Litigation of Herbicide Drift Cases

By: Brian D. Kaider, Esq

Chemical drift, the movement of herbicide/pesticide to unintended areas from the site of application, is a continuing problem in many farming areas, including vineyards.  In the Nov/Dec 2019 issue of The Grapevine Magazine, Judit Monis and I wrote an article (https://thegrapevinemagazine.net/2019/11/herbicide-drift-a-common-issue-affecting-vineyards-worldwide/) describing how herbicide drift affects vineyards and some of the legal causes of action that may be available to those who have suffered damage to their crops  

In the July/August issue, another article (https://thegrapevinemagazine.net/2020/06/liability-coverage-for-chemical-drift/) addressed insurance coverage for herbicide drift.  This article will focus on litigation of these cases, including the types of evidence needed to pursue or defend against the claims.  As with any legal issue, the details will vary from state to state and from case to case, depending upon the facts.  So, this article is not intended to convey legal advice, but rather to provide background information of the types of issues that may arise.

  To frame the discussion, we will discuss a hypothetical case in which Victoria is the owner of a vineyard who discovers damage to her vines, such as distorted leaves, defoliation of some vines, and damaged fruit.  She believes a neighboring farmer, Stephen, applied an herbicide to his soybean fields, which are adjacent to Victoria’s vineyard, that damaged her vines.  As a first step, Victoria should look to her own insurance policy to see if damage caused by third parties is covered.  If so, and if the policy covers the extend of the damage to her property, Victoria’s best option may be to simply file a claim with her insurance.  Assuming that not to be the case, Victoria may need to file a lawsuit.

  Before going to court, Victoria has to have a reasonable basis for alleging that Stephen is responsible for the damage to her vineyard.  So, when she speaks with her attorney, the litigation process begins with a “pre-suit” investigation.  Because the effects on her plants are likely to change over time, it is critical that Victoria start to document the damage as soon as she notices it.  She should take photographs and detailed notes about the condition of her vines, the location and extent of the damage on her property, as well as weather and environmental conditions, and she should update this information regularly.  If she has any knowledge or reason to believe that Stephen applied an herbicide to his soybean fields prior noticing the damage to her vines, she should document that information as thoroughly as possible. 

  Causation is always an issue in these cases.  Victoria will have to show that it was Stephen’s chemical application that caused the damage to her vines.  So, she should also attempt to collect data that would rule out any other cause of the damage.  For example, she should have thorough documentation of all chemicals that she has applied to her own property, she should note the location of farms other than Stephen’s in the area, whether she has seen them apply chemicals, and what the prevailing wind patterns are in her area.  She should also take samples from her vines to be sent for analysis to determine, if possible, to which herbicide(s) the vine has been exposed.

  Once the pre-suit investigation is complete and there is a reasonable basis to assert that Stephen caused the damage to her crop, Victoria’s attorney will prepare a Complaint and file it in the relevant court.  This begins the official litigation process. 

  When Stephen receives the complaint, he will have a certain amount of time to respond, typically with an Answer to the Complaint.  As his attorney begins to prepare the Answer, he will need to begin collecting information, as well, including documentation of the time, place, and manner of all chemicals he has applied to his land. 

  The vast majority of all lawsuits settle out-of-court rather than reaching trial.  While the parties may reach settlement at any time, there are three points at which it is most common.  The first is during the Complaint/Answer stage.  At this point, the parties have not expended a great deal of money on the litigation process and if it is very clear which party is in the wrong or if the damages are not substantial compared to the cost of litigating, it is often prudent to settle at this stage.  If the parties do not settle, the case will proceed to the “discovery” phase, and things get expensive very quickly.

  Discovery is the process by which the parties seek information from one another in order to evaluate the strength of the claims and defenses and to obtain evidence they will use at trial.  There are four main forms of discovery: document requests, interrogatories, requests for admission, and depositions.  Document requests, as the name suggests, is the process of asking the other party for documents or other tangible evidence.  Interrogatories are written questions that the other party has to answer in writing.  Requests for admission present a series of statements and require the other party to admit or deny the truth of those statements.  And depositions are a process where a person is placed under oath and asked questions to which they must respond on-the-spot.  There is typically a court reporter there taking a transcript of the questions and answers and they are often videotaped, as well.  All four of these processes take a tremendous amount of attorney time and are, therefore, very costly.  Discovery is often the most expensive part of a lawsuit.

  Whether the case involves negligence, strict liability, trespass, and/or nuisance, there are several issues that will almost certainly arise in discovery.  As the plaintiff, some of the materials that Victoria should request include:

•   documentation of the time, place, and manner of all chemical applications on Stephen’s land, including the type of chemical, who applied it, how it was applied, the quantity, and the environmental conditions at the time of application

•   copies of the labels and/or package inserts for the chemicals

•   information about crop buffer zones or setbacks on Stephen’s property and/or request permission to inspect the property to measure these areas 

•   a copy of any and all insurance policies that cover Stephen’s land

  In preparation of his defense, Stephen will not only want to seek information that undermines the case against him, but also evidence that supports his affirmative defenses and/or counterclaims.  He will want, for example:

•    documentation of all chemical applications on Victoria’s land

•    all information Victoria has on chemical applications by third parties not in the case

•    historical records about the health of Victoria’s vines and crop yields from prior years

•    detailed accounting of the number of allegedly affected vines and their condition

•    documentation of Victoria’s current and previous irrigation practices

•    documentation of insects or other pests on the land in current and prior years

•    any other information that could suggest that the damage to Victoria’s crops was caused by something other than Stephen’s chemical application

•    documentation of any and all tests Victoria has had conducted on her vines before or after the commencement of the litigation

  Discovery may also involve the services of experts.  Both sides may use experts to support or refute the theory that the damage to Victoria’s crops was caused by Stephen’s chemicals.  Each expert may submit a written report and is then likely to be deposed in order to try to undermine or discredit that report.

  The court will set a specific time period during which discovery must occur.  When that window closes, there is generally no more exchange of evidence between the parties.  This is the second point in which it is common to settle the case.  Each side is then in full possession of all of the evidence that may be presented.  Often it becomes clear from discovery that one side’s position has significant weaknesses and is likely to lose if the case goes to trial.  Since it will still require a significant investment of time and money to see the case to the end, it makes sense in that instance to reach settlement between the parties.

  If again the parties do not settle, they will begin to prepare for trial.  Typically, this involves a variety of written motions asking the court to rule on certain issues in the case.  There may be summary judgment motions requesting that the court rule in a party’s favor as a matter of law.  One or more parties may file evidentiary motions seeking to exclude certain information from the judge or jury’s consideration.  There are also many procedural issues for the court to decide, such as what instructions will be given to the jury, how much time each party will be allowed to present its case, etc.  Depending upon the outcome of these various issues, a third opportunity to settle the case often presents itself just before trial.  For example, if the court rules that a key piece of one party’s evidence is inadmissible, that party may be more inclined to throw in the towel.

  Of course, if the parties still do not settle, the case will then go to trial.  Litigation is not to be entered into lightly.  The costs for each party to take a case all the way to trial will almost certainly reach six figures and, for more complicated matters, could reach seven. 

  As always an ounce of prevention is worth a pound of cure.  If you are applying herbicides to your property, there are several precautions that can help keep you from affecting neighboring properties and exposing yourself to legal liability.  First, examine the surrounding properties to identify potentially vulnerable crops.  Some states even have listings of vulnerable crops that may help guide your choices.  Second, make sure you fully understand the chemicals you are applying and what crops may be adversely affected.  The University of Kentucky has a great resource website to cross reference herbicides, what weeds they affect, and which crops are vulnerable or resistant to the herbicide (https://www.uky.edu/Ag/Horticulture/masabni/xreflist.htm).  Third, when applying chemicals, be sure to follow the manufacturer’s instructions to the letter and document everything, including date, time, volume of chemical, manner of application, and environmental conditions.

  Brian Kaider is a principal of KaiderLaw, an intellectual property law firm with extensive experience in the craft beverage industry.  He has represented clients from the smallest of start-up breweries to Fortune 500 corporations in the navigation of regulatory requirements, drafting and negotiating contracts, prosecuting trademark and patent applications, and complex commercial litigation. 

For more information please email or call…bkaider@kaiderlaw.com

(240) 308-8032

Understanding the Domino Effect of the European Wine Tariffs

By: Tracey L. Kelley

At press time, the Office of the United States Trade Representative is deciding the revised outcome of a controversial decision from 2019: an increase in import tariffs for European wines by 25%. This action is part of a World Trade Organization judgment against the European Union to end subsidies granted to aerospace giant Airbus. The USTR issued the tariff hike in response to what it believed to be an unfair disadvantage to U.S.-based competitor Boeing.

  In February 2020, the USTR announced it wouldn’t raise European wine tariffs to 100%, but for the upcoming review, it’s unclear if last year’s decision will be upheld, or if those WTO tariffs will shift to other European products. 

  To provide a more tailored scope of the issue, The Grapevine Magazine talked with Benjamin Aneff, president of the U.S. Wine Trade Alliance and managing partner of Tribeca Wine Merchants in New York City; and Eric Faber, chief operating officer of Cutting Edge Solutions in Cincinnati, a wine import and distribution business.

Why the Tariffs Create Conflict

  The Grapevine Magazine (GV): Let’s break down the issue for the layperson: what does U.S. and European wine have to do with Airbus and Boeing?

  Benjamin Aneff (BA): Great question. Nothing. Unfortunately, the USTR has decided to put large tariffs on most wines from the EU because of the dispute involving Airbus and Boeing. It’s incredibly unfortunate, given that these tariffs do roughly four times the economic damage to U.S. businesses than they do their targets overseas. They’re back-firing and hurting mostly small, family-owned businesses in the U.S.

