Professional Documents
Culture Documents
11(c)(2)
v. MEMORANDUM OF LAW IN
SUPPORT OF DEFENDANT’S
Cento Fine Foods, Inc., MOTION FOR SANCTIONS UNDER
FED. R. CIV. P. 11
Defendant.
Defendant Cento Fine Foods, Inc. (“Defendant” or “Cento”) submits this Memorandum of
Law in support of its Motion for Sanctions under Rule 11 of the Federal Rules of Civil Procedure,
I. INTRODUCTION
Plaintiff Ricardo Sibrian, through his counsel Spencer Sheehan of Sheehan & Associates,
P.C. 1, filed this putative class action alleging that Defendant’s San Marzano Peeled Tomatoes (the
“Products”) are not certified as San Marzano tomatoes by the appropriate third party certifier and
are grown outside the proper regions in Italy that allow San Marzano status. Plaintiff’s counsel
must be sanctioned for signing and filing a baseless pleading that: (1) makes numerous factual
allegations and insinuations that have no evidentiary support; (2) asserts frivolous claims not
warranted by any existing law; and (3) fails to identify that any of those allegations will likely need
First, Plaintiff makes baseless and scandalous allegations in his Complaint designed to have
the Court (and any potential factfinder) believe that they serve as the basis of an investigation
1
Subsequently joined by Michael R. Reese of Reese LLP as co-counsel. Dkt. No. 5.
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conducted specifically into Defendant’s practices, when in reality they merely constitute a
mishmash of conclusory statements and innuendos about the tomato industry in general. Plaintiff
alleges that a “fraud” is perpetrated due to the “abundance of lower quality Chinese processed
tomato products imported into Italy,” claims that “[t]he Italian Mafia reaps profits by placing lesser
quality tomatoes into cans and labeling them San Marzano,” and most egregiously, relies on
graphics and quotes from a New York Times animation that clearly cannot be about, and makes
no mention of, Defendant’s products. In reality, a reasonable inquiry would have shown that none
Second, Plaintiff’s apparent main contention—that Cento’s San Marzano Tomatoes are not
grown in the proper region in Italy and are not certified by a particular third-party, independent
certifier—is demonstrably false and not a cognizable claim under the law. To be clear, Plaintiff
does not, and cannot, allege that Defendant misleadingly represents consumers into believing that
it is certified by one organization when it is not. Instead, Plaintiff brings this frivolous lawsuit to
mistakenly allege that Defendant’s Products can’t possibly be true “San Marzano” tomatoes
because they are certified by a different certifier. Plaintiff cannot identify a single EU regulation
that Defendant has allegedly violated to support his allegations that the tomatoes in Cento cans are
not what they claim to be. Had Plaintiff performed even the most cursory investigation into his
claims, he would learn that there is more than one certifying entity with respect to San Marzano
tomato farming and production. Moreover, Plaintiff has failed to identify any facts that establish
that Defendant’s grow operation is violating any regulation promulgated by European Union or
U.S. agencies that regulate food products. Instead, he relies on bare conclusions and guesses that
were gleaned from sloppy media reporting and targeted Cento as a potential deep pocket. Such
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conduct should be admonished and Defendant should be made whole for being forced to defend
Defendant presents supporting evidence establishing that Plaintiff and his counsel
conducted no meaningful investigation whatsoever before filing this lawsuit. This evidence
includes not only Cento’s authentic certification documents concerning the traceability and quality
of its Products, but an affidavit from a charter and current member of the Consortium for the
(the very body that Plaintiff claims is the only legitimate organization that can issue San Marzano
certifications) attesting to the certification and quality of Cento’s San Marzano Products –
information that Plaintiff’s counsel could have attained had he performed a reasonable inquiry.
Moreover, Plaintiff’s failure to withdraw the Complaint when faced with damning proof that his
claims must fail is defined as conduct worthy of sanctions pursuant to Rule 11.
Third, Plaintiff’s Complaint fails to qualify that key allegations require further
investigation or discovery. Plaintiff’s spurious and false background allegations and his factual
contentions concerning Defendant’s seeds and certifier are not specifically identified as needing
further evidentiary support after reasonable investigation or discovery. The only conclusion that
can be reached is that Plaintiff and his counsel performed no such reasonable inquiry, relying
solely on a news article that did not mention or address Defendant’s products, and had no
evidentiary support for their allegations at the moment their Complaint was signed and filed into
this Court.
