Putative class actions have been filed against the Anheuser-Busch Cos. (AB) in federal courts in California, New Jersey and Pennsylvania, alleging that “consumers receive watered down beer containing less alcohol than is stated on the labels of AB’s products.” Giampaoli v. Anheuser-Busch Cos., LLC, No. 13-0828 (N.D. Cal., filed February 22, 2013); Wilson v. Anheuser-Busch Cos., LLC, No. 13-1122 (D.N.J., filed February 25, 2013); Greenberg v. Anheuser-Busch Cos., LLC, No. 13-1016 (E.D. Pa., filed February 25, 2013). Claiming that the company uses a technology enabling it to create precise alcohol levels in its beer products, each plaintiff seeks to certify a nationwide class of consumers who have purchased AB products such as Budweiser®, Bud Ice®, Bud Light Premium®, Michelob®, Michelob Ultra®, Hurricane High Gravity Lager®, King Cobra®, Busch Ice®, Natural Ice®, Black Crown®, and Bud Light Lime®. Alleging violations of consumer fraud laws and breach of state and federal warranty laws, the plaintiffs…
Category Archives 3rd Circuit
In addition to a lawsuit filed in Illinois and two filed in New Jersey, a fourth has been filed against Subway Sandwich Shops Inc. in Pennsylvania, alleging that the company’s “Footlong” sandwich “consistently measures significantly less than twelve inches in length.” Roseman v. Subway Sandwich Shops, Inc., No. 130102647 (Philadelphia Cty. Pa. Ct. Com. Pl., filed January 24, 2013). Information about two of the other lawsuits appears in Issue 468 of this Update. The Pennsylvania complaint alleges that this size discrepancy “is not an accident” and that the company knew about the discrepancy “since Subway named its large sandwich the ‘Footlong’ sometime prior to January 24, 2007.” Seeking to certify a class of all persons who purchased a “Footlong” sandwich from a Pennsylvania Subway restaurant since that date, the plaintiff, a New Jersey resident who purports to work in Pennsylvania and regularly purchased the disputed sandwiches in Philadelphia, alleges violations of…
As consumers around the world have begun posting images online of their Subway “footlong” sandwiches with rulers showing that the restaurant’s offerings are actually 11 or 11.5 inches in length, several have taken their claims to court. Buren v. Doctor’s Assocs., Inc., No. 13 498 (N.D. Ill., filed January 22, 2013); Pendrak v. Subway Sandwich Shops, Inc., No. ___ (N.J. Super. Ct., filed January 22, 2013). Plaintiff Nguyen Buren filed his lawsuit in a federal court in Chicago, claiming that his sandwich was less than 11 inches long and alleging a “pattern of fraudulent, deceptive and otherwise improper advertising, sales and marketing practices.” New Jersey residents John Farley and Charles Pendrak allege in state court, “Despite the repeated use of uniform language by Subway stating that this sandwich is a ‘footlong,’ the product in question is not, in fact, a foot long. Rather this product consistently measures significantly less than…
After deciding that the plaintiff lacked standing to bring a consumer-fraud class action under the Class Action Fairness Act, a federal court in New Jersey has granted his motion to dismiss without prejudice, while denying the defendants’ cross-motion for partial summary judgment because it lacked subject matter jurisdiction. Robinson v. Hornell Brewing Co., No. 11-2183 (D.N.J., decided December 13, 2012). The plaintiff had sought declaratory and injunctive relief on behalf of a class of purchasers of Arizona beverages that contain high-fructose corn syrup and were labeled as “all natural.” He sought to certify the class under Rule 23(b)(2). According to the court, the evidence showed that the plaintiff had no intention of purchasing these products in the future and therefore could not show a reasonable likelihood of future injury from the defendants’ conduct. Thus, the court denied his motion to certify the class for lack of standing to seek injunctive…
A multidistrict litigation (MDL) court that is considering pretrial matters in 91 consolidated antitrust lawsuits alleging that major chocolate manufacturers conspired to implement price increases from 2002 through 2007, has granted the direct-purchaser plaintiffs’ motion for class certification. In re Chocolate Confectionery Antitrust Litig., MDL No. 1935 (M.D. Pa., order entered December 7, 2012). The court did so after first determining whether the plaintiffs’ expert testimony in support of class certification is reliable under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The U.S. Supreme Court is currently facing a similar issue, that is, “Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.” The MDL court, noting that the issue has not yet been decided in…