  Eric Faber (EF): I’ve heard the arguments that these tariffs protect American jobs, that people can just buy domestic wines instead of European. In some cases, this may be true, but to believe this about the wine industry shows a complete lack of understanding into how our industry uniquely works and how it’s connected. These connections exist based on an industry that is among the most regulated in the U.S. Companies shouldn’t be asked to change their business model because of an international trade dispute of an unrelated industry.

  The truth is that these tariffs may cause job losses and business closures in Europe, but they will cause job losses for the American small businesses who rely on these wines for their livelihood. Ambassador Robert E. Lighthizer, the USTR, can try to tell us it will simply lead to new American jobs, but that only shows his lack of knowledge about our industry.

  It’s an industry that—unlike Boeing and Airbus—has always paid its fair share of taxes. In fact, the regulation of alcohol means we pay more than most businesses. We don’t get the tax breaks that massive companies like Boeing, Amazon, Apple and others enjoy. Taxes on the alcohol industry help provide billions of dollars to state and local governments. And we’re more than happy to do so, but we shouldn’t be burdened as a result of the poor practices of two of the largest companies on the planet.

  Airbus has recently offered a solution to this entire dispute, and it’s equivalent to the changes made in regard to Boeing. If the goal is to punish Airbus for its misgivings, then punish that industry. But leave the lives of millions of hard-working Americans who aren’t affiliated out of it.

  GV: What would be the direct impact of the 25% tariff increase on small- to medium-sized producers/vintners, and what tangible change happens for them if it’s defeated?

  (BA): Well, ending these tariffs would certainly help small- to medium-sized producers in the U.S., particularly producers looking for distributors that rely on this access to market. These are the companies that actually make sure those small producers in, say, Oregon or California, can make it to the shelf of a wine store or get poured in a restaurant in Chicago, Dallas or New York.

  When distributors are having trouble financially—which they are now due to the tariffs—it’s much harder for them to take the risk of bringing on a new U.S. producer, which generally are unknown and require time and capital investments from distributors. It’s less clear how it helps producers in, say, France.

  There’s pre-pandemic data from the Global Trade Atlas that showed, despite a huge drop in wine exports from France to the U.S. after the enactment of the tariffs, the overall wine exports from France actually grew. In a nutshell, they sold their wine elsewhere. This is just one of the reasons why these tariffs are such a bad idea. They do significantly more damage to the U.S., and they’re incredibly unlikely to influence the EU to change behavior.

  (EF): Should the tariff be justifiably rolled back, things will mostly go back to normal. I say “mostly” because the pandemic has its own role to play in our industry, which adds to the need for the tariffs to be lifted.

  The European wineries we work with love the American wine market and experiencing the amazing wine and restaurant culture so many Americans have worked hard to create. Right now, they’re facing difficult choices about where to sell their products and how to maintain their businesses in the face of tariffs. I think it’s important for Americans to know that the effect on European wineries isn’t money lost from paying the tariffs—because American businesses pay them. It’s from lost sales due to price increases and importers downsizing or going out of business.

  From a larger view, you don’t have to look farther back into our history than the Smoot-Hawley Act of 1930 to see the negative effects tariffs can have on our own economy and the global economy we’re part of. It turned a difficult recession into the Great Depression. It set people back 20 years and created a “lost generation” across the world. These tariffs will harm people across the globe, so by lifting them, we give small businesses—specifically here at home—the opportunity to be successful, experience growth and create jobs.  

The Domino Effect

  GV: As an example, how does an import/distribution company balance its portfolio to include both international and U.S. wine products?

  (EF): We strive to have a portfolio that represents top producers from around the world, specifically boutique producers that fit our model in terms of quality and price point. Domestic wines are the backbone of our portfolio. 

  Like most small distributors, it’s important to have a good mix of products from around the world so we can provide our accounts with a wide variety of options. Domestic wines are certainly a large part of this, and the balance is largely driven by the demands of our customers and the wine-buying public. For us to be successful, we work with producers that we believe in and that our customers have a desire to purchase. While we have very strict standards for the producers we add to our portfolio, we’re ultimately driven by the market.

  The other part of this is profitability. We typically work on lower margins on domestic wines than we do on imported wines, specifically the wines we import ourselves. The slightly-higher margins we make on European wines allow us to keep our prices on our domestic portfolio lower. This is commonplace for most companies in our industry.

  GV: What type of trickle-down effect does the tariff issue have?

  EF: The tariff has an enormous impact on importers and distributors. Many people who argue the tariffs are a penalty on the producers, or the countries on which they have been levied, are simply wrong. We pay the tariffs—not the producers and not the EU.

  A 25% tariff means prices on those products have to go up for importers and distributors to maintain their ability to function. In a state like Ohio, for example, we’re legally required to have a certain margin to our accounts to maintain state tax revenue. We legally can’t make less on the wines, so we have to charge more. This means our retailers and restaurants must raise their prices to the consumer.

  While this may not be the case in every state, no industry could suddenly take a loss of 25% or even 15% of its margin and still be successful. How do people pay employees if they don’t make any money on the products they sell?

  In terms of how this affects domestic producers, the biggest issue outside of distribution is money. Our industry works on “terms”—meaning, we pay for our products typically 30 days after receiving them. This model has been set for decades. But with tariffs, they’re paid as the product clears customs. This creates a significant problem in terms of cash flow.

  So if we’re typically paying a few thousand dollars to clear product into the country, and suddenly have to pay upwards of $25,000, that depletes our bank account in a way our long-standing model wasn’t prepared for and makes it more difficult to pay our domestic suppliers on time.

  We also have to pay our employees, our bills and our taxes. If it takes longer for our domestic partners to get paid, this cash flow problem moves on to them, then to their vendors.

  GV: If certain import relationships fail, do fewer distributors mean fewer channels of retail and restaurant opportunities for U.S. products? Why?

  EF: That’s an excellent question and raises one of the most important points of this debate. If our company relies on a mix of producers from the U.S., Europe and other countries to be successful, then eliminating sales from one of these avenues would force us to close. If companies like Cutting Edge go out of business or contract significantly less, who will sell domestic wines to restaurants or independent retailers that the wineries rely on as the largest part of their sales network? For most domestic wineries, they can’t sustain their business through direct-to-consumer sales alone.

  This leaves wineries without a home. It’s not as simple as just finding another distributor if you’re a domestic winery. Boutique American wineries need to be in a portfolio that gives their products appropriate attention to attract sales and create valuable placements in restaurants and independent retail. They have to find someone who cares about their wines and their stories, someone who can pay for the products, and who can actively promote their products to accounts and consumers.

  Larger, multi-state distributors typically don’t work with smaller domestic producers because it isn’t a part of their business model. They have obligations to their own, typically larger and more corporate, partners. This means that smaller wineries have no focus in their portfolio.

  To sum it up from the point of view of our domestic producers: if 20 Oregon producers suddenly lose their distribution in a state like Ohio, maybe 10 will eventually find a new home and those that do will likely lose significant sales because the new distributor has to essentially re-build the brand in its own portfolio. This is especially daunting when you look at the current climate in our industry as a result of COVID-19. If a producer loses representation in just a small number of states, especially now, it would likely lead to bankruptcy.

  GV: Please explain why a zero-tariff policy on wine imports benefits U.S. producers/vintners in our wine industry.

  BA: Wine from the EU is a keystone species for the health of the U.S. wine market. It represents critical profit margins for tens of thousands of U.S. wine businesses–the same businesses that sell wines from the United States. If those businesses are weak, it’s going to be harder for them to adequately support particularly small- and medium-sized U.S. producers.

  Those wines are often handsels from distributors, retailers and restaurants. That means you need more staff, more time for training, more samples. Further, there may come a point where U.S. distributors are so weakened by tariffs that they’re forced to ask for lower prices from everyone. That’s what happens when companies industry-wide are faced with such hardship. U.S. domestic producers could be one of the first impacted by this need.

  Bottom line, the entire wine industry, from producers to distributors, to restaurants and retailers, are significantly better off when there aren’t tariffs on wine.

Make Connections in Congress

  GV: At press time, the U.S. will have experienced more than 5 million COVID cases, and many wineries continue to be shuttered or downsized in production and tourism. How do you encourage them to take an active stance on this issue when so many other factors have them at a disadvantage? What immediate results will they see from their activism?

  EF: We’ve worked with dozens of domestic wineries to raise awareness of the tariff situation and how it will negatively affect them. I’ve spoken to many of them personally to get them involved, as have countless other distributors. No independent domestic winery thinks the tariffs will benefit them in the short- or long-term.

  We’ve helped provide information on how to contact their elected officials and make their case to members of Congress, the administration, and the USTR. Many have spoken out publicly to condemn the tariffs. People like Jason Lett of Eyrie Vineyards in Oregon have led the charge to raise awareness amongst their peers. They need a strong economy here at home to promote their brands and continue to operate their businesses, and strong partnerships with successful distributors to weather the current storm.

  It’s tough to say what results any of us will see from our activism on this issue because we don’t get to make the final decision. As a community, we have been able to gain support from elected officials from both sides of the aisle and raise public awareness of the negative effects the tariffs will have. Hopefully, awareness will lead to a better understanding of why it’s so important to remove the tariffs currently in place.

  Truly, if there’s anything positive from the battle against tariffs, it’s been the coming together of so many in our industry from all facets: importers, distributors, domestic producers, European producers, restaurants and retailers. I’ve even had wineries we work with in Australia and Chile ask how they can help. All see the incredibly negative outcome of these tariffs on the American wine industry and are united in standing against them. Hopefully, this will help to sway the decision-makers.

  BA: There are so many hardships right now, in every corner of our country. I would say the voices of U.S. wineries can be incredibly impactful with their representatives. We are so interconnected; I think many see how clearly that we rise and fall together. 

  We don’t begrudge the job of the U.S. government to protect our trade interests abroad, but there are better, less damaging ways to do so. We’re all trying to get back up off the mat right now. It’s the wrong time to try to pull the rug out from underneath us.

