A California resident has filed a putative nationwide class action with a California subclass against a company that makes low-calorie frozen desserts that allegedly have as much as 68 percent more calories than touted on the product label. Freeman v. Arctic Zero, Inc., No. 12-2279 (S.D. Cal., filed September 18, 2012). Similar putative class claims filed by another California resident in August are summarized in Issue 451 of this Update. According to plaintiff Brenda Freeman, “[c]onsumers do not receive the benefit of their bargain because the actual calorie content of the Frozen Desserts is up to 68 percent higher than Arctic Zero prominently represents on the front of the product packaging, on the nutritional label, and in Arctic Zero’s other marketing materials.” She cites testing on the company’s Chocolate Peanut Butter and Vanilla Maple products showing them to be higher in calories than the 150 calories per pint on package…
Category Archives 9th Circuit
Finding that California law applies to a dispute between Costco Wholesale Corp. and Nationwide Mutual Insurance Co., a federal court has dismissed Costco’s claims for violations of Washington state law and for bad faith coverage by estoppel arising out of the insurer’s refusal to handle claims of personal injury from cheese that Costco sold. Costco Wholesale Corp. v. Nationwide Mut. Ins. Co., No. 11-1550 (W.D. Wash., Seattle, decided September 20, 2012). The court determined that, under the “most significant relationship” test applied in the context of a conflict of laws, “the most significant contacts between Costco and Nationwide occurred in California.” Because California law does not provide relief as to a number of Costco’s claims, the court dismissed them but gave the company the opportunity to amend the complaint by November 1, 2012. If it does not do so, the matter will be dismissed.
A federal court has reportedly denied the request of Canadian and U.S. foie gras producers to preliminarily enjoin the enforcement of California’s law barring the sale of food products made from force-feeding birds. Association des Éleveurs de Canards et d’Oies du Québec v. Harris, No. 12-5735 (U.S. Dist. Ct., C.D. Cal., order entered September 19, 2012). More information about the case appears in Issue 446 of this Update. According to a news source, the court will issue a formal ruling on its denial of injunctive relief at a later date. A hearing on the state’s motion to dismiss the lawsuit is scheduled for November 19. See Law360, September 20, 2012.
A New York resident has filed a putative class action in a California federal court seeking to recover damages allegedly sustained by pet owners whose dogs became sick after eating “Chinese Chicken Jerky.” Langone v. Del Monte Corp., No. 12-4671 (N.D. Cal., filed September 6, 2012). The plaintiff cites and quotes a number of items published on the Internet purportedly showing that the Food and Drug Administration had been warning, at least since 2007, that chicken jerky products could pose a threat to dogs. “Notwithstanding these warnings,” he claims, “Del Monte continued to market the product as being wholesome and Del Monte placed no warnings concerning their products on their packaging to date.” Seeking to represent a nationwide class of product purchasers, the plaintiff alleges violations of California’s Unfair Competition Law and False Advertising Law and breach of express warranty and implied warranty of merchantability under the Magnuson-Moss Warranty Act. He…
A California resident has filed a putative nationwide class action with astatewide subclass against a yogurt maker that sells “Greek-Style Yogurt” which allegedly contains ingredients that the Food and Drug Administration (FDA) has banned from use in yogurt. Smith v. Cabot Creamery Coop., Inc., No. 12-4591 (N.D. Cal., filed August 31, 2012). According to the named plaintiff, the company sells its product as “authentic Greek yogurt” thus allowing it to “charge a substantial price premium. . . . But the price premium for Cabot Greek is even larger, because Cabot Greek has no value whatsoever. Because the product is adulterated, it cannot legally be sold at any price. It is worthless.” The plaintiff contends that by using whey protein concentrate and milk protein concentrate as filler materials to thicken the product, the company does not incur the time and expense required to produce real Greek yogurt. Among other matters, the plaintiff…
