Kenneth Ryesky
Kenneth Ryesky

Respondeat Superior and Ice Cream

Respondeat Superior” (Latin for “Let the master answer) is legalspeak for the principle behind the familiar phenomenon of suing an employer for an employee’s harmful action done within the scope of employment.  This includes (but is hardly limited to) hospitals being sued for the medical malpractices of its staff physicians, governments being sued for the abuses perpetuated by corrections officers in governmental prisons, and Egyptair being successfully sued for what likely was a murder-suicide committed by a pilot who intentionally crashed its Flight 900 on 31 October 1999.  The obvious reason for such a strategy is that an employer almost always has more assets from which recovery can be had than the assets held by the errant employee.

From its beginnings in 13th Century England as a means to hold public officials such as sheriffs accountable for the excesses of their deputies, the Respondeat Superior doctrine has since expanded from the realm of local government officials to private sector employers, and even to those who control inanimate corporate entities;

The Respondeat Superior dynamic is now being invoked in conversations relating to the ongoing Ben & Jerry’s ice cream tiff.  Specifically, the question is one of whether, how, and to what extent Unilever, as the owner of Ben & Jerry’s, ought be made to account for the latter’s “economic terrorism” in discontinuing its licensure of its product to an Israeli concern.

[It is interesting how the leftist anti-Israel cliques can simultaneously condemn Israel for restricting the movement of goods into Gaza while BDS‑ing an Israeli business for purveying its wares in Judea and Samaria.].

This posting is being written without the benefit of having read two key documents; (1) Unilever’s acquisition agreement with Ben & Jerry’s, and (2) Ben & Jerry’s franchise agreement with the Ben & Jerry’s Israel entity.  These documents may well get public exposure if any or all of various threatened legal actions are in fact commenced; until then, their substance can be roughly determined based upon press releases and other sources.

Per Unilever’s non-disavowal disavowal statement, its acquisition agreement for Ben & Jerry’s has “always recognised the right of the brand and its independent Board to take decisions about its social mission.”  In other words, Unilever now claims that it is powerless to control its own subsidiary!

Unilever’s non-disavowal disavowal statement also insists, “We remain fully committed to our presence in Israel.”  That contention would be far more credible if, on the “Our Brands” page on Unilever’s own website, Israel were not totally omitted from the “All Locations” drop-down menu (and Israeli brands were not completely absent from the “Type a brand name” drop-down menu).  Unilever, then, is effectively participating in a boycott of Israel!

I, for one, accordingly take the position that Unilever itself needs to feel some steep economic consequences for the anti-Israel actions of its Ben & Jerry’s unit.  I urge everyone to refrain from (or at least cut back on) purchasing all Unilever products; Unilever itself needs to be targeted.  This is war!  A “vigorous response” is warranted.

At this point, some clarification of my position is in order:

Firstly, though I say that the goodwill value of the Ben & Jerry’s brand name needs to be deprecated worldwide (including in Israel), there are those who say that until the Israel franchise agreement expires in 2022, the Ben & Jerry’s Israel entity should be supported.  I do not dispute that Avi Zinger, the Ben & Jerry’s Israel CEO, has staunchly resisted his franchisor’s pressure to BDS, and that he is worthy of support.  But he presumably owns (or controls) the plant and equipment with which the ice cream in Israel is manufactured and distributed, he is an astute business entrepreneur, and he now has an opportunity to either secure another brand of ice cream franchise and/or innovate his own new brand (it is highly likely that Avi Zinger has already begun to contemplate a strategy for remaining in business after the franchise is non-renewed by the franchisor).  Though I advocate eschewing all Ben & Jerry’s products everywhere, I will respect those who choose to support Avi Zinger’s enterprise.  This is a matter of voting per your own conscience.

The second clarification relates to the kosher certification of Ben & Jerry’s products.  There are calls from various quarters to have the kosher certifying agencies end their hashgacha.  This certainly is a “feel good” thing for supporters of Israel, but I do not believe that it is a wise strategy.  The kosher supervision world is fraught with controversy.  I have already written about the dangers of the healthcare profession’s delivery of its service being influenced by political agendas; the kosher certifiers are also susceptible to analogous corruption if they become too politicized.  Let the kashrut supervisors stick with real kashrut issues.

Forty-something  years ago, there was some dissatisfaction amongst my clique regarding how the Philadephia “Jewish establishment” was ignoring certain issues of little direct relevance to this current Ben & Jerry’s ice cream fiasco.  Wholesale summary dismissal was initially encountered at a meeting where we sought to make our stance on the issues known, until one of us reminded the Jewish Federation people that if they failed to give serious regard to us, then they would inevitably end up having to confront certain people who essentially shared our stance, but over whom we wielded no control, and who were, shall we say, not necessarily as reasonable and rational as we were (members of the Jewish Defense League’s Philadelphia chapter had recently gotten some ink in the newspaper headlines, including a local incident which elicited international diplomatic repercussions).

Their attention directed to the existence of extremist elements, the Philadelphia “Jewish establishment” at least ended up acknowledging that our issues were valid (though their actual handling of the issues did leave something to be desired).

Given the gap between Unilever’s purportedly pro-Israel pronunciamentos and the obscuration of all things Israel on its website, I have chosen to take a strident stance that the doctrine of Respondeat Superior needs to be broadly applied to Unilever, in hopes of enabling others to reach a fair and just resolution in the interests of Israel’s ice cream purveyors and consumers alike.  But Unilever should be mindful that there are other individuals and groups, over whom I wield no influence or control, who are far less reasonable and rational than myself.

About the Author
Born in Philadelphia, Kenneth lived on Long Island and made Aliyah to Israel. Professionally, he worked as a lawyer in the USA (including as an attorney for the Internal Revenue Service), a college professor and an analyst for the U.S. Department of Defense. He's also a writer and a traveler.
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