  Though the public can no longer submit comments to USTR, Congress can! Tell your elected officials, both in the House and Senate, to reach out to the USTR and voice their opposition to these tariffs. There are better ways to influence the EU than a tariff policy that does disproportionate damage to mom and pop businesses in the U.S.—particularly during a pandemic that just saw the U.S. economy contract by 33%. [Editor’s note: The carousel date for the expected USTR announcement regarding its decision, was August 12. Look for an update on thegrapevinemagazine.net]

  When the wine industry is healthy, everyone benefits. When we’re suffering, we all see the impact. Bottom line, we’re in this together.

UPDATE: August 31, 2020; Update from the U.S. Wine Trade Alliance: “The USTR published their decision regarding the August 2020 carousel for the WTO / Airbus award. The tariffs on wine remain the same, with no changes to either tariff percent or category.” Read the full statement here

Liability Coverage for Chemical Drift

Protecting your vineyard from damaging pests and grapevine diseases with pesticides may be an essential part of your vineyard management.  Keeping these chemicals on your property can be challenging even if you have followed all the required procedures.  Nationwide, the EPA estimates up to 70 million pounds of pesticides valued up to $640 million are lost to drift each year .  Drift is the movement of chemicals off your vineyard, through the air away from the intended target, and can be in the form of liquid droplets, vapors, and particles.  You have reason to want to limit drift simply because of the economic consequences, and these chemicals are too expensive to just blow in the wind.  Furthermore, drift that damages a neighbor’s property may lead to litigation. In certain instances, liability insurance specifically designed for chemical spray drift may allow you to mitigate this risk. 

  You have seen examples of herbicide and pesticide drift from agricultural application in the news recently.  Stories abound of alleged damage to neighboring crops, communities, and even bird habitats. If you are growing the same crop as your neighbor is on their vineyard, you may have limited or no impact. However, in certain instances there can be a more substantial impact when your neighbors are raising other crops or livestock, operating an organic farm, or you are adjacent to other susceptible properties like a golf course, an apiary, or a residential community.  Damage has occurred miles away from a farm, so even if one is not next door, one may be nearby.

Why Does Spray Drift Occur?

  Spray drift often occurs when wind or application equipment blows the chemicals off your property.  You may think that drift will only occur when applications are done improperly.  However, even if properly applied, drift may ultimately be unavoidable. Drift can happen days after application when chemicals volatize into gas naturally or due to higher temperatures.  You can minimize drift by using the correct chemicals, properly maintaining equipment, always following manufacturer labels, factoring in the weather, and training employees.

  Despite your best efforts, what happens if your pesticides do drift and damages your neighbor’s crop?  As the growing season approaches, consider ways to properly protect your business from this exposure.

  This article will not address the legal theories surrounding the liability of vineyard operators applying or hiring an applicator.  Courts have differed on finding liability so we will leave the intricacies of the law to others.  Elements of liability aside, if you are alleged to be negligent, you will need a defense.  If found liable, you will want indemnification.  Let’s discuss where to find that coverage with liability insurance.

Insurance

  Every insurance policy is different, so it is important that you read the terms of your policy and discuss them with a professional insurance advisor.  Winery and vineyard policies may include multiple coverage parts including a Commercial General Liability (CGL) part and a Basic Farm Premises Liability (FL) part.

  Standard commercial general liability coverage forms  may contain an exclusion for pollution coverage for ‘bodily injury’ or ‘property damage’ related to the actual, alleged or threatened discharge, dispersal, seepage, migration, release, or escape of pollutants or some similar pollution-related exclusion.  Such exclusions could apply to spray drift claims. Accordingly, consider obtaining an endorsement that provides coverage specifically for chemicals drifting off of your property resulting in damage to someone else’s property, such as their crops or livestock. The specific language in these endorsements vary so it is important that you read the endorsement terms carefully and discuss them with a professional insurance advisor.

  Certain farm premises liability coverages include a limited amount of coverage for damage from chemical drift, which may include drifts that naturally occur during normal farm operations.  However, the coverage may not include drift from aircraft, loss of market, or loss of use of soil and crops. Some farm premises liability coverage forms also exclude discharge from aircraft, which may be a concern if you contract for crop dusting services. Other coverage limitations to the farm premises liability coverages may also apply.

  Commercial general liability and the farm premises liability coverages can be amended to include certain pollution-related coverages.  However, this pollution coverage may require the release of chemicals to be “sudden and accidental” and take place while in “storage or being transported”. Such language may affect the application of the coverage to a drift claim.  Accordingly, you may consider an endorsement specifically designed for chemical spray drift.

Chemical Drift Liability

 A chemical drift liability endorsement may provide coverage for damage to other’s crops and livestock, but an endorsement may also contain policy conditions, limitations, and exclusions.  For example, a chemical drift liability endorsement may not provide coverage for the following:

•    Damage to your own property, crops, or animals.

•    Damage you expected or intended to occur

•    Bodily injury to people

•    Government mandated testing or clean-up of pollutants

  Other limitations and exclusions may also apply. It is important to read the policy and any potential endorsements carefully.

  To obtain chemical drift coverage and to increase the liability limits, your insurance company may require additional information, such as:

•    Demonstrating you have a strong risk management program in place to include proper documentation, employee training, and record retention for at least five years. 

•    A list of chemicals used to determine if any are restricted. 

•    If you are hiring an applicator, they may ask for a list contractors, the total annual cost for those services, and will want to confirm that each is properly licensed. 

•    A review of high risk surrounding exposures (organic farms, public parks, golf courses, schools, churches, apiaries (bees), or other public facilities) neighboring any of the farm locations where chemicals are applied.

  If you are operating a tasting room or holding events at your vineyard, you may be asked to confirm that you are limiting access to the vineyard after an application, and that you are observing re-entry time intervals.

  As with any other winery process, documenting your operations is a good management practice. In the event of a negligence claim, do you know:

•    What brand or product name was used?  Consider keeping a copy of the label. 

•    How much was applied and using what equipment? 

•    Where on the vineyard were chemicals were applied?

•    What crops received the pesticide?

•    The time the application started and stopped?  A best practice would be to document the temperature, humidity, and rainfall too.

  You may also want to review the level of worker training and supervision and ask:

•    Are supervisors experienced with pesticide application?

•    Be sure to document what specific employee training was completed.  Have you kept records to show that you have trained them on the directions for applying each type of chemical used? 

•    Do they know how to use the equipment properly? 

•    Are you doing this each season with each new cohort of workers?

  Spray drift of chemicals is a potential risk for vineyard operators.  Liability insurance specifically designed for chemical spray drift may allow you to mitigate certain types of risk.  For additional questions on chemical drift liability contact your professional insurance advisor.

  This document is intended for general information purposes only, and should not be construed as advice or opinions on any specific facts or circumstances. The content of this document is made available on an “as is” basis, without warranty of any kind. This document can’t be assumed to contain every acceptable safety and compliance procedures or that additional procedures might not be appropriate under the circumstances. 

  Markel does not guarantee that this information is or can be relied on for compliance with any law or regulation, assurance against preventable losses, or freedom from legal liability.  This publication is not intended to be legal, underwriting, or any other type of professional advice.  Persons requiring advice should consult an independent adviser.  Markel does not guarantee any particular outcome and makes no commitment to update any information herein, or remove any items that are no longer accurate or complete.   Furthermore, Markel does not assume any liability to any person or organization for loss of damage caused by or resulting from any reliance placed on that content.

Anatomy of a Trademark Case

By: Brian D. Kaider, Esq.

In earlier articles, I have discussed the benefits of federal registration of trademarks, how they differ from patents and copyrighted materials, and how far you should go to protect your marks.  But, when someone decides to take the ultimate step to initiate litigation, I find that they often have little understanding of the process, the timelines, the costs, and the burdens involved.  This article is meant to give a high-level view of what a litigation entails, either at the U.S. Patent and Trademark Office or in federal court.

Two Venues

  If your goal is to oppose the pending registration of another person’s trademark, or to cancel such a registration after it issues, you will generally bring your case to the USPTO’s Trademark Trials and Appeals Board (TTAB).   On the other hand, if you believe that someone is infringing your trademark and you want to seek monetary damages, you will file a lawsuit in a U.S. District Court.  There is overlap in these proceedings; for example, you can seek to cancel a registered trademark as part of a court case, but there are differences as well; e.g., you cannot seek monetary damages at the TTAB.  Generally, though, the processes in both venues are similar.

Before Filing – Due Diligence

  Whether at the TTAB or in federal court, before you file your case, you are obligated to ensure that you have a proper basis for doing so.   Your attorney will ask many questions and likely want to see some documentation.  This is their due diligence process to see whether you have reasonable grounds to bring your case and to assess your likelihood of success in the matter.  They are looking for such issues as: whether you own a valid trademark and have standing to bring the case; whether the other party has a valid trademark and, if so, which party has priority in its rights; the similarity of the two trademarks and their channels of trade; evidence of when and how the other party has used its mark, etc.  If, after reviewing these materials, the attorney agrees that you have a reasonable basis for your case, they will draft the initial filing documents.  In the TTAB, these would be a Notice of Opposition or a Petition for Cancellation; in federal court, it would be a Complaint.  For simplicity sake, I will refer to all of these documents as complaints.

Filing the Complaint

  Your attorney will synthesize the material you provide into a complaint.  While complaints have a required structure that is somewhat dry and formulaic, because it is the first opportunity to educate the TTAB or judge as to what the case is about, it should paint a very clear picture of how you have been aggrieved and the other party is responsible.  The cost of this stage of the case will depend upon the complexity of the issues and, of course, your attorney’s hourly rate.  For a complex case, it may take as much as 30-40 hours of attorney time to do the legal research, analysis, investigation, and draft the complaint.  The government filing fees for the complaint, whether at the TTAB or in federal court are $400.

