Chipo­tle un­der crim­i­nal probe

Den­ver- based Chipo­tle Mex­i­can Grill is un­der crim­i­nal in­ves­ti­ga­tion af­ter more than 200 peo­ple were sick­ened in a norovirus out­break at one of its Cal­i­for­nia restau­rants, the lat­est in an uptick of food- ill­ness pros­e­cu­tions thatwere once al­most nonex­ist

The Denver Post - - FRONT PAGE - By Ali­cia Wal­lace and Jen­nifer Brown

The in­ves­ti­ga­tion, re­vealed in a cor­po­rate fil­ing, is un­usual be­cause it fo­cuses on norovirus— typ­i­cally a non- deadly, 24- hour sick­ness — and on a sin­gle restau­rant. Re­cent crim­i­nal in­ves­ti­ga­tions have tar­geted com­pa­nies and their ex­ec­u­tives that shipped peanuts, can­taloupes, eggs and ice cream linked to se­ri­ous ill­ness and deaths across the coun­try.

Chipo­tle has been rocked by a se­ries of food­borne ill­ness out­breaks at some of its restau­rants in the past five months that al­legedly sick­ened hun­dreds of peo­ple with E. coli, norovirus and sal­mo­nella.

The crim­i­nal in­ves­ti­ga­tion fo­cuses on a norovirus out­break linked to a Simi Val­ley, Calif., store that in­fected 234 peo­ple.

Fred Pritzker, a Min­nesota at­tor­ney rep­re­sent­ing sev­eral vic­tims of the Chipo­tle out­breaks, said fed­eral in­ves­ti­ga­tors must have dis­cov­ered “in­side in­for­ma­tion” about neg­li­gence or the sever­ity of ill­nesses. “There was some­thing that came up that was un­usual and egre­gious.”

Pritzker wel­comed the probe. “It sounds like there is an el­e­ment within the Depart­ment of Jus­tice that says, ‘ Yes, we should be look­ing at th­ese cases,’ and that is a good thing,” he said. “When ex­ec­u­tives have­more skin in the game, it’s more likely to change their be­hav­ior.”

Chipo­tle last month re­ceived a fed­eral grand jury sub­poena in con­nec­tion with the Au­gust out­break in Simi Val­ley, the com­pany dis­closed in a fil­ing with the U. S. Se­cu­ri­ties and Ex­change Com­mis­sion.

Fed­eral pros­e­cu­tors and U. S. Food and Drug Ad­min­is­tra­tion au­thor­i­ties de­clined to com­ment. Spe­cific de­tails about the in­ves­ti­ga­tion, in­clud­ing po­ten­tial charges, were not dis­closed. Chipo­tle of­fi­cials said in the fil­ing that they in­tend to fully co­op­er­ate with the in­ves­ti­ga­tion.

Ven­tura County health records ob­tained by Food Safe­tyNews showthat dozens of pa­trons—

among them chil­dren from a nearby school — and at least 17 employees of the restau­rant re­ported gas­troin­testi­nal ill­ness in the days fol­low­ing Aug. 18. A sub­se­quent health in­spec­tion found vi­o­la­tions that in­cluded an em­ployee’s cell­phone placed on the food prepa­ra­tion ta­bles, cooked beef held at tem­per­a­tures be­low135 de­grees, fruit flies near the soda and re­cy­cling sta­tions, and employees that did not possess a valid food han­dler card.

“We be­lieve the source was a sick em­ployee, butwe can­not con­firm that due to the tim­ing ofwhen­wewere in­formed,” said Doug Beach, ad­min­is­tra­tive ser­vices and east county com­mu­nity ser­vices man­ager for Ven­tura County’s En­vi­ron­men­tal-Health Di­vi­sion.

Chipo­tle in­sti­tuted a paid sick leave pol­icy July 1, and of­fi­cials have said that employees who come to work sick are in vi­o­la­tion of com­pany poli­cies.

A fed­eral crim­i­nal in­ves­ti­ga­tion tied to a sin­gle restau­rant is un­prece­dented, saidWil­liam Mar­ler, a Seat­tle­based food safety at­tor­ney who led high- pro­file cases against com­pa­nies such as Jack in the Box. Mar­ler is rep­re­sent­ing cus­tomers who al­legedly be­came sick af­ter eat­ing at Chipo­tle restau­rants in Seat­tle, Min­nesota, Bos­ton and Simi Val­ley.

“There’s got to be some­thing that’s hap­pen­ing that is not read­ily ap­par­ent,” Mar­ler said. “A lot of times in th­ese food­borne ill­ness in­ves­ti­ga­tions, it’s not nec­es­sar­i­ly­what brings the FBI or crim­i­nal in­ves­ti­ga­tors to your fa­cil­ity that gets you; what usu­ally gets you is what they find when they get there.”

