A Michigan court has reportedly entered an order specifying what will appear on the Facebook® page of the attorney who filed a complaint seeking to set aside a settlement resolving claims that a McDonald’s Corp. franchisee purported to sell halal chicken when some of the products were not prepared according to Islamic law. Additional details about the settlement appear in Issue 468 of this Update. The court ordered Dearborn-based attorney Majed Moughi to remove any criticism of the proposed settlement from the site, which is apparently popular as a source of news in the Muslim community—drawing 20,000 views each month, prominently post the settlement agreement itself, provide the names of anyone who “liked” or supported the original post, and refrain from discussing the settlement with anyone who might be affected or the media. According to a news source, the Facebook® page has effectively become static because any new posts or…
Category Archives U.S. Circuit Courts
The Ninth Circuit Court of Appeals has reversed a district court ruling dismissing the emotional distress claims filed by a deputy sheriff who alleged that Burger King employees served him a hamburger tainted with spit, in light of a Washington Supreme Court ruling that the state’s product liability law would allow relief for emotional distress damages in the absence of physical injury. Bylsma v. Burger King Corp., No. 10-36125 (9th Cir., decided February 12, 2013). Details about the state high court ruling in response to the question certified to it by the Ninth Circuit appear in Issue 470 of this Update. The Ninth Circuit remanded the matter to the district court with instructions to give the deputy sheriff the opportunity to amend his complaint to conform to Washington law and then to allow the lower court to determine whether he has pleaded “the necessary facts to support his emotional damages…
During oral argument before a Second Circuit Court of Appeals panel, the Food and Drug Administration (FDA) reportedly argued that it had “no obligation” to complete proceedings that the agency initiated to withdraw approval from certain uses of antibiotic drugs in livestock. Natural Res. Def. Council v. FDA, No. 12-2106 (2d Cir., argued February 8, 2013). Assistant U.S. Attorney Ellen London said, “It’s completely discretionary as to when to enforce the law as to certain drugs,” in urging the court to reverse a district court order requiring it to hold the withdrawal proceedings announced in 1977 notices. According to a news source, one of the panel judges appeared to agree with FDA’s position, suggesting that it could, in theory, be forced to divert resources from high priorities on the basis of lawsuits filed against it. More information about lower court rulings in the case appear in Issues 432 and 442 of this…
Answering a question certified by the Ninth Circuit Court of Appeals, a divided Washington Supreme Court has determined that a deputy sheriff who was served, but did not consume, a Burger King hamburger contaminated with an employee’s spit, may recover under state product liability law for emotional distress, “but only if the emotional distress is a reasonable reaction and manifest by objective symptomatology.” In re Bylsma v. Burger King Corp., No. 86912-0 (Wash., decided January 31, 2013). The deputy had alleged ongoing emotional distress, including vomiting, nausea, food aversion, and sleeplessness, symptoms that purportedly led him to seek treatment from a mental health professional. So ruling on a matter of first impression, the court majority agreed with the deputy sheriff that the Washington Product Liability Act allows recovery for emotional distress damages absent physical injury. The federal district court which had considered the deputy’s claim, dismissed it on the ground…
A federal court in California has reportedly approved the settlement of wage-related claims in a class action filed by restaurant managers against Benihana National Corp., which owns and operates a Japanese hibachi steakhouse chain. Akaosugi v. Benihana Nat’l Corp., No. 11-1272 (N.D. Cal., settlement approved January 24, 2103). The company has apparently agreed to pay $660,000, including attorney’s fees and costs, to settle claims that it forfeited managers’ accrued vacation and failed to compensate them for it, forced them to work more than eight hours a day without paying overtime, failed to provide meal and rest breaks, and failed to provide accurate wage statements. See Mealey’s Class Actions, February 1, 2013.
