Advocacy organizations including the Center for Food Safety and Food & Water Watch have filed an amicus brief to support an animal rights organization coalition’s challenge to a Utah law that criminalizes undercover investigations of meat and poultry processing facilities. Animal Legal Def. Fund v. Herbert, No. 13-0679 (D. Utah, brief filed December 17, 2013). Contending that the government has failed to prevent illegal animal-handling practices that ultimately threaten consumer safety and that consumers have the right to know how food is produced, the brief calls for the court to decide the challenge to Utah’s “ag-gag” law, Utah Code Ann. § 76-6-112, on the merits. Among other matters, amici refer to the undercover investigation conducted by the Humane Society of the United States in 2007 of a Hallmark/Westland facility and its conclusion in a U.S. Department of Agriculture ground-beef recall over concerns that the meat “did not receive complete and proper inspection…
Category Archives U.S. Circuit Courts
A federal court in California has dismissed, without prejudice, the action for declaratory and injunctive relief brought against the San Francisco city attorney, seeking to halt his investigation of Monster Beverage’s energy drinks and efforts to regulate their formulation, labeling and promotion. Monster Beverage Corp. v. Herrera, No. 13-0786 (C.D. Cal., decided December 16, 2013). Additional information about the lawsuit appears in Issue 482 of this Update. The matter was before the court on the city attorney’s renewed motion to dismiss. Essentially, the court determined that the Younger abstention doctrine, which “counsels federal-court abstention when there is a pending state proceeding,” applied because a state action brought by the city attorney is pending, the action implicates important state interests, not all of the city attorney’s claims are preempted under federal food-labeling laws, and the state proceedings will be adequate for the consideration of Monster’s constitutional claims. Details about the city…
The Seventh Circuit Court of Appeals has determined that Phusion Projects’ commercial liability insurance carriers have no duty to defend the company in actions alleging that intoxication attributable to consumption of its Four Loko® alcoholic product caused death and personal injury. Netherlands Ins. Co. v. Phusion Projects, Inc., No. 12-1355 (7th Cir., decided December 16, 2013). Applying Illinois law, the court ruled that the liquor liability exclusions in the relevant insurance contracts unambiguously excluded coverage for bodily injury or property damage when the company “may be held liable by reason of: (1) causing or contributing to the intoxication of any person.” So ruling, the court affirmed the lower court’s grant of the insurance carriers’ motion for summary judgment. Issue 508
A federal court in Georgia has called for the prosecutors and defendants in a criminal action arising from the 2009 nationwide Salmonella outbreak linked to the peanut products made by the Blakely, Georgia, Peanut Corp. of America to propose a scheduling order and trial dates between July 7, 2014, and August 2014. United States v. Parnell, No. 13-cr-12 (M.D. Ga., order entered December 11, 2013). The case had been set for trial in February. The court also agreed to review in camera affidavits and other supporting documents “to demonstrate why [the defendants’] defenses are antagonistic and mutually exclusive.” Former Peanut Corp. owner Stewart Parnell has requested that the court sever the proceedings which have been brought jointly against him and several company employees. The court further reserved ruling on pending discovery motions and the government’s motion for a competency hearing as to Stewart Parnell. Issue 507
Some four years after the U.S. Equal Employment Opportunity Commission (EEOC) accused several Ruby Tuesday, Inc. restaurants in Pennsylvania and Ohio of engaging in a pattern or practice of age discrimination against 40-year-old or older job applicants, Ruby Tuesday agreed to settle the claims, without admitting any liability. EEOC v. Ruby Tuesday, Inc., No. 09-1330 (W.D. Pa., consent decree approved December 9, 2013). The company will pay $575,000 into a qualified settlement fund account to provide back pay and statutory damages to eligible claimants, designate a decree compliance monitor to ensure compliance with the terms of the agreement, establish hiring and recruitment goals for individuals in the protected age group, adopt and maintain an electronic applicant tracking system, audit compliance, and report to EEOC. The company has also agreed to provide sufficient training regarding the decree, will report age-discrimination complaints to EEOC and retain certain records to resolve claims that…
