ConAgra Foods, Inc. has asked a multidistrict litigation (MDL) court to sever and transfer the claims of some of the plaintiffs who filed a lawsuit in October 2009 against the company arising out of the purported Salmonella contamination of its peanut butter. In re: ConAgra Peanut Butter Prods. Liab. Litig., MDL No. 1845 (N.D. Ga., motion filed November 10, 2009). The company has also asked the court to dismiss the plaintiffs’ claims for punitive damages, arguing that they have not been sufficiently plead under the new plausibility standard of Ashcroft v. Iqbal, 129 U.S. 1937 (2009). According to ConAgra’s motion, this lawsuit involves five plaintiffs from four different states, raising serious questions of judicial economy and juror confusion, given that evidence is located in four different states and the legal standards of four different states would have to be applied to the claims. The plaintiffs filed their lawsuit in the same…
Category Archives Litigation
According to a news source, a New Jersey court has dismissed fraud-related claims filed against Denny’s Corp. alleging that the company failed to disclose the amount of sodium in its menu items. DeBenedetto v. Denny’s Corp., No. __ (N.J. Super. Ct., dismissed November 10, 2009). Additional details about the litigation appear in issue 312 of this Update. The company reportedly indicated in a statement that the suit was dismissed because the plaintiff failed to and could not establish a physical injury under state product liability law. The named plaintiff in this putative class action reportedly alleged that he had consumed Denny’s foods for more than 20 years and was shocked when he learned how much sodium was in his favorite menu items. While he did not allege any link between the company’s foods and his alleged high blood pressure, the plaintiff claimed that he would not have selected the high-sodium…
A U.S. attorney in Maryland has filed a complaint for injunction against a dairy operation and its owner seeking to stop their alleged long-term misuse of antibiotics in animals that were sold for consumption. United States v. Old Carolina Farm, No. __ (D. Md., filed November 3, 2009). According to the complaint, U.S. Department of Agriculture, Food and Drug Administration and Maryland Department of Agriculture investigations since the mid-1990s showed that drug residues in the tissues of animals the defendants sold exceeded established limits for a number of antibiotics. Contending that consumers of such meats “may experience severe allergic reactions” or develop “antibiotic-resistant strains of bacteria,” the complaint alleges that the dairy’s owner ran afoul of the law essentially because he failed and refused to maintain treatment or drug inventory records. The U.S. government seeks permanent injunctive relief to stop the dairy from introducing adulterated food into interstate commerce and from…
An Illinois consumer has filed a putative class action against two food companies in federal court, alleging that they fail to disclose that their high-fiber snacks contain a non-natural fiber derived from chicory root which is purportedly not as effective as natural fiber and can cause harm to some individuals. Turek v. General Mills, Inc., No. 09-7038 (N.D. Ill, filed November 9, 2009). The complaint specifically targets General Mills’ Fiber One Chewy Bars® and Fiber One NonFat Yogurt®, as well as the Fiber Plus Antioxidants Chewy Bars® made by Kellogg Co. The named plaintiff seeks to certify a class of Illinois residents who purchased these products and alleges violations of the Illinois Consumer Fraud and Deceptive Practices Act. She seeks an order (i) requiring the disclosure of all information in the companies’ possession about the “purported health benefits or non-benefits” of the companies’ products and ingredients, (ii) barring the companies…
A Jewish California resident who follows kosher practices has filed a putative class action on behalf of Hari Krishnas, Hindus, Jains, Buddhists, Taoists, Sikhs, Muslims and Jews against Panda Express, Inc., claiming that the restaurant chain fails to disclose that its vegetable menu items are actually made with significant amounts of chicken stock. Adelpour v. Panda Express, Inc., No. BC425869 (Cal. Super. Ct., Los Angeles Cty., filed November 12, 2009). The plaintiff alleges that the company does not state in its restaurants, promotional materials or online that its vegetable dishes, such as “Mixed Veggies,” “Eggplant Tofu,” “Chow Mein,” and “Fried Rice,” are prepared with chicken stock and that she was led to believe that these dishes were vegetarian. She also alleges that she was “explicitly informed” by company servers or shift supervisors that such menu items were vegetarian. The named plaintiff seeks to certify a class of “All California residents…
