A rabbi who worked for the Orthodox Union, the world’s biggest kosher certifier, for 20 years is claiming in a lawsuit that the agency acquiesced to demands from Manischewitz, a client and the iconic matzo-maker, that it soften its standards.
The O.U. let Manischewitz hire and pay for its own kosher inspector, a practice that is “considered unacceptable throughout the kosher food industry” and that creates a conflict of interest, according to the lawsuit, filed by Rabbi Yaakov Yitzchak Horowitz against both the O.U. and Manischewitz in April and pending in Manhattan Supreme Court. The suit also says Manischewitz sold macaroons labeled kosher for Passover that in fact were not.
“The clear, but unstated, message by the O.U. to Rabbi Horowitz was that if Rabbi Horowitz wanted to keep working he should do everything in his power to keep Manischewitz happy, even if this meant compromising his personal religious principles and failing to follow established O.U. guidelines,” the lawsuit states.
The defendants are behemoths in the $12.5 billion kosher market.
The Manischewitz Company, which was founded in 1888, bills itself as “the world’s largest matzo manufacturer and one of America’s most prominent kosher brands.” In 2014, the Newark, New Jersey-based company was purchased by Sankaty Advisors, part of the private-equity firm Bain Capital. Manischewitz is expected to undertake an aggressive expansion under its new owner.
OU Kosher claims to certify over 900,000 products and ingredients in 94 countries around the world – nearly two-thirds of the kosher market, it says.
The agency “categorically rejects” the assertions in Horowitz’s lawsuit, according to a statement delivered to the Forward:
“The O.U.’s kashrut supervision meets the highest standards, and our procedures at Manischewitz have always conformed to these high standards and continue to do so…. Rabbi Horowitz’s claims, for whatever reason they were brought, are entirely meritless.”
The Manischewitz Company and its publicist promised a statement by press time, but did not deliver one.
Horowitz also accused Manischewitz of violating its own standards by shipping Passover flour in wet containers and running non-Passover products on kosher-for-Passover equipment.
In addition to these alleged offenses, the lawsuit contains several pages of examples of what it describes as the “unspoken agreement between the O.U. and Manischewitz.” But at bottom, the suit is not about kashrut.
Instead, it’s about the O.U.’s treatment of Horowitz as an employee, and whether the O.U. is defrauding the public if it has truly lowered its standards.
Secular law does not, in fact, regulate kashrut, Horowitz’s lawyer, Arnold Pedowitz of the New York firm Pedowitz & Meister, told the Forward. But the lawsuit addresses the kashrut in detail to make its point. “This case says that the level of kashrut that the community has come to expect is not being observed by the O.U. in respect to the Manischewitz plant where Rabbi Horowitz had been working,” Pendowitz said.
According to Pedowitz, the suit asks for an injunction to stop the O.U. from “engaging in deceptive trade practices”; demands a million dollars in damages “for how badly Rabbi Horowitz was treated,” and includes several other claims for monetary damages around emotional distress, loss of income and damage to Horowitz’s reputation.
But “the question I have is whether the court will make any judgment at all,” said historian Roger Horowitz, author of the recently published book “Kosher USA” and no relation to the plaintiff. “Since the 1990s, courts have been highly reluctant to become involved in issues involving kosher regulations or rules.”
In one precedent-setting 2012 lawsuit, plaintiffs argued that Hebrew National hot dogs weren’t made from “100% kosher beef” as advertised.
In 2014, the Minnesota federal court Judge Jerome Abrams referred the case to a higher authority.
“It would be unholy, indeed, for this or any other court to substitute its judgment on this purely religious question…. No court in the land can pick a side, interpretation or point of view as to whether those religious requirements are met or unmet in these circumstances.”
Such precedents stack the odds against Horowitz, agreed Timothy Lytton, author of the 2013 book “Kosher: Private Regulation in the Age of Industrial Food.”
“You can’t file a lawsuit to claim that standards aren’t high enough,” said Lytton, a Distinguished University Professor and a professor of law at Georgia State University, in Atlanta. “If the O.U. symbol’s on there, and the O,U,’s registered with the state, and it’s their people making decisions, then it’s legal. Saying the standards are too low gets into First Amendment issues.”
Horowitz’s case does make some claims that a secular court might be able to decide, in the area of labor law or consumer fraud.
“Rabbi Horowitz became worn down, abused, and ultimately could no longer function” at his job, Pedowitz said.
But even on those points, the suit is weak, Lytton and Horowitz said.
In 2015, after working for the O.U. for 19 years, the agency ordered Horowitz, at Manischewitz’s behest, to clock in on the company’s time clock, which “seems to have been formulated to humiliate Rabbi Horowitz,” the lawsuit states. O.U. staff also yelled at Horowitz, once in public.
But O.U. and Manischewitz’s treatment of Horowitz doesn’t rise — or sink — to the level necessary for a judge to award him damages, Lytton said.
“In legal terms, you have to prove extreme and outrageous conduct that exceeded the bounds of decency,” Lytton said. “My sense is that this kind of employer-employee dispute, while clearly unpleasant, doesn’t qualify as extreme and outrageous.”
Horowitz doubts it’s in the O.U.’s best interest to defraud its public, even for a client as massive as Manischewitz.
“The O.U.’s been in business a long time, and I don’t think they’re dependent on one client,” Horowitz said. “Let’s remember they’re certifying Oreo cookies and Coca-Cola. They have diverse revenue streams, and those would be threatened if the brand [were] weakened.”
Complaints about kosher certifiers are almost as old as kashrut itself, Lytton added.
“People are very fond of declaring that regulatory systems don’t work, often without metrics to back it up,” Lytton said. “The system’s better now than it was a century ago. There was fraud, and a lot of local monopolies.”
Michael Kaminer is a contributing editor at the Forward.