The Eighth Circuit Court of Appeals has affirmed the dismissal of one defendant and several claims in multidistrict litigation (MDL) alleging that a dairy certified as organic and the retailers selling its milk violated state deceptive trade practices laws because the dairy did not comply with national organic program standards. In re: Aurora Dairy Corp. Organic Milk Mktg. Sales Practices Litig., No. 09-2762 (8th Cir., decided September 15, 2010). While finding express and conflict preemption as to those matters dismissed, the court also determined that some claims could survive, depending, on remand, how the district court rules on defendants’ motions to strike the consolidated class complaint and the plaintiffs’ motion to amend that complaint. Dismissed outright from the 19 consolidated putative class actions was the company that certified Aurora Dairy as an organic supplier. According to the court, “to the extent state law permits outside parties, including consumers, to interfere…
Category Archives Litigation
The Equal Employment Opportunity Commission (EEOC) has reportedly filed lawsuits in Colorado and Nebraska federal courts against a meatpacking company that allegedly “created a hostile work environment for its Somali and Muslim employees due to their race, national origin, and religion.” According to the EEOC, the workers’ supervisors and co-workers “threw blood, meat, and bones at the Muslim employees and called them offensive names,” placed offensive graffiti on restroom walls and made other offensive comments. The company also allegedly failed to accommodate the Muslim employees “by refusing to allow them to pray according to their religious tenets.” The complaints further apparently allege retaliation, claiming that the employees were fired when “they requested that their evening break be moved so that they could break their fast and pray at sundown during the month of Ramadan.” See EEOC Press Release, August 31, 2010.
Federal officials have indicted executives of a German import company, a Chinese national and a number of companies, charging them with importing honey from China into the United States by illegal means that avoided the payment of duties and allowed product adulterated with antibiotics to enter the country. U.S. v. Wolff, No. 08-417 (N.D. Ill., filed August 31, 2010). The honey was purportedly shipped through other countries, such as South Korea, Taiwan, Thailand, India, the Philippines, Indonesia and Russia, mislabeled and then shipped to the United States, thus avoiding some $78 million in anti-dumping duties applicable to Chinese-origin honey. The conspiracy allegedly began in early 2002 and ended in early 2009. The indictment includes 44 counts of illegal activity, including falsifying documents and placing into interstate commerce food with unsafe additives, specifically, the antibiotics norfloxacin and ciprofloxacin. Meanwhile, a coalition of honey producers has reportedly called on the industry to…
On behalf of a putative nationwide class of indirect potato purchasers, a San Francisco restaurateur has sued a number of potato industry participants, including co-operatives, growers, packers, and distributors, alleging that they have conspired since 2006 to control and reduce the supply of potatoes in an effort to keep crop prices high. Florez v. Idahoan Foods, LLC, No. 10-3984 (N.D. Cal., filed September 3, 2010). The complaint refers to specific meetings of “cartel” members and discusses newspaper articles comparing the cooperative venture to OPEC, the oil-producing country organization that controls output and pricing in that industry. Member growers purportedly reduced their acreage, in some instances plowing under crops already grown, and submitted to audits to confirm that they were complying with production limits. Alleging that class members were harmed by paying “supracompetitive prices for potato products during the class period, higher than that which they would have paid in the…
After the U.S. Department of Agriculture announced that it had begun issuing permits to sugar beet seed producers to plant genetically modified (GM) crops this fall, the Center for Food Safety and a number of other groups filed a lawsuit in federal court challenging the action. When Agriculture Secretary Tom Vilsack announced the agency’s “next steps” as to Roundup Ready® sugar beets, he acknowledged the August 2010 federal court ruling that returned GM sugar beets to regulated status until the Animal and Plant Health Inspection Service (APHIS) can complete an environmental impact statement (EIS) about the effects of deregulating the crop. According to APHIS, producers who have applied for the permits will be allowed to plant GM seedlings immediately but must not allow them to flower, and the agency will make decisions about interim regulatory measures by the end of the year on the seed producer’s request to partially deregulate…
