Since it was filed in 2002, the lawsuit filed by a putative class of teenagers alleging obesity-related injury purportedly caused by reliance on deceptive advertising for fast food has been appealed twice to the Second Circuit Court of Appeals and is now before its third trial court judge. Pelman v. McDonald’s Corp., No. 02-7821 (S.D.N.Y., filed Sept. 30, 2002). The case was reassigned to Judge Kimba Wood on February 27, 2009. Judge Wood was one of former President Bill Clinton’s picks for attorney general, but withdrew from consideration after questions were raised about the immigrants she had hired as household help. Nominated to the federal court bench in 1988 by President Ronald Reagan, the Harvard-educated jurist has served as chief judge of her district since 2006.
Category Archives U.S. Circuit Courts
A federal court has granted the meat industry’s motion for a preliminary injunction and ordered California not to enforce a law, adopted on January 1, 2009, that would have required the immediate euthanization of nonambulatory animals in slaughterhouses regulated by the Federal Meat Inspection Act. Nat’l Meat Ass’n v. Brown, No. 08-1963 (E.D. Cal., decided February 19, 2009). The court found that the plaintiffs had a strong likelihood of success on the merits of their claim that the state law is expressly and impliedly preempted by the federal statute and that they were likely to suffer irreparable harm because some proscribed conduct is punishable by criminal fines and the state is immune from paying for other potential monetary losses. Balancing the public interests involved, the court found that the safety of the public food supply and the humane treatment of animals are adequately protected by the federal law. According to a…
A federal court in Washington recently approved a class action settlement in a case filed against egg farmers who allegedly engaged in unfair, deceptive and improper conduct in the marketing and sale of omega-3 fortified eggs. Schneider v. Wilcox Farms, Inc., No. 07-01160 (W.D. Wash., filed January 12, 2009). As we reported in issue 226 of this Update, the complaint alleged that the eggs the defendant marketed and sold contained omega-3 fatty acids “without proven cardiovascular benefits” and charged a premium for them, while taking advantage of consumers’ limited knowledge about different kinds of omega-3 and “artificially inflating the perceived amount of beneficial omega-3 fatty acids” in their product. Without conceding liability, the defendants agreed to pay $2,500 to each of the two named plaintiffs and attorney’s fees of $160,000. The order dismisses the plaintiffs’ claims with prejudice and bars members of the settlement class, defined as “[a]ll persons who…
Seeking “substantial damages,” a company that makes wild bird food has filed a lawsuit against a supplier that allegedly sold it peanut by-products originating from the Georgia facility linked to the Salmonella contamination outbreak. The Scotts Co., LLC v. Cereal Byproducts Co., No. 09-108 (S.D. Ohio, filed February 17, 2009). According to the complaint, the defendant sold and shipped peanut by-products to the plaintiff in December 2008 and January 2009, after it was known that the outbreak originated in the Blakely, Georgia, facility owned and operated by the Peanut Corp. of America (PCA), and repeatedly “made false representations” that the by-products did not come from a potentially contaminated PCA facility. The plaintiff was allegedly forced to recall its suet wild bird food products and incurred unspecified costs and injury to goodwill. The complaint alleges breach of contract, negligent misrepresentation and violations of Ohio’s deceptive trade practices law.
