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Court Can't Resolve Dispute Stemming from Rabbis' Condemning Use of Competing Kosher Certifier
From Nassau County (N.Y.) Justice Randy Sue Marber's decision last week in Chimichurri Chicken Corp. v. Vaad Hakashrus of the Five Towns Far Rockaway (see also this New York Post [Lisa Fickenscher] article about the filing of the lawsuit [UPDATE: link fixed]):
The Plaintiff operates a restaurant in Cedarhurst, Nassau County, called "Chimichurri Charcoal Chicken." The Defendant is a New York State Religious Corporation also located in Cedarhurst. The Defendant was founded to certify, according to its standards, retail companies and commercial companies that cater to the Jewish consumer within the area of Long Island colloquially known as the "Five Towns," which includes Cedarhurst, as Kosher.
According to the Complaint, Plaintiff, beginning in or about November 2015, was awarded and thereafter maintained a Kosher Certification from the Defendant, reflecting Plaintiff's compliance with Kosher standards developed by Defendant. Defendant provided Plaintiff with this Kosher Certification in exchange for a fee. On or about July 5, 2020, Plaintiff sent a letter to Defendant stating that it would no longer be using it for Kosher Certification, electing instead to use a newly formed entity, non-party Mehadrin of the Five Towns ….
Plaintiff's rationale in switching Kosher certifiers was that Defendant only provided Kosher certifications for Ashkenazi Orthodox Jews. Plaintiff had noticed that there was an influx, into the Five Towns area, of Spanish/Portuguese Sephardic Orthodox Jews. Plaintiff wished its Kosher certification to be accepted by as many potential customers as possible, so it switched to Mehadrin, which provided Kosher certifications for Ashkenazi and Sephardic Jews.
Following the Plaintiff's termination of its relationship with the Defendant, Defendant published … a letter dated July 9, 2020 … from 53 Rabbonim (Rabbis) addressed to the Five Towns and Far Rockaway community, which reads as follows:
To our Beloved Five Towns and Far Rockaway Community:
Our community is very unique in that we have a hashgocha {a kosher supervising agency} where the kashrus [kosher law] professionals work under the auspices of the community Rabbonim. In the day to day running of our Vaad, the kashrus professionals answer to a rotating board of community Rabbonim and lay leaders reflecting a broad cross-section of the community.
There is a great advantage in having a single universally recognized hashgocha in a community. In communities with competing hashgochas, the consumer is often ill informed of the specific reliability of each kashrus organization, which leads to confusion, and inevitably lower standards of kashrus. Our community is unique in that any community resident or visitor, who sees the certificate of the Vaad Hakashrus of the Five Towns and Far Rockaway, can eat without any hesitation as to the quality of the kashrus. Due to the transparency through which the Vaad operates, even a consumer who accepts stricter standards, can know with certainty whether a given establishment is appropriate for him.
Two Rabbonim in the community have recently formed a new hashgocha, the "Mehadrin of the Five Towns" which certifies Five Fifty Restaurant and Shoppe, Chimichurri Charcoal Chicken, and Keneret Fish Market. We have no personal ill feeling toward the Rabbonim who provide the hashgocha, and are always open to consider and incorporate opposing views to enhance the kashrus standards of our community. However, after careful consideration, we cannot in good conscience, recommend that one rely on this hashgocha.
We are aware that kashrus issues are often contentious, and can easily lead to discord within a community. However, we feel strongly that maintaining high standards of kashrus is best accomplished when the vast majority of the community Rabbonim volunteer their time to direct our kashrus professionals, with no motive other than ensuring the best interest of our community. This is done by Rabbonim who have nothing to gain other than enhancing the religious life in our community. When the field of kashrus is opened up to those who do not collaborate with the vast majority of community Rabbonim, there will be an inevitable decline in both standards and unity. We therefore discourage the members of our community in the strongest terms, from patronizing local food establishments that are not under the hashgocha of the Vaad of the Five Towns and Far Rockaway.
