California resident Tricia Ogden has filed a putative class action in federal court against Bumble Bee Foods, LLC, alleging that it misbrands its seafood products by claiming they “are an excellent and affordable source of protein, nutrients and Omega 3 fatty acids” and “Rich in Natural Omega-3.” Ogden v. Bumble Bee Foods, LLC, No. 12-01828 (N.D. Cal., filed April 12, 2012). The only injury apparently alleged is economic, i.e., “Plaintiff would have foregone purchasing Defendant’s products and bought other products readily available at a lower price,” and “Plaintiff would not have purchased Defendant’s Misbranded Food Products had he [sic] known they were not capable of being legally held or sold.” According to the complaint, such representations and labeling establish that the company’s products are drugs under federal law “because they are intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease” and are sold without prior Food and…
Category Archives 9th Circuit
A federal court in California has granted in part and denied in part the defendant’s motion to dismiss claims that its product labels, ads and Website representations for Muscle Milk® ready-to-drink beverages and snack bars violate state unfair competition and false advertising laws and the California Consumers Legal Remedies Act, and constitute fraud, negligent misrepresentation and unjust enrichment. Delacruz v. Cytosport, Inc., No. 11-3532 (N.D. Cal., decided April 11, 2012). While the court determined that the plaintiff has standing to pursue the putative class claims and that the claims are not preempted by federal law nor should be stayed under the primary jurisdiction doctrine, it found many of her claims insufficiently pleaded. According to the court, the only claim that survives the motion to dismiss alleges that the term “healthy fats” on the 14-ounce Muscle Milk® ready-to-drink label could constitute deceptive product labeling, because “[a] reasonable consumer would be likely…
Under a court order preliminarily approving a settlement of consumer fraud claims involving purported health benefit labeling used to sell Diamond Foods walnuts, the class notification program has apparently begun. Zeisel v. Diamond Foods, Inc., No. 10-01192 (N.D. Cal., preliminary approval order entered January 30, 2012). The court previously certified a nationwide class of consumers who have until July 30, 2012, to opt out of or object to the settlement. Additional details about the certification ruling appear in Issue 397 of this Update. The deadline for filing a claim is September 7. While the company admits no wrongdoing, it has ceased using the disputed product labels and has removed a “Live Well” section from its website. It also agreed to cease using unqualified health claims, but reserves “the right to use the FDA-approved qualified health claim for walnuts, any language or symbols developed by or in conjunction with the American…
The insurance carriers for Rubio’s Restaurant have filed a motion for summary judgment in a dispute with the company that insured the restaurant’s fish supplier, following the settlement of claims pursued by a restaurant patron who alleged that he has permanent and severe neurological injuries from exposure to a toxin from the mahi mahi in a Rubio’s fish burrito. Fireman’s Fund Ins. Co. v. Nationwide Mut. Fire Ins. Co., No. 11-0114 (S.D. Cal., motion filed April 9, 2012). While the patron and his wife reportedly sought $7 million in damages, the settlement amount remains undisclosed. According to the plaintiffs, the defendant must reimburse them for the costs of defending the restaurant and the amounts they contributed to the settlement on the restaurant’s behalf. The restaurant was evidently an additional insured under the defendant’s policy with the fish supplier, and the plaintiffs argue that a duty to defend exists when there…
A California superior court has dismissed with prejudice putative class claims filed against McDonald’s Corp. seeking to enjoin the company from advertising Happy Meals® to children featuring toys. Parham v. McDonald’s Corp., No. 10-506178 (Cal. Super. Ct., San Francisco Cty., decided April 4, 2012). Additional information about the case appears in Issues 375, 391 and 420 of this Update. While the court did not explain why it sustained the company’s demurrers to the plaintiff’s first, second and third causes of action, it did so without giving the plaintiff leave to amend her complaint. According to the Center for Science in the Public Interest (CSPI), which was representing the plaintiff, consideration is being given to filing an appeal. In its memorandum of law in support of its demurrers, the company argued that the plaintiff failed to state a claim for relief under the state’s Unfair Competition Law, Consumers Legal Remedies Act…
