Kent Spuhler, Esq. October 13, 2011
Executive Director
Florida Legal Services, Inc.
2425 Torreya Drive
Tallahassee, FL 32303
(850) 385-7900

Dear Mr. Spuhler:

The undersigned individuals and organizations committed to promoting the economic and social rights of workers write to express our deep concern regarding the lawsuits filed by Florida Legal Services against corporations participating in the Coalition of Immokalee Workers’ (CIW) Fair Food Program. These class actions purport to be brought on behalf of individuals who harvested tomatoes in southwest Florida before November 2010, a period of time when the Fair Food Program created by the CIW’s agreements with the corporations was not yet in operation due to the tomato growers’ refusal to “pass through” the “penny per pound” bonus to farmworkers. The sole legal claim presented in these suits is for breach of contract, premised on the factual allegation that during the pre-November 2010 period each company “failed to pay the additional penny per pound for Florida tomatoes promised in its agreement with the Coalition of Immokalee Workers.” As we explain below, we strongly believe that the litigation you have initiated is misguided and ultimately harmful to the interests of farmworkers.

We understand that the CIW’s agreements with the corporations are confidential in order to protect the companies’ supply chain information, and that you therefore have not seen them. However, we also understand that the CIW sent a letter on May 9, 2011, to Florida Legal Services in an effort to dissuade you from pursuing this course of conduct. That letter explained what each corporation had promised in its agreement with the Coalition of Immokalee Workers thus:

[your] concerns are premised on a central misconception regarding the Fair Food Premium system established through the CIW’s Fair Food agreements with various purchasers of Florida tomatoes. I am happy to explain how the system actually works.

Supplemental payments under the Fair Food Program, which are funded by participating purchasers of Florida tomatoes through a price premium they pay for those tomatoes, represent a weekly bonus provided by participating growers. The money is not, and never has been, passed through to workers in the form of a salary increase. I believe you have independent verification of this fact from the pay stubs you have seen, which indicate, as a separate line item, varying amounts of additional compensation each week for workers at participating farms. Indeed, it was very important to almost all of the participating buyers that the additional money they agreed to pay for Florida tomatoes be treated as a Fair Food premium (akin to a fair trade premium) and not as salary.

….during the 2007-08, 2008-09 and 2009-10 tomato seasons, no grower had a contractual obligation with the CIW or with any purchaser of Florida tomatoes (at least any that had an agreement with the CIW) to participate in the Fair Food bonus system. Rather, the system was predicated upon the willingness of the growers to participate. During those seasons, probably due to pressure from the FTGE [Florida Tomato Growers Exchange], not one of the growers was willing to do so.

The Special Comment on the CIW’s website (www.ciw-online.org) explains how the CIW and the corporations agreed to a system for the tracking of funds during the period when the growers refused to participate and for the distribution of these funds to current workers after the Fair Food Program was in place:

When the members of the Florida Tomato Growers Exchange decided in 2007 not to participate in the Fair Food Program, the fast-food companies agreed to calculate and set aside the amount of the price premium they would have paid if the Program had been operative. For YUM and McDonald’s, both of which signed agreements when FTGE members were still participating in the Fair Food Program, the decision to set aside the price premium amount was an entirely voluntary show of good faith . . . For the other companies, the agreements specified how to account for the money they would have paid if the growers were participating, and how to pay that money out, prospectively to workers then in the workforce, once the growers resumed participation.

Moreover, we have been informed that — prior to filing this suit — Florida Legal Services was aware that the additional penny per pound funds promised in the agreements with the CIW were in fact being paid. The attorney in your office handling this matter acknowledged this in a letter to one of the corporations dated May 16, 2011:

I was delighted to hear that [the corporation] is in the process of transmitting to its suppliers the “penny per pound” funds relating to Florida tomatoes….

It thus appears that the CIW made clear well before the suits were filed that the agreements did not include any form of wage increase (salary or bonus) during the period addressed in the lawsuit, and they have explained clearly that the corporations instead agreed to an accounting of the money that would have been paid if the growers had cooperated and the system had been in place during that time. The corporations made a commitment to pay those funds out as a bonus during future seasons to current (not previous) workers. It also is clear that your office knew these funds were being paid out in the manner promised.

While your office may believe that the CIW and its corporate partners should have agreed to some sort of retrospective payment system, the parties to the agreements deliberately settled upon a different course. Moreover, statements made by your attorney in the May 16th letter referenced above demonstrate the reasonableness of their decision to pay the funds prospectively to current workers. He refers to “the monumental effort needed to distribute these funds” under a retrospective system, which would require locating workers who have left the area and verifying the identities of those workers who might be found. He also explains that:

… the growers are ill-equipped to undertake the monumental effort needed to distribute these funds. Many, if not most, of the workers due the supplemental payments from [date] through 2010 no longer work for the growers. Seeing that these former employees receive the payments is a far more daunting task than the “pass through” program . . .

… First, the workers due the back wages must be identified. Given the passage of time and the undoubted loss of shipping records for at least a portion of this produce, it seems futile to try to determine precisely which workers picked the tomatoes which ended up being purchased by [the corporation] and its suppliers. …

The thornier problem is notifying the [previous] workers of the availability of these funds, verifying their identities and transmitting the funds to them.

Under the prospective system to which the corporations agreed, all the money has been and continues to be paid directly to farmworkers in a timely manner.

In light of the above, we are concerned that FLS chose to proceed with this litigation which challenges an important, effective and valuable program based on a groundless legal claim. It is particularly troubling since your office was directly informed in a letter from the CIW dated April 25, 2011, that this lawsuit would be damaging to the campaign and to farmworkers:

You can imagine how such a false claim is inherently harmful to the CIW and the Fair Food Program generally, and how it might understandably discourage other major companies from joining the Program. What you might not fully appreciate, however, is that the size of the bonus that workers receive under the Fair Food Program is directly related to the number of corporate purchasers participating in the Program. Therefore, efforts to undermine the credibility of the CIW and the Fair Food Program, simply put, cost farmworkers money.

In summary, we find it difficult to discern why FLS would proceed to file what it knew or should have known would be a damaging suit, which the complaint indicates is based solely on a reading of a press release, and which is in contradiction to clear explanation and documentation provided by a deeply respected community organization.

We are concerned that, after being informed that your underlying assumptions were incorrect, you nonetheless forged ahead. The Fair Food Program has already produced significant, documented improvements in the lives of tomato workers in addition to the increased income provided by the payment of the Fair Food bonus, including implementation of a transformative worker-led system to identify and correct a range of abuses quickly and effectively. Given that the allegations and demands in these suits so clearly threaten to undermine the Fair Food Program, your actions appear inexplicable.

We therefore ask you to reconsider your course and immediately initiate a good faith effort to undo the harm that has already been caused.

Sincerely,

National Economic and Social Rights Initiative (NESRI)
90 John Street, Suite 308
New York, NY 10038
(212) 253-1710

Center for Constitutional Rights (CCR)
666 Broadway, 7th floor
New York, NY 10012
(212) 614-6464

Robert F. Kennedy Center for Justice and Human Rights
1367 Connecticut Avenue, N.W. Suite 200
Washington D.C. 20036
(202) 463-7575