General Mills has agreed to establish an $8.5 million fund to settle claims that it falsely advertised its Yo-Plus yogurt as a product that helped naturally regulate “digestive health.” Johnson v. General Mills, Inc., No. 10-61 (C.D. Cal., stipulation of settlement filed February 4, 2013). If the court approves the agreement, purchasers throughout the United States will be able to seek $4 for each unit of Yo-Plus purchased, and any unclaimed funds will be distributed to the National Consumer Law Center and Mayo Clinic. The company apparently no longer sells the products. The costs of class notice and administration, attorney’s fees and incentive awards for plaintiffs in several related class lawsuits will be deducted from the settlement fund. Recovery will be capped at 13 units of Yo-Plus yogurt per claimant, unless proof of purchase for more units purchased during the class period can be shown. A hearing for preliminary approval…
A California resident has reportedly filed a putative class action against the company that makes 5-Hour Energy® shots, claiming that “no genuine scientific research” and “no scientifically reliable studies” support the company’s claims that the product provides “any more additional benefits over a caffeine tablet or a cup of coffee.” Soto v. Innovation Ventures, LLC, No. 13-591 (C.D. Cal., filed January 28, 2013). According to a news source, the plaintiff alleges that the company overcharges consumers based on false claims and that some of the product’s ingredients may present serious undisclosed health risks. Seeking to represent a nationwide class and statewide subclass of consumers, the plaintiff apparently alleges violations of the California Consumers Legal Remedies Act and Business and Professions Code, breach of express warranty, unjust enrichment, and fraud (intentional misrepresentation and concealment of fact). See Mealey’s Class Actions, February 1, 2013.
The North American Olive Oil Association has brought an unfair competition and false advertising action against The Gourmet Factory claiming that it sells its Capatriti® brand as “100% Pure Olive Oil” when it is actually made from “leftover olive skins and pits using a combination of chemical solvents and high temperatures.” N. Am. Olive Oil Ass’n v. Kangadis Food Inc., d/b/a The Gourmet Factory, No. 113-868 (S.D.N.Y., filed February 6, 2013). The process apparently creates a byproduct referred to as “pomace,” and the complaint alleges that products containing pomace may not be marketed and labeled as olive oil under “an array of olive-oil making conventions, standard industry practices, international regulations, and federal and state laws.” The association allegedly purchased tins of the defendant’s product from store shelves in New York and New Jersey and shipped them to an expert in Italy for testing, which purportedly confirmed the presence of chemicals and…
A federal court in Wisconsin has dismissed as preempted a putative class action alleging that the company which makes Sue Bee Clover Honey® violates a state honey-labeling standard by failing to disclose that the product does not contain bee pollen. Regan v. Sioux Honey Ass’n Coop., No. 12-758 (E.D. Wis., decided January 31, 2013). The court also dismissed an unjust enrichment claim and a cause of action based on an alleged violation of the Food, Drug, and Cosmetic Act (FDCA). According to the court, the Wisconsin honey standard is based on a Codex Alimentarius provision that prohibits the removal of pollen from honey “except where this is unavoidable in the removal of foreign inorganic or organic matter.” Because federal law has no standard of identity for honey, under the Nutrition Labeling and Education Act (NLEA), the label must therefore bear the “common or usual name” of a food contained therein. The…
Without admitting liability, Dole Food Co. has reportedly settled a putative class action that claimed the company misrepresented its environmental practices in Guatemala. Laderer v. Dole Food Co. Inc., No. 12-09715 (C.D. Cal., motion to dismiss filed January 26, 2013). According to the complaint, the plaintiff would not have purchased the company’s bananas or “paid as much for them,” had he known that its “production methods contaminate water supplies, destroy wetlands, cause flooding, destroy the crops of local communities, and/or cause illnesses in children.” The complaint cited company materials indicating its “unwavering commitment” to “environmental responsibility and social accountability” and alleged violation of consumer fraud laws. Under the agreement, “[i]n coordination with social programs already undertaken by Dole’s independent grower in Guatemala, Dole and the non-profit organization Water and Sanitation Health, Inc. will collaborate together on a water filter project to assist the local communities in Guatemala.” According to the company, its…