A federal court in California has granted in part and denied in part the motion to dismiss filed by Quaker Oats in consolidated cases alleging that the company falsely advertises products such as granola bars and instant oatmeal containing small amounts of trans fats as healthy. In re: Quaker Oats Labeling Litig., No. 10-502 (N.D. Cal., decided March 28, 2012). According to the court, the plaintiffs’ “primary contention” is that consuming “any amount of artificial ‘trans fat’ is unhealthy, and that therefore various aspects of the labeling on Quaker’s products” are false and misleading under California law. The court earlier determined that some of the claims were preempted by federal law. Additional information about the litigation appears in Issue 369 of this Update. Regarding the plaintiffs’ expanded pleadings, which complain of “various additional statements and images on Chewy Bars, Instant Oatmeal, and Oatmeal To Go Bars,” the court refused to…
Two California men who allegedly worked as cooks at a Riverside County Olive Garden have filed a putative class action as private attorneys general under the California Labor Code, claiming that they performed off-the-clock work, were not provided meal or rest breaks as required by law or paid overtime, and had the cost of shoes deducted from their paychecks. Romo v. GMRI, Inc., No. RIC1203891 (Cal. Super. Ct., Riverside Cty., filed March 19, 2012). They also claim that their employer failed to pay them promptly as required by law when they left their jobs. They seek to represent all non-exempt or hourly paid Olive Garden employees in the state. According to the complaint, the off-the-clock and overtime work the plaintiffs performed was necessitated due to the volume of work and frequent understaffing. Claiming unpaid overtime, unpaid minimum wages, non-compliant wage statements, unlawful deductions, and wages not timely paid upon termination,…
A company that insured Basic Food Flavors Inc. has asked a court to approve its settlement in a coverage dispute concerning a 2010 Salmonella outbreak involving hydrolyzed vegetable protein, a flavorings ingredient used in processed foods. Employers Fire Ins. Co. v. Basic Food Flavors Inc., 10-1109 (D. Nev., motion to approve settlement filed March 21, 2012). The ensuing recall apparently affected more than 100 of Basic Food’s customers, in addition to downstream suppliers, distributors and retailers. Under the agreement, the insurance company agreed to pay its coverage limits of $11 million. According to a news source, a neutral administrator has approved more than $34 million in claims against Basic Food. See Law 360, March 22, 2012.
A California resident has filed a putative class action in federal court against the Jamba Juice Co., alleging that it falsely advertises its fruit 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., filed March 12, 2012). Plaintiff Kevin Anderson brings the action in federal court under the Class Action Fairness Act, claiming that the damages will exceed $5 million and that the class includes more than 100 individuals who have citizenship diverse from that of the defendant. Anderson alleges that he and a nationwide class of consumers “did not receive the benefit of their bargain when they purchased the smoothie kits. They paid money for a product that is not what it claims to be.” Contending that the defendant “is a leading healthy…
A federal court in California has refused to dismiss most of the putative class claims filed by a consumer against a company that made an alcoholic beverage containing high levels of caffeine, finding that a federal alcohol labeling law did not preempt state-law claims based on labeling or advertising and that the allegations of economic injury are sufficient to establish standing under California’s Unfair Competition Law (UCL). Cuevas v. United Brands Co., Inc., No. 11-991 (S.D. Cal., order entered March 8, 2012). The defendant manufactured and sold JOOSE®, a flavored beverage with about 125 mg caffeine and 9.9 to 12 percent alcohol, from 2007 until it voluntarily removed the product from the market in December 2010 after receiving a warning letter from the Food and Drug Administration (FDA). The plaintiff allegedly purchased the product on two occasions in April and August 2010 and subsequently filed suit alleging that the defendant violated…
