Tag Archives New Jersey

Promotion in Motion Inc., which produces Welch’s Fruit Snacks, has filed a lawsuit alleging that Kervan USA's packaging and product design for Sunkist Fruit Gummies infringe its trademarks and trade dress. Promotion in Motion Inc., v. Kervan USA LLC, No. 18-11670 (D.N.J., filed July 16, 2018). Although Sunkist Fruit Gummies have not been released, Kervan has publicly displayed the intended packaging at trade shows and online, Promotion in Motion alleges, and it asserts that the packaging “closely copies” the Welch's packaging by using similar design elements and color as well as the identical claim “Fruit is our 1st Ingredient.” Promotion in Motion also contends that Kervan imports and distributes a wedge-shaped sour watermelon candy under various product labels that violates the trade dress of its Sour Jacks, which is advertised with the slogan “Respect the Wedge” and an emphasis on the candy’s shape. Alleging trademark infringement, trade dress infringement, false designation of…

A federal court has denied a motion to reconsider a denial of class certification in a lawsuit alleging that Tropicana Products Inc. mislabeled its orange juice as “natural.” In re Tropicana Orange Juice Mktg. & Sales Practices Litig., No. 11-7382 (D.N.J., entered May 24, 2018). The plaintiffs argued that the court misconstrued its theory of liability, gave more weight to the defendant’s expert opinions, overlooked evidence of class-wide injury and erred in its ascertainability analysis. The court ruled that because the plaintiffs “exhaustively alleged” that the juice contained added flavoring, whether the product conforms to the standard of identity for pasteurized orange juice "lies at the heart of Plaintiff’s theory of liability as articulated by Plaintiffs’ own words.” Finding the claims unsupported by the pleadings, the court found no cause for reconsideration. The court also pointed to an expert opinion showing variation in the reasoning behind consumer decisions to buy the…

A New Jersey woman has filed a lawsuit alleging Panera Bread Co. sold her salad greens contaminated with E. coli, causing her to develop hemolytic uremic syndrome after she consumed the meal. Fraser v. Freshway Foods, Inc., No. 18-7734 (D.N.J., filed April 16, 2018). Filed against Panera and its lettuce supplier Freshway Foods Inc., the complaint asserts that Panera sold contaminated lettuce sourced from Yuma, Arizona, which the Centers for Disease Control and Prevention (CDC) has linked to an E. coli outbreak. Alleging the lettuce was “defective and unreasonably dangerous” in violation of the New Jersey Products Liability Act, the plaintiff seeks damages for physical and mental pain and suffering, loss of enjoyment of life, medical expenses and attorney’s fees.

Kosher Supervision Services Inc. (Kof-K) has filed a complaint alleging Original Gourmet Food Co. used the “Kof-K” kosher certification mark on its product without authorization, alleging the snack maker’s action was “intentional and willful use of a counterfeit of the Kof-K mark.” Kosher Supervision Servs. v. Original Gourmet Food Co., No. 18-2487 (D.N.J., filed February 22, 2018). Kof-K asserts that it never contracted with Original Gourmet, approved or certified any of its products as kosher, or granted permission for its use of the certification mark. Alleging trademark infringement, false designation of origin, dilution of famous mark, unfair competition, Kof-K seeks injunctive relief, damages and a finding that the case is “exceptional” to permit an award of attorney’s fees.

A New Jersey federal court has denied class certification to a group of consumers alleging that Tropicana Pure Premium orange juice was mislabeled and misbranded because the maker adds natural flavoring to the product in violation of the U.S. Food and Drug Administration's standard of identity for pasteurized orange juice. In re Tropicana Orange Juice Mktg. & Sales Practices Litig., No. 11-7382 (D.N.J., entered January 22, 2018). The court ruled that the plaintiffs’ unjust enrichment, express warranty and New Jersey Consumer Fraud Act claims required individualized proof; thus, individual issues predominated over those of the class. In addition, the plaintiffs were unable to demonstrate that the proposed class was ascertainable—in particular, the court found, it was unclear whether any of the “dozens, if not hundreds of retailers” could confirm with certainty whether they possessed consumer data for the class period. If a consumer purchased the juice from a retailer that…

