Category Archives 1st Circuit

Two plaintiffs have filed a putative class action alleging Post Consumer Brands sweetens its Honey Bunches of Oats cereals with "sugar, corn syrup, and other processed substances, and [they] contain only miniscule amounts of honey." Lima v. Post Consumer Brands LLC, No. 18-12100 (D. Mass., filed October 5, 2018). The complaint lists the alleged risks of consuming sugar to argue that Post intentionally misleads consumers into believing that Honey Bunches of Oats is healthful by implying that it is sweetened only or primarily by honey. "A product branded 'Honey Bunches of Oats' that pictorially conveys cereal being covered with honey and a bee in flight hardly means to a reasonable consumer that the product is mostly sweetened with sugar or other processed substances or, moreover, that it contains only a miniscule amount of honey," the complaint asserts. The plaintiff alleges violations of consumer-protection statutes in 35 states and seeks damages…

Consumers have filed lawsuits alleging that companies misrepresent their products as "natural" because they contain d-malic acid. One lawsuit targets Ocean Spray Cranberries Inc., alleging it mislabels its juices as free from artificial flavors despite containing d-malic acid rather than the naturally occurring l-malic acid. Froio v. Ocean Spray Cranberries Inc., No. 18-12005 (D. Mass., filed September 24, 2018). The complaint further alleges that the juices contain furmaric acid, which is "manufactured from petrochemical feedstock, either benzene or butane, through chemical transformation to maleic anhydride." The plaintiffs argue that a "reasonable consumer understands Defendant's claims that the Products contain no 'artificial' flavoring to mean that the flavoring is derived from a natural source." For allegations of fraud, negligent misrepresentation, unjust enrichment and violations of New York and Massachusetts consumer-protection statutes, the plaintiffs seek class certification, damages, injunctive relief, restitution and attorney's fees. Two consumers have alleged that Neurobrands LLC also…

Burger King Corp. faces a civil-rights lawsuit after an employee at a Boston location accused a man of trying to pay for food with an allegedly counterfeit $10 bill, refused to return the bill and called the police when the man would not leave the restaurant. Ellis v. Burger King Corp., No. 1884-CV-01489 (Mass. Super. Ct., Suffolk Cty., filed May 14, 2018). The plaintiff, who is homeless and black, alleges that when he was arraigned, he was charged with possession of counterfeit notes and a probation violation and was subsequently held without bail from November 12, 2015, until February 19, 2016. He was reportedly released when the U.S. Secret Service notified the prosecutor that the $10 bill was authentic and not counterfeit. Burger King allegedly did not return the $10 bill to the man. Claiming conversion, defamation, negligence and violation of the Massachusetts Civil Rights Act, the plaintiff seeks attorney's fees and $950,000…

A consumer has filed a putative class action alleging New England Coffee Company (NECC) mislabels its Hazelnut Crème Coffee by failing to include a front-label disclosure that the product contains natural and artificial flavors. Dumont v. Reily Foods Co., No. 18-10907 (D. Mass., filed May 7, 2018). "Rather, buried on the back side of the label in the far-left corner in tiny print was the only indication that the Product did not contain its characterizing ingredient [hazelnut]," the complaint asserts. The plaintiff argues that the front-label disclosure is a legal requirement and "a material term on which a reasonable consumer would rely." The complaint points to examples of competitors' hazelnut coffees that contain front-of-package disclosures as well as similar disclosures on other varieties of coffee sold by NECC. The complaint asserts that after the plaintiff sent a notification-and-demand letter to NECC in 2017, the company added the disclosure to 15 of the…

A Massachusetts federal court has dismissed half of the claims in a lawsuit alleging Diageo-Guinness misrepresents where its Guinness Stout beer is brewed. O’Hara v. Diageo-Guinness USA Inc., No. 15-14139 (D. Mass., entered March 27, 2018). The plaintiff alleged that the “Frequently Asked Questions” page of Guinness’ website stated that “All Guinness sold in the UK, Ireland, and North America is brewed in Ireland at the historic St. James’s Gate Brewery in Dublin," while a disclosure on Guinness bottles sold in the United States indicate that the product is “Imported by DIAGEO – Guinness USA, Stamford, CT. Brewed and bottled by Guinness Brewing Company, New Brunswick, Canada. Product of Canada.” The court dismissed three of the six causes of action because the bottling and packaging labels were approved by the U.S. Alcohol and Tobacco Tax and Trade Bureau. A misrepresentation claim and two claims for violations of state consumer-protection laws will…