A multidistrict litigation (MDL) court in western Missouri has issued orders disposing of a number of motions in the dozens of cases transferred to it in litigation involving claims of fraud against companies that make baby bottles and sippy cups, reusable drink containers, and baby formula sold in metal cans lined with a substance containing bisphenol A (BPA). In re: Bisphenol-A (BPA) Polycarbonate Plastic Prods. Liab. Litig., MDL No. 1967 (W.D. Mo., orders entered November 9, 2009). The court has dismissed breach of express warranty claims and claims that depend on misrepresentations (as opposed to omissions) for insufficient pleading under Ashcroft v. Iqbal; and breach of implied warranty of fitness for a particular purpose. Remaining are claims for fraudulent omissions, violation of state consumer protection statutes, breach of implied warranty of merchantability, and unjust enrichment. The court denied defendants’ motion to dismiss on the ground of primary jurisdiction, which applies when a…
U.S. Attorney Patrick Fitzgerald has brought conspiracy charges against the president of a honey manufacturer from China in an alleged scheme to illegally dump adulterated honey on the U.S. market, and recently announced that the defendant pleaded guilty. The product was apparently shipped through the Philippines and Thailand between 2005 and 2008 to avoid steep anti-dumping duties. While defendant Yong Xiang Yan entered a plea to one count of conspiracy involving the avoidance of more than $625,000 in anti-dumping duties, he acknowledged during the plea hearing that he authorized many other shipments that avoided an additional $3.3 million in duties. Some of the honey imported into the United States was allegedly adulterated with antibiotics, but “[n]either the charges [n]or the plea agreement indicate any instances of illness or other public health consequences attributed to consumption of the honey, nor does it identify any store brands or domestic supply chain of…
Plaintiffs’ lawyer William Marler has reportedly begun filing lawsuits on behalf of families allegedly sickened in an E. coli outbreak linked to fresh ground beef processed by Fairbank Farms, which has recalled nearly 546,000 pounds of the product, mostly from retail outlets on the Atlantic coast and in the Northeast. According to news sources, two deaths and 28 illnesses may be linked to the outbreak. The U.S. Department of Agriculture’s Food Safety and Inspection Service identified the recalled products on its Web site; they were sold under the labels of Trader Joe’s, Price Chopper, Lancaster and Wild Harvest, Shaw’s, and Giant food stores. The Ashville, New York-based company has previously recalled ground beef products on two occasions, once for possible E. coli contamination and most recently for contamination with pieces of plastic. The November 2009 recall reportedly involves ground beef produced between September 14 and 16 and was directed to…
California residents have filed a putative class action in federal court against the company that makes a number of margarine products, alleging that the products are falsely marketed “as healthful despite the fact its margarines have dangerous levels of artificial trans fat, a toxic food additive banned in many parts of the world.” Red v. Unilever U.S., Inc., No. 09-07855 (C.D. Cal., filed October 28, 2009). According to the complaint, the defendant (i) “specifically markets its margarines as good for cardiovascular health,” (ii) uses “non-standard and deceptive charts” when comparing the nutritional value of margarine to butter, (iii) “misleads consumers by marketing its margarines as ‘cholesterol free,’ implying its products are desirable for those with high blood cholesterol levels,” and (iv) uses “words such as ‘natural’ and ‘nutritious’ to describe products with artificial trans fat and adding images of hearts.” Among the products subject to the litigation are I Can’t Believe…
A California resident has filed putative class claims against the Kellogg Co., alleging that it falsely advertises its Cocoa Krispies® cereal as a boost to children’s immunity. Kammula v. Kellogg Co., No. 09-08102 (C.D. Cal., filed November 5, 2009). According to the complaint, without the support of any “known clinical study,” Kellogg claims that the cereal “has been improved to include antioxidants and nutrients that your family needs to help them stay healthy.” The plaintiff alleges that this practice was intended “to profit from a growing trend in the manufacturing, advertising, and sales of ‘functional’ foods.” The complaint also alleges that “Defendants fail to adequately disclose that other ingredients, including but not limited to sugar, chocolate, high-fructose corn syrup and/or partially-hydrogenated oils, may not ‘help support’ a child’s immunity.” The named plaintiff seeks to certify a class of California residents who purchased Cocoa Krispies® since November 4, 2005, alleging false…
