Category Archives 9th Circuit

The pesticide-exposure claims of Nicaraguan banana-plantation workers were dismissed in two cases after a hearing that began April 21, 2009, in a state court in Los Angeles, California. Meija v. Dole Food Co., No. BC340049 (Cal. Super. Ct., Los Angeles Cty.); Rivera v. Dole Food Co., No. BC379820 (Cal. Super. Ct., Los Angeles Cty.). Additional details about the events leading to the court’s show-cause order and hearing appear in issue 297 of this Update. The court agreed with Dole Food Co. allegations that Nicaraguan lawyers, seeking to collect millions of dollars in damages from the company, recruited poor men to pose as plantation workers and claim that pesticide exposure caused their sterility. Dole introduced evidence showing a decade-long conspiracy to defraud U.S. companies and perpetuate a massive fraud on the court. Dole alleged that the attorneys intimidated witnesses and paid plaintiffs, showed them videos depicting plantation life, falsified sterility documents,…

Finding that a trial court erred in admitting evidence and instructing the jury in a lawsuit involving claims that milk permeate sickened or killed calves that were fed the product as a source of dietary energy, protein and minerals, the Ninth Circuit Court of Appeals has returned a breach-of-warranties lawsuit to the lower court for a new trial. Millenkamp v. Davisco Foods Int’l, Inc., Nos. 07-35299 & -35318 (9th Cir., decided April 14, 2009). The defendant allegedly advised the owners of a cattle operation about the use of milk permeate as a food source for their calves and then sold the product to them. When their calves fell ill and some died, the plaintiffs learned that they had stored the product at an improper temperature, “which allowed lactose to ferment into a harmful lactic acid that caused the calves to fall prey to rumen acidosis.” The plaintiffs sued for breach…

A federal court in California has approved the settlement of class claims against Wendy’s International, Inc. involving its use of trans fats in fried food products. Yoo v. Wendy’s Int’l, Inc., No. 07-04515 (C.D. Cal., filed March 13, 2009). In its revised order and final judgment, the court overruled objections to the settlement, certified a nationwide settlement class and dismissed the complaint with prejudice. The defendant was ordered to add $450,000 plus interest to the $1.8 million already in an escrow account to be divided equally among the American Cancer Society, American Diabetes Association, American Dietetic Association, and American Heart Association. The court also ordered the defendant to ensure that its fried foods are cooked in oil containing a level of trans fat per serving that “can be represented as 0 grams of trans fat,” under Food and Drug Administration regulations. Wendy’s was further ordered to “pay for and subject its…

A California judge has reportedly ordered the parties to litigation over the exposure of banana-plantation workers to a pesticide that allegedly caused their sterility to explain why two lawsuits should not be dismissed as a sanction for the alleged misconduct of the plaintiffs and their lawyers. Mejia v. Dole, No. BC340049 (Cal. Super. Ct., Los Angeles Cty.). In 2008, a jury awarded six Nicaraguan workers $5.8 million in damages in the first of several such cases to be tried in the United States; the court reduced the verdict by half, and the case is on appeal. Thereafter, the defendant began filing the depositions of Nicaraguan witnesses who claimed that (i) some of the plaintiffs had never worked on banana farms, (ii) work certificates and lab reports had been falsified, and (iii) some of the plaintiffs have children, despite their sterility claims. The court reportedly stayed the personal-injury lawsuits and ordered…

A California appeals court has determined that canned tuna sold in the state does not need a mercury warning label under Proposition 65 (Prop. 65) for reproductive toxicity because the mercury is naturally occurring and thus falls within a Prop. 65 exemption. People ex rel. Brown v. Tri-Union Seafoods, LLC, No. A116792 (Cal. Ct. App., decided March 11, 2009). A trial court ruled in 2006 that the labels were not required because (i) federal law preempts state action on methylmercury in fish; (ii) the trace levels of mercury in canned tuna were too insignificant to require warnings; and (iii) the mercury is naturally occurring. Further information about that ruling appears in issue 170 of this Update. The appeals court specifically considered and based its ruling on the last basis for decision only, finding that substantial evidence supported the trial court’s determination as to the source of mercury contamination in fish.…

