American Dairy Queen Corp. has filed a lawsuit challenging W.B. Mason Co.'s application for a “Blizzard” trademark for its bottled water. Am. Dairy Queen Corp. v. W.B. Mason Co., Inc., No. 18-0693 (D. Minn., filed March 12, 2018). Dairy Queen alleges that it trademarked “Blizzard” for milkshakes in 1946 and has extended the mark to ice milk, ice cream, soft serve, machinery and restaurant services. The complaint asserts that the Blizzard marks are “widely recognized by the general consuming public of the United States as a designation of source of Dairy Queen’s goods and services.” Alleging trademark infringement, unfair competition by false designation, trademark dilution, unfair competition and violation of Minnesota’s deceptive trade practices law, Dairy Queen seeks an injunction barring W.B. Mason from using the Blizzard mark, destruction of packaging and advertising materials, award of profits generated from use of the infringing mark and attorney’s fees.
Category Archives 8th Circuit
Two consumers have filed a lawsuit alleging that they contracted Salmonella from deli chicken salad they purchased at Fareway Stores Inc. Porter v. Fareway Stores Inc., No. 18-0050 (S.D. Iowa, filed February 20, 2018). The plaintiffs, a married couple, allege that the contaminated chicken salad sent them to an emergency room—with the wife requiring further hospitalization—and that they both tested positive for Salmonella. The complaint also states that Fareway chicken salad has been linked to “at least 28 confirmed and 66 probable cases of Salmonella” in Iowa by the state’s Department of Health, with reports of possible related illnesses in Nebraska and Minnesota. The U.S. Department of Agriculture’s Food Safety and Inspection Service issued a public health alert about the Iowa outbreak in February 2018. Alleging strict product liability, negligence and breach of warranty, the plaintiffs seek damages and attorney’s fees.
President Donald Trump has commuted the 27-year sentence of Sholom Rubashkin, a former kosher meatpacking plant executive convicted of 86 counts of federal bank fraud and money laundering. After Rubashkin was sentenced in 2009, politicians, law enforcement officials and legal experts argued that his case was tainted by prosecutorial misconduct, but the Eighth Circuit Court of Appeals upheld his conviction and sentencing in 2011. Rubashkin and his family members were initially accused of a range of charges, including conspiracy to harbor undocumented immigrants for profit and child labor law violations.
A federal court has denied a motion to dismiss a slack-fill complaint against Just Born, maker of Mike and Ike® and Hot Tamales® candies. White v. Just Born, No. 17-4025 (W.D. Mo., order entered July 21, 2017). The complaint alleged that consumers are likely to choose opaque, “theater-sized” boxes of the candies believing they are a good value despite allegedly containing up to 35 percent empty space. The court found that the plaintiff had pleaded sufficient facts to establish a claim under the Missouri Merchandising Practices Act, finding “a reasonable consumer could conclude that the size of a box suggests the amount of candy in it. . . . [t]he Court cannot conclude as a matter of law and at this stage of the litigation that the packaging is not misleading.” Moreover, Just Born’s argument that the packages’ labeling and disclosures of net weight, number of pieces of candy per…
The U.S. Court of Appeals for the Eighth Circuit has upheld the convictions of Midamar Corp., founder William Aossey and his son Jalel Aossey, perpetrators of a scheme to falsely label meat as halal. U.S. v. Aossey, Nos. 161611, 161688, 161761 (8th Cir., order entered April 14, 2017). The court rejected the defendants’ arguments that the Department of Agriculture has sole jurisdiction over criminal prosecutions pursuant to the Meat Inspection Act, ruling that the federal statute did not include a “clear and unambiguous” expression that the Agriculture Department’s authority is exclusive. Additional details on the case against Midamar and the Aosseys appear in Issues 550, 572 and 596 of this Update. Issue 632
A consumer has filed a putative class action alleging Kellogg Co.’s Special K® Fruit & Yogurt cereal is misleadingly labeled with pictures of strawberries and blackberries despite that dried apples are listed as the only fruit contained in the product. George v. Kellogg Co., No. 16-1887 (E.D. Mo., removed to federal court December 1, 2016). Asserting that she paid a premium price for the product believing it to contain strawberries and blackberries, the plaintiff argues that the labeling violates the Federal Food, Drug, and Cosmetic Act and its labeling regulations. For an alleged violation of the Missouri Merchandising Practices Act and unjust enrichment, she seeks class certification, damages and attorney’s fees. Issue 625
The Eighth Circuit Court of Appeals has upheld the legality of three-month prison sentences handed down to former Quality Egg, LLC executives Austin “Jack” DeCoster and his son Peter, former officials of the company deemed responsible for a 2010 Salmonella outbreak traced to its Iowa egg farms. United States v. Quality Egg, LLC, No. 15-1890 (8th Cir., order entered July 6, 2016). Convicted of misdemeanor violations of the federal Food, Drug, and Cosmetic Act (FDCA), the DeCosters argued their sentences were unconstitutional under the Due Process Clause and the Eighth Amendment because incarceration for their offenses is either altogether inappropriate or disproportionate to the crimes. Upon a de novo review of the case, the appeals court confirmed that “the DeCosters are liable for negligently failing to prevent the salmonella outbreak.” Further, the men’s sentences did not violate the Due Process Clause because the sentences were “relatively short” and the “convictions…
“The U.S. Supreme Court recently deviated from its historically stringent view on class certification and affirmed an Eighth Circuit decision to uphold certification of a class of Tyson Foods, Inc. employees who brought suit against Tyson for a violation of the Fair Labor Standards Act of 1938 (FLSA),” Shook Miami attorneys Frank Cruz-Alvarez and Rachel Canfield explain in an April 13, 2016, analysis for the Washington Legal Foundation’s Legal Pulse. The article first describes the suit’s origins; Tyson initially paid all employees for an equal amount of time spent donning and doffing protective gear but later adjusted the policy to pay some employees for additional “don and doff” time. Cruz-Alvarez and Canfield note that “Plaintiffs alleged Tyson’s failure to compensate them for time spent performing this ‘integral and indispensable’ work activity violated the FLSA by lengthening their workweek beyond forty hours without providing them with overtime pay.” They also note…
An Iowa federal jury has found William Aossey , the former owner of Midamar Corp., guilty of making false export statements along with conspiracy and wire fraud stemming from the company’s misrepresenta- tion of the source of food exported to Malaysia and Indonesia. U.S. v. Aossey, No. 14-0116 (N.D. Iowa, jury verdict entered July 13, 2015). Aossey was indicted over claims that Midamar bought products from a slaughterhouse not certified to export meat to Indonesia and Malaysia, then removed the facility’s federal establishment number with nail-polish remover and replaced it with the number of a certified facility. Additional charges alleging that the company’s products do not meet halal standards are pending against Aossey’s sons. Issue 572
A consumer has filed a proposed class action against Whole Foods Market Group Inc. alleging that the company’s Gluten Free All-Natural Nutmeal Raisin Cookies list evaporated cane juice (ECJ) as an ingredient to mislead consumers about the amount of sugar contained in the product. Bryant v. Whole Foods Mkt. Grp. Inc., No. 15-1001 (E.D. Mo., removed to federal court June 25, 2015). The complaint, originally filed in Missouri state court in April, asserts that ECJ should be listed as sugar under the U.S. Food and Drug Administration’s (FDA’s) rule that food labels use the most common or usual name of an ingredient. According to the April complaint, the plaintiff seeks class certification and damages. The lawsuit joins a wave of litigation against food manufacturers presenting the same argument. Several courts have dismissed the cases without prejudice or granted stays after FDA indicated that it would publish updated guidance about ECJ.…
