The Eighth Circuit Court of Appeals has reversed the grant of class certification for some 1,600 Domino’s Pizza delivery drivers in Minnesota, finding that their claims lacked commonality. Luiken v. Domino’s Pizza, LLC, No. 12-1216 (8th Cir., decided February 4, 2013). The drivers claimed that Domino’s improperly withheld from them a fixed delivery charge imposed on customer orders. They contended that the charge was in the nature of a surcharge or gratuity under Minnesota law and, as such, must be paid to them. According to the court, liability was based on the objective, reasonable person standard, and what is objectively reasonable from the perspective of the customer “depends on the nature and context of the parties’ bargain.” Because some customers were told by drivers that Domino’s retained the charge and was not part of their tip and because the fixed charge was sometimes within the normal range for a tip,…
Category Archives Issue 470
A recent article published in Biological Psychiatry reviews the research examining the neurological basis for food addiction and its relation to obesity. Nora Volkow, et al., “The Addictive Dimensionality of Obesity,” Biological Psychiatry, February 2013. Co-authored by National Institute on Drug Abuse Director Nora Volkow, the article proposes that drug and food addiction “share neurobiological processes that, when disrupted, can result in compulsive consumption, while also involving unique neurobiological processes.” In particular, the authors argue not that obesity is the result of food addiction, “but rather that food reward plays a critical role in overeating and obesity, referring to it as the dimensional component of obesity.” To this end, the article describes how drug and food addiction allegedly share genetic, molecular, neurobiological, and behavioral mechanisms that, when coupled with environmental triggers, have “the potential to facilitate or exacerbate the establishment of uncontrolled behaviors.” The authors also speculate that exposure to obesogenic…
A recent study examining the public stigma around food addiction has concluded that the “food addict” label “was perceived similarly to obesity, but more favorably than other addictions.” Jenny DePierre, et al., “A New Stigmatized Identity? Comparisons of a ‘Food Addict’ Label with Other Stigmatized Health Conditions,” Basic and Applied Social Psychology, February 2013. To gauge public perceptions of food addiction, researchers at Yale University’s Rudd Center for Food Policy & Obesity first asked 659 adults about their responses to individuals “with various health conditions and addictions, including obesity, food addiction, physical disability, mental illness, cocaine addiction, and smoking.” A second survey of 570 adults asked them to view only one of three addictions—smoking, alcohol or food—“to specifically compare public perceptions of individuals described as being addicted to food to those with smoking and alcohol addictions.” While the results of the first online survey allegedly showed that “a food addict…
According to a news source, the Council of Better Business Bureau’s National Advertising Division (NAD) has determined that Anheuser Busch promotions for Michelob ULTRA Light Cider® comply with Food and Drug Administration definitions and guidelines. The company apparently claims that the product has one-third fewer calories than its competitors, and the ad industry’s self-regulatory investigative unit “determined that the advertiser had provided a reasonable basis for the claim.” NAD considered the product’s calorie content, the calorie content of other leading hard ciders and their market share, as well as whether the brewer’s claim provided “meaningful and accurate information to consumers.” The company was reportedly “pleased with NAD’s decision.” See Law360, February 5, 2013.
