Seeking to certify a nationwide class of consumers, a California resident has filed consumer fraud claims against a company that makes numerous breakfast-, dessert- and bread-mix products promoted as “All Natural,” while containing purported synthetic ingredients, such as ascorbic acid, disodium phosphate, potassium carbonate, and sodium acid pyrophosphate. Larsen v. King Arthur Flour Co., Inc., No. 11-5495 (N.D. Cal., filed November 14, 2011). The complaint focuses on 64 specific products carrying “All Natural” labels and identifies which alleged synthetic ingredient is contained in each. The plaintiff alleges that she “did not receive the ‘All Natural’ baking mixes she bargained for . . . and has lost money as a result in the form of paying a premium for King Arthur’s Mixes because they were purportedly all natural rather than paying the lesser amount for non-natural alternatives.” The complaint, which also seeks to certify a sub-class of California consumers, alleges common…
Category Archives U.S. Circuit Courts
Attorneys involved in the settlement of injury claims linked to Salmonella-contaminated eggs traced to Wright County Egg in Iowa have reportedly told the Associated Press that the first checks, issued by the egg producer’s insurer, are on their way to the first of dozens of individuals sickened during the 2010 outbreak. Among the first wave of legal settlements are six-figure checks issued on behalf of several children. Although most of the settlement’s terms are confidential, a federal judge in Iowa apparently approved deals in open court on November 10, 2011, totaling $366,000 for three children residing in California, Iowa and Texas. Because they were hospitalized, they are receiving higher amounts than those not as seriously stricken. See MSNBC. com, November 16, 2011.
A federal court in California has entered an order certifying a class in consolidated lawsuits alleging that the company which produces Nutella® falsely advertises its product as healthy and beneficial to children despite making the hazelnut spread with “dangerous levels of fat and sugar.” In re Ferrero Litig., No. 11-205 (S.D. Cal., decided November 15, 2011). The court limited the class to California consumers, agreeing with the defendant that California law could not be applied to the claims of non-California class members who neither saw the advertisements nor purchased the product in the state. Because the defendant is a Delaware corporation that does business from its New Jersey headquarters and the product is made in Canada, the non-California class members would also have been unable to show that their claims arose out of conduct that occurred in California. The court refused to certify an 11-year class, noting that nationwide TV ads for…
A federal court in California has entered an order granting the motion of conventional alfalfa farmers and environmental groups for an award of attorney’s fees and costs in litigation that successfully challenged a U.S. Department of Agriculture, Animal and Plant Health Inspection Service (APHIS) decision to de-regulate genetically engineered (GE) alfalfa without conducting an environmental impact statement under the National Environmental Policy Act (NEPA). Geertson Seed Farms v. Johanns, No. 06-01075 (N.D. Cal., decided November 8, 2011). While the U.S. Supreme Court ultimately reversed lower court rulings in the case as to the scope of relief granted, the core determination that APHIS had violated NEPA survived the appeal. Due to the “limited” nature of the plaintiffs’ success, the court imposed a 10-percent reduction on their request and ordered a total award of $1.6 million. The defendant had argued that the plaintiffs were entitled to $829,422 only.
