While the Dairy Farmers of America (DFA) and affiliated Dairy Marketing Services have agreed to pay $50 million to settle class claims that they conspired to monopolize the market for raw milk in the Northeast, a federal court in Vermont has denied preliminary approval of the proposed settlement without prejudice. Allen v. DFA, Inc., No. 09-0230 (U.S. Dist. Ct., D. Vt., order entered July 9, 2014). Details about the litigation appear in Issue 323 of this Update. The court pointed to a number of flaws in the draft class notice, including that it released the defendants and a number of related entities and extended beyond the legal claims in the lawsuit without making this clear to class members. The basis for its ruling, however, was that some class members apparently plan to object to the settlement, but no information about their objections was provided in the expedited motion for preliminary approval…
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Tufts University Senior Research Scientist Guangwen Tang has reportedly accused the American Society for Nutrition (ASN) of defaming her with its plan to retract her 2012 article—“β-carotene in Golden Rice is as good as p-carotene in oil at providing vitamin A to children”—for allegedly prob- lematic research protocols. Filing in Middlesex County Court, Tang has also accused Tufts of interference in business relations because, she argues, the university barred her from doing human research for two years and told her she would be subject to disciplinary actions regarding future research and would be required to undergo human subject training—actions that Tufts disclosed to ASN and led to the organization’s decision to retract her article, she claims. Tang’s studies examined the effects of golden rice, genetically engineered rice enriched with β-carotene, in China through a 2008 field trial that involved feeding the rice to Chinese children. Chinese media reports and Greenpeace…
John Wayne Enterprises (JWE) has filed a complaint in California federal court seeking declaratory judgments determining that its usage of the “Duke” trademark is not likely to cause confusion with the trademarks owned by Duke University, which has challenged several JWE trademark applications over the last decade. John Wayne Enterprises, LLC v. Duke Univ., No. 14-1020 (C.D. Cal., filed July 3, 2014). JWE intends to sell bourbon under the name Duke, a nickname John Wayne used since his childhood and which fans still use to affectionately refer to him. Duke University has repeatedly challenged JWE’s past trademark applications by filing notices of opposition and a petition for cancellation of JWE’s owned “Duke” trademarks, alleging that the marks suggest a false connection to the university, would likely confuse consumers and dilute the university’s trademarks. JWE seeks two declaratory judgments to determine that its “Duke” mark does not create any likelihood of…
The state attorneys general (AGs) of Oregon, Vermont and Washington have reportedly filed separate lawsuits against Living Essentials and its parent Innovation Ventures seeking a permanent injunction to stop allegedly misleading and deceptive advertising for 5-hour ENERGY®. According to news sources, other state AGs are expected to bring similar action; some 30 have been investigating the accuracy of company ads for the product. Washington AG Bob Ferguson has alleged that the defendants violated the state consumer protection statute by (i) airing TV commercials with “survey results” from doctors who “recommend” the product “while misrepresenting survey results and failing to disclose key facts”; (ii) using a misleading “no sugar crash” product tagline given studies demonstrating a caffeine crash; (iii) implying that the product can be consumed by teens with the label statement, “Do not take if you are pregnant or nursing, or under 12 years of age”; and (iv) claiming that the…
A federal court in Illinois has dismissed without prejudice a putative class action alleging consumer fraud against a company that makes snacks which list evaporated cane juice (ECJ) as an ingredient. Ibarrola v. Kind, LLC, No. 13-50377 (N.D. Ill., order entered July 14, 2014). The court declined to address whether the plaintiff had standing to assert claims as to products she had not purchased because class issues such as adequacy and typicality had not yet been briefed and further declined to consider dismissing the complaint under the primary jurisdiction doctrine, noting that the U.S. Supreme Court may have called this rationale into question in POM Wonderful LLC v. Coca-Cola Co., No. 12-761, 2014 WL 2608859 (June 12, 2014). The court dismissed the entire complaint, however, because it failed “to plausibly and adequately alleged that [the plaintiff] was deceived by Kind’s representations.” She did not apparently “explain how she was deceived, or…
