A number of Burger King Corp. franchisees in California have filed a complaint for declaratory relief in federal court, claiming that the company has no basis for demanding that they pay the cost of settlement or its attorney’s fees and costs in a recently settled disability discrimination lawsuit. Newport v. Burger King Corp., No. 10-4511 (N.D. Cal., filed October 5, 2010). They seek an order declaring that Burger King is not entitled to indemnification as well as attorney’s fees and costs. According to the complaint, Burger King has demanded indemnification for a settlement it reached over complaints that its restaurants were not accessible to the disabled. “If the Plaintiff franchisees do not pay BKC’s unfounded demand, BKC threatens to ‘terminate’ their franchise agreements, engage in self-help by withholding money owed to the franchisees, and/or otherwise retaliate against franchisees by preventing them from obtaining new restaurant opportunities or limiting to whom they…
Category Archives U.S. Circuit Courts
A multidistrict litigation (MDL) court in Missouri has issued a number of rulings on motions for summary judgment and to exclude or limit expert testimony in the bellwether cases involving Texas rice farmers who allege that contamination of the U.S. rice supply with genetically modified (GM) rice caused a precipitous decline in prices for their crops on world markets. In re Genetically Modified Rice Litig., MDL No. 1811 (E.D. Mo., decided October 4, 2010). The court’s pre-trial rulings are similar to its rulings in previous bellwether trials involving farmers in Arkansas, Louisiana, Mississippi, and Missouri. The court determined, among other matters, that (i) the Texas farmers could not sue for violation of a North Carolina statute; (ii) the economic loss doctrine did not bar the plaintiffs’ claims; (iii) the plaintiffs could pursue claims for private nuisance but not for public nuisance; (iv) the defendants cannot assert as a defense that…
A multidistrict litigation (MDL) court has dismissed the claims of 16 plaintiffs who alleged that they or their minor children became ill as a result of eating peanut butter contaminated with Salmonella. In re ConAgra Peanut Butter Prods. Liab. Litig., MDL No. 1845 (N.D. Ga., decided September 29, 2010). According to the court, “The best way to show that peanut butter is contaminated with Salmonella is to test the peanut butter itself. The fact that the peanut butter was recalled does not mean that it was contaminated. In fact, most of the recalled peanut butter was free of Salmonella contamination.” Noting that the plaintiffs could also use circumstantial evidence to show that they ate contaminated peanut butter, the court determined that these plaintiffs could not show that the peanut butter they ate was made at the affected plant during the outbreak period (by means of a product code stamped on…
A federal court in New Jersey has issued a preliminary order granting certification of a nationwide class for settlement purposes in litigation against Unilever U.S., Inc., alleging that reduced-calorie labels for its Breyers Smooth & Dreamy Ice Cream® violated consumer fraud law. Ercoline v. Unilever U.S., Inc., No. 10-01747 (D.N.J., order filed October 4, 2010). The class consists of all U.S. purchasers of Breyers and Unilever branded ice cream products represented as reduced-calorie since April 2004. The court also approved the form and content of the class notice and will allow settlement class members to opt out if they make the request at least 20 days before the final approval hearing, scheduled for March 21, 2011. Objections to the proposed settlement must be filed within 45 days of the class notice publication. According to a news source, Unilever continues to deny that it misrepresented the calorie content of its ice cream…
Two days after the Center for Science in the Public Interest (CSPI) announced that Ben & Jerry’s had agreed to phase out claims that its ice creams and frozen yogurts were “All Natural,” when some product ingredients are processed, a putative class action was filed in a California federal court against the company seeking money damages for false advertising and an injunction to stop the company from making such claims. Astiana v. Ben & Jerry’s Homemade, Inc., No. 10-4387 (N.D. Cal., filed September 29, 2010). In August 2010, CSPI claimed that 48 of the company’s products were mislabeled because they contained unnatural ingredients, and the watchdog threatened to bring its concerns to the Food and Drug Administration (FDA). More details about CPSI’s action appear in Issue 360 of this Update. On September 27, CSPI praised the company for amicably resolving the dispute; the company’s response indicated that it would remove the…
