Texas chain Torchy’s Tacos, which uses the tagline “Damn Good Tacos” in its restaurants and merchandising, has filed suit against Colorado restaurant Dam Good Tacos for trademark infringement, claiming consumer confusion. Success Foods Mgmt. Group, LLC v. Dam Good Systems, LLC, No. 170842 (D. Colo., filed April 5, 2017). Asserting that it registered the “Damn Good Tacos” trademark in 2008, Torchy’s alleges federal trademark infringement, unfair competition, and violation of the Colorado Consumer Protection Act, and it seeks injunctive relief, damages and destruction of Dam Good Tacos’ infringing URLs, email addresses and all packaging, promotional and advertising materials. Issue 631
Category Archives 10th Circuit
Three plaintiffs have filed a putative class action against Dr Pepper Snapple Group, Inc., claiming that although the label on the company’s Canada Dry Ginger Ale product says “Made With Real Ginger,” the product contains “no detectable amount of ginger.” Hashemi v. Dr. Pepper Snapple Grp., Inc., No. 17-2042 (C.D. Cal., filed March 14, 2017). The plaintiffs argue that they hired an independent lab to test for ginger in the product, which is advertised on television with footage of the cans attached to ginger plants and a voice-over that asserts, “For refreshingly real ginger taste, grab a Canada Dry Ginger Ale. Real Ginger. Real Taste.” Seeking class certification, restitution, declaratory and injunctive relief, damages and attorney’s fees, the plaintiffs allege violations of the California and Colorado consumer-protection statutes as well as breaches of warranties, fraud and misrepresentation. Issue 628
In light of representations that the parties are close to settlement, a multidistrict litigation (MDL) court has continued to stay proceedings in litigation alleging that the isolated appearance of genetically modified (GM) wheat in Oregon, which purportedly led Japan and South Korea to suspend imports of soft-white wheat from the United States, caused wheat farmers to sustain economic losses. Barnes v. Monsanto Co., C.A., MDL No. 13-2473 (D. Kan., order entered September 10, 2014). Information about the lawsuit filed by Kansas farmer Ernest Barnes appears in Issue 486 of this Update. The court ordered the parties to file stipulations of dismissal of the soft-white wheat claims on or before September 29, 2014, or to submit a scheduling order, discovery plan and early mediation plan by November 7. Issue 537
Chipotle Mexican Grill investors have filed a motion for final approval of a derivative-action settlement in a lawsuit accusing the restaurant chain’s executives of breaching fiduciary duties by failing to comply with employee work authorization requirements. Mohammed v. Ells, No. 12-1831 (D. Colo., motion filed July 31, 2014). The case stems from a U.S. Immigration and Customs Enforcement (ICE) investigation of the company that led to the firing of 450 Minnesota employees and 50 Washington, D.C., workers for lack of U.S. work authorization. In July 2012, Chipotle investors accused the company’s executives of breaching their fiduciary duties in several lawsuits that were later merged. After “intense, arm’s-length negotiations by experienced counsel,” the parties reached a settlement that earned preliminary court approval in April 2014. Under the settlement’s terms, Chipotle will provide twice-yearly reports to its audit committee, which oversees the company’s hiring requirement compliance. In arguing for settlement approval, the…
Wheat farmers who sued Monsanto Co. over losses they allegedly sustained after genetically modified (GM) wheat was discovered in an Oregon farmer’s field have reportedly decided to attempt to mediate the dispute. In re Monsanto Co. GE Wheat Litig., MDL No. 2473 (D. Kan.). Details about the consolidation of a number of related cases before a multidistrict litigation (MDL) court appear in Issue 500 of this Update. The GM wheat discovery prompted Japan and South Korea to suspend imports of soft white wheat from the United States, and the farmers contend that they lost money as a result. Monsanto denies any wrongdoing—it field tested GM wheat more than 10 years ago in Oregon—and calls the event an isolated incident. The MDL court had scheduled a March 10, 2014, status conference, but canceled the hearing and has stayed the litigation. See The National Law Journal, March 7, 2014. Issue 517
