Over the past two years, little has taken place in Pelman v. McDonald’s Corp., the putative class action litigation brought in 2002 on behalf of obese and overweight teenagers who alleged that the fast food restaurant is responsible for their weight-related health conditions. On March 10, 2010, the case was reassigned to U.S. District Court Judge Donald Pogue. Since Judge Robert Sweet recused himself in 2008 from the case he had heard through two trips to the U.S. Court of Appeals, the matter has been passed to three different judges. Currently pending before the court is plaintiffs’ motion to certify the class. Pelman v. McDonald’s Corp., 02-7821 (S.D.N.Y., filed September 30, 2002).
Category Archives 2nd Circuit
A U.S. magistrate judge has sentenced to three years of probation the couple who owned the company that imported melamine-tainted pet food ingredients into the United States from China. Sally Qing Miller, a Chinese national, and her husband, Stephen Miller, were also barred from importing pet food ingredients and were each ordered to pay a $5,000 fine. According to a press release, no further restitution was required “in light of a $24 million settlement in a related civil suit reached in the U.S. District Court for the District of New Jersey.” Their company, ChemNutra, Inc. was ordered to pay a $25,000 fine. The Food and Drug Administration has reportedly estimated that 1,950 cats and 2,200 dogs died after eating the contaminated food in 2007. Sally Miller was quoted as saying, “I’m really, really sorry this happened. I hope through this tragic, unfortunate event, the whole industry can learn from us, from…
A federal court has certified class claims against General Mills alleging that the company’s advertising for its premium-priced Yo-Plus® yogurt violates the Florida Deceptive and Unfair Trade Practices Act because the product does not provide any digestive health benefits that cannot be obtained from eating normal yogurt. Fitzpatrick v. General Mills, Inc., No. 09-60412 (S.D. Fla., decided January 11, 2010). The named plaintiff claimed that the company’s ads and promotional materials convinced her to try the product and that she consumed it on a regular basis for about a year. She claimed that her digestive health was the same before, during and after eating Yo-Plus® and thus, the company’s claims for digestive health benefits beyond those provided by normal yogurt are false, misleading and likely to deceive the public. She also alleged breach of express warranty and sought to certify a class of “[a]ll persons who purchased YoPlus in the State…
Connecticut residents have filed a putative class action in state court against several fast food companies alleging that they violated consumer protection laws by selling grilled chicken products containing a carcinogenic chemical without providing warnings. Delio v. McDonald’s Corp., No. __ (Conn. Super. Ct., Hartford Cty., filed October 21, 2009). They seek to represent a class of all individuals who purchased and ingested these products in Connecticut and allege that the defendants knew or should have known that PhIP is formed when chicken is grilled and that it “has no safe level for ingestion.” The named plaintiffs, who are represented by The Cancer Project, a Washington, D.C.-based nonprofit organization, seek warning signs, actual damages, punitive damages, and attorney’s fees. The complaint refers to scientific research on PhIP and notes that California placed it on its list of chemicals known to the state to cause cancer in 1994 and that the…
A coalition of dairy farmers from the northeastern United States has reportedly filed a putative class action against the Dairy Farmers of America (DFA) and Dean Foods Co., alleging that they have monopolized the distribution of fluid milk in the Northeast, fixed prices and created an economic crisis in the industry. Allen v. DFA, No. ___ (D. Vt., filed October 8, 2009). Similar litigation is reportedly pending in a federal court in Tennessee. According to plaintiffs’ counsel, “Many dairy farmers have been forced to choose between joining DFA or DMS [Dairy Marketing Services] or going out of business. If they join, they have to pay a fee to continue to market to their own customers at prices fixed by DFA, DMS and other cooperatives. Meanwhile major milk processors Dean and HP Hood, which is part-owned by DFA, enjoy the economic benefits.” He also reportedly said that the anticompetitive milk distribution…
