Kubick v. Whole Foods Market Inc.

Filing 83

ORDER GRANTING IN PART AND DENYING IN PART 70 Motion for Summary Judgment. Signed by Judge Sam Sparks. (dl)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

WFM PRIVATE LABLE, L.P.,

Cross-Claimant,
-vs-

CAUSE NO.:
A-14-CV-01013-SS

1048547 ONTARIO, INC. d/b/a

SKOTIDAKIS GOAT FARM,
Cross-Defendant.

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause,

and specifically Cross-Claimant WFM Private Label, L.P. (Whole Foods)' Motion for Summary
Judgment [#70], Cross-Defendant 1048547 Ontario, Inc. d/b/a Skotidakis Goat Farm (SGF)'s
Response [#77] in opposition, and Whole Foods' Reply [#79] thereto.' Having considered the
case file and the applicable law, the Court enters the following opinion and order.

Background
This is a contract dispute case.

Whole Foods contracted with SGF to supply Greek

yogurt for sale under the Whole Foods Market 365 Everyday Value private label. Some yogurt
contained higher sugar content than disclosed on the product labels, resulting in a product

withdrawal, numerous consumer lawsuits, and other expenses. Whole Foods and SGF dispute
liability under their contract.
In 2012, Whole Foods and SGF executed a vendor agreement in which SGF agreed to

supply Whole Foods various plain and flavored Greek yogurt products. Mot. Summ. J. [#70-3]

Whole Foods' reply includes two separate motions incorrectly filed as exhibits. See Reply [#79-lOJ
Objections to Skotidakis Deci.; Reply [#79-12] Mot. to Strike Weiland Aff. Pursuant to the Court's Administrative
Policies and Procedures for Electronic Filing, each filing must consist of one pleading. The objections raised to the
declaration of Skotidakis are deemed irrelevant in light of the rulings in this Order. Whole Foods' motion to strike
the affidavit of Weiland is DENIED without prejudice for re-urging before trial.

/

Ex.

3

(Vendor Agreement). SGF provided nutritional information for the yogurt. Resp. [#77] at

3. In doing so, SGF relied on 2010 and 2011 nutritional tests performed by Maxxam Analytics

International Corporation (Maxxam), a third-party laboratory company based in Canada.
Mot. Summ. J. [#70-7] Ex. 7 (SGF Specifications E-mail).

nutritional information before the products were sold.

See

See

id;

SGF reviewed and approved

Mot. Summ. J. [#70-6] Ex. 6

(Technical Specifications).
In late September 2013, SGF received updated test results from Maxxam for several of its

yogurt products. Resp. [#77] at 4-5. One of the products
also a product SGF supplied to Whole Foods.

See

id.

testedthe

0% plain

yogurtwas

The new Maxxam test results reflected

higher sugar content than the previous test results relied upon for product labeling. Compare
Mot. Summ. J. [#70-12] Ex. 12 (SGF Consumer Reports E-mail) at 7 (indicating 1.8 grams of

total sugars per 100 grams of 0% plain yogurt), with SGF Specifications E-mail at 7 (indicating
1.0 grams

of total sugars per 100 grams of 0% plain yogurt). SGF did not notify Whole Foods of

the new test results at the time. Resp. [#77] at 4.

Shortly thereafter, in early November 2013, Whole Foods contacted SGF with a customer

inquiry regarding nutritional information of its plain yogurt products.

See

Mot. Summ. J. [#70-

13] Ex. 13 (Customer Inquiry E-mail). The customer asked how the sugar content

of the Whole

Foods Market 365 Everyday Value private label plain yogurt was "significantly lower" than

other Greek yogurt brands. Id. SGF assisted Whole Foods in responding to this and other
customer inquiries, but again did not notify Whole Foods of the new Maxxam test results.
id.;

See

Mot. Summ. J. [#70-14] Ex. 14 (another customer inquiry).

On July 14, 2014, Consumer Reports contacted Whole Foods for an upcoming article on
the sugar content of the Whole Foods Market 365 Everyday Value private label plain yogurt.

