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Ben & Jerry’s Sues Corporate Parent Unilever To Thwart Sale Of Branded Ice Cream In Jewish Quarter of Old City, Judea and Samaria

Ben & Jerry’s Sues Corporate Parent Unilever To Thwart Sale Of Branded Ice Cream In Jewish Quarter of Old City, Judea and Samaria

Asks judge to prevent settlement agreed to in separate case, in which Unilever agreed to sell Ben & Jerry’s business in Israel to an Israeli manufacturer-distributor, enabling sale of Ben & Jerry’s brand ice cream in the Jewish Quarter of the Old City of Jerusalem, Judea and Samaria (the West Bank).

Last week, we reported that Ben & Jerry’s owner Unilever had agreed to a new arrangement under which Ben & Jerry’s ice-cream will continue to be sold throughout Israel, including in the Jewish Quarter of Jerusalem’s Old City, and in Judea and Samaria (a/k/a the West Bank). The deal was meant to settle a lawsuit filed by the ice cream company’s Israeli distributor, after Ben & Jerry’s refused to sell its ice cream in the West Bank and the distributor (in keeping with Israeli law) refused to discriminate between Israel and the West Bank. Under the agreement, Unilever agreed to sell Ben & Jerry’s business in Israel (and the West Bank) to the Israeli manufacturer-distributer.

While there is debate about who won, Ben and Jerry’s have no doubt: they lost. That’s why they’ve sued Unilever to stop the deal.

We previously covered the controversy here:

Some on the left tried to spin the deal as the beginning of the end for Israel.

Leftist company Ben & Jerry’s was not among them. On July 5, the company filed a federal lawsuit in Manhattan seeking to prevent Unilever from consummating the deal. Ben & Jerry’s claims Unilever breached its contracts with the ice cream company, both the merger agreement by which Ben & Jerry’s became a subsidiary of Unilever, and the shareholders agreement between Unilever and Ben & Jerry’s.

The gist of Ben & Jerry’s complaint is that, even though Unilever bought them out, the ice cream company maintained an independent board of directors for the purpose of safeguarding Ben & Jerry’s brand-name image. The independent board was concerned with such matters as the company’s integrity, reputation, and goodwill. Unilever, they say, did not consult Ben & Jerry’s board before agreeing to settle the suit. In Ben & Jerry’s view, that failure constitutes a breach of contract that will irreparably harm its “brand integrity.”

2. From its stances on migrant justice and LGBTQ+ rights to Black Lives Matter and climate change, the Ben & Jerry’s brand is synonymous with social activism. The Company’s core values of advancing human rights and dignity, supporting social and economic justice for historically marginalized communities, and protecting and restoring the Earth’s natural systems are integral to Ben and Jerry’s identity. So much so that when the Company entered into an Agreement and Plan of Merger with Unilever in 2000 (“Merger Agreement”), Ben & Jerry’s expressly reserved the “primary responsibility for safeguarding the integrity of the essential elements of the Ben & Jerry’s brand-name” with an Independent Board of Directors. These terms were subsequently memorialized in a Shareholders Agreement between Ben & Jerry’s and Unilever.

3. Pursuant to the terms of the Merger Agreement and Shareholders Agreement, Unilever agreed to a unique corporate governance structure that preserved the independence and autonomy of Ben & Jerry’s Board of Directors. Specifically, an Independent Board of Directors was created and expressly authorized to protect against actions that, in its discretion, pose a risk to the integrity of the essential elements of the Ben & Jerry’s brand name…

4. In May 2021, the Independent Board of Directors determined that it would be inconsistent with the essential elements of Ben & Jerry’s brand integrity for Ben & Jerry’s to be sold in the West Bank. In response, Unilever issued a public statement declaring that it had “always recognised the right of the brand and its independent Board to take decisions about its social missions.” And, in April 2022, Unilever reiterated that Ben & Jerry’s “would clearly be harmed if forced to provide a license . . . against its will.”

5. On June 29, 2022, Unilever abruptly reversed course, announcing that Ben & Jerry’s “will be sold” in the West Bank through a third-party distributor. See Exhibit E. Unilever’s unilateral decision was made without the consent of Ben & Jerry’s Independent Board of Directors, the entity contractually empowered with protecting Ben & Jerry’s brand. An injunction restraining Unilever from violating the express terms of the Merger Agreement and Shareholders Agreement is essential to preserve the status quo and protect the brand and social integrity Ben & Jerry’s has spent decades building (footnotes omitted).