The Judicial Panel on Multidistrict Litigation (JPML) has denied a motion to centralize, for pre-trial purposes, 10 lawsuits pending in five districts against Gerber Products Co. and Nestlé USA, Inc. alleging that the companies “misleadingly advertise and market infant formulas and cereals as promoting immunity, digestive health, and visual and cognitive function because they contain probiotic cultures” and other ingredients. In re Gerber Probiotic Prods. Mktg. & Sales Practices Litig., MDL No. 2397 (JPML, decided October 16, 2012). According to the court, five of the 10 lawsuits are already consolidated in the District of New Jersey where Gerber is headquartered. One of these cases was filed in California, “thus one transferor court already has concluded that under Section 1404 the District of New Jersey is the proper venue for this litigation.” Because the defendants filed section 1404 change of venue motions in the remainder of the cases, and if all…
The day after a California court apparently refused to approve the settlement of class claims against the company that makes “All Natural Ben & Jerry’s Ice Cream,” an Illinois resident filed a putative class action against the company in a New Jersey federal court, alleging that the product contains many unnatural ingredients including those that are genetically modified. Tobin v. Conopco, Inc., No. 12-5881 (D.N.J., filed September 13, 2012). The named plaintiff seeks to represent a nationwide class of individuals who purchased the products since 2006 relying on the allegedly false “all natural” label. According to the complaint, the Center for Science in the Public Interest (CSPI) tested the company’s products in 2010 and found that they contain “alkalized cocoa, corn syrup, partially hydrogenated soybean oil, or other ingredients that either don’t exist in nature or that have been chemically modified.” CSPI’s letter to the manufacturer, claiming that the products…
A federal court in New Jersey has found that most of the named plaintiffs in putative class actions consolidated in a multidistrict litigation (MDL) proceeding lack standing to pursue claims that General Mills, Inc. violated consumer fraud laws by claiming that its Cheerios cereal products reduce cholesterol, the risk of heart disease and certain forms of cancer. In re Cheerios Mktg. & Sales Practices Litig., No. 09-2413 (D.N.J., decided September 10, 2012) (unpublished). Under a choice-of-laws analysis, the court found that California, New Jersey and New York law applied to the claims and thus dismissed four counts alleging violations of Minnesota law. The court also found that most of the named plaintiffs consumed the cereal for reasons other than health benefits, did not know what the cereal cost or had not read the product labels. Accordingly, the court granted the company’s motion for summary judgment as to five of the named plaintiffs.…
A company that supplies specialty ingredients such as vitamins, chemicals and carotenoids to food producers has sued one of its suppliers, alleging that the company was forced to recall from customers more than 33,000 pounds of chromium amino acid chelate after learning that it contained a milk allergen. DSM Nutritional Prods., LLC v. Triarco Indus., Inc., No. C1928-12 (N.J. Super Ct., Morris Cty., filed July 26, 2012). The plaintiff also allegedly reported the matter to the Food and Drug Administration through the Reportable Food Registry. According to the complaint, in 2009, the defendant completed a questionnaire designed to inform the plaintiff “of the existence of any allergens or their derivatives contained in the product” sold to the plaintiff. “Not until July 27, 2010,” however, “did Defendant correctly label the product as containing a hydrolyzed milk protein, thus advising [the plaintiff] that Defendant’s product contained a milk allergen.” Alleging breach of contract…
A federal court in New Jersey has rejected the claims of objectors questioning class notice and most of the settlement terms in a deal which resolves allegations that Ferrero USA, Inc., the company that makes the hazelnut spread Nutella®, misled consumers about the nutritive value of its product; while the court entered an order finally approving the settlement, it did reduce counsel fees by $1.25 million. In re Nutella Mktg. & Sales Practices Litig., No. 11-1086 (D.N.J., decided July 31, 2012). Additional information about the objectors’ challenge appears in Issue 444 of this Update. Counsel had sought $3.75 million in fees, an amount the objectors claimed was unwarranted. According to the court, the reduced fees represent 25 percent of the value of the gross settlement fund, injunctive relief, costs and the incentive award to the class representatives.
