A company that sells a variety of seafood spreads has sued one of its packers, which allegedly added undeclared eggs to the company’s smoked salmon spread. Sau-Sea Foods, Inc. v. Lukas Foods, Inc., No. 11-00104 (D. Me., filed March 23, 2011). The plaintiff apparently learned about the problem after the Food and Drug Administration (FDA) inspected the defendant’s facility and discovered that eggs had been used in the spread, thus “posing a potential health hazard.” A recall was immediately undertaken and widely reported in the media. Thereafter, FDA allegedly informed the plaintiff that its salmon spread “posed an acute, life-threatening hazard to health” and designated the recall as Class I. Alleging breach of contract, breach of express and implied warranties, negligence, unjust enrichment, breach of implied contract, and negligent misrepresentation, Sau-Sea Foods seeks damages, interest, costs, and attorney’s fees. While the company alleges damages exceeding the $75,000 jurisdictional minimum, it…
Category Archives 1st Circuit
A federal court in Massachusetts has certified a class of Starbucks’ employees alleging that the company’s policy of requiring tip-sharing by baristas and their supervisors violates state law; the court also granted the plaintiffs’ motion for summary judgment on that issue. Matamoros v. Starbucks Corp., No. 08-10772 (D. Mass., decided March 18, 2011). So ruling, the court rejected the defendant’s argument that “intractable intra-class conflict” precludes certification. According to the court, “an interest by certain putative class members in maintaining the allegedly unlawful policy is not a reason to deny class certification. Indeed, were the Court to hold otherwise, an employer could readily insulate itself from class liability simply by establishing a communal ‘tip pool’ for both managerial and non-managerial employees. Such an ‘end run’ clearly contravenes the purpose of the Tips law.”
Ocean Spray Cranberries, Inc. has filed a lawsuit against a competitor alleging that it has orchestrated “an unlawful and malicious campaign” against Ocean Spray designed to damage the company’s reputation, frustrate its relationships with customers and undermine its dealings with grower-owners and other cranberry growers in the industry. Ocean Spray Cranberries, Inc. v. Decas Cranberry Prods., Inc., No. 10-11288 (D. Mass., filed August 2, 2010). According to the complaint, the defendants have falsely accused Ocean Spray of creating “a significant oversupply of cranberries” in the industry and contributing to that surplus by reducing the amount of cranberries in its products. Ocean Spray details the various means the defendant has used to disseminate its “smear campaign,” including letters to growers, blog posts, and a letter to the U.S. Attorney General seeking an investigation of Ocean Spray. Ocean Spray also alleges that the defendant developed a “false and misleading social media campaign”…
A meat manufacturer that recalled more than 1 million pounds of meat products linked to a Salmonella outbreak that purportedly sickened more than 250 consumers in 44 states has reportedly sued the companies that supplied the red and black pepper allegedly identified as the source of the contamination. Daniele Int’l, Inc. v. Wholesome Spice & Seasonings, Inc., No. 10-155 (D.R.I., filed March 30, 2010). Seeking compensatory, punitive and exemplary damages, the plaintiff apparently alleges that it recalled more than 1.2 million pounds of meat, including salami, prosciutto and pancetta, refunded more than $1.5 million to customers, incurred transportation and shipping costs, and lost customers and future profits. The company reportedly purchased more than 50,000 pounds of pepper from one defendant and more than 40,000 pounds of pepper from the other in 2009. According to a news source, public health officials traced the Salmonella strain to the black and crushed red pepper…
The First Circuit Court of Appeals has upheld an injunction against the enforcement of a Massachusetts law that regulated wine shipments in a manner that changed “the competitive balance between in-state and out-of-state wineries in a way that benefits Massachusetts wineries and significantly burdens out-of-state wineries.” Family Winemakers of Cal. v. Jenkins, No. 09-1169 (1st Cir., decided January 14, 2010). The statute at issue gave small wineries (those producing 30,000 gallons or less of grape wine annually) the most options for selling to consumers, either by direct shipment or through wholesalers and retailers. According to the court, most Massachusetts wineries are small wineries. Large wineries could sell either through wholesalers or by applying for a special license to ship directly to consumers; they could not do both. Apparently, Massachusetts has no large wineries. A group of California wineries and Massachusetts residents challenged the law, claiming it violated the Commerce Clause by effectively…