Ben & Jerry’s claim “irreparable harm” because the company has jumped onto the BDS bandwagon, concluding that Israel is somehow odious because it tries hard to protect itself from Palestinian terrorism. BDS and Ben & Jerry’s lay the blame for the failure of the Israeli-Palestinian “peace process” solely at Israel’s feet. The Palestinians’ complete failure to offer terms for a peace deal that would completely resolve the issues between the parties, and leave each to live in peace within its own secure and recognized borders; their failure to educate their children for peace; the Palestinian Authority’s fomenting violence by offering bounties to terrorists who attack Israelis; not to mention Hamas’ ongoing rocket attacks on civilians, and absolute rejection of the idea of making peace with Israel – all are Israel’s fault, and the Palestinians are completely innocent victims.

“As early as 2013,” the new complaint says, “the Ben & Jerry’s Independent Board of Directors had begun receiving complaints regarding the human rights implications of selling its products in the West Bank.”

[Click on image to see document]

In its motion for a temporary restraining order, the company claims its “Independent Board determined that it would be inconsistent with the essential elements of Ben & Jerry’s brand integrity to continue selling its products in the West Bank.” Furthermore, “Once Unilever completes the sale to AQP, Ben & Jerry’s will have lost control over its brand in Israel and the West Bank. That harm cannot be repaired.” Since Ben & Jerry’s had committed to refusing to sell in the West Bank, and wouldn’t sell in Israel if it couldn’t also refuse to sell in the West Bank, the loss of control means Ben & Jerry’s will continue to be sold in the West Bank and Israel.

[Click on image to see document]

The court rejected the application for an immediate restraining order. Instead, it scheduled a hearing for July 14. The court order doesn’t explain why, but presumably the court will determine whether there are grounds to issue a preliminary injunction to block the sale. The difference between a temporary restraining order (called a “TRO” in legal lingo) and a preliminary injunction – besides being able to get the former faster – is that a party seeking the former typically doesn’t bother to give the other side notice of the action or time to respond. For the latter, it does. The Wall Street Journal reports that the sale has already closed. If so, Ben & Jerry’s can only seek damages but won’t be able to prevent the sale.

[Click on image to see document]

The above-referenced documents, and declarations supporting Ben and Jerry’s motion for a TRO, may be found at:

What will Unilever say in its response? Here are a couple of thoughts:

  1. We have the right to control business operations, including the right to settle lawsuits. Ben & Jerry’s interpretation of the agreement under which it bought Ben & Jerry’s would let the tail wag the dog instead of the reverse.
  2. If Ben & Jerry’s was trying to scotch the settlement in the Zinger lawsuit, why did it file a whole new case? If Ben & Jerry’s opposed the Zinger settlement, it should have filed its objections in that case, and in that district (New Jersey). It’s a party to the lawsuit Zinger brought, after all. Technically, the Zinger case was dismissed on Friday, July 1, after the parties notified the court that the suit had been settled. But, Ben & Jerry’s claim implicates Zinger’s rights, and if the ice cream company gets its injunction and prevents the settlement from being consummated, the New Jersey case will certainly have to be reopened. On the other hand, if (as the Wall Street Journal reports) the sale of the Israeli business to Zinger has already been consummated, an injunction now is pointless. In that case, Unilever may simply argue that Ben & Jerry’s sat on its rights in the Zinger case and is foreclosed (estopped) from challenging the resolution in another case.

Is it possible Ben & Jerry’s doesn’t/didn’t really want to mess up the settlement, but just to burnish its credentials with its leftist fanbase; and collect money/recover complete independence from Unilever at the same time?

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Comments

2smartforlibs | July 7, 2022 at 4:37 pm

That is exactly why I never supported these two losers

    jmccandles in reply to 2smartforlibs. | July 8, 2022 at 8:26 am

    They are Communist’s who invaded Vermont and would do Vermont a favor by crawling back to New York City.

      rscalzo in reply to jmccandles. | July 8, 2022 at 8:45 am

      Much better and cheaper ice cream. I buy locally made here in NH. I’ll pay their price for a much better product.

B&J are racists. I never will east their ice cream.

henrybowman | July 7, 2022 at 5:12 pm

Money draining from the pockets of these Marxist geezers into the pockets of lawyers. So, so, sad. I hope it rivals Jarndyce.

The Gentle Grizzly | July 7, 2022 at 5:19 pm

Wait. Aren’t these two (allegedly) Jewish?

Perhaps Uniliver should take the opportunity presented to publicly expose B&J for their situational ethics regarding application of their rule set to every Nation where sold. With a focus on:
1. Migrants
2. LGBTQIA+

Please tell the CT exactly how many migrants are allowed, the level of support provided and the level of genuine acceptance in every Nation you do business in. Now the same for LGBTQIA+. What’s that? Speak up the jury can’t hear your answer about the treatment of these groups in Saudi Arabia, Pakistan, Syria, China….

