Category Archives Firm News

Shook Partners Paul La Scala and Naoki Kaneko, with Associate Emily Weissenberger, will join Western Growers Vice President and General Counsel Jason Resnick for a complimentary webinar on the Safe Drinking Water and Toxic Enforcement Act (Prop. 65). The webinar will cover (i) Prop. 65 warnings at facilities; (ii) product labels on packaging and websites; (iii) special considerations for the produce industry; and (iv) the anatomy of a Prop. 65 case.

Shook, Hardy & Bacon has been named the “Top Firm for Food & Beverage” news in the JD Supra 2018 Readers Choice Awards, chosen by readers from more than 50,000 authors whose work was published on the site in 2017. Madeleine McDonough and Mark Anstoetter were ranked first and second “Top Authors” in Food & Beverage out of 800 authors, and McDonough was ranked second in “Top Authors” in the Class Action category.

Shook, Hardy & Bacon Partners Jim Muehlberger and Lindsey Heinz, along with Associate Naoki Kaneko, will present at the Grocery Manufacturers Association (GMA) 2018 Legal Conference February 27-28, 2018, in New Orleans, Louisiana. Heinz will join a “Roundtable Discussion on Legal Issues for Organic Products," which will center on the continual market growth of organics, encompassing food, beverage, personal care and household products. The session will provide a comprehensive review of legal issues surrounding organic products. Muehlberger and Kaneko are presenting “Trends in Consumer Goods Class Action Litigation,” a breakout session that will broadly examine the types of claims the plaintiff’s bar has filed across the consumer goods industry to help companies better anticipate litigation risks.

Partner Katie Gates Calderon was a panelist at the Food and Drug Law Institute (FDLI) Food Advertising, Labeling and Litigation Conference in Washington, D.C., September 13-14, 2017. She joined Jessica Almy, policy director at The Good Food Institute, and moderator Stuart M. Pape of Polsinelli PC in a discussion of “Naming of Plant-Based Food Products and Standards of Identity.” The panel explored legal issues in naming and the role of standards of identity in the ever-growing world of alternative products.

Shook Partners Lindsey Heinz and Katie Gates Calderon, with Associate Hillary Nicholas, have authored an article for Law360 discussing regulations related to the use of photography during a U.S. Food and Drug Administration (FDA) inspection of a production facility. "Despite the void of statutory authority, the FDA continues to instruct its inspectors to 'not request permission from management to take photographs during an inspection' and to instead simply begin taking photos and video," the authors explain. "Should a company object to these tactics, inspectors are encouraged to '[a]dvise management the U.S. Courts have held that photographs may lawfully be taken as part of an inspection.' However, the two cases the FDA cites in support of this assertion — Dow Chemical Co. v. U.S. and U.S. v. Acri Wholesale Grocery Co. — do not stand for the unequivocal proposition suggested by the FDA." Heinz, Gates Calderon and Nicholas advise companies to…

As plant-based beverages appear on more store shelves, the definition of “milk” has become the center of a dispute involving legislatures, regulators, litigators and industry groups. Shook Partners Katie Gates Calderon and Lindsey Heinz, with Associate Elizabeth Fessler, explain the debate in “Dairy Vs. Plant-Based ‘Milks’: A Regulatory Standoff." While Canada and the EU have both ruled that plant-based products cannot be called “milk,” the U.S. Food and Drug Administration (FDA) has yet to take determinative action to ensure that products using "milk" contain cow milk, though it does define the term as “obtained by the milking of one or more healthy cows." Although FDA has warned plant-based beverage manufacturers, the agency has not taken enforcement action against such products and has never ruled on a 1997 petition to allow the use of the term “soymilk.” Moreover, legislation has been introduced in both houses of Congress (H.R. 778; S.130) that…

Food and beverage companies offering retail sales on the web are facing a wave of lawsuits filed by visually impaired plaintiffs alleging that the companies’ failure to design websites that work with adaptive screen-reading software violates the Americans with Disabilities Act (ADA). In “Because of ‘Winn-Dixie’?: Uncertainty over ADA’s Applicability to Websites Deepens,” Shook Partner Frank Cruz-Alvarez and Associate Rachel Canfield examine a recent ruling in the Southern District of Florida holding that a grocery chain violated Title III of the ADA because its website was inaccessible. Cruz-Alvarez and Canfield summarize Gil v. Winn-Dixie Stores, No. 16-23020 (S.D. Fla. June 12, 2017), and explain that federal courts are split on the issue of whether the ADA applies to non-physical spaces, leaving “a whole new host of legal challenges. . . . There is very little structure, and even less clarity, in this emerging area of the law.” In the interim, the authors say,…

Shook, Hardy & Bacon Partner Cary Silverman explains in an April 17, 2017, Law360 article that a six-­fold growth in slack-­fill lawsuits stems from a “precise template” developed by plaintiffs' lawyers seeking to pressure companies into out­of­court settlements. “I call them ‘shake the box’ lawsuits,” reports Silverman. “If you can hear the product shake, you’ve got a lawsuit. You just plug it into your template, take a photo, and you’re ready to go.” Law360 quotes Silverman's report on food lawsuits for the U.S. Chamber Institute for Legal Reform, “The Food Court: Trends in Food and Beverage Class Action Litigation,” which he co-­authored with Shook Partner Jim Muehlberger. Silverman also presented “All You Can Eat Lawsuits: Restoring Sanity to Food Litigation," discussing the report's findings, for a CLE at the University of Cincinnati College of Law on April 13, 2017.   Issue 632

Shook Partner Bert Ocariz served as an arbitrator in a dispute between Fresh Del Monte Produce Inc. and Inversiones y Procesadora Tropical SA that concluded with an award of $32 million to Del Monte. Del Monte Int'l GmbH v. Inversiones y Procesadora Tropical SA, No. 20097/RD (Int'l Chamber of Commerce). Del Monte argued that the Costa Rican pineapple producer had continued to cultivate its MD-2 pineapple after its contract lapsed in 2013. Ocariz and the other arbitrators found that although a 2002 settlement agreement held the MD-2 was in the public domain, the pineapple grower continued to use the same crops and seeds provided by Del Monte after the companies’ contractual relationship had concluded. The award includes $26.1 million in damages, interest and attorney’s fees as well as costs of $2.5 million.   Issue 609