Discovery

  This is the stage of litigation of which clients tend to have the least understanding, and for good reason.  It’s a complex array of processes and rules and is frequently the source of many disputes between the parties.  For this reason, it is also often the most expensive part of the litigation process.

  As a general matter, “discovery” is the process through which you get information from the other side in order to try to prove your case.  In both TTAB proceedings and court litigations, the discovery process is fairly broad, meaning that you are allowed to ask for a wide array of information from the other side.  Court litigations, however, are broader in scope because, for example, those cases usually involve monetary damages, which are not at issue in TTAB proceedings. This is also one of the reasons that court litigations are more expensive.

  There are four basic tools in discovery: interrogatories, requests for production, requests for admission, and depositions. 

Interrogatories are simply questions you ask the other side and they are required to answer.  For example, you might ask the other party to describe the dates and circumstances under which they created and adopted their trademark. 

Requests for production are how you ask the other party to provide you with documents or other tangible items in their possession.  As an example, you might ask the other party to produce documents that demonstrate the geographic areas in which they have sold products under the challenged trademark. 

Requests for admission are statements of fact that you ask the other side to admit or deny.  These can be useful to narrow the issues and pin your opponent down on specific points.  For example, you might ask the other party to admit that they did not use their trademark before a particular date. 

Depositions are probably the most dreaded discovery tool.  Through a deposition, you subpoena a witness to physically appear in a room with your attorney and to answer questions under oath in the presence of a stenographer and/or video recorder that will take down their every word.  Depending upon the complexity of the case, these depositions may last as long as 7 hours, each.

  Often, there will be several rounds of written discovery between the parties before depositions are taken.  This enables the parties to review the documents and narrow the issues so they may ask more pointed questions of the deposition witnesses.  This written discovery process can be lengthy, arduous, and disruptive to the parties’ businesses.  The parties generally have 30 days to respond to each discovery request, so the whole discovery process can take anywhere from several months to several years in more complicated cases. 

In addition to drafting and responding to each other’s requests, the attorneys will often have protracted discovery disputes, arguing about the scope of the requests, the disclosure of confidential business information, or the application of attorney-client privilege.  Most clients dramatically underestimate the amount of time it will take to complete discovery, the amount of time and effort they will have to spend in collecting documents and responding to requests, and the costs involved. 

Experts

  All of the discovery issues mentioned above relate to what are called “fact witnesses.”  This can be anyone who has factual information relevant to the case.  In most instances, the requests will be directed to the company and/or individual owners or employees of the company.  In some cases, the litigants may also seek discovery from third parties who have no direct involvement in the matter, but nevertheless have information relevant to the case.  There is another category of discovery, however, relating to expert witnesses.

  In trademark cases, experts will sometimes be called by one or both sides to provide opinions as to whether there is a likelihood that the relevant public will be confused as to the source of goods due to the similarity of the two trademarks.  Sometimes these experts will conduct surveys of the public.  The experts will then draft a written report of their findings and stating their opinions.  The other side will usually then take a deposition of the expert to try to expose weaknesses in their opinions.  While experts can be extremely useful, they also dramatically add to the cost of the litigation due to their fees as well as the cost of associated discovery.

Motions

  Throughout the case, but particularly after discovery, each party may file a variety of motions with the TTAB or court.  A motion is a document requesting the court to decide an issue.  For example, if the other party refuses to provide certain requested documents, you might file a motion to compel, asking the court to require the party to produce the documents.  There may also be motions to dismiss the case, motions for sanctions for abusing the discovery process, motions to exclude evidence or disqualify an expert, and many more.  After discovery is completed, the parties will often file a motion for summary judgment, in which the party claims that there are no material facts in dispute between the parties and therefore they are entitled to win the case as a matter of law.

  With all motions, the other party will have an opportunity to file a written opposition to the motion.  In some cases, the motion will be decided by the court just on the basis of these written briefs, but for more complex issues, the parties or the court may request an oral hearing to present the issues to the court in-person.

Trial

  Up to this point, the processes at the TTAB and in federal court are very similar.  This is where they diverge significantly. 

  At the TTAB, the plaintiff will have a period of time in which they may present evidence to the board in support of their case.  They first have to make “pre-trial disclosures,” telling the board and the other party what witnesses they will present, for example.  Then there will be a “trial” period during which they present their case: they will submit various documents and affidavits, and may take testimonial depositions of the witnesses either through live testimony or written questions. At the conclusion of this period, the defendant will have an opportunity to do the same.  The plaintiff will then have an additional period for rebuttal.  Once these “trial” periods are complete, each side will have an opportunity to file a brief, arguing the facts to the board.  This entire process from the beginning of the plaintiff’s trial phase, to the filing of the last brief, may take as long as 9-10 months.  Upon completion of the briefs, one or both parties may ask the board for an oral hearing.  After all of the briefs are completed and, if requested, the hearing has taken place, the Board will then take all of the evidence under consideration and render its decision.  This process may take several more months.

  By contrast, a trial in federal court is the process with which people are more familiar.  As with a TTAB proceeding, the parties will make certain disclosures to the court and may argue about what evidence may be presented, but the trial phase itself is what people typically expect.  It is a live process in front of a jury and/or judge in which the parties may call witnesses to testify and may present physical evidence for the court’s consideration.  It is a more interactive process, where each side may cross examine each other’s witnesses immediately.  The whole trial process generally may take a couple days to several weeks.

Conclusion

  Whether at the TTAB or in federal court, a trademark litigation is a lengthy, costly, and exhausting endeavor.  Whenever possible, parties should attempt alternative means to resolve disputes that are far less burdensome.  But, when litigation cannot be avoided, the parties should at least have a full understanding of the timeline, the processes, and the costs involved.  While most cases at the TTAB and in federal court settle, the parties should be prepared for the case to go all the way through trial.  Every case is different, but parties should expect a trademark case to take 1 ½ –  2 years to complete, sometimes more.  A TTAB case that goes to trial will certainly cost in the tens of thousands of dollars and often will reach six figures.  A federal court case will start in the hundreds of thousands and may reach seven figures in more complicated matters.  It is imperative that the parties have a full and frank discussion with their attorneys about all of the issues discussed herein.

  Brian Kaider is a principal of KaiderLaw, an intellectual property law firm with extensive experience in the craft beverage industry.  He has represented clients from the smallest of start-up breweries to Fortune 500 corporations in the navigation of regulatory requirements, drafting and negotiating  contracts, prosecuting trademark and patent applications, and complex commercial litigation.  bkaider@kaiderlaw.com, (240) 308-8032

Protect Events Hosted at Your Winery with Event Insurance

By now, most winery owners have heard the buzz regarding event insurance.  Sure, you know it exists, but do you really know exactly what event insurance covers and how it can benefit your clients (and you)? Event insurance is a necessity for winery owners looking to keep themselves, and their clients, protected.  We recently talked with Lauren Hernandez, Senior Event Insurance Specialist at Markel Specialty insurance to learn more.

  “It is probably important to first point out that there are two different types of event insurance– event liability and event cancellation,” states Hernandez. 

EVENT LIABILITY INSURANCE

  “Event liability protects the person hosting an event at your facility,” Hernandez explained.  If during their event someone causes property damage to your winery or someone is injured and the host is liable, an event policy will step in to provide coverage.  The coverage is typically primary over any other insurance protection.  That means the event policy will pay first before any other insurance policy.

  Primary liability coverage by event hosts, such as your clients, is preferred by most venues because it helps minimize the associated risks and exposures of owning a winery. “More and more wineries are requiring their clients to purchase one-day event insurance policies for events hosted at their facility because it reduces the possibility of having to pay for an accident that is out of the wineries’ control,” said Markel Specialty’s Lauren Hernandez. 

Wineries must also remember to require the host to name the winery as an Additional Insured on the host’s event policy.  That way, if there is a claim made against your winery due to the actions of the host, the event policy will defend and indemnify you against that claim.  It is also a good idea to require the host’s insurance carrier to be A.M. Best rated “A-” or better.  That way the carrier is financially strong and likely to be around to pay the claim should one occur.

  Examples of claims that would be covered under an event liability policy can range from damage to a furnishings such as couches, mirrors, coffee tables –   even toilets and landscaping from wedding or other event guests.  Event hosts would also be protected if someone slips, falls and gets injured at the facility if the host was negligent.  There are even worse claims that the event host needs protection from when an over-served wedding guest is involved in an auto accident on the way home.  These situations would be covered only if the damage or injury was the fault of your client.  Your business should have your own risk management plan which includes liability coverage to protect you from the hosts wrongdoing.

ADDITIONAL EVENT LIABILITY COVERAGE BENEFITS:

•   Limits vary by insurance carrier, but bodily injury and property damage liability limits typically are up to $1 million per occurrence and $2 million total per policy period.

•   The venue can be named as “additional insured” on the certificate of insurance for no extra cost.

•   Host liquor liability is included for free.

•   Set-up and tear-down is covered (within 24 hours of the event).

•   If the event being held at your facility is a wedding, an event liability policy covers the ceremony, reception and rehearsal dinner (if the rehearsal dinner is within 48 hours of the event).

•   Many policies are primary over any other insurance policy.  This means, if a claim were to occur, the event liability policy would pay out before any other insurance policy and there would be no need to worry about a potential increase in rates with a commercial business policy (as an winery owner) or homeowners policy (as a bride).

•   Protection and peace of mind for a low cost— there are policies available that start as low as $75.

WHY SHOULD YOU REQUIRE EVENT LIABILITY INSURANCE?

  It protects you. One day event insurance policies are typically primary coverage over your commercial business policy for property damage to your facility caused by your client’s negligence. Your facility can be named as an “additional insured” on the certificate of insurance often for no extra cost.

  It protects your customers.  Event insurance is an easy and affordable solution that helps protect your guests from the unexpected – because when your clients are properly protected, so is your reputation.

