Restaurateurs Mario Batali and Joseph Bastianich have apparently agreed to settle for $5.25 million wage-related claims in a class action filed by waitstaff at their New York City restaurants including Babbo, Bar Jamon, Casa Mono, Del Posto, Esca, Lupa, Otto, and Tarry Lodge. Capsolas v. Pasta Resources Inc., No. 10-5595 (S.D.N.Y., motion for preliminary approval of settlement filed March 5, 2012). Additional information about the suit appears in Issue 361 of this Update. If approved, the settlement would cover attorney’s fees (one-third of the total) and costs, class members’ awards, service payments to the named plaintiffs, and the claim administrator’s fees. The class, consisting of captains, servers, waiters, bussers, runners, back waiters, bartenders, and/or barbacks, will receive a proportional share of the settlement fund “based on the number of hours they worked, the Restaurant at which they worked, the percentage of total tips received during their employment, and whether they opted…
Tag Archives New York
A federal court in New York has dismissed, for lack of jurisdiction, the claims filed by numerous organic farming interests seeking a declaration that they are not infringing Monsanto’s genetically modified (GM) seed patents, the patents are invalid and unenforceable and the company would not be entitled to remedies against them. Organic Seed Growers & Trade Ass’n v. Monsanto Co., No. 11-2163 (S.D.N.Y., decided February 24, 2012). According to the court, because Monsanto has an express policy not to bring infringement actions against a farmer whose fields have trace amounts of its seed or traits “as a result of inadvertent means,” such as seed drift, cross-pollination or commingling with tainted equipment, the plaintiffs are unable to establish a substantial controversy or an injury traceable to the defendant. While Monsanto has brought 144 infringement actions against farmers over a 13-year period, the court found this insignificant given the 2 million farms currently…
A New York resident has reportedly filed a putative class action in federal court, alleging that Frito-Lay misleads consumers by promoting its snack products as “all natural” when they actually contain corn and oils made from genetically engineered (GE) plants. Shake v. Frito-Lay N. Am., Inc., No. 12-408 (E.D.N.Y., filed January 30, 2012). Similar litigation was filed in December 2011 in California. Details about that case appear in Issue 421 of this Update. According to a news source, plaintiff Chris Shake alleges that he paid an additional 10 cents per ounce of Tostitos® and SunChips® over other comparable products and would not have done so had he known that the defendant’s products are not made with “all-natural ingredients.” A company spokesperson was quoted as saying that the product labeling “complies with all regulatory requirements.” Shake reportedly alleges damages in excess of $5 million. See Reuters, January 30, 2012.
The New York City Health Department has launched a “hard-hitting” ad campaign encouraging subway riders to cut their portions of food and sugary drinks to reduce the health risks associated with obesity. One poster, for example, depicts a diabetic man with an amputated leg with the tagline, “Cut Your Portions, Cut Your Risk.” “The portion sizes that are marketed are often much more than humans need,” Health Commissioner Thomas Farley said. “We are warning people about the risks of super-size portions so they can make more informed choices about what they eat. Consuming too many calories can lead to weight gain, which greatly increases the risk of type 2 diabetes.” The American Beverage Association (ABA) has reportedly criticized the campaign, claiming that it inaccurately depicts the health impacts of soft drink consumption. “Instead of utilizing scare tactics, the beverage industry is offering real solutions like smaller portioned containers and new…
The New York City Department of Health and Mental Hygiene has unveiled the latest installment of its “Pouring on the Pounds” campaign that describes “how drinking just one 20-ounce soda a day translates to eating 50 pounds of sugar a year.” According to an October 24, 2011, press release, the 30-second TV commercial aims to serve as “a stark reminder to New Yorkers about how sugary drinks can lead to obesity, which can cause diabetes, heart disease, stroke, arthritis and some cancers.” It will be supplemented by bilingual subway ads demonstrating how far a 160-pound person would need to walk at 3.5 miles per hour to burn off the calories from one sugary beverage. “The majority of New York City adults are now overweight or obese, as are 4 in 10 elementary school children and the health consequences are staggering,” said New York City Health Commissioner Thomas Farley. “Sugary drinks…