The Center for Science in the Public Interest (CSPI) has filed a putative class-action lawsuit in a Connecticut court on behalf of an Arizona woman who allegedly had a severe allergic reaction from eating artificial chicken patties made with a Quorn Foods, Inc. fungus. Cardinale v. Quorn Foods, Inc., No. __ (Conn. Super. Ct., filed September 15, 2009). CSPI participated in another lawsuit raising similar allegations against the Connecticut-based company and Whole Foods Markets, Inc. in Texas, but those claims were apparently dismissed. According to CSPI, more than 1,000 consumers have contacted it to complain that eating foods containing the meat substitute, described in the complaint as “a proprietary processed, vat-grown, soil fungus, combined with flavorings, binders, and other substances,” causes nausea, vomiting, diarrhea, hives, difficulty breathing, or anaphylactic reactions. A CSPI press release characterizes the product as a “fibrous, proteinaceous paste.” The named plaintiff in the Connecticut litigation purportedly…
A federal court in New York has decided to allow most parts of a new state bottle-deposit law to take effect, lifting a injunction that would have delayed implementation until April 2010. Int’l Bottled Water Ass’n v. Paterson, No. 09-4672 (S.D.N.Y., decided August 13, 2009). Additional details about the litigation challenging the law’s constitutionality appear in issue 305 of this Update. The court’s decision overturns an order entered in late May 2009 granting injunctive relief. According to a news source, the ruling means that soft drink and beer makers must now give the state 80 percent of the unclaimed 5-cent deposits, and store and redemption handling fees will increase from 2 cents to 3.5 cents per container. Water companies making products containing flavored water, vitamin water and artificial sweeteners have apparently been given until October 22 to comply with the law, unless they can prove compliance is impossible. They did…
The Vermont Supreme Court has refused to expand liability to allow the recovery of non-economic damages in litigation involving the death of pets. Goodby v. Vetpharm, Inc., No. 2009 VT 52 (Vt., decided May 8, 2009). While the issue arose in a case involving the alleged negligence of a veterinarian and pharmaceutical company, the question whether pain and suffering damages are available to pet owners also came to the fore when melamine-contaminated pet food injured or killed cats and dogs throughout the United States and Canada in 2007. Shook, Hardy & Bacon Public Policy Partner Victor Schwartz and Associate Phil Goldberg submitted an amicus curiae brief to the court on behalf of the Animal Health Institute, Federation of Dog Clubs, American Kennel Club, and Pet Industry Joint Advisory Council, analyzing the legal and public policy implications of allowing such damages. The brief explained to the court how this proposed liability would depart from hundreds…
Pilgrim’s Pride Corp. settled claims that its insurance carrier unjustifiably refused to pay a significant portion of coverage owed to the food company arising out of a Listeria outbreak. The insurance company that agreed to provide coverage to Pilgrim’s insurer for any bad faith claims successfully mounted against it has been granted a declaratory judgment of no liability. Cont’l Cas. Co. v. Ace Am. Ins. Co., No. 07-958 (S.D.N.Y., decided March 31, 2009). Apparently, Pilgrim’s insurer agreed to the essential terms of a settlement proposed by a mediator before seeking Continental’s consent to settle. Under Texas law, settlement agreements are legally enforceable when the parties have agreed on the amount of consideration to be paid and the release of claims. While Pilgrim’s insurer made minor modifications to the agreement after notifying Continental, the court found that the mediator’s proposal was a binding and enforceable settlement agreement. Because Pilgrim’s insurer did…
Since it was filed in 2002, the lawsuit filed by a putative class of teenagers alleging obesity-related injury purportedly caused by reliance on deceptive advertising for fast food has been appealed twice to the Second Circuit Court of Appeals and is now before its third trial court judge. Pelman v. McDonald’s Corp., No. 02-7821 (S.D.N.Y., filed Sept. 30, 2002). The case was reassigned to Judge Kimba Wood on February 27, 2009. Judge Wood was one of former President Bill Clinton’s picks for attorney general, but withdrew from consideration after questions were raised about the immigrants she had hired as household help. Nominated to the federal court bench in 1988 by President Ronald Reagan, the Harvard-educated jurist has served as chief judge of her district since 2006.