The Ninth Circuit Court of Appeals has withdrawn its previous opinion reversing an order that approved the settlement of class claims against Kellogg Co., although it has reached the same conclusion in its new opinion. Dennis v. Kellogg Co., Nos. 11-55674, -55706 (9th Cir., decided September 4, 2012). Information about the withdrawn opinion is included in Issue 447 of this Update. The plaintiffs claimed that Kellogg lacked supporting scientific evidence for marketing and promotional statements that some of its cereal products could improve children’s cognitive functions. Apparently, the court had failed to consider the plaintiffs’ preliminary argument that it could not address the validity of the cy pres distribution of funds that remained in the settlement fund. They contended that the issue “will not be ripe until it is determined that available cash remains in that fund after the claims process has concluded.” As the court observed in a footnote…
The Center for Food Safety and Center for Environmental Health have filed a complaint for declaratory and injunctive relief against the Food and Drug Administration (FDA) alleging that the agency has unlawfully delayed adopting implementing regulations under the Food Safety Modernization Act (FSMA). Ctr. for Food Safety v. Hamburg, No. 12-4529 (N.D. Cal., filed August 29, 2012). According to the complaint, FDA has missed seven statutory deadlines thus “failing to implement FSMA’s major food safety regulations.” Characterizing the failure as “an abdication of the agency’s fundamental responsibilities,” the plaintiffs claim that this delay “is putting millions of lives at risk from contracting foodborne illnesses.” They also sued the Office of Management and Budget, claiming that it has also missed statutory deadlines in failing to approve the implementing regulations that FDA has submitted for its review. The complaint recites Centers for Disease Control and Prevention estimates that one in six Americans…
A federal court in California has granted in part the motion to dismiss filed by the defendant in a putative class action alleging that it falsely misrepresents its smoothie kits as “All Natural” when they actually contain “unnaturally processed, synthetic and/or non-natural ingredients,” such as ascorbic acid, citric acid, xanthan gum, and steviol glycosides.” Anderson v. Jamba Juice Co., No. 12-1213 (N.D. Cal., order entered August 25, 2012). Additional information about the case appears in Issue 432 of this Update. The court agreed with Jamba Juice that the plaintiff had failed to state a warranty claim under the Magnuson-Moss Warranty Act, because “the statement ‘All Natural’ is a general product description rather than a promise that a product is defect free.” Still, the court dismissed the plaintiff’s claim for breach of express warranty under the Act with leave to amend “to the extent some other basis may exist for this…
A California winery has filed a complaint against Anheuser-Busch, LLC seeking a declaration that the winery has not infringed any of the brewer’s protectable trademark rights and that the winery’s use of the BOW TIE word mark and Bow Tie slogan to sell its wine “does not constitute unfair competition.” San Antonio Winery, Inc. v. Anheuser-Busch, LLC, No. 12-7067 (C.D. Cal., filed August 16, 2012). The winery claims that it started using the BOW TIE word mark in the United States in 2012 and had filed a trademark application for the mark in November 2011. After the application was published for opposition, Anheuser-Busch allegedly demanded that the winery abandon the application and refrain from using the BOW TIE word mark on the ground that the brewer held design marks depicting bow ties and that “there is a likelihood of consumer confusion, mistake, or deception between San Antonio’s BOW TIE Word Mark…
Four migrant farmworkers have filed suit against farm labor contractors who allegedly “recruited undocumented field workers in Mexico and the United States to work on farms (‘growers’) and relied on a pattern of threats, violence, harassment, and indebtedness to force Plaintiffs and other migrant farmworkers to perform grueling, back-breaking manual labor as Defendants transported the workers between several states including Florida, Illinois, Georgia, Mississippi, and New York.” John Does I-IV v. Sunrise Labor Corp., No. 12-80883 (S.D. Cal., filed August 20, 2012). According to the complaint, the individual defendants face federal criminal charges for hiring unauthorized aliens. Among other matters, the anonymous plaintiffs allege that the defendants imposed debts on them—involving fees paid to “coyotes” to smuggle them across the border and charges for food, rent and remittances to their families—threatened them with injury or death, did not pay them compensation to which they were entitled, forced them to work when…