Welch Foods Inc. has filed suit against its insurers claiming that they have a duty to defend and indemnify the beverage maker in litigation alleging that the company deceptively marketed its “100% Juice White Grape Pomegranate Flavored 3 Juice Blend”®. Welch Foods Inc. v. Zurich Am. Ins. Co., No. 09-12087 (D. Mass., filed December 8, 2009). According to Welch, the insurers were timely notified about two lawsuits, one by a competitor, POM Wonderful LLC v. Welch Foods Inc., and one by a consumer on behalf of a class, Burcham v. Welch Foods Inc., and denied they had a duty to defend or indemnify the beverage maker. Additional information about those lawsuits appears in issues 290, 313 and 316 of this Update. Alleging that its defense costs have exceeded $75,000 to date in both cases, Welch seeks a declaration that the insurers have a duty to defend and indemnify it under…
A federal court in Connecticut has ordered the payment of $1.9 million in equitable restitution to consumers who purchased Chinese Diet Tea and Bio-Slim Patch in 2003-2004. FTC v. Bronson Partners, LLC, No. 04-1866 (D. Conn., decided December 4, 2009). The court determined in 2008 that the Federal Trade Commission’s (FTC’s) claims of false advertising against the defendants had merit and issued this ruling to explain the basis for its damages award and why it was not allowing any offsets to the defendants from the gross amounts they received for all of the products sold. Essentially, the court found that the defendants’ poor recordkeeping and legal precedent did not allow offsets for credit card refunds, bounced checks, operating expenses, or revenue generated by reorders, which defendants claimed represented satisfied customers. According to the court, reorders could also have represented customers who “had not yet achieved the results promised in the…
Plaintiffs’ lawyer William Marler has apparently filed a second lawsuit against New York-based Fairbank Farms for injury allegedly caused by consumption of E. coli-tainted ground beef. According to Marler, the suit has been filed in a Maine state court on behalf of a woman who was hospitalized for six days after consuming meat produced by Fairbank Farms. Her cultures allegedly tested positive for the same E. coli strain found in the company’s recalled meat. See Food Poison Journal, November 17, 2009. Meanwhile, Representative Rosa DeLauro (D-Conn.) has called on the U.S. Department of Agriculture’s Office of Inspector General to investigate the method that meat processors and the agency use to verify that ground beef is free of the bacterium. In her November 12 letter, DeLauro discusses the Fairbank Farms outbreak and notes that the company’s facility sampled its products every 10 to 20 minutes. She states, “However, despite these precautions, it…
Plaintiffs who brought personal and economic injury claims against Topps Meat Co. for an E. coli outbreak that led to the recall of more than 20 million pounds of ground beef in 2007 have filed a motion for class certification. Patton v. Topps Meat Co., No. 07-654 (W.D.N.Y., motion filed October 15, 2009). While the proposed classes, a “consumer class” of persons who purchased ground beef subject to the recall and allege economic losses and an “injury class” of persons who consumed the ground beef and allege personal injury, are national in scope, the plaintiffs contend that New York law will apply to the case. According to the named plaintiffs, each of whom was allegedly sickened by consuming contaminated meat, federal investigators confirmed 40 E. coli cases linked to the outbreak strain and estimate that for every reported case, 20 cases go unreported. Thus, they suggest that the number of injury…
A Massachusetts woman has filed a putative class action in federal court against Gerber Products Co., alleging that its packaging misrepresented the quality of its Fruit Juice Snacks®, which “were virtually nothing more than candy with a touch of vitamin C.” Wiley v. Gerber Prods. Co., No. 09-10099 (D. Mass, filed January 22, 2009). She seeks to represent a class of all consumers who purchased the product before Gerber changed its packaging to indicate that the product was a “treat” rather than a “snack.” Alleging violations of a Massachusetts consumer protection law, intentional and negligent misrepresentation, breach of express and implied warranties, and unjust enrichment, the plaintiff requests class certification, a declaration that Gerber’s acts and practices are unlawful, a permanent injunction, corrective advertising, and damages of $25 per violation amounting to more than $5 million, refunds, double or treble damages, attorney’s fees, and costs. According to the complaint, package…
