Food and Beverage

Bankruptcy proceedings are difficult to manage regardless of the company or industry you operate within. Our attorneys provide our clients with thorough and comprehensive management of bankruptcy proceedings for food and beverage companies.

Some examples of the work our attorneys have handled in this practice area include:

• Represented a cookie manufacturer in a successful reorientation of its business and completion of a Chapter 11 reorganization.
• Represented the agent bank in one of the largest wholesale grocery and retail Chapter 11 cases.
• Provided general advice and guidance to one of the largest U.S. producers of Italian-American cheese on credit-related issues, including guidance as to how to identify and deal with customers who may face financial issues.
• Assisted one of the largest U.S. producers of Italian-American cheese in pursuing claims against insolvent and/or bankrupt customers, as well as defending avoidance claims asserted against the company in bankruptcy proceedings.
• Represented multiple food manufacturers, processors and distributors in the collection of accounts receivable from trade debtors.
• Represented multiple food industry manufacturers in Chapter 7 and Chapter 11 cases of their trade debtors across the country with respect to preparing, filing and serving proofs of claim, reclamation demands and motions for payment of administrative claims.

Our services to food and beverage companies include protection against unfair competition claims, breach of warranty, breach of contract, government investigations, subpoenas, regulatory compliance and much more.

Some examples of commercial litigation legal challenges we’ve managed for our clients include:

• Represented a manufacturer and distributor of bakery and food ingredients in a lawsuit against a bank to recover damages for breach of contract and related claims.
• Represented the world’s leading marketer of Concord and Niagara-based grape products in a dispute over issues involving statutory construction, contract law, and federal and state constitutional issues concerning sewer charges with the Village of Westfield, New York. The company sought to pay user charges based on its actual use as opposed to capacity reserved for it.

Corporate legal challenges in the food and beverage industry can include assistance negotiating contracts with vendors, clients and third parties; drafting contracts and even managing mergers or acquisitions.

Some examples of corporate legal guidance we have provided to food and beverage clients includes:

• Provided advice for one of the largest U.S. producers of Italian-American cheese on a number of regulatory issues including both federal and state standards of identity for its cheese products, weights and measures issues, and issues relating to labeling and federal and state facility inspection.
• Rendered advice and review of contract documents including milk supply contracts, equipment contracts and agreements with customers and suppliers for one of the largest U.S. producers of Italian-American cheese.
• Provide ongoing advice for a food service distributor and a specialty food blending and packaging company in connection with various matters including financing transactions, supply agreements, lease agreements and equipment purchasing transactions.
• Worked on import and export matters relating to coffee grown in Central America.

Providing crisis planning and response services to our food and beverage clients is a key aspect of the practice area at Phillips Lytle. The risk of a product recall, food contamination, other food safety issues and claims of false advertising are just some of the serious challenges clients may face.

Our lawyers work on providing incident response policy drafting and training to our clients so they are prepared to act swiftly and effectively should they be faced with these sort of issues.

A representative matter that illustrates our expertise in assisting companies in crisis: Phillips Lytle assisted a food product company with crisis planning in all aspects of the business and developing legally defensive incident response procedures whether responding to data breaches, cyberattacks, food contamination, product recalls, factory explosions and other potential crises.

We draw on our expertise in providing counsel on employee benefits and executive compensation to provide further assistance to clients in the food and beverage industry. This has included providing advice to various food related companies with respect to day-to-day employee benefit plan administrative matters, including COBRA.

We have maintained retirement and welfare plan documentation compliance, including plan documents and summary plan descriptions, and addressing operational compliance issues for a large food manufacturer. We also represented an international food products corporation in drafting retirement plan and welfare benefit plan documentation and providing operational and administrative advice with respect to qualified and nonqualified 401k plans, defined benefit and incentive compensation plans and health and welfare benefit arrangements.

There are a wide range of environmental issues food and beverage clients can encounter. The unique needs of our clients are paramount in the counsel we provide and runs the gamut from offering land use and zoning guidance related to adding gas stations to a major grocery store chain in New York State to representing companies with regulatory, permitting and environmental due diligence.

Phillips Lytle developed and wrote a complete environmental compliance manual for a multinational food group’s U.S.-based dairy processing facilities. We have also represented an international food products corporation on various environmental matters including those involving federal regulations, permitting, environmental due diligence, and the coordination and assessment of Phase I and Phase II environmental investigations in connection with purchases and sales of its facilities.

We have handled multiple complex matters, including government enforcement, citizen suits and single party claims against milk producers related to alleged violations of the Clean Water Act and state equivalents.

