Subject to court approval, Frito-Lay will pay $1.6 million to settle wage-andhour claims filed on behalf of current and former employees who deliver its products to stores and arrange the store displays. Elliott v. Rolling FritoLay Sales, LP, No. 11-1730 (C.D. Cal., filed November 9, 2011). A hearing on the plaintiff’s motion for preliminary approval will be held December 23, 2013. The plaintiff alleged that Frito-Lay did not pay all the wages owed for overtime hours worked, provide duty-free meal periods and rest breaks, provide accurate itemized wage statements, or pay all wages due on cessation of employment to its route sales associates (RSAs), merchandisers and detailers. According to the plaintiff, Frito-Lay calculated overtime pay “using an illegal fluctuating workweek rather than California’s mandated forty hours workweek. The effect of utilizing the fluctuating workweek is that the more hours Plaintiff and RSAs work in excess of forty hours, the lower their…
Category Archives U.S. Circuit Courts
California residents have filed a putative class action against Whole Foods Market, alleging that the company misleads consumers by labeling certain snack products as “All Natural” because they contain “the synthetic chemical ingredient Sodium Acid Pyrophosphate, among other synthetic ingredients (e.g., Maltodextrin).” Garrison v. Whole Foods Mkt., Inc., No. 13-5222 (N.D. Cal., filed November 8, 2013). Seeking to certify statewide and nationwide classes, the plaintiffs claim that they relied on the truthfulness of the “product label’s promise that these Products were ‘All Natural,’” paid a price premium over products that are not all natural, “ingested a substance that was other than what was represented,” and “ingested a product that did not bring the health benefits Defendant promised.” The products at issue include mini muffins, soft-baked cookies and an array of gluten-free products, including apple pie, cheddar biscuits, corn bread, cookies, and cupcakes. While the plaintiffs mention various claims that the…
The Seventh Circuit Court of Appeals has ruled that a district court properly granted Kraft Foods a preliminary injunction against the sale of Cracker Barrel Old Country Store (CBOCS) food products in grocery stores under Kraft’s registered trademark name “Cracker Barrel.” Kraft Foods Group Brands LLC v. Cracker Barrel Old Country Store, Inc., No. 13-2559 (7th Cir., decided November 14, 2013). The court agreed that consumers could be confused when viewing a CBOCS ham label on a grocery store shelf or in a store circular because the words “Cracker Barrel” were larger than “Old Country Store” and Kraft cheeses also carry the “Cracker Barrel” name. While the logos are not the same, the court said that some consumers might believe that both products were made by Kraft. The court weighed the respective harms to both companies and found the potential harm to Kraft greater, because it could be wrongly blamed…
A December 6, 2013, hearing will be held before a Federal court in Georgia on pending pretrial motions in a criminal lawsuit filed against former Peanut Corp. of America officials and employees, including owner Stewart Parnell. United States v. Parnell, No. 13-CR-12 (M.D. Ga., November 5, 2013). The company was the source of a nationwide Salmonella outbreak in 2009, and the 76-count indictment charges four individuals with conspiracy, mail and wire fraud, obstruction of justice, and other counts related to the distribution of adulterated and misbranded food. Among the pending motions are requests for the disclosure of government witnesses and release of Brady materials (exculpatory information).
