According to a news source, the first “popcorn-lung” occupational exposure case tried in California has resulted in a defense verdict. Velasquez v. Flavor & Extract Mfrs. Ass’n, No. BC370319 (Cal. Super. Ct., Los Angeles Cty., verdict reached December 12, 2012). The plaintiff was a former flavoring factory employee who claimed that his exposure to the butter-flavoring chemical diacetyl caused his debilitating lung disease, bronchiolitis obliterans. His attorney was quoted as saying, “The defense was very effective in confusing the jury,” observing that the defense suggested that the plaintiff’s health problems could have been attributed to acetaldehyde, another chemical flavoring. The lawsuit originally involved 10 defendants, a number of whom settled with the plaintiff before trial. Plaintiff’s counsel has reportedly indicated that the verdict will be appealed, citing, among other matters, the trial corut’s decision to allow the jury to hear that the plaintiff is an illegal immigrant. See Law360, December 13, 2012.
Category Archives U.S. Circuit Courts
A plaintiff who claims he began consuming Monster Beverage energy drinks as a teenager, because he was offered free beverages from a truck parked outside his high school, has filed a putative nationwide consumer-fraud class action against the company in a California federal court. Fisher v. Monster Beverage Corp., No. 12-02188 (C.D. Cal., filed December 12, 2012). Among other matters, he claims that the company aggressively markets the products to youth and falsely labels them as dietary supplements to avoid regulation under Food and Drug Administration beverage rules. He further contends that the products are addictive. Alleging violations of California’s Unfair Competition Law, False Advertising Law and Consumers Legal Remedies Act, breach of express and implied warranties, violation of the Magnuson-Moss Warranty Act, and unjust enrichment, the plaintiff seeks actual, statutory and punitive damages; corrective labeling, advertising and marketing; full restitution and disgorgement; and interest.
A federal court in California has dismissed in part putative class claims filed by a man who alleges that Ghirardelli Chocolate Co. white chocolate products do not contain the requisite white chocolate ingredients to be labeled and promoted as such. Miller v. Ghirardelli Chocolate Co., No. 12-04936 (N.D. Cal, decided December 6, 2012). The court agreed with Ghirardelli that the plaintiff lacked standing to pursue claims relating to four products that he did not purchase. According to the complaint, the plaintiff bought a package of “Ghirardelli Chocolate Premium Baking Chips Classic White” and sought recovery on behalf of a class of purchasers of that product as well as white chocolate wafers, ground white chocolate flavor, a mocha mix, and a frappé product. Noting that controlling authority is lacking on whether plaintiffs have standing for products they did not purchase, the court discussed two lines of cases: one in which federal courts have…
A federal court in Minnesota has dismissed without prejudice state law-based consumer-fraud claims filed against a company that makes Greek yogurt not by straining it, a process essential to the traditional production of this thickened dairy product, but by adding milk protein concentrate (MPC). Taradejna v. General Mills, Inc., No. 12-993 (D. Minn., decided December 10, 2012). So ruling, the court directed the parties to initiate proper proceedings before the Food and Drug Administration (FDA). The court recites FDA yogurt-related standard-of-identity initiatives since 1981, culminating in a pending 2009 proposal that would permit the use of “any safe and suitable milk-derived ingredient as an optional dairy ingredient in the manufacture of yogurt.” Finding that application of the primary jurisdiction doctrine was appropriate in the matter, the court states, “The underlying issue here is whether MPC is a proper, permitted ingredient in yogurt. The resolution of this question falls squarely within the…
A multidistrict litigation (MDL) court that is considering pretrial matters in 91 consolidated antitrust lawsuits alleging that major chocolate manufacturers conspired to implement price increases from 2002 through 2007, has granted the direct-purchaser plaintiffs’ motion for class certification. In re Chocolate Confectionery Antitrust Litig., MDL No. 1935 (M.D. Pa., order entered December 7, 2012). The court did so after first determining whether the plaintiffs’ expert testimony in support of class certification is reliable under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The U.S. Supreme Court is currently facing a similar issue, that is, “Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.” The MDL court, noting that the issue has not yet been decided in…
Soft drink manufacturers and restaurateurs have reportedly requested that the court reschedule oral arguments in their challenge to a New York City prohibition on the sale of sweetened beverages in sizes that exceed 16 ounces. N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. NYC Dept. of Health & Mental Hygiene, No. 653584/2012 (N.Y. Sup. Ct., filed October 12, 2012). Additional details about the case appear in Issue 458 of this Update. According to a news source, the industry interests seek oral argument before January 2013, claiming it will take up to three months to “retool” their operations to comply with the new requirements, which will take effect in March 2013, if upheld by the court. City attorneys have apparently decided not to oppose the request, noting that everyone’s interest will be served if the matter is “resolved sooner rather than later.” See Reuters, December 5. 2012.
