A New York resident has sued Campbell Soup Co. alleging that its “Less Sodium” and “Healthy Request” tomato soups are falsely advertised because they contain the same levels of salt and fat as the company’s “regular” tomato soup. Smajlaj v. Campbell Soup Co., No. 10-1332 D.N.J., filed March 12, 2010). Seeking to certify a nationwide class of soup purchasers, the plaintiff alleges that while the company’s “25% Less Sodium” tomato soup contains 480 mg of sodium per serving, so does the company’s “regular” tomato soup. She also alleges that “Healthy Request” soup, advertised as “low in fat and cholesterol,” contains 1.5 grams of fat per serving, while the “regular” tomato soup has 0 grams of fat per serving. According to the complaint, the company sells the “Less Sodium” and “Healthy Request” soups “for a substantially higher price—up to at least 50% higher,” than the “regular” soup. The plaintiff alleges violation of…
Category Archives U.S. Circuit Courts
A New York resident has filed a false-advertising class action in a California federal court against the companies that make certain ice cream products labeled with the statement “0g trans fat.” Carrea v. Dreyer’s Grand Ice Cream, No. 10-1044 (N.D. Cal., filed March 11, 2010). Seeking to certify a nationwide class of ice cream purchasers, the plaintiff alleges false advertising under the Lanham Act and violations of the California Consumers Legal Remedy Act and the misleading and deceptive advertising provisions of the state Business and Professions Code. The plaintiff seeks a declaration that the defendants have committed the alleged violations, restitution, disgorgement, compensatory and punitive damages, interest, and costs. He also asks the court to order defendants to destroy all misleading and deceptive advertising materials and products. According to the complaint, the plaintiff relied on the alleged misrepresentations to conclude “that the Products were in fact healthy and relied upon…
Nearly 1,000 unnamed plaintiffs, who claim to be family members of individuals purportedly killed by terrorist organizations in Colombia’s Urabá region, have sued Chiquita Brands International, Inc., alleging that throughout the 1990s and at least until 2004, the company “funded, armed, and otherwise supported” these organizations “to produce bananas in an environment free from labor opposition and social disturbances.” Does 1 Through 976 v. Chiquita Brands Int’l, Inc., No. 10-404 (D.D.C., filed March 9, 2010). The plaintiffs allege that “[t]he deaths of Plaintiffs’ relatives were a direct, foreseeable, and intended result of Chiquita’s illegal and tortuous support of terrorist organizations.” According to the complaint, the plaintiffs bring their claims anonymously for fear of “violent reprisals, intimidation and death at the hands of the paramilitaries still operating in Colombia.” Their counsel “or his employees have interviewed each of the Doe Plaintiffs and summarized the details of each incident.” The complaint indicates…
A federal court in California has denied a request for preliminary injunction to halt the cultivation of genetically engineered (GE) sugar beets while the USDA’s Animal and Plant Health Inspection Service (APHIS) completes its court-ordered environmental impact statement (EIS) for the crop under the National Environmental Policy Act (NEPA). Ctr. for Food Safety v. Schafer, No. 08-00484 (N.D. Cal., decided March 16, 2010). Because the court already determined that APHIS improperly deregulated Monsanto’s Roundup Ready® sugar beet seed without preparing an EIS, the judge noted that the plaintiffs have established the initial element for obtaining injunctive relief, that is, a likelihood of succeeding on the merits. The judge also found that they have demonstrated the likelihood of irreparable harm, given evidence that the GE crop is capable of contaminating conventional and organic corps. Still, he refused to issue a preliminary injunction to immediately halt the sale, planting, cultivation, and harvesting…
Over the past two years, little has taken place in Pelman v. McDonald’s Corp., the putative class action litigation brought in 2002 on behalf of obese and overweight teenagers who alleged that the fast food restaurant is responsible for their weight-related health conditions. On March 10, 2010, the case was reassigned to U.S. District Court Judge Donald Pogue. Since Judge Robert Sweet recused himself in 2008 from the case he had heard through two trips to the U.S. Court of Appeals, the matter has been passed to three different judges. Currently pending before the court is plaintiffs’ motion to certify the class. Pelman v. McDonald’s Corp., 02-7821 (S.D.N.Y., filed September 30, 2002).
