Sean G. Kulkarni
A craving for hot samosas could prove difficult to satisfy in many parts of the United States, both in small towns and some large cities. Edison Township, New Jersey, however, is not one of those places. A virtual mecca for seekers of modern-day Indian fashion, jewelry and delicacies, Edison delivers to American samosa eaters what Philadelphia offers to cheesesteak fans or what only New Orleans could provide for a devout beignet lover.
For one group of sixteen samosa lovers, however, Edison may come to symbolize that nightmarish conjecture feared by vegetarian restaurant diners throughout the nation: a truly perverse form of caveat emptor.
On August 10, 2009, plaintiffs Durgesh Gupta and Sharad Agarwal placed an order for vegetarian samosas at Edison’s Moghul Express (“Moghul”). Agarwal specifically advised the clerk that he was placing the order on behalf of a larger group of strict vegetarians. The clerk informed the men that Moghul did not make meat-filled samosas at all, and for the avoidance of doubt, went ahead and wrote “VEG samosas” atop the food tray at the time of delivery. At the time of pickup, Agarwal asked for, and received, further assurance of the meatless contents of the snacks.
After consuming some of the samosas, the larger group of plaintiffs expressed concern that they were in fact eating meat (samosas are stuffed pastries, and so the underlying meat or vegetable content becomes visible only upon biting into or splitting apart the pastry shell). Upon receiving further telephone assurance from Moghul as to the meatless content of the samosas, the group continued eating for a time, but they decided eventually to return the remaining samosas to Moghul to verify the content. Once there, a different clerk advised the group that indeed, the samosas contained meat.
In filings before the New Jersey Superior Court (Law Division, Middlesex County), plaintiffs offered a copy of the restaurant’s menu that did in fact list “Vegetable Samosa” as an option and did not list a meat-filled alternative. A Moghul representative explained to the Court that a separate customer had placed an order for meat samosas at approximately the same time as Agarwal, and that the orders had been mixed up upon delivery. Upon realizing the mistake, Moghul staff prepared a fresh order of vegetable samosas for delivery to Agarwal, who accepted it without payment.
Plaintiffs decided to sue Moghul for negligence, negligent infliction of emotional distress (“NIED”), consumer fraud, products liability, and breach of express and implied warranties in connection with the samosa mix-up. In elaborating the nature of their “spiritual injury,” plaintiffs told the trial court: “Hindu vegetarians believe that if they eat meat, they become involved in the sinful cycle of inflicting pain, injury and death on God’s creatures, and that it affects the karma and dharma, or purity of the soul. Hindu scriptures teach that the souls of those who eat meat can never go to God after death, which is the ultimate goal for Hindus. The Hindu religion does not excuse accidental consumption of meat products.” Plaintiffs further explained that the religious violation of meat consumption requires participation in a religious purification ceremony along the Ganges River in Haridwar, Uttaranchal, India.
In addition to compensation for emotional distress, plaintiffs sought economic damages for the amount they would incur by virtue of having to participate in the required religious cleansing ceremony in India. On presentation of the evidence described above, the motion judge converted the Defendant’s initial motion to dismiss for failure to state a claim into a motion for summary judgment, determined that further discovery was not necessary to her decision, and granted the motion. Plaintiffs appealed, and the Superior Court, Appellate Division affirmed in part, reversed in part, and remanded.
Analysis and Decision
The Appellate Court first analyzed plaintiffs’ claims under the New Jersey Products Liability Act (“PLA”). Writing for the Court, Judge Edith K. Payne acknowledged that food cooked and sold by restaurants falls under the PLA, but explained that the PLA did not provide grounds for recovery because the plaintiffs’ claims were “not related to a defect in the samosas themselves.” Rather, the samosas were “safe, edible and fit for human consumption.” In other words, the PLA does not provide a recoverable basis where plaintiffs are simply provided with the wrong product, as a result of the defendant’s negligence or otherwise.
Plaintiffs also attempted recovery of damages under the New Jersey’s Consumer Fraud Act (“CFA”), alleging that Moghul “fraudulently and/or deceptively advertis[ed] the sale of vegetarian food to the Plaintiffs and instead, provid[ed] Plaintiffs with non-vegetarian food containing meat products.” The Court reversed the motion judge’s finding in part by ruling that Moghul’s clerk had in fact affirmatively misrepresented the contents of the purchased samosas, both orally and in writing on the food tray. Since an affirmative misrepresentation under the CFA does not require knowledge of its falsity or intent to deceive, no further discovery was required as to the clerk’s knowledge or motive in describing the content of the samosas to Agarwal.
However, plaintiffs’ CFA claim was dismissed because plaintiffs were unable to demonstrate any “ascertainable loss” (including, for example, “loss of moneys or property”) within the meaning of the statute. The Court noted specifically that Agarwal accepted a substitute order of conforming samosas without cost. Furthermore, the cost to cure an alleged spiritual injury (in the form of a purification ritual at the Ganges River) resulting from Moghul’s erroneous samosa delivery could not be categorized as either a loss of money or property under the CFA.
Furthermore, the Appellate Court dismissed plaintiffs’ negligence and NIED claims on the basis that plaintiffs had failed to offer evidence of physical injury, or even any demonstrable “severe mental or emotional harm,” as a result of the spiritually damaging samosa incident.
On a bright note for plaintiffs, the Appellate Court held that Moghul did breach its express warranty of fitness regarding the requested vegetarian samosas. The Appellate Court remanded to the lower court the question of whether the consequential damages claimed by plaintiffs — including the costs of Ganges purification — were in fact foreseeable by Moghul at the time its clerk assured Agarwal of the meat-free content of the karmically questionable samosas.
