Frito-Lay North America, Inc. has filed a trademark and patent infringement lawsuit in a Texas federal court against a company that purportedly makes a similar tortilla chip product and sells it in similar packaging. Frito-Lay N. Am., Inc. v. Medallion Foods, Inc., No. 12 00074 (E.D. Tex., filed February 10, 2012). At issue are Frito-Lay’s TOSTITOS SCOOPS! ® tortilla corn chips, which have a distinctive shape for use with salsa, guacamole and other dips. According to the complaint, Frito-Lay has registered the shape, brand design, and product and brand names as marks with the U.S. Patent and Trademark Office and holds several patents for the processes and systems used to manufacture the chips. The defendant makes and sells a product called BOWLZ, which Frito-Lay alleges infringes its marks, trade dress and patents. With counts for federal trademark infringement, trade dress infringement and unfair competition, federal trademark dilution, patent infringement, common law…
Category Archives 5th Circuit
Denying an employer’s motions for summary judgment in an employment discrimination suit, a federal court in Louisiana has determined that severe obesity, regardless of its basis, qualifies as a disability under the Americans with Disabilities Act. EEOC v. Res. for Human Dev., Inc., No. 10-03322 (E.D. La., decided December 7, 2011). The court did not decide whether the employer had terminated the obese employee’s employment because she was regarded as disabled, finding that the matter presented a genuine issue of fact to be decided by a jury. The employee, now deceased, weighed more than 400 pounds when she was hired by the defendant, which owned and operated a long-term residential treatment facility for chemically dependent women and their children. Some eight years later, the employee was terminated from her position; at the time, she weighed 527 pounds. She filed a discrimination claim with the Equal Employment Opportunity Commission (EEOC) alleging…
The Equal Opportunity Employment Commission (EEOC) has filed a claim under the amendments to the Americans with Disabilities Act against a company that allegedly discharged a morbidly obese man. EEOC v. BAE Sys., Inc., No. 11-03497 (S.D. Tex., filed September 27, 2011). According to the EEOC, “at the time of his discharge, [Ronald] Kratz was qualified to perform the essential function of his job as a material handler II. BAE refused to engage in any discussion with him to determine whether reasonable accommodations were possible that would have allowed him to continue to perform the essential function of his job … The suit asserts that BAE replaced Kratz with someone who was not morbidly obese.” News sources have reported that Kratz, who weighed 450 pounds when the military vehicle manufacturer hired him, gained 200 pounds over the 16 years he was employed. He claims that his weight never interfered with his job…
A Texas resident has filed a putative class action against the Kashi Co. and its parent, the Kellogg Co., in a California federal court, alleging that the company falsely labels and markets its products as “all natural” when they actually contain processed and synthetic ingredients, some of which are not generally recognized as safe by the Food and Drug Administration (FDA). Bates v. Kashi Co., No. 11-1967 (S.D. Cal., filed August 24, 2011). Seeking to certify a nationwide class of consumers, the plaintiff names in the complaint dozens of ingredients used in Kashi snack, cereal, pizza, fruit bar, waffle, shake, trail mix, cookie, and cracker products, explains how they are produced and indicates whether they or the processes that create them are hazardous or toxic. For example, the plaintiff claims that sodium selenite is a hazardous substance. “The FDA has not declared it generally recognized as safe as a food…
A 33-year-old man has filed a personal injury lawsuit in a Texas federal court against companies that made and sold the Four Loko® that allegedly caused the stroke he had in October 2010 immediately after consuming two cans of the caffeinated alcohol beverage. Villa v. Phusion Projects, LLC, No. __ (S.D. Texas, filed mid-July 2010). According to the complaint, the plaintiff continues to experience health problems, including slurred speech and lack of balance. Alleging negligence and products liability, the plaintiff seeks damages in excess of $75,000, punitive damages, attorney’s fees, and costs.
