Watkins Inc., a Minnesota-based company known for its black pepper, has filed a lawsuit against McCormick and Co., Inc., a global purveyor of spices, alleging that McCormick recently began underfilling its pepper containers but continued using the same size of packaging. Watkins Inc. v. McCormick and Co., No. 15-2688 (D. Minn., filed June 9, 2015). The complaint provides photographic comparisons of Watkins and McCormick tins, a photo of McCormick’s 2-ounce tin alongside the 1.5-ounce tin in a store selling each for the same price, and several photos of stores with shelf tags incorrectly listing the previous size but offering the reduced-size product. “McCormick intentionally kept the tin the same size, with the same price, notwithstanding the 25% decrease in ground black pepper fill, in a manner that misleads retailers and consumers,” the complaint asserts. Watkins alleges that McCormick has violated the Lanham Act and several state business practices acts as…
Category Archives 8th Circuit
In a May 5, 2015, Law360 analysis, Shook, Hardy & Bacon Partner Andy Carpenter chronicles a “meta” class action against Riceland Foods, Inc., a party to multidistrict litigation (MDL) stemming from the use of genetically modified organism (GMO) rice, which several thousand rice farmers alleged had tainted the U.S. rice supply. After Riceland obtained a verdict in a cross-claim against Bayer and settled its portion of the MDL, class-action counsel and plaintiffs filed a lawsuit against the company to obtain compensation for their work, from which they argued Riceland benefited when it received a judgment from Bayer. Carpenter details the reasoning of the district court and the later affirmation from the Eighth Circuit, discussing issues of jurisdiction and choice of law. Issue 564
An Arkansas federal court has dismissed with prejudice a putative class action alleging that Twinings North America, Inc. mislabeled its tea by including the statement that the product is a “natural source of antioxidants” on its packaging. Craig v. Twinings North Am., Inc., No. 14-5214 (W.D. Ark., order entered February 5, 2015). The plaintiff had argued that under the Arkansas Food, Drug, and Cosmetic Act (AFDCA), an act identical to the food labeling regulations of the U.S. Food and Drug Administration (FDA), Twinings’ tea failed to meet the nutrient level threshold—10 percent or more of the recommended daily intake—required for a claim about the nutrient content of a product. Twinings argued that the Arkansas law claims were preempted by the Federal Food, Drug, and Cosmetic Act (FDCA) and could impose liability inconsistent with federal law. To assess the preemption argument, the court considered whether the statement “natural source of antioxidants” is…
A Minnesota federal court has granted in part and denied in part a motion to dismiss in a lawsuit alleging that Hormel Food Corp. stole trade secrets and breached contractual agreements in its joint venture to develop new methods of cooking bacon. Unitherm Food Sys. Inc. v. Hormel Food Corp., No. 14-4034 (D. Minn., order entered January 27, 2015). Unitherm alleged that it created the first viable method for pre-cooking sliced bacon—a process using spiral ovens and super-heated steam—and agreed to develop a commercially viable product with Hormel in June 2007. Unitherm asserted that Hormel disclosed its process, which Unitherm had not yet patented, to a rival company in violation of confidentiality agreements, which constituted an appropriation of trade secrets. The court disagreed, finding that Unitherm’s July 2009 patent application precluded its claim of trade secrets because patented processes cannot, by necessity, be trade secrets due to the disclosure of…
A Missouri federal court has dismissed a lawsuit challenging the “all natural” labels of Cape Cod Chips because the plaintiff failed to provide a suitable definition of “natural.” Kelly v. Cape Cod Potato Chip Co., No. 14-119 (W.D. Mo., order entered January 27, 2015). The plaintiff alleged that 16 varieties of Cape Cod Chips were advertised as “all natural” and made without preservatives despite containing 13 artificial and synthetic ingredients. The court reviewed the definitions of “natural” submitted by the plaintiff and found them each lacking. It first dismissed the dictionary definition, “existing or produced by nature: not artificial,” as “not plausible because the Chips are processed foods, which of course do not exist or occur in nature.” The definition of “natural” found in an informal advisory opinion from the U.S. Food and Drug Administration (FDA) was not binding, the court found, because the agency “specifically declined to adopt any…
