THE ROLE OF TWITTER
BPI's lawsuit cites other examples of what the company calls misleading and sloppy reporting by the news network.
Among them: Twitter exchanges between Jim Avila, the lead ABC reporter on the story and a defendant in the case, and meat industry officials and other critics of his reporting.
One of his tweets has become central to BPI's claims that the network falsely stated that LFTB is not meat. In that tweet last March, Avila wrote in a reply to a critical viewer that "no one said this slime is dangerous. It's just not what it purports to be. Meat. And if it's in ground beef it should be labeled."
ABC's lawyers have said in their court papers that this "single brief statement" was directed at "a very limited audience" and should be understood as protected opinion.
While BPI's lawsuit points to the tweet as an example of alleged false statements, Avila's remark could help ABC in other ways: It backs up the network's argument that its reporters did not say the product was unsafe.
The beef processor has also accused the network of ignoring comments and research from experts who provided a more positive view of BPI's product.
In its lawsuit, BPI described a telephone interview it said Avila conducted with an agricultural food-safety consultant, David Theno. According to the lawsuit, Theno told Avila that BPI's process was safe, but the reporter told him he wasn't credible and hung up on him.
Theno, who describes himself as a friend of the Roth family, told Reuters that Avila appeared to be pushing for quotes slanted against BPI and its product. Theno said he told the reporter he had been paid by the company previously for consulting work. The reporter said he was on deadline. The two continued to talk and then the line went dead, Theno said.
Thinking the call had been dropped, Theno said he called Avila back to see if they had been disconnected, but Avila replied that he had hung up. The conversation then grew heated, Theno recalled.
"He said, ‘fuck you' and hung up on me again," Theno said.
Avila, through an ABC spokesman, declined to discuss those phone calls.
Theno's comments were never used in the broadcasts.
In their court papers, the network's lawyers noted that the ABC reports informed the public about how BPI's product is perceived by both supporters and critics and that the reports included responses from the meat industry and information from academic experts in animal science and nutrition.
RESTRAINING ORDER
BPI has also sued some of the people ABC interviewed on air, including a former BPI quality assurance manager, Kit Foshee, for alleged false statements. Among them: Foshee told ABC that LFTB "will fill you up, but it's not going to do you any good."
In a follow-up story posted on ABC's web site, Avila reported that Foshee had been fired by BPI years earlier after complaining about some of the company's practices.
But ABC's stories did not mention that Foshee was involved in messy litigation with the company a decade ago.
Based on court files, Foshee was fired in late 2001. A few months later, BPI sued Foshee in South Dakota over allegations of theft of trade secrets. Foshee counter-sued, claiming he had been wrongfully terminated. A jury ruled against Foshee on his claims.
Last summer, a few months after his ABC interview, Foshee drove onto the parking lot of BPI's headquarters and spoke with employees. "Kit stated it wasn't over and that he looked forward to more things happening to Eldon Roth," according to a copy of an affidavit of one BPI employee who spoke with Foshee. BPI and the Roths returned to South Dakota state court last summer and were granted a restraining order against Foshee. Foshee's lawyer, Steven Sanford, said the restraining order does not matter to his client "since he has no desire ever to return."
BPI has also disputed how ABC characterized others who appeared in the broadcasts. When the first "pink slime" broadcast aired last March, Diane Sawyer said "a whistleblower has come forward" to tell the public about the processed beef. She was referring to former USDA scientist Gerald Zirnstein, who is credited with coining the term "pink slime."
Zirnstein is also a defendant in the case. His attorney, William Marler, told Reuters his client is not a whistleblower.
A court affidavit from the retired scientist also said ABC approached him to do the interview about BPI - not the other way around.
In the coming weeks, U.S. District Judge Karen Schreier in Sioux Falls, South Dakota, is expected to rule on whether the lawsuit will stay in her courtroom, as ABC wants, or go back to state court, where it was originally filed.
If ABC then wins on its motion to dismiss, the claims are knocked out. If not, the case would move toward trial.
Even before ABC began airing its "pink slime" reports, BPI and the ground beef business were coming under closer scrutiny. McDonald's Corp said in early 2012 that McDonald's USA had stopped purchasing ammonium hydroxide-treated lean beef trimmings in an effort to make its global beef supply chain consistent.
Today, the U.S. meat industry has changed how it makes ground beef, turning to more expensive types of beef trimming and other parts of the beef carcass. At the same time, retail prices for ground beef are soaring as cattle ranchers and beef packers struggle with elevated feed prices resulting from last summer's drought in the U.S. Midwest.
One beef processor wasn't able to keep up. AFA Foods Inc in Pennsylvania filed for Chapter 11 bankruptcy last April and blamed its woes on general media coverage of "pink slime."
Cargill, the world's largest ground beef producer, said it, too, has seen an impact on its business from news stories and social media chatter about "pink slime." Cargill makes a product similar to BPI's, though it relies on different technology and on citric acid, rather than ammonium hydroxide, as a processing agent to kill potential pathogens.
Last spring, Cargill told Reuters, it saw an 80 percent drop in production volume of finely textured beef. Though its production volume is still far less than a year ago, a company spokesman said demand is slowly returning.
These days, ground-beef manufacturers have the option to label their packaging to disclose the presence of LFTB, a change that the USDA approved after the ABC broadcasts began. Previously, LFTB was not listed as an ingredient: Federal regulators said it was no different than other protein found in ground beef. BPI has said it supports the rule change, saying it will help restore consumer confidence in its product.
BPI has been trying to woo back customers. Hy-Vee Inc, the Midwestern grocery retailer headquartered in Iowa, dropped ground beef with LFTB in it during the height of the general media coverage of "pink slime."
But a company spokeswoman said the retailer soon reversed that decision.
Customers in areas where BPI had factories demanded Hy-Vee bring it back, the retailer said. People wanted to buy it.
At a Hy-Vee store in South Sioux City, Iowa, part of the refrigerated meat case is stocked with tube-shaped packages of ground beef. They have a small stamp on the back that reads: "contains lean finely textured beef."
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