Gupta, et al. v. Asha Enterprises d/b/a Moghul Express & Catering, Co., 2011 WL 2749630 (N.J. Super. App. Div. 2011).
Art of Living Foundation Seeks Damages and Injunctive Relief from Critical Former Students on Defamation and Trade Secrets Claims
The U.S. chapter of the international Art of Living Foundation (“AoLF”) — based in Bangalore, India and directed by the popular spiritual leader Sri Sri Ravi Shankar — has filed suit in the Northern District of California against two former adherents of the organization. The former students became highly critical of AoLF and Shankar after leaving the organization, and have since taken to the blogosphere under anonymous pseudonyms “Skywalker” and “Klim” to press their case. Art of Living Foundation v. Does 1-10, 2011 WL 2441898 (N.D. Cal. 2011). Specifically, AoLF alleges that defendants have posted defamatory statements on their blogs, and illegally published trade secrets of the Foundation (trade libel and copyright infringement are also alleged in plaintiff’s complaint). In its prayer for relief, AoLF asked the Court for monetary damages and injunctive relief “restraining Defendants from operating the blogs and requiring that the blogs be removed from the Internet.”
AoLF first claims that the defendants use the blogs — titled “Leaving the Art of Living” and “Beyond the Art of Living” — to intentionally disparage and defame both the Foundation and its leader. For example, one blog states: “The truth is more disgruntled people should come out to do something about all the illegal activities that occur through and in his organization, ranging from exploitation, to swindling, to cheating, to physical abuse, to sexual harassment and fondling, etc.” Another statement adds: “the answer is obvious, the master is a charlatan (is a person practicing quackery or some similar confidence trick in order to obtain money) in disguise.”
The defendants initially sought protection for their statements as constitutionally protected criticism of a religious organization. However, writing for the Court, Judge Lucy H. Koh concluded that it was “unclear” whether AoLF was an actual religious organization. Judge Koh noted that AoLF’s mission as a non-profit corporation carried an arguably secular character: that is, to offer “courses that employ breathing techniques, meditation, and yoga, focusing on ‘Sudarshan Kriya,’ an ancient form of stress and health management via rhythmic breathing.” Moreover, to the extent that AoLF is in fact a religious organization, Skywalker and Klim appeared to direct their statements at AoLF’s business and financial practices, and alleged criminal activity, rather than at any particular religious conduct or religious ideology. As a result, the Court was free to analyze the dispute using “neutral, secular principles, without impermissible entanglement into religious doctrine.”
In assessing the defamatory quality of the statements, the Court was first tasked with resolving the legal question of whether the statements were actual assertions of fact or were instead “pure opinions,” as the latter garner First Amendment protection. In evaluating the broad context of the statements, the Court held that defendants’ overall blog content should be treated as constitutionally protected opinions rather than verifiable fact. Judge Koh explained that the overall tenor of the blogs was “obviously critical” of AoLF. The blogs offered such heated discussion and criticism of the Foundation and Ravi Shankar that readers would likely view the statements as opinion, rather than assertions of fact. While defendants’ criticisms of “fraud,” “embezzle[ment],” and “abuse” (e.g., “[n]one of this money goes toward helping any poor or disadvantaged people”) bear indicia of factual assertions, the Court found the overall character of these assertions to be figurative and hyperbolic. Reasonable readers of the blog would not confuse the accusations with particularized assertions of fact. For example, the statement “I am fully convinced that [AoLF] is front-end name for a group of fraudulent NGOs” would likely be viewed by readers as a single blogger’s opinion with respect to the Foundation’s financial transparency practices, and not a factual allegation of wrongdoing.
Based on this analysis, the Court granted defendants’ motion to strike the defamation claim, although AoLF was granted leave to amend its complaint.
AoLF intentionally withholds its “Sudarshan Kriya” breathing technique from written publication, but has prepared written materials on other topics for didactic and internal study purposes. AoLF claims that certain materials — including the Breathe Water Sound Manual — were the subject of a copyright registration claim, had independent economic value, and were wrongfully published by defendants on their blogs in June and July, 2010. Defendants, in turn, told the Court that the manuals were not actually trade secrets because the underlying techniques are well-known in the yoga community, and are generally not kept confidential.
In evaluating the trade secrets claim, the Court first noted that defendants’ decision to publish the materials had arisen from their protected freedom of expression on a “public issue” (i.e., the issue of whether AoLF is “basically a cult and a sham,” as generally claimed by defendants in their blogs). Nevertheless, Judge Koh pointed out that the “spiritual” nature of the works does not render the works ineligible for trade secrets protection. The Court confirmed that AoLF derives independent economic value from the secret teaching manuals (for example, by collecting course fees from students eager to learn the content of the manuals), and employs reasonable efforts to keep the manuals confidential, such as using password-protected electronic files and restricting circulation.
Regardless of whether the manuals and lessons are generally known to the public (either within or without the yoga community) the Court expressed skepticism as to whether the teaching manuals and lessons actually contain any “secret aspects.” After reviewing the manuals under seal, the Court pointed out that parts of the manuals contain simple biographical information about Ravi Shankar and the Foundation.
While the Court chose to deny defendants’ motion to strike the trade secrets claim, the Court held that AoLF could not obtain discovery with respect to that claim until it identifies, with reasonable particularity, the genuine secret aspects of its teaching lessons and manuals.
Sean G. Kulkarni is an International Trade and WTO Affairs attorney based in Washington, D.C. In addition to serving as a Co-Editor of India Law News, Sean works as an International Trade Policy Fellow at the Ways and Means Committee of the U.S. House of Representatives. Sean may be reached at firstname.lastname@example.org.