The Second Circuit Court of Appeals, addressing an issue of first impression among the federal appellate courts under the Lanham Act, has affirmed a district court determination that Federal Treasury Enterprise Sojuzplodoimport (FTE) cannot pursue trademark infringement litigation as a “legal representative” of the Russian Federation because while that government designated FTE as its legal representative, it is not legally unable to bring the suit on its own behalf. Fed. Treasury Enter. Sojuzplodoimport v. SPI Spirits Ltd., No. 11-4109 (2d Cir., decided August 5, 2013). So ruling, the Second Circuit held that the Lanham Act’s use of the term “legal representative” requires in addition to an appointment that the appointing entity be unable to appear in the litigation. Another issue addressed was whether FTE was an “assign” of the Russian Federation under a series of documents created since 2002; the court concluded that the documents did not create an assignment.…
Category Archives 2nd Circuit
The Judicial Panel on Multidistrict Litigation (JPML) has denied transfer to a multidistrict litigation (MDL) court of consumer-fraud lawsuits involving Capatriti brand “100% Pure Olive Oil” made by Kangadis Food Inc. d/b/a The Gourmet Factory and numerous snack, cereal, protein bar, and frozen entrée products made by the Kashi Co. In re Capatriti Brand Olive Oil Mktg. & Sales Practices Litig., MDL No. 2469; In re Kashi Co. Mktg. & Sales Practices Litig., MDL No. 2456 (J.P.M.L., decided August 6, 2013). According to the court, centralization is not appropriate in the olive oil suit because the Southern District of New York action has made “significant progress” and the number of actions pending in adjacent districts is small with a “correspondingly limited number of involved counsel and courts.” Because the plaintiff in a New Jersey action has considered voluntarily transferring his action to New York, the JPML found that alternatives to centralization…
A federal court in New York has determined that while plaintiffs alleging they were sold olive-residue oil, or Pomace, instead of the “100% Pure Olive Oil” appearing on the labels of The Gourmet Factory’s Capatriti-brand products could not maintain a cause of action under the Magnuson-Moss Warranty Act, their claims did exceed the $5 million threshold for maintenance of the action in federal court under the Class Action Fairness Act (CAFA). Ebin v. Kangadis Food Inc. d/b/a The Gourmet Factory, No. 13-2311 (S.D.N.Y., order entered July 26, 2013). The plaintiffs apparently based their amount-in-controversy allegation on documents that the defendant submitted in parallel litigation brought by an olive oil trade association. Details about that suit appear in Issues 470, 482 and 483 of this Update. Thus the court rebuffed the defendant’s attempt to fault the plaintiffs for failing to conduct an independent investigation into the amount-in-controversy before filing the complaint,…
A New York resident has filed a putative class action against Boar’s Head Provisions Co., alleging that the company’s advertising and labeling representations—“47% lower sodium,” “42% lower sodium,” and “40% lower sodium”—for some of its deli meats, including turkey breast and ham, contain as much sodium as its regular deli meat products and a higher percentage of sodium than stated when compared to U.S. Department of Agriculture (USDA) reference products. Mackles v. Boar’s Head Provisions, Co., Inc., No. 13-4855 (S.D.N.Y., filed July 12, 2013). According to the complaint, the defendant’s representations are inaccurate by a factor of more than 10 percent. The plaintiff also alleges that when he asked the company about the lower-sodium claims on its product labels, he received a letter stating that they “were submitted to and approved by the USDA.” On further investigation, the plaintiff allegedly learned from USDA that companies must ensure labeling accuracy, and…
Answering two of the questions certified to it by the Second Circuit Court of Appeals, New York’s high court has determined that Starbucks Corp. can, under the state’s Labor Law, distinguish among its employees for purposes of sharing the tips customers leave in a jar on the counter. Barenboim v. Starbucks Corp., Winans v. Starbucks Corp., No. 122 (N.Y., decided June 26, 2013). Starbucks’ policy requires the distribution of pooled tips to baristas and shift supervisors. Both classes of employees spend most of their time performing customer-oriented services, such as taking orders, making and serving beverages and food, operating the cash register, cleaning tables, and stocking products. Both also work part-time and are paid hourly. Shift supervisors have minor supervisory responsibilities. Starbucks does not allow assistant store managers or store managers to receive any of the pooled tips. Both classes work full-time and are eligible for bonuses and benefits, such as…