  It’s an easy solution.  More and more commercial winery insurance policies are requiring one day event insurance for all events hosted at the insured winery.  An event liability policy fulfills this requirement and are easy to purchase and you can direct your client to purchase them online or over the phone in minutes.

EVENT CANCELLATION INSURANCE

  Another popular event insurance option is cancellation coverage.  Being in the event industry, you’ve seen it all. Photographers go missing the day of the event, gifts get stolen, and hurricanes can ruin a perfectly planned event. Event cancellation insurance is becoming increasingly popular because it reimburses the event host for lost deposits and non-refundable amounts if they need to cancel or postpone their special event due to unforeseen circumstances.

  Examples of unforeseen circumstances include:

•   Vendor bankruptcy.

•   Accident or illness of the bride or groom or an immediate family member.

•   Extreme weather (hurricane, named tropical storm, etc.).

•   Military deployment.

•   Event cancellation insurance also covers additional expenses your client may incur to avoid cancelling their event, and pays for other losses or damages such as:

•   Lost wedding rings.

•   Damage to special attire.

•   Vendor no-shows.

•   Lost or damaged photography.

•   Lost or damaged videography.

•   Lost or damaged gifts.

  The pricing for an event cancellation policy is a little more involved as it is based on where the wedding is set to occur and the overall wedding budget. Policies start as low as $130.

Exactly how much event cancellation coverage does each event need?  Look a look at the chart below that outlines coverage limits based on the total overall event budget.

Total Event Budget

$7,500 $15,000 $25,000 $50,000 $100,000
Loss Of Deposits$1,000$1,500$2,000$3,000 $5,500
Photography & Videography$1,000$1,500$2,000 $3,000 $5,500
Special Attire & Jewelry$1,000$1,500$2,000 $3,000 $5,500
Wedding Gifts$1,000$1,500$2,000 $3,000$5,500
Extra Expenses$1,875$3,750$6,250$12,500$25,000
Professional Counseling$500$650$1,000$1,000 $1,250

WHAT ISN’T COVERED UNDER EVENT INSURANCE

  With event insurance, some claims would be hard to disprove.  Because of this, many insurance carriers will exclude covering certain circumstances because of the potential increased risk of insurance fraud.

  Examples of circumstances typically not covered:

•   Change of heart –Typically if either the bride or groom get cold feet and change their mind during the wedding planning process or are at the altar and decide not to go through with the wedding, this would not be covered.

•   Known Circumstances – Previously known issues that could affect the event (Example: planned medical procedure delays or cancels the event).

•   Lack of Funds – if the event host is unable to pay for the planned event.

•   Non Appearance – if certain individuals (such as parents, the bride, etc.) don’t show up for the event, the show must still go on as this would not be covered.  Polies do not cover cold feet if either the bride or groom change their mind during the wedding planning process or at the altar and decide not to go through with the wedding.

START PROTECTING YOUR CLIENTS

  It’s easy to start protecting your clients (and yourself).  Request free brochures from Markel Event Insurance and provide your clients with an easy & affordable option to protect their special event.  Event liability policies start as low as $75 and can be purchased online or over the phone in minutes.  Visit www.markeleventinsurance.com/grapevine to learn more!

HERBICIDE DRIFT: A Common Issue Affecting Vineyards Worldwide

By: Judit Monis, Ph.D. and Brian D. Kaider, Esq.

Last July, Judit was invited to speak to a group of growers in Pennsylvania. The presentation focused primarily on grapevine diseases caused by bacteria, fungi, and viruses but at the group’s request pesticide drift was also covered.  Extension specialist colleagues: Mike White (recently retired from Iowa State University), Tim Martinson (Cornell University), and Bruce Bordelon (Purdue University) helped by providing photos of herbicide injury in vineyards.  However, according to the audience and what was seen the next day at the vineyards, other more drastic symptoms are observed in their vineyards, such as complete wilting of leaves in the vine and rapid defoliation (see photos taken by Judit). 

The Problem

  So many times, throughout our careers, plant pathologists are called to check out vineyards that have “interesting” symptoms that do not necessarily fit with the symptoms caused by the “usual suspects”.  It seems like more often than not, vineyards are affected by chemical products that were not intended to be applied to the vines.  The effects of these unwanted chemicals can cause long term and often times irreversible damage to grapevine (and other crop) plants.   This article will have a different focus and will cover pesticide drift, specifically the injury caused by herbicides in vineyards.

Pesticide Drift

  Pesticide drift is defined as the movement of a pesticide to unintended areas from the site of application.   Pesticide drift can be harmful to humans, animals, and plants.  Obviously, when a product is applied during a time of heavy winds, it is expected that the product will be transported to another field in the direction of prevailing winds.  However, many herbicides (especially the ester formulations of 2-4-D) are able to volatilize, forming clouds that may be transported and ultimately land miles away from the application site causing tremendous damage to the vineyard plants.

  Herbicides are chemical products that are used to control weeds in agriculture lands, lawns (e.g., golf courses or homes), highways, etc.  The herbicides most commonly used are plant growth regulators (PGRs).  While PGRs are used to kill weeds with broad leaves, these chemicals have detrimental effects on important commercial crops.  The most common situation is when herbicides applied in neighboring farms that grow row crops such as corn, sorghum, or soybeans, are transported to a vineyard.  The effect in the vineyard can go from distorted leaves, shortened internodes, complete defoliation, to vine death.  Depending on the time in which the injury occurs it can have severe effects on the quality of the grape fruit to complete loss of production.  The the effect of herbicides in the grape clusters can be seen in Fig 1.  Initially the herbicide damage may be observed in one or two of the berries in a cluster.  But later, the damaged fruit becomes susceptible to infection by secondary saprophytic organisms that ultimately deteriorate the whole cluster.

  The damage caused by PGRs can be long lasting and in some cases the only solution is to replace the affected vines with new plants.  Unfortunately, vineyards may suffer more than one drift incident during its lifespan resulting in an uneven vineyard consisting of vines of different ages and sizes.  The diverse size of vines creates a challenge to the grower as each plant must be managed differently due to their nutrition and water requirements, not to mention that younger vines are more susceptible to herbicide injury.

  When damage caused by an herbicide is noticed in the vineyard, growers must act quickly to determine the injury’s cause.  In all instances, damage must be documented with photos.  In addition, physical samples must be submitted to a lab to determine which pesticide is the culprit of the injury.  Since there are many different possible chemicals that can cause similar symptoms, the grower needs to have some knowledge as to what chemical is suspected as the laboratory needs to perform specific tests to confirm the presence.   A common problem is that chemicals can move a long distance, hence not always easy to determine where the drift originated.  However, if the grower, knows the origin of the herbicide (saw spraying activity in a nearby farm), s/he could attempt to ask the farmer to follow label directions to avoid drift or to use a less volatile product.  If the activity continues in spite of the request, the only viable solution may be to take legal action against the perpetrators.

  Although the U.S. Environmental Protection Agency (EPA) requires all pesticides to be registered, through the Federal Insecticide, Fungicide, and Rodenticide Act (FINRA), regulation of pesticide application is generally the responsibility of each individual state’s department of agriculture or environmental agency.  Naturally, each state’s approach has been tailored to the unique requirements and circumstances of its jurisdiction, resulting in a broad spectrum of regulatory frameworks.  Accordingly, the strategy for taking legal action in the event of pesticide drift will depend greatly upon the state in which the damage occurred.  However, the following are some of the most common legal theories under which these cases may be brought.

Negligence

  A legal claim for negligence occurs when four conditions are satisfied.  Someone owes a duty of care, that person breaches their duty of care, another person or their property is damaged, and the breach of duty is the cause of that damage.  It is generally accepted that someone applying pesticides owes a duty of care in their application methods.  Further, demonstrating that a neighboring crop or property was damaged is fairly easy.  The difficulty in these claims is proving that the applicator breached the duty of care and that the breach was the “proximate” cause of the damage. 

  Whether there is a breach of duty depends, in part, on the extent of the drift.  Nearly all pesticide applications involve some amount of drift.  The applicator is only negligent if the pesticide is used under conditions or in a way that exceeds normal drift. 

  There are many ways in which a pesticide applicator may breach their duty of care.  Commercial pesticides, such as 2,4-D, come with instructions specifically designed to minimize the risk of drift.  For example, 2,4-D instructions say not to apply the chemical when the wind is stronger than 15 miles per hour.  There are also instructions relating to concentration, droplet size, temperature, and suitable equipment.  Further, state and local jurisdictions often have regulatory requirements involving crop buffer zones or setbacks.  Failure to abide by these instructions and regulations would likely be considered a breach of the duty of care. 

  Other actions may not be as clear.  For example, in an aerial application of pesticide, the higher the altitude at the time of chemical release, the greater the risk of drift.  How high is too high in a given case will depend on many factors, including; the type of chemical, the form of the chemical, the equipment used, the wind speed, the topography of the land, etc. 

  To prevail on a negligence claim, you must prove not only the breach of duty, but that the breach caused the injuries to your land.  This may be especially difficult if there are multiple land-owners surrounding your property and each of them uses the same or similar pesticides.  How do you know which one caused your damage?  Some successful claims have included testimonial evidence that aerial application was made across property lines and that visual pesticide residue or odors were detected on the damaged property after observing application on the neighboring property. 

Res Ipsa Loquitor

  There are some circumstances in which the damage itself is sufficient evidence of negligence.  In these cases, there is a legal doctrine known as res ipsa loquitor (Latin for “the thing speaks for itself”) that applies.  Essentially, the argument is that some events do not ordinarily happen in the absence of negligence.  So, for example, if a crop duster suddenly drops its entire load of pesticide on a property 10 miles away from the intended target, that is sufficient proof that the pilot was negligent in operating and/or maintaining the equipment. 

