Nestlé Waters North America (NWNA) has removed to federal court a putative class action alleging that the company failed to disclose that its Ice Mountain® 5-gallon bottles are not 100 percent natural spring water, “but are actually resold water sourced from municipal water systems.” The Chicago Faucet Shoppe, Inc. v. NWNA, Inc., No. 12-8119 (N.D. Ill., filed October 10, 2012). The named plaintiff, a company that contracted with NWNA in 2008 to deliver the water bottles to its Chicago office, filed the action on behalf of all purchasers in Illinois, Michigan, Minnesota, and Missouri under Illinois consumer fraud laws. The removal notice claims that under the Class Action Fairness Act, diversity of citizenship exists between putative class members and the defendant and that the amount in controversy exceeds the $5 million jurisdictional threshold. “According to NWNA’s records, since October 2009, more than $5,000,000 of Ice Mountain® brand 5-gallon bottled water has…
Category Archives 7th Circuit
Two commercial liability insurance companies have filed a complaint against Phusion Projects Inc., the company that makes Four Loko®, an alcoholic beverage containing stimulants such as caffeine, guarana and taurine, seeking a declaration that “they do not owe a duty to defend or indemnify” the company in personal injury and wrongful death actions filed against it in several states. The Netherlands Ins. Co. v. Phusion Projects Inc., No. 12-7968 (N.D. Ill., filed October 4, 2012). The underlying complaints involve a California resident who was shot to death by police after consuming the beverage and acting “in an irritated, agitated, and disoriented manner”; a New York resident who sustained injuries in an auto accident with a woman who had consumed the product and allegedly drove her car in a reckless manner; a New Jersey resident who died from a stabbing in an attack by a woman who had allegedly “imbibed Four Loko”;…
The Seventh Circuit Court of Appeals has determined that a Steak 'n Shake franchisee in Illinois was entitled to a preliminary injunction to stop the implementation of a new Steak 'n Shake policy for menu pricing and promotions. Stuller, Inc. v. Steak N Shake Enters., Inc., No. 11-2656 (7th Cir., decided August 24, 2012). The franchisee, in operation for more than 70 years, owns five restaurants and is the oldest Steak 'n Shake franchisee in the country. While Steak 'n Shake controls many aspects of restaurant management, some aspects are left to individual franchisees. Plaintiff Stuller, Inc. has had the ability to set menu prices throughout its history, but in June 2010, Steak 'n Shake demanded that all franchisees follow its menu pricing and promotions. Stuller brought a declaratory judgment action against Steak 'n Shake after the franchisor threatened to terminate Stuller’s franchises for refusing to implement the new policy. The…
A New York resident has filed a putative class action against Diamond Pet Foods and Amazon.com, seeking medical monitoring for pets that consumed recalled Salmonella-tainted pet food. Cohen v. Schell & Kampeter, Inc., d/b/a Diamond Pet Foods, No. 12-3299 (E.D.N.Y., filed July 2, 2012). Plaintiff Steven Cohen alleges that he fed his dogs Taste of the Wild® brand pet food, purchased from Amazon.com, and that they became ill, vomiting frequently, “which caused damage to Plaintiff’s property.” Seeking to certify a nationwide class and statewide subclass of consumers, the plaintiff alleges breach of implied and express warranty, strict products liability, violations of state consumer fraud laws, negligence, and unjust enrichment. In addition to medical monitoring, the plaintiff seeks actual damages or restitution, attorney’s fees, costs, and interest. A Canadian non-profit representing the interests of foie gras producers, a New York-based foie gras producer and a company that operates restaurants in California have…
The Wisconsin Supreme Court has decided which of the parties sued over an E. coli outbreak that sickened dozens of Sizzler Steak House patrons in 2000 and caused the death of a 3-year-old are liable for consequential damages, indemnity and costs under various supply chain and insurance contracts. Kriefall v. Sizzler USA Franchise, Inc., Nos. 2009AP1212 & 2010AP491 (Wis., decided June 29, 2012). Among other matters, the court ruled that Sizzler was entitled to (i) recover consequential damages for the meat supplier’s breach of implied warranties despite limiting language in the continuing guaranty provision of their contract, and (ii) indemnity from the meat supplier for Sizzler’s advance partial payment to the family of the deceased child “because the payment was not voluntary and the jury found that Sizzler was zero percent liable for the E. coli contamination.” The court also ruled that Sizzler could not recover its attorney’s fees despite a jury finding…
