A federal court in New York has reportedly consolidated three putative class actions against Frito-Lay North America Inc. involving claims that the company falsely advertised its chips as “all natural” despite using genetically modified corn and oil in the products. In re: Frito-Lay N. Am. Inc. “All-Natural” Litig., No. 12-00408 (E.D.N.Y., order entered March 20, 2012). Two of the suits were filed in December 2011 in California, and the plaintiffs agreed to transfer the claims to New York where a similar action had been filed in January 2012. The parties reportedly stipulated to the consolidation “to streamline the litigation and conserve judicial resources.” See Law 360, March 21, 2012.
Category Archives U.S. Circuit Courts
A California resident has filed a putative class action in federal court against the Jamba Juice Co., alleging that it falsely advertises its fruit smoothie kits as “All Natural,” when they actually contain “unnaturally processed, synthetic and/or non-natural ingredients,” such as ascorbic acid, citric acid, xanthan gum, and steviol glycosides. Anderson v. Jamba Juice Co., No. 12-1213 (N.D. Cal., filed March 12, 2012). Plaintiff Kevin Anderson brings the action in federal court under the Class Action Fairness Act, claiming that the damages will exceed $5 million and that the class includes more than 100 individuals who have citizenship diverse from that of the defendant. Anderson alleges that he and a nationwide class of consumers “did not receive the benefit of their bargain when they purchased the smoothie kits. They paid money for a product that is not what it claims to be.” Contending that the defendant “is a leading healthy…
A federal magistrate judge in New York has ordered the Food and Drug Administration (FDA) to begin proceedings to withdraw approval for the subtherapeutic use of certain antibiotics in animal feed, agreeing with the Natural Resources Defense Council (NRDC) and a coalition of advocacy organizations that the agency had a statutory duty to hold withdrawal proceedings after issuing notices in 1977 of its intent to withdraw approval because the use of such drugs had not been shown to be safe. NRDC v. FDA, No. 11-3562 (S.D.N.Y., decided March 22, 2012). According to the court, “if the Secretary finds that an animal drug has not been shown to be safe, he is statutorily required to withdraw approval of that drug, provided that the drug sponsor has notice and an opportunity for a hearing.” Further details about the lawsuit appear in Issue 396 of this Update. Questions about whether the agency has…
An Alabama resident has reportedly filed seven lawsuits in federal court against companies that make or sell orange juice products advertised as 100 percent pure or natural when they are actually “a product of industrial processing and laboratory-flavored juices.” Veal v. Tropicana Prods., Inc., No. 12-00804 (N.D. Ala., filed March 13, 2012). John Veal apparently alleges breach of contract and breach of warranty against each defendant on behalf of nationwide classes of consumers. According to a news source, he claims that he would not have purchased the products had he known the truth about their contents and would not have paid the higher prices charged for them. Among those sued were Simply Orange Juice Co., Tropicana Products Inc. and Winn Dixie Stores Inc. See Everything Alabama Blog, blog.al.com, March 15, 2012.
