The U.S. Federal Trade Commission (FTC) has settled its lawsuit alleging that Gerber Products Co. made false claims about the anti-allergy benefits of Good Start Gentle infant formula, according to an order terminating the action. FTC v. Gerber Prods. Co., No. 14-6771 (D.N.J., entered April 30, 2019). FTC filed the action in response to Gerber's claims that its formula was "the first and only infant formula" that could claim to reduce the risk of developing allergies. Following FTC's lawsuit, consumers made similar claims in a putative class action. The court's order terminates the action but does not provide details about the settlement.
Category Archives 3rd Circuit
Wendy's International Inc. has settled two class actions alleging injuries stemming from a 2016 payment-system breach. Jackson v. Wendy's Int'l Inc., No. 16-0210 (M.D. Fla., entered February 26, 2019); First Choice Fed. Credit Union v. Wendy's Co., No. 16-0506 (W.D. Penn., entered February 26, 2019). A Florida federal court approved a $3.4 million settlement between a consumer class and the company, including $1.1 million in attorney's fees. In Pennsylvania, a federal court granted preliminary approval to a settlement in a lawsuit brought by a class of financial institutions that reimbursed customers for fraudulent transactions. Wendy's will pay $50 million under the settlement agreement.
Kervan USA has agreed to change the packaging of its Sunkist fruit snacks and the shape of its candy following a lawsuit filed by Promotion in Motion Inc., which produces Welch's fruit snacks. Promotion in Motion Inc. v. Kervan USA LLC, No. 18-11670 (D.N.J., entered November 6, 2018). Kervan will change the background color of the packages for its fruit snacks to avoid confusion with packages of Welch's fruit snacks, and it will change the shape of its watermelon candies to avoid the use of the "distinctive three-dimensional trapezoid shape" of Promotion in Motion's Sour Jacks. Kervan will also sell off its existing supply of allegedly infringing products and destroy any remaining units after 90 days.
The Pennsylvania Supreme Court has affirmed a lower court’s ruling upholding Philadelphia’s tax on sugar-sweetened beverages (SSBs), holding that the tax is not preempted by state law. Williams v. Philadelphia, Nos. 2 EAP 2018, 3 EAP 2018 (Pa., entered July 18, 2018). The 1.5-cents-per-ounce tax, which took effect in January 2017, applies to SSB distributors rather than buyers and thus does not duplicate consumer sales tax, the court held.
Promotion in Motion Inc., which produces Welch’s Fruit Snacks, has filed a lawsuit alleging that Kervan USA's packaging and product design for Sunkist Fruit Gummies infringe its trademarks and trade dress. Promotion in Motion Inc., v. Kervan USA LLC, No. 18-11670 (D.N.J., filed July 16, 2018). Although Sunkist Fruit Gummies have not been released, Kervan has publicly displayed the intended packaging at trade shows and online, Promotion in Motion alleges, and it asserts that the packaging “closely copies” the Welch's packaging by using similar design elements and color as well as the identical claim “Fruit is our 1st Ingredient.” Promotion in Motion also contends that Kervan imports and distributes a wedge-shaped sour watermelon candy under various product labels that violates the trade dress of its Sour Jacks, which is advertised with the slogan “Respect the Wedge” and an emphasis on the candy’s shape. Alleging trademark infringement, trade dress infringement, false designation of…
A federal court has denied a motion to reconsider a denial of class certification in a lawsuit alleging that Tropicana Products Inc. mislabeled its orange juice as “natural.” In re Tropicana Orange Juice Mktg. & Sales Practices Litig., No. 11-7382 (D.N.J., entered May 24, 2018). The plaintiffs argued that the court misconstrued its theory of liability, gave more weight to the defendant’s expert opinions, overlooked evidence of class-wide injury and erred in its ascertainability analysis. The court ruled that because the plaintiffs “exhaustively alleged” that the juice contained added flavoring, whether the product conforms to the standard of identity for pasteurized orange juice "lies at the heart of Plaintiff’s theory of liability as articulated by Plaintiffs’ own words.” Finding the claims unsupported by the pleadings, the court found no cause for reconsideration. The court also pointed to an expert opinion showing variation in the reasoning behind consumer decisions to buy the…
A New Jersey woman has filed a lawsuit alleging Panera Bread Co. sold her salad greens contaminated with E. coli, causing her to develop hemolytic uremic syndrome after she consumed the meal. Fraser v. Freshway Foods, Inc., No. 18-7734 (D.N.J., filed April 16, 2018). Filed against Panera and its lettuce supplier Freshway Foods Inc., the complaint asserts that Panera sold contaminated lettuce sourced from Yuma, Arizona, which the Centers for Disease Control and Prevention (CDC) has linked to an E. coli outbreak. Alleging the lettuce was “defective and unreasonably dangerous” in violation of the New Jersey Products Liability Act, the plaintiff seeks damages for physical and mental pain and suffering, loss of enjoyment of life, medical expenses and attorney’s fees.
A Maryland dairy has filed a First Amendment lawsuit challenging a U.S. Food and Drug Administration (FDA) regulation requiring skim milk without vitamins A and D added to be labeled “imitation." S. Mountain Creamery, LLC v. FDA, No. 18-0738 (M.D. Pa., filed April 4, 2018). According to the complaint, South Mountain Creamery cannot selling its “all-natural, additive-free, pasteurized skim milk” in Pennsylvania because of FDA regulations mandating that skim milk sold in interstate commerce must contain the added vitamins. The creamery asserts that the fat-soluble vitamins dissipate before skim milk reaches the consumer, and FDA’s “own official materials discuss this issue.” According to the complaint, “The effect of the relevant regulations and laws is that any product consisting entirely of skim milk can never be labeled as ‘skim milk’ . . . [it] must be labeled as ‘imitation.’” The dairy alleges that the FDA definition misleads and confuses the public and that…
A jury in Pennsylvania federal court has awarded $200,000 to a former Mondelez employee who alleged the company discriminated against her because of her age and terminated her after she complained of the alleged discrimination. Konsavage v. Mondelez Global LLC, No. 15-1155 (M.D. Pa., verdict issued March 19, 2018). The plaintiff, who worked for Nabisco and its successor Mondelez for 31 years, reportedly said that beginning in 2013 a new supervisor told her that she should reduce her workload to give younger employees a chance, that she lacked agility and that she had no potential at her age. The following year, she was allegedly demoted and forced to take a $9,000 pay cut before being fired a few months later. The jury awarded her emotional distress damages pursuant to the Pennsylvania Human Relations Act.
Kosher Supervision Services Inc. (Kof-K) has filed a complaint alleging Original Gourmet Food Co. used the “Kof-K” kosher certification mark on its product without authorization, alleging the snack maker’s action was “intentional and willful use of a counterfeit of the Kof-K mark.” Kosher Supervision Servs. v. Original Gourmet Food Co., No. 18-2487 (D.N.J., filed February 22, 2018). Kof-K asserts that it never contracted with Original Gourmet, approved or certified any of its products as kosher, or granted permission for its use of the certification mark. Alleging trademark infringement, false designation of origin, dilution of famous mark, unfair competition, Kof-K seeks injunctive relief, damages and a finding that the case is “exceptional” to permit an award of attorney’s fees.
