Briefing has been completed before the U.S. Supreme Court (SCOTUS) on a petition seeking review of the Ninth Circuit Court of Appeals ruling upholding California’s prohibition on the sale of food produced by force feeding birds to enlarge the liver beyond normal size. Association des Éleveur de Canards des d’Oies du Québec v. Harris, No. 13-1313 (U.S., distributed for Sept. 29, 2014, conference on July 16). Additional details about the Ninth Circuit’s ruling appear in Issue 497 of this Update. Joining the Canadian and New York foie gras producers that filed the certiorari petition are the attorneys general (AGs) of 13 states. Their amici curiae brief claims that the petition presents an issue of “exceptional importance to the preservation of state sovereignty,” namely, that the lower court’s decision “allows the states to engage in economic isolationism, set themselves against one another, and balkanize the nation, thus giving rise to trade wars…
Category Archives U.S. Circuit Courts
A federal court in California has granted final approval to the nationwide class settlement of claims that the company which makes Muscle Milk® products deceived consumers by labeling them with the terms “Healthy, Sustained Energy” and “Healthy Fats.” Delacruz v. CytoSport, Inc., No. 11-3532 (N.D. Cal., order entered July 1, 2014). Additional information about the litigation and settlement appears in Issues 403, 436, 475, and 505 of this Update. Under the agreement, CytoSport will pay $1 million to eligible class members and cease using the allegedly deceptive terms on all newly printed packaging for certain products. The company may continue to use the designation “Healthy Fats” on the packaging for Muscle Milk® RTD and related products if they contain “fewer than 0.5 grams of saturated fat per serving, or CytoSport also includes the words ‘See nutrition information for saturated fat content’ in connection with the words ‘Healthy Fats.’” The court also awarded…
Poultry manufacturer Foster Farms has filed an amended complaint in its lawsuit against its Lloyd’s of London insurers, which had rejected its $14.2 million claim for economic losses resulting from a government-mandated shutdown of one of its facilities. Foster Poultry Farms Inc. v. Certain Underwriters at Lloyd’s, London, No. 14–953 (E.D. Cal., amended complaint filed July 3, 2014). Foster Farms had paid almost $600,000 for a yearlong product contamination policy to three insurers operating on the Lloyd’s of London insurance market, and the company later filed a claim to cover losses from the forced closure, including costs from the 1.3 million pounds of product it destroyed. The insurers rejected the claim because Foster Farms did not initiate the recall of its chicken, arguing instead that the policy covered economic losses associated with a voluntary recall from customers rather than losses from the destruction of products still in its warehouse. In a…
The Beech-Nut Nutrition Co. has filed a complaint against an organic baby-food maker seeking a declaration that Beech-Nut has not infringed any of Plum PBC’s trademarks and that the trademarks Plum has asserted to the word “JUST” and certain phrases are invalid. Beech-Nut Nutrition Co. v. Plum PBC, No. 14-0791 (N.D.N.Y., filed June 30, 2014). According to the complaint, Plum sent Beech-Nut a cease-and-desist letter in June 2014 shortly after Beech-Nut launched a new line of whole fruit and vegetable foods for babies including the word “just” on product labels and advertised them under a promotional campaign “This is not baby food” and “This is real food for babies.” The letter allegedly demanded that Beech-Nut stop infringing Plum’s “JUST” trademark and using the promotional phrases. Beech-Nut contends that (i) the word “just” is simply descriptive and generic; (ii) Plum does not use the trademark symbol beside the word on its product…
A federal court in Georgia has entered a number of orders in criminal proceedings, expected to go to trial July 14, 2014, against the former owner of the Peanut Corp. of America, implicated in a 2008-2009 nationwide Salmonella outbreak that sickened hundreds and led to at least nine deaths; among the orders was one denying the prosecution’s request for a psychiatric examination of Stewart Parnell. United States v. Parnell, No. 13-cr-12 (U.S. Dist. Ct., M.D. Ga., Albany Div., order entered July 10, 2014). Details about the criminal indictment appear in Issue 472 of this Update. While Parnell’s expert, whose testimony as to the defendant’s purported ADHD condition has been excluded, described Parnell as “fidgety, restless, excitable,” the court apparently found that this testimony did not otherwise indicate that Parnell would be unable to focus at trial. “Even if Stewart Parnell has an attention deficit disorder, Dr. Conley testified he is…