Wooden Nickel Music, which owns the copyright to the musical composition “Lady” and the sound recording embodying that composition by the group Styx, has filed an infringement action against Anheuser-Busch, LLC (AB) and a film company that purportedly created a video, currently on YouTube, including part of the recording. Wooden Nickel Music v. Anheuser-Busch, LLC, No. 13-8145 (C.D. Cal., filed November 4, 2013). The video, titled “Bud Light Commercial – The Elevator,” features a scheme in which young men cause an elevator with an attractive woman to stop between floors, so one of the men can share a beer and dance with the woman and, in the process, obtain a phone number. “Lady” is one of the songs played during the dance scene. According to the complaint, AB’s associate general counsel claims it has no record of the company “ever having seen the referenced work using Bud Light indicia” and…
A federal court in New Jersey has, on the basis of the primary jurisdiction doctrine, halted proceedings alleging that General Mills misleads consumers by labeling its Kix® cereals with bioengineered corn as “made with all natural corn.” In re General Mills, Inc. Kix Cereal Litig., No. 12-249 (D.N.J., order entered November 1, 2013). Citing rulings from California and Colorado referring the matter to the U.S. Food and Drug Administration (FDA) for resolution, the court stated that “the issue of whether products may be labeled ‘Natural’ when they are made with bioengineered forms of corn falls within the expertise of the FDA and deference to the FDA’s regulatory authority is appropriate here.” Information about the Colorado litigation appears in Issue 492 of this Update. The court “administratively terminated” (i) the action “until such time as the FDA responds to this referral” or the referrals in the two other cases, and (ii) the…
A federal court in Washington has dismissed the second amended consumer fraud complaint filed against Costco Wholesale Corp. concerning its VitaRain® Enhanced Water Beverage; while the court dismissed the complaint without leave to amend, it did not dismiss it with prejudice. Maple v. Costco Wholesale Corp., No. 12-5166 (E.D. Wash., order entered November 1, 2013). The plaintiff claimed that the name “VitaRain” is itself deceptive, and the court disagreed, finding it implausible that it could “deceive a substantial portion of the public into believing that the beverage is ‘full of vitamins only’ or that it is a ‘nutritional’ or ‘healthy’ beverage. The name ‘VitaRain’ is largely nonsensical.” The plaintiff also associated the name with another beverage product containing the word “vitamin,” and the court stated in this regard, “Plaintiff’s claim must be limited to the actual representation, ‘VitaRain’ in this case, and not some imagined representation he arrived at through…
While the Ninth Circuit Court of Appeals has granted the Food and Drug Administration’s (FDA’s) motion for expedited consideration of its emergency motion to stay a district court order establishing rulemaking deadlines under the Food Safety Modernization Act, it denied the stay pending appeal. Ctr. for Food Safety v. Hamburg, No. 13-16841 (9th Cir., order entered November 4, 2013). Details about the motion appear in Issue 501 of this Update. The Ninth Circuit has, however, deemed “the period of compliance established by the district court tolled” due to the “government shutdown.” It extended until December 20, 2013, the date on which FDA will be required to publish a notice of proposed rulemaking addressing novel requirements for preventing the intentional adulteration of food. The Ninth Circuit also granted FDA’s motion to expedite the hearing of its appeal. Thus, the opening brief must be filed by December 23, the answering brief is due…
The grandmother of a 33-year-old who allegedly died from cardiac arrest after ingesting a Red Bull “energy drink” while playing basketball has filed a survival and wrongful death action against the company. Terry v. Red Bull N. Am., Inc., No. 506504/2013 (N.Y. Sup. Ct., Kings Cty., filed October 24, 2013). The complaint recites a number of adverse incidents around the world since 2000 allegedly linked to consumption of the product and cites studies indicating that its use can produce symptoms associated with cardiovascular disease. Claiming that the product proximately caused the decedent’s death, the plaintiff alleges strict liability (design defect and failure to warn); negligence (design, manufacture and sale, and failure to warn); fraud; breach of implied warranties; punitive damages for the willful, wanton and malicious production of a beverage with “dangerous levels of caffeine and other stimulants”; and wrongful death. She seeks $5 million for each cause of action…
For the second time in a month, attorneys with three Florida law firms have filed litigation on behalf of state consumers alleging that Anheuser-Busch Cos. (AB) sells a formerly imported beer “in a way that misleads consumers into believing that Kirin beer is still made in and imported from Japan, and accordingly sell[s] Kirin beer at prices substantially higher than those of domestic beer.” Suarez v. Anheuser Busch Cos., LLC, No. ___ (Fla. Cir. Ct., Miami-Dade Cty., filed October 25, 2013). Information about the Beck’s beer litigation, asserting virtually identical claims on behalf of a putative nationwide class against AB in federal court, appears in Issue 500 of this Update. Brought in the names of just two consumers, the Kirin beer litigation notes that external, six-pack, bottled beer packaging fails to state that the product “is brewed in the U.S.A. with domestic ingredients. In fact, the packaging for Kirin Beer…