See SGF Consumer Reports E-mail at 3-4. Consumer Reports notified its nutritional testing

showed Whole Foods' plain yogurt contained five times the sugar content listed on the product
labeling. Id; see also Mot. Summ. J. [#70-17] Ex. 17 (Consumer Reports Article). Whole Foods

requested input and any additional nutritional testing from SGF. See SGF Consumer Reports
mail ati.

SGF sent Whole Foods the 2013 Maxxam test results on the same day.

E-

See id.

Consumer Reports published its article on July 17, 2014. See Consumer Reports Article.
In August 2014, Whole Foods voluntarily withdrew the Whole Foods Market 365

Everyday Value private label plain yogurt after confirming the sugar content of the yogurt
exceeded the sugar content listed on the product label. See Mot. Summ. J. [#70] at 5-7; see also
Mot. Summ. J. [#70-20] Ex. 20 (Test Results).

Eleven putative class action lawsuits were filed against Whole Foods and its affiliates for
the mislabeling of sugar content on the company's plain yogurt. See Mot. Summ. J. [#70-18] Ex.
18

(Underlying Lawsuits). The lawsuits were centralized before this Court by the Judicial Panel

on Multidistrict Litigation. See In Re: Whole Foods Market, Inc., Greek Yogurt Marketing and

Sales Practices Litigation, No. 1:14-mc-02588-SS (W.D. Tex. Dec, 12 2014).
On September 5, 2014, SGF confirmed its intent to indemnify Whole Foods in the

Underlying Lawsuits. See Mot. Summ. J. [#70-26] Ex. 26 (Indemnity Letter). Five days later,
Whole Foods effectively terminated the Vendor Agreement by permanently discontinuing all

plain and flavored private label yogurt products from SGF, citing "allegations made relating to
products produced by [SGF]." Mot. Summ. J. [#70-33] Ex. 23 (Termination Letter). SGF made
two payments to Whole Foods totaling $75,000 for litigation expenses incurred in the

Underlying Lawsuits.

Resp. [#77] at 15.

Whole Foods settled the Underlying Lawsuits in

November 2016. See Mot. Summ. J. [#70] at 8.

3

In July 2015, SGF initiated a lawsuit against Maxxam in the Ontario Superior Court of

Justice for inaccuracies in the 2010 and 2011 Maxxam nutritional tests SGF relied upon in its

contract with Whole Foods. See Mot. Summ. J. [#70-9] Ex. 9 (Maxxam Lawsuit). SGF asserted

Maxxam's testing was "wholly inaccurate and the amount of the total sugars in the yogurt were
under-reported." Id. at 5.
In this case, Whole Foods filed a crossclaim against SGF, asserting six claims for breach

of contract and fraud. See Am. Cross-Compi. [#37] at ¶J 57-100. SGF filed one counterclaim
for breach of contract. See Am. Counterclaim. [#49] at ¶J 13-21. Whole Foods moves for

summary judgment on its affirmative claims and SGF's counterclaim. See Mot. Summ. J. [#70].
The motion is fully briefed and ripe for consideration.

Analysis
I.

Legal StandardSummary Judgment
Summary judgment shall be rendered when the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine dispute as to any material fact
and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Celotex Corp.

v.

Catrett, 477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504 F.3d 505, 508

(5th Cir. 2007). A dispute regarding a material fact is "genuine" if the evidence is such that a

reasonable jury could return a verdict in favor of the nonmoving party. Anderson

v.

Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the

court is required to view all inferences drawn from the factual record in the light most favorable
to the nonmoving party. Matsushita Elec. Indus. Co.

v.

Zenith Radio, 475 U.S. 574, 587 (1986);

Washburn, 504 F.3d at 508. Further, a court "may not make credibility determinations or weigh

4

the evidence" in ruling on a motion for summary judgment. Reeves

v.

Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.
Once the moving party has made an initial showing that there is no evidence to support

the nonmoving party's case, the party opposing the motion must come forward with competent
summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at
586. Mere conclusory allegations are not competent summary judgment evidence, and thus are

insufficient to defeat a motion for summary judgment. Turner

476 F.3d 337, 343 (5th Cir. 2007).

v.

Baylor Richardson Med. Ctr.,

Unsubstantiated assertions, improbable inferences, and

unsupported speculation are not competent summary judgment evidence.

