In addition to a lawsuit filed in Illinois and two filed in New Jersey, a fourth has been filed against Subway Sandwich Shops Inc. in Pennsylvania, alleging that the company’s “Footlong” sandwich “consistently measures significantly less than twelve inches in length.” Roseman v. Subway Sandwich Shops, Inc., No. 130102647 (Philadelphia Cty. Pa. Ct. Com. Pl., filed January 24, 2013). Information about two of the other lawsuits appears in Issue 468 of this Update. The Pennsylvania complaint alleges that this size discrepancy “is not an accident” and that the company knew about the discrepancy “since Subway named its large sandwich the ‘Footlong’ sometime prior to January 24, 2007.” Seeking to certify a class of all persons who purchased a “Footlong” sandwich from a Pennsylvania Subway restaurant since that date, the plaintiff, a New Jersey resident who purports to work in Pennsylvania and regularly purchased the disputed sandwiches in Philadelphia, alleges violations of…
Category Archives U.S. Circuit Courts
A California resident has filed a putative nationwide class action against Nestlé USA, Inc., claiming that its use of partially hydrogenated vegetable oil (trans fat) in many of its frozen pizza brands, including DiGiorno®, Stouffer’s® and California Pizza Kitchen® violates California’s Unfair Competition Law and constitutes a nuisance under California Civil Code §§ 3479-3493. Simpson v. Cal. Pizza Kitchen, No. 13-164 (S.D. Cal., filed January 21, 2013). In addition to monetary damages, she seeks an order requiring the company to “cease using artificial trans fat as an ingredient in the Nestle Trans Fat Pizzas.” While the complaint includes detailed information about the purported risks of consuming trans fats and notes that California forbids its use in schools or restaurants in amounts greater than a half-gram per serving, nowhere does she allege what quantity of trans fat is used in the defendants’ products or whether the products are mislabeled. Plaintiff Katie…
The U.S. Department of Justice (DOJ) has filed an antitrust lawsuit against Belgian brewer Anheuser-Busch InBev SA/NV (ABI) and Mexican brewer Grupo Modelo S.A.B. de C.V., seeking to enjoin ABI’s June 28, 2012, acquisition of Modelo. United States v. Anheuser Busch InBev SA/NV, No. 13-127 (D.D.C., filed January 31, 2013). DOJ contends that the $20.1 billion deal, which would combine the largest and third largest beer companies in the United States, “would substantially lessen competition for beer in the United States as a whole and in 26 metropolitan areas across the United States, resulting in consumers paying more for beer and having fewer new products from which to choose.” According to the complaint, Modelo is the only major beer company that has consistently resisted ABI’s annual price increases and has gained a majority share of some markets in California, New York and Texas by pursuing an aggressive marketing strategy with innovative…
A company that issued Citrus and Allied Essences Ltd. a commercial umbrella insurance policy in 2006 and 2007 has filed suit in a New York state court seeking a declaration that it is not obligated to defend the food-flavoring company in suits by those alleging respiratory injury from diacetyl exposure or to pay damages. Cont’l Cas. Co. v. Citrus & Allied Essences Ltd., No. 650158/2013 (N.Y. Sup. Ct., N.Y. Cty., filed January 17, 2013). According to the complaint, Citrus and its other insurers have claimed that the primary insurance policies for those years have been exhausted by settlements with plaintiffs in the underlying lawsuits. According to the umbrella insurer, however, because the bodily injury did not take place during the policy period, those other policies have not been exhausted. The insurance plaintiff also seeks to recover the amount it paid under a reservation of rights to cover a “shortfall” to…
The NAACP’s New York state branch and the Hispanic Federation have joined those arguing in court that New York City’s restrictions on the size of sugary beverages sold by certain vendors, such as corner stores and delis, should not take effect on March 12, 2013. During the January 23 hearing, opponents, including several City Council members, apparently argued that the rule should have been adopted by the elected City Council rather than the mayor’s appointed health board and that it was too narrow, exempting certain other types of beverages and excluding convenience stores and supermarkets, to be fair. The American Beverage Association and groups including movie theater owners and Korean grocers were expected to oppose the rule, but the issue is reportedly complex for minority advocates in light of high obesity rates in the African-American and Hispanic communities. Still, these groups claimed in an amicus brief that the rule will…