The parent of a 14-year-old with type 2 diabetes has sued several companies that make high-fructose corn syrup (HFCS), alleging that the substance is “toxic” and its consumption caused the teen’s disease. S.F. v. Archer-Daniels-Midland Co., No. 13-634 (W.D.N.Y., filed June 17, 2013). The complaint details the purported effects of HFCS on the human body, asserting that it is associated with metabolic disease, liver inflammation and insulin resistance, chronic hyperinsulinemia, and type 2 diabetes. It also alleges that the fructose in HFCS “‘tricks’ the brain into wanting more food and stimulates excessive and continued consumption” and that it “bypasses the insulin-driven satiety system, suppressing ‘the degree of satiety’ that would normally result from a meal of glucose or sucrose, thereby causing and contributing to over consumption on a chronic basis with the adverse effects therefrom including the development of type 2 diabetes.” Alleging that HFCS use and consumption have “become nearly…
The New York Supreme Court Appellate Division recently heard arguments in the New York City Department of Health and Mental Hygiene’s (DOHMH’s) appeal of an order striking down its initiative to limit the size of sodas sold in restaurants and other venues. According to media reports, city lawyer Fay Ng argued that, contrary to the lower court’s decision, the “Portion Cap Rule” did not exceed DOHMH’s authority and has a rational basis in the need to curb rising obesity rates without entirely precluding consumer choice. In overturning the regulation, which would have taken effect March 12, 2013, New York Supreme Court Judge Milton Tingling not only ruled that DOHMH lacked “the authority to limit or ban a legal item under the guise of ‘controlling chronic disease,’” but that the measure would have “arbitrary and capricious consequences” arising from “uneven enforcement” and “loopholes,” such as application to some but not all…
A federal court in New York has dismissed putative class claims filed against Dannon Co., alleging that its Activia® yogurt products are not actually yogurt because they contain filler products including milk protein concentrate (MPC), an ingredient that the Food and Drug Administration (FDA) purportedly prohibits from use in yogurt. Conroy v. The Dannon Co., Inc., 12-6901 (S.D.N.Y., decided May 9, 2013). The defendant challenged the claims on the ground that the “plaintiff’s allegations are premised on a misunderstanding of the FDA’s standard of identity for yogurt.” The court agreed with Dannon that while MPC is not included in the list of permissible ingredients for yogurt, it is a permitted “other optional ingredient” despite FDA’s failure to include MPC in its 1981 definition of the phrase. According to the court, the issue in the case was the proper interpretation of a stay FDA imposed in 1982 on certain provisions of…
A federal court in New York has agreed to impose some of the preliminary injunctive relief requested by the North American Olive Oil Association in litigation alleging that Kangadis Food Inc., doing business as The Gourmet Factory, falsely labeled its product as “100% Pure Olive Oil” when it actually contained Pomace or was 100 percent refined olive oil. N. Am. Olive Oil Ass’n v. Kangadis Food Inc., No. 13-868 (N.D.N.Y., order entered April 25, 2013). The court agreed that consumers would likely be confused about Pomace, “an industrially processed oil produced from olive pits, skins, and pulp,” labeled as “100% Pure Olive Oil,” and agreed that the defendant, which had changed its product as of March 1, 2013, to remove the Pomace and sell instead 100 percent refined olive oil as “100% Pure Olive Oil,” likely had a significant amount of its old product on store shelves. Accordingly, the court…
In a nonprecedential summary order, the Second Circuit Court of Appeals has affirmed a lower court ruling against Kosher Sports, Inc., a New Jersey-based provider of kosher food products, which had a 10-year contract with Queens Ballpark Co., the company that operates Citi Field, where the New York Mets play their home games. Kosher Sports, Inc. v. Queens Ballpark Co., LLC, No. 12-2162 (2d Cir., decided March 12, 2013). Kosher Sports claimed that the operating company breached the agreement by refusing to allow it to sell Glatt Kosher hot dogs and sausages and other products on Friday nights and Saturdays. It also claimed that Queens Ballpark failed to provide a suitable location for the company’s fourth cart to sell its products at the stadium. The court found that the unambiguous terms of the contract simply “set forth [Kosher Sports’] ‘rights’ to advertising space, tickets, and freedom from competition” but did…