According to a news source, a federal court in Virginia, adopting a magistrate judge’s recommendation, has approved a $12 million settlement that will compensate those who became ill or died after consuming products containing Salmonella-contaminated peanuts. In re: Peanut Butter Corp. of Am., No. 10-cv-27 (W.D. Va., decided September 2, 2010). Among the 122 eligible claimants are 45 minors and nine wrongful death claimants. The contaminated peanut butter and peanut paste were used in hundreds of products and led to a massive recall of foods such as candy, crackers and cookies. The outbreak purportedly sickened more than 700 people throughout the country and was linked to nine deaths. The settlement has reportedly been funded by the insurance carrier for the bankrupt peanut company. See Mealey’s Litigation Report: Food Liability, September 2, 2010. Meanwhile, The Associated Press (AP) has reported that the peanut company’s former president is currently employed as an industry consultant.…
A federal court in California has denied a walnut producer’s request to dismiss claims alleging that the company falsely advertises its products by asserting that the omega-3 in walnuts has certain health benefits. Zeisel v. Diamond Foods, Inc., No. 10-01192 (N.D. Cal., filed September 3, 2010) (unpublished). Alleging violations of California consumer protection laws, the plaintiff claims that the “statements are misleading because the Shelled Walnut products do not provide the health benefits claimed on the package labels.” The defendant argued that the plaintiff’s claims were preempted by the Federal Food, Drug, and Cosmetic Act and Nutrition Labeling and Education Act. The court disagreed, finding neither express nor implied preemption. According to the court, the claims either did not fall within the scope of federal law or state law imposed identical requirements, which are allowed under federal law.
A federal court in New York recently refused to certify a statewide class of consumers who allege that Snapple Beverage Corp. misled them by marketing its products as “all natural” when they actually contain high-fructose corn syrup (HFCS). Weiner v. Snapple Beverage Corp., No. 07-8742 (S.D.N.Y., order entered August 5, 2010). The court apparently determined that individual issues, such as causation, injury and damages, would predominate over common ones. According to the court, “Individualized inquiries would be required to determine, for instance whether class members were fully informed about the inclusion of HFCS in Snapple beverages, whether they believed HFCS to be natural, and whether they continued to purchase Snapple despite their beliefs concerning HFCS. Such individual issues would also dwarf any issues of law or fact common to the class.” The court also reportedly determined that the named plaintiffs did not proffer a suitable methodology for establishing causation and…
Finding the plaintiffs’ state-law claims preempted, a federal court in California has dismissed a putative class action alleging that the Kroger Co. falsely labeled its margarine and graham crackers as “0g Trans Fat per serving” and “a Cholesterol Free Food,” when they actually contain various hydrogenated oils. Red v. The Kroger Co., No. 10-01025 (C.D. Cal., decided September 2, 2010). According to the court, the Food and Drug Administration has promulgated specific regulations on the use of these terms, and because the products at issue comply with the requirements under which the terms can be used, the plaintiffs’ claims are expressly preempted under the National Labeling and Education Act of 1990. In the court’s words, “Plaintiffs cannot escape the fact that they seek to enjoin exactly what federal law expressly permits.” Alleging the violation of California consumer protection statues, the plaintiffs had sought an order compelling the defendant to (i) cease…
After Chinese food safety authorities recently found milk powder laced with melamine, police have reportedly arrested three officials from the Dongyuan Dairy Factory in Qinghai province and three dairy suppliers from Hebei province. Another 41 suspects have apparently been detained. More than 225 tons of contaminated milk powder have been seized, and authorities believe it is leftover from the batches of melamine-tainted milk powder that should have been destroyed in 2008 when a massive contamination scandal sickened more than 300,000 children and was linked to the deaths of six infants. Producers added melamine to milk powder to increase its protein content, but the required protein level in dairy products has since been reduced to discourage the use of additives. According to a press report, investigators are seeking evidence that local oversight authorities may have been derelict in their duties and will punish those found responsible. Chinese consumers have reportedly lost confidence…