More than 200 farm workers from Ecuador, Panama and Costa Rica have reportedly filed seven lawsuits against commercial banana growers and pesticide manufacturers, seeking to recover damages and medical monitoring costs for health conditions allegedly related to dibromochloropropane (DBCP) exposure. Aguilar v. Dole Food Co., Inc., No. __ (E.D. La., filed June 1, 2011). The complaints argue that defendants used DBCP from approximately 1960 to 1985—“and possibly into the 1990s”—in banana growing regions outside the United States, which banned the nematocide in 1979 after the Environmental Protection Agency (EPA) listed it as a suspected carcinogen. Plaintiffs claim that because they were not informed of the danger or provided with protective clothing, they injected DBCP into soil without the use of gloves, protective covering or respiratory equipment to prevent skin absorption or inhalation. “Many workers absorbed so much DBCP each day that their urine would give off the smell of the chemical…
A putative class action has been filed in a federal court in Louisiana against CVS Caremark Corp., alleging that the company “has a long history of selling out-of-date medications, baby formula, and food.” Cooper v. CVS Caremark Corp., No. 10-331 (E.D. La., filed February 5, 2010). The named plaintiff, who claims she purchased an expired over-the-counter (OTC) medication from a CVS store, seeks to certify a nationwide class of persons who likewise purchased expired products and asks the court for injunctive relief and compensatory damages. The complaint alleges that the expired OTC medications are “adulterated” under Food and Drug Administration guidelines and that their sale violates the Food, Drug, and Cosmetic Act. The plaintiff also claims that expired OTC drugs, food and baby formula “are unmerchantable and unfit for ordinary use.”
A fractured Fifth Circuit Court of Appeals has determined that claims alleging violation of the Packers and Stockyards Act of 1921 must be supported by proof of injury, or likelihood of injury, to competition. Wheeler v. Pilgrim’s Pride Corp., No. 07-40651 (5th Cir., decided December 15, 2009). The issue arose from a complaint filed by certain poultry “growers,” alleging under the Act that another grower “was given a contract [with defendant] on preferable terms.” The district court and a Fifth Circuit panel concluded that the Act did not require a showing of adverse effect on competition and allowed the claims to proceed. The appeals court, in a 9-7 decision, reversed, finding the district court erred in denying defendant’s motion for summary judgment. Four judges joined the majority opinion but authored a concurrence to more clearly discuss the statutory interpretation principles at issue in the case. The dissenting judges, relying on…
In an unpublished opinion, the Fifth Circuit Court of Appeals has upheld the dismissal of a biscuit maker’s claim that the Food and Drug Administration’s (FDA’s) negligent testing of its product for Listeria monocytogenes resulted in a false positive report that caused it to lose its contract with a company that supplied 7-Eleven convenience stores with biscuit sandwiches. Lone Star Bakery, Inc. v. U.S., No. 09-50374 (5th Cir., decided November 17, 2009). The litigation arose under the Federal Tort Claims Act following a 2002 Listeria contamination incident for which the biscuit maker was initially blamed, but later cleared of any responsibility. The company sought $2.9 million in damages from the FDA. According to the court, which affirmed a grant of the FDA’s summary judgment motion, while the company submitted evidence showing “several instances where the FDA inspectors failed to follow agency collection and testing protocol,” its evidence was “devoid of…
The Fifth Circuit Court of Appeals has decided to rehear a case involving the interpretation of the Packers and Stockyards Act as applied to contracts between chicken growers and a processor. Wheeler v. Pilgrim’s Pride Corp., No. 07-40651 (5th Cir., decided July 27, 2009). In 2008, a three-judge circuit panel decided that the law does not require proof of an adverse effect on competition, creating a split with other circuit courts that had considered the question. The issue arose when chicken growers complained that the processor for whom they raised chickens gave preferential treatment and thus greater compensation to one grower. According to the earlier opinion, the other circuit courts have mistakenly looked to legislative history and policy issues to interpret the law, which the Fifth Circuit panel believed was clear and unambiguous. The case will be considered by the entire Fifth Circuit court on rehearing.
