A divided Colorado Supreme Court has determined that a trial court did not abuse its discretion when it refused to grant the motion for pro hac vice admission filed by Seattle-based law firm Marler Clark to represent a plaintiff in a foodborne illness lawsuit. In re Liebnow v. Boston Enters. Inc., No. 12SA83 (Colo., decided February 4, 2013). Counsel for the defendant had apparently consulted with Drew Falkenstein, a member of the Marler Clark firm, before plaintiff’s counsel asked another member of the firm to step in and represent the plaintiff. Defense counsel and Falkenstein “talked about defense counsel’s planned theory of the case,” advice on a trial expert and Falkenstein’s recommendation that a lettuce distributor be added as a nonparty defendant after he had researched E. coli outbreaks using Marler Clark’s publicly accessible database and finding such an outbreak at another local restaurant chain. “[T]he trial court concluded that…
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A federal court in California has deferred ruling on the motion to dismiss filed in a consumer protection lawsuit against R.C. Bigelow, Inc. to give the plaintiff an opportunity to amend her complaint. Khasin v. R.C. Bigelow, Inc., No. 12-2204 (N.D. Cal., order entered February 6, 2013). Indicating that it was inclined to allow most of her state-law claims to proceed and to dismiss her federal claims, the court counseled the defendant “that the Court did not find its arguments regarding preemption and abstention under the doctrine of primary jurisdiction persuasive.” According to the court, the plaintiff has filed claims on behalf of a putative class alleging that the company misrepresents the health benefits of drinking tea and promotes and labels its green tea products with antioxidant assertions “expressly condemned by the Food and Drug Administration [FDA].” The court found the substance of many of the plaintiff’s allegations unclear or…
A Michigan court has reportedly entered an order specifying what will appear on the Facebook® page of the attorney who filed a complaint seeking to set aside a settlement resolving claims that a McDonald’s Corp. franchisee purported to sell halal chicken when some of the products were not prepared according to Islamic law. Additional details about the settlement appear in Issue 468 of this Update. The court ordered Dearborn-based attorney Majed Moughi to remove any criticism of the proposed settlement from the site, which is apparently popular as a source of news in the Muslim community—drawing 20,000 views each month, prominently post the settlement agreement itself, provide the names of anyone who “liked” or supported the original post, and refrain from discussing the settlement with anyone who might be affected or the media. According to a news source, the Facebook® page has effectively become static because any new posts or…
In the wake of an antitrust lawsuit filed by the U.S. Department of Justice (DOJ) seeking to enjoin the acquisition of Mexican brewer Grupo Modelo, Anheuser-Busch InBev (ABI) has reportedly agreed to sell a massive Modelo brewery, including full U.S. rights to the Corona® and Modelo® brands, to Constellation Brands, said to be the world’s largest wine company, for $2.9 billion. Additional information about the antitrust litigation appears in Issue 469 of this Update. The brewery, Compañía Cervecera de Coahuila, situated near the U.S.-Mexico border, produces Corona®, Corona Light® and Modelo Especial®. Constellation, which filed a motion to intervene in the DOJ lawsuit to protect its interests, stands to gain greater access to the American beer market under a revised agreement that would establish Constellation’s Crown Imports beer division as completely independent. Under the deal’s original terms, Constellation would have paid its joint venture partner Modelo $1.85 billion for the 50…
The Ninth Circuit Court of Appeals has reversed a district court ruling dismissing the emotional distress claims filed by a deputy sheriff who alleged that Burger King employees served him a hamburger tainted with spit, in light of a Washington Supreme Court ruling that the state’s product liability law would allow relief for emotional distress damages in the absence of physical injury. Bylsma v. Burger King Corp., No. 10-36125 (9th Cir., decided February 12, 2013). Details about the state high court ruling in response to the question certified to it by the Ninth Circuit appear in Issue 470 of this Update. The Ninth Circuit remanded the matter to the district court with instructions to give the deputy sheriff the opportunity to amend his complaint to conform to Washington law and then to allow the lower court to determine whether he has pleaded “the necessary facts to support his emotional damages…
