The National Law Journal (NLJ) recently recognized Shook, Hardy & Bacon Agribusiness & Food Safety Co-Chair Madeleine McDonough among the 50 attorneys selected for its inaugural class of Litigation Trailblazers & Pioneers. “The ‘Litigation Trailblazers & Pioneers’ list recognizes those professionals who have acted as real agents of change in their field, elevating—and in some cases, redefining—the ways in which litigation is pursued, cases are defended or trials are handled,” NLJ publisher Tom Larranaga said. “They have raised the bar in several meaningful ways and are establishing important new standards as the legal landscape continues to evolve.” McDonough has represented more than 65 companies regulated by the Food and Drug Administration over her 25-year career at Shook and told NLJ that whenever possible she helps clients avoid litigation through anticipatory risk management. “I’ve learned that a lot of issues can be resolved before trial,” she said. “If you have to…
Posts By Shook, Hardy & Bacon L.L.P.
A University of Utah study has reportedly claimed that female mice fed fructose and glucose monosaccharides in proportions similar to the amount of high-fructose corn syrup (HFCS) in human diets “had death rates 1.87 times higher than females on [a] sucrose diet” and “produced 26.4% fewer offspring.” James Ruff, et al., “Compared to Sucrose, Previous Consumption of Fructose and Glucose Monosaccharides Reduces Survival and Fitness of Female Mice,” The Journal of Nutrition, March 2015. Funded by the National Institutes of Health and the National Science Foundation, the study apparently builds on 2013 research concluding that “when mice were fed either a diet with 25 percent calories in the form of added fructose and glucose monosaccharides or 25 percent calories from starch, females died at twice the normal rate and males were a quarter less likely to hold territory and reproduce.” Although the new study did not find any differences in male mice…
According to a January 1, 2015, New York Times article by Andrew Pollack, the advent of new technologies has created a loophole in federal regulations for companies looking to market genetically-engineered (GE) crops. Noting that new techniques do not involve the transfer of genetic material from other species, use bacterium to insert foreign materials or rely on viruses to manipulate plant DNA, Pollack writes that the U.S. Department of Agriculture (USDA) lacks the authority to regulate these GE crops under its current mandate to protect against plant pests, including insects or pathogens. Although consumer watchdogs have warned that all GE crops could have unforeseen ecological consequences, proponents have argued that easing regulatory burdens will lower barriers to market entry and allow smaller companies to participate in product development. “Regulators around the world are now grappling with whether these techniques are even considered genetic engineering and how, if at all, they…
A January 5, 2015, post on NPR’s “The Salt” blog reports that trademark disputes have come to a head in the craft brewing market, where more than 3,000 companies compete for a dwindling number of pithy beer names. Although many brewers work to resolve issues outside the courtroom, there has also been an increase in litigation alleging trademark violations focused on overlapping product names, font styles and label designs. In some cases, brewers that have used beer names for decades have come under fire from new companies looking to trademark them. In particular, the article notes that many hop-related puns—such as “Hopscotch” and “Bitter End”—are currently used on more than one product. “American trademark law lumps breweries together with wineries and distilleries, making the naming game even more chancy,” concludes NPR. “Even imagery can be trademarked and protected in court.” Issue 550
Society Insurance has filed a lawsuit in Iowa federal court seeking a declaration that its policy does not require it to defend or indemnify Templeton Rye Spirits in a putative consumer class action alleging that the whiskey distiller falsely represented its products as made from a Prohibition-era recipe. Soc’y Ins. v. Templeton Rye Spirits LLC, No. 15-0005 (S.D. Iowa, filed January 5, 2015). The underlying lawsuit asserts that Templeton claims its whiskey is made in a “small batch” from a Prohibition-era recipe that was a favorite of Al Capone’s, but that the product is actually distilled at an MGP Ingredients, Inc. factory in accordance with a stock MGP recipe. Society seeks a judicial declaration that Templeton’s insurance policy, which Society argues covers only damages based on bodily injury, property damage or personal and advertising injury, will not require Society to indemnify a settlement or judgment against Templeton. The insurance company argues…
