Brandeis University has filed suit against a number of cookie and biscuit manufacturers, including Keebler Co., Famous Amos Chocolate Chip and The Pillsbury Co., alleging that they have infringed patents that adjust the LDL/HDL ratio in human serum by balancing saturated and polyunsaturated dietary fatty acids. Brandeis Univ. v. East Side Ovens, Inc., No. 11-619 (W.D. Wis., filed September 7, 2011). According to the complaint, the patents (‘497 and ‘192) were issued in 1998 and 2003 and “are directed to fats and fat blends that decrease low-density lipoprotein cholesterol (LDL) and increase high-density lipoprotein cholesterol (HDL) in human serum,” resulting “in significant health benefits.” The university alleges that the defendants’ cookie, cookie dough, and reduced fat biscuit and crescent roll products infringe its patents. The plaintiff seeks injunctive relief, damages, costs, and a “declaration that this is an exceptional case and an award of attorneys’ fees.
Category Archives 7th Circuit
A federal court in Illinois has reportedly dismissed on standing grounds the pro se claims of an individual plaintiff who alleged that the food packaging materials used by McDonald’s Corp., when discarded by consumers, pose a threat to the environment. Gencarelli v. McDonald’s Corp., No. 11-5573 (N.D. Ill., decided August 19, 2011). The plaintiff filed his complaint under the Safe Drinking Water Act, Toxic Substances Control Act and National Environmental Policy Act. According to the court, he lacked standing to sue because he alleged “a generalized grievance” only. To establish standing, the plaintiff was required to show a “concrete injury in fact, causation, and redressability,” which the court apparently found he failed to do. See BNA Daily Environment Report, August 24, 2011.
Seeking either clarification or dismissal of claims alleging that it has violated state law by republishing the product or service preferences (“Likes”) of children younger than age 18 as accompaniments to paid advertisements without first obtaining parental consent, Facebook, Inc. argues that the claims are insufficiently pleaded, fail to state a claim or are preempted by federal law. Dawes ex rel. E.K.D. v. Facebook, Inc., No. 11-00461 (S.D. Ill., motion filed August 1, 2011). Facebook explains that the plaintiffs are teenagers who shared their Internet “Likes” with their friends and that Facebook may then redisplay the preference to the same friends along with an advertisement for the relevant company’s website. According to Facebook, the plaintiffs have failed to indicate how they have been injured because they failed to allege “that their personal information had any ascertainable ‘value’ or any facts supporting the claimed ‘lessening’ of that value.” Facebook also contends…
Insurance companies with policies covering Phusion Projects, Inc., which makes the caffeinated alcohol beverage Four Loko®, have filed a summary judgment motion in their declaratory judgment action against the company, claiming that a policy exclusion unambiguously frees them from defending or indemnifying the beverage maker. The Netherlands Ins. Co. v. Phusion Projects, Inc., No. 11-1253 (N.D. Ill., filed June 22, 2011). The companies contend that their commercial general liability and commercial umbrella policies have liquor liability exclusions that apply to actions pending in Florida, Illinois and New Jersey alleging that “Four Loko caused a particularly dangerous kind of intoxication” and seeking monetary damages for deaths and injuries. Details about a similar insurance coverage lawsuit involving other insurers appear in Issue 396 of this Update.
Alleging trademark infringement and unfair competition, Vienna Beef Ltd. has sued a descendant of one of its founders and the competing hot dog company he established in 1986. Vienna Beef Ltd. v. Red Hot Chicago, Inc., No. 11-03825 (N.D. Ill., filed June 6, 2011). When Scott Ladany, whose grandfather started Vienna Beef, left that company in 1983, he purportedly signed a severance agreement promising not to share Vienna’s recipes and acknowledging their status as trade secrets. According to the complaint, Ladany made “few inroads into Vienna’s dominance in the marketplace” for the next 25 years and then launched a marketing campaign on behalf of Red Hot, referring to the family history of making “Chicago’s finest hot dogs for 118 years.” He also allegedly referred to “a tradition that’s been handed down through four generations of our family.” The plaintiff contends, “The only way that he can claim that he has…
A man who claims that his consumption of Ocean Spray’s 100% Cranberry Pomegranate Juice® caused his food poisoning and other related injuries, has filed an individual action against the company, retailers and a testing laboratory in an Illinois state court. Mihalopoulos v. Ocean Spray Cranberries, Inc., No. 2011L005420 (Ill. Cir. Ct., Cook Cty., filed May 25, 2011). The plaintiff alleges that the product was contaminated with a “fungus known as Penicillium Glabrum.” Part of the complaint alleges that a testing laboratory confirmed the presence of the fungus in the product, but failed to preserve the juice sample, which the plaintiff contends will prejudice his ability to prosecute the remainder of his claims. Alleging strict products liability, negligence and spoliation of evidence, the plaintiff seeks damages in excess of $50,000 for his “severe and permanent injury,” medical costs and future economic losses.