Recovered Natural Gas (RNG) is a new and rapidly developing technology where methane from animal ag, food waste and other organic materials is captured to limit air emissions and produce clean energy. We were the first to represent both developers and producers in this growing technology.

We have assisted food industry clients in evaluating legally compliant food label representations to class action litigations concerning food product claims.

Phillips Lytle Food and Beverage attorneys have experience assisting restaurants and other food and beverage companies with growing their businesses through franchise expansion, such as representing a regional fast food restaurant with franchising more than 40 outlets throughout New York State.

Our Food and Beverage Team represented a privately held international food products corporation for losses sustained as a result of a product recall. We obtained coverage and an eventual $21 million verdict under a property, business income and additional expense policy for the loss of use of product, and the associated lost income and additional expenses involved in conducting the recall.

Issues with intellectual property in the food and beverage industry can apply to trademark protection, patent matters, copyrights and other matters related to trade secrets.

Our work with intellectual property protection for food and beverage companies includes:

• Provided general advice to one of the largest U.S. producers of Italian-American cheese regarding the protection of intellectual property, including trademarks, patents, trade dress and copyrights.
• Represented clients with respect to the selection, protection and clearance of brand names for food products. We prosecute trademark applications and maintain trademark registrations, both domestically and worldwide. We regularly review product packaging for copyright and trademark issues and have advised clients with regard to third-party claims for trademark and copyright infringement.

Our Labor and Employment attorneys lend assistance, when necessary, to companies and businesses who are clients of the Food and Beverage Team. Our attorneys have represented a major manufacturer of ice cream and frozen desserts in employment and employee benefit matters including defense of discrimination charges before the EEOC and the New York State Division of Human Rights, OSHA advice and litigation, labor arbitrations, general employment counseling, and drafting plan documents for retirement and welfare benefit plans.

We have also represented the largest independently owned beer company in the United States in employment matters that included providing advice with regard to employment terminations and other employment issues, reviewing and revising employment policies and manuals, and defending the company in discrimination claims.

Other labor and employment guidance:

• Provided advice on labor and employment issues for one of the leading producers of dairy products in New York State.
• Represented a large international food manufacturer in defending administrative charges of discrimination before the EEOC, the New York State Division of Human Rights and the Fair Employment Practices Agencies in other states where it has facilities, including California and Wisconsin.
• Reviewed and revised employee handbooks and policies.
• Provided advice on FLSA and FMLA issues.

Obtaining proper licensing can be vital for the ability for a business to succeed. Whether a bar, restaurant or another food and beverage business, licensing plays a major role in a number of areas of the industry. Phillips Lytle attorneys represented a major regional supermarket chain with respect to obtaining licensing to serve beer, wine and liquor in their cafes and restaurants. We have also provided legal counsel to numerous restaurants, nightclubs and liquor stores in matters pertaining to obtaining and maintaining their liquor licenses.

We have represented a broad range of food industry companies in the defense of product liability cases related to foreign materials, contamination, burns and poisoning.

Effective representation in real estate matters can be a vital service in the food and beverage industry. Farmers and franchisers alike face a number of challenges related to real estate interests and Phillips Lytle attorneys have the expertise to address the myriad needs of these clients. This includes guidance on real estate transactions, land management agreements, lease agreements, purchases and other legal issues which may arise.

Representative work in food and beverage real estate includes:

• Represented one of the largest U.S. producers of Italian-American cheese with the acquisition and disposition of numerous real property parcels in New York State, and assisted in other zoning and real estate regulatory issues.
• Handled the sale and closing of a number of processing facilities in New York State for the world’s second largest food company.
• Represented a retail food service chain in connection with the sale of a portfolio of leaseholds, subject to existing subleases, in Manhattan.
• Provided advice to a privately held international food products corporation in connection with various types of real estate matters, particularly those involving leasing, sales and acquisitions.
• Represented a major regional supermarket chain in numerous store locations, including shopping center, freestanding and development properties throughout Upstate New York.
• Represented a landlord/developer in connection with retail leases to a Chinese restaurant, a breakfast house and a diet center in a shopping center located in Long Island, New York.
• Represented a landlord in connection with a restaurant lease located in Croton-on-the-Hudson, New York.

Phillips Lytle represented the world’s leading marketer of Concord and Niagara-based grape products in a matter that involved fraud committed by one of its employees who was receiving kickbacks from various trucking companies that were doing business with our client. As a result, the employee, the company’s insurance carrier were sued in multistate litigation.