For these reasons, explained more fully below, the Court should grant Defendant’s Motion
for Sanctions and allow reasonable sanctions, attorneys’ fees and costs in Defendant’s favor.
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A. Plaintiff’s Allegations
Plaintiff alleges that there are two types of peeled plum tomatoes from Italy: regular peeled
and regular peeled grown in the region San Marzano sul Sarno. (Dkt. No. 1, Complaint, ¶ 5).
Displaying an image of Defendant’s product, Plaintiff states, “Defendant represents its Products
as ‘Certified San Marzano Organic Peeled Tomatoes.’” (Id. ¶ 8). Plaintiff then alleges that
premium pricing for San Marzano tomatoes—which he claims is twice as much as non-San
Marzano tomatoes—causes an ongoing battle against fraudulent tomatoes. (Id. ¶ 13). Plaintiff
alleges that “[t]his fraud is abetted by the abundance of lower quality Chinese processed tomato
products imported to Italy…to use in the finished tomato products.” (Id. ¶ 14). Plaintiff states that
the head of the Consortium for the Protection of the San Marzano Tomato Dell’agro Sarnese
Nocerino estimates that only five percent of tomatoes marked as San Marzano are real San
Marzano tomatoes. (Id. ¶ 15). The article from which Plaintiff derives this statistic, id. n. 2, makes
no mention of Defendant or its products. Plaintiff then alleges that “[t]he Italian Mafia reaps
profits by placing lesser quality tomatoes into cans and labeling them San Marzano[.]” (Id. ¶ 16).
By naming the next section of his Complaint “The Mystery of San Marzano, NY Times,”
Plaintiff undoubtedly refers to the New York Times interactive animation entitled “The Mystery
of San Marzano” that is the source of Plaintiff’s Mafia allegation. (Id. ¶ 16, n.3). Plaintiff
selectively presents two slides from the animation, the second of which is named “HOW TO SPOT
A FAKE.” (Id. ¶ 17). In this “HOW TO SPOT A FAKE” slide, there are two pertinent indications
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given: “[t]he label does not say ‘Pomodoro S. Marzano dell-Agro Sarnese-Nocerino’”; and
“[m]issing the D.O.P. 2 seal and the seal of the consortium.” (Id.).
Plaintiff alleges that Defendant’s Cento San Marzano Organic Peeled Tomatoes are
certified by the Instituto per la Certificazione Erica e Ambientale (ICEA). (Id. ¶ 19). Plaintiff
alleges that ICEA does not certify that Defendant’s products “are compliant with the San Marzano
guidelines,” id. ¶ 20, but notably Plaintiff does not allege at any point in his Complaint what the
“San Marzano guidelines” are or how Defendant has run afoul of any such guideline. Plaintiff
alleges that Agri-Cert is a company that supplies Defendant with San Marzano seeds and possibly
certifies whether Defendant’s products are organic, “as opposed to certifying the growing and
quality of the final product.” (Id. ¶ 23). Plaintiff appears to contend that Defendant’s certifiers are
either not the appropriate certifier, or do not certify the entire finished product. (Id. ¶¶ 32, 44).
Importantly, Plaintiff does not allege that Defendant’s products are not certified by ICEA and Bio
Agri-Cert. Plaintiff also alleges that the “Find My Field” section of Defendant’s website returns
only four fields, and that it is implausible that Defendant can cultivate only four fields for all of its
Plaintiff alleges that he purchased Defendant’s products and paid a premium because he
“saw and relied on the misleading representations.” (Id. ¶ 59). Plaintiff does not allege what
class, alleging unfair trade practice statute violations of nearly every U.S. state and the District of
2
“D.O,P.” stands for Denominazione d' Origine Protetta, and refers to the Consortium from the Protection of
Pomodoro S. Marzano dell-Agro Sarnese-Nocerino, a third-party certification organization referenced in Plaintiff’s
Complaint at ¶ 15.
