A New York federal court has granted conditional class certification to plaintiffs employed by T.G.I. Friday’s who allege underpayment for side work and lack of payment for overtime work in violation of the Fair Labor Standards Act (FLSA). Flood v. Carlson Restaurants Inc., No. 14-2740 (S.D.N.Y., filed April 17, 2014). The restaurant employs as many as 42,000 tipped workers throughout the United States who are eligible to join the nationwide class. T.G.I. Friday’s argued that the named plaintiffs were not similar enough to merit class certification, but the court disagreed, finding that the plaintiffs’ “declarations and depositions—which cover eight T.G.I. Friday’s locations in four states—contain common allegations of FLSA violations, including Defendants’ denial of full minimum wage and overtime compensation for tipped workers.” The court dismissed the restaurant’s arguments on the merits of the case, noting that those issues could not be addressed at the class certification stage, and directed…
Posts By Shook, Hardy & Bacon L.L.P.
The U.S. Supreme Court has granted certiorari to a coalition of California raisin growers that challenged a federal rule requiring them to give a portion of their annual harvests to a crop-specific committee that in turn sells the reserves for export or donates them to school lunch programs or foreign governments. Horne v. USDA, No. 14-275 (U.S., certiorari granted January 16, 2015). The coalition contends that the portion of the harvest that its growers set aside constitutes a taking under the Fifth Amendment, which guarantees just compensation for such acts. They assert that for the 2002-2003 season, they were required to set aside 47 percent of their raisin crops, and the named plaintiffs were paid less than the cost of production; in the 2003-2004 season, they allegedly set aside 30 percent and were not paid at all. The coalition argues that, in a split from other circuits, the Ninth Circuit…
The European Food Safety Authority’s (EFSA’s) Panel on Food Contact Materials, Enzymes, Flavorings and Processing Aids (CEF) has issued a scientific opinion finding that bisphenol A (BPA) poses “no health concern for any age group from dietary exposure or aggregated exposure.” Published January 21, 2015, the scientific opinion assessed exposure in three ways: (i) “external (by diet, drinking water, inhalation, and dermal contact to cosmetics and thermal paper”; (ii) “internal exposure to total BPA (absorbed dose of BPA, sum of conjugated and unconjugated BPA)”; and (iii) “aggregated (from diet, dust, cosmetics and thermal paper), expressed as oral human equivalent dose (HED) referring to unconjugated BPA only.” Using new data and methodologies, EFSA previously established a temporary tolerable daily intake (t-TDI) for BPA at 4 micrograms per kilogram of body weight per day, from 50 µg/kg bw/day. This latest scientific opinion confirms that the highest estimates for human exposure to BPA…
State legislators in Wisconsin and Illinois have proposed bills that would ban the sale and distribution of powdered alcohol, which may enter the market in spring 2015 under the brand name Palcohol. Sen. Tim Carpenter (D-Milwaukee), who proposed the Wisconsin legislation, reportedly compared the product to the synthetic hallucinogenic drug known as “bath salts,” which the state approved if they were labeled “not for human consumption” before banning them in 2011. He also apparently expressed concern that people could snort powdered alcohol, sneak it into classrooms and sporting events, or mistake it for another powder and ingest it accidentally. Illinois State Sen. Ira Silverstein (D-Chicago) proposed a similar measure as an amendment to the state’s existing Liquor Control Act of 1934, noting that his “public safety bill” would combat “people spiking beverages.” Similar legislation is also pending in Ohio, Colorado, Nebraska, Utah, and Indiana. Further details about powdered alcohol bans…
The U.S. Department of Agriculture (USDA) has proposed new standards that aim to reduce Salmonella and Campylobacter in “the poultry items that Americans most often purchase,” including ground chicken and turkey products as well as raw chicken breasts, legs and wings, according to Agriculture Secretary Tom Vilsack. The proposed standards would require routine sampling throughout the year rather than infrequent sampling on consecutive days, and the allowed amounts of Salmonella in chicken parts, ground chicken and ground turkey would be lowered substantially. A USDA press release notes that the Food Safety and Inspection Service implemented standards for whole chickens in 1996, but “has since learned that Salmonella levels increase as chicken is further processed into parts.” See USDA News Release, January 21, 2015. Issue 552