According to a news source, the plaintiffs and defendants in litigation over a respiratory condition allegedly caused by the daily consumption of microwave popcorn containing the butter-flavoring compound diacetyl have settled the claims following a court’s reduction of the jury’s $7-million verdict to $5.78 million, including fees and costs. Watson v. Dillon Cos., Inc., No. 08-91 (D. Colo.). Additional details about the litigation appear in Issue 497 of this Update. Plaintiffs’ counsel Ken McClain reportedly indicated that the settlement terms were confidential. See Law360, February 24, 2014. Issue 515
A federal magistrate in Denver, Colorado, has sentenced Eric and Ryan Jensen, who owned the cantaloupe farm linked to a deadly Listeria outbreak in 2011, to five years of probation, with the first six months in home detention, 100 hours of community service each, and the payment of restitution—$150,000 each—with the money awarded to their victims. According to U.S. Attorney John Walsh, “No sentence of incarceration, restitution or financial penalty can undo the tragic damage done as a result of the contamination at Jensen Farms. Today’s sentence serves as a powerful reminder of farmers’ legal and moral responsibility for ensuring their product is safe.” Details about the charges to which the brothers pleaded guilty appear in Issue 498 of this Update. See U.S. Department of Justice News Release, January 28, 2014. Issue 511
Eric and Ryan Jensen, who owned the cantaloupe farm linked to a deadly 2011 Listeria outbreak, have reportedly urged a court, following their pleas to charges related to the incident, not to sentence them to prison. Additional details about the plea and charges appear in Issue 500 of this Update. They apparently claim that they do not need correctional treatment and have done everything possible to make the victims whole, including declaring bankruptcy to make a pool of money available to compensate them. The brothers pleaded guilty to six misdemeanor charges that each carry potential sanctions of one year in prison, a $250,000 fine, or both, as well as one year of supervised release. A sentencing hearing will be held in late January 2014. According to Eric Jensen’s brief, “this case has already prompted a new awareness of food safety law and the strict liability imposed on producers and food…
A federal court in Oklahoma has dismissed, without leave to amend, claims filed against the company that audited Jensen Farms before a 2011 Listeria outbreak sickened dozens of consumers, including the plaintiff, who allegedly contracted listeriosis from the strain linked to the farm’s cantaloupe and was hospitalized for a month. Underwood v. Jensen Farms, No. 11-348 (E.D. Okla., decided December 31, 2013). Auditor Primus Group, Inc. allegedly gave the farm a “superior” rating and 96-percent score after a July 25, 2011, audit, and the plaintiff became ill on September 2. The court determined that the plaintiff could not show that the auditor owed him a duty under Oklahoma law because “the connection between the July 25, 2011, audit and the onset of Plaintiff’s illness [was] too remote in both time and circumstance. Significantly, Plaintiff has failed to plead facts sufficient to establish that the contaminated cantaloupe would not have been…
Advocacy organizations including the Center for Food Safety and Food & Water Watch have filed an amicus brief to support an animal rights organization coalition’s challenge to a Utah law that criminalizes undercover investigations of meat and poultry processing facilities. Animal Legal Def. Fund v. Herbert, No. 13-0679 (D. Utah, brief filed December 17, 2013). Contending that the government has failed to prevent illegal animal-handling practices that ultimately threaten consumer safety and that consumers have the right to know how food is produced, the brief calls for the court to decide the challenge to Utah’s “ag-gag” law, Utah Code Ann. § 76-6-112, on the merits. Among other matters, amici refer to the undercover investigation conducted by the Humane Society of the United States in 2007 of a Hallmark/Westland facility and its conclusion in a U.S. Department of Agriculture ground-beef recall over concerns that the meat “did not receive complete and proper inspection…