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Columbia. (Id. ¶ 71). Plaintiff’s additional causes of action are for negligent misrepresentation,
entity that Plaintiff wrongly asserts is the only one that can certify San Marzano tomatoes—attests
that Defendant’s seeds are approved and certified; that its farmlands, factory, and production are
indeed located in Sarnese-Nocerino area and are certified as San Marzano compliant by a third-
party certifier; and further states that “Cento has been honorable and true to quality.” (Ciccotelli
Patrick M. Ciccotelli, the President and CEO of Cento, confirms that Agri-Cert certifies
the Products, and that this certification is recognized by the European Union for certification of
San Marzano tomatoes. (Ciccotelli Decl., ¶ 7). Mr. Ciccotelli further confirms that Cento’s
certifications are not only for the seeds, but rather constitute a complete San Marzano tomato
certification for the entire product and process, from the seeds and growing, and all the way
through and including canning. (Id.). Cento employs Italian farmers who grow exclusively in the
Sarnese Nocerino area of the Campania region of Italy (Id., ¶4). It’s production facility is also
located in the Sarnese Nocerino area. (Id.). Cento’s farming partners operate 10 to 30 fields per
growing season, depending on demand and yield conditions. (Id., ¶5). For the 2018 growing
season, 25 fields were cultivated in the Sarnese Nocerino area. (Id., ¶6).
Rule 11(b) provides in relevant part that, by presenting to the court a pleading, written
motion or other paper, an attorney “certifies that to the best of the person's knowledge, information,
and belief, formed after an inquiry reasonable under the circumstances,” the pleading, written
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motion or other paper is not being presented for any “improper purpose,” that the claims, defenses
and other legal contentions are “warranted by existing law or by a nonfrivolous argument for the
extension, modification of reversal of existing law or the establishment of new law[,]” and that
“the factual contentions have evidentiary support, or if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for further investigation or discovery[.]” Fed.
R. Civ. P. 11(b). A violation of Rule 11 is thus triggered “when it appears that a pleading has been
interposed for any improper purpose, or where, after reasonable inquiry, a competent attorney
could not form a reasonable belief that the pleading is well grounded in fact and is warranted by
existing law or a good faith argument for the extension, modification or reversal of existing
law.” ResQNet.com, Inc. v. Lansa, Inc., 382 F. Supp. 2d 424, 452-53 (S.D.N.Y. 2005) (quoting
Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 254 (2d Cir. 1985) (emphasis in
original)).
objective unreasonableness on the part of the attorney or client signing the papers.” ATSI
Commc'ns, Inc. v. Shaar Fund, Ltd., 579 F.3d 143, 150 (2d Cir. 2009) (internal quotation marks
and citation omitted); see also Eastway Constr., 762 F.2d at 253 (observing that Rule 11
reasonable inquiry into the viability of a pleading before it is signed”). When it becomes clear that
a party (or its counsel) does not have evidentiary support for claims made in a Complaint, it is
“objectively unreasonable” for that party to refuse to withdraw its unsupported claims. Cameau
v. Nat'l Recovery Agency, Inc., No. CV 15-2861 (DRH) (AKT), 2018 U.S. Dist. LEXIS 132993,
*22 (E.D.N.Y. Aug. 6, 2018) (finding Rule 11(b)(3) violation for failure to withdraw unsupported
claims).
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IV. ARGUMENT
certifications reveal that Plaintiff’s counsel filed this frivolous lawsuit despite performing no
reasonable pre-suit investigation whatsoever. Further, when presented with evidence that refutes
his allegations and doom the Complaint, Plaintiff has failed to withdraw the frivolous pleading.
After specifically identifying Defendant’s product label, Plaintiff first alleges a global
fraudulent tomato conspiracy wherein many tomatoes identified as San Marzano are actually part
of a Mafia-led enterprise using Chinese goods. (Complaint, ¶¶ 8-16). Of course, Plaintiff cannot
actually make any factual connection between this alleged criminal activity and Cento, but the
mere existence of these allegations in his Complaint imply that a serious investigation was
performed, and that Defendant is a culprit in this criminal enterprise. In reality, nothing can be
further from the truth. Plaintiff had no basis in which to make these allegations against Cento in
his Complaint. Because Plaintiff’s erroneous Mafia and “low quality Chinese processed tomato”
allegations are “utterly lacking in support[,]” sanctions under Rule 11(b)(3) are warranted. First
Cent. Sav. Bank v. Meridian Residential Cap., No. 09-CV-3444 (DLI) (LB), 2011 U.S. Dist.