A Yale University event for women graduates will feature an address by U.S. Supreme Court Associate Justice Sonia Sotomayor, and some alumnae have reportedly questioned whether she should be participating in a PepsiCo-sponsored event. An architecture graduate apparently called the association “shocking,” despite assurances from the Supreme Court’s public information officer that “[h]er appearance does not suggest any form of endorsement by PepsiCo.” Public health activist and author Michele Simon, who graduated from Yale with a master’s degree in public health, reportedly said, “PepsiCo has its tentacles deep into Yale. It’s disgusting. What is this nation’s leading educational institution doing participating with this threat to public health?” Details about her report on the relationship between the Academy of Nutrition and Dietetics and the food and beverage industry appear in Issue 468 of this Update. A legal ethics expert opined that Sotomayor’s participation did not implicate any judicial ethics concerns, and…
Advocacy organization As You Sow has issued a report titled “Slipping Through the Cracks: An Issue Brief on Nanomaterials in Food” to “inform companies, investors, and consumers about the emerging use of engineered nanomaterials in food and food related products, and to highlight the potential unknown risks of this technology.” The organization describes how it sought information from major food and food packaging companies about nanomaterials in their products, and of those few responding, most either do not know whether nanomaterials are in their supply chain or were not apparently concerned about the issue. Comprehensive survey results are included in the report. As You Sow also tested a few products and purportedly found nano-sized titanium dioxide in the powered sugar used on a Dunkin’ Donut product. The organization is soliciting contributions to allow it to test other products, such as Trident gum and Pop-Tarts. The report suggests that while initial…
Answering a question certified by the Ninth Circuit Court of Appeals, a divided Washington Supreme Court has determined that a deputy sheriff who was served, but did not consume, a Burger King hamburger contaminated with an employee’s spit, may recover under state product liability law for emotional distress, “but only if the emotional distress is a reasonable reaction and manifest by objective symptomatology.” In re Bylsma v. Burger King Corp., No. 86912-0 (Wash., decided January 31, 2013). The deputy had alleged ongoing emotional distress, including vomiting, nausea, food aversion, and sleeplessness, symptoms that purportedly led him to seek treatment from a mental health professional. So ruling on a matter of first impression, the court majority agreed with the deputy sheriff that the Washington Product Liability Act allows recovery for emotional distress damages absent physical injury. The federal district court which had considered the deputy’s claim, dismissed it on the ground…
A federal court in California has reportedly approved the settlement of wage-related claims in a class action filed by restaurant managers against Benihana National Corp., which owns and operates a Japanese hibachi steakhouse chain. Akaosugi v. Benihana Nat’l Corp., No. 11-1272 (N.D. Cal., settlement approved January 24, 2103). The company has apparently agreed to pay $660,000, including attorney’s fees and costs, to settle claims that it forfeited managers’ accrued vacation and failed to compensate them for it, forced them to work more than eight hours a day without paying overtime, failed to provide meal and rest breaks, and failed to provide accurate wage statements. See Mealey’s Class Actions, February 1, 2013.
General Mills has agreed to establish an $8.5 million fund to settle claims that it falsely advertised its Yo-Plus yogurt as a product that helped naturally regulate “digestive health.” Johnson v. General Mills, Inc., No. 10-61 (C.D. Cal., stipulation of settlement filed February 4, 2013). If the court approves the agreement, purchasers throughout the United States will be able to seek $4 for each unit of Yo-Plus purchased, and any unclaimed funds will be distributed to the National Consumer Law Center and Mayo Clinic. The company apparently no longer sells the products. The costs of class notice and administration, attorney’s fees and incentive awards for plaintiffs in several related class lawsuits will be deducted from the settlement fund. Recovery will be capped at 13 units of Yo-Plus yogurt per claimant, unless proof of purchase for more units purchased during the class period can be shown. A hearing for preliminary approval…
A California resident has reportedly filed a putative class action against the company that makes 5-Hour Energy® shots, claiming that “no genuine scientific research” and “no scientifically reliable studies” support the company’s claims that the product provides “any more additional benefits over a caffeine tablet or a cup of coffee.” Soto v. Innovation Ventures, LLC, No. 13-591 (C.D. Cal., filed January 28, 2013). According to a news source, the plaintiff alleges that the company overcharges consumers based on false claims and that some of the product’s ingredients may present serious undisclosed health risks. Seeking to represent a nationwide class and statewide subclass of consumers, the plaintiff apparently alleges violations of the California Consumers Legal Remedies Act and Business and Professions Code, breach of express warranty, unjust enrichment, and fraud (intentional misrepresentation and concealment of fact). See Mealey’s Class Actions, February 1, 2013.
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