A California trial court has determined that the insurer of the nation’s largest seller of bagged fresh spinach must pay for its losses from the 2006 nationwide E. coli outbreak that led to a Food and Drug Administration (FDA) advisory against eating any fresh spinach. Fresh Express, Inc. v. Beazley Syndicate 2623/623 at Lloyd’s, No. M88545 (Cal. Super. Ct., Monterey Cty., decided August 18, 2009). The outbreak was ultimately traced to a different producer, and the insurer denied coverage. Following a bench trial, the court determined that (i) the produce company introduced sufficient evidence to establish that it committed “errors” within the policy’s meaning by failing, before purchasing spinach, to conduct a food safety audit of the field where it was grown to verify that the growers had complied with good agricultural practices; (ii) this verification of good practices compliance “was an integral and inseparable part of its safe manufacturing practices”;…
Category Archives U.S. Circuit Courts
Illinois Attorney General Lisa Madigan has filed lawsuits against companies that make, market or supply açai berry products, touted as weight loss dietary supplements, charging that they are scamming consumers with aggressive marketing campaigns, prematurely billing their credit cards, not always supplying the product ordered, and making it nearly impossible to cancel once a “free trial” has been implemented. The product ads purportedly feature images of celebrities such as Rachel Ray, Oprah Winfrey, Mehmet Oz, M.D., Gwyeth Paltrow or Courtney Love, despite their alleged lack of a promotional contract with the companies. The complaints seek injunctive relief, restitution and civil penalties.
In the wake of lawsuits filed by the manufacturer of a pomegranate-juice based product line, consumers have now begun seeking damages against the same defendants for alleged deception and fraud in the sale of pomegranate juice purportedly containing “little or no pomegranate juice.” Burcham v. Welch Foods, Inc., No. 09-05946 (C.D. Cal., filed August 14, 2009). Additional information about the lawsuits filed by POM Wonderful LLC against Welch Foods, Inc. and Ocean Spray Cranberries, Inc. appears in issues 290 and 313 of this Update. According to plaintiff Maryam Burcham, seeking damages for herself and a class of “All persons residing in California who purchased Welch’s ‘White Grape Pomegranate Juice,”’ the defendant’s product “purports to combine white grape and pomegranate into a single juice product. However, the truth is that the main ingredients in Defendant’s White Grape Pomegranate Juice are actually cheap white grape and apple juice, instead of pomegranate juice,…
A federal court in New York has decided to allow most parts of a new state bottle-deposit law to take effect, lifting a injunction that would have delayed implementation until April 2010. Int’l Bottled Water Ass’n v. Paterson, No. 09-4672 (S.D.N.Y., decided August 13, 2009). Additional details about the litigation challenging the law’s constitutionality appear in issue 305 of this Update. The court’s decision overturns an order entered in late May 2009 granting injunctive relief. According to a news source, the ruling means that soft drink and beer makers must now give the state 80 percent of the unclaimed 5-cent deposits, and store and redemption handling fees will increase from 2 cents to 3.5 cents per container. Water companies making products containing flavored water, vitamin water and artificial sweeteners have apparently been given until October 22 to comply with the law, unless they can prove compliance is impossible. They did…
The Third Circuit Court of Appeals has determined that federal food labeling law does not preempt the state law-based claims filed by a consumer who challenged Snapple’s designation of beverages containing high fructose corn syrup (HFCS) as “natural.” Holk v. Snapple Beverage Corp., No. 08-3060 (3d Cir., decided August 12, 2009). The appeals court reversed a lower court ruling dismissing the claims on the basis of implied preemption. The complaint, originally filed in state court, but removed to federal court in 2007 under the Class Action Fairness Act, initially asserted that Snapple products were not “All Natural” because they contained HFCS; they were not “Made from the Best Stuff on Earth”; and Snapple falsely labeled some beverages, naming them after fruit-juice varieties that were not actually in the beverages. The plaintiff alleged unjust enrichment and common law restitution, breach of express and implied warranties and violations of the New Jersey…
