Multidistrict litigation plaintiffs who sued Aurora Dairy Corp., an accredited organic certifying agent and a number of food retailers have appealed the district court decision dismissing their claims to the Eighth Circuit Court of Appeals. In re: Aurora Dairy Corp. Organic Milk Mktg. & Sales Practices Litig., MDL No. 08-1907 (E.D. Mo., appeal noticed July 2, 2009). As noted in the June 5, 2009, issue of this Update, the district court concluded that the claims, which involved allegations that Aurora Dairy sold its milk as organic while violating national organic program requirements, were preempted by federal law and regulations. In their list of issues on appeal, the plaintiffs question the validity of this determination.
Category Archives U.S. Circuit Courts
In September 2008, a divided panel of the Ninth Circuit Court of Appeals upheld the injunction imposed by a district court on the sale of Monsanto’s Roundup Ready® alfalfa until the U.S. Department of Agriculture (USDA) completes an environmental impact statement under the National Environmental Policy Act. Additional details about the court’s ruling appear in issue 274 of this Update. The appeals court has now issued an amended opinion indicating that the petition for panel rehearing and for rehearing en banc have been denied. Geertson Seed Farms v. Johanns, No. 07-16458 (9th Cir., decided June 24, 2009). Thus, unless the government or Monsanto Co. successfully appeals the matter to the U.S. Supreme Court, the company will be unable to sell its genetically modified seeds until the USDA prepares a study on how the crop could affect neighboring crops. A spokesperson for the Center for Food Safety, one of the plaintiffs…
A putative class action has been filed in a federal court in California against the company that makes Redline® beverages and supplements, alleging that some of the ingredients cause “effects that go beyond the Product’s goal of energy enhancement and weight loss.” Aaronson v. Vital Pharms., Inc., No. 09-1333 (S.D. Cal., filed June 19, 2009). While the product labels apparently warn consumers about potential effects such as rapid heartbeat, dizziness, headache, and shortness of breath, the named plaintiff contends that the warnings are inadequate. According to the complaint, the defendant markets the product as a drug without having obtained Food and Drug Administration approval. Alleging violations of California consumer protection laws, fraudulent concealment, breach of express and implied warranties, negligence, and design and manufacturing defects, the plaintiff seeks to certify a nationwide class of product purchasers. The plaintiff also asks the court to enjoin the defendant’s deceptive marketing and award actual…
The U.S. attorney for the Western District of Missouri has announced that a Nevada company and its owners entered guilty pleas in federal court “to distributing a tainted ingredient used to make pet food, which resulted in a nationwide recall of pet food and the death and serious illness of countless pets across the United States in 2007.” Sally Qing Miller, her husband Stephen Miller and their company Chemnutra, Inc. reportedly pleaded guilty to some of the charges in a February 2008 indictment, admitting that “melamine was substituted wholly or in part for the protein requirement of the wheat gluten” they imported from China and distributed in the United States and Canada and that “the labeling of wheat gluten was false and misleading.” The Millers are apparently each subject to a sentence of up to two years in prison without parole, fines of up to $200,000 and an order of…
Consumers who sued the company that makes Van’s brand frozen waffles and a number of retailers, alleging that the calorie and nutrition information on the packaging did not accurately reflect what was in the products, have filed a motion to certify a nationwide class. Hodes v. Van’s Int’l Foods, No. 09-01530 (C.D. Cal., motion filed June 15, 2009). Additional information about the complaint appears in issue 295 of this Update. According to the motion, the defendants have filed motions to dismiss since the suit was filed in March 2009, and thus, no discovery has taken place. The named plaintiffs discuss how their complaint fulfills class certification requirements, contending that all class members were injured in the same way, that is, “they purchased Van’s waffles products in the belief that the waffles had the nutritional value represented by the labeling.” The plaintiffs argue that no conflicts of laws issues arise because they…
A company that manufactures mustard oil supplied to the employers of food-flavoring workers who alleged they contracted bronchiolitis obliterans from occupational exposure to diacetyl and other chemicals, is seeking court confirmation of its good faith settlement with some of the workers. Ortiz v. Flavor & Extract Mfrs. Assoc. of the U.S., No. BC364831 (Cal. Super Ct., Los Angeles Cty., motion filed June 2, 2009). According to Naturex, Inc.’s motion for an order confirming the settlement, its experts were prepared to testify that scientific evidence and published literature do not link mustard oil to bronchiolitis obliterans, a point two of the plaintiffs appeared to concede when they initiated settlement discussions rather than making their expert available for deposition. The settlement agreement would provide these plaintiffs with $7,500 in exchange for a release and dismissal with prejudice. The motion also indicates that another plaintiff never used mustard oil during his employment. He has…
A California resident has sued Unilever United States, Inc. in federal district court, seeking class certification, injunctive relief, restitution, and punitive damages for alleged violations of state consumer protection laws in the sale and marketing of a butter-substitute product known as “I Can’t Believe It’s Not Butter!®” Rosen v. Unilever U.S., Inc., No. 09-02563 (N.D. Cal., filed June 9, 2009). According to the complaint, Unilever labels and promotes its product as “Made with a Blend of Nutritious Oils” and “a better nutrition option than butter,” when, in fact, the product contains “a highly unhealthy, non-nutritious oil known as partially hydrogenated oil.” Claiming that he would not have purchased the product but for reliance on defendant’s purportedly deceptive statements, named plaintiff Amnon Rosen alleges only economic injury, stating that he “suffered injury in that he would not have paid money for the Product had these misrepresentations not been made.” Still, he avers…
According to a news source, a Las Vegas-based company and its co-owners have agreed to plead guilty to charges that they imported from China melamine-tainted wheat gluten used to make the pet food that purportedly sickened and killed thousands of cats and dogs in the United States and Canada in 2007. More details about the criminal indictments appear in issue 247 of this Update. ChemNutra, Inc. and its co-owners, Stephen and Sally Miller, have apparently reached an agreement with federal prosecutors and will enter their pleas during a June 16, 2009, hearing. The export broker, a Chinese company, allegedly mislabeled 800 metric tons of wheat gluten to avoid inspection in China and did not properly declare the contaminated product when it was shipped to the United States for use in pet food. ChemNutra took delivery of the wheat gluten in Kansas City and then sold it to various pet food manufacturers.…
A federal court in California has dismissed a putative class action alleging that the maker of Cap’n Crunch with Crunchberries® cereal misrepresented its product in violation of the state’s Business & Professions Code. Sugawara v. Pepsico, Inc., No. 08-01335 (E.D. Cal., decided May 21, 2009). Plaintiff alleged that the colorful “Crunchberries” depicted on the cereal box, combined with the use of the word “berry” in the product name, convey the message that the product contains fruit. She claimed that she purchased the product for some four years because she had been misled by defendant’s advertising and misrepresentations, never discerning that the product has no berries of any kind and that the only fruit content is “strawberry fruit concentrate, twelfth in order on the ingredient list.” According to the court, “while the challenged packaging contains the word ‘berries’ it does so only in conjunction with the descriptive term ‘crunch.’ This Court…
A California appeals court has determined that Starbucks did not violate state labor laws by allowing shift supervisors to share the tips left by customers in collective tip boxes and thus, overturned an $86 million award made to a class of current and former Starbucks’ baristas. Chau v. Starbucks Corp., No. D053491 (Cal. Ct. App., decided June 2, 2009). Because shift supervisors serve customers and rotate such duties with baristas, the appeals court determined that the shift supervisors were among those for whom the tips were intended. So ruling, the court distinguished Starbucks’ policy of equitably distributing collective tip-box proceeds from the prohibited practice of mandatory tip pooling.
