Flying Dog Brewery has filed a lawsuit under the First Amendment, alleging that the Michigan Liquor Control Commission and its individual members violated its free speech rights by prohibiting the company from selling Raging Bitch Twentieth Anniversary Belgian-Style India Pale Ale. Flying Dog Brewery, LLP v. Mich. Liquor Control Comm’n, No. __ (W.D. Mich., filed March 25, 2011). According to the complaint, a British artist, who once worked with journalist Hunter S. Thompson, designed Flying Dog’s beer labels, including the one at issue. The defendants rejected Flying Dog’s application for a license to sell the pale ale in the state, allegedly finding “that the proposed label which includes the brand name ‘Raging Bitch’ contains such language deemed detrimental to the health, safety, or welfare of the general public.” Claiming loss of sales and goodwill, the plaintiff alleges that its label constitutes expression protected by the First Amendment and seeks preliminary and…
Category Archives U.S. Circuit Courts
Hormel Foods, LLC has filed a complaint in a Minnesota federal court against a company that also makes a canned meat product, alleging that the company is infringing Hormel’s SPAM® trademark, which consists of yellow lettering on a blue background. Hormel Foods, LLC v. Zwanenberg Food Group (USA), Inc., No. __ (D. Minn., filed March 30, 2011). The defendant allegedly began selling its product in October 2010 in a can with yellow labeling on a blue background. When Hormel sent a cease and desist letter, the company allegedly switched to a new design, white on a red background. Thereafter, the defendant resumed using the yellow on blue background label for products shipped to the Philippines and Japan. According to the complaint, Hormel has produced 7 billion cans of SPAM® products, making the brand “a famous American icon. Its timelessness has earned it roles in films, a fan club and a…
A coalition of more than 50 trade organizations, seed businesses, farms, and farmers has filed a lawsuit in a federal court in New York, to stop Monsanto Co. from enforcing its genetically engineered (GE) seed patents against farmers whose fields become contaminated with the GE seeds. Organic Seed Growers & Trade Ass’n v. Monsanto Co., No. 11-2163 (S.D.N.Y., filed March 29, 2011). Among other matters, the plaintiffs claim that the seed patents are invalid, because “only technology with a beneficial societal use may be patented,” they violate “the prohibition against double patenting, each is anticipated or rendered obvious by prior art, and each fails to satisfy the requirements of written description, enablement and best mode.” The plaintiffs also allege that the patents are not infringed by farmers whose fields become contaminated with GE seeds, because the farmers do not intend to use them, “and Monsanto’s patent rights in transgenic seed exhaust…
A federal court in New Jersey has granted in part the motion to dismiss filed by the Campbell Soup Co. in litigation alleging that consumers were misled by the company’s lower-sodium labels, believing they were a healthier alternative to regular soups, which allegedly contain about the same levels of sodium as the more expensive low-sodium versions. Smajlaj v. Campbell Soup Co., No. 10-1332 (D.N.J., decided March 23, 2011). The plaintiffs seek to represent a nationwide class of consumers, and named plaintiff Rosa Smajlaj has voluntarily dismissed her claims, so the suit will proceed with four other New Jersey residents as named plaintiffs. The defendant sought to dismiss the claims under the plausibility pleading standard established in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), and on the basis of federal preemption. The court determined that the claims of misleading labels were not…
Finding that the class definition approved by the district court was inconsistent with its analysis of the class certification requirements, the Eleventh Circuit Court of Appeals has returned litigation over the purportedly misleading digestive health claims for YoPlus yogurt to a district court in Florida. Fitzpatrick v. General Mills, Inc., No. 10-11064 (11th Cir., decided March 25, 2011). Additional information about the case appears in Issue 296 of this Update. When it decided to grant the plaintiffs’ motion for class certification, the district court apparently defined the class as “all persons who purchased YoPlus in the State of Florida to obtain its claimed digestive health benefit.” The defendant challenged this definition on the ground that it requires individualized fact-finding, and the court had specifically determined that common issues predominate over individualized issues. According to the appellate court, the district court “conducted a detailed analysis of the requirements necessary for a…