As a rule, it is worthwhile to remember that if one sees an unfamiliar hashgocha it is wisest to consult with your trusted local Rabbonim for guidance, just as you do for all religious matters. The established Rabbonim of the Five Towns and Far Rockaway have earned the trust of its residents over many decades of selfless service and dedication. It would be tragic to throw this valuable relationship away in one of the most important amas of Judaism. With heartfelt prayers that our sincere efforts to enhance kashrus and religious life in our community are successful.
The Plaintiff states that as a result of the publication of this letter, its business declined precipitously, with a loss in revenue total in excess of $156,000 per year, based on various Jewish Community Centers cancelling their orders and other consumers refusing to patronize their business.
The Plaintiff then brought this action against defendant alleging four causes of action. The first cause of action is for "injurious falsehood." The second and third causes of action are for "tortious interference with prospective economic advantage." The fourth cause of action is for antitrust violations under the Donnelly Act. Plaintiff asserts, for its complaint, that the July 9 letter was defamatory, containing deliberate falsifications about Plaintiff's and Mehdarin's adherence to Jewish dietary laws….
"The First Amendment forbids civil courts from interfering or determining religious disputes because there is a substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs." Judicial involvement is permitted "only when a case can be decided solely upon the application of neutral principles of law without reference to any religious principle."
Here, the dispute is essentially one that involves the religious principles concerning the Kashrut, or Jewish dietary laws. Cases have long recognized that such disputes are ecclesiastical in nature…. "There is considerable disagreement over what precepts or tenets truly represent the laws of kashrut. There are differences in opinion concerning the application and interpretation of the laws of kashrut both within Orthodox Judaism and between Orthodox Judaism and other branches of Judaism."
Underscoring the fact that this dispute is ecclesiastical in nature is the language of the Complaint itself. The Plaintiff terminated its relationship with the Defendant providing Plaintiff with a Kosher Certification because it wished to abide by a different standard. The Defendant, in sending the July 9 letter, advised the Five Towns Community of this change and noted its disagreement therewith. In fact, one of the emails the Plaintiff received from a former consumer highlights this exact point, stating:
I can't believe you have [Kosher Certification] from anything other than the Five Towns and Far Rockaway the Vaad [sic]. I love your food and was planning on making a big order on [M]onday for a birthday party. It has taken 30+ years to get all the rabbi's [sic] in the community on [sic] same page and you disregard the importance of a common [Kosher Certification] all will accept.
It is apparent that the Defendant represents the efforts of the Five Towns and Rockaway community to break away from the historical disagreement over the laws of Kashrut and to develop generally agreed upon standards for that particular community. The Plaintiff chose to deviate from that. This Court is precluded, by the First Amendment, from considering the merits of the Plaintiff's contentions arising from these facts….
Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.
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That legal decision seems both right and wrong to me. On the one hand, the government should not be sticking its nose into religious details. On the other hand, the complaint doesn’t seem to me entirely a religious complaint. But on the third hand, I don’t see how there’s anything illegal going on. No lies, just the facts, ma’am, so what is the court supposed to do?
That letter kinda makes me want to retch, that oh-poor-me, rally around us, the community is better served with just one certification agency, and that is us, and we have served the community so well, don’t patronize these traitor businesses which won’t pay us for their certification any more.
But the business chose to switch because they wanted a broader customer base with a broader certification. They made a business decision based on the tradeoffs: more business from other sects, less business from people who relied on the old agency. Apparently they chose poorly.
That difference in kosher strictness confuses me a little, not knowing a lot about kosher rules. I gather there is some overlap between kosher and halal, such that one is a subset of the other. What kind of differences are there in kosherism? I could see a stricter certification covering more sects, but I could also see customers who appreciated the old product choice, which might be narrowed with the stricter certification. Guess I will never know.
You know what? JFTR, I agree with your take.
