A putative class alleging that the extra virgin olive oil sold in the United States does not meet the “extra virgin” standard has filed consumer fraud claims against several of the largest importers of the product in a state court in Florida. Nachio v. Am. Rice, Inc., No. 10-33154 (Fla. Cir. Ct., filed August 13, 2010). Like the plaintiffs in a class action filed in California, named plaintiff Joseph Nachio refers to the June 2010 extra virgin olive oil study conducted by University of California at Davis’s Olive Oil Center researchers who concluded that the defendants’ products are not “extra virgin” olive oil. Additional information about that litigation appears in Issue 359 of this Update. Nachio contends that the time-sensitive process required to produce extra virgin olive oil makes it impossible for defendants to sell the quantities they do, and that they sell true extra virgin olive oil solely in countries…
Category Archives U.S. Circuit Courts
A New York bankruptcy court will reportedly allow Chemtura Corp. to resolve 90 percent of the respiratory disease claims pending against it for $50 million, or one-third of the $150 million sought by factory workers allegedly exposed to the popcorn-flavoring ingredient diacetyl. In re: Chemtura Corp., No. 09-11233 (S.D.N.Y., settlement approved August 23, 2010). Responding to claims by co-defendants that the settlement may not meet “good faith” requirements, the court reportedly indicated that it was “within the range of reasonableness.” The settlement will apparently resolve 15 lawsuits and 347 proofs of claim filed by individuals alleging personal injury from diacetyl exposure. The company has indicated that eight additional individual and five corporate diacetyl claims remain pending. According to a news source, the company has also reached an agreement with its insurers to cover half the cost of the settlement and provide up to a maximum of $10 million to indemnify…
According to a news source, a man who worked in a Chicago-area plant for eight years and was diagnosed with bronchiolitis obliterans has been awarded $30.4 million on claims that workplace exposure to the butter-flavoring chemical diacetyl left him with 25 percent of normal lung capacity that will require a lung transplant within the next 10 years. Solis v. BASF Corp., No. ___ (Ill. Cir. Ct., Cook Cty.) The largest verdict previously awarded in a similar case was $20 million to a former popcorn plant worker in Missouri. Plaintiff Gerardo Solis, 45, was represented by Independence, Missouri, attorney Ken McClain. See The Joplin Globe, August 16, 2010.
A lawsuit filed in a federal court in California by a putative class of parents on behalf of their children alleges that Clearspring Technologies, Inc. and other companies used an online tracking device that enabled their websites to access and disclose users’ online activities and personal information. White v. Clearspring Techs., Inc., No. 10-5948 (C.D. Cal., filed August 10, 2010). Based on research conducted at the University of California, Berkeley, the complaint alleges that the companies install a Flash cookie on user computers without the users’ knowledge or consent, and the cookie can re-spawn itself even when users regularly delete their cookies. According to the research article, the “top 100 websites are using Flash cookies to ‘respawn,’ or recreate deleted HTTP cookies. This means that privacy-sensitive consumers who ‘toss’ their HTTP cookies to prevent tracking or remain anonymous are still being uniquely identified online by advertising companies. Few websites disclose their…
Renowned restaurateurs Mario Batali and Joseph Bastianich have reportedly been sued by workers in their East and West Coast restaurants. A complaint filed in late July 2010 by current and former employees of New York City’s Babbo Ristorante e Enoteca was amended to include a class of employees who work in five additional east coast eateries. They reportedly allege that the Batali-Bastianich enterprise “unlawfully confiscated a portion of their workers’ hard-earned tips in order to supplement their own profit. At the end of every shift, instead of distributing customers’ credit card tips to the workers who earned them as the law requires, Mr. Batali, Mr. Bastianich, and their restaurants took from the tip pool an amount equal to approximately 4-5% of the restaurants’ wine sales (and sometimes other beverage sales) for the night and put it in their own pockets.” The New York plaintiffs are apparently seeking class certification and…
