Category Archives U.S. Circuit Courts

Plaintiffs alleging that they were misled by the purportedly unsubstantiated claims Nestlé USA Inc. made about its Juicy Juice® Brain Development and Immunity products have filed an appeal to the Ninth Circuit Court of Appeals from a district court order dismissing their consolidated class action. Chavez/ Bonsignore v. Nestlé USA, Inc., No. 09-9192 (C.D. Cal., notice of appeal filed June 22, 2011). The lower court apparently gave the plaintiffs two opportunities to state a cognizable claim under California’s unfair competition and false advertising laws before dismissing the action in May 2011. According to the court, the plaintiffs’ second amended complaint “as with previous versions of the plaintiffs’ pleading in this action, is that it lumps together distinct products and multiple factual allegations without giving the reader a clear sense of which allegations support which specific claims.” See Law360, June 23, 2011.

African-Americans who briefly worked at a North Carolina farm in 2010 allege that they were subjected to a hostile work environment and discriminatory job conditions so the employer could obtain certification under a Department of Labor (DOL) program that allows farmers to hire seasonal foreign workers when U.S. workers are not available and hiring foreign workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. Fulford v. Alligator River Farms, LLC, No. 11-00103 (E.D.N.C., filed June 20, 2011). The Equal Employment Opportunity Commission allegedly issued the plaintiffs a letter of determination relating to their claims. According to the complaint, DOL certification requires that employers undertake specified efforts to recruit U.S. workers after the need for the services of foreign workers (referred to as H-2A workers) arises. Among other matters, the employer must submit a job, or clearance, order to the local state employment agency. The…

A woman who claims she consumed Ramona’s burritos believing they were low in calories and sodium, has filed a putative class action alleging that the company mislabeled its products and that the burritos were much higher in calories and sodium than individual labels in and before 2006 and bulk labels indicated. Solomon v. Ramona’s Mex. Food Prods., Inc., No. BC463914 (Cal. Super. Ct., Los Angeles Cty., filed June 17, 2011). Concerns about obesity and an inner ear disorder exacerbated by high sodium intake allegedly led the plaintiff to purchase and consume one to two burritos daily beginning in 2006. At that time, single and multiple packages purportedly indicated that each burrito contained 170 calories and 270 mg sodium. Individual burritos were allegedly re-labeled in 2010 to 340 calories and 580 mg sodium, while the bulk packaging continued to carry the lower values. According to the complaint, “Plaintiff is informed and believes…

A Pennsylvania resident has sued Safeway, Inc. on behalf of a putative nationwide class of consumers who placed online orders for the home delivery of groceries and were allegedly charged about 10 percent more for each item in addition to a delivery fee. Rodman v. Safeway, Inc., No. 11-03003 (N.D. Cal., filed June 17, 2011). According to the complaint, Safeway assures consumers that they will pay the same prices for home-delivered goods that they would pay in the store. An “FAQ” section of Safeway’s website allegedly states “You will be charged the prices charged in the store on the day your order is picked and delivered.” Believing that the prices charged for his initial online order were high, the plaintiff apparently compared the prices for his second order with in-store prices and found that prices for 10 of 14 items included the “secret” add-on cost. Alleging breach of contract, violations…

Alleging that tissue samples from Virtue Calves veal sold for slaughter since 1995 have contained illegal drug residues, the U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) has sued the producer and its owners in a California federal court seeking an order to stop the defendants from selling food containing an unsafe new animal drug, deemed adulterated under federal law. United States v. Virtue, No. 11-902 (E.D. Cal., filed June 22, 2011). According to the complaint, FSIS identified in defendants’ veal calves desfuroylceftiofur, gentamicin, neomycin, penicillin, tetracycline, sulfadiazine, and sulfamethoxazole. While the latter two drugs have never been approved for use on any animals, the remaining drugs have no legal tolerances approved for use in calves, according to FSIS. The agency contends, “Defendants have a long history of illegal drug residues in the edible tissues of the veal calves they sell for use as human food.” The defendants were…