A California state judge has reportedly issued a tentative ruling on the styrene industry’s request to enjoin Proposition 65 (Prop. 65) regulators from listing styrene as a chemical known to the state to cause cancer. Styrene Info. & Research Ctr. v. OEHHA, No. 09-53089 (Cal. Super. Ct., Sacramento Cty., decided August 12, 2009). Further details about the litigation appear in issue 313 of this Update. According to a news source, Superior Court Judge Shelleyanne Chang found no “known” evidence that styrene is a carcinogen and that the designation would likely have a devastating and stigmatizing effect on the product’s use. Widely used in food packaging, styrene plastics are apparently crucial to the transportation and sale of strawberries, raspberries and blueberries, state industries worth $1.6 billion. California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has proposed listing styrene as a Prop. 65 substance, which would require public warnings, based on “possibly…
The Eleventh Circuit Court of Appeals has determined that a district court did not abuse its discretion by deciding that the Alien Tort Claims Act and Torture Victim Protection Act claims of seven Guatemalan banana plantation workers would best be heard in a Guatemalan court. Aldana v. Del Monte Fresh Produce N.A., Inc., No 07-15471 (11th Cir., decided August 13, 2009). The litigation arose from a 1999 labor dispute in Guatemala during which a number of trade union workers were allegedly roughed up by a private security force purportedly hired by defendant’s subsidiary, which owned the large banana plantation involved in the dispute. A circuit court panel majority agreed with the district court’s forum non conveniens analysis, ruling that it did not err by giving preclusive effect to prior state court findings on these issues and in finding that Guatemala’s courts were adequate and that “the plaintiffs’ choice of forum…
South Carolina poultry production line workers have reportedly sued their employer, claiming they are not paid for the time they spend donning and removing safety gear. According to a news source, the complaint alleges that this can extend a worker’s shift by some 75 minutes each day. The employees also alleged that they are required to stand in line before clocking in to start their shifts so they can purchase the protective gear they need, such as gloves, hair nets, face masks, earplugs, and arm sleeves. Apparently, this gear is damaged regularly while in use, so the workers must buy the supplies at the worksite with a company debit card several times each week. The employer has reportedly countered that it “does not consider time spent in line for supplies and time donning and doffing the minimal gear as compensable time.” According to the company, which was recently indicted for…
A woman who alleges that General Mills, Inc. deceives the public by claiming its Yo-Plus® probiotic yogurt is beneficial for human digestion has filed a motion for class certification in a federal court in Florida. Fitzpatrick v. General Mills, Inc., No. 09-60412 (S.D. Fla., filed August 4, 2009). More information about the litigation appears in issue 296 of this Update. The plaintiff contends that the company cannot substantiate its claims that the yogurt’s trademarked “unique blend of live probiotic cultures and natural fiber,” “helps keep your digestive system right on track.” She seeks damages in excess of $5 million, alleging that consumers paid premium prices for a product that has upset the yogurt market and gained a significant market share. Relying on a favorable class certification ruling in similar litigation against Dannon Co., Inc. in California, the plaintiff contends that the claims readily meet Rule 23 class certification requirements. She…
An industry trade group has sued Cal/EPA’s Office of Environmental Health Hazard Assessment (OEHHA) to stop it from listing styrene as a carcinogen under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Styrene Info. & Research Ctr. v. OEHHA, No. 09-53089 (Cal. Super. Ct., Sacramento Cty., filed 07/15/09). According to the complaint, styrene does not cause human cancer, and its proposed Prop. 65 listing would cause the $28-billion-a-year industry “irreparable harm” by stigmatizing the chemical. It also alleges that OEHHA failed to comply with administrative procedures in interpreting and implementing Prop. 65, created secret interpretative standards and refused to consider new scientific evidence indicating that styrene is not “known to cause cancer.” Styrene is used in milk and egg cartons, berry baskets, produce shipping crates, foodservice containers, plastic pipes, automobile parts, medical equipment, countertops, and many other products. To support its proposed styrene listing, OEHHA cited a 2002 International…
