The Ninth Circuit Court of Appeals, in a divided en banc ruling, has determined that while an agreement between competitors to share revenues during a labor dispute is not immune from antitrust laws, the district court properly denied a challenge to an agreement between California supermarkets as a per se violation of the Sherman Act or on the basis of a “quick look” antitrust analysis; the Ninth Circuit found that a truncated or abbreviated review process is insufficient to determine whether this type of agreement has affected competition in the relevant market. California v. Safeway, Inc., No. 08-55671 (9th Cir., decided July 12, 2011) (en banc). Details about the court’s previous ruling that the agreement was anticompetitive appear in Issue 361 of this Update. The court’s majority “expressed no opinion on the legality of the arrangement under the rule of reason” (the traditional test for violations of federal antitrust laws) because…
Category Archives 9th Circuit
A multidistrict litigation court in Missouri has denied motions for class certification in 24 transferred cases against companies that make baby bottles and sippy cups allegedly containing bisphenol A (BPA). In re: Bisphenol-A (BPA) Polycarbonate Plastic Prods. Liab. Litig., MDL No. 1967 (W.D. Mo., decided July 5, 2011). The plaintiffs sought to certify various classes, including individual state classes and multi state classes as to certain claims and defendants. The court focused on the commonality, predominance and superiority prongs of class certification to conclude that differences in state laws and facts unique to each putative class member rendered the claims unsuitable for class treatment. Still, the court dismissed the requests to certify individual statewide classes without prejudice, finding it appropriate to allow the transferor courts to determine whether these classes met the certification requirements when the cases are returned to their jurisdictions. The court also indicated that it would delay remand…
A federal court in California has approved a non-monetary settlement of a class action alleging that Unilever U.S., Inc.’s health-related claims for margarine products containing trans fats were false and misleading. Rosen/ Red v. Unilever U.S., Inc., Nos. 09-02563, 10-00387 (N.D. Cal, decided June 21, 2011). Additional information about the settlement appears in Issue 398 of this Update. Unilever denied any wrongdoing but agreed to reformulate its stick and spread products to remove partially hydrogenated vegetable oils. A number of excluded, individual claims against the company will not be affected by the settlement.
Plaintiffs alleging that they were misled by the purportedly unsubstantiated claims Nestlé USA Inc. made about its Juicy Juice® Brain Development and Immunity products have filed an appeal to the Ninth Circuit Court of Appeals from a district court order dismissing their consolidated class action. Chavez/ Bonsignore v. Nestlé USA, Inc., No. 09-9192 (C.D. Cal., notice of appeal filed June 22, 2011). The lower court apparently gave the plaintiffs two opportunities to state a cognizable claim under California’s unfair competition and false advertising laws before dismissing the action in May 2011. According to the court, the plaintiffs’ second amended complaint “as with previous versions of the plaintiffs’ pleading in this action, is that it lumps together distinct products and multiple factual allegations without giving the reader a clear sense of which allegations support which specific claims.” See Law360, June 23, 2011.