A federal court in California has dismissed a number of claims with prejudice in the second amended complaint filed on behalf of a putative class alleging that the promotion of various snack products made by Procter & Gamble Co. and Kellogg Co. is false and misleading. Samet v. Procter & Gamble Co., No. 12-1891 (N.D. Cal., order entered December 10, 2013). The complaint challenges “0g Trans Fat,” “evaporated cane juice (ECJ),” “healthy and wholesome,” and “fortification” claims for snack chips, riblets and mixed berry snacks. The plaintiffs also bring slack-fill claims that survive. The court will allow “0g Trans Fat” claims to proceed, finding the allegations sufficient, but dismissed them with prejudice as to Pringles chip products that are “reduced fat” or sold in 100-calorie packs, finding that they have “insufficient fat content to require the disclosure in question.” The court also dismissed with prejudice causes of action based on…
A federal court in Florida has dismissed putative class claims in a consumer-fraud lawsuit to the extent they involve allegedly false “evaporated cane juice” (ECJ) labeling on Amy’s Kitchen food products that the named plaintiff did not purchase, but has otherwise allowed the remaining claims to proceed. Reilly v. Amy’s Kitchen, Inc., No. 13-21525 (S.D. Fla., order entered December 9, 2013). According to the court, in the Eleventh Circuit, plaintiffs have standing to assert claims based only on products they actually purchase thus rejecting the plaintiff’s argument that (i) she could bring claims involving products nearly identical to the purchased product and (ii) the issue was one of typicality and representation best resolved at the class certification stage. Because the plaintiff purchased just three Amy’s Kitchen products with ECJ listed as an ingredient on the label, she will be unable to pursue claims as to 57 other products. The court rejected…
A federal court in New York has certified a consumer-fraud class action against Kangadis Food Inc., d/b/a The Gourmet Factory, alleging that the company falsely labels its products as “100% Pure Olive Oil” when they actually contain the industrially processed substance “olive-pomace oil,” “olive-residue oil” or “Pomace.” Ebin v. Kangadis Food Inc. d/b/a The Gourmet Factory, No. 13-2311 (S.D.N.Y., order entered December 11, 2013). The court approved the named plaintiffs as class representatives and indicated that a memorandum stating the reasons for its ruling “will issue in due course.” Additional information about the lawsuit appears in Issue 492 of this Update. On the day the order issued, the court also filed a memorandum explaining its reasons for dismissing certain claims and allowing others to proceed in an order entered in July 2013. The court dismissed for insufficient pleading the plaintiffs’ New York breach of warranty claims, express and implied; breach…
Citing the settlement of similar class claims in a Florida court and plausibility issues, a federal court in California has dismissed with prejudice a putative class action alleging that companies misbrand products with an evaporated cane juice (ECJ) designation and sell products not meeting the standard of identity for yogurt and milk, including soymilk and almond milk. Ang v. WhiteWave Foods Co., No. 13-1953 (N.D. Cal., decided December 10, 2013). According to the court, the California plaintiffs, who filed their complaint after the class action was filed in Florida, were members of the class, knew about that settlement and had an opportunity to, but did not, object to it. Thus, the court found their ECJ and yogurt claims barred by res judicata. As for claims that consumers are confused by use of the terms “soymilk,” “almond milk,” and “coconut milk” in the names of Silk® products, an alleged violation of…
The Environmental Research Center (ERC) has reportedly filed a lawsuit under Proposition 65 (Prop. 65) against a company that allegedly sells “meal replacement” shakes and “hunger blocker” bars containing lead, a chemical known to California as a reproductive toxicant and cause of cancer. ERC v. Ideal Shape LLC, No. __ (Cal. Super. Ct., Alameda Cty.). Under Prop. 65, the Safe Drinking Water and Toxic Enforcement Act of 1986, private litigants such as ERC may bring enforcement actions after notifying an alleged violator that it has failed to provide warnings with products containing listed chemicals. ERC sent such a letter to Ideal Shape on May 17, 2013, alleging Prop. 65 violations every day since at least May 17, 2010. See Courthouse News Service, November 25, 2013.
