Attorneys Douglas A. Felman and David I. Sharfstein will represent Blue Bell Creameries LP in a lawsuit against former executive director of Blue Bell Creameries, Paul Kruse, unless they manage to overturn a subpoena. Until then, however, Blue Bell’s in-house attorney, Felman, and outside attorney, Sharfsteo, have been registered by the law firms of Hogan Lovells US LLP to attend.
Felman and Sharfstein are “Nonpartisan Witness Lawyers” Blue Bel l Creameries LP. You have petitioned the Western District Court in Austin to have the subpoena set aside. The judge has admitted the Blue Bell attorneys to his court, but has not yet ruled on their motion to have them set aside.
The Blue Bell attorneys want to overturn the subpoena submitted by former Blue Bell President Paul Kruse. He is charged with conspiracy and fraud related to the Listeria outbreak in four states related to Blue Bell ice cream products. His trial is scheduled for November in Austin, TX.
The subpoena is an extraordinary invitation to establish almost all privileged communication between members of Blue Bell’s management and Blue Bell’s outside attorney at Hogan and Lovells, the motion for repeal stated.
Blue Bell wants the subpoena to be lifted for violations of legal and client law, one of the oldest privileges for confidential communication between clients and attorneys.
Following outbreak-related events between February 13, 2015 and April 3, 2015, the Justice Department told Blue Bell that this was the target of an investigation by the federal grand jury. The DOJ’s stake in Blue Bell would culminate with the company’s agreement to pay fines, forfeitures, and civil settlement payments of $ 19.35 million.
The company pleaded guilty in May 2020 to having sold adulterated food in two cases in violation of the federal law on food, drugs and cosmetics. It was agreed to pay criminal penalties totaling US $ 17.5 million and US $ 2.1 million to resolve allegations of the False Claims Act regarding ice cream products made under unsanitary conditions and sent to federal facilities , including the military, were sold.
During this litigation, Blue Bell produced 500,000 documents and 800,000 pages. However, it is alleged that Hogan Lovells US LLP did not have a direct relationship with Paul Kruse prior to his retirement, but was instead led to bring Blue Bell into FDA compliance.
In the plea agreement, Blue Bell was credited with full cooperation in investigating the Listeria outbreak. The motion for waiver also states that the plea agreement did not waive Blue Bell’s legal rights.
The neat 13-page Quash motion makes several other arguments. Lawyers say the subpoena should be lifted for such reasons because it is not precise enough, seeks out irrelevant material, and is not more important than work products of lawyers and clients.
The 66-year-old Kruse, himself a lawyer, retired three years ago as long-time managing director of Blue Bell. Kruse is a longtime resident of Brenham, TX, where Blue Bell Creameries is headquartered about 90 miles east of Austin.
The criminal charges are about Kruse’s role in the 2015 Listeria outbreak, which was the source of Blue Bell branded products. A total of 10 people with listeriosis-related the outbreak were reported from 4 states: Arizona with one, Kansas with five, Oklahoma with one, and Texas with three. All sick people were hospitalized. Three deaths have been reported from Kansas.
On April 20, 2015, Blue Bell Creameries voluntarily recalled all products in the market that were made at all facilities, including ice cream, frozen yogurt, sorbet and frozen snacks. In addition, production facilities in four states were closed.
The US Food and Drug Administration published the critical results of inspections at Blue Bell’s manufacturing facilities on May 7, 2015.
About Listeria infections
Food contaminated with Listeria monocytogenes may not look or smell spoiled, but it can cause serious and sometimes life-threatening infections. Anyone who has developed symptoms of Listeria infection should seek medical attention and tell their doctors about possible Listeria exposure.
It can take up to 70 days after exposure to Listeria for symptoms of listeriosis to develop.
Symptoms of Listeria infection can include vomiting, nausea, persistent fever, muscle pain, severe headache, and neck stiffness. Special laboratory tests are needed to diagnose Listeria infections, which can mimic other diseases.
Pregnant women, the elderly, young children and people like cancer patients with weakened immune systems are particularly at risk from serious illnesses, life-threatening infections and other complications. Although infected pregnant women may experience mild, flu-like symptoms, their infections can lead to premature delivery, infection of the newborn, or even stillbirth.
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