A New York resident has filed a putative class action against Diamond Pet Foods and Amazon.com, seeking medical monitoring for pets that consumed recalled Salmonella-tainted pet food. Cohen v. Schell & Kampeter, Inc., d/b/a Diamond Pet Foods, No. 12-3299 (E.D.N.Y., filed July 2, 2012). Plaintiff Steven Cohen alleges that he fed his dogs Taste of the Wild® brand pet food, purchased from Amazon.com, and that they became ill, vomiting frequently, “which caused damage to Plaintiff’s property.” Seeking to certify a nationwide class and statewide subclass of consumers, the plaintiff alleges breach of implied and express warranty, strict products liability, violations of state consumer fraud laws, negligence, and unjust enrichment. In addition to medical monitoring, the plaintiff seeks actual damages or restitution, attorney’s fees, costs, and interest. A Canadian non-profit representing the interests of foie gras producers, a New York-based foie gras producer and a company that operates restaurants in California have…
Category Archives 9th Circuit
The Wisconsin Supreme Court has decided which of the parties sued over an E. coli outbreak that sickened dozens of Sizzler Steak House patrons in 2000 and caused the death of a 3-year-old are liable for consequential damages, indemnity and costs under various supply chain and insurance contracts. Kriefall v. Sizzler USA Franchise, Inc., Nos. 2009AP1212 & 2010AP491 (Wis., decided June 29, 2012). Among other matters, the court ruled that Sizzler was entitled to (i) recover consequential damages for the meat supplier’s breach of implied warranties despite limiting language in the continuing guaranty provision of their contract, and (ii) indemnity from the meat supplier for Sizzler’s advance partial payment to the family of the deceased child “because the payment was not voluntary and the jury found that Sizzler was zero percent liable for the E. coli contamination.” The court also ruled that Sizzler could not recover its attorney’s fees despite a jury finding…
A California resident has filed a putative class action against Ralphs Grocery Co. alleging that it breached its promise not to share the personal information that shoppers must provide to obtain a “Ralphs rewards Card”; only cardholders may purportedly take advantage of advertised store discounts. Heller v. Ralphs Grocery Co., No. BC486035 (Cal. Super. Ct., Los Angeles Cty., filed June 6, 2012). He contends that he would not have shopped at the grocery stores or applied for a rewards card “if not for Defendant’s misrepresentation and/or nondisclosure of the fact that it was selling and/or sharing its customers’ personal identification information.” According to the complaint, the defendant shares customer information with Kroger and with dunnhumby, a company that allegedly “performs data mining services for more than 350 million people in 25 countries on behalf of retailers” and “uses personal identification information and data from purchase transactions gleaned from the Ralph’s reward Card…
Seeking to represent a statewide class of product purchasers, a California resident has filed a putative class action against Costco, alleging that the company falsely sells its Kirkland Signature Kettle Brand Potato Chips®, which purportedly contain “more than 13 grams of fat per 50 grams,” with a “0 Trans Fat” label. Thomas v. Costco Wholesale Corp., No. 12-2908 (N.D. Cal., filed June 5, 2012). Citing 21 C.F.R. § 101.13(h), plaintiff Karen Thomas contends that the defendant is “prohibited from making the unqualified nutrient claims of ‘0 grams Trans Fat’ on its food products if they contain fat in excess of 13 grams, saturated fat in excess of 4 grams, cholesterol in excess of 60 milligrams, or sodium in excess of 480 mg per 50 grams, unless the product also displays a disclosure statement that informs consumers of the product’s fat, saturated fat and sodium levels.” She alleges that the product…
On remand from the U.S. Supreme Court, the Ninth Circuit Court of Appeals has issued an order which reinstates a district court ruling that a California law regulating swine slaughterhouses and nonambulatory animals was preempted by federal law. Nat’l Meat Ass’n v. Harris, Nos. 09-15483 and -15486 (9th Cir., order entered June 8, 2012). Additional details about the case and the unanimous U.S. Supreme Court ruling appear in Issue 424 of this Update.