Utz Quality Foods Inc. has agreed to pay $1.25 million to settle a putative class action alleging that some products were labeled “natural” despite containing genetically modified organisms (GMOs) and synthetic ingredients. DiFrancesco v. Utz Quality Foods, Inc., 14-14744 (D. Mass., settlement agreement filed December 6, 2017). The complaint alleged the snacks contained GMO grains and synthetic ingredients such as caramel color, malic acid and citric acid. Class members will receive $2 for each qualifying purchase up to a total of $20 and residual funds will be paid to nonprofit group Consumers Union. Utz has also agreed to stop using the terms “natural” and “all natural” on labeling and advertising of the products.

A Massachusetts federal court has dismissed a putative class action against Conagra Brands that alleged the company’s Wesson cooking oil was not “100% natural” because it is extracted from grains grown from genetically modified organisms (GMOs), ruling the plaintiff had failed to state a claim upon which relief could be granted. Lee v. Conagra Brands, Inc., No. 17-11042 (D. Mass., entered October 25, 2017). Taking judicial notice of U.S. Food and Drug Administration (FDA) guidance, the court noted that the agency has “not attempted to restrict the use of the term 'natural' except for added color, synthetic substances, and flavors." In addition, the court held that according to FDA guidance, Conagra is not required to disclose on its labels the use of GMO plants. The plaintiff alleged a single count for deceptive business practices, but the court ruled that because the label conformed to FDA guidelines, it was not “unfair…

The owner of one of the largest commercial fishing businesses in the United States has pleaded guilty to conspiracy, falsifying federal records, cash smuggling and tax evasion in a case accusing him of deliberately misreporting the types of fish he caught to the National Oceanic and Atmospheric Administration (NOAA). U.S. v. Rafael, No. 16­-10124 (D. Mass, plea entered March 30, 2017). Carlos Rafael, owner of Carlos Seafood, Inc. and known as the “Codfather,” will face possible forfeiture of his business assets and up to five years in prison at his June 2017 sentencing. An Internal Revenue Service (IRS) investigation apparently found that Rafael caught 800,000 pounds of fish over several years and reported it as haddock, pollock or other species with high NOAA quotas despite containing thousands of pounds of fish with lower quotas, including cod, flounder, grey sole, yellowtail and American plaice. Rafael also told IRS agents posing as…

A Massachusetts federal court has granted certification to a class of former and current delivery drivers for Domino’s Pizza Inc. who allege that they should have received the delivery charge paid by customers. Mooney v. Domino’s Pizza, Inc., No. 14-13723 (D. Mass., order entered September 1, 2016). The plaintiffs also asserted that they should have been paid minimum wage for “inside work” unrelated to deliveries, rather than the lower minimum wage for tipped workers. The court focused on whether the plaintiffs’ claims were common to all members of the class. Domino’s and its franchisee argued the classification of the delivery fee as a service charge—which is to compensate employees for service and to be remitted to the employees under Massachusetts law—or an administrative fee “depends on the circumstances of each customer’s encounter with the delivery fee,” thus precluding commonality. The court disagreed, finding that “the plain language of the statute suggests…

A Massachusetts federal court has dismissed a lawsuit alleging ACH Food Companies Inc. mislabeled its Weber® barbecue sauce as “All Natural” despite containing caramel coloring, finding that a $75 rebate rendered the case moot. Demmler v. ACH Food Cos. Inc., No. 15-13556 (D. Mass., order entered June 9, 2016). Details about the complaint appear in Issue 582 of this Update. The court found ACH had tendered full relief to the plaintiff by sending him treble statutory damages. Further, “the $75 check did not represent a settlement offer—ACH sent the check unprompted, and did not impose any preconditions on [the plaintiff] for doing so. This distinction makes all the difference,” the court held. The plaintiff could not pursue damages when he had already been made whole, the court noted, and his “refusal to accept the $75 is immaterial. The question under Article III is whether a live case or controversy exists,…

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