Society Insurance has filed a lawsuit in Iowa federal court seeking a declaration that its policy does not require it to defend or indemnify Templeton Rye Spirits in a putative consumer class action alleging that the whiskey distiller falsely represented its products as made from a Prohibition-era recipe. Soc’y Ins. v. Templeton Rye Spirits LLC, No. 15-0005 (S.D. Iowa, filed January 5, 2015). The underlying lawsuit asserts that Templeton claims its whiskey is made in a “small batch” from a Prohibition-era recipe that was a favorite of Al Capone’s, but that the product is actually distilled at an MGP Ingredients, Inc. factory in accordance with a stock MGP recipe. Society seeks a judicial declaration that Templeton’s insurance policy, which Society argues covers only damages based on bodily injury, property damage or personal and advertising injury, will not require Society to indemnify a settlement or judgment against Templeton. The insurance company argues…
Philip Payne, the former operations manager of Halal-food company Midamar Corp., has pled guilty to a charge of conspiracy to make and deliver false certificates and writings stemming from Midamar’s export of beef to Indonesia and Malaysia purportedly prepared in accordance with Islamic law. U.S. v. Payne, No. 14-cr-0143 (N.D. Iowa, request for approval filed January 7, 2015). In his plea agreement, Payne admitted that Midamar attempted to meet the rise in Halal meat demand by supplying kosher beef slaughtered by rabbis without any oversight from a Muslim slaughterman. Several executives at Midamar have been charged with making false statements on export certificates, committing wire fraud and laundering money, allegations to which founder William B. Aossey Jr. and two of his sons pled not guilty in December 2014. A trial on those charges is set for February 17, 2015. Issue 550
In a dispute over commercial liability insurance coverage, the Eighth Circuit Court of Appeals has ruled that a trial court erred in deciding, as a matter of law, that a recall of sausage breakfast sandwiches prompted by contamination with monosodium glutamate (MSG) was a covered incident. Hot Stuff Foods, LLC v. Houston Cas. Co., Nos. 14-1192, -1194 (8th Cir., decided November 17, 2014). When MSG is added to foods, it must be disclosed on the product label. Hot Stuff Foods makes sausage breakfast sandwiches with sausage that does not contain MSG and does not include it on package labels. The company also distributes sausage that contains MSG and learned in January 2011 that some of the MSG sausage was inadvertently used in the breakfast sandwiches. Because the product contained MSG not disclosed on the labels, it was misbranded under federal law. The company promptly reported the situation to Food and Drug…
A federal court in Missouri has denied the motion to dismiss filed by a food-safety company responsible for auditing conditions at the Jensen Farms cantaloupe facility some six weeks before the U.S. Food and Drug Administration inspected the farm and found the Listeria strains associated with a nationwide outbreak that allegedly sickened the plaintiff. West v. Frontera Produce Ltd., No. 13-0943 (W.D. Mo., decided November 7, 2014). Primus Group, Inc. had argued that it owed no duty to the plaintiff, but the court disagreed, citing Missouri case law, which is consistent with the Restatement (Second) of Torts, Section 324A, allowing liability for third persons who render services that should be recognized “as necessary for the protection of a third person or his things.” According to the court, the plaintiff sufficiently stated a cause of action against the defendant, “given that Primus assumed a duty pursuant to contract and the performance of that duty…
Back Yard Burgers of Nebraska, Inc. has agreed to settle claims that it violated the Fair and Accurate Credit Transactions Act (FACTA) by allegedly using the last five digits of customer credit-card numbers on its older receipts, instead of the last four digits. Keith v. Back Yard Burgers of Neb., Inc., No. 11-0135 (D. Neb., order preliminarily approving class settlement entered September 15, 2014). The company will pay $2,792,400 into a settlement fund, will provide coupons for a free soft drink with the purchase of an entrée to class members who submit valid claims, will not contest class counsel fees of up to 40 percent of the consent judgment—or $1,116,960—will quitclaim assign to the plaintiff any claim it may have against Data Cash Register (DCR) related to the class action and cooperate in pursuing collection of a consent judgment against DCR, and will comply with FACTA going forward. The class…