During oral argument before a Second Circuit Court of Appeals panel, the Food and Drug Administration (FDA) reportedly argued that it had “no obligation” to complete proceedings that the agency initiated to withdraw approval from certain uses of antibiotic drugs in livestock. Natural Res. Def. Council v. FDA, No. 12-2106 (2d Cir., argued February 8, 2013). Assistant U.S. Attorney Ellen London said, “It’s completely discretionary as to when to enforce the law as to certain drugs,” in urging the court to reverse a district court order requiring it to hold the withdrawal proceedings announced in 1977 notices. According to a news source, one of the panel judges appeared to agree with FDA’s position, suggesting that it could, in theory, be forced to divert resources from high priorities on the basis of lawsuits filed against it. More information about lower court rulings in the case appear in Issues 432 and 442 of this…
A group of Rhode Island legislators has proposed a bill that would impose a statewide penny-per-ounce tax on sugar-sweetened beverages. More specifically, the tax would apply to “any nonalcoholic beverage, whether naturally or artificially flavored, whether carbonated or noncarbonated, sold for human consumption, containing sugar, corn syrup or any other high-calorie sweetener, including, but not limited to, cola and other flavored drinks, and all other drinks and beverages commonly referred to as ‘soft drinks,’ ‘sodas,’ ‘sports drinks’ or ‘energy drinks.’” Exemptions to the tax would include 100 percent fruit and vegetable juices, infant formula and milk products. Products intended by manufacturers for use as dietary supplements or for weight-reduction aids would be exempt as well. Meanwhile, Vermont lawmakers have proposed a similar bill that would impose a penny-per-ounce tax on the sale of beverages containing added sugar or high-fructose corn syrup. Fifty percent of the revenues generated would be directed…
Joining the nearly dozen states that have enacted laws to restrict bisphenol A (BPA) in food packaging—particularly with respect to children’s food and beverage containers—New Jersey lawmakers have introduced a bill that would make it illegal to sell or distribute food and beverage containers intended for use by young children that contain the chemical. The bill cites BPA studies alleging “cause for concern about the hazards of exposure to it, such as possible neural and behavioral effects caused by BPA in utero, and further concern that the chemical could cause problems in developing fetuses and young children.” Introduced by Assemblyman Troy Singleton (D-Burlington) and known as the “Child Food and Beverage Packaging Act,” the legislation would make it “an unlawful consumer fraud practice for a person to sell, offer for sale or distribute for sale in the state a food or beverage storage container made with or composed of BPA and…
The U.K. Advertising Standards Authority (ASA) has upheld a complaint lodged by the Family and Parenting Institute (FPI) against Weetabix Ltd.’s product-branded app, concluding that the “WeetaKid” game, which prompted players to scan QR codes during game-play, “was persuasive and negative, and could lead children to understand that if they did not eat Weetabix they were failing in some way.” Focusing on several online games created by Weetabix, FPI apparently challenged whether (i) the WeetaKid app “exploited the credulity, loyalty, vulnerability or lack of experience of children by making them feel inferior or unpopular for not buying a product”; (ii) the WeetaKid app “included a direct exhortation to children to buy an advertised product”; (iii) advergames “on the Weetos and Nickelodeon websites were obviously identifiable as marketing communications”; and (iv) some of the advergames “advertised Weetos Bars, which would be classified as a product high in fat, salt or sugar (HFSS),…
Citing public concerns about the presence of horsemeat in beef products, European Union (EU) Health and Consumer Policy Commissioner Tonio Borg recently called an emergency meeting of agricultural ministers and urged member states to conduct random DNA testing on processed beef products for three months beginning March 1, 2013. The measure builds on an ongoing investigation initiated by the U.K. Food Safety Agency (FSA) and Food Safety Authority of Ireland, which first reported finding equine and porcine DNA in beef products in January 2013 and have since ramped up testing protocols after other member states, including France and Germany, allegedly received contaminated products from suppliers across the European Union. See European Food Safety Authority, February 11, 2013. According to various media reports, retailers in 16 countries have sold mislabeled horsemeat to millions of consumers, a development that has prompted officials to demand criminal sanctions against those deemed responsible for what…