The party

Id.

opposing summary judgment is required to identify specific evidence in the record and to
articulate the precise manner in which that evidence supports his claim. Adams
Indem. Co.

of Conn., 465 F.3d 156,

v.

Travelers

164 (5th Cir. 2006). Rule 56 does not impose a duty on the

court to "sift through the record in search of evidence" to support the nonmovant's opposition to
the motion for summary judgment. Id.

"Only disputes over facts that might affect the outcome of the suit under the governing
laws will properly preclude the entry of summary judgment."

Anderson, 477 U.S. at 248.

Disputed fact issues that are "irrelevant and unnecessary" will not be considered by a court in
ruling on a summary judgment motion. Id.

If the nonmoving party fails to make a showing

sufficient to establish the existence of an element essential to its case and on which it will bear
the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.

5

II.

Application

A.

Whole Foods' Breach of Contract Claims
The elements of a claim for breach of contract under Texas law are: (1) a valid contract

between the plaintiff and the defendant, (2) performance or tender of performance by the
plaintiff, (3) breach by the defendant, and (4) damage to the plaintiff as a result of the breach.

Lawyers Title Ins. Corp.

v.

Doubletree Partners, L.P., 739 F.3d 848, 858 (5th Cir. 2014).

However, "when one party to a contract commits a material breach of that contract, the other

party is discharged or excused from further performance." Mustang Pipeline Co., Inc.

v.

Driver

Pipeline Co., Inc., 134 S.W.3d 195, 196 (Tex. 2004).
As explained below, Whole Foods has established liability for breach of contract as a

matter of law. Damages will be determined at a later time.2
1.

Failure to Indemnify and Defend

Whole Foods requests summary judgment on its claim SGF breached the Vendor

Agreement by failing to indemnify against losses and defend against claims asserted in the
Underlying Lawsuits. See Mot. Summ. J. [#70] at 11-12. SGF opposes the requested relief,
arguing Whole Foods committed a prior material breach of the Vendor Agreement by

terminating the relationship with SGF prematurely and without cause. See Resp. [#77] at 8-10.
Whole Foods' prior breach, SGF contends, discharges SGF's duties under the contract. Id.

Most elements of Whole Foods' claim are undisputed. The Vendor Agreement required
SGF to "indemnify and hold harmless and defend [Whole Foods] from and against any and all

Losses" caused in whole or in party or arising from, among other things, "the failure or alleged
2

The Vendor Agreement entitles Whole Foods to "reasonable" fees and expenses. See e.g., Vendor
Agreement ¶ 6(b), 11(d). Generally, reasonableness is a question of fact for the jury to decide. See Yowell v.
Seneca Specialty Ins. Co., 117 F. Supp. 3d 904, 911 (ED. Tex. 2015) ("The reasonableness of attorney's fees is a
question of fact for the jury"); see also Roth v. JPMorgan Chase Bank, NA., 439 S.W.3d 508, 514 (Tex. App.EI
Paso 2014, no pet.) ("The reasonableness of attorney's fees is generally a fact issue.").

failure of a Product to comply with any claim or representation on its label."

Agreement at ¶ 11.

See

Vendor

SGF did not fully indemnify or defend Whole Foods in the Underlying

Lawsuits arising from the mislabeling of sugar content in SGF-supplied yogurt. As a result,
Whole Foods suffered damages, including attorney fees, settlement expenses, and other costs.
As noted above, SGF's only argument in opposition to summary judgment is Whole

Foods committed a prior material breach of the Vendor Agreement by terminating the agreement

prematurely and without cause. Resp. [#77] at 8-10. However, Whole Foods was permitted to
terminate the agreement "at any time for any reason."

See

Vendor Agreement at ¶ 14. Thus,

SGF's argument that the Vendor Agreement was terminated prematurely or without cause lacks
merit. Exercising of rights under the Vendor Agreement does not establish a prior breach, much
less a prior material breach discharging SGF of its indemnity and defense obligations.

Accordingly, Whole Foods is entitled to summary judgment on its breach of contract
claim related to SGF's failure to indemnify and defend.
2. Failure to Pay Reasonable Expenses of Withdrawal

Whole Foods also moves for summary judgment on its claim SGF breached the Vendor

Agreement by failing to pay reasonable expenses for its voluntary yogurt withdrawal.