The U.S. Federal Trade Commission (FTC) is soliciting comments on proposed amendments to the Fair Packaging and Labeling Act (FPLA). The 1967 law requires that certain products carry labels with identifying information such as the source, content and quantity and specifically excludes—among other categories—meat products, poultry and alcohol beverages. FTC sought comments on the existing rules in March 2014 and used some of the suggested changes in the proposed amendments, which include (i) “modernizing the place-of-business listing requirement to incorporate online resources”; (ii) “eliminating obsolete references to commodities advertised using the terms ‘cents off,’ ‘introductory offer,’ and ‘economy size’”; and (iii) incorporating “a more comprehensive metric chart.” Comments must be received by March 30, 2015. See FTC News Release, January 22, 2015. Issue 552
Sens. Edward Markey (D-Mass.), Dick Durbin (D-Ill.) and Richard Blumenthal (D-Conn.) have released a report asserting that while 12 of 16 companies that responded to a series of questions from the lawmakers have made progress in reducing marketing and promotion activities targeting children younger than age 12 and children in K-12 school settings, they have failed to voluntarily eliminate such efforts geared toward teenagers (ages 13-18). “Despite energy drink makers’ claims of not marketing their products to teenagers, a quick glance at social media or a drop by at a local concert shows that those claims just aren’t based in fact,” Senator Durbin was quoted as saying. “The truth is that in the absence of federal regulation, energy drink companies are using effective marketing tactics to reach young people—and sadly it’s working. It is past time for this industry to heed the advice of public health experts across the country…
Shook, Hardy & Bacon White Collar Defense & Government Investigations Practice Co-Chair David Maria provides a detailed discussion of typical issues that companies doing business internationally face in deciding whether to self-report to the U.S. government potential criminal conduct under the Foreign Corrupt Practices Act (FCPA) in the winter 2015 issue of DRI’s In-House Defense Quarterly. According to Maria, a former prosecutor in the Criminal Division of the Department of Justice, a “corporate defendant starts with a significant strike against it if it seeks to cooperate after the government is informed of the conduct through independent means. Once the government learns of the conduct through a source other than the corporation (most likely a whistleblower), assuming that the corporation was aware of the conduct but opted not to disclose it (or had not yet disclosed it), even the most energetic cooperation may result in little credit given by the government.”…
A study claiming that low doses of bisphenol A (BPA) and bisphenol S (BPS) increased brain-cell growth in embryonic zebrafish—which later exhibited hyperactive behaviors as larvae—has urged health authorities to reconsider the use of linear dose-response relationships to set tolerable daily intake levels. Cassandra Kinch, et al., “Low-dose exposure to bisphenol A and replacement bisphenol S induces precocious hypothalamic neurogenesis in embryonic zebrafish,” Proceedings of the National Academy of Sciences, January 2015. After exposing embryonic zebrafish to the two substances at levels (0.0068 µM) similar to those found in rivers that supply two major urban centers, University of Calgary researchers reported that BPA and BPS caused “180% and 240% increases, respectively, in neuronal birth (neurogenesis) within the hypothalamus, a highly conserved brain region involved in hyperactivity.” This increased neurogenesis apparently relied not on estrogen receptors as predicted, but on “androgen receptor-mediated up-regulation of aromatase.” Based on these results, the study’s authors…
Researchers with the University of California, San Diego, have reportedly linked a sugar molecule found in red meat to the development of spontaneous cancers. Annie N. Samraj, et al., “A red meat-derived glycan promotes inflammation and cancer progression,” Proceedings of the National Academy of Sciences, January 2015. According to a December 29, 2014, press release, N-glycolylneuraminic acid (Neu5Gc) is present in most mammals but not humans, who consume bio-available forms of the molecule from beef, pork and lamb. Building on previous work hypothesizing that Neu5Gc can cause chronic inflammation when absorbed by the human body, the study authors fed the sugar molecule to mice genetically engineered to suppress Neu5Gc. The results not only showed that these mice developed antibodies to Neu5Gc that contributed to systemic inflammation, but that the incidence of spontaneous tumor formation increased fivefold, with Neu5Gc accumulating in the tumors. “Until now, all of our evidence linking Neu5Gc to…