A federal court in New Jersey has denied without prejudice the motion to certify three classes of multi-state claimants alleging that Beam Global Spirits & Wine falsely markets and sells its “Skinnygirl Margarita” product as “all natural” and a “healthy alternative to other commercial Margarita products.” Stewart v. Beam Global Spirits & Wine, Inc., No. 11-5149 (U.S. Dist. Ct., D.N.J., order entered June 26, 2014). Under Third Circuit Court of Appeals precedent, the court determined that class membership, essentially via affidavit relying on potentially faulty memory, was not sufficiently ascertainable. The plaintiffs will have the opportunity to renew their motion at any appropriate time “specifically taking into account the rulings in Marcus, Hayes, and Carrera.” Among other matters, the court rejected the plaintiffs’ claim that the affidavits could be cross-checked using social media—for example, the “likes” or comments on the defendants’ Skinnygirl Facebook pages, or the companies’ consumer email records—or…
A California federal court has dismissed with prejudice a putative class action alleging that Hain Celestial Group Inc. mislabels its vegetable juice products as “organic” and “raw” one day before a proposed class action was filed against the company in New York federal court alleging similar claims about its baby foods and home care products. Alamilla, et al. v. Hain Celestial Group, Inc., No. 13–5595 (N.D. Cal., order entered July 2, 2014); Segedie v. The Hain Celestial Group, Inc., No. 14–5029 (S.D.N.Y., filed July 3, 2014). The California court dismissed the case based on two articles cited and incorporated into the complaint concluding that “pressurization has ‘little or no effects’ on nutritional and sensory quality aspects of foods,” which contradicted the plaintiffs’ argument that the treatment deprives the juice of nutritional value and that the company’s representations that it does not cook the juice are thus misleading. As a result of…
A California federal court has granted motions to amend the judgment in two cases previously dismissed to accord primary jurisdiction to the U.S. Food and Drug Administration (FDA), each alleging that the defendants mislabeled their food products as including “evaporated cane juice” (ECJ) rather than the more common term, sugar. Swearingen v. Santa Cruz Natural Inc., No. 13–4291 (U.S. Dist. Ct., N.D. Cal., order entered July 1, 2014); Figy v. Amy’s Kitchen Inc., No. 13–3816 (U.S. Dist. Ct., N.D. Cal., order entered July 7, 2014). The court cited “the unique circumstances,” “the potential prejudice to plaintiff,” and “the apparent lack of prejudice to the defendant” in amending its previous decisions to dismiss the cases without prejudice rather than stay them. The plaintiffs had argued that allowing the dismissal to remain rather than issuing a stay through the end of 2014 would likely result in the loss of a year of…
A pair of plaintiffs has filed putative class actions against Chobani LLC and Fage Dairy Processing SA in New York federal court claiming that the yogurt producers deceptively marketed yogurt as healthy despite its high sugar content. Stoltz v. Chobani LLC, No. 1:14-cv-3827 (E.D.N.Y., filed June 19, 2014); Stoltz v. Fage Dairy Processing SA, No. 1:14-cv-3826 (E.D.N.Y., filed June 19, 2014). The nearly identical suits allege that Chobani and Fage used a label intended “to create consumer confusion by causing purchasers to impute any meaning to the 0 percent that consumers wish, such as that the products lack sugar, carbohydrates, calories or any other content which a consumer may believe is unhealthy,” according to the complaint against Fage. The complaints include pictures of the defendants’ products and pictures of competitors’ products to illustrate the industry standard of including what nutrition levels the “0 percent” refers to, such as fat or…
Following a hearing on the admissibility of expert testimony proffered as to Stewart Parnell’s ability to form the intent to commit alleged crimes arising from a national Salmonella outbreak linked to the Peanut Corp. of America, the company he formerly owned, a federal court in Georgia has excluded the expert, finding his testimony unhelpful and lacking a link to the criminal allegations. United States v. Parnell, No. 13-12 (U.S. Dist. Ct., M.D. Ga., Albany Div., order entered June 24, 2014). Details about the criminal charges appear in Issue 472 of this Update. Clinical psychologist Joseph Conley would have testified that Parnell has an Attention Deficit Hyperactivity Disorder condition that was so severe he likely never read, nor understood the significance of, many of the emails on which the government’s case relies. According to the court, “Dr. Conley’s testimony is a ‘diminished capacity defense’ designed to show that Parnell did not…
