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NAME AND TITLE: Robert R. Nielsen, vice president, law and government, and general counsel AGE: 58 HANDLING DISCRIMINATION: In 1998, the U.S. Equal Employment Opportunity Commission (EEOC) sued California-based produce company Tanimura & Antle for sexual discrimination. The EEOC charged that a manager had sexually harassed a female employee and then the company fired the employee and her boyfriend after they objected to the hostile work environment. The complaint also alleged that other Tanimura & Antle workers were subjected to similar harassment and retaliation. T&A General Counsel Robert Nielsen said that T&A acted promptly after learning of the allegations to determine the facts and fire the manager responsible. Dealing with the legal fallout took more time. After nearly two years of litigation, Nielsen helped to negotiate a $1,855,000 settlement that resolved the EEOC complaint, as well as claims by other potential plaintiffs. T&A also agreed to a three-year, companywide EEO training program, said Nielsen. The allegations of sexual harassment were “absolutely anathema” to the two families that own and run T&A, said Nielsen. What T&A went through reaffirmed “what this company stands for, which is that sort of behavior is completely and absolutely unacceptable,” he said. SALAD MAKER: Headquartered in Salinas, Calif., Tanimura & Antle is America’s largest privately owned producer and distributor of lettuce and also a grower of almost every other vegetable in the produce aisle. The company combines two farming families. George Tanimura lost his Salinas Valley family farm when his Japanese-American family was interned after Pearl Harbor. After the war, Tanimura bought a 20-acre lettuce farm and sold his crop to Bud Antle, an Oklahoma Dust Bowl refugee turned lettuce packer. The families combined businesses in 1982. T&A now farms on more than 40,000 acres of cropland in California and Arizona, and ships packaged and precut vegetables and bagged salads throughout the U.S., Asia and Europe. The company is close-mouthed about finances, with Nielsen revealing only that annual revenues are “comfortably in the mid to upper nine figures.” T&A employs about 3,000 workers, all nonunion except for factory workers in its plant outside Montreal. LAWYERS AND LETTUCE: Nielsen supervises two assistant general counsel. Carmen Ponce, who is also vice president of human resources, handles employment law matters. Jerome Politzer deals with corporate and finance work. “Five percent of our time and dollars go to claims and litigation,” said Nielsen. “The rest is planning and preventative.” Nielsen concentrates his time on international work, governmental relations and transactions, he said, estimating that he has closed deals on 20 major acquisitions during his decade at Tanimura & Antle. The company is organized so that the Tanimura and Antle families have an equal stake and equal say in all aspects of the business, Nielsen said. Thus, after the negotiations and due diligence work in any major acquisition, Nielsen has the additional task of ensuring that both families have the same level of oversight and interest in the new property. Although Tanimura & Antle is a family firm, Nielsen said, he manages its legal affairs as if it were a publicly traded company. “We act as if underwriting counsel is going to walk in here and want to see everything,” he said. PERISHABLE PRECEDENT: The Perishable Agricultural Commodities Act (PACA) never comes up in bar exams, but the statute is a must-read for lawyers representing farmers or buyers or sellers of fresh fruit and vegetables. PACA imposes a constructive trust on proceeds from the sale of perishable produce, making the farmer or intermediate seller a preferred creditor for insolvent buyers. PACA’s protections are critical in dealings with produce markets, which are often high-volume, low-budget operations, said Nielsen. One such outfit, Packed Fresh Produce of New Jersey, stiffed T&A after running up a $1.5 million tab, he alleged. The company invoked PACA, and petitioned the U.S. District Court in New Jersey for a preliminary injunction to prevent Packed Fresh from dissipating its PACA trust assets. The court refused, ruling that T&A had an adequate remedy at law for money damages, and suggesting that injunctive relief under PACA was reserved for the federal government, not private litigants. Although Packed Fresh assets were long gone before T&A could argue its appeal, Nielsen said, the company eventually won a ruling affirming that produce sellers are entitled to equitable remedies under PACA. Tanimura & Antle v. Packed Fresh Produce, 222 F.3d 132 (3d Cir. 2000). FIGHT OVER FARMLAND: Closer to home, Nielsen has been sparring with land-use planners and “anti-sprawl” citizens over the zoning of T&A’s Salinas Valley farmland. The area is under intense development pressure, with farmland going for more than $35,000 an acre and house prices rivaling those in nearby Silicon Valley. T&A farm workers are sometimes forced by steep rents to sleep in their cars or commute long distances to work, he said. T&A cropland near Spreckels, Calif., includes 73 parcels zoned for residential use. The company has no plans to sell or build on this, Nielsen said, but wants to keep its options open to develop affordable housing for its employees. Last year, the Monterey County zoning board declared that these lots were “unbuildable,” said Nielsen, prompting the company to hire a local land-use attorney to argue that the board’s action amounted to a Fifth Amendment taking. The presence of a T&A lawyer at zoning board meetings alarmed local citizens and anti-sprawl activists, who feared that the company was about to capitalize on its prime real estate. The dispute is being defused without litigation, said Nielsen, who explained that the company has persuaded the zoning board to respect the residential zoning of the disputed lots. PRINCIPAL OUTSIDE COUNSEL: Pillsbury Winthrop handles T&A’s corporate, finance and international trade work, and Howard, Rice, Nemerovski, Canady, Falk & Rabkin of San Francisco is the main litigation counsel. In Canada, T&A is represented by the Montreal office of New York’s McCarthy T�trault. For water-law matters, Nielsen turns to Sacramento, Calif., firms Downey Brand Seymour & Rohwer and Ellison & Schneider. GROWING SEASON: A native of Bairnsdale, Australia, Nielsen’s family moved to Los Gatos, Calif., when he was a high school freshman. He has a B.A. in economics from Stanford University and received his law degree from Columbia University in 1970. After a clerkship with U.S. District Judge William P. Gray in Los Angeles, Nielsen associated with Heller Ehrman White & McAuliffe. In 1974, Nielsen went in-house at Castle & Cooke Inc., a conglomerate with diverse holdings including international real estate, Dole’s pineapple and banana businesses, Bumble Bee Seafoods and a food business owned by the Antle family. Nielsen became general counsel in 1981. In 1985, Castle & Cooke was acquired by “white knight” investor David Murdock, and Nielsen became a partner at Howard Rice. He worked primarily on mergers and acquisitions and startups, including the 1982 creation of Tanimura & Antle, which became an “increasingly major and very interesting client.” He came aboard as general counsel in 1993. PERSONAL: Robert and Katherine Nielsen have been married for 34 years and have two children in college. LAST BOOKS READ: “Guns, Germs and Steel,” by Jared Diamond, and “10 Poems To Change Your Life,” by Roger Housden.

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