A consumer has filed a putative class action alleging PVK Inc. mislabels Scarpetta pasta sauces as containing “No Preservatives” despite including citric acid on the ingredient list. Jocelyn v. PVK Inc., No. 18-427 (E.D.N.Y., filed January 22, 2018). The plaintiff alleges that she relied on the representation on the container and would not have purchased the sauce had she known it contained preservatives. Claiming deceptive and unfair trade practices, false advertising and common-law fraud, the plaintiff seeks class certification, injunctive relief, restitution, disgorgement, damages, corrective advertising and attorney’s fees.
Category Archives 2nd Circuit
A New York federal court has held that a vegetarian who alleged Buffalo Wild Wings charged a premium price for non-meat food items fried in beef tallow failed to plead any injury in her complaint because loss of the purchase price does not constitute “actual injury” under state consumer-protection law. Borenkoff v. Buffalo Wild Wings, No. 16-8532 (S.D.N.Y., entered January 19, 2018). Although it was a “close call,” the court held that the plaintiff had standing to sue, finding “some ‘concrete and particularized’ injury in paying for one item and receiving another, even if you ultimately receive the ‘benefit of your bargain’ from a purely objective economic standpoint.” However, the alleged economic injury was insufficient to state a claim, the court held, because the plaintiff failed to explain “exactly how” the cost of the food was affected by the use of beef tallow or why she believed she paid a premium.…
The maker of Luigi’s Real Italian Ice is facing a proposed class action alleging that each Luigi's cup contains 5.5 ounces of the product despite packaging listing the contents as six ounces. Orbach v. J&J Snack Foods Corp., No. 18-0321 (S.D.N.Y., filed January 12, 2018). The plaintiffs allege that both the outer packaging and the cup lids indicate that each cup contains six fluid ounces. Claiming breach of warranties, unjust enrichment, violations of New York and Massachusetts laws governing deceptive acts and practices, false advertising and fraud, the plaintiffs seek class certification, damages, restitution, injunctive relief and attorney’s fees.
A consumer has filed a lawsuit alleging Schwan's Co. falsely advertises Mrs. Smith's Original Flaky Crust Pies as made with “real butter” despite allegedly containing a vegetable and butter shortening blend. Leguette v. Schwan’s Co., No. 17-7599 (E.D.N.Y., filed December 31, 2017). The plaintiff alleges that she bought a Mrs. Smith's apple pie because the package prominently displayed the statements “Made With Real Butter,” “No Artificial Sweeteners, Dyes or Flavors” and "No High Fructose Corn Syrup.” The Nutrition Facts panel disclosed that the product contains a “Shortening Butter Blend (Palm Oil, Butter [Cream, Salt])” and corn syrup. Claiming violations of New York’s General Business Law, breach of warranties and unjust enrichment, the plaintiff seeks class certification, injunctive relief, damages and attorney’s fees.
A New York federal court has dismissed a false labeling suit against Dannon Co., finding "no legal support for the idea that a cow that eats [genetically modified organism (GMO)] feed or is subjected to hormones or various animal husbandry practices produces ‘unnatural’ products.” Podpeskar v. Dannon Co. Inc., No. 16-8478 (S.D.N.Y., entered December 3, 2017). The proposed class action alleged that Dannon falsely labeled 12 varieties of yogurt products as “natural” despite being produced with milk from cows raised on GMO feed. The court noted that the U.S. Food and Drug Administration is reviewing regulatory standards for the use of "natural,” but federal law does not require the products of animals fed GMOs must be labeled as containing GMOs. The plaintiff’s arguments were conclusory and “based on her own feelings,” the court noted, and the complaint did not allege that any ingredient used in the product is unnatural.
The National Restaurant Association (NRA) has filed a lawsuit seeking to invalidate a New York City law requiring fast-food restaurants to remit voluntary deductions from employees' wages to nonprofit groups, including “ideological and political organizations with whom those employers may and do disagree.” Rest. Law Ctr. v. City of New York, No. 17-9128 (S.D.N.Y., filed November 21, 2017). NRA asserts that the city’s “Deduction Bill,” which took effect November 26, 2017, violates the free speech rights of restaurant owners by compelling them to subsidize nonprofits that advocate for labor-related issues such as higher minimum wages. The law resulted from lobbying by the Service Employees International Union (SEIU), the complaint argues, and is ultimately intended to force restaurants to allow unionization of fast-food employees. The Deduction Bill bars labor organizations from seeking remittances, but NRA asserts that “Fast Food Justice,” a group working toward registration as a qualifying nonprofit, shares a mailing…
Two grocery chains face similar lawsuits filed by a New York plaintiff who argues the stores’ websites are inaccessible to the blind or visually impaired, allegedly violating the Americans with Disabilities Act (ADA). Jorge v. Key Food Mkt., Inc., No. 17-9306 (S.D.N.Y., filed November 28, 2017); Jorge v. Fairway Grp. Holdings Corp., No. 17-9309 (S.D.N.Y., filed November 28, 2017). The complaints assert that Key Food and Fairway Market stores have failed to make their websites accessible to screen-reading software, denying the plaintiff equal access to their facilities, goods and services. Alleging violations of the ADA as well as New York state and municipal human rights laws, the plaintiff seeks class certification, injunctive relief, damages and attorney’s fees.
A putative class action filed in New York has alleged that although the marketing for Simply Potatoes Mashed Potatoes features claims such as “Made with REAL Butter,” the product contains margarine made from genetically modified organisms (GMOs). Berger v. MFI Holdings Corp., 17-6728 (E.D.N.Y., filed November 17, 2017). “Despite the centrality of butter to [the product's] marketing and labeling,” the complaint asserts, “it also contains margarine as indicated on the ingredient list.” The plaintiff also alleges the product is sold at a premium price compared to similar refrigerated potato products. Claiming violations of New York consumer-protection laws and breach of implied warranty of merchantability, the plaintiff seeks class certification, damages, injunctive relief and attorney’s fees.
A federal court in New York has given final approval to the settlement of multidistrict litigation that alleged Frito-Lay North America, Inc. deceptively labeled and marketed its chip and dip products as “Made with All Natural Ingredients” when the products contained genetically modified ingredients. Frito-Lay N. Am., Inc., “All Natural” Litig., No. 12-MD-2413 (E.D.N.Y., entered November 14, 2017). Frito-Lay has agreed to modify its product labeling. While the class will not receive damages apart from $17,500 to class representatives, plaintiff's counsel will receive $1.9 million plus reimbursement of expenses up to $200,000.
A consumer has filed a putative class action alleging Pure Brazilian's "cold-pressed" coconut water undergoes high-pressure processing that “reduces the biological, enzymatic and bacterial activity” of the water, allegedly amounting to false advertising and fraud. Khallili v. Pure Brazilian LLC, No. 17-6425 (E.D.N.Y., filed November 5, 2017). The complaint asserts that high-pressure processing not only changes the nature of the product but increases its shelf life; “highly perishable” warnings on the bottle mislead consumers into believing the coconut water is unprocessed by making it appear similar to competing products that have a shorter shelf life, the plaintiff argues. The complaint also alleges that the product is sold at a premium price compared to coconut waters made with similar high-pressure processing. Claiming violations of New York consumer-protection laws, false advertising, fraud, implied warranty of merchantability and unjust enrichment, the plaintiff seeks class certification, damages, injunctive relief and attorney’s fees.