Selective Insurance Co. of South Carolina has filed a declaratory judgment action against Phusion Projects, Inc., which makes and sells the caffeinated alcohol beverage Four Loko®, claiming that it owes no duty to defend or indemnify Phusion in a number of pending lawsuits. Selective Ins. Co. of S. Car. v. Phusion Projects Inc., No. 11-03378 (N.D. Ill., filed May 19, 2011). The lawsuits involve claims that the product was responsible for teenagers’ deaths or injury, its promotions violated consumer protection laws, and the product’s packaging infringed trade dress. According to the insurer, (i) its policy was not in effect as to some of the plaintiffs, whose alleged injuries occurred either before the policy took effect or after the insurer cancelled the policy; and (ii) the policy’s terms expressly or unambiguously preclude coverage for certain claims, including those involving intoxication. The insurer seeks a declaration that the policy does not provide coverage for…
According to a news source, the family of a teenager has sued Phusion Projects, which makes the alcohol energy drink Four Loko®, alleging that their son’s disorientation after drinking two of the beverages led to his fatal accident. Rupp v. Phusion Projects, No. __ (Ill. Cir. Ct., Cook Cty., filed May 19, 2011). He allegedly consumed the beverage during a concert in 2010, and his parents picked him up after concert staff contacted them claiming the boy “appeared extremely intoxicated.” The family alleges that their son acted “paranoid and disoriented” on the ride home and took off running when they arrived home. He apparently died when he was struck by a car after running onto a busy highway. The family reportedly alleges in the wrongful death lawsuit that the company “was careless and negligent in formulating a caffeinated, alcoholic beverage that desensitizes users to the symptoms of intoxication, and increases…
The Department of Justice recently took action against seafood producers in Wisconsin and Alabama for products that were either processed in plants lacking Hazard Analysis and Critical Control Point (HACCP) plans or misbranded. In Wisconsin, a U.S. attorney filed a complaint to seize a variety of breaded seafood products in the possession of Soderholm Wholesale Foods, Inc. and Fellerson, Inc. and sold under the “Seaside” label. United States v. “Seaside” Breaded Cod Fillets, No. 11-277 (W.D. Wis., filed April 18, 2011). According to the complaint, these products are adulterated “in that they have been prepared, packed, or held under insanitary conditions whereby they may have been rendered injurious to health.” Investigations in 2010 allegedly revealed that the companies did not have a written HACCP plan and failed to adopt one after warning. Meanwhile, seafood wholesalers Karen Blyth and David Phelps have reportedly been sentenced in an Alabama federal court to 33…
The U.S. Supreme Court has denied the certiorari petition filed by Kraft Foods, seeking review of a Seventh Circuit ruling that requires the company to pay for the time it takes workers to change into and out of safety gear and work clothes, despite a collective bargaining agreement to the contrary. Kraft Foods Global, Inc. v. Spoerle, No. 10-580 (U.S., cert. denied January 10, 2011). According to the Seventh Circuit, “Management and labor acting jointly have no more power to override state substantive law than they have when acting individually.” The U.S. Supreme Court’s denial carries no precedential weight; thus, the ruling, based on Wisconsin law, is limited to the Seventh Circuit. Kraft will apparently begin paying 1,300 current and former employees about $4 million in back pay. A company spokesperson reportedly said, “With this decision [the doffing-and-donning] benefit is restored to employees. We are happy to put this behind…
