a good and sufficient penal bond with surety, in a form acceptable to the Clerk of this Court and payable to the United States of America, in the amount of forty thousand dollars ($40, 000.00), conditioned on the Claimant's abiding by and performing all of the terms and conditions of this Decree with respect to the condemned articles and such further Decrees or Orders as may be entered in this proceeding with respect to the condemned articles. The bond shall be applied to Lot 1 as defined in the Destruction Plan to be submitted and approved under paragraph 8 of this Decree and held for application to each successive lot as defined in the Destruction Plan.

         7. Claimant shall provide all necessary documentation in its possession, custody, or control to verify to FDA's satisfaction the content and value of each lot of the condemned articles of food (including dietary supplements), drug, medical device, and cosmetic.

         8. After filing of the bond with this Court, the Claimant shall give written notice to the FDA Dallas District Office pursuant to paragraph 29, that Claimant, at its own expense, is prepared to destroy the condemned articles under the supervision of the USMS and a duly authorized representative of FDA. Claimant shall not commence, permit any other person to commence, or cause any other person to commence destroying the condemned articles unless and until Claimant: (a) submits a written statement to FDA detailing Claimant's proposed plan to destroy the condemned articles (the ''Destruction Plan"), including a schedule for the destruction; (b) receives written approval of the Destruction Plan from FDA; (c) receives written authorization from FDA to commence destroying the condemned articles under the supervision of FDA; and (d) has fully paid the costs and fees pursuant to paragraph 5. Claimant shall submit its Destruction Plan to FDA within thirty (30) calendar days after filing its bond with the Court.

         9. The Claimant shall at all times, until the condemned articles have been destroyed pursuant to paragraphs 8 and 10, retain intact each lot of condemned articles for examination or inspection by FDA and the USMS, and shall maintain the records or other proof necessary to establish the identity of the articles comprising each lot to the satisfaction of FDA and the USMS.

         10. If the Destruction Plan is approved by FDA pursuant to paragraph 8, the USMS for this District shall successively release each specified lot of the condemned articles to the Claimant for the sole purposes of destroying such articles pursuant to the Destruction Plan. After release of the first lot, subsequent lots shall be released by the USMS to the Claimant for the sole purposes of destruction pursuant to the Destruction Plan, if and only if Claimant complies with all of the terms of this Decree with respect to each previously-released lot, and each such lot has been successfully ...


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