In an unpublished decision, a California appeals court has determined thatInnovation Ventures, LLC, the parent company which makes 5-Hour Energy®, may proceed with a malicious prosecution action against Howard Rubinstein and other consumer-fraud attorneys in connection with a putative class action filed against the company in 2010 on behalf of a woman, Vi Nguyen, whose claims about the product apparently changed during her deposition, leading to the suit’s voluntary dismissal with prejudice. Innovation Ventures, LLC v. Rubinstein, No. G046242 (Cal. Ct. App., 4th Dist., decided November 29, 2012) (unpublished). The court noted that the underlying consumer-fraud complaint referred in a number of places to the named plaintiff as “he” and that the named plaintiff did not believe she had ever seen the complaint or she would have corrected these references. She also apparently had never seen the attorneys of record “and had just met Rubinstein the day before her deposition.”…
A federal court in California has granted in part the summary judgment motion filed by a coconut water company facing allegations that it overstates the magnesium and sodium content of its “O.N.E.” product and falsely claims that it is a good source of electrolytes. Vital v. One World Co., LLC, No. 12-00314 (C.D. Cal., order entered November 30, 2012). The court dismissed all claims based on a study that allegedly found lower levels of magnesium and sodium than allowed by Food and Drug Administration (FDA) regulations when a product is claimed to be a “good source” of such nutrients. According to the court, the plaintiffs failed to show that the study was conducted under FDA’s § 101.9(g) methodology and would thus impose more stringent requirements on the defendant than federal law. The court allowed the plaintiffs to pursue claims that the product is falsely marketed as a “good source of…
A federal court in California has determined that Diamond Foods’ investors adequately pleaded knowledge, or scienter, on the part of the company and individual senior officers to allow putative class claims against them for false and misleading statements in violation of federal securities laws to proceed. In re Diamond Foods, Inc., Securities Litig., No. 11-05386 (N.D. Cal., order entered November 30, 2012). The court also dismissed claims filed against the company’s auditor, finding insufficient allegations to raise a strong inference of scienter, but allowed the plaintiffs to amend their complaint to cure its deficiencies. The litigation arises from events occurring in 2010-2012, when Diamond was attempting to purchase the Pringles brand of snack chips from P&G. The company allegedly manipulated prices paid to walnut growers during those years and failed to properly account for the payments, resulting in what appeared to be an inflated value for its shares. When the irregularities…
The Government Accountability Project (GAP) has filed a lawsuit under the Freedom of Information Act (FOIA) against the Food and Drug Administration (FDA), alleging that the agency has wrongfully withheld information requested about the use of anti-microbial drugs in food-producing animals. GAP v. FDA, No. 12-1954 (D.D.C., filed December 5, 2012). GAP requests an order requiring FDA to make the requested information available within 10 working days and further seeks costs and attorney’s fees. According to the complaint, GAP sought information in February 2011 about anti-microbial drugs collected from animal-drug sponsors under 21 U.S.C. § 360b. While FDA produced, as requested, educational and outreach materials that assist drug sponsors in fulfilling their reported duties, it withheld (i) “FDA’s data for use of anti-microbial drugs in food-producing animals in 2009 as broken down by container size, strength, and dosage form”; and (ii) “FDA’s data for use of anti-microbial drugs in food-producing…