A federal court in California has dismissed without prejudice some of the claims filed by a food supplier in a dispute over insurance coverage in food-contamination litigation. Nat’l Surety Corp. v. Pacific Int’l Vegetable Mktg., Inc., No. 09-4898 (N.D. Cal., decided March 5, 2010). A fast food restaurant was sued for injuries purportedly linked to foodborne contamination, and it filed a third party complaint against the company that supplied the lettuce which allegedly caused the outbreak. The supplier turned to the lettuce grower’s insurer to defend it under a policy that was supposed to include the supplier as an additional insured pursuant to an agreement between the supplier and grower. The insurer refused to defend the claims, and the supplier sued the agent purportedly responsible for adding the supplier to the insurance policy for breach of contract, breach of the covenant of good faith and fair dealing, breach of fiduciary…
The Eighth Circuit Court of Appeals has determined that certain business expense claims and a personal property claim made by a poultry processor for damages sustained during a break in electrical service caused by an ice storm were not covered by the processor’s insurance policy. George’s Inc. v. Allianz Global Risks US Ins. Co., No. 09-2220 (8th Cir., decided March 9, 2010). The insurer paid the processor’s claims for lost business income and extra expenses totaling more than $300,000, but refused to pay $155,000 in fixed labor and overhead costs and $30,000 for chickens that died in the processor’s holding shed. The court agreed with the insurer that the refused claims were subject to exclusions under the insurance policy, rejecting the processor’s contentions that (i) its labor and overhead costs were extra expenses because the processor experienced an increase in cost-per-pound when the business disruption caused it to process less chicken…
A putative class action has been filed in a Washington state court by plaintiffs claiming that L’il Critters Omega-3 Gummy Fish® are deceptively marketed as products that will “Promote Healthy Brain Function” in children. Aust v. NW Natural Prods., Inc., No. 10-07949 (Wash. Super. Ct., King Cty., filed February 23, 2010). In fall 2009, the Federal Trade Commission (FTC) warned the defendant that its claims may violate federal false advertising laws, and the company modified its marketing materials. Additional information about the FTC’s actions on products with omega-3 related claims appears in issue 338 of this Update. Seeking to represent a class of all Washington residents who have purchased the company’s omega-3 gummy fish products, the plaintiffs allege violations of Washington’s consumer protection act, breach of warranties, conversion and unjust enrichment. They seek a class certification order, a declaration that the company’s conduct was unlawful, actual damages, statutory damages including treble…
Three advocacy organizations have sued Department of the Interior Secretary Ken Salazar and the U.S. Fish & Wildlife Service (FWS), charging them with violations of the National Environmental Policy Act (NEPA) for failing to prepare an environmental impact statement (EIS) before entering into contracts that allow farmers to cultivate genetically engineered (GE) crops at the Bombay Hook refuge in Delaware. Delaware Audubon Soc’y v. Salazar, No. 99-9999 (D. Del., filed March 1, 2010). The refuge reportedly spans 16,000 acres of mainly tidal marshes that provide habitat for many waterfowl species that attract birdwatchers. Claiming that GE crops harm the environment by increasing the use of herbicides with adverse effects on soil, water, amphibians, and birds, and with the development of “superweeds” resistant to certain herbicide ingredients, the plaintiffs allege that defendants have repeatedly ignored legal obligations under NEPA to provide an environmental assessment or an EIS. The refuge has leased some…
A federal court in Kentucky has determined as a matter of law that a company which tested, developed and approved paper packaging for customers buying KFC Popcorn chicken breached its contract because the containers caught fire while being microwaved. KFC U.S. Props., Inc. v. Paris Packaging, Inc., No. 09-00249 (W.D. Ky., decided February 25, 2010). So ruling, the court granted KFC’s motion for partial summary judgment. Additional details about the lawsuit appear in issue 299 of this Update. According to the court, the parties’ contract specified that the packaging company would be responsible for ensuring the product was safe regardless of any standards, specifications or other information KFC provided. Because it was reasonably foreseeable that customers would microwave their KFC chicken in the paper box in which they took it home, the court held that the defendant breached its contract by providing unsafe packaging that was unfit for its intended…
