A number of Minnesota-based apple growers have filed a complaint against the regents of the University of Minnesota and others claiming that exclusive and limited licensing agreements pertaining to the cultivation and sale of a new apple variety violate federal and state competition and restraint of trade laws. Aamodt Apple Farm, Inc. v. Regents, U. Minn., No. __ (Minn. Dist. Ct., Hennepin Cty., filed June 16, 2010). According to the complaint, the SweeTango®, a cross between the Honeycrisp™ and Zestar!™ varieties, was developed with the use of state funding through the university’s apple-breeding program. One grower allegedly has an exclusive license to grow the apple and may license others to grow it on its behalf. The agreements allegedly limit the number of trees that can be planted and where and how the apples can be sold. The plaintiffs allege unreasonable restraint of trade in commerce; establishment, maintenance and use of a…
Category Archives U.S. Circuit Courts
A Wisconsin organic farm was reportedly scheduled to argue in court this week that state restrictions on the sale of raw milk do not apply where the sales are made to consumers who are part owners of the farm. While the legislature recently attempted to change a law that regulators contend allows incidental raw milk sales only, the state calls the farm’s sales in excess of $80,000 yearly to consumers, who each own a $10 share in the farm, well beyond what the law allows. Wisconsin’s governor vetoed the popular bill, which would have allowed on farm raw milk sales, apparently concerned that E. coli outbreaks purportedly linked to consumption of the unpasteurized product could affect the state’s entire dairy industry. Raw milk proponents dispute that any such link exists. Meanwhile, public health officials investigating a recent E. coli outbreak that has allegedly sickened eight Minnesota residents including school-aged children…
The Environmental Law Foundation has notified more than four dozen food manufacturers and retailers that they are in violation of California’s Proposition 65 Toxics Right to Know law (Prop. 65) after testing purportedly indicated the presence of lead in numerous fruit and fruit juice products. According to the foundation, “apple juice, grape juice, packaged pears and peaches (including baby food), and fruit cocktail” products contained “enough lead in a single serving that they require a warning” under Prop. 65, and the companies, since June 9, 2009, “have exposed and continue to expose consumers of their food products to lead” every day. California’s attorney general, city attorneys and county district attorneys received copies of the notice. The foundation declares in the notices that it intends “to bring suit in the public interest” against the listed companies in 60 days to correct the Prop. 65 violations. A foundation news release indicates that…
A plaintiffs’ firm has announced a $25 million partial settlement in an antitrust class action “brought on behalf of direct purchasers of shell eggs and egg products.” In re: Processed Eggs Antitrust Litigation, MDL No. 2002 (E.D. Pa.). According to Hausfeld LLP, plaintiffs alleged “a near industry-wide, price-fixing conspiracy among egg farmers which raised the price of shell eggs and egg products in violation of the Sherman Antitrust Act.” The lawsuit specifically claimed that the United Egg Producers, United States Egg Marketers and other trade associations coordinated a conspiracy “to restrict egg supply through cage space requirements, as well as coordinated molting schedules and hen reductions, and exported eggs at a loss in order to reduce domestic supplies and raise prices.” The three settling defendants—Land O’Lakes, Inc., Moark, LLC, and Norco Ranch Inc.—have reportedly agreed “to provide significant cooperation to the plaintiffs as they pursue their claims against the remaining, non-settling…
A Missouri resident has filed a complaint in federal court against Kraft Foods Inc., alleging that it has been marking its Kool-Aid® and Country Time Lemonade® drink mix packages with the U.S. patent numbers for container patents that expired in April 2008. Brown v. Kraft Foods Inc., No. 10-1007 (E.D. Mo., filed June 1, 2010). Claiming that the marking violates 35 U.S.C. § 292, the plaintiff seeks injunctive relief, “a civil monetary fine of $500 per false marking offense,” costs, attorney’s fees, and interest. This litigation is one of a recent crop of false marking lawsuits to which the Federal Circuit Court of Appeals apparently opened the door when it ruled that the penalty could be imposed under the law on a per unit basis. Shook, Partner Peter Strand is focusing on false marking issues in his May and June IpQ newsletters. The May issue can be accessed here.