A federal court in California has refused to dismiss most of the putative class claims filed by a consumer against a company that made an alcoholic beverage containing high levels of caffeine, finding that a federal alcohol labeling law did not preempt state-law claims based on labeling or advertising and that the allegations of economic injury are sufficient to establish standing under California’s Unfair Competition Law (UCL). Cuevas v. United Brands Co., Inc., No. 11-991 (S.D. Cal., order entered March 8, 2012). The defendant manufactured and sold JOOSE®, a flavored beverage with about 125 mg caffeine and 9.9 to 12 percent alcohol, from 2007 until it voluntarily removed the product from the market in December 2010 after receiving a warning letter from the Food and Drug Administration (FDA). The plaintiff allegedly purchased the product on two occasions in April and August 2010 and subsequently filed suit alleging that the defendant violated…
Restaurateurs Mario Batali and Joseph Bastianich have apparently agreed to settle for $5.25 million wage-related claims in a class action filed by waitstaff at their New York City restaurants including Babbo, Bar Jamon, Casa Mono, Del Posto, Esca, Lupa, Otto, and Tarry Lodge. Capsolas v. Pasta Resources Inc., No. 10-5595 (S.D.N.Y., motion for preliminary approval of settlement filed March 5, 2012). Additional information about the suit appears in Issue 361 of this Update. If approved, the settlement would cover attorney’s fees (one-third of the total) and costs, class members’ awards, service payments to the named plaintiffs, and the claim administrator’s fees. The class, consisting of captains, servers, waiters, bussers, runners, back waiters, bartenders, and/or barbacks, will receive a proportional share of the settlement fund “based on the number of hours they worked, the Restaurant at which they worked, the percentage of total tips received during their employment, and whether they opted…
A federal court in South Carolina has dismissed three of four claims in a lawsuit filed by a family farming operation that claims the Food and Drug Administration’s (FDA’s) 2008 tomato recall, which later proved unnecessary as the agency conceded that tomatoes were not the source of the Salmonella contamination, caused the farm substantial economic harm. Seaside Farm, Inc. v. United States, No. 11-1199 (D.S.C., decided March 6, 2012). Further details about the litigation appear in Issue 395 of this Update. The court dismissed the plaintiff’s Takings Clause claim, the claim that FDA violated the South Carolina Unfair Trade Practices Act and the defamation claim. The plaintiff’s negligence claim will, however, proceed. While the court suggested that this may actually be a claim for defamation and thus may also be subject to dismissal under the Federal Tort Claims Act, because the defendant did not seek to dismiss on this ground, the court declined…
A federal court in Arkansas has reportedly certified a class of poultry-processing plant workers who allege that the company has violated federal and state employment laws by failing to compensate them for the time they spend donning, doffing and sanitizing required gear and equipment, as well as walking to and from the production floor and performing other job-related duties. Garner v. Butterball, LLC, No. 10 01025 (E.D. Ark., decided February 22, 2012). The plaintiffs apparently demonstrated that their claims met all of the class certification requirements, although the court modified the class definition to account for statutes of limitations applicable to claims filed under the Federal Labor Standards Act and Arkansas Minimum Wage Act. Thus, the class has been defined as hourly production employees who worked at two Butterball plants “at any time since October 1, 2006, through the date of final judgment in this action.” Meanwhile, the U.S. Supreme Court…
According to a news source, the industry interests that lost their challenge to the listing of 4-MEI as a chemical known to California to cause cancer have filed an appeal in the Third District Court of Appeals. Cal. League of Food Processors v. OEHHA, No. C070406 (Cal. Ct. App., 3rd Dist., appeal filed February 10, 2012). The chemical is commonly found in foods such as soy sauce, roasted coffee and the caramel coloring added to colas and beer. California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) added the chemical to the Proposition 65 (Prop. 65) list in January 2011, and a California Superior Court rejected the challenge filed by the California League of Food Processors, American Beverage Association, Grocery Manufacturers Association, and National Coffee Association in November. Additional information about the court’s ruling appears in Issue 420 of this Update. The plaintiffs reportedly argue that appellate intervention is needed “before…
Sixty-five legal migrant workers from Mexico have filed a putative class action against GLK Foods, LLC in a federal court in Wisconsin, seeking to recover wages and damages for breach of contract, including the cost of transportation if the workers were terminated before the end of their certified period of employment. Jiminez v. GLK Foods LLC, No. 12-209 (E.D. Wis., filed February 29, 2012). The action was brought under the Migrant and Seasonal Agricultural Worker Protection Act, Fair Labor Standards Act, Wisconsin Migrant Labor Act, and Wisconsin Wage Payments, Claims and Collections Act. The workers were allegedly recruited from Mexico and employed in the United States in the defendant’s sauerkraut cannery under the H-2B temporary foreign worker visa program over a period of five years beginning in 2006. They claim that employers seeking to hire H-2B workers, where sufficient domestic workers are unavailable to perform the job, must file an application…