Chipo­tle’s stock shed more than 30 per­cent of its value af­ter cus­tomers first re­ported they be­came ill with E. coli af­ter eat­ing at restau­rants in Seat­tle.

Since the out­breaks, Chipo­tle has tem­po­rar­ily shut­tered restau­rants to clean them and throw out food, tight­ened food safety pro­ce­dures and changed cook­ing and food prepa­ra­tion mea­sures.

Still, Chipo­tle’s sales fell more than 16 per­cent na­tion­wide, the com­pany said early last month.

On Wed­nes­day, Chipo­tle said sales have taken an even deeper dive.

Fol­low­ing the Bos­ton norovirus out­break that al­legedly sick­ened more than 100 Bos­ton Col­lege stu­dents in De­cem­ber, and word that the U. S. Cen­ters for Dis­ease Con­trol was in­ves­ti­gat­ing five new E. coli cases that cropped up in Novem­ber, com­pa­ra­ble store sales sank 37 per­cent, Chipo­tle said in the SEC fil­ing.

In De­cem­ber, com­pa­ra­ble store sales— rev­enue from restau­rants that have been open at least a year— were down 30 per­cent.

Chipo­tle expects to re­port a 14.6 per­cent drop in its fourth- quar­ter rev­enue and in­cur ex­penses as high as $ 16 mil­lion to cover the cost of re­plac­ing food, con­duct­ing lab­o­ra­tory anal­y­sis, hir­ing food- safety ex­perts and preparing for le­gal costs. Fourth- quar­ter and full- year earn­ings will be re­ported Feb. 2.

Shares of Chipo­tle closed at $ 426.67 Wed­nes­day, down more than 40 per­cent since the first E. coli cases were re­ported in Oc­to­ber.

Crim­i­nal pros­e­cu­tion in food ill­ness­was nearly nonex­is­tent un­til the past couple of years.

In 2014, Colorado can­taloupe farm­ers Eric and Ryan Jensen were sen­tenced to five years of pro­ba­tion and or­dered to pay $ 150,000 to vic­tims and their fam­i­lies in a first-ofit­skind crim­i­nal case.

Lis­te­ria- con­tam­i­nated mel­ons from their south­east­ern Colorado farm killed 33 peo­ple in 2011.

Charges against the Jensens did not ac­cuse the broth­ers of caus­ing the out­break on pur­pose, but with in­tro­duc­ing adul­ter­ated food into the food sup­ply.

Fed­eral pros­e­cu­tors can bring mis­de­meanor- level cases based on the dis­tri­bu­tion of con­tam­i­nated food, re­gard­less of who knew what or when they knew it. But they have rarely done so, saving their fire­power for felony cases with an el­e­ment of mal­ice.

Be­fore the Jensens, food­safety pros­e­cu­tions were un­pre­dictable. Most cases were set­tled in civil court af­ter vic­tims or rel­a­tives sued the re­spon­si­ble com­pany. Many of the set­tle­ments were kept confidential, lend­ing no pub­lic knowl­edge that would im­prove food- safety prac­tices.

In Septem­ber, a for­mer peanut com­pany ex­ec­u­tive was sen­tenced to 28 years in prison in Ge­or­gia for his role in a 2008- 09 sal­mo­nella out­break that killed nine peo­ple.

Fed­eral of­fi­cials had rec­om­mended life be­hind bars for Ste­wart Par­nell, whose com­pany, Peanut Corp. of Amer­ica, was ac­cused of ship­ping peanuts and peanut but­ter toman­u­fac­tur­ers such as Kel­logg Co. even though it was aware they were con­tam­i­nated.

In April, two egg pro­duc­er­swere sen­tenced to three months in jail af­ter plead­ing guilty to sell­ing salmonel­la­con­tam­i­nated eggs from their Iowa farms. The 2010 out­break sick­ened thou­sands of peo­ple. Pros­e­cu­tors al­leged Jack DeCoster and son Peter knew their eggswere at risk for the dis­ease

In May, ConA­gra Foods agreed to pay $ 11.2 mil­lion to set­tle fed­eral charges that it shipped salmonel­latainted Peter Pan Peanut But­ter that­made 625 peo­ple sick in 2007. Ex­ec­u­tives were not charged.

Just last week, the U. S. Depart­ment of Jus­tice opened a crim­i­nal in­ves­ti­ga­tion into Blue Bell Cream­eries, The Wall Street Jour­nal re­ported, cit­ing un­named sources close to the sit­u­a­tion. Lis­te­ria con­tam­i­na­tion at one of the Texas- based ice cream maker’s plantswas linked to the deaths of three peo­ple and the ill­ness of sev­eral oth­ers.

Andy Cross, The Den­ver Post

Pa­trons of a Chipo­tle restau­rant in down­town Den­ver line up for lunch onWed­nes­day.

Chipo­tle is un­der crim­i­nal in­ves­ti­ga­tion at one of its Cal­i­for­nia restau­rants. John Leyba, The Den­ver Post

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