Hundreds of individually named Philippine banana plantation workers alleging physical and mental injury from exposure to pesticides have filed suit against a number of agricultural and chemical companies in a California state court seeking compensatory and punitive damages. Macasa v. Dole Food Co., No. BC467134 (Cal. Super. Ct., Los Angeles Cty., filed August 8, 2011). The plaintiffs allege that 1,2-Dibromo-3-chloropropane (DBCP), sold under the brand names Nemagon® and Fumazone®, is a “highly toxic and poisonous pesticide” that purportedly causes “sterility, testicular atrophy, miscarriages, congenital reproductive outcome, liver damage, asthma and various forms of cancer in humans when absorbed by the skin or inhaled.” They claim that DBCP continued to be used in the Philippines despite being banned in the United States by the Environmental Protection Agency in 1979. The complaint alleges that the U.S. Department of Agriculture advised the chemical company defendants as early as 1961 “to place precautionary warning…
Category Archives U.S. Circuit Courts
A California resident has filed a pair of putative class actions in state court against companies that market their coconut water with purportedly exaggerated nutrient claims and overstated hydrating benefits or as a miracle cure for a host of medical problems. Shenkman v. All Mkt., Inc., No. BC 467166; Shenkman v. One World Enters. LLC, No. BC467165 (Cal. Super. Ct., Los Angeles Cty., filed August 8, 2011). Seeking to certify statewide consumer classes, the plaintiff alleges intentional and negligent misrepresentation, fraud, and violations of California’s False Advertising Act and Unfair Business Practices Act. The plaintiff requests compensatory and punitive damages, disgorgement, restitution, payment to a cy pres fund, a corrective advertising campaign, and an apology. Among other matters, the plaintiff claims that One World Enterprises sells “O.N.E. Coconut Water” throughout the United States in more than 18,000 retail outlets and promotes it “as a miracle product, curing various medical problems and…
A California consumer who alleged that he gained weight while using a diet drink has reportedly failed to demonstrate that he has standing to pursue putative class consumer-fraud claims against the manufacturer because he did not keep track of his caloric intake when he used the product. Fletcher v. Celsius Holdings, Inc., No. BC439055 (Cal. Super. Ct., decided August 10, 2011). Granting the manufacturer’s motion for summary judgment, the court apparently determined that, without the caloric intake data, it would be impossible for the plaintiff to prove that the product did not, as advertised, burn up to 100 calories when consumed. According to a news source, the plaintiff alleged that he used the product while training to become a firefighter from October 2009 to January 2010, and gained 10 pounds. He also alleged that he maintained a healthy diet and a rigorous exercise regimen during this period. The court suggested that…
Three lead class attorneys who, for five years or longer, have represented African-American farmers claiming discrimination in government farm loan programs, have filed their fee petition seeking 7.4 percent of the preliminarily approved $1.25 billion settlement, or $90.8 million. In re: Black Farmers Discrimination Litig., Misc. No. 08-0511 (D.D.C., filed August 8, 2011). The petition recites the efforts required to obtain redress for the farmers, who missed the deadline for filing claims under the first such settlement in 1999, including working for congressional approval of laws in 2008 and 2010 establishing a fund to compensate them. According to the petition, the fee award request, to be divided among all class counsel, is “expressly within the range authorized by the Settlement Agreement.”
