According to a press report, an amended putative class complaint has been filed in a Florida federal court against two companies that make and sell apple juice for children’s consumption, alleging that by failing to warn about the presence of lead in the juice the companies have violated state deceptive and unfair trade practices law. Poulis v. Gerber Prods. Co., No. 10-81475 (S.D. Fla., amended complaint filed January 11, 2011). The complaint was originally filed in state court soon after a California nonprofit organization notified the companies in June 2010 that their products contained lead in excess of levels established as safe under that state’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65). It was removed to federal court in November. The plaintiffs have not apparently alleged personal injury from the exposure, but claim they would not have purchased the companies’ products if they had known about…
Category Archives 11th Circuit
The Physicians Committee for Responsible Medicine (PCRM) has filed a lawsuit seeking a response to its petition calling for the withdrawal of the federal government’s “current MyPyramid food diagram and dietary guidelines” and the adoption of PCRM’s “Power Plate food diagram and dietary guidelines.” PCRM v. Vilsack, No. 11-00038 (D.D.C., filed January 5, 2011). Brought against the secretaries of the U.S. Department of Agriculture (USDA) and Department of Health and Human Services (HHS), the complaint for injunctive relief calls the agencies’ food diagram “ineffective and confusing” and alleges that it “fails to promote overall health and well-being.” PCRM contends that USDA and HHS have violated the Administrative Procedure Act by failing to respond to its petition in a “reasonable time.” PCRM’s “Power Plate” would eliminate all animal-derived products from the diet. A Florida resident has filed a putative class action against Phusion Projects, LLC, claiming that the company’s Four Loko® caffeinated alcoholic…
A Florida resident has filed a putative class action against Tropicana Products,Inc. and a retailer, alleging that promotions for Trop50 Pomegranate Blueberry Juice Beverage® are deceptive because the product consists primarily of“a mixture of cheap apple juice and grape juice concentrates.” Cruz v. Tropicana Prods., Inc., No. 10-62926CA08 (Fla. Cir. Ct., Miami-Dade Cty., filed December 14, 2010).Seeking to certify a statewide class of consumers, the plaintiff claims that Tropicana hoped to tap into the “enormous new market”of those seeking to benefit from the antioxidants in blueberries and pomegranates by creating a “deceptive and misleading label with many elements not required by state or federal regulations.” The complaint refers to a September 2010 jury verdict in California finding that Welch Foods, Inc. marketed its 100% Welch’s White Grape Pomegranate® beverage deceptively with labeling that was “literally true” but “had a tendency to deceive a substantial number of consumers.” The complaint also notes…
A Florida man has sued a Houston’s restaurant and its manager for failing to train servers to explain to patrons how to eat grilled artichokes, contending that their negligence led to his hospitalization and exploratory bowel surgery. Carvajal v. Hillstone Restaurant Group, Inc., No. 10-57757 CA 03 (Fla. Cir. Ct., Miami Dade Cty., filed October 27, 2010). He alleges ordering a special item offered by a server, “which Plaintiff advised he had never seen or heard of previously.” According to the complaint, plaintiff Arturo Carvajal was not instructed that the outside portion of the leaf should not be eaten, although the restaurant “had a duty to use reasonable care with respect to the serving and explanation of items not described on the menu; which by their appearance as served appeared wholly consumable.” He is seeking damages in excess of $15,000.