Strict Liability

  Some products or activities are so inherently dangerous that even when exercising great care, injury is likely to occur.  The classic example is owning a tiger.  It doesn’t matter how strong a cage you use to hold the tiger, how much training you have in working with tigers, or what precautions you use to ensure your is restrained.  If your tiger escapes and bites someone, you will be liable, because tigers are inherently dangerous. 

  Many states have specifically found that pesticide application is NOT inherently dangerous, meaning that strict liability does not apply.  There is one 1961 case, however, where a court disagreed.  In Young v. Darter, the Oklahoma Supreme Court held that application of 2,4-D was inherently dangerous and found the applicator strictly liable for damage to his neighbor’s cotton crop.  It is worth noting that both cotton and grape vines are highly susceptible to damage from 2,4-D.

Trespass

  Most people understand that if a person enters their land without permission, they are guilty of trespassing.  Some jurisdictions, however, have also held that releases of chemical substances that settle on the property of another can constitute a trespass.  For example, in 1959, the Oregon Supreme Court held in Martin v. Reynolds Metals, Co. that the defendant’s release of fluoride gas that settled on adjacent land, rendering it unfit for cattle grazing, was an actionable trespass.  Unlike a negligence claim, actual damage to the subject property is not a required element in a trespass claim, though lack of injury may dramatically restrict the amount of any monetary recovery.

Nuisance

  Whereas trespass law addresses physical intrusion of pesticide particles onto the property of another, nuisance law addresses the interference with the use and enjoyment of the land that results from such an intrusion.  So, for example, if a pesticide drifts onto vineyard property in detectable amounts, it may constitute a trespass, whether there was damage or not.  But, if the grapevines on the property were damaged, it would interfere with the owner’s use and enjoyment of the land, giving rise to a nuisance claim.  It is worth noting that at least one jurisdiction, Minnesota, has held that pesticide drift can ONLY constitute a nuisance and not a trespass, because the particles are not a “tangible” object that affects the owner’s exclusive possession of the land. 

Additional Issues

  Two other points are worth mentioning.  First, before bringing suit in a pesticide drift case, it is important to know who applied the pesticide.  If the owner of the neighboring property or one of his employees did it, then he is liable.  But, if it was applied by an independent contractor hired by the neighbor, it may only be the contractor who is liable.  In some cases, where the neighbor specifically directed the contractor to use certain chemicals, or to spray them in a particular manner, both the neighbor and the contractor may be liable.  Second, there have been cases in which pesticide drift has caused the damaged property to lose certification as an “organic” farm.  Some states, such as Maryland, have databases of sensitive crops.  Owners should be sure to list their organic fields in these databases to alert neighboring farms to exercise caution in pesticide application.

  Judit Monis, Ph.D. is a California-based plant health consultant, provides specialized services to help growers, vineyard managers, and nursery personnel avoid the propagation and transmission of disease caused by bacteria, fungi, and viruses in their vineyard blocks.   Judit is fluent in Spanish and is available to consult in other important wine grape growing regions of the word.  Please visit juditmonis.com for information or contact juditmonis@yahoo.com to request a consulting session at your vineyard.

  Brian Kaider is a principal of KaiderLaw, an intellectual property law firm with extensive experience in the craft beverage industry.  He has represented clients from the smallest of start-up breweries to Fortune 500 corporations in the navigation of regulatory requirements, drafting and negotiating contracts, prosecuting trademark and patent applications, and complex commercial litigation.  bkaider@kaiderlaw.com, (240) 308-8032

Don’t Get Caught Off Guard During Wildfire Season: Tips for Your Winery

By: Markel Corp.

Weather conditions and natural disasters occasionally take a toll on vineyards and other agricultural production systems. Due to climate change and prolonged drought, the frequency and severity of wildfires is expected to increase. These risks highlight the need for winegrowers and winery owners to be as prepared as possible to reduce risk.

Putting Your Plan Together

  Many wineries may have already revisited their evacuation plans and filed them with their respective state agencies. Staying current of wildfire season developments can help enhance your ongoing planning and preparedness. Technology can also support your wildland fire planning and response. Additional planning resources by the American Red Cross is available at: www.redcross.org/get-help/how-to-prepare-for-emergencies/types-of-emergencies/wildfire.html

Steps to Take Before a Wildland Fire Event

•    Take a close look at your program’s communication protocol for evacuations. Everyone should have a clear understanding of alarms that signal when you need to evacuate. Assign specific accountabilities to staff so everyone works collectively to achieve a positive outcome of protecting lives and property.

•    Work with your regional Forest Service to better understand emergency evacuation procedures in your area.

•    Coordinate with the American Red Cross, FEMA, and other emergency agencies to give them the locations of your evacuation sites. Invite your local fire department out as part of a fire pre-incident plan. They should be provided a map of your property, highlighting planned evacuation routes. They can also offer technical assistance to support your plan.

•    Prepare and post route maps for each site, including alternate routes. With a large fire, you may need to use “Plan B.”

•    Consider forming a cooperative agreement with another site to share resources and serve as an evacuation site.

•    Identify key equipment to be evacuated, including computers and other vital records. As part of your business continuity planning, programs should already have information backed up and stored remotely. But, in case you don’t, practice removing this equipment as part of your practice response.

•    Stock an ample supply of water and easily-prepared foods until rescue arrives.

Controlling Wildland Fire Exposures

Wildland fires are one of the most catastrophic threats to wineries.  Protecting your structures from ignition and fire damage is an important program objective second only to an evacuation plan. Taking precautions ahead of time can help reduce the exposure of a wildfire intrusion. There are a number of proactive measures a winery can take to mitigate the property damage a wildland fire can cause.

  To support a fire adaptive community philosophy, the local fire department or authority having jurisdiction for your program should require you to develop a landscape plan for the property. It is wise to seek their advice and incorporate their recommendations as you develop a plan specific to your location. You can learn more about fire adaptive community planning at the Fire Adaptive Communities, www.fireadapted.org

  According to the NFPA 1144 – Reducing Structure Ignition Hazards from Wildland Fires, fire protection plans should address four zones around a property.

What are the primary threats to property during a wildfire?

  Research around property destruction vs. property survival in wildfires point to embers and small flames as the main way that the majority of properties ignite in wildfires. Embers are burning pieces of airborne wood and/or vegetation that can be carried more than a mile through the wind, they can cause spot fires and ignite structures, debris and other objects.

  There are methods for property owners to prepare their structures to withstand ember attacks and minimize the likelihood of flames or surface fire touching the structure or any attachments. Experiments, models and post-fire studies have shown structures ignite due to the condition of the structure and everything around it, up to 200’ from the foundation. 

  This is called the Home Ignition Zone. (Or referred to in this document as the structure ignition zone.)

What is the Structure Ignition Zone?

  The concept of the structure ignition zone was developed by retired USDA Forest Service fire scientist Jack Cohen in the late 1990’s, following some breakthrough experimental research into how structures ignite due to the effects of radiant heat. 

The structure ignition zone is divided into three zones; immediate, intermediate and extended.

Immediate Zone

  The structure and the area 0-5’ from the furthest attached exterior point of the structure; defined as a non-combustible area. Science tells us this is the most important zone to take immediate action on as it is the most vulnerable to embers.

  START WITH THE STRUCTURES then move into the landscaping section of the Immediate Zone.

•    Clean roofs and gutters of dead leaves, debris and pine needles that could catch embers.

•    Replace or repair any loose or missing shingles or roof tiles to prevent ember penetration.

•    Reduce embers that could pass through vents in the eaves by installing 1/8” metal mesh screening.

•    Clean debris from exterior attic vents and install 1/8” metal mesh screening to reduce embers.

•    Repair or replace damaged or loose window screens and any broken windows. Screen or box-in areas below patios and decks with wire mesh to prevent debris and combustible materials from accumulating.

•    Move any flammable material away from wall exteriors – mulch, flammable plants, leaves and needles, firewood piles – anything that can burn. Remove anything stored underneath decks or porches. Intermediate Zone 5-30’ from the furthest exterior point of the structure.  Landscaping/hardscaping – employing careful landscaping or creating breaks that can help influence and decrease fire behavior

•    Clear vegetation from under large stationary propane tanks.

•    Create fuel breaks with driveways, walkways/paths, patios, and decks.

•    Keep lawns and native grasses mowed to a height of 4”.

•    Remove ladder fuels (vegetation under trees) so a surface fire cannot reach the crowns. Prune trees up to 6-10’ from the ground; for shorter trees do not exceed 1/3 of the overall tree height.

•    Space trees to have a minimum of 18’ between crowns with the distance increasing with the percentage of slope.

•    Tree placement should be planned to ensure the mature canopy is no closer than 10’ to the edge of the structure.

•    Tree and shrubs in this zone should be limited to small clusters of a few each to break up the continuity of the vegetation across the landscape. Extended Zone 30-100’, out to 200’. Landscaping – the goal here is not to eliminate fire but to interrupt fire’s path and keep flames smaller and on the ground.

•    Dispose of heavy accumulations of ground litter/debris.

•    Remove dead plant and tree material.

•    Remove small conifers growing between mature trees.

•    Remove vegetation adjacent to storage sheds or other outbuildings within this area.

•    Trees 30 to 60’ from the structure should have at least 12’ between canopy tops.

•    Trees 60 to 100’ from the structure should have at least 6’ between the canopy tops. If an evacuation becomes evident

•    If possible, identify the location and direction of the fire event. Remain cognizant that this can quickly change direction and speed.

•    Clearly explain your evacuation procedures to all that may be involved.

•    Identify special medical needs and gather emergency equipment and necessities, including trauma supplies for ready access.

•    Designate enough vehicles to evacuate everyone safely. Reinforce safe driving practices with all drivers.

•    Equip staff with emergency communications equipment (cell phones, walkie-talkies, whistles, flares, colored smoke canisters, etc.). Ask your local jurisdiction authority for suggestions.

•    Load key equipment, vital records, food, and water.

