Whole Foods, Inc. is fighting back with legal action and security video it says contradicts an Austin pastor’s claim that he received a cake from the company's flagship store Downtown that had a gay slur on it.
"For me, it was humiliating," Jordan Brown said Monday in a news conference as he held back tears.
The openly gay pastor said he ordered a cake with the phrase "Love Wins" on it last Thursday and instead got a cake with the message and an additional slur.
Brown's attorney, Austin Kaplan, filed a lawsuit against the grocer for intentional infliction of emotional distress. The next day, Whole Foods fired back saying it's standing by it's employees and had filed its own lawsuit accusing Brown of defamation.
"A counter suit this quick is very, very rare," said Austin Attorney Brad Bonilla of Bonilla Law Firm. "And I think the message with filing a counter suit that quick suggests that Whole Foods is vigorously intending to fight this and that they really believe this suit is without merit and baseless."
Whole Foods calls the accusations fraudulent and released video of Brown checking out that they say proves it (Brown's purchase can allegedly be seen in the lower right corner of the surveillance video). According to the company, when the cashier scans the UPC on the box the label is on the top of the box. That counters a video released by Brown's attorney. In it Brown says the box is unopened and still has the label, but that label is on the side of the box.
Whole Foods is also filing sanctions against Brown's attorney which would require him to pay all costs associated with the lawsuits.
"An attorney has an ethical duty to ensure that they have a reasonable belief that this claim is not frivolous. And so the attorney would have to do some type of investigation to ensure that this is a viable case to present," Bonilla explained.
Bonilla says Brown's attorney now has to find more evidence, as the case of the cake continues.
"In four days, you would hope that the attorney had tried to interview witnesses, had tried to substantiate phone records about when the calls were made, that there is some sort of objective proof that supports what your client's saying happened really did happen," said Bonilla.
Whole Foods released the following statement Tuesday:
- Our bakery team member wrote “Love Wins” at the top of the cake, which was visible to Mr. Brown through the clear portion of the packaging. That’s exactly how the cake was packaged and sold at the store. Whole Foods market has a strict policy that prohibits team members from accepting or designing bakery orders that include language or images that are offensive
- Mr. Brown admits that he was in possession and control of the cake until he posted his video, which showed the UPC label on the bottom and side of the box.
- After reviewing our security footage of Mr. Brown, it’s clear that the UPC label was in fact on top of the cake box, not on the side of the package. This is evident as the cashier scans the UPC code on top of the box.
- We stand behind our bakery team member, who is part of the LGBTQ, and we appreciate the team members and shoppers who recognize that this claim is completely false and directly contradicts Whole Foods Market’s inclusive culture, which celebrates diversity.
The company ended a statement on the alleged incident with a photo of staff members and the hashtag, #LOVEWINS.
Kaplan released the following statement Tuesday afternoon in response to the countersuit:
“At this time we are aware of the Whole Foods’ press release, the alleged security video, and the countersuit by Whole Foods against Pastor Brown, and we are currently investigating these allegations.”
He also told KVUE News he is preserving the cake and box as evidence.