A putative class action has been filed in a federal court in Florida against POM Wonderful, LLC and its holding company, alleging that the defendants deceived consumers in the state by making health-benefit claims for POM’s pomegranate juices, pills, extracts, and concentrated liquids. Cortez v. POM Wonderful, LLC, No. 10-23680 (S.D. Fla., filed October 13, 2010). Alleging damages in excess of $5 million, the named plaintiff cites the Food and Drug Administration’s warning letter to the company and the Federal Trade Commission’s recently filed administrative complaint to support claims that the company’s representation about its products are “false and misleading.” Among the product claims alleged to be false are that it will prevent, mitigate and/or treat atherosclerosis, blood flow/pressure, prostate cancer, erectile dysfunction, cardiovascular disease, LDL cholesterol, and other age-related medical conditions. Seeking to certify a statewide class of consumers who bought the products from September 29, 2006, to the…
A multidistrict litigation (MDL) court has dismissed the claims of 16 plaintiffs who alleged that they or their minor children became ill as a result of eating peanut butter contaminated with Salmonella. In re ConAgra Peanut Butter Prods. Liab. Litig., MDL No. 1845 (N.D. Ga., decided September 29, 2010). According to the court, “The best way to show that peanut butter is contaminated with Salmonella is to test the peanut butter itself. The fact that the peanut butter was recalled does not mean that it was contaminated. In fact, most of the recalled peanut butter was free of Salmonella contamination.” Noting that the plaintiffs could also use circumstantial evidence to show that they ate contaminated peanut butter, the court determined that these plaintiffs could not show that the peanut butter they ate was made at the affected plant during the outbreak period (by means of a product code stamped on…
A putative class alleging that the extra virgin olive oil sold in the United States does not meet the “extra virgin” standard has filed consumer fraud claims against several of the largest importers of the product in a state court in Florida. Nachio v. Am. Rice, Inc., No. 10-33154 (Fla. Cir. Ct., filed August 13, 2010). Like the plaintiffs in a class action filed in California, named plaintiff Joseph Nachio refers to the June 2010 extra virgin olive oil study conducted by University of California at Davis’s Olive Oil Center researchers who concluded that the defendants’ products are not “extra virgin” olive oil. Additional information about that litigation appears in Issue 359 of this Update. Nachio contends that the time-sensitive process required to produce extra virgin olive oil makes it impossible for defendants to sell the quantities they do, and that they sell true extra virgin olive oil solely in countries…
A putative class action has been filed against the maker of POM Wonderful® pomegranate (PWP) juice in a Florida state court, alleging that the company is misleading consumers by marketing its product “as having special health benefits, including but not limited to, the prevention, mitigation, and or treatment of the following: (a) atherosclerosis; (b) Blood Flow/Pressure; (c) Prostate Cancer; (d) Erectile Function; (e) cardiovascular disease; (f) Reduce LDL cholesterol; (g) and other age related medical conditions.” Giles v. POM Wonderful, LLC, No. 10-32192 (Fla. Cir. Ct., Broward Cty., filed August 6, 2010). Seeking to represent a statewide class of consumers, the plaintiff claims, “In sum, the message is drink PWP and it will keep you young forever.” According to the complaint, the company has no reasonable basis for making its health-related marketing claims and has, in fact, been warned by the Food and Drug Administration that the product’s labeling directly…
More than 200 relatives of Colombians allegedly killed or “disappeared” by members of an organization designated by the United States as a “Global Terrorist” in 2001 have filed a lawsuit under the Alien Tort Claims Act (ATCA) against Chiquita Brands International, Inc., alleging that the company’s illegal financial support of the organization was responsible for their injuries. Montes v. Chiquita Brands Int’l, Inc., No. 10-60573 (S.D. Fla., filed April 14, 2010). Represented by Boies, Schiller & Flexner LLP, the plaintiffs bring the same types of claims that have been raised in other ATCA lawsuits filed against the company, which pleaded guilty to making the illegal payments to purportedly protect its banana plantation operations. Additional information about these cases can be found in issue 342 of this Update. The plaintiffs here, identified by name, seek compensatory and punitive damages.
A putative class action has been filed against individual plant managers and human resources personnel responsible for hiring employees at 16 Perdue Farms, Inc. facilities in Alabama, Georgia and Tennessee, alleging violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) in the hiring of illegal immigrants. Walters v. McMahen, No. 10-257 (M.D. Ala., filed March 22, 2010). The named plaintiffs seek to represent a class of legally employed workers whose wages were allegedly depressed because of the illegal scheme to hire at “extremely low wages” hundreds of employees who were in this country illegally. The plaintiffs also seek treble damages, preliminary and permanent injunctions, attorney’s fees, and costs. Among other matters, the plaintiffs allege that the illegal hiring scheme consisted of (i) “hiring workers who have previously been employed at Perdue under different identities”; (ii) hiring workers known to be using false identity documents; (iii) “hiring workers who cannot speak…