The Sixth Circuit Court of Appeals has determined that the Roskam Baking Co. did not infringe a trademark by using the term “Texas Toast” in selling its packaged croutons. T. Marzetti Co. v. Roskam Baking Co., No. 10-3784 (6th Cir., decided May 25, 2012). Marzetti apparently began using the Texas Toast mark for its frozen garlic bread in 1995 and then adopted the term for use with a crouton product sold in 2007. The company attempted to register the mark in 2009, but the applications were initially denied “because of the potential likelihood of confusion with the mark Texas toast for bakery goods.” Thereafter, they were approved for publication as, “at a minimum, suggestive.” The defendant filed an opposition to the trademarks in 2010, and Marzetti, learning about the company’s Texas Toast croutons, filed this trademark infringement action. The Sixth Circuit agreed with the district court that the mark is not…
New York and New Jersey residents have filed a putative class action in an Illinois federal court against the company that makes a line of kefir dairy products, alleging that they are falsely promoted as providing “clinically proven therapeutic benefits for various health conditions.” Keatley v. Lifeway Foods, Inc., No. 12-3521 (N.D. Ill., filed May 8, 2012). According to the complaint, Lifeway claims, without adequate proof, that its kefir products containing ProBoost, “an exclusive blend of live and active probiotic cultures,” can support immunity, enhance digestion, boost well-being, alleviate diarrhea, and otherwise address autoimmune disorders, bad breath, celiac disease, Crohn’s and colitis, high cholesterol, immune deficiency, infantile colic, irritable bowel syndrome, lactose intolerance, seasonal allergies, and yeast infections. The plaintiffs contend that they would not have purchased the products if they had known that ProBoost products “did not have the quality, health benefits or value as promised.” Seeking to certify a…
A federal grand jury in Illinois has brought criminal indictments against four individuals who allegedly distributed more than 110,000 pounds of Mexican cheese in the United States in 2007 despite Food and Drug Administration (FDA) “hold” orders and also allegedly “washed” cheese returned by dissatisfied customers by scraping off mold and fungus so it could be resold. United States v. Zurita, No. __ (N.D. Ill., indictment returned April 18, 2012). No illnesses or other public health issues were attributed to the adulterated cheese distribution in the six-count indictment. The charges involve three separate shipments of cheese from Mexico that FDA ordered to be held and then later ordered either “detained” or “refused” after testing revealed the presence of Salmonella, E. coli, alkaline phosphate (found in unpasteurized products), and Staphylococcus. The defendants allegedly conspired to distribute the shipments despite FDA orders not to do so. They also allegedly distributed cheese before inspection, failed…
The Seventh Circuit Court of Appeals has reversed in part a district court dismissal of claims that being fed nutriloaf in a county jail subjected an inmate to cruel and unusual punishment in violation of his Eighth Amendment rights. Prude v. Clarke, No. 11-2811 (7th Cir., decided March 27, 2012). The plaintiff was apparently serving time in a state prison facility but was transferred to and stayed in a county jail on several occasions during court proceedings on his post-conviction petition. He was fed only “nutriloaf,” “a bad-tasting food given to prisoners as a form of punishment” and, during his third stay at the county facility began vomiting and experiencing stomach pains and constipation. He ultimately lost 8.3 percent of his weight. According to the court, “[t]he defendants’ response to his suit has been contumacious, and we are surprised that the district judge did not impose sanctions. The defendants ignored…
Sixty-five legal migrant workers from Mexico have filed a putative class action against GLK Foods, LLC in a federal court in Wisconsin, seeking to recover wages and damages for breach of contract, including the cost of transportation if the workers were terminated before the end of their certified period of employment. Jiminez v. GLK Foods LLC, No. 12-209 (E.D. Wis., filed February 29, 2012). The action was brought under the Migrant and Seasonal Agricultural Worker Protection Act, Fair Labor Standards Act, Wisconsin Migrant Labor Act, and Wisconsin Wage Payments, Claims and Collections Act. The workers were allegedly recruited from Mexico and employed in the United States in the defendant’s sauerkraut cannery under the H-2B temporary foreign worker visa program over a period of five years beginning in 2006. They claim that employers seeking to hire H-2B workers, where sufficient domestic workers are unavailable to perform the job, must file an application…