Among other things, I don’t like the suggestion in the letter that the new agency is somehow less struct, but I suppose a court can’t really sort that out.
As I understand it, kosher food is halal, but not vice-versa.
Mostly but not entirely. Jews can consume alcohol; Muslims can’t.
Jews can consume alcohol
And a good thing it is, too.
“Blessed are thou…who created the fruit of the vine.”
The NYP article that’s supposed to be linked to gives some more context: https://nypost.com/2021/05/23/long-island-rabbis-accused-of-mafia-like-methods-in-kosher-turf-battle/
From that it sounds less like an actual religious dispute at the core and more a normal story of elites abusing their position. A tale as old as time. Still, nothing really illegal.
Comments on local articles are interesting: http://www.5tjt.com/halachic-musings-pros-and-cons-of-a-second-kashrus-organization/
http://www.5tjt.com/53-area-rabbis-come-out-against-new-community-hashgacha/
I read the article, and it doesn’t change my opinion. The article merely said the rabbis repeated the things they said in the letter in various other forums. And there’s nothing especially wrong with what they said. They think having one kosher supervising agency is in the best interest of the community and therefore recommended not patronizing restaurants that use a different standards.
The Catholic Church seems pretty similar. It thinks having one church guided by one organization is in the best interests of Christians and doesn’t recommend patronizing other churches. Do Protestants get to sue the Catholic Church on grounds that its “mafia like tactics” are stifling competition? Can it get a court to order the Catholic Church to change its views? Of course not, the First Amendment totally protects against that. Similarly, non-Christians can’t get Christian churches to stop preaching “I am the way, the Truth, and the Light” or the doctrine of “Ex ecclesia numla salvis” (there is no salvation outside the Church.) However unfair non-Christians may think it, the monopoly Christians give Jesus and the Church in their doctrines is simply ordinary religious teaching, not “mafia like tactics.”
This is really no different. Like it, don’t like it, this is an ordinary religious dispute that the parties are carrying on through ordinary preaching and teaching, completely legal means. There’s nothing the slightest bit illegal or “mafia like” about religious teachers using their positions to advance what they think is correct religious doctrine, however others might disagree with it.
They think having one kosher supervising agency is in the best interest of the community and therefore recommended not patronizing restaurants that use a different standards.
That’s not quite all they said.
However, we feel strongly that maintaining high standards of kashrus is best accomplished when the vast majority of the community Rabbonim volunteer their time to direct our kashrus professionals, with no motive other than ensuring the best interest of our community. This is done by Rabbonim who have nothing to gain other than enhancing the religious life in our community. When the field of kashrus is opened up to those who do not collaborate with the vast majority of community Rabbonim, there will be an inevitable decline in both standards and unity. We therefore discourage the members of our community in the strongest terms, from patronizing local food establishments that are not under the hashgocha of the Vaad of the Five Towns and Far Rockaway.
Emphasis added. There really is an undertone of criticism of the newcomers here.
Still, the similarity to some churches holds. “Want to go to Heaven?” Don’t listen to those Methodists, Presbyterians, etc.
That’s a slippery slope argument. They are saying that if there is not a unified kosher board in the region, then chaos will ensue, and eventually standards will decline. Past history supports that contention.
There’s a debate in a state about whether paralegals should be allowed to do something previously only done by lawyers. A lawyer association says that letting paralegals do it would lead to lowering standards and refuce the overall quality of legal services.
Paralegals get to sue for libel? Restraint of trade? Antitrust?
The paralegals might be completely right that the lawyers’ real reasons for their position is just maintaining their monopoly on legal services and stifling competition. Could be. But that doesn’t make the lawyers’ behavior tortious or permit a court to enjoin it. It’s an opinion on a public issue protected by the First Amendment.
I agree with ReaderY.
What if a winery decided to stop sending its wines to Wine Spectator for reviews and started sending them to Wine Enthusiast instead. And then Wine Spectator issues a letter saying, “Gee, it’s too bad they are having their wines reviewed by that rag rather than our trusted publication.”