•    Ask qualified associates to disconnect and move LP gas tanks to a safer location, such as a gravel lot, or follow the manufacturer’s instructions to empty the tanks.

•    Warn firefighters of underground fuel storage or LP gas tanks before you leave. Making your facility fire resistant can help reduce property loss. However, keep in mind that these steps should be done only by assigned staff in conjunction with an evacuation and never require or allow staff to remain behind. Close and secure all doors and windows once combustible materials have been moved away from these openings.

•    Wet down buildings and roofs. There are commercial grade fire retardant products available that can help support your efforts to protect your property. But do your research ahead of time; and don’t let the application of these products reduce the priority of evacuating.

•    Have qualified personnel cut down trees in the fire path, bulldoze a firebreak, and cut field grass as short as possible.

•    Remove brush and dry vegetation near buildings.

  Fire EvacuationWhat you need to know

During wildfire season, you may be forced to evacuate in a hurry. People are your first priority; to include guests, staff and firefighters. Most fire evacuations provide at least a three-hour notice; but due to the scope of your operation, you may need to do it sooner. Take proactive steps before and during an evacuation to reduce anxiety and avoid injuries. Plan, prepare and practice.

Filing claims

  In the event your area experiences a wildfire event, it is highly likely it will not only be monitored by your insurance agent, in addition to your insurance company. Pre-loss documentation, such as video recordings and pictures of buildings, business personal property inventories, should be up to date and included as part of your evacuation materials. Working with your agent is a great resource to understand what might be necessary to help with documentation, if you should need it.

Enforcing Your Trademarks: How Far Should You Go?

Legal Protection word cloud concept

By: Brian D. Kaider, Esq.

You’ve secured federal registration for your trademarks and you’ve been building your brand recognition.  Per your trademark attorney’s recommendation, you’ve had quarterly searches conducted to find similar marks.  Lo and behold, a new entry to the market is using your trademark.  Now what?  Stop and take a breath; let the initial surprise or anger settle. There is a lot to consider before taking any action.

Take Stock of the Situation

  First, take a look at your own trademark.  Is it the name of your winery or of one of your products?  Is it a national brand or one that is distributed in a small geographic area?  In what classes of goods and services is it registered (e.g., class 033 for wine, class 040 for “custom production of wine for others,” etc.)?

  Then look at the competitor’s mark.  Is the mark identical to yours or similar?  How similar?  Is it broadly distributed?  Is it used for the same goods and services as your mark?  If not, how similar are the goods and services?  Are your products marketed through the same trade channels?  Are consumers likely to encounter both your products and theirs?  Have they attempted to register their trademark and, if so, where are they in that process?

  No one question will be determinative in any given case, but on balance, they will help develop a sense of how much effort should be expended to enforce your rights.  As discussed below, there are numerous paths, each with its own set of risks and potential rewards.  An international brand that is known throughout the industry, like E. & J. Gallo, must be far more protective of its Gallo® mark than a small winery in Oregon that has a registered trademark for a rosé product only distributed in the Pacific Northwest.

First Contact

  As the owner of a registered trademark, it is your duty to “police” your mark; that is, to monitor unauthorized use of your mark by others and to enforce your right to exclusivity of that mark.  When large corporations learn of potential infringement, their immediate response is generally to have their attorneys send a cease and desist (C&D) letter.  For smaller companies, a personal attempt to contact the owner of the infringing business is often effective.  Sometimes the other party simply did not know about your mark.  If you found their use of the mark before they spent considerable time and money developing it as a brand, they may be willing to simply let it go.

  When making these calls, it is important to maintain a demeanor that is both friendly and firm.  There is no need to accuse the other side of wrong-doing or of violating your trademark knowingly.  However, you should simply let them know that you do have a registration for the mark and that their use is likely to cause confusion in the market as to the source of your respective goods.  If you give them a reasonable amount of time to work through any inventory bearing the infringing mark and to rebrand, this can often be the end of the matter.

Cease and Desist Letter

  If the friendly approach doesn’t work, the next step is generally a cease and desist letter.  This is most effective if drafted and sent by an attorney.  The tone of these letters tends to be more matter-of-fact.  They identify your trademark(s); explain that you have spent a considerable amount of time, effort, and money to build your brand around the mark; identify the other party’s infringing use; state that the use is unauthorized and likely to cause economic harm and loss of goodwill in your brand; and demand that they stop using the mark within a given time frame.

  While these letters can sometimes be effective, especially against smaller companies, they have become so commonplace that often they are simply ignored by more savvy companies who may wait to see if further steps are taken before deciding whether to rebrand.  Accordingly, you should carefully weigh all of your options and decide in advance whether you will escalate the matter if your C&D letter is ignored.

Trademark Opposition

  If the other side has attempted to register their mark, there is a narrow window of opportunity for you to challenge their application before it registers.  If, after conducting a search of other marks, the U.S. Patent and Trademark Office (USPTO) determines that the mark is registerable, it will publish the mark in the Official Gazette.  This publication opens a 30-day window for anyone who believes they will be harmed by registration of the mark to file an opposition to the application.  

  This process should not be entered into lightly.  In some cases, simply filing the opposition will be enough to get the other side to give up its mark.  But, if they choose to fight the opposition, you will find yourself in a litigious process that takes time, effort, and money to complete.  As in civil litigation, the parties to an opposition file motions and briefs, request documents from the other side, take depositions, serve interrogatories that must be answered, and present their evidence to the Trademark Trials and Appeals Board for its consideration. 

  If the opposition goes all the way to the trial stage, it will generally take at least 18 months from when the notice is filed to when the last brief is due and will cost each side in the tens of thousands of dollars.  As with civil litigation, most oppositions do not reach the trial stage, because the parties are able to come to terms and settle the dispute on their own.  But, this often does not occur until sometime in the discovery phase, after both sides have spent a considerable amount on legal fees.

  It is important to note that the object of an opposition proceeding is to prevent registration of the other side’s trademark and, if you are successful, that is your sole remedy.  There are no monetary damages awarded, nor can you recover your legal fees from the other side.  Moreover, while they will lose their ability to register their trademark, it does not necessarily mean the other side will stop using the mark on their goods or services.  In that case, you would have to file a trademark infringement litigation (see below) to get them to stop using the mark, entirely.  In practical terms, succeeding in an opposition will often be enough to get the other side to abandon their mark, because if you were to follow through with a civil litigation, they could be on the hook for treble damages for willful infringement.

Trademark Cancellation

  If you discover the other side’s trademark application after the 30-day opposition window has expired, your only option to challenge the mark at the USPTO is to wait until the trademark actually registers and then to file a trademark cancellation proceeding.  Though there are some differences between cancellation and opposition proceedings, particularly if the challenged mark has been registered for more than five years, they are similar in most procedural respects. 

Trademark Infringement Litigation

  As one might expect, filing a trademark infringement case in federal court is the nuclear option.  Depending upon the jurisdiction, the time frame for completing a litigation may be faster or slower than an opposition or cancellation proceeding at the USPTO.  But, whereas those procedures will likely cost the parties tens of thousands of dollars, a civil litigation will likely reach six figures, or more. 

  The reason for this higher cost is that there are more issues to consider in these cases.  If  your are successful in a civil litigation, you may not only obtain injunctive relief, foreclosing the defendant from all future use of the mark, but also may obtain monetary damages associated with the defendant’s past use of the mark, as well as attorney’s fees expended in the proceeding.  Moreover, if the defendant is found to have willfully infringed your trademark, they may be required to pay treble damages. 

  These issues, which are not even addressed in an opposition/cancellation, add breadth to the scope of discovery taken, which increases the cost.  Further, whereas most opposition/cancellation proceedings are decided without an oral hearing, a civil litigation generally requires live testimony and argument in front of a judge or jury.  These proceedings require a great deal of attorney preparation, dramatically increasing legal fees.

Conclusion

  As the owner of a valid trademark registration, you are obligated to police your mark and failure to do so can result in a dramatic diminishment of your rights or even outright abandonment of your registration.  But, that does not mean you have to file a civil litigation against every minor infringement.  Determining the appropriate path in any given situation requires a careful evaluation of all the circumstances and balancing the risks of action versus inaction.  It is critical to engage a knowledgeable trademark attorney, who will properly assess these risks, your likelihood of success, and the most effective course of action in your case.  

  Brian Kaider is a principal of KaiderLaw, an intellectual property law firm with extensive experience in the craft beverage industry.  He has represented clients from the smallest of start-up breweries to Fortune 500 corporations in the navigation of regulatory requirements, drafting and negotiating contracts, prosecuting trademark and patent applications, and complex commercial litigation. 

bkaider@kaiderlaw.com or call (240) 308-8032

Wine, Widgets & Website Accessibility

By: ADA Site Compliance

Like most businesses today, wineries are grappling with making their websites accessible to users with disabilities. Plaintiffs and their attorneys continue to target the wine industry and have now filed dozens of lawsuits alleging that growers, distillers, distributors, and merchants are non-compliant under the Americans with Disabilities Act (ADA). If the current litigation wave follows that of other verticals recently hit – retail apparel, hospitality, restaurants, travel, among others – the trend will likely persist until every player in the space has either revamped its existing website, built an entirely new one, or closed its doors altogether.

  So how have wineries and vineyards fared so far in facing this new risk? While the final chapter in this story has yet to be written, defendants in such suits across similar retail-based industries have found that their outcomes largely depend on the strategy they choose to adopt. There are three basic approaches. One option is to do nothing at all and hope for the best.

  A second option is to take some incremental step or steps toward improving the website. Often, this involves fixing the easy-to-find compliance failures – issues like color contrast violations and missing alterative (“alt”) text on images. The advantages here are convenience and cost; many software tools can assist with this, and for not much money. The primary disadvantage is that the results are mixed, since no technology can catch every failure. In fact, most automated tools only detect about 20-30% of the non-compliant issues. As a result, while software offers a step toward ADA compliance, it will continue to leave website owners exposed and vulnerable. And given that “copycat” suits are now the norm, your odds of escaping further litigation are low.