See

Mot.

Summ. J. [#70] at 12. As with the claim above, SGF argues Whole Foods prior material breach

discharged SGF's obligations to pay for the withdrawal.

See

Resp. [#77] at 10. SGF also

challenges Whole Foods' third-party test results and expense documentation. Id. at 11.
In the Vendor Agreement, SGF agreed "to pay all reasonable expenses" associated with
the withdrawal or recall if any part of the product shipment "fails to comply with any Applicable

Law or any of the representations, warranties or covenants made by Vendor in this agreement."
See

Vendor Agreement at ¶ 6. Examples of representations and warranties SGF made were its

7

yogurt products "would be free from defects," "will not include an illegal, misleading or untrue
label claim," and "will not otherwise be misbranded within the meaning of Applicable Law." Id.
at

11

2(a).
SGF breached its duty to pay reasonable expenses associated with Whole Foods' yogurt

withdrawal. In August 2014, Whole Foods voluntarily withdrew its private label plain yogurt
from the market after confirming with third-party testing that the sugar content of the yogurt was
higher than that disclosed on the product label as reported in the Consumer Reports Article.

See

Test Results. The Maxxam 2013 test results SGF sent to Whole Foods also reflected higher
sugar content.

See

Consumer Reports E-mail at 7.

SGF confirmed the same in its lawsuit

against Maxxam, stating the sugar content it relied upon for product labeling was "wholly
inaccurate and the amount of the total sugars in the yogurt were under-reported."

See

Maxxam

Lawsuit at 5. SGF was obligated under the Vendor Agreement to pay reasonable expenses
associated with the withdrawal of the mislabeled

yogurt.3

SGF did not pay for the withdrawal

expenses, thereby causing damages to Whole Foods.

SGF's arguments against summary judgment are unavailing. First, SGF argues Whole
Foods' termination of the Vendor Agreement was a prior material breach that discharged its
obligations to pay for recall expenses.

See

Resp. [#77] at 10. As explained above, SGF has

failed to establish a prior material breach by Whole Foods.

See supra

Section II.A. 1. Second,

SGF objects to Whole Foods' third-party test results as hearsay and unauthenticated. See Resp.
[#77] at 11.

Test results aside, SGF's own statements confirm the inaccuracy of the sugar

SGF does not concede in its briefing that the labeled sugar content on the plain yogurt supplied to Whole
Foods was inaccurate. However, SGF's statements in the Maxxam Lawsuit and the testimony of its employees in
this case demonstrate there is no factual dispute on this issue. See Reply [#79-2] Ex. 43 (Hamelin Dep. Tr.) at 1-6
(agreeing the labeled sugar content on plain yogurt was incorrect as confirmed by the 2013 Maxxam test results);
Reply [#79-3] Ex. 44 (Plagakis Dep. Tr.) at 5 (confirming labeled sugar content on plain yogurt was incorrect as
confirmed by 2014 Maxxam test results).
8

content on the plain yogurt labels, triggering SGF's obligation to cover withdrawal expenses for
the mislabeled yogurt. Finally, SGF objects to Whole Foods' internal spreadsheets tracking

recall expenses as being hearsay and unauthenticated. Id. Whole Foods' supporting affidavit
authenticates the evidence and complies with the business record exception to hearsay.
Reply [#79-7] Cimbala Decl.

See

Today's order does not prevent SGF from challenging the

reasonableness of any expenses at trial.
To summarize, the Court grants Whole Foods summary judgment on its breach of

contract claim related to SGF's failure to pay reasonable product withdrawal expenses.
3. Breach of Other

Contract Provisions

Whole Foods also requests summary judgment on remaining breach of contract claims,
including: (1) inaccurate sugar disclosures in violation of ¶ 2 and ¶4 of the Vendor Agreement,
and (2) failure to notify of the 2013 Maxxam test results in violation of ¶

5

of the agreement.

See

Mot. Summ. J. [#70] at 12-13. Summary judgment is appropriate on both claims.
a.

Sugar content disclosure

As noted above, SGF made certain representations, warranties, and covenants in the

Vendor Agreement regarding yogurts products it supplied to Whole Foods.