As consumers around the world have begun posting images online of their Subway “footlong” sandwiches with rulers showing that the restaurant’s offerings are actually 11 or 11.5 inches in length, several have taken their claims to court. Buren v. Doctor’s Assocs., Inc., No. 13 498 (N.D. Ill., filed January 22, 2013); Pendrak v. Subway Sandwich Shops, Inc., No. ___ (N.J. Super. Ct., filed January 22, 2013). Plaintiff Nguyen Buren filed his lawsuit in a federal court in Chicago, claiming that his sandwich was less than 11 inches long and alleging a “pattern of fraudulent, deceptive and otherwise improper advertising, sales and marketing practices.” New Jersey residents John Farley and Charles Pendrak allege in state court, “Despite the repeated use of uniform language by Subway stating that this sandwich is a ‘footlong,’ the product in question is not, in fact, a foot long. Rather this product consistently measures significantly less than…
Kraft Foods Global Brands LLC has filed a complaint in an Illinois federal court against Kellogg and Keebler, claiming that the companies’ cookie packaging infringes resealable food container patents that Kraft owns. Kraft Foods Global Brands LLC v. Kellogg N. Am. Co., No. 13 321 (N.D. Ill., filed January 16, 2013). According to the complaint, the infringing products involve the defendants’ Keebler Sandies® line of products, including shortbread, pecan shortbread and dark chocolate almond cookies. Kraft alleges that it informed the defendants of the infringement during an August 2012 meeting, but despite that knowledge, “Defendants continue to commit acts of infringement.” Kraft seeks injunctive relief, destruction of infringing products, an accounting, damages, a determination that the case is “exceptional,” attorney’s fees, costs, and interest.
A New York resident has filed a putative nationwide class action against the company that makes Red Bull energy drinks, alleging that the product does not, as advertised, “give you wings,” that is, provide more benefit than a cup of coffee. Careathers v. Red Bull GMBH, No. 12-369 (S.D.N.Y., filed January 16, 2013). According to the complaint, the defendants allegedly base their claims that the product will “significantly improve a consumer’s physiological and mental performance beyond what a simple cup of coffee or caffeine pill would do” on scientific studies. The plaintiff claims, “there is no genuine scientific research and there are no scientifically reliable studies in existence that support the extraordinary claims of Defendants.” The complaint outlines the beverage’s history and development, beginning as tonic created in Thailand in the 1980s, and cites research that analyzed energy drink ingredients and concluded, “With the exception of some weak evidence for…
A woman who formerly worked as a LongHorn Steakhouse server has asked a federal court for permission to modify her motion for a collective action under the Fair Labor Standards Act following the court’s denial of her motion in December 2012 on the ground that she lacked personal knowledge as to practices at the company’s steakhouses across the country. Velez v. GMRI, Inc., No. 12-4857 (N.D. Ill., filed January 14, 2013). The suit involves claims that the defendant failed to pay minimum wages. As part of her motion, the plaintiff seeks leave to amend her complaint “both to correct the LongHorn corporate entities brought in as defendants, and to clarify the claims brought under the collective procedure.” According to the motion, “the only claim on which Plaintiff seeks collective treatment is the claim that Defendants required tipped employees to perform non-tipped duties while paid the tip-credit wage rate, in violation of…
A federal court in California has dismissed statutory and common law claims filed in a putative class action against Sioux Honey Association Cooperative, alleging that the company falsely labels its Sue Bee Clover Honey® product as “honey,” despite removing the pollen from the product. Ross v. Sioux Honey Ass’n Coop., No. 12-1645 (N.D. Cal., decided January 14, 2013). The court found the claims preempted or insufficiently pleaded in the plaintiff’s third amended complaint and, concluding that any further amendment would be futile, granted the motion to dismiss with prejudice. So ruling, the court declined to rule that the plaintiff lacked standing to bring the suit, finding that her pleadings satisfied the requirements of Kwikset Corp. v. Superior Court, 51 Cal. 4th 310 (2011), in which the California Supreme Court recognized that allegations of economic injury arising from reliance on a product manufacturer’s alleged misrepresentations satisfy the injury-in-fact requirement for standing under…