Granting the defendants’ motion to dismiss in part, a federal court in New York has allowed further proceedings on most of the claims filed by a man who alleged that consuming one to two cans of tuna daily for more than two years caused his mercury poisoning. Porrazzo v. Bumble Bee Foods, LLC, No. 10-4367 (S.D.N.Y., decided September 30, 2011). So ruling, the court agreed with the Third Circuit Court of Appeals that the Food and Drug Administration’s failure to adopt a regulation on the alleged risks of mercury in fish or warnings about that risk does not preclude the states from imposing a duty to warn. Additional information about that case appears in Issue 272 of this Update. According to his complaint, the plaintiff purchased and consumed 10 six-ounce cans of tuna fish each week from January 2006 to October 2008, at a time when the manufacturing defendant “promoted…
Arch Specialty Insurance Co. has filed a declaratory judgment action in a New York state court against a company identified as a distributor of food product ingredients, including the butter-flavoring chemical diacetyl. Arch Specialty Ins. Co. v. Citrus & Allied Essences, Ltd., No. 652670/2011 (N.Y. Sup. Ct., N.Y. County, filed September 29, 2011). The insurance company contends that it has no obligation to defend or indemnify the defendant in the personal injury actions “asserted by numerous claimants against Citrus & Allied in several jurisdictions around the country.” Among other matters, the insurer claims that the events giving rise to the underlying claims did not occur during the policy period; the claims involve “damages or injuries which were expected, intended or non-fortuitous from the standpoint of Citrus & Allied”; the claims fall within a pollution exclusion clause or arise from a recall as defined by the policy; and the insured failed…
Fage Dairy Processing Industry, S.A. has filed a lawsuit seeking to overturn the Trademark Trial and Appeal Board’s refusal to register the yogurt maker’s “Fage Total” trademark and a declaration that its use of the mark does not infringe any claimed right of General Mills, which makes Total® breakfast cereals. Fage Dairy Processing Indus., S.A. v. General Mills, Inc., No. 11-1174 (N.D.N.Y., filed September 30, 2011). According to the complaint, the board’s ruling is replete with factual errors. The complaint also asserts that Total® cereal and Fage Total yogurt co-existed in U.S. markets for 13 years “without a single instance of actual confusion arising from the parties’ use of their respective marks.” Fage alleges that the defendants, “suddenly and without warning” brought a federal trademark infringement lawsuit against it in mid-September, “seeking draconian damages.” That suit was apparently filed two days after the board refused to register Fage’s marks.
According to news sources, a man who weighs nearly 300 pounds has filed an Americans with Disabilities Act lawsuit against White Castle in a federal court in New York, claiming that the stationary booth seating in a Nanuet restaurant is made for smaller people and that he hurt a knee trying to wedge into one in 2009. When he complained in writing, he purportedly received three “very condescending letters,” with offers for free hamburgers, although added cheese would have cost extra. He has since used take-out to purchase his food from White Castle or asked his wife to go into the facility to pick up his meals, while waiting almost three years for promised renovations that would have enlarged the seating spaces. Stockbroker and plaintiff Martin Kessman reportedly said, “I just want to sit down like a normal person.” See New York Post, September 11, 2011; The Wall Street Journal,…
The Natural Resources Defense Council, Inc. (NRDC), a non-profit advocacy organization, has filed a complaint for declaratory and injunctive relief against the U.S. Department of Health and Human Services (HHS) and the Food and Drug Administration (FDA), seeking an order compelling FDA to issue a final response to NRDC’s October 2008 petition calling on the agency to prohibit the use of bisphenol A (BPA) in food packaging and other food-contact materials. NRDC, Inc. v. HHS, No. 11-5801 (S.D.N.Y., filed August 19, 2011). In June 2011, the D.C. Circuit Court of Appeals apparently dismissed a similar complaint, agreeing with FDA that it had been filed in the wrong court. Additional information about that complaint appears in Issue 356 of this Update. According to the new complaint, the Food, Drug, and Cosmetic Act requires FDA to respond to petitions like the one NRDC filed “within 90 days.” Yet, “ [m]ore than one thousand…