According to a news source, the Jane Goodall Institute for Wildlife Research, Education and Conservation has sued Sprout Foods, Inc., an Oregon-based organic vegetarian baby food manufacturer, for failing to carry out its obligations to produce an Institute-branded line of products (Janey Baby®) under a 2010 licensing agreement. Jane Goodall Inst. for Wildlife Research, Educ. & Conservation v. Sprout Foods, Inc., No. 11-5554 (S.D.N.Y., filed August 10, 2011). The plaintiff reportedly claims that it decided to license the Janey Baby® name to Sprout Foods after an “extensive search for a suitable licensee that could provide organic and vegetarian products in the infant food category.” Allegedly signed by Sprout Foods CEO Max McKenzie, the August 2010 agreement gave Sprout an exclusive license to use the famous primatologist’s brand and name in exchange for royalties generated by baby food sales. The Institute reportedly alleges that the baby food producer has not sold or…
Seeking either clarification or dismissal of claims alleging that it has violated state law by republishing the product or service preferences (“Likes”) of children younger than age 18 as accompaniments to paid advertisements without first obtaining parental consent, Facebook, Inc. argues that the claims are insufficiently pleaded, fail to state a claim or are preempted by federal law. Dawes ex rel. E.K.D. v. Facebook, Inc., No. 11-00461 (S.D. Ill., motion filed August 1, 2011). Facebook explains that the plaintiffs are teenagers who shared their Internet “Likes” with their friends and that Facebook may then redisplay the preference to the same friends along with an advertisement for the relevant company’s website. According to Facebook, the plaintiffs have failed to indicate how they have been injured because they failed to allege “that their personal information had any ascertainable ‘value’ or any facts supporting the claimed ‘lessening’ of that value.” Facebook also contends…
The Campbell Soup Co. will change its low-sodium tomato soup labels under a settlement with a class of consumers who sued the company in a New Jersey federal court in 2010, alleging that these products cost more while actually containing about the same level of sodium as the company’s regular tomato soup. Smajlaj v. Campbell Soup Co., No. 10-01332 (D.N.J., preliminary approval granted August 9, 2011). The company will also provide a cash fund of $1.05 million for consumers throughout the United States who purchased the products over a two-year period ending in August 2011. Maximum recovery, depending on which soup was purchased and whether receipts are available, is $10 or $.50 for each can that a class member can show she purchased. The agreement would permit class counsel fees of $350,000; the court has scheduled a final settlement approval hearing for November 29. According to court documents, Campbell will…
An intermediate appellate court in Washington has affirmed the dismissal of a lawsuit challenging part of a state law requiring the humane slaughter of livestock. Pasado’s Safe Haven v. Washington, No. 64452-1-I (Wash. Ct. App., decided July 25, 2011). The plaintiff, an animal rights advocacy organization, challenged that part of the statute which included within the “humane method” definition “a method in accordance with the ritual requirements of any religious faith whereby the animal suffers loss of consciousness by anemia of the brain…” Also challenged was a provision stating that “Nothing in this chapter shall be construed to prohibit, abridge, or in any way hinder the religious freedom of any person or group.” The court ruled that the plaintiff had not presented a justiciable claim because the court could not strike just part of the statute without bringing “about a result that our legislature ‘never contemplated nor intended to accomplish.’”…
A number of fruit juice manufacturers have filed a motion to dismiss the multidistrict litigation (MDL) consumer fraud lawsuits pending in a Massachusetts federal court. In re: Fruit Juice Prods. Mktg. & Sales Practices Litig., MDL No. 2231 (D. Mass, motion filed July 29, 2011). The lawsuits, involving plaintiffs from California, Colorado, Florida, and Massachusetts, allege violations of state consumer protection laws, breach of warranty and unjust enrichment in the sale and promotion of fruit juices purportedly containing lead. The motion asserts that the plaintiffs lack standing because they “have suffered no economic injury,” their pleadings do not allege facts showing a plausible injury, the Nutrition Labeling and Education Act preempts the claims, the suits were brought “under the laws of states in which Plaintiffs do not live and did not purchase any of Defendants’ products,” and the plaintiffs have failed to state any claim under the laws of their home…
A federal court in New Jersey has determined that Pennsylvania and California residents may pursue claims against New Jersey-based Nestlé Healthcare Nutrition, Inc. in consolidated putative class actions alleging that the company’s BOOST Kid Essentials® beverage did not provide its advertised health benefits for children. Scheuerman v. Nestlé Healthcare Nutrition, Inc., No. 10-3684; Johnson v. Nestlé Healthcare Nutrition, Inc., No. 10-5628 (D.N.J., decided August 1, 2011) (unpublished). So ruling, the court granted in part and denied in part Nestlé’s motion to dismiss. While the court ruled that the California plaintiff may not bring a cause of action under the New Jersey Consumer Fraud Act (NJCFA), because the defendant’s presence in the jurisdiction alone is insufficient under conflict-of-law rules to apply the state’s law, the court did give the California plaintiff the opportunity to amend her complaint to allege consumer fraud under California law. Because the Pennsylvania plaintiff alleged that he…