It seems to me that’s clearly opinion and thus protected, even without the religious issue (and I completely agree that the courts should not be deciding religious doctrine).
Sorry, fixed link, thanks.
Either you left the blockquote on one line too long, or the judge has a very unusual way of ending an opinion.
Ostensible adults, fighting over . . . what?
(With respect to crappy protection rackets, at least the Mafia gave us plenty of good movies.)
Or you could mix the Five Towns with the Mafia and get a pretty good movie:
“I don’t understand you! She’s fucking beautiful. Her fucking family, they live in the Five Towns there. You know these Jew broads got a lot of money. Maybe the family owns the whole fucking block. and you happen to end up with a big fucking score, motherfucker.”
If you read the letter contained in the opinion explaining the Vaad’s position that seems to be the origin of this lawsuit, there’s nothing in it that seems especially defamatory even in a colloquial rather than in a legal aense. The rabbis signing it explain that they think it’s in the best interest of the community to have a single standard and a single oversight board implementing that standard for the entire community. and that it wouldn’t be in the interest of the community to have multiple organizations with multiple standards.
You can agree with that or disagree with it. But there’s nothing in it that seems defamatory or represents something that would seem tortious, even aside from the First Amendment issues (which I completely agree with). After all, it’s pretty common for religions to say that you need one God, one church, one set of doctrines and so forth, and that one ought to be theirs. It’s kind of what they do.
That said, I completely agree that this is a classic garden variety religious dispute that judges have to stay out of. Whether having only one kosher supervising agency is or is not in the besh interests of the Jews of the Five Towns area of Long Island is nobody else’s business, and certainly not the government’s.
Family court judges should learn from this, and refuse to address the merits of arguments about legal child-rearing.
“In communities with competing hashgochas, the consumer is often ill informed of the specific reliability of each kashrus organization, which leads to confusion, and inevitably lower standards of kashrus.”
Translated into English, “Monopolies make better products. Trust monopolies.”
People who let a 3,000 year old book of BS written by ignorant goat herders dictate their dietary habits deserve each other.
Eugene,
Isn’t the Sephardic Orthodox viewpoint important in balancing the outcome?
Presumably there were enough Sephardic Orthodox to matter. What was their beef with the original certifier?
The difference between this and a normal monopoly is that most people do can do enough research on their own to decide what product to buy. By contrast, it’s difficult for people to research a rabbinical certifying agency to find out what their standards are – and then to research the Talmud and related Jewish religious law-books to decide how these apply – every time they want to buy some food product. So it’s in the interest of the public to have a certifying agency which they know has the broad support of rabbinic leadership versus having many rabbis each running their own agency.
It’s like imagine if instead of having the FDA approve drugs, you had multiple independent agencies approving drugs, and every consumer had to decide for themselves which agency’s approval to rely on. It would be a disaster.
[Obviously you can’t have government agencies in the kosher certification field, and that was not my suggestion. My point is just that having one recognized and accepted entity doing the approving is a far superior system over having multiple approving agencies and leaving it to consumers to decide which agency to rely on.]
except of course that the one monopolistic entity only covered part of the market, leaving Sephardic Orthodox on their own.
oh the jews be fighting over their turf and their revenue, the real issue is revenue as the Kosher scam has nothing to do with religion. my aluminum foil is kosher, i use it for my tin foil hats!
nice scam, one kosher monopoly is better than another….hilarious jew conflict, let’s all cry for the jew and what is kosher and what is money!!!!
Interesting trip down memory lane. In the mid-1980s, when I clerked for a justice on the supreme court of my state, I was asked to research the question of what the approach should be when courts are faced with disputes between church factions. This was back in the olden days when research was mostly done by looking at books, not computer screens. My assignment included reading and analyzing cases from every jurisdiction I could find where the issue had been discussed. It was fun — not a word that I used very often over the subsequent years of my practice.