August 5, 2010 6:19 PM

Bogged Down in Cranberry Case, Ocean Spray Taps Latham

Posted by Charlie Mead

In a tale filled with allegations of furtive propaganda and false identities, Latham & Watkins is working to break up what it claims is a conspiracy aimed at undermining the country’s largest cranberry manufacturer.

On Monday, Ocean Spray Cranberries Inc. filed a lawsuit in U.S. district court in Boston claiming the company is the victim of a deceitful campaign hatched by rival Decas Cranberry Products Inc., according to an Ocean Spray press release. The suit seeks unspecified damages.

Latham partner Ethan Brown is advising Ocean Spray, which says it generated $2 billion in sales in 2009. The Latham team includes partners Margaret Zwisler and Alfred Pfeiffer. Latham attorneys did not return calls for comment.

At the heart of the suit are allegations involving a Web site, www.scamberry.org, and various social media tools that Ocean Spray contends are part of a surreptitious smear campaign orchestrated by Decas to hurt Ocean Spray’s business relationships and dealings. Both companies are based in Massachusetts.

The "Scamberry" campaign contends that Ocean Spray is harming the cranberry industry by using fewer berries to make its “Choice” sweetened dried cranberry product, which the company introduced in March 2009 as a lower-cost alternative to its other offerings in the same category.

The "Scamberry" concept first emerged in June, according to Ocean Spray's complaint, when Decas hired Boston-based InkHouse Media + Marketing to develop a "false and misleading social media campaign." Ocean Spray alleges that hiring InkHouse to launch a "Scamberry" Web site was a ploy by Decas to hide its role in the campaign. And after InkHouse said it would stop doing work for Decas, Ocean Spray claims, Decas announced that it had launched a new "Scamberry" site on July 22.

Ocean Spray claims that Decas purposely hid its involvement in related online activities, including the creation of a fictitious Facebook identity to publish “Scamberry” information under the guise of consumer advocacy, according to the complaint.

In an interview with The Am Law Daily, Decas CEO Chuck Dillon labeled the lawsuit--which names four Decas units, along with unnamed cranberry growers and handlers to be determined during the discovery process--a “totally frivolous” bullying tactic. Dillion says Ocean Spray's goal is to dissuade independent cranberry growers from signing onto an antitrust case that Decas says it is building against its larger rival

“By filing the suit with growers to be identified through discovery,” Dillon says, “they’re basically sending a veiled threat that if you sign up for that lawsuit--the antitrust one--you will be named in this lawsuit.”

“The bottom line is we filed a lawsuit against Decas for misleading and false statements,” says John Isaf, an Ocean Spray spokesman.

Conn Kavanaugh Rosenthal Peisch & Ford is handling the suit for Decas, with name partner James Kavanaugh, Jr., taking the lead. Kavanaugh did not respond to a request for comment.

The suit is the second in nearly two years between the two companies, report The Standard-Times and the Boston Herald. In 2008 Ocean Spray filed a patent infringement suit against Decas; Decas responded by countersuing. Those actions are pending.

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