See

Vendor

Agreement at ¶ 2 (reciting representations, warranties, and covenants, including yogurt products
"would be free from defects," "will not include an illegal, misleading or untrue label claim," and
"will not otherwise be misbranded within the meaning of Applicable Law.");

see also

Id.

at ¶ 4

(stating SGF "will be solely responsible for confirming that labels and packaging are in

compliance with all Applicable Laws."). SGF breached these contractual obligations to Whole

Foods' detriment by providing products labeled with inaccurately low sugar content.

SGF does not identify a genuine issue of material fact to avoid summary judgment. First,

SGF submits it had no reason to doubt the accuracy of the 2010 and 2011 Maxxam test results on

which it relied for its original sugar content disclosure.

See

Resp. [#77] at 12. Whether SGF had

reason to question the test results is irrelevant because the above-referenced contract provisions
do not depend on SGF's subjective belief in the test results. SGF also contests Whole Foods' use

of statements from SGF' s 2015 lawsuit against Maxxam to "retroactively establish a breach of
the Vendor Agreement."

See

Resp. [#77] at 12.

In that lawsuit, SGF alleged Maxxam's

testingthe same testing SGF relied upon for its original

sugar content

disclosurewas "wholly

inaccurate and the amount of total sugars in the yogurt were under-reported by Maxxam." Id. at
5.

SGF's statements against Maxxam confirm the inaccuracies of the yogurt labeling, regardless

of when those statements were made.
Accordingly, SGF breached the Vendor Agreement by providing inaccurate sugar content
disclosures for its yogurt.
b. 2013 Maxxam test results

In the Vendor Agreement, SGF agreed "to notify [Whole Foods] promptly if any Product

Test performed according to this Agreement or otherwise detects an undisclosed allergen or
otherwise indicates the Product may not comply with Product Specifications."

Agreement at ¶ 5(c).
September 27, 2013.

See

Vendor

SGF received and reviewed the 2013 Maxxam test results around
See

Mot. Summ. J. [#70-11] Ex.

11

(Plagakis Dep. Tr.) at 6-9. These

results indicated SGF's plain yogurt did not comply with the sugar content disclosure in the
product specifications.

See

Reply [#79-2] Ex. 43 (Hamelin Dep. Tr.) at 1-6 (agreeing the

labeled sugar content on plain yogurt was incorrect as confirmed by the 2013 Maxxam test
results). SGF breached its duty for prompt notification by waiting over nine months to disclose

10

the test results to Whole Foods. See Resp. [#77] at 6 (confirming 2013 Maxxam test results were
sent to Whole Foods on July 14, 2014).
SGF submits it had no obligation to disclose the 2013 Maxxam test results to Whole

Foods because the tests were not initiated or performed at the request of Whole Foods or

pursuant to the Vendor Agreement.

Resp. [#77] at 12.

This argument ignores the broad

language of the contract in which SGF agreed to promptly notify Whole Foods if any test

"performed according to this Agreement or otherwise" indicated the yogurt did not comply with
the product specifications. See Vendor Agreement at ¶ 5(c) (emphasis added). Put another way,
SGF was obligated to notify Whole Foods of any test indicating non-compliance with the

product specifications, regardless of whether the test was performed pursuant to the Vendor
Agreement.
In short, Whole Foods has established another breach of the Vendor Agreement in SGF's

failure to promptly notify of the 2013 Maxxam test results.
B. Whole Foods'

Fraud Claims

Whole Foods also moves for summary judgment on its three fraud claims: (1) fraud by

omission relating to SGF's alleged failure to disclose the September 2013 test result; (2) fraud by
misrepresentation relating to SGF's alleged commitment to indemnify WFMPL; and
(3) fraudulent inducement relating to SGF's use of the 2010 and 2011 Maxxam test results. See

Mot. Summ. J. [#70] at 13-17.

Unlike breach of contract claims, "summary judgment is rarely proper in fraud cases

because the intent required to establish fraud is a factual question uniquely within the realm of
the trier of fact because it so depends upon the credibility of witnesses." Rimade Ltd.

v.

Hubbard

Enterprises, Inc., 388 F.3d 138, 144 (5th Cir. 2004) (internal quotations and citations omitted).