LEXIS 34234, at *5 (E.D.N.Y. Mar. 30, 2011) (citation omitted) (quoting Storey v. Cello Holdings,
Similarly, Plaintiff bases his frivolous Complaint on a New York Times animation graphic
that on its face cannot be about Defendant or its Products. Plaintiff’s counsel clearly failed to view
the entire animation. A review of the animation reveals no reference whatsoever to Defendant or
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its Products. (Declaration of Daniel S. Tyler (“Tyler Decl.”), ¶ 10). Furthermore, one slide from
[l]ast week in Brooklyn, craving a tomato sauce, I picked up a can of San Marzano
tomatoes, only to read in small print that they were grown in the United States. The
label was partly in Italian – “San Marzano,” “Pomodoro Pelati” – but the product
was American. How is this possible?
(Tyler Decl., ¶¶ 7-9) 3. Plaintiff does not allege that any of Defendant’s Products stated anywhere
on its packaging or labeling that they are “grown in the United States.” Nor could he, as the
Products correctly identify that they are grown in Italy. (Ciccotelli Decl. ¶¶ 4, 5, 7, 15, Ex. C
“Napoletano Affidavit”). Nor has the labeling of Defendant’s Cento San Marzano Tomatoes ever
contained the phrase “Pomodoro Pelati.” It is thus impossible that the New York Times author /
animator was looking at a can of Defendant’s products. It is therefore impossible that the New
York Times Animation concerned or even mention Defendant or its Products - yet Plaintiff’s
counsel decided to base the entire lawsuit on this animation. Consequently, any following slides
or conclusions from the animation, including the “HOW TO SPOT A FAKE” slide inserted into
Plaintiff’s Complaint, cannot and do not apply to Defendant’s Products. These material omissions
of fact merit sanctions against Plaintiff’s counsel. Ark. Teacher Ret. Sys. v. State St. Bank & Tr.
Co., No. 11-cv-10230-MLW, 2018 U.S. Dist. LEXIS 111409 (D. Mass. May 14, 2018) (“Rule 11
applies both to disclosures and omissions.”) (citing In re Ronco, Inc., 838 F.2d 212, 218 (7th Cir.
1988)); see also Gurman v. Metro Housing and Redevelopment Auth., 842 F. Supp. 2d 1151, 1154
(D. Minn. 2011) (“[A]s required by Rule 11(b)(3), plaintiffs’ factual contentions must ‘have
evidentiary support’ and must not be misleading by omission.”) (internal quotation omitted).
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See also https://www.nytimes.com/interactive/2015/08/16/opinion/sunday/food-chains-mystery-of-san-
marzano.html, Animation Slide Number 6 of 14 total slides (last accessed on April 4, 2019 at 6:08 p.m. CST).
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Plaintiff’s counsel clearly failed to review the entire animation, or even review the labeling of
webpage only results in four farming fields is completely untrue. Defendant’s Products are grown
in up to 40 fields exclusively and verifiably located in the Sarnese Nocerino area of Italy,
depending on demand of the growing season. (Ciccotelli Decl. ¶ 4-5). Plaintiff or his counsel either
did not make a reasonable attempt to enter multiple field codes, or carelessly entered a limited
number of lot codes. Either way, the evidence demonstrates that the “Find My Field” webpage
works properly and shows dozens more than four fields. Moreover, Plaintiff’s inability to operate
At best, Plaintiff’s counsel should be sanctioned for conducting no reasonable inquiry into
his source material, none of which bear any connection to Defendant or its Products. At worst,
Plaintiff’s counsel should be sanctioned for knowingly creating a wrongful association between
Defendant and these wrongful activities and unrelated sources. In either scenario, Plaintiff (and
his counsel) failed to allege facts concerning any aspect of Defendant’s farming practices, failed
to allege sustainable arguments for relief; and failed to withdraw the frivolous Complaint when
they were confronted with evidence that dooms their claims. This is the definition of sanctionable
conduct.