A woman who claims she consumed Ramona’s burritos believing they were low in calories and sodium, has filed a putative class action alleging that the company mislabeled its products and that the burritos were much higher in calories and sodium than individual labels in and before 2006 and bulk labels indicated. Solomon v. Ramona’s Mex. Food Prods., Inc., No. BC463914 (Cal. Super. Ct., Los Angeles Cty., filed June 17, 2011). Concerns about obesity and an inner ear disorder exacerbated by high sodium intake allegedly led the plaintiff to purchase and consume one to two burritos daily beginning in 2006. At that time, single and multiple packages purportedly indicated that each burrito contained 170 calories and 270 mg sodium. Individual burritos were allegedly re-labeled in 2010 to 340 calories and 580 mg sodium, while the bulk packaging continued to carry the lower values. According to the complaint, “Plaintiff is informed and believes…
A Pennsylvania resident has sued Safeway, Inc. on behalf of a putative nationwide class of consumers who placed online orders for the home delivery of groceries and were allegedly charged about 10 percent more for each item in addition to a delivery fee. Rodman v. Safeway, Inc., No. 11-03003 (N.D. Cal., filed June 17, 2011). According to the complaint, Safeway assures consumers that they will pay the same prices for home-delivered goods that they would pay in the store. An “FAQ” section of Safeway’s website allegedly states “You will be charged the prices charged in the store on the day your order is picked and delivered.” Believing that the prices charged for his initial online order were high, the plaintiff apparently compared the prices for his second order with in-store prices and found that prices for 10 of 14 items included the “secret” add-on cost. Alleging breach of contract, violations…
Alleging that tissue samples from Virtue Calves veal sold for slaughter since 1995 have contained illegal drug residues, the U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) has sued the producer and its owners in a California federal court seeking an order to stop the defendants from selling food containing an unsafe new animal drug, deemed adulterated under federal law. United States v. Virtue, No. 11-902 (E.D. Cal., filed June 22, 2011). According to the complaint, FSIS identified in defendants’ veal calves desfuroylceftiofur, gentamicin, neomycin, penicillin, tetracycline, sulfadiazine, and sulfamethoxazole. While the latter two drugs have never been approved for use on any animals, the remaining drugs have no legal tolerances approved for use in calves, according to FSIS. The agency contends, “Defendants have a long history of illegal drug residues in the edible tissues of the veal calves they sell for use as human food.” The defendants were…
The parties to putative nationwide class actions alleging that Unilever U.S., Inc. falsely advertised that its margarine spreads, including Country Crock® and I Can’t Believe It’s Not Butter®, were good for cardiovascular health are seeking final court approval of a non-monetary settlement that will require the company to remove the trans fat from its products. Rosen/Red v. Unilever U.S., Inc., Nos. 09-02563, 10-00387 (N.D. Cal, joint motion filed June 6, 2011). Class counsel will receive up to $490,000 in fees if the settlement is approved, and the named plaintiffs will receive up to $4,500. Class members will give up their right to any other equitable or monetary relief. The joint motion contends that the product reformulation is a substantial benefit to class members because the company is “the world’s leading manufacturer of margarine” and that requiring the company to do this “will substantially benefit its customers and will encourage competitors to…
A federal court in California has denied Safeway, Inc.’s motion to dismiss or stay proceedings alleging that it has an obligation to use information in its loyalty card customer database to provide email notice about produce recalls ordered by the Food and Drug Administration (FDA) or U.S. Department of Agriculture. Hensley-Maclean v. Safeway, Inc., No. 11-1230 (N.D. Cal., order entered June 13, 2011). Additional details about the case, which was first filed in state court, appear in Issue 380 of this Update. The grocery company argued that the “primary jurisdiction doctrine” or “equitable abstention” required the court to dismiss or stay the litigation “until and unless regulatory agencies have had the opportunity to consider and adopt appropriate rules governing the obligations a grocery store has with respect to providing its customers notice of such recalls.” According to Safeway, the Food Safety Modernization Act requires FDA to develop notice guidelines by…
A California court of appeal has ruled valid the methods by which the state updates the list of chemicals known to cause cancer or reproductive toxicity under the Safe Drinking Water and Toxic Enforcement Act (Prop. 65). Cal. Chamber of Commerce v. Brown, No. A125493 (Cal. Ct. App., decided June 6, 2011). Products containing these chemicals must be labeled with warnings to consumers. The law requires the state to update the Prop. 65 list annually and authorizes Cal/EPA’s Office of Environmental Health Hazard Assessment (OEHHA) to add chemicals by one of three methods, including one specifically targeted in the lawsuit. The Chamber of Commerce challenged the method that requires adding to the list those chemicals identified under the Labor Code as causing cancer or reproductive toxicity. According to the Chamber, this method could be used to place chemicals on the initial list only. It sought a declaration to this effect…