The Sixth Circuit Court of Appeals has determined that the Roskam Baking Co. did not infringe a trademark by using the term “Texas Toast” in selling its packaged croutons. T. Marzetti Co. v. Roskam Baking Co., No. 10-3784 (6th Cir., decided May 25, 2012). Marzetti apparently began using the Texas Toast mark for its frozen garlic bread in 1995 and then adopted the term for use with a crouton product sold in 2007. The company attempted to register the mark in 2009, but the applications were initially denied “because of the potential likelihood of confusion with the mark Texas toast for bakery goods.” Thereafter, they were approved for publication as, “at a minimum, suggestive.” The defendant filed an opposition to the trademarks in 2010, and Marzetti, learning about the company’s Texas Toast croutons, filed this trademark infringement action. The Sixth Circuit agreed with the district court that the mark is not…
A California resident has filed a putative class action against Starbucks Corp. alleging that the company deceived consumers by failing to disclose that some of its products were made with cochineal extract, a common food-coloring ingredient made from crushed insects. Anderson v. Starbucks Corp., No. BC485438 (Cal. Super. Ct., Los Angeles Cty., filed May 25, 2012). Seeking to represent a nationwide class and statewide subclass of consumers, the plaintiff claims that she and the class members, had they known about the company’s use of the ingredient, would not have purchased the products for a number of reasons, including objections to consuming animal products, allergic responses to the ingredient or “sheer disgust.” Alleging violations of the California Unfair Business Practices Act and False Advertising Act, unjust enrichment, fraud by omission/concealment, and violation of California’s Consumers Legal Remedies Act, the plaintiff seeks disgorgement, restitution, compensatory and punitive damages, payment to a cy pres fund,…
The California Agricultural Labor Relations Board has filed a petition for injunctive relief against a Ventura County strawberry farming operation alleging unfair labor practices and seeking to stop the respondent from interfering with employees’ free exercise of rights under the labor code. State v. Montalvo Farms, LLC, No. 56-2012-00416985 (Cal. Super. Ct., Ventura Cty., filed May 9, 2012). According to the petition, the farm hires Mixteco farmworkers, most of whom speak neither English nor Spanish. Due to language constraints, these workers allegedly endure “worse working conditions than other agricultural workers, including pervasive undercounting of their strawberry boxes picked, supervisors who charge for rides to work, injuries on the job that are ignored, and outright discrimination due to their inability to speak Spanish fluently.” One Mixteco worker, who is fluent in Mixteco and Spanish, apparently worked at the farm for several years and became a spokesperson for the Mixteco workers. He…
A federal court in California has dismissed with prejudice a putative class action filed in March 2012 against the companies that make a line of SoBe® beverages known as 0 Calories Lifewater®. Hairston v. S. Beach Beverage Co., Inc., No. 12-1429 (C.D. Cal., decided May 18, 2012). Further details about the case appear in Issue 429 of this Update. According to the court, state-law consumer-fraud claims based on the use of fruit names to describe the different Lifewater flavors and the use of common vitamin names instead of the vitamins’ chemical names are preempted by federal law which allows both types of labeling. Food and Drug Administration (FDA) regulations, said the court, “explicitly permit manufacturers ‘to use the name and images of a fruit on a product’s packaging to describe the characterizing flavor of the product even where the product does not contain any of that fruit, or contains no fruit…
JibJab Media Inc., a digital media company known for its photo cut-out animated videos sometimes used as political satire, has filed a trademark infringement suit against White Castle, alleging that the fast-food chain has infringed its trademarks by launching a social media ad campaign called “Jib Jab Chicken Ring” to promote its “chicken rings” menu item. JibJab Media Inc. v. White Castle Mgmt. Co., No. 12 4178 (C.D. Cal., filed May 14, 2012). According to the complaint, JibJab allows paid subscribers “to personalize videos and images by uploading digital photos and inserting images of faces into JIBJAB® content.” White Castle allegedly named its promotion with the JIBJAB mark, and its online application “copies the look and feel of JibJab’s cut-out animation style and further mimics JibJab’s personalized content by offering users the ability to upload digital photos and insert faces into these video templates.” White Castle also allegedly “explicitly announced that…