Plaintiff, bringing deceptive business practice and false advertising claims under New York
statutory and related common law (including fraud), fails to identify what statements on
Defendant’s product labeling are misleading or even which statements he relied upon in purchasing
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the products. (Complaint, ¶¶ 59-60, 72-75, 77-82). Plaintiff also fails to identify how Defendant’s
use of a specific third-party certifier misleads reasonable consumers. (Id. ¶¶ 47-48). Notably,
Plaintiff does not allege that Defendant’s Products are not actually certified by Agri-Cert and
ICEA. Nor does Plaintiff allege that Defendant failed to meet any governmental certification
requirements. Rather, Plaintiff erroneously asserts that there is only one entity that can certify San
Marzano tomatoes, and that Defendant’s products are not certified by that entity. (Complaint, ¶¶
15, 31-45). Plaintiff’s allegations create the false assumption that only one entity can certify San
Marzano tomatoes: the Consortium. (Complaint, ¶¶ 15, 45). That is demonstrably false, as even
participating members of the Consortium agree. (Ciccotelli Decl. ¶11, Ex. C “Napoletano
Affidavit”). A reasonable inquiry as required by Rule 11(b)(3) would have dispelled him of that
erroneous and unfounded belief. Having failed to conduct a reasonable inquiry, Plaintiff’s counsel
Defendant’s Products meet all European Union standards for certification of San Marzano
tomatoes. (Ciccotelli Decl. ¶ 7-11). The Agri-Cert certification documents constitute a complete
certification of the challenged Products and allow Defendant to label them as San Marzano
tomatoes in the United States. (Id.). As such, Plaintiff’s allegations that Defendant’s certifications
do not certify the entire product is baseless. Moreover, the Consortium, who Plaintiff erroneously
believes is the only appropriate San Marzanos certifier, confirms the origins and quality of
Having failed to perform even a cursory investigation into how San Marzanos tomatoes
are certified, Plaintiff presented a legal claim that was completely unfounded and frivolous: that
Defendant’s tomatoes are not certified by the “relevant authority.” (Complaint, ¶ 45). Plaintiff does
not even bother to state what claims he was misled by; what the appropriate “San Marzano
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guidelines” are (Id. ¶ 20); or what are the proper “identity and composition” requirements for
Defendant’s products. (Id. ¶ 47). As such, Rule 11 sanctions are necessary because a reasonable
pre-suit inquiry would have revealed that all of Defendant’s certifications are appropriate and are
applicable to its entire finished product, and that even the competing certifying entity that Plaintiff
contends is the only San Marzano certifier also stands by Defendant’s products. Moreover,
Plaintiff was put on notice of these undeniable facts and given “safe harbor” to withdraw the
Plaintiff’s legal claim is accordingly frivolous because there can be no wrongdoing where
a party merely uses a different certifying company for its products. Cento’s labeling accurately
informs consumers of its San Marzano certifications, and Plaintiff did not (and cannot) allege
otherwise. Having presented no specific label claim or statement as misleading, Plaintiff’s only
However, even if the Court finds Plaintiff’s legal claim is meritless or misguided but not
unwarranted under existing law, this should not change any analysis of Plaintiff’s failure to make
A baseless factual contention poses a greater threat to justice than a baseless legal
contention. The evidentiary foundation upon which an attorney rests his assertions
of fact is, for the most part, exclusively within the control of the attorney and his
client. In order to function, the court must repose trust in the attorneys who come
before it to make factual representations supported by evidence.
In re September 11th Liab. Ins. Coverage Cases, 243 F.R.D. 114, 124 (S.D.N.Y. 2007). As such,
Plaintiff’s frivolous factual allegations alone merit sanctions under Rule 11.
Finally, Plaintiff and his counsel cannot plausibly argue that they specifically identified
certain factual allegations as needing further investigation, as required by Rule 11(b)(3). When
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tying Defendant and its products to the Mafia or to a supposed “fraud” where “lower quality
Chinese processed tomato products” are marked as San Marzano tomatoes, Plaintiff did not qualify
these allegations are requiring further investigation. (Complaint, ¶¶ 13-16). When connecting the
New York Times animation to Defendant’s products, Plaintiff did not allege that additional
discovery would be needed to make the association. (Id. ¶¶ 17-19). Plaintiff did not claim that its
allegations concerning Defendant’s ICEA and Agri-Cert certifications were subject to further
inquiry. (Id. ¶¶ 20-25). Because Plaintiff did not “specifically so identif[y]” that he will need
further investigation or discovery of his most salacious claims, he is not saved from sanctions
V. CONCLUSION
Plaintiff claims that “Defendant’s claim of certification is a weak half-truth, without much
effort put in.” (Complaint, ¶ 42). In reality, Plaintiff’s entire lawsuit is a complete lie, with no
effort put in. Defendant asks that this Motion for Sanctions be granted, and that Plaintiff and
Plaintiff’s counsel, jointly be sanctioned by this Court in the form of Defendant’s attorneys’ fees
and costs associated with bringing this Motion and defending this lawsuit. Fed. R. Civ. P. 11(c)(4).
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