Putative class actions have been filed in New Jersey and California federal courts against Tropicana Products, Inc., alleging that the company misleads consumers by labeling and marketing its orange juice as “100% pure and natural,” when it actually “undergoes extensive processing which includes the addition of aromas and flavors.” Lynch v. Tropicana Prods., Inc., No. 11-07382 (D.N.J., filed December 19, 2011); Lewis v. Tropicana Prods., Inc., No. 12-00049 (E.D. Cal., filed January 6, 2012). Both plaintiffs seek to certify nationwide classes. The New Jersey plaintiff alleges unjust enrichment, breach of express warranty, violation of the New Jersey Consumer Fraud Act, and injunctive and declaratory relief. He requests compensatory, treble and punitive damages; prejudgment interest; restitution; injunctive relief; attorney’s fees; and expenses and costs of suit. The California plaintiff, who also seeks to certify a subclass of California consumers, alleges unjust enrichment; breach of express warranty; violation of the state Consumers…
Category Archives 6th Circuit
A multidistrict litigation court in Missouri has denied motions for class certification in 24 transferred cases against companies that make baby bottles and sippy cups allegedly containing bisphenol A (BPA). In re: Bisphenol-A (BPA) Polycarbonate Plastic Prods. Liab. Litig., MDL No. 1967 (W.D. Mo., decided July 5, 2011). The plaintiffs sought to certify various classes, including individual state classes and multi state classes as to certain claims and defendants. The court focused on the commonality, predominance and superiority prongs of class certification to conclude that differences in state laws and facts unique to each putative class member rendered the claims unsuitable for class treatment. Still, the court dismissed the requests to certify individual statewide classes without prejudice, finding it appropriate to allow the transferor courts to determine whether these classes met the certification requirements when the cases are returned to their jurisdictions. The court also indicated that it would delay remand…
Rare Breed Distilling has filed a trademark infringement action in a Kentucky federal court alleging that Jim Beam Brands’ use of “Give ‘Em the Bird” in connection with its Old Crow bourbon whiskey “is likely to confuse and deceive consumers and purchasers of bourbon whiskey products.” Rare Breed Distilling LLC v. Jim Beam Brands Co., No. 11-292 (W.D. Ky., filed May 13, 2011). Rare Breed has apparently used “Give Them the Bird,” which evolved into “Give ‘Em the Bird,” since 2006, in connection with its Wild Turkey® bourbon whiskey products. The plaintiff alleges that Jim Beam adopted identical marks for use and filed a still pending application to register the mark in March 2010. According to the complaint, Jim Beam has refused to acknowledge Rare Breed’s prior rights to the mark and continues to use it. Alleging federal trademark infringement and unfair competition, and common law unfair competition, the plaintiff seeks…
The Food and Drug Administration (FDA) has filed a complaint for permanent injunction against Tennessee-based companies that process food products and ingredients, such as spices, spice blends, herbs, and sauces, claiming they have repeatedly violated the law by selling adulterated foods. United States v. Am. Mercantile Corp., No. 11-02371 (W.D. Tenn., filed May 11, 2011). According to the complaint, the foods are adulterated because “they have been prepared, packed, and held under insanitary conditions whereby they may have become contaminated with filth.” An array of insects and insect and rodent excreta were allegedly observed on a number of occasions at defendants’ facilities, and repeat visits by inspectors showed that the cited violations had not been corrected. Other problems included spilled food, unsatisfactory cleaning, gaps in the building exterior, and expired products. FDA seeks to permanently enjoin the defendants from “introducing or delivering for introduction into interstate commerce any article of food…
Flying Dog Brewery has filed a lawsuit under the First Amendment, alleging that the Michigan Liquor Control Commission and its individual members violated its free speech rights by prohibiting the company from selling Raging Bitch Twentieth Anniversary Belgian-Style India Pale Ale. Flying Dog Brewery, LLP v. Mich. Liquor Control Comm’n, No. __ (W.D. Mich., filed March 25, 2011). According to the complaint, a British artist, who once worked with journalist Hunter S. Thompson, designed Flying Dog’s beer labels, including the one at issue. The defendants rejected Flying Dog’s application for a license to sell the pale ale in the state, allegedly finding “that the proposed label which includes the brand name ‘Raging Bitch’ contains such language deemed detrimental to the health, safety, or welfare of the general public.” Claiming loss of sales and goodwill, the plaintiff alleges that its label constitutes expression protected by the First Amendment and seeks preliminary and…
Kellogg Co. has filed a lawsuit in a Michigan federal court against the Canadian packaging company that supplied allegedly defective liners with “offensive characteristics” (taste and odor) that purportedly caused nausea and diarrhea in some Kellogg cereal consumers and forced a “costly nationwide recall” of four company products. Kellogg Co. v. FPC Flexible Packaging Corp., No. 11-272 (W.D. Mich., S. Div., filed March 18, 2011). The cereal maker alleges violations of Michigan’s Uniform Commercial Code, breach of contract and express and implied indemnification. Alleging damages in excess of $75,000, Kellogg also seeks a declaratory judgment that it is not liable for payment of $3.3 million in materials still in the packaging company’s possession or for the $1.04 million in defective liners provided to Kellogg. According to the complaint, the packaging company has demanded payment for the liners and the materials used in their production.