A New Jersey man has filed a lawsuit against a produce supplier for its role in a Salmonella Kiambu outbreak in 12 states linked to Mexican papayas that has sickened 47 people and reportedly caused one death. Colon v. Grande Produce, No. 17-5458 (D.N.J., filed July 26, 2017). The plaintiff alleges that he fell ill in June 2017 after consuming a papaya imported by Grande Produce and was later diagnosed with Salmonella-induced illness. Claiming strict product liability, negligence and breach of warranties, the plaintiff seeks damages and attorney’s fees. On July 26, Grande Produce announced it had issued a limited recall of Caribeña Maradol papayas distributed between July 10- 19, but the U.S. Food and Drug Administration (FDA) and the Centers for Disease Control and Prevention are warning consumers to avoid all Mexican Maradol papayas regardless of the source. An FDA recall notice stated, “The FDA notes that there are…

The attorney general of New Jersey has announced an “unprecedented” $2-­million fine in a settlement with a craft ­beer and spirit wholesaler accused of trade­ practice violations. Div. of Alcoholic Beverage Control v. Hunterdon Brewing Co. LLC, No. L0002 (N.J. Dep't of Law Public Safety, consent order filed May 31, 2017). New Jersey alleged that Hunterdon Brewing sold tap systems at below­-market prices then overcharged those customers by including “miscellaneous draft charges” on invoices. Further, the company allegedly ignored state credit regulations and entered into discriminatory, “unequal financing” terms of sales with its customers. Hunterdon has agreed to pay the fine in four $500,000 installments over the next 12 months; $250,000 of the final payment will be waived if compliance audits show no further violations. “Fair market prices exist for a reason,” said Attorney General Christopher Porrino in a June 12, 2017, press release. “Consumers suffer when these laws and…

A deaf consumer has filed a lawsuit against Taco Bell Corp. and two franchisees alleging the company discriminated against her by refusing to allow her to order from the drive-through window. Cirrincione v. Taco Bell Corp., No. 33-0001 (D.N.J., filed July 13, 2016). At one location, the plaintiff alleges she wrote her order on a piece of paper and handed it to a Taco Bell employee at the drive-through window, and a manager then “berated Plaintiff for utilizing the drive through and for placing her order at the ‘pick-up’ window” because it “interfered with the desired flow of business.” At another location, the plaintiff asserts she again wrote her order and handed it to an employee, then “the note was slipped back through the drive-through window,” the window was shut and the order was not processed, “and no Taco Bell employee communicated with Plaintiff in any way, leaving Plaintiff humiliated,…

Whole Foods and a consumer have reached an agreement in a lawsuit alleging the company misrepresented the prices of its products before the point of purchase. Burgos v. Whole Foods Mkt. Grp., No. 15-7357 (D.N.J., stipulation filed January 20, 2016). The plaintiff alleged that some of Whole Foods’ price displays failed to meet the state’s requirements, which she argued amounted to violations of New Jersey’s consumer-protection statute. The stipulation specifies that the individual plaintiff’s claims are dismissed with prejudice, but the plaintiff’s proposed class is not bound to the terms of the agreement.   Issue 591

A New Jersey federal court has dismissed putative class actions against Whole Foods Market Group Inc., Wegmans Food Markets Inc. and Acme Markets Inc. alleging that they misrepresented their bread products as “freshly baked” or “baked in-store” despite actually being frozen, processed or baked elsewhere. Mladenov v. Wegmans Food Mkts. Inc., No. 15-0373 (D.N.J., order entered August 26, 2015); Mladenov v. Whole Foods Mkt. Grp. Inc., No. 15-0382 (D.N.J., order entered August 26, 2015); Mao v. Acme Markets Inc., No. 15-0618 (D.N.J., order entered August 26, 2015). Additional information about the three complaints appears in Issue 549 of this Update. The court found holes in each of the plaintiffs’ amended complaints, noting that they lacked “any detail as to what Plaintiffs purchased, the cost of these items, and the supposed value of what they received,” which are necessary to a price-premium claim. “Nowhere in their complaints or opposition do Plaintiffs…

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