Alleging trademark infringement and unfair competition, Vienna Beef Ltd. has sued a descendant of one of its founders and the competing hot dog company he established in 1986. Vienna Beef Ltd. v. Red Hot Chicago, Inc., No. 11-03825 (N.D. Ill., filed June 6, 2011). When Scott Ladany, whose grandfather started Vienna Beef, left that company in 1983, he purportedly signed a severance agreement promising not to share Vienna’s recipes and  acknowledging their status as trade secrets. According to the complaint, Ladany made “few inroads into Vienna’s dominance in the marketplace” for the next 25 years and then launched a marketing campaign on behalf of Red Hot, referring to the family history of making “Chicago’s finest hot dogs for 118 years.” He also allegedly referred to “a tradition that’s been handed down through four generations of our family.” The plaintiff contends, “The only way that he can claim that he has…

The parties to putative nationwide class actions alleging that Unilever U.S., Inc. falsely advertised that its margarine spreads, including Country Crock® and I Can’t Believe It’s Not Butter®, were good for cardiovascular health are seeking final court approval of a non-monetary settlement that will require the company to remove the trans fat from its products. Rosen/Red v. Unilever U.S., Inc., Nos. 09-02563, 10-00387 (N.D. Cal, joint motion filed June 6, 2011). Class counsel will receive up to $490,000 in fees if the settlement is approved, and the named plaintiffs will receive up to $4,500. Class members will give up their right to any other equitable or monetary relief. The joint motion contends that the product reformulation is a substantial benefit to class members because the company is “the world’s leading manufacturer of margarine” and that requiring the company to do this “will substantially benefit its customers and will encourage competitors to…

A federal court in Arkansas has determined that Liberty Mutual Insurance Co. has a duty to defend an agricultural cooperative in more than 170 civil lawsuits filed by rice farmers over the contamination of their conventional crops with a genetically engineered (GE) variety. Riceland Foods, Inc. v. Liberty Mut. Ins. Co., No. 10-00091 (E.D. Ark., decided June 8, 2011). The court found that while the relevant commercial general liability policies precluded coverage for cross-pollination, they were silent as to liability for the physical mixing of a contaminating crop “with conventional rice during harvest, processing, transportation, or storage,” which the plaintiffs alleged in addition to cross-pollination as an independent cause of their injury. The court held that “the duty to defend remains when cross-pollination is presented as one of several potentially independent causes of the damage.” The court also determined Liberty had no obligation to defend a European rice distributor that was sued in…

A federal court in California has denied Safeway, Inc.’s motion to dismiss or stay proceedings alleging that it has an obligation to use information in its loyalty card customer database to provide email notice about produce recalls ordered by the Food and Drug Administration (FDA) or U.S. Department of Agriculture. Hensley-Maclean v. Safeway, Inc., No. 11-1230 (N.D. Cal., order entered June 13, 2011). Additional details about the case, which was first filed in state court, appear in Issue 380 of this Update. The grocery company argued that the “primary jurisdiction doctrine” or “equitable abstention” required the court to dismiss or stay the litigation “until and unless regulatory agencies have had the opportunity to consider and adopt appropriate rules governing the obligations a grocery store has with respect to providing its customers notice of such recalls.” According to Safeway, the Food Safety Modernization Act requires FDA to develop notice guidelines by…

The Fourth Circuit Court of Appeals has determined that the time poultry workers spend donning and doffing protective gear at the beginning and end of their shifts must be compensated as an “integral and indispensable” part of the principal activity of employment. Perez v. Mountaire Farms, Inc., No. 09-1917 (4th Cir., decided June 7, 2011). Because the time the employees spent doffing and donning some of their gear during an uncompensated meal break was related to their meal break and took a minimal amount of time, the court ruled that time noncompensable. The court found that the employer did not willfully violate the law, thus a two-year statute of limitations was applied to the litigation. And the lack of willfulness was found to be evidence of its good faith, so the court denied the employees’ request for liquidated damages under the Fair Labor Standards Act.

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