Philip Payne, the former operations manager of Halal-food company Midamar Corp., has pled guilty to a charge of conspiracy to make and deliver false certificates and writings stemming from Midamar’s export of beef to Indonesia and Malaysia purportedly prepared in accordance with Islamic law. U.S. v. Payne, No. 14-cr-0143 (N.D. Iowa, request for approval filed January 7, 2015). In his plea agreement, Payne admitted that Midamar attempted to meet the rise in Halal meat demand by supplying kosher beef slaughtered by rabbis without any oversight from a Muslim slaughterman. Several executives at Midamar have been charged with making false statements on export certificates, committing wire fraud and laundering money, allegations to which founder William B. Aossey Jr. and two of his sons pled not guilty in December 2014. A trial on those charges is set for February 17, 2015. Issue 550
Anheuser-Busch Cos. has reportedly settled a consumer class action alleging that Kirin® beer is represented as a Japanese import even though the products sold in the United States are brewed with domestic ingredients in California and Virginia. Suarez v. Anheuser-Busch Cos., No. 2013-33620-CA-01 (Fla. Cir. Ct., 11th Jud. Cir., settlement preliminarily approved December 17, 2014). The October 2013 complaint alleges that Kirin’s labeling falsely implied that its products remained imported despite a 1996 agreement between the Japanese company and Anheuser-Busch to manufacture the beer in the United States and a 2006 deal that gave Anheuser-Busch the brand’s marketing and sales responsibilities. The complaint alleges that the packaging includes, in fine print, a statement clarifying that the beer is “[b]rewed under Kirin’s strict supervision by Anheuser-Busch, in Los Angeles, CA and Williamsburg, VA,” but that the statement is not visible to consumers before purchase. Under the proposed settlement agreement, consumers will…
A California federal court has denied a motion to dismiss a putative class action alleging that Deoleo USA Inc., importer of Bertolli and Carapelli olive oils, misrepresented the quality of the oils as “extra virgin” despite being mixed with refined oil and using bottles insufficient to prevent sunlight and heat degradation. Koller v. Med Foods, Inc., No. 14-2400 (N.D. Cal., order entered January 6, 2015). Deoleo attacked the complaint for failing to supply the studies supporting the argument that “’imported ‘extra virgin’ olive oil often fails international and USDA standards’ and that packaging olive oil in clear bottles can lead to rapid degradation of its quality,” but the court dismissed the argument for being premature to the pleading phase. Deoleo also asserted that while studies may support the proposition that the oil it imports may not meet extra virgin standards, the plaintiff could not show that the oil in the bottle…
A California state court has lifted an injunction that barred bisphenol A (BPA) from placement on the list of reproductive toxicants mandated under Proposition 65, the 1986 law requiring warnings to the public about exposure to chemicals “known to the state to cause cancer or reproductive toxicity.” Am. Chemistry Council v. Office of Envtl. Health Hazard Assessment, No. 34-2013- 00140720 (Super. Ct. Cal., Cty. of Sacramento, order entered December 18, 2014). BPA joined the Prop. 65 list in April 2013, but a court granted the injunction barring its inclusion one week later. The court assessed whether the Office of Environmental Health Hazard Assessment (OEHHA) abused its discretion in finding substantial evidence that the regulatory criteria to list BPA were met. It found the American Chemical Council’s (ACC’s) argument that an entry to the list must be supported by “clear evidence that the chemical is known, not merely suspected, to cause cancer…
Finding flaws in a lower court’s likelihood of confusion analysis, the Ninth Circuit Court of Appeals has vacated the denial of an injunction sought by Pom Wonderful that would block the sale of Pur Beverages’ “pur pom” energy drink. Pom Wonderful v. Hubbard, No. 14-55253 (9th Cir., order entered December 30, 2014). Pom Wonderful sued Pur to prevent Pur from using the name “pur pom” based on a claim of trademark infringement, but a California federal court denied Pom Wonderful’s motion for preliminary injunction, finding that Pom likely would not prevail because of distinct visual features on the products. The Ninth Circuit disagreed; it found significant similarities between the “POM” mark owned by Pom and the “pom” used by Pur, including a stylized “o” in each. “POM” and “pom” also sound the same and both refer to pomegranate flavoring or ingredients, the court noted. “Balancing the marks’ many visual similarities,…