  The third option is for wineries to make their websites ADA compliant. The only way to do this is through human expert auditing that involves actual people going through the site manually to check for all 78 “success criteria” under the current web content accessibility guidelines (WCAG 2.1). After that, wineries can use the audit reports to remediate their sites and achieve meaningful compliance. While this option costs more, it remains the only reliable way to stop successive suits. It is also the right thing to do.

Widgets: Savior or Snake Oil?

  Many businesses – not just wineries – turn to third-party accessibility “widgets” as an apparent cure-all. These software plugins or overlays go directly on a website and claim to provide disabled visitors with an expanded set of accessibility tools to help them better navigate the site. To the uninitiated, widgets seem to be the long- sought solution: an inexpensive and easy-to-use button that makes fonts bigger, contrasts sharper, and other enhancements. Their simple integration with any website accounts for their widespread adoption.

  Unfortunately, as lots of their former advocates have found, widgets fail to make any website. In fact, there is reason to believe they make sites less compliant than before and more susceptible to litigation. The reason: the features they offer are already available to users via their browsers, their operating systems, or their assistive devices such as electronic screen readers (JAWS and NVDA are the two most popular). Most users who would benefit from a widget’s functionality already have these options available and are using them when needed. So instead of providing new ways to access information, widgets only succeed in further confusing assistive devices, which now have yet another potential barrier on the website to try to “read” and “understand.”

  Some experts have been vocal in their opposition to widgets as a quick-fix tool. Jeanne Spellman, a 19-year veteran of web accessibility, represents the World Wide Web Consortium (W3C), the group that creates the WCAG guidelines. When asked about the rise of widgets, Ms. Spellman referred to them as “snake oil” and noted their likelihood of exacerbating a website’s accessibility hurdles. “Installing plugins that provide text-to- speech or screen magnification,” she writes, “does not help people who are blind or low-vision, because these inferior plugins interfere with real assistive technology the blind or low-vision person already owns and uses.”

  Fair enough. But what about the benefit of widgets as a risk-mitigation tool? Is there not some advantage that website owners derive from prominently displaying this software on their site? To this, Ms. Spellman offers a definitive no: “Plugins do not help you if you are sued. Additionally, installing a custom overlay over your code … requires changing the custom overlay every time you make a change to your site. In the end, you still have an inaccessible site.” In the end, the only use Ms. Spellman sees for widgets is as a temporary patch while business owners fix their sites.

Take Action Now

  In the short term, what should wineries do in order to minimize their risk of costly litigation? Here are some steps that make for a good start:

•   Hire a true expert in website accessibility. There are many new players in the digital accessibility world, many of whom come from other businesses like web design or marketing. They may be experts in their core business, but they’re not web accessibility specialists. Don’t let them learn on your dime.

•   Post an accessibility statement. This can be simple verbiage on your site that lets visitors know you are addressing the issues. It also lists your contact info so that users can reach you if they need help navigating the site. Nearly every lawsuit filed in his space cites the lack of such a statement on the site.

•   Perform human audits. Again, technology does have some benefit for those looking to gauge their general accessibility level. But it will not make your website compliant. If true accessibility is the goal, you must have human beings auditing your website for all instances of all WCAG errors.

•   Commit to ongoing auditing and maintenance. Post-remediation, you’ll need to periodically review your site to make sure it stays compliant. Your content may change, as do laws and regulations, and so a set-it-and-forget-it strategy can land you back in court. Accessibility is a journey, not a destination. 


  Lastly, remember that website accessibility is about more than merely avoiding lawsuits; it’s about doing what is lawful and making your website accessible to all, which ultimately benefits everyone, including your winery. 


  For more information about becoming ADA compliant, please contact Gemma Petrón at ADA Site Compliance at…

(561) 258-9875; gemma@adasitecompliance.com

or find us at… https://adasitecompliance.com

Fruitful Partnerships: Family-Run Vineyards and Wineries

Mercer Family Estate, Horse Heaven Hills, Washington

By: Cheryl Gray

From grapes to glass, teamwork is at the top of the list of requirements for any successful vineyard  or winery.  And what of the extras that come into play if that team happens to be family? 

  Just ask Brenda Mercer of Mercer Family Vineyards, whose family settled in the Prosser, Washington area in 1886, before Washington became a state.  Three Mercer brothers, Don, Bud and Rick, founded  the fifth-generation enterprise right in the heart of what is now the world-renowned, grape-growing Yakima Valley. 

  “They moved out to the Horse Heaven Hills after World War II to run a cattle and sheep operation, initially.  As things progressed and irrigation water became available, the Mercer (Ranches) began growing row crops such as sugar beets and potatoes.  Under the recommendation of Dr. Walter Clore, Don and Linda Mercer planted the very first wine grapes in the HHH in 1972 on what is now known today as Champoux Vineyard.” 

  Mercer adds that the family has incorporated education and technology into the variety of wine grapes they produce, spread across at least a half-dozen vineyards totaling nearly 1,000 acres.  ”There is a great deal of education and training happening in our neck of the woods in the field of agriculture and viticulture.  We are blessed to have the WSU (Washington State University) Wine Science Center in our back yard.  But even with education and outside training, a lot of knowledge is still gained by hands on experience. “

  John Derrick, Vineyard Manager for Mercer Ranches, has been with the family for three generations.  Derrick points out that the success of this family-run business has always included collaborating with educational partners who are in the region. “We are lucky enough to work with WSU, WSU Tri-Cities, Yakima Valley Community College, Walla Walla Community College and LAEP (Latino Agricultural Education Program).  We also work directly with educators and extension in the vineyard doing experiments and collaborating on new ideas and products. Working with the programs above, we have built up a great team here at Mercer Ranches. “

  Derrick adds that Mercer Ranches has recently placed emphasis on expanding its vineyard operations, providing, he says, the perfect opportunity to try new methods and ideas.  “I have always appreciated     the family’s willingness to try something new and I have seen that first hand with three generations now.  Mercer Ranches was well positioned to mechanize the vineyards because of the vision and drive  provided by Rob (Mercer).”

  Brothers Rob and Will Mercer, both of whom attended Washington State University, have been running the family business since 2010.  Rob is in charge of the farming and viticulture operations.  Will serves as General Manager at Mercer Estates.  In fact, many of the Mercer family offspring either currently work or have worked the farm and vineyards    Liz Mercer-Elliott, another WSU graduate who also trained in winemaking at Hogue Cellars, runs the company’s Carma Wine Club out of its Prosser Tasting Room.  Calvin Mercer, another WSU graduate, runs Austin Sharp Vineyard.  Still other family members have worked in many different facets of the company.

  According to Andrew Martinez, Head Winemaker of Martinez Vineyard & Winery, the Mercer family helped to bring to life his own family’s dream of operating a vineyard and winery in Yakima Valley.  Martinez says his immigrant father, Sergio, and mother, Kristy, a Washington native, bought and planted clones from Don and Linda Mercer back in 1981, planting three acres of Cabernet Sauvignon on property the Martinez family bought on Phinny Hill in the Horse Heaven Hills in 1978.  Martinez was born a year and a half after his father planted the family’s first vineyard. 

  “Helping to lay irrigation, plant grapes, sucker, prune, hoe weeds, shoot thin, and harvest are all things that were fairly normal chores in my upbringing. All the hard work that is spent in the vineyard is the reason for realizing the need to go to college for a better life.”  Martinez graduated from Yakima Valley Community College with a degree in Science and attended as many wine-making seminars and other educational outreach programs as he could.  He honed his wine-making skills four days out of the week while working as a dental hygienist part-time.  In the meantime, Martinez says that his wife, Monica,   who also grew up on a farm and whose grandfather, he says, was among the first winemakers in Prosser making wine from Washington grapes, earned her MBA.  The couple’s return on investment in education, Martinez says, has greatly benefitted the family business.  “Needless to say, wine and grape growing runs thick in our blood.  Monica’s MBA and my Science degrees have helped the vineyard and winery be elevated with tools they needed to be more successful.”

  Martinez says the family made the leap from grape growers to wine makers in 2005.   “… I talked my dad into making two barrels of wine for our first 50 cases. For years, we had sold the grapes but now, it was time to start utilizing them ourselves. It was time to show all the hard work and dedication in the vineyard to everyone!  Barrel-aging wines for 24 months, we had time to stockpile vintages and slowly increased amounts until 2007, where we started selling in a corner of a shared room at Winemakers Loft.  In 2009, the facility was sold and new owners wanted to fill actual tasting rooms. So, we were up with a hard decision. Was it time to have an actual tasting room of our own?  Being a microscopic winery, it was either sink or swim and we decided to go for it.  Thirty-eight years after the vineyard was planted, 14 years after our first two barrels of wine made, and 10 years after having the tasting room opened, we are making over 2,000 cases of wine and selling 95% of that through that same door each year.”

  Martinez says the business tasks are now split among the family members.  While he serves as Head Winemaker, Sergio Martinez is Grape Grower, Kristy Martinez is in charge of Tasting Room/Hospitality and Monica Martinez is Business Manager.

  Two Mountain Winery is a fourth generation enterprise headed by brothers Matthew and Patrick Rawn.  Located in Yakima Valley near Zillah, the Rawn brothers oversee 228 acres of wine grapes on seven vineyard sites used not only for their own wine production but also for their winery grape clients.

  Patrick Rawn, who is General Manager and Head of Vineyard Operations, says that once the brothers returned to their family’s land, they focused their interest, passion and skillset(s) on producing grapes for making wine, transforming what was once a family-owned tree fruit farm into a successful vineyard and winery.  They planted the first vineyard in 2000.  “Our production facility and a couple of our vineyards are located on the farm our grandparents started in 1950, near where our grandfather grew up farming… it is very important to us we honor our history and their legacy. “