The multidistrict litigation (MDL) court before which cases alleging a failure to disclose the possible harmful effects of plastic bottles containing bisphenol A (BPA) have been consolidated for pretrial proceedings has granted in part and denied in part the plaintiffs’ discovery motion. In re: Bisphenol-A (BPA) Polycarbonate Plastic Prods. Liab. Litig., MDL No. 1967 (W.D. Mo., order entered May 26, 2010). The plaintiffs apparently sought to compel the disclosure of information relating to products other than plastic bottles, such as “plastic eating utensils, plastic plates and other food contact items,” and to non-health related information from more than five years before the lawsuit was filed. The court determined that it was too late to amend the complaint to include the manufacturers of the additional products, emphasizing that “this case was not intended to—and will not—become an all-encompassing ‘BPA case.’” The court also found that the burden on defendants of complying with these…
A federal magistrate in New York has recommended that the district court deny the class certification motion filed by plaintiffs who allege either personal or economic injury from the purchase of frozen ground beef products purportedly tainted with E. coli. Patton v. Topps Meat Co., No. 07-654 (W.D.N.Y., recommendation entered May 27, 2010). The defendants include the meat processor and a number of retailers, and the claims are based on a 2007 recall involving more than 20 million pounds of ground beef. Forty cases of E. coli infection in eight states were allegedly traced to the product. The plaintiffs sought to certify two nationwide classes of those who consumed the product and have personal injury claims and those who purchased the products subject to the recall and allege economic losses. Because specific causation, that is, “whether the contaminated meat caused the personal injuries of the individual class members,” would require an…
Mini’s Cupcakes, Inc. has sued LuAnn’s Cupcakes, Inc. in a federal court in Utah, claiming the infringement of trade dress rights by LuAnn’s sale of cupcakes substantially the same in appearance as Mini’s gourmet “Breakfast at Tiffany’s” cupcake. Mini’s Cupcakes, Inc. v. LuAnn’s Cupcakes, Inc., No. 10-457 (D. Utah, filed May 14, 2010). The distinctive design allegedly features “vanilla cake, blue cream cheese frosting and silver and white gems. According to Mini’s, LuAnn’s “Tiffany Jewel” cupcakes are so similar that the “ordinary observer” will be confused about the origin of LuAnn’s product. The plaintiff alleges trade dress infringement, unfair competition, false designation of origin, passing off, and false advertising under federal law; common law unfair competition, misappropriation, and trade dress infringement under state law; and vicarious trade dress infringement against a supermarket that distributes the alleged infringing cupcakes. Mini’s seeks injunctive relief, an accounting of profits, compensatory damages, attorney’s fees, and…
Pennsylvania-based chocolate maker Hershey Co. has filed a Lanham Act lawsuit against Williams-Sonoma Inc., alleging that the kitchen product retailer is marketing and selling a baking pan that infringes Hershey’s “Chocolate Bar Design Mark,” a purportedly distinctive rectangle scored into 12 smaller rectangles. The Hershey Co. v. Williams-Sonoma, Inc., No. 10-1011 (M.D. Pa., filed May 12, 2010). According to the complaint, Hershey has been selling its chocolate bar for more than 100 years and registered its design in 1968. Hershey alleges that defendant’s unauthorized use of the design mark will cause confusion and that potential purchasers and consumers are likely to believe the infringing brownie pan is licensed by or affiliated with Hershey or its products. As an example of that confusion, the complaint quotes alleged online consumer comments about the baking pans: “you can make your own little hershey’s miniatures”; “It’s like a Hershey’s bar with individual brownies”; and “Whether you’re…
A Minnesota company that produces cheese has filed a complaint in federal court against an ingredients and flavorings company, alleging that it supplied a flavoring ingredient with phenolic compounds that “caused the cheese in which it was used to have a taste repugnant to certain of the customers who consumed the cheese.” Bongards’ Creameries v. Kerry Ingredients & Flavours, No. 10-2058 (D. Minn., filed May 14, 2010). According to the complaint, flavoring company representatives agreed that the cheese contained unacceptable levels of “off” flavors but refused to pay the cheese maker’s losses in excess of $1.3 million associated with the recall of 800,000 pounds of “contaminated cheese.” Alleging breach of implied warranties of merchantability and fitness for a particular purpose and breach of contract, the plaintiff seeks compensatory damages, attorney’s fees and costs.