The Seventh Circuit Court of Appeals has determined that liability insurers of a major U.S. egg producer have no obligation to defend it in class action lawsuits alleging that the egg producer conspired with others to keep the price of eggs artificially high. Rose Acre Farms, Inc. v. Columbia Cas. Co., No. 11-1599 (7th Cir., decided November 1, 2011). Rose Acre Farms claimed that the antitrust actions sought damages falling under what the policies call “personal and advertising injury.” The court disagreed, noting that the company tried to “connect its advertising to the antitrust suit in [a] convoluted manner.” Because the antitrust complaints had nothing to do with trademark infringement, i.e., using another’s advertising idea without permission, which is the conduct covered by the “advertising injury” provision, the court affirmed the lower court’s ruling denying coverage
Following oral argument before the U.S. Supreme Court on the validity of a California law that prohibits slaughterhouses from receiving, processing or selling nonambulatory animals, court watchers are predicting that the law will not survive the National Meat Association’s preemption challenge. Nat’l Meat Ass’n v. Harris, No. 10-224 (U.S., argued November 9, 2011). The Ninth Circuit Court of Appeals upheld the law, finding that the states may regulate “what kinds of animals may be slaughtered,” despite express preemption language in the Federal Meat Inspection Act. Additional information about the Ninth Circuit’s ruling appears in Issue 344 of this Update. According to news sources, the justices did not appear to accept the fine distinction adopted by the lower court. Under the federal law, federal inspectors are authorized to decide what to do with animals that cannot walk when they reach the slaughterhouse; in some cases, they determine that animals may be…
Without disclosing any settlement details, Hormel Foods Corp. and a Netherlands-based company have secured a court order dismissing trademark infringement claims involving the labels for canned meat products SPAM® and Prem®. Hormel Foods, LLC v. Zwanenberg Food Group (USA), Inc., No. 11-00774 (D. Minn., order entered November 1, 2011). Additional information about the case appears in Issue 388 of this Update. Hormel brought the action, contending that the defendant had violated the Lanham Act by selling Prem canned meat with a copycat label using Hormel’s distinctive label colors. According to a news source, Prem filed a counterclaim, alleging that the two color label is not distinctive or protectable and that the U.S. Patent and Trademark Office improperly registered the trademark in May 2011. See Law360, November 1, 2011.
Contending that the genetically modified (GM) corn in General Mills’ Kix Crispy Corn Puffs® and Honey Kix Crispy Corn Puffs® cereals renders their “All Natural Corn” representations false and misleading, a California resident has filed a putative class action against the company in state court. Lewis v. General Mills, Inc., No. BC472451 (Cal. Super. Ct., Los Angeles Cty., filed October 28, 2011). Citing the Cornucopia Institute’s “Cereal Crimes” report, and testing purportedly showing that Kix contains GM corn, the plaintiff seeks to certify a nationwide class of consumers who allegedly relied on the “All Natural” representations, as well as other company indicia of wholesomeness, to purchase products at a premium price and were denied the benefit of their bargain. According to the plaintiff, companies that produce GM crops note that that their genetic makeup has been “altered to exhibit traits that are not naturally theirs,” and the World Health Organization…
The Center for Food Safety (CFS) and other public interest organizations have filed a lawsuit against the U.S. Fish and Wildlife Service (FWS), seeking a declaration that the agency’s decision to allow the cultivation of genetically engineered (GE) corn and soybean crops on wildlife refuge lands in the Midwest violated federal environmental laws. Ctr. for Food Safety v. U.S. Fish & Wildlife Serv., No. 11-01934 (D.D.C., filed November 2, 2011). The lawsuit involves 66 refuges and wetland management districts encompassing more than 1.2 million acres across eight states. According to the center, the action “marks the latest in a series of successful lawsuits by public interest organizations to stop the planting of GE crops on national wildlife refuges.” The complaint alleges that FWS has entered into cooperative farming agreements with private parties allowing them to farm national wildlife refuge land with GE crops without preparing an environmental impact statement under the…
A California resident has filed a putative nationwide class action against Austrian and British companies that sell Oxygizer®, a “designer water” product promoted as an athletic performance aid, alleging that increased oxygen content cannot deliver the benefits claimed. Ghazarian v. Oxy Beverages Handelsgelsellschaft mbH, No. 11-8860 (C.D. Cal., filed October 26, 2011). The companies purportedly promote the product with claims that (i) it aids rapid muscle recovery by increasing the level of oxygen in the body, (ii) the glass bottle eliminates or reduces oxygen loss, (iii) it is the only water with a proven positive effect on the body, (iv) the product is patented, (v) it transports oxygen in body cells to regenerate them, (vi) the water strengthens the immune system and improves cardiovascular and respiratory function, and (vii) it helps office workers who are deprived of oxygen in large cities. According to the plaintiff, each of these claims is…