11

While Whole Foods has presented circumstantial evidence to support its fraud claims, such

evidence does not establish the requisite intent as a matter of law. Accordingly, the Court denies
Whole Foods' request for summary judgment on its fraud claims.
C. Whole Foods' Request for Exemplary Damages

According to Whole Foods, it is also entitled to exemplary damages because of SGF's
"fraud, malice, and/or gross negligence."

See

Mot. Summ. J. [#70] at

damages are foreclosed by the Vendor Agreement.
waive all rights to punitive

damages").4

See

1

7i 8.

Exemplary

Vendor Agreement at ¶ 16 ("The parties

Thus, Whole Foods' request for summary judgment on

exemplary damages is denied.
D. SGF's Breach of Contract Counterclaim

SGF asserts a counterclaim for breach of contract based on Whole Foods' premature

termination of the Vendor Agreement without cause, failure to pay for discontinued product
supply, and failure to indemnify or release SGF from losses caused by Whole Foods' breach.
See

Am. Counterclaim. [#49] at ¶J 13-21.

Whole Foods seeks summary judgment on SGF's counterclaim, asserting termination of
the Vendor Agreement was for cause, and regardless, all obligations for termination without
cause were fulfilled.

See

Mot. Summ. J. [#70] at 18-19.

SGF contends genuine issues of

material fact remain as to whether Whole Foods' termination was for cause, and whether Whole

Foods complied with obligations for termination without cause. Resp. [#77] at 2 1-26.

Whole Foods argues SGF waived this argument because it was not pleaded as an affirmative defense or
raised during discovery. Failure to plead a defense does not result in automatic waiver. See Lee v. United States,
765 F.3d 521, 524 (5th Cir. 2014) (stating if "a defendant raises the issue at a pragmatically sufficient time, and if
the plaintiff is not prejudiced in its ability to respond, there is no waiver of the defense"). Here, trial is not set until
February 2019, and Whole Foods has not been prejudiced in its ability to respond to the argument. Based on these
facts and the express language of the agreement, the Court declines to find waiver.

12

As a preliminary matter, Whole Foods' termination of the Vendor Agreement was for

cause.

Whole Foods sent its Termination Letter to SGF on September 10, 2014.

Termination Letter at

1.

See

The Termination Letter references "allegations related to products

produced by [SGF]," but does not explicitly state termination was for cause. See id. However,
prior to Whole Foods sending the Termination Letter, SGF breached the Vendor Agreement by
providing inaccurate sugar content disclosures in violation of ¶ 2 and ¶4 of the agreement, and

failing to notify of 2013 Maxxam test results in violation of ¶

5

of the agreement. See supra

Section II.A.3. In light of SGF's prior breaches, Whole Foods' termination of the Vendor

Agreement was for cause. See Vendor Agreement at ¶ 14 (stating termination after "breach by
[SGF] of the Agreement will be deemed termination for cause.")

SGF's breach of contract counterclaim fails as a matter of law.

Whole Foods was

permitted to terminate the agreement "at any time for any reason" with written notice. See
Vendor Agreement at ¶ 14.

Thus, SGF's contention the Vendor Agreement was terminated

prematurely or without cause is without merit. Because the termination was for cause, Whole
Foods had no obligation to pay for finished goods inventory. See id. at ¶ 9 (defining obligations

"[i]f [Whole Foods], without cause discontinues or rebrands a Product") (emphasis added).
Finally, SGF has failed to identify any "breach or alleged breach of any representation, warranty,

covenant or other obligation of WFMPL set forth in this Agreement," that would have triggered
Whole Foods' indemnity obligations. See id. at ¶ 11.
For these reasons, the Court grants Whole Foods' request for summary judgment on

SGF's breach of contract counterclaim.

13

Conclusion
Whole Foods' motion for summary judgment is granted on its affirmative breach of

contract claims and SGF's counterclaim, but denied in all other respects.

Accordingly,
IT IS ORDERED that Cross-Claimant WFM Private Label, L.P. (Whole Foods)'

Motion for Summary Judgment [#70] is GRANTED in part and DENIED in part
consistent with this opinion.
SIGNED this the

/

'

day of June 2018.

SAM SPARKS
SENIOR UNITED STATES DISTRICT JUDGE

14