The Department of Justice (DOJ) has filed a civil antitrust lawsuit against Dean Foods Co., claiming that the company’s 2009 acquisition of Foremost Farms USA’s Consumer Products Division “eliminates substantial competition between the two companies in the sale of milk to schools, grocery stores, convenience stores and other retailers in Illinois, Michigan and Wisconsin.” The attorneys general of these states joined the complaint. According to a Wall Street Journal report, this is the first such action DOJ has filed under the Obama administration. The complaint apparently seeks to undo the deal and require Dean Foods to notify the department at least 30 days before any future purchase of a milk processing operation. According to DOJ, the companies were the first and fourth largest in the region and their merger gave Dean Foods some 57 percent of the market for processed milk there. Local school districts evidently have fewer choices now…
Category Archives 7th Circuit
An Illinois consumer has filed a putative class action against two food companies in federal court, alleging that they fail to disclose that their high-fiber snacks contain a non-natural fiber derived from chicory root which is purportedly not as effective as natural fiber and can cause harm to some individuals. Turek v. General Mills, Inc., No. 09-7038 (N.D. Ill, filed November 9, 2009). The complaint specifically targets General Mills’ Fiber One Chewy Bars® and Fiber One NonFat Yogurt®, as well as the Fiber Plus Antioxidants Chewy Bars® made by Kellogg Co. The named plaintiff seeks to certify a class of Illinois residents who purchased these products and alleges violations of the Illinois Consumer Fraud and Deceptive Practices Act. She seeks an order (i) requiring the disclosure of all information in the companies’ possession about the “purported health benefits or non-benefits” of the companies’ products and ingredients, (ii) barring the companies…
U.S. Attorney Patrick Fitzgerald has brought conspiracy charges against the president of a honey manufacturer from China in an alleged scheme to illegally dump adulterated honey on the U.S. market, and recently announced that the defendant pleaded guilty. The product was apparently shipped through the Philippines and Thailand between 2005 and 2008 to avoid steep anti-dumping duties. While defendant Yong Xiang Yan entered a plea to one count of conspiracy involving the avoidance of more than $625,000 in anti-dumping duties, he acknowledged during the plea hearing that he authorized many other shipments that avoided an additional $3.3 million in duties. Some of the honey imported into the United States was allegedly adulterated with antibiotics, but “[n]either the charges [n]or the plea agreement indicate any instances of illness or other public health consequences attributed to consumption of the honey, nor does it identify any store brands or domestic supply chain of…
Putative class claims have been filed in federal court in Illinois against Denny’s Corp., alleging that the company defrauded consumers by misrepresenting or omitting information about the “excessive amount of sodium—the deadliest ingredient in the food supply—present in its meals.” Ciszewski v. Denny’s Corp., No. 09-5355 (N.D. Ill, filed August 29, 2009). Information about similar litigation filed against the company in a New Jersey state court appears in issue 312 of this Update. The named plaintiff alleges that he has high blood pressure and takes medication for the condition. While he has apparently been advised to limit his salt consumption, he purportedly eats at Denny’s “from time to time and with frequency,” and eats the company’s “Moons Over My Hammy,” “SuperBird Sandwich,” and “Meat Lover’s Scramble,” which allegedly contain more than 3,200 mg, 2,600 mg and 5,600 mg of sodium, respectively. The plaintiff seeks to certify a nationwide class of…
Illinois Attorney General Lisa Madigan has filed lawsuits against companies that make, market or supply açai berry products, touted as weight loss dietary supplements, charging that they are scamming consumers with aggressive marketing campaigns, prematurely billing their credit cards, not always supplying the product ordered, and making it nearly impossible to cancel once a “free trial” has been implemented. The product ads purportedly feature images of celebrities such as Rachel Ray, Oprah Winfrey, Mehmet Oz, M.D., Gwyeth Paltrow or Courtney Love, despite their alleged lack of a promotional contract with the companies. The complaints seek injunctive relief, restitution and civil penalties.
A federal court in Illinois, presiding over consolidated multidistrict litigation claims against McDonald’s Corp. for allegedly advertising its French fries as gluten-, wheat- and dairy-free while actually using small amounts of hydrolyzed wheat bran and casein in them, has denied plaintiffs’ motion for class certification. In re McDonald’s French Fries Litig., MDL No. 1784 (N.D. Ill., decided May 6, 2009. The court determined that the class definition was indefinite and overbroad, the proposed class would be unmanageable, and individual issues would predominate over common ones. The plaintiffs, who alleged violations of all 50 states’ and the District of Columbia’s consumer fraud and/or deceptive trade practices acts, breach of express warranty and unjust enrichment, sought to certify a nationwide class of all persons “who purchased Potato Products from McDonald’s restaurants on or after February 27, 2002 through February 7, 2006 and who at the time of purchase had been medically diagnosed with…
The Seventh Circuit Court of Appeals has upheld a district court decision refusing to allow the sale of baby formula seized by the government in a civil forfeiture proceeding. U.S. v. Approx. 81,454 Cans of Baby Formula, No. 08-2637 (7th Cir., decided March 25, 2009). Federal agents seized more than 80,000 cans of powdered baby formula in February 2007 on suspicion that they had been stolen from retail stores. According to the court, many of the cans still had retail-store markings or evidence of altered labels, including the products’ “use by” dates. The court distinguished this case from one involving salad dressing, decided earlier in March, that had altered “best when purchased by” dates. Details about that case appear in issue 296 of this Update. Judge Richard Posner authored the opinions in both cases. A “use by” date on baby formula is mandatory under federal law; selling products after that…
Judge Richard Posner, writing for a Seventh Circuit Court of Appeals panel, has determined that the government failed to prove that the defendant misbranded food by changing the “best when purchased by” date on bottled salad dressing that he then resold. U.S. v. Farinella, Nos. 08-1839, 08-1860 (7th Cir., decided March 12, 2009). A jury convicted the defendant of wire fraud and of introducing into interstate commerce a misbranded food with intent to defraud or mislead, and he was sentenced to five years of probation, including six months of home confinement, and to pay a $75,000 fine and forfeit his gains in excess of $400,000. According to the court, the defendant bought 1.6 million bottles of Henri’s Salad Dressing in May 2003, and they were labeled with “best when purchased by” dates ranging from January to June 2003. The defendant resold the dressing in discount stores, but pasted over the…
Identifying themselves as “observant Jews,” three named plaintiffs have filed a putative class action lawsuit against a hot dog producer in Cook County, Illinois, alleging that its 100 percent beef claims breach an express warranty, violate the Uniform Commercial Code’s provisions on conforming goods, and constitute consumer and common law fraud. Gershengorin v. Vienna Beef, Ltd., No. 06CH25277 (Cook County, Illinois, filed Nov. 20, 2006). According to the complaint, “Vienna Beef knowingly omits informing the consumer public that Vienna Beef is using pork intestine as casing for its Natural Casing Beef hotdogs.” The plaintiffs, who claim they have been injured emotionally by the company’s fraudulent advertising campaign, are bringing the action on behalf of all U.S. residents who consumed a “Natural Casing Beef” hot dog manufactured by Vienna Beef that actually contained pork intestine casing. The complaint asserts that questions of law and fact common to the class members include…