A federal court in California has determined that an agency decision to allow planting of genetically modified (GM) sugar beet stecklings (seedlings) without conducting an environmental assessment likely violated federal law and has ordered the parties to file briefs as to the appropriate remedy now that most of the stecklings authorized have been planted. Ctr. for Food Safety v. Vilsack, No. 10-04038 (N.D. Cal., decided September 28, 2010). Additional information about the lawsuit’s challenge to action taken by the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) appear in Issue 363 of this Update. The court first addressed whether seed companies could intervene in the matter and ruled that they could do so as to the remedies, but not as to the merits, that is, whether APHIS violated federal environmental laws including the National Environmental Policy Act (NEPA) by issuing the permits without conducting an environmental review. The…
The Sixth Circuit Court of Appeals has determined that parts of an Ohio law regulating the use of labeling on dairy products from cows not treated with growth hormones violate the First Amendment. Int’l Dairy Foods Ass’n v. Boggs, Nos. 09-3515/3526 (6th Cir., decided September 30, 2010). The court also upheld other provisions and remanded parts of the rule relating to antibiotics and pesticides for further proceedings. Thus, the court overturned, in part, a district court determination that upheld most of the rule’s provisions. The Ohio Director of Agriculture adopted a rule in May 2008 that (i) prohibited dairy producers from claiming their milk was hormone-free (a composition claim) and (ii) placed stringent restrictions on the use of the claim “this milk is from cows not supplemented with rbST [recombinant bovine somatotropin or recombinant bovine growth hormone (rbGH)]” (a production claim). Among other matters, the latter require verification, and contiguous…
A Kentucky man accused of murdering his wife reportedly notified the court that he would defend himself by claiming that a high caffeine intake, from soft drinks, energy drinks and diet pills, made him temporarily insane and unable to form the requisite criminal intent to kill his wife. During opening statements, however, his attorney apparently stated that Woody Will Smith did not murder his wife, but provided a false confession to police because of high stress from large amounts of caffeine and a lack of sleep. According to news sources, the caffeine defense has been used before and was successful in the case of an Idaho man who allegedly injured two pedestrians with a car. A judge reportedly concluded that this man could not form the mental intent to commit the crime after consuming two large cups of coffee following a restless night and weeks of hard work. Experts have…
Snapple Beverage Corp. has requested that a federal district court dismiss the individual claims remaining in litigation alleging that the company misled consumers by labeling beverages containing high-fructose corn syrup (HFCS) as “all natural.” Weiner v. Snapple Beverage Corp., No. 07-8742 (S.D.N.Y., motion filed September 17, 2010). In August 2010, the court issued an order denying plaintiffs’ request to certify a statewide class of claimants. Additional information about that order appears in Issue 363 of this Update. According to the defendant’s memorandum of law supporting its motion, while the plaintiffs “seek recovery of an alleged ‘price premium’” that they paid for the products, they (i) do not know how much they actually paid for Snapple, (ii) made no effort to determine how comparable products were priced when they purchased Snapple beverages, (iii) lack any receipt to document a Snapple purchase, (iv) “cannot recall with any certainty the price they paid…
A putative class action has apparently been filed in a federal court in Illinois by six named plaintiffs who allegedly became ill after consuming Salmonella-tainted eggs from Wright County Egg and Hillandale Farms in Iowa. The plaintiffs’ attorney has reportedly been given permission to inspect the farms for evidence. According to a news source, the plaintiffs allege that the companies’ negligence is responsible for the outbreak and suggest that more than the known 1,500 individuals sickened by the contaminated eggs could be class members. In a related development, news sources report that Wright County Egg had dozens of positive results for Salmonella from swabs taken on conveyor belts and in other facility areas as early as 2008 and failed to notify local, state or federal officials. Animal safety experts reportedly called such contamination “surprising” and suggested that repeated positives indicate the company was not “getting to the root cause of what the…
