Category Archives 7th Circuit

A woman has filed a putative class action alleging that FGF Brands (USA) Inc. misleads consumers by falsely marketing Stonefire Naan as baked in a tandoor oven. Friend v. FGF Brands (USA) Inc., No. 18-7644 (N.D. Ill., E. Div., filed November 16, 2018). Naan requires a "labor-intensive cooking process," the complaint asserts, and the plaintiff "believed that the Mislabeled Naan was baked in a tandoor oven, in small batches by hand, and did not involve the conventional, automated, and commercial methods of baking bread." The complaint cites FGF's patents, which purportedly show that the naan "is mass produced on a conveyor belt in a gas-heated commercial oven designed by Defendants to overcome the impracticalities of using a tandoor oven to mass-produce products." The plaintiff alleges violations of Illinois consumer-protection law along with fraudulent concealment and unjust enrichment, and she seeks class certification, corrective advertising, restitution, attorney's fees and damages.

Two consumers have filed a putative class action alleging that Kraft Heinz Food Co. misleads consumers by marketing Capri Sun beverages as free of preservatives despite containing citric acid. Tarzian v. Kraft Heinz Food Co., No. 18-7148 (N.D. Ill., E. Div., filed October 25, 2018). "Citric acid serves as a preservative by functioning as an acidity regulator and acidulant," the complaint alleges. "[W]hile citric acid can also be employed to impart taste, a greater quantity of it is required to impart taste than to preserve foods and beverages. The preservative effects of citric acid may be reduced at lower levels, but it will still be present. [] Thus, Defendant cannot argue that it includes citric acid in the Products merely to impart added taste, because the quantities required to impart taste are more than sufficient to function as preservatives." For alleged violations of Illinois and New York consumer-protection statutes, the…

Lenny & Larry's Inc. has agreed to pay $1.85 million in cash and $3.15 million in free products to settle a lawsuit alleging that its Complete Cookie did not provide the advertised amount of protein. Cowen v. Lenny & Larry's Inc., No. 17-1530 (N.D. Ill., E. Div., motion filed September 25, 2018). Under the settlement agreement, class members with proof of purchase can obtain up to $50 in cash or choose to obtain free Complete Cookies with a retail value of up to $30, while those without a proof of purchase can receive $10 cash or $15 of the product. Products that have not been redeemed from the $3.15 million fund "shall be distributed free via retail locations" in all 50 states.

The U.S. Court of Appeals for the Seventh Circuit has upheld a Wisconsin law requiring butter sold within the state to bear a grade issued by a Wisconsin-licensed butter grader or the U.S. Food and Drug Administration. Minerva Dairy Inc. v. Harsdorf, No. 18-1520 (7th Cir., entered October 3, 2018). The Ohio dairy challenging the law alleged it violated the Due Process Clause, the Equal Protection Clause and the dormant Commerce Clause of the U.S. Constitution, but a lower court granted summary judgment in favor of Wisconsin. The appeals court first found that the statute does not violate substantive due process or equal protection because the law is “rationally related to at least two conceivable state interests”—consumer protection and promotion of commerce. Turning to the dormant Commerce Clause allegation, the court found that the law does not have a discriminatory effect on interstate commerce. The dairy argued that requiring out-of-state…

A consumer has filed a putative class action alleging that Barilla America Inc. misleads consumers because its pasta sauces, which are labeled as including "No Preservatives," contain citric acid. Kubilius v. Barilla Am. Inc., No. 18-6656 (N.D. Ill., E. Div., filed October 1, 2018). The complaint contends that several authorities identify citric acid as a preservative, including "insiders in the preservative manufacturing and distribution industries" and the U.S. Food and Drug Administration, which allegedly "expressly classifies citric acid as a preservative in its Overview of Food Ingredients, Additives, and Colors." The plaintiff seeks class certification, damages, restitution, injunctions and attorney's fees for allegations of fraud and violations of New York and Illinois consumer-protection statutes.