A putative class action filed in a California federal court against Snapple Beverage Corp. alleges that the company misleads consumers by labeling as “All Natural” products containing high fructose corn syrup (HFCS) and using the names of fruits for some products that “do not contain any significant amount of the fruit listed in the product’s name.” Von Koenig v. Snapple Beverage Corp., No. 09-00337 (E.D. Cal., filed March 4, 2009). The named plaintiff seeks to certify two subclasses of California consumers “to redress Defendant’s deceptive, misleading and untrue advertising and unlawful, unfair and fraudulent business acts and practices.” One subclass would involve those who purchased the company’s “All Natural Products” that contained HFCS; the other would include those who purchased “Fruit Products . . . which included the name or picture of a fruit in the product name or label but which did not contain a substantial amount of that…
California consumers have filed a putative class action against Van’s International Foods and retailers Whole Foods Market California, Inc., Trader Joe’s Co., and Costco Wholesale Co., alleging that Van’s frozen waffles did not accurately state the calorie and nutrient content throughout 2007 and into 2008. Hodes v. Van’s Int’l Foods, No. 09-01530 (C.D. Cal., filed March 4, 2009). According to the complaint, which seeks certification of a nationwide class, the sale in late 2006 of the company that made Van’s frozen waffles involved a change in personnel that required “reverse engineering the recipes for Van’s existing product lines.” That process allegedly resulted in findings that the nutritional information on the product packaging “contained numerous substantial inaccuracies.” The calorie, fat, sodium, carbohydrates, calcium, iron, and fiber content listed purportedly varied by 20 to 100 percent or more from the actual nutritional values. The plaintiffs allege that the company continued to “distribute…
The district court judge to whom this obesity-related litigation was reassigned in 2008 has dismissed motions to compel filed by plaintiffs and defendants, but has given the parties leave to renew after the court rules on motions for class certification. Pelman v. McDonald’s Corp., No. 02-7821 (S.D.N.Y., filed Sept. 30, 2002). Judge Robert Sweet recused himself from the proceedings following the pre-trial conference, held April 9, 2008, and the matter was reassigned to Judge Sidney Stein in May. The plaintiffs, a putative class of obese and overweight teens, alleged that the fast-food company misled them with deceptive ads. They are seeking damages for obesity-related health problems. Information about the lawsuit has periodically appeared in this Update since it was filed in 2002. It has been appealed twice to the Second Circuit Court of Appeals, its issues have been narrowed, and it has been followed closely by consumer advocates and the food…
ConAgra Foods, Inc. has reportedly filed a lawsuit against its umbrella insurer, seeking coverage for the claims that were filed by people who alleged injury from a Salmonella outbreak in 2007 linked to the company’s Sylvester, Georgia, peanut butter processing facility. ConAgra Foods, Inc. v. Lexington Ins. Co., No. 09C-02-170 (Del. Super Ct., New Castle Cty., filed February 19, 2009). The complaint alleges that Lexington Insurance Co. has failed to pay for any of the 2,400 claims settled or resolved to date. ConAgra reportedly anticipates an additional 20,000 cases from the outbreak. According to a news source, the company is seeking a declaratory judgment, compensatory and punitive damages, interest, and attorney’s fees. See Product Liability Law 360, February 24, 2009.
Aurora Dairy Corp., which is defending multidistrict litigation involving putative class claims that it sold its products as “organic” without following national organic program standards, has sued one of its insurance carriers in federal court seeking a declaration that the insurer has wrongly failed to provide defense coverage. Aurora Dairy Corp. v. Nationwide Agribusiness Ins. Co., No. 09-00346 (D. Colo., filed February 19, 2009). According to the complaint, “Aurora has been named in thirteen consumer class actions filed in the courts of six different states.” The claimants in those lawsuits allege a variety of causes of action including “that the milk provided by Aurora that they purchased allegedly exposed them, their families and their friends to pesticides, hormones, antibodies, and other chemicals and/or has generally caused them injury or damage.” Additional details about the underlying lawsuits appear in issues 251, 279 and 286 of this Update. Aurora claims that it has…
Federal investigators seeking to crack down on corruption in California’s tomato-processing sector have apparently secured guilty pleas from two industry employees, one with a tomato paste supplier and the other with a processed tomato purchaser. Jennifer Dahlman, who worked for a California company under investigation for alleged bribery, price-fixing and mislabeling, reportedly pleaded guilty to causing the introduction of adulterated and misbranded food into interstate commerce with intent to defraud. Dahlman apparently mislabeled products that should have been discarded because of high mold content, purportedly at the direction of company managers, thus giving her company an unfair advantage over competitors and leading to increased consumer prices for processed tomato products, such as sauces, soups and salsas. While she is cooperating with authorities, Dahlman faces up to three years in prison. According to U.S. attorneys involved in the investigation, the mislabeled products posed no health hazard to consumers. James Wahl, who formerly…