A California federal court has dismissed on jurisdictional grounds Quest Nutrition LLC’s lawsuit against Louisiana State University Agricultural Center accusing the school of filing a patent for a sweetener using Quest’s confidential information. Quest Nutrition LLC v. Bd. of Supervisors of LSU Agric. & Mech. Coll., No. 14-2005 (C.D. Cal., order entered July 8, 2014). The court ruled that the majority of Quest’s claims—including those for unfair competition and breach of contract—arose under state law so the court lacked subject matter jurisdiction, and the court held that state courts and the U.S. Patent and Trademark Office have subject matter jurisdiction over Quest’s patent claims. Quest hired LSU Agricultural Center in 2013 to test a potentially new sweetener and bound the information by a confidentiality agreement. The company alleged that the university succeeded in identifying the formula for the sweetener and filed a patent application with the information that did not list Quest…
The Ninth Circuit Court of Appeals has upheld the settlement of class actions alleging consumer fraud in ads portraying Nutella as a healthy breakfast food. In re Ferrero Litigation, No. 12-56469 (9th Cir., decided July 16, 2014) (unpublished). Three members of the certified statewide class objected to the settlement, which provided $550,000 to reimburse class members, required ad-campaign and product-labeling revisions and awarded $985,920 in attorney’s fees. The objectors claimed inadequate notice of the attorney’s fee request, lack of justification or explanation for the fee award and the district court’s failure to consider whether class counsel adequately represented the class. The court found no basis for the objections, noting in part that the district court properly applied the lodestar method to the attorney’s fee calculation and that no indicia of collusion were present. Issue 530
Briefing has been completed before the U.S. Supreme Court (SCOTUS) on a petition seeking review of the Ninth Circuit Court of Appeals ruling upholding California’s prohibition on the sale of food produced by force feeding birds to enlarge the liver beyond normal size. Association des Éleveur de Canards des d’Oies du Québec v. Harris, No. 13-1313 (U.S., distributed for Sept. 29, 2014, conference on July 16). Additional details about the Ninth Circuit’s ruling appear in Issue 497 of this Update. Joining the Canadian and New York foie gras producers that filed the certiorari petition are the attorneys general (AGs) of 13 states. Their amici curiae brief claims that the petition presents an issue of “exceptional importance to the preservation of state sovereignty,” namely, that the lower court’s decision “allows the states to engage in economic isolationism, set themselves against one another, and balkanize the nation, thus giving rise to trade wars…
The District of Columbia City Council this week overrode Mayor Vincent Gray’s veto of the 2015 budget, which includes a directive for the issuance of “healthy food and beverage standards” for vending machine and other concession offerings sold or served on District government property. Encouraging fare that includes fruits, vegetables and other offerings low in calories and sodium, the Workplace Wellness Emergency Act of 2014 standards will “apply to foods and beverages purchased or served by District agencies, including at meetings, events, in vending machines, and through on-site vendors, with the exception of food served by the Department of Corrections and the Department of Behavioral Health to persons who reside at their institutions or are in their direct custody.” The council also reportedly approved a proposal to prohibit polystyrene foam food and beverage containers beginning in 2016; meat trays will be exempt from the ban. See The Washington Post, July…
The Mexican Ministry of Health has reportedly announced new restrictions on food and beverage advertisements aired during TV programs and movies viewed by children. Part of its National Strategy for the Prevention and Control of Overweight, Obesity and Diabetes, the new rules will prohibit the marketing of sugar-sweetened beverages, snacks, confectionery, and chocolate on both terrestrial and cable television from 2:30 to 7:30 p.m. during the week and from 7:00 a.m. to 7:30 p.m. on weekends. Eliminating 40 percent of ads across these four product categories, the strategy will also ban these promotions in movies rated A or AA, which covers those targeted at all ages. See Ministry of Health Press Release and BBC News, July 15, 2014. Issue 530
