Shook, Hardy & Bacon Agribusiness & Food Safety attorneys Ann Havelka and Jeff Lingwall provided an analysis of putative class action labeling claims against Salov North America and its Filippo Berio® brand of olive oil in a February 20, 2015, article for Law360. Kumar v. Salov North America Corp., No. 4:14_CV-02411 (N.D. Cal. Feb. 3, 2015). The plaintiff in the case alleges that Salov’s Filippo Berio® oil is deceptively labeled as “Imported from Italy,” and that independent product tests on the “Extra Virgin” varieties indicate that they are of less-than-extra-virgin quality. According to Havelka and Lingwall, these ongoing olive oil proceedings offer food manufacturers “a cautionary example, both for traditional labeling issues and for the trend toward litigation based on product testing,” making it all the more important for companies to be “prepared with their own test results, documented production standards and quality-control protocols” to ensure that all labeling claims…
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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.”…
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…
Shook, Hardy & Bacon Agribusiness & Food Safety Partner Jim Muehlberger and Associate Jara Settles discuss the modern consumer protection landscape in a January 2, 2015, expert analysis published in Law360. Noting that food lawsuits “tend to garner significant notoriety,” the authors focus on recent litigation against Whole Foods Market Inc. alleging that the health-food purveyor “benefited from misleading labeling claims on almond milk,” which a third-party certified as free of ingredients made with genetically modified organisms (GMOs). Richard v. Whole Foods Mkt. Cal. Inc., No. BC563304 (Cal. Super. Ct., Los Angeles Cty., filed Nov. 7, 2014). “In a long line of consumer protection putative class actions aimed at food companies, Richard is somewhat unique in targeting a retailer,” explain Muehlberger and Settles. “In most situations, plaintiffs have targeted the manufacturers of food and beverage products they deem to be improperly labeled… As a retailer, Whole Foods likely had no hand in…
Shook, Hardy & Bacon Agribusiness & Food Safety Co-Chair Madeleine McDonough was quoted in two January 2, 2015, Law360 articles about various legal, legislative and regulatory issues expected to affect food and beverage manufacturers in the new year. Given the September 2014 convictions of former Peanut Corp. of America owner Stewart Parnell and two other company executives on criminal charges stemming from a 2008-2009 Salmonella outbreak that sickened hundreds of people nationwide and was linked to nine deaths, McDonough speculated that similar misdemeanor prosecutions under the Park Doctrine could be on the rise. “People are really watching all of the fallout from the Parnell situation and trying to keep that in mind in making sure they have appropriate procedures internally,” McDonough told Law360. Under the Park Doctrine, food and drug company executives can be criminally prosecuted for product safety violations without any proof that the executives had any specific knowledge or…
Global Product Liability Partners Gregory Fowler and Marc Shelley have co-authored an article titled “Food and beverage labelling and advertising in the United States: Regulatory and litigation landmines,” appearing in the September 2014 issue of the International Bar Association’s Product Law and Advertising Newsletter. The article considers the public and private challenges facing U.S. food and beverage companies that promote their products as beneficial to health, “natural” or “all natural,” or include in their products genetically modified ingredients, high-fructose corn syrup or “evaporated cane juice.” The authors address trends in consumer-fraud lawsuits and settlements, competitor litigation and suits brought by morality and decency watchdogs. The article concludes by recommending the inclusion of a legal team in marketing strategies to enhance the likelihood that companies will successfully navigate these risks while distinguishing themselves in the marketplace. Issue 542
Agribusiness & Food Safety Associates Ann Havelka and Jara Settles have co-authored an article titled “FDA Warning Isn’t Enough Proof for Takings Claim” published on October 17, 2014, by Law360. The authors discuss a recent Court of Federal Claims ruling that rebuffed a takings claim filed by tomato growers who alleged that a 2008 Food and Drug Administration (FDA) warning about a Salmonella outbreak purportedly associated with certain raw red tomatoes caused tomato sales to decline dramatically. The outbreak was eventually linked to Mexican peppers. The article concludes that while the plaintiffs may have focused on the wrong argument to support their claims, the ruling “should prevent a flood of takings claims in the wake of garden-variety governmental warnings,” which, the authors contend, will allow FDA the flexibility it needs to protect public health. Additional information on the ruling appears in Issue 539 of this Update. Issue 542
Shook, Hardy & Bacon Class Actions & Complex Litigation Partners Andrew Carpenter, Scott Kaiser and Gregory Wu have launched the Missouri & Kansas Class Action Blog to provide up-to-date information about federal and state rulings in class action decisions arising in these states. New posts can be accessed by subscribing to the blog or through the authors’ LinkedIn pages.
Shook, Hardy & Bacon Agribusiness & Food Safety Practice Co-Chair Madeleine McDonough will participate in the American Conference Institute’s (ACI’s) “FDA & USDA Compliance Boot Camp: An In-Depth and Comprehensive Course on Regulatory Requirements for the Food and Beverage Industry,” scheduled for October 3-4, 2012, in Chicago. Joining a faculty of expert in-house counsel, regulatory officials and seasoned practitioners, McDonough will address “Preemption Fundamentals: Overview of Recent Case Decisions and How to Successfully Assert Federal Preemption.”
The National Institute for Animal Agriculture (NIAA) has scheduled its annual conference for April 11-14, 2011, in San Antonio, Texas. Titled “Consumers’ Stake in Today’s Food Production: Meeting Growing Demands with Integrity,” the event will include presentations on food supply and food safety issues. Shook, Hardy & Bacon Agribusiness & Food Safety Co-Chair Mark Anstoetter will speak during the conference about “Legal Challenges and Ramifications of Food Production Systems and Food Safety.” Shook, Hardy & Bacon is a conference co-sponsor.