A federal court has granted the meat industry’s motion for a preliminary injunction and ordered California not to enforce a law, adopted on January 1, 2009, that would have required the immediate euthanization of nonambulatory animals in slaughterhouses regulated by the Federal Meat Inspection Act. Nat’l Meat Ass’n v. Brown, No. 08-1963 (E.D. Cal., decided February 19, 2009). The court found that the plaintiffs had a strong likelihood of success on the merits of their claim that the state law is expressly and impliedly preempted by the federal statute and that they were likely to suffer irreparable harm because some proscribed conduct is punishable by criminal fines and the state is immune from paying for other potential monetary losses. Balancing the public interests involved, the court found that the safety of the public food supply and the humane treatment of animals are adequately protected by the federal law. According to a…

A federal court in Washington recently approved a class action settlement in a case filed against egg farmers who allegedly engaged in unfair, deceptive and improper conduct in the marketing and sale of omega-3 fortified eggs. Schneider v. Wilcox Farms, Inc., No. 07-01160 (W.D. Wash., filed January 12, 2009). As we reported in issue 226 of this Update, the complaint alleged that the eggs the defendant marketed and sold contained omega-3 fatty acids “without proven cardiovascular benefits” and charged a premium for them, while taking advantage of consumers’ limited knowledge about different kinds of omega-3 and “artificially inflating the perceived amount of beneficial omega-3 fatty acids” in their product. Without conceding liability, the defendants agreed to pay $2,500 to each of the two named plaintiffs and attorney’s fees of $160,000. The order dismisses the plaintiffs’ claims with prejudice and bars members of the settlement class, defined as “[a]ll persons who…

A putative class action filed in a California federal court against Snapple Beverage Corp. alleges that the company misleads consumers by labeling as “All Natural” products containing high fructose corn syrup (HFCS) and using the names of fruits for some products that “do not contain any significant amount of the fruit listed in the product’s name.” Von Koenig v. Snapple Beverage Corp., No. 09-00337 (E.D. Cal., filed March 4, 2009). The named plaintiff seeks to certify two subclasses of California consumers “to redress Defendant’s deceptive, misleading and untrue advertising and unlawful, unfair and fraudulent business acts and practices.” One subclass would involve those who purchased the company’s “All Natural Products” that contained HFCS; the other would include those who purchased “Fruit Products . . . which included the name or picture of a fruit in the product name or label but which did not contain a substantial amount of that…

California consumers have filed a putative class action against Van’s International Foods and retailers Whole Foods Market California, Inc., Trader Joe’s Co., and Costco Wholesale Co., alleging that Van’s frozen waffles did not accurately state the calorie and nutrient content throughout 2007 and into 2008. Hodes v. Van’s Int’l Foods, No. 09-01530 (C.D. Cal., filed March 4, 2009). According to the complaint, which seeks certification of a nationwide class, the sale in late 2006 of the company that made Van’s frozen waffles involved a change in personnel that required “reverse engineering the recipes for Van’s existing product lines.” That process allegedly resulted in findings that the nutritional information on the product packaging “contained numerous substantial inaccuracies.” The calorie, fat, sodium, carbohydrates, calcium, iron, and fiber content listed purportedly varied by 20 to 100 percent or more from the actual nutritional values. The plaintiffs allege that the company continued to “distribute…

Federal investigators seeking to crack down on corruption in California’s tomato-processing sector have apparently secured guilty pleas from two industry employees, one with a tomato paste supplier and the other with a processed tomato purchaser. Jennifer Dahlman, who worked for a California company under investigation for alleged bribery, price-fixing and mislabeling, reportedly pleaded guilty to causing the introduction of adulterated and misbranded food into interstate commerce with intent to defraud. Dahlman apparently mislabeled products that should have been discarded because of high mold content, purportedly at the direction of company managers, thus giving her company an unfair advantage over competitors and leading to increased consumer prices for processed tomato products, such as sauces, soups and salsas. While she is cooperating with authorities, Dahlman faces up to three years in prison. According to U.S. attorneys involved in the investigation, the mislabeled products posed no health hazard to consumers. James Wahl, who formerly…

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