Two consumers have filed a putative class action alleging Mondelez International's Belvita breakfast foods are marketed to consumers interested in “health and wellness” but contain between 8 and 14 grams of added sugar per serving. McMorrow v. Mondelez Int’l, No. 17-2327 (S.D. Cal., filed November 16, 2017). The complaint asserts that the packaging and labeling claims are deceptively marketed to consumers as "healthy" but contribute to excess sugar consumption. Alleging violations of California’s consumer-protection laws and breach of warranties, the plaintiffs seek class certification, injunctive relief, corrective advertising, damages, restitution and attorney’s fees.
Category Archives 9th Circuit
A California federal court has affirmed the dismissal of copyright infringement claims for lack of personal jurisdiction, holding that “a theory of individualized targeting" will not support specific jurisdiction. Axiom Foods, Inc., v. Acerchem Int’l, Inc., No. 15-56450 (9th Cir., entered November 1, 2017). Axiom Foods, Inc., which supplies organic and “chemical-free” products to food and beverage companies, filed a lawsuit in California after Acerchem International’s United Kingdom subsidiary distributed a newsletter to clients that included Axiom’s “As Good As Whey” and “Non-GMO” logos. The lower court dismissed the case, finding that Acerchem UK maintains its principal place of business in the United Kingdom and “does not conduct business in the United States," adding that no more than 10 recipients of the newsletter were located in California. Considering the jurisdictional issue, the Ninth Circuit focused on whether Acerchem UK aimed its business activities at California. In addition to the 10 identified…
Green Crush, a retailer selling juice, smoothie and aguas frescas beverages, has filed a lawsuit alleging that a former Green Crush manager and a former contractor engaged in corporate espionage, asserting that they used the chain’s proprietary information and infringed its trademarks and trade dress to start a competing company. Green Crush, LLC v. Paradise Splash 1, Inc., No. 17-1856 (C.D. Cal., filed October 23, 2017). The complaint alleges that the manager frequently asked senior Green Crush employees about “distribution operations, specific equipment, detailed drink ingredients, the design, placement, setting and layout of drink containers and cups, and the process and recipes used” before leaving to start a competing juice store. Further, Green Crush argues, the manager and contractor solicited Green Crush employees to work for them; allegedly, some of those employees asked “if the store under construction was a [Green Crush] store because it looked just like one.” Seeking…
One day after a California resident filed a putative class action complaint against Krispy Kreme, she voluntarily dismissed the suit without prejudice with no explanation for the dismissal. Salem v. Krispy Kreme Doughnut Corp., No. 17-7487 (C.D. Cal., dismissal filed October 13, 2017). The complaint alleged that Krispy Kreme “purposefully, intentionally, and willfully” misled customers as to the sugar content and calorie count of their doughnuts. In addition, the plaintiff stated that she relied on the nutritional information provided in a store pamphlet that misleadingly advertised the chain’s apple fritter as only 210 calories per serving. The plaintiff claimed violations of California’s unfair competition and false advertising laws and the state Consumer Legal Remedies Act.
A putative class action plaintiff has filed a lawsuit alleging that Ghirardelli Chocolate Co. puts fewer chocolates in packages of individually wrapped, single-serving chocolate squares than the number advertised on labels. Brungard v. Ghirardelli Chocolate Co., No. 17-5873 (N.D. Cal., filed October 12, 2017). The plaintiff asserts that he bought chocolates in 10-, 17- and 40-count bags in various flavors “many times over several years” and allegedly found "one less individually-wrapped square in the packages he purchased.” According to the complaint, Ghirardelli told the plaintiff that the contents were based on weight rather than the printed servings on the label. Claiming violations of the California Consumer Legal Remedies Act, unfair business practices, unjust enrichment, consumer fraud, negligent misrepresentation, intentional misrepresentation and false advertising, the plaintiff seeks class certification, damages, injunctive relief, restitution and attorney’s fees.
Penguin Trading, Inc., the maker of Fruit Bliss organic dried fruits, faces a putative class action alleging the company’s products contain as much as 80 percent slack-fill. Buso v. Penguin Trading, Inc., No. 17-7025 (C.D. Cal., filed September 22, 2017). The plaintiff argues that he would not have bought Fruit Bliss’ Organic Deglet Nour Dates, sold in opaque containers, if he knew the container was “substantially empty.” Asserting violations of California consumer-protection laws, the plaintiff seeks class certification, compensatory and punitive damages, injunctive relief and attorney’s fees.
The Ninth Circuit has upheld California’s ban on force-feeding ducks and geese to produce foie gras, finding the state’s law is not preempted by the Poultry Products Inspection Act (PPIA). Assoc. des Éleveurs de Canards et d’Oies du Québec v. Becerra, No. 15- 55192 (9th Cir., opinion filed September 15, 2017). In 2013, the Ninth Circuit rejected a constitutional challenge to the ban filed by the same plaintiffs. The court reversed a grant of summary judgment in favor of the plaintiffs, who challenged the state’s ban on sales or production of foie gras made from force-fed birds. First, the court held the ban is not expressly preempted by the PPIA because the federal statute’s “ingredient” requirement addresses the components of poultry products, not husbandry or feeding practices, and California’s law does not ban all foie gras—only that made from force-fed birds. “Nothing in the federal law … limits a state’s…
A plaintiff has filed a proposed class action alleging ACH Food Companies sells its Fleischmann’s® Simply Homemade Baking Mix products in opaque boxes that contain approximately 50 percent slack fill. Buso v. ACH Food Cos., No. 17-1872 (S.D. Cal., filed September 14, 2017). The complaint asserts that the plaintiff would not have purchased the products had he known the container was substantially empty. Alleging violations of California consumer-protection laws, the plaintiff seeks class certification, injunctive relief, exemplary, compensatory and punitive damages, restitution and attorney’s fees.
After a jury unanimously found in May 2017 that two former University of California, Davis professors willfully infringed the university’s patents on a strawberry breed they developed in the school’s program, both sides have agreed on a settlement that will dispose of all other claims against each other. Regents of Univ. of Cal. v. Cal. Berry Cultivars, No. 16-2477 (N.D. Cal., filed September 18, 2017). The professors, who left the university to form a private strawberry-breeding company, have agreed to return breeding materials to the school and relinquish $2.5 million in future royalties related to pre-existing patent-share agreements but will retain interests in some of the varietals they bred. Additional details appear in Issues 604, 633 and 636 of this Update.
Following a bench trial, a California federal court has ruled that Fetzer Vineyards, Inc.’s “bourbon barrel aged” 1000 Stories red zinfandel wine, which features a sketch of a buffalo on its label, does not infringe the trademark or trade dress of Sazerac Co.’s Buffalo Trace bourbon. Sazerac Co. v. Fetzer Vineyards, Inc., No. 15-4618 (N.D. Cal., entered September 19, 2017). “This case was not close,” the court said. Sazerac “did not establish that Buffalo Trace’s bourbon trade dress was similar to 1000 Stories wine’s. It did not establish that Fetzer intended to infringe at the creation of its product or in its marketing. There was no evidence of actual confusion between the products … and no indication that consumers of 1000 Stories are even aware of Buffalo Trace.” The court had already limited Sazerac’s potential recovery to attorney’s fees after the company failed to provide damage calculations on a timely…