A putative class action has been filed against the maker of POM Wonderful® pomegranate (PWP) juice in a Florida state court, alleging that the company is misleading consumers by marketing its product “as having special health benefits, including but not limited to, the prevention, mitigation, and or treatment of the following: (a) atherosclerosis; (b) Blood Flow/Pressure; (c) Prostate Cancer; (d) Erectile Function; (e) cardiovascular disease; (f) Reduce LDL cholesterol; (g) and other age related medical conditions.” Giles v. POM Wonderful, LLC, No. 10-32192 (Fla. Cir. Ct., Broward Cty., filed August 6, 2010). Seeking to represent a statewide class of consumers, the plaintiff claims, “In sum, the message is drink PWP and it will keep you young forever.” According to the complaint, the company has no reasonable basis for making its health-related marketing claims and has, in fact, been warned by the Food and Drug Administration that the product’s labeling directly…
A federal court in California has decided to stop all new planting of genetically modified (GM) sugar beets in light of its September 2009 ruling that the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) violated environmental law when it deregulated the crop without conducting an appropriate environmental assessment. Ctr. for Food Safety v. Vilsack, No. 08-00484 (N.D. Cal., decided August 13, 2010). Additional information about the court’s prior ruling appears in Issue 320 of this Update. While the court granted the plaintiffs’ request to vacate APHIS’s deregulation decision, it denied their motion for a permanent injunction. The court determined that vacatur was justified because APHIS’s errors were serious. “Moreover,” the court observed, “APHIS’s apparent position that it is merely a matter of time before they reinstate the same deregulation decision, or a modified version of this decision, and thus apparent perception that conducting the requisite comprehensive…
The Ninth Circuit Court of Appeals has determined that an agreement among grocery chains in Southern California to share profits during an anticipated labor strike was anticompetitive in violation of the Sherman Act and rejected defendants’ argument that the violation could be excused because the agreement was designed to be used as an economic weapon in a labor dispute. California v. Safeway, Inc., Nos. 08 55671, 08-55708 (9th Cir., decided August 17, 2010). According to the court, despite the limited duration of the agreement and the fact that the groceries involved constituted, at most, 70 percent of the market, the agreement was anticompetitive because it removed all incentive to compete by providing lower prices or better service to consumers. The court disagreed that the defendants needed the pact to effectively bargain with striking employees. In this regard, the court stated, “Defendants claim no purpose for their agreement beyond strengthening their hands…
A California appellate court has reversed a summary judgment order that terminated litigation involving claims that chain restaurants violated Proposition 65 (Prop. 65) by selling grilled chicken products to consumers without appropriate warnings about carcinogens created by the cooking process. Physicians Comm. for Responsible Med. v. McDonald’s Corp., No. B218089 (Cal. Ct. App., decided August 12, 2010). The carcinogens at issue are polycyclic aromatic hydrocarbons and PhIP (2-amino-1-methyl-6-phenylimidazol[4,5-b]pyridine). The trial court had dismissed the claims in late 2008 finding that the proposed warnings, which mentioned “well cooked,” “thoroughly cooked” and “grilled” chicken, were barred by conflict preemption because they would frustrate the U.S. Department of Agriculture’s (USDA’s) “longstanding policy of promoting the safe cooking of chicken” under the federal Poultry Products Inspection Act (PPIA). The court agreed with the defendants that the warnings would have frightened consumers from properly cooking chicken. The trial court dismissed the claims again in June 2009…
Alleging that no scientific evidence supports Wm. Wrigley Jr. Co.’s claim that the cardamom in its Eclipse® Breeze chewing gum “neutralize[s] the toughest breath odors,” a California resident has filed consumer fraud claims against the company in a federal court on behalf of a nationwide class of consumers. Sityar v. Wm. Wrigley Jr. Co., No. 10-5965 (C.D. Cal., filed August 10, 2010). The complaint alleges that he was misled by the company’s claims and “has spent money purchasing the Product at a price premium when the Product actually had less value than was reflected in that price he paid for the Product.” Seeking restitution, disgorgement, declaratory and injunctive relief, a corrective advertising campaign, costs, and attorney’s fees, the plaintiff alleges violations of California unfair competition and false advertising laws, breach of express warranty and violation of California’s Consumer Legal Remedies Act. The plaintiff alleges that the only evidence of “medicinal properties”…