Federal prosecutors in Chicago are seeking an injunction against Kingdom Farms Wholesale Meats Inc. for allegedly packaging, selling and transporting products without federal marks of inspection and required labeling. U.S. v. Kingdom Farms Wholesale Meats Inc., No. 18-4155 (N.D. Ill., filed June 14, 2018). The complaint asserts that Kingdom Farms removed products from properly labeled shipping containers and repackaged and sold them without inspection marks and labeling, applied inspection labeling without authorization, and reused properly labeled shipping containers without authorization. The U.S. Attorney's Office alleges the defendants’ actions violated the Poultry Products Inspection Act and the Federal Meat Inspection Act and seeks a permanent injunction restraining them from misbranding or mislabeling products and compelling their compliance with the laws.

Brinker International Inc. faces a putative class action alleging hackers stole customers' personally identifiable information (PII) from point-of-sale systems at Chili's Grill & Bar in April and May 2018. Steinmetz v. Brinker Int'l, Inc, No. 18-0981 (D. Nev., filed May 30, 2018). The plaintiff seeks damages, an injunction and attorney's fees for negligence and alleged violations of the Fair Credit Reporting Act and Nevada consumer-protection law. Wendy’s International LLC has agreed to settle a lawsuit alleging that a similar point-of-sale breach exposed customers’ PII at more than 1,000 locations nationwide. Jackson v. Wendy's Int'l LLC, No. 16-0210 (M.D. Fla., entered May 25. 2018). The lawsuit was previously dismissed, then an amended complaint proceeded. Terms of the settlement were not disclosed. An Illinois federal court dismissed a putative class action without prejudice after the plaintiffs voluntarily dismissed claims related to a data breach of Panera Bread Co.’s customer records because none…

Binny's Beverage Depot faces a putative class action alleging the company violated the Illinois Biometric Information Privacy Act (BIPA) by collecting and sharing employee biometric information without informed consent. Burger v. Gold Standard Enters., Inc., No. 2018CH05904 (Ill. Ch. Ct., Cook Cty., filed May 7, 2018). The plaintiff alleges that Binny's established a fingerprint-based time-clock program and shared the collected data with third-party payroll processors and data-storage vendors without providing its employees "informed written consent, and without informing them through a publicly available written policy of how it was going to store and dispose of this irreplaceable information," and "failed to maintain lawful data retention practices which reduce the risk of theft or other misappropriation of its workers' biometrics by unauthorized third parties." The risk was compounded, the complaint asserts, because the biometric data was linked to Social Security numbers, addresses, birth dates and "potentially other relevant financial information." Claiming violations of…

Panera Bread Co. faces a putative class action alleging that a data breach exposed the personal data of thousands of customers to hackers, increasing their risk of fraud and identity theft. Boykin v. Panera Bread Co., No. 18-2461 (N.D. Ill., filed April 5, 2018). The complaint alleges that the company failed to protect the personally identifiable information of Panera’s My Rewards card and My Panera app users, including names, credit and debit card numbers, expiration dates and verification codes, email addresses, telephone numbers and birth dates. In August 2017, a “white-hat hacker” apparently accessed the information and notified Panera about the potential security breach. Although Panera reportedly told the hacker it was developing a solution, the complaint alleges that the hacker “checked it every month or so” and ultimately contacted the publisher of Krebs on Security in 2018 to bring attention to the issue. The plaintiffs assert that in the…

A federal court in Illinois has denied summary judgment to both parties involved in a trademark dispute over the use of “pizza puffs,” finding that a reasonable jury could rule for either on the question of whether the term is generic. Illinois Tamale Co. v. El-Greg, Inc., No. 16-5387 (N.D. Ill., entered March 29, 2018). Illinois Tamale Co. alleges that El-Greg Inc.’s products infringe trademark and trade dress rights held since 1976. The court also refused Illinois Tamale’s motion for summary judgment on El-Greg’s fair-use defense, finding that a reasonable jury could find in favor of either party on each element of the defense.

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