Judge fully dismisses U.S. lawsuit against N.B.'s Cooke Inc.
Lawsuit had alleged the seafood company was using shell companies to skirt U.S. fishing law
A federal judge in New York has found the arguments made in a lawsuit against a large New Brunswick seafood company to be false and ordered the case closed.
Saint John-based Cooke Inc. was sued last July for its involvement in the menhaden fishery in Virginia. The lawsuit alleged Cooke knowingly defrauded the U.S. government by creating shell companies to operate the fishery of a small baitfish used to make fishmeal, fish oil and other products.
U.S. District Court Judge Jesse M. Furman dismissed the case because he found that not only did the plaintiffs not prove foreign ownership beyond a doubt, but also that the fish and fishing licences that Cooke was allegedly defrauding the government of cannot legally be considered property.
"Cooke Inc. is pleased that the court has dismissed this baseless lawsuit, which we have always maintained was without merit," Joel Richardson, company spokesperson, wrote in an emailed statement on behalf of Cooke Inc. and Omega Protein.
"For over a decade, the individuals behind this lawsuit have repeatedly targeted menhaden harvesters and processors to undermine a sustainable and essential sector of the fishing industry."
It was filed by Chris Manthey of New York and W. Chiles Benson of New Jersey as a qui tam lawsuit, which allows private citizens to file a case on behalf of the U.S. government as whistleblowers under the U.S. False Claims Act.
The lawsuit described Manthey as a "professional investigator and researcher" and Benson as someone working in the fisheries management industry who "occasionally receives non-public information" about fishing companies, including Cooke and Omega.
Lawsuit alleged use of shell companies
The premise of the lawsuit was based around Cooke-affiliated companies operating a menhaden fishery in Chesapeake Bay.
Cooke has owned Omega Protein in Virginia since 2017. Omega is affiliated with another company that operates the menhaden fishery.
The lawsuit alleged Cooke was violating the American Fisheries Act, which requires 75 per cent of a company fishing in the U.S. to be owned by a U.S. citizen.
The lawsuit also alleged that the total value Omega had fished while "falsely certifying compliance" with U.S. citizenship laws exceeded $2 billion between 2017, when Cooke bought it, and 2021, when the lawsuit was launched.
The lawsuit said the alleged scheme was accomplished through a restructuring of Omega after the 2017 purchase by transferring Omega vessels to another company, Ocean Harvesters.
That company was then sold to a shell company called Alpha VesselCo, operating as Ocean Fleet Services, in Delaware, which the lawsuit said is 20 per cent owned by Omega and 80 per cent owned by U.S. citizen Seth Dunlop. The lawsuit claimed Dunlop was "a figurehead," a longtime Cooke employee and nephew of Cooke CEO Glenn Cooke.
Cooke Inc., Cooke Aquaculture, Omega Protein, Ocean Harvesters, Ocean Fleet Services and Dunlop were named in the suit.
Omega's menhaden fishery in the Chesapeake Bay has drawn concern from conservation groups because of a lack of data about possible overfishing.
Judge's decision focuses on definition of property
Furman's decision, filed Friday in the Southern District of New York, completely dismissed the lawsuit and did not let Manthey and Benson make any changes to the suit.
Cooke's motion to dismiss was based on its statement that fish and fishing licences do not qualify as property, and Furman agreed.
Citing previous cases as legal standard, Furman implied that Manthey and Benson did not prove their allegations about foreign company ownership beyond a doubt.
"If a plaintiff has not nudged [its] claims across the line from conceivable to plausible, [those claims] must be dismissed," Furman wrote.
Furman went on to say that the False Claims Act is not a catch-all for all types of fraud against the federal government. He said that Manthey and Benson did not allege that Cooke made any request for money from the government, instead making a false claim for fishing licences, which they then used to harvest menhaden.
Because the False Claims Act does not define property, Furman said the court must look to precedents.
Furman cited a previous U.S. Supreme Court case in Louisiana in 2000 and another U.S. district court case in 2016 in Delaware that found that a fishing licence issued by a government does not constitute property.
Furman then went on to cite previous court cases that found that fish do not count as property, therefore Cooke cannot be defrauding the government by harvesting menhaden.
He cited a 1978 case that said "[a]s a general rule, wild fish, birds and animals are owned by no one. Property rights in them are obtained by reducing them to possession."
When reached by phone, Manthey and Benson's lawyer, New York City-based Brendon DeMay, said they are reviewing their options and may consider an appeal.
"The judge did not approve or endorse Cooke's conduct as being legal. He did not clear them of the allegations of fraud, did not clear them of the allegations that they violated the American Fisheries Act," DeMay said.
"Instead the judge focused on a different issue on whether what was at stake is property under some U.S. law."
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