The Eleventh Circuit Court of Appeals has affirmed a district court ruling finding that a $97 million judgment entered by a Nicaraguan court to compensate 150 Nicaraguan agricultural workers for injuries allegedly caused by workplace exposure to a pesticide is unenforceable under Florida law. Osorio v. Dow Chem. Co., No. 10-11143 (11th Cir., decided March 25, 2011). The appellate court agreed that (i) “the Nicaraguan court lacked subject matter jurisdiction and/or personal jurisdiction over the defendants”; (ii) “the foreign judgment could not be recognized in Florida because the judgment was ‘rendered under a system which does not provide . . . procedures compatible with the requirements of due process of law’”; and (iii) “the Nicaraguan judgment could not be recognized under Florida law because doing so would be repugnant to Florida public policy.” The court declined to address whether Nicaragua “as a whole ‘does not provide impartial tribunals’” and also…
Relying on the first-to-file rule, a federal court in New Jersey has transferred a putative class action alleging false advertising for a Breyers ice cream product to a federal court in California that is considering similar litigation. Catanese v. Unilever d/b/a/ Breyers, No. 10-5755 (D.N.J., decided March 28, 2011). The plaintiffs in a number of cases have alleged that ice cream containing alkalized cocoa cannot be advertised as “all natural” because alkalized cocoa powder is chemically altered. The first such case was filed in a California federal court against Ben & Jerry’s, a Unilever company, in September 2010. A nearly identical action involving Breyers products was also filed in a California federal court three days before the Catanese plaintiffs filed their complaint. According to the court, “Conducting this class action in one forum will benefit both the public and private interests by avoiding duplicative litigation.” Information about a similar case filed in…
Kellogg Co. has filed a lawsuit in a Michigan federal court against the Canadian packaging company that supplied allegedly defective liners with “offensive characteristics” (taste and odor) that purportedly caused nausea and diarrhea in some Kellogg cereal consumers and forced a “costly nationwide recall” of four company products. Kellogg Co. v. FPC Flexible Packaging Corp., No. 11-272 (W.D. Mich., S. Div., filed March 18, 2011). The cereal maker alleges violations of Michigan’s Uniform Commercial Code, breach of contract and express and implied indemnification. Alleging damages in excess of $75,000, Kellogg also seeks a declaratory judgment that it is not liable for payment of $3.3 million in materials still in the packaging company’s possession or for the $1.04 million in defective liners provided to Kellogg. According to the complaint, the packaging company has demanded payment for the liners and the materials used in their production.
Nearly 700 heirs and estates of Colombian citizens allegedly killed by “a right-wing terrorist organization” that purportedly received financial and other support from Chiquita Brands International and its subsidiaries and affiliates have sued the companies seeking monetary, injunctive and declaratory relief. Does 1 through 677 v. Chiquita Brands Int’l, Inc., No. 11-00582 (D.D.C., filed March 17, 2011). The lawsuit involves claims and litigants not included in similar litigation filed in 2010. The plaintiffs, who claim to be the “family members of trade unionists, banana workers, political organizers, social activists, and others targeted and killed by terrorists,” allege that the defendants “funded, armed, and otherwise supported” a paramilitary organization “to produce bananas in an environment free from labor opposition and social disturbances.” According to the plaintiffs, the companies’ actions violated Colombian, U.S. and international law “prohibiting crimes against humanity, extrajudicial killing, torture, war crimes, and other abuses.”
According to news sources, a New Jersey tire salesman has filed a personal injury lawsuit in a state court against the company that makes Four Loko®, an alcoholic beverage that until late 2010 also contained caffeine; he alleges that after drinking two and one-half cans, he was taken to a hospital with heart arrhythmia. Mustica v. Phusion Projects, No. __ (N.J. Super. Ct., Atlantic Cty., filed March 16, 2011). Each can purportedly contained the equivalent of three cans of beer and the same amount of caffeine as two cups of coffee. While the maker of the energy drink apparently continues to maintain that mixing alcohol and caffeine is safe, it agreed to remove caffeine from the product in November 2010. The plaintiff claims that he consumed the beverage on a visit to Atlantic City in October, fell asleep and, on waking, had a racing heart and trouble breathing. Alleging permanent…