Finding no clear state precedent, a federal court in Ohio has certified to the state supreme court a question arising in a case involving insurance coverage for Listeria-contaminated meats that led to the destruction of 1 million pounds of meat products in 2006. HoneyBaked Foods, Inc. v. Affiliated FM Ins. Co., No. 08-1686 (N.D. Ohio, order entered March 3, 2011). The question certified is as follows: In light of the Supreme Court of Ohio’s opinion in Anderson v. Highland House Co., 93 Ohio St. 3d 547 (2001), does the reasonable-expectations doctrine apply to a commercial general liability “all-risk” insurance policy, so that coverage, which otherwise would be excluded under the terms and conditions of the policy, is afforded, provided the trier of fact determines that the insured reasonably expected, when purchasing the policy, that the policy would cover the loss at issue. HoneyBaked Foods claimed a loss of approximately $8 million under…
The same day that the Federal Trade Commission announced a settlement over alleged deceptive advertising claims for DanActive® beverage and Activia® yogurt, Ohio’s attorney general filed a lawsuit alleging that The Dannon Co. has violated the state’s Consumer Sales Practices Act (CSPA) by failing to substantiate the health-related claims it makes for the products. Ohio v. Dannon Co., Inc., No. 10-12-18225 (Ct. Com. Pl., Franklin Cty., filed December 15, 2010). The complaint takes issue with marketing claims that the products either promote digestive health or boost immunity. Under the authority of the CSPA, Attorney General Richard Cordray (D) brings the action “in the public interest” and seeks declaratory and injunctive relief, liability for “the reasonable costs and expenses of the investigation and prosecution of the Defendant’s actions, including attorneys’ fees,” as well as $25,000 “for each unfair or deceptive act or practice alleged herein.” According to the complaint, Activia® has…
Two Missouri residents with arthritis and allergies have filed a putative class action on behalf of Missouri, Illinois and Kansas consumers who were allegedly deceived by false health-related claims made by a company that sells elderberry juice. Delling v. Wyldewood Cellars, Inc., No. 10-02287 (E.D. Mo., filed December 6, 2010). The complaint also names a retailer as a defendant. The plaintiffs contend that they read an advertisement stating that elderberry juice “prevents colds, flu, viruses, asthma, allergies, diabetes, arthritis & more!” When they went to the store to further evaluate the product, they allegedly read customer and “physician” testimonials about the curative properties of elderberry juice and decided to purchase the product. According to the plaintiffs, they used the product “but failed to realize any health benefits and certainly did not see any abatement in their allergy or arthritis problems.” The plaintiffs allege one count of consumer fraud and seek…
A federal court in Ohio has determined that, for the most part, an “all-risk” insurance policy excludes from coverage the losses sustained by a meat processor whose products were contaminated with Listeria during processing. HoneyBaked Foods, Inc. v. Affiliated FM Ins. Co., No. 08-01686 (N.D. Ohio, W. Div., decided December 2, 2010). Still, the court ordered the parties to prepare a question for certification to the Ohio Supreme Court as to whether, “notwithstanding the failure of the policy to cover the plaintiff’s loss, such loss might be covered” under a reasonable-expectations theory. According to the court, the meat processor was required to destroy about 1 million pounds of fully cooked ham and turkey products after it was discovered that the Listeria found in product samples matched sludge in a hollow roller that was part of the processing plant’s conveyor system. The company sought coverage for the disposed food products and additional losses…