Shame. Ben spoke at my college in VT and spent a great deal of time answering questions. He seemed to be a great guy. I grew up in VT and have toured the factory a few times. Excellent ice cream but ice cream I stopped buying or eating several years ago. Really, turning off a large part of your customer base because of the SJW nonsense is silly

    diver64 in reply to diver64. | July 7, 2022 at 5:50 pm

    BTW: I was in high school when B&J went public restricting the initial stock sale to VT residents only. I scrapped up my lawnmower and trapping money to buy some of my first stock. Made a bundle when I sold it.

    texansamurai in reply to diver64. | July 7, 2022 at 8:24 pm

    diver

    my folks had a house in stowe for 50 years or so and while there one year went over to is it middlebury? and toured their little facility–nice folks–met one of them but don’t remember which one–seemed like a bunch of dedicated stoners as remember but pretty damned good icecream–prefer hagen daas or blue bell to theirs anyway so haven’t bought any b&j’s in a long time–vermont is beautiful, though

    henrybowman in reply to diver64. | July 7, 2022 at 11:24 pm

    Now do the Blue Bell Tour.
    You’ll forget all about those two schmendricks.
    Especially if you follow it with tasting night at Pleasant Hill Winery.

    Edward in reply to diver64. | July 8, 2022 at 8:49 am

    Commies gotta Commie. Both have been, at best, Far Left Socialists (just short of full blown Communists).

healthguyfsu | July 7, 2022 at 5:57 pm

What a bunch of pathetic dbags.

healthguyfsu | July 7, 2022 at 5:58 pm

Also, at this point, does anyone in Israel actually want to buy this crap?

    Milhouse in reply to healthguyfsu. | July 7, 2022 at 7:24 pm

    Yes. The Israeli manufacturer deserves support.

      rscalzo in reply to Milhouse. | July 8, 2022 at 8:46 am

      Much better and cheaper ice cream. I buy locally made here in NH. I’ll pay their price for a much better product.

        Edward in reply to rscalzo. | July 8, 2022 at 8:54 am

        With the subject matter being B&J ice cream, you are saying B&J is a much better and cheaper ice cream. You buy B&J locally made in NH.

        I know English is a dying language, so I’m just making sure that is what you intended to write and it isn’t an issue of failing to mention the brand of ice cream if it wasn’t the subject brand.

          henrybowman in reply to Edward. | July 13, 2022 at 12:53 am

          Since B&J isn’t made in NH, I didn’t have too much trouble sussing this out.
          “There is much better and cheaper ice cream available. I buy a brand locally made here in NH. I pay a B&J price for a much better product.”

Antisemitism plain and simple,

These guys are such insufferable jerkoffs.

Why does anybody buy their crap? There are so many good ice-creams to choose from.

Remember that vile “fad” a couple of years ago where woke punks would film themselves licking the ice cream on grocery store shelves and then putting it back for someone to buy?

Yeah, we’ll I’m imagining a bunch of woke freaks at the Ben & Jerry’s factory doing that shit to each and every container before it’s shipped out.

Yeah, don’t do business with woke freaks if you can avoid it. You never know what you might catch.

May all the WORTHLESS leftbots go bankrupt from paying the court costs and lawyer fees.

How stupid does Ben and Jerry’s think Unilever is?

They really think the law is on their side and their parent company didn’t first have very good lawyers pouring through every possible part of the civil law to make sure what they did was legal before they proceeded?

This isn’t based on expertise in the matter it is just common sense.

    Milhouse in reply to Danny. | July 8, 2022 at 1:27 am

    Um, don’t you think B&J also have good lawyers?!

      rscalzo in reply to Milhouse. | July 8, 2022 at 8:48 am

      You think they have more resources than Unilever?

      They already lost once.

        Milhouse in reply to rscalzo. | July 8, 2022 at 9:29 am

        Really? When did they lose?

        Having more resources doesn’t mean anything in court. So long as both sides have decent lawyers, it makes no difference.

      Danny in reply to Milhouse. | July 8, 2022 at 10:03 pm

      Well they have gotten themselves to run afoul of dozens of state anti-boycott laws that includes even some blue states so if they have good lawyers they are clearly ignoring them.

Not a fan of Ben & Jerry’s nor Unilever and avoid them (which is really tough considering all that Unilever owns).

Unilever may be at risk big time. If Zinger dismissed his Unilever suit without prejudice, he will reinstate it. Either way, if the deal with Unilever does not close before next week and a judge is nutty enough to issue a preliminary injunction for Ben & Jerry’s, Zinger will sue Unilever for huge damages based on the contract for the sale, assuming it has the typical boilerplate representation that each party has full authority to enter into the contract of sale.

If you get to Pennsylvania stop at Longacre Dairy to taste good ice cream. https://www.longacresdairy.com/

I haven’t eaten the “Leftist” ice cream in years and Don;’t miss it one bit.