According to a press report, the D.C. Circuit Court of Appeals has refused the request of Whole Foods Market, Inc. that the court reconsider, en banc, a July 2008 decision by a three-judge appellate court panel reviving the Federal Trade Commission’s antitrust challenge to the company’s merger with Wild Oats Markets, Inc. More information about the panel’s divided ruling appears in issue 269 of this Update. The commission will conduct administrative hearings on the merger in February 2009. While the merger was completed in August 2007, the commission could apparently try to stop further integration of the companies’ operations or require Whole Foods to sell some properties. In a statement, Whole Foods reportedly indicated its intent to vigorously defend the administrative proceedings, “even though we believe it is an unfair process and a violation of the company’s due process rights.” See Dow Jones Newswires, November 21, 2008. Meanwhile, a Chicago…
Category Archives U.S. Circuit Courts
Strict liability and breach of warranty claims filed in an Ohio state court in July 2008 after an E. coli outbreak linked to ground beef sold by Nebraska Beef sickened at least 19 in that state have been removed to federal court. Schlagel v. Nebraska Beef, Ltd., No. 08-01091 (S.D. Ohio, removed November 17, 2008). The named plaintiff of this putative class action is a 4-year-old girl, who allegedly “suffered serious physical and emotional injuries.” The proposed class would include “All Ohio claimants who have suffered personal injury caused by Nebraska Beef’s contaminated E. Coli 0157:H7 meat.” The contamination led to the recall of more than 5 million pounds of meat. The company has reportedly denied the allegations and challenges the suitability of the case for class treatment. See Product Liability Law 360, November 18, 2008.
A multidistrict litigation (MDL) court in New Jersey has entered an order approving the settlement of claims that pet food contaminated with melamine and cyanuric acid sickened and killed thousands of cats and dogs in the United States. In re Pet Food Prods. Liab. Litig., MDL No. 1950 (D.N.J., filed November 18, 2008). In its 65-page opinion, the court certified the class for settlement purposes and approved an award of $24 million to the plaintiffs and nearly $6.4 million in attorney’s fees. The court also denied a motion to intervene, overruled several objections and granted a motion to strike a separate motion for attorney’s fees. Pet owners will be eligible for documented economic damages, such as veterinary bills, cremation, burial services, costs of new pets, and healthy pet screenings. Claims without documentation will be paid up to a maximum of $900 for each claimant. If the claims exceed the available funds,…
A California appeals court has determined that a misreading of prior case law led a trial court judge to erroneously overturn a jury verdict in favor of a plaintiff who alleged that she was made ill from exposure to campylobacter at defendant’s restaurant. Sarti v. Salt Creek Ltd., No. G037818 (Cal. Ct. App., 4th App. Dist., Div. 3, decided October 27, 2008). So ruling, the court reinstated $725,000 in economic damages and $2.5 million in noneconomic damages and allowed the plaintiff to recover her costs on appeal. The trial court granted the defendant’s motion for judgment notwithstanding the verdict, after determining, under a heightened causation standard, that reasonable inferences alone cannot prove a food poisoning case. The appeals court exhaustively analyzes the court’s reasoning in Minder v. Cielito Lindo Restaurant, 67 Cal.App.3d 1003 (1977), and shows how the court in that case misread prior case law “to preclude the use…
A rancher in eastern Washington has reportedly sued the U.S. Department of Agriculture (USDA) in federal court, seeking changes to its country-of-origin labeling (COOL) rules for beef products. According to a news source, Easterday Ranches claims that the regulations are adding to costs for the U.S. beef industry and consumers. Apparently, cattle born in other countries must be segregated from domestic animals and cannot be slaughtered on the same day; extensive records must be kept and buyers must keep the meat separate in processing plants. Easterday’s president reportedly claims that commercial buyers are paying far less per head for Canadian or Mexican cattle, and there is no premium price being paid for U.S. cattle. He also contends that the regulations do nothing for food safety and contradict the North American Free Trade Act. See Tri-City Herald and meatingplace.com, October 28, 2008.
Aurora Dairy Corp. and other defendants have filed motions to dismiss on preemption grounds in multidistrict litigation (MDL) filed on behalf of consumers who allege that the companies misled consumers by claiming their products are organic, when, in fact, they are not following organic standards and regulations. In re: Aurora Dairy Corp. Organic Milk Mktg. & Sales Practices Litig., No. MDL 1907 (E.D. Mo.), motions filed October 17, 2008). According to the defendants, the plaintiffs’ state-law claims would have the effect of rewriting national regulations for organic food production. Asserting that it holds valid organic certifications from the U.S. Department of Agriculture, Aurora argues that the relief requested would “preclude Aurora from using the very seal that the USDA, through its duly-accredited certifying agents, has expressly authorized Aurora to use.” Co-lead counsel for plaintiffs was quoted as saying, “Aurora spends a lot of time arguing that plaintiffs are trying to regulate…
A microwave popcorn consumer who allegedly developed a lung injury from her exposure to diacetyl, the chemical responsible for the butter flavoring in the product, has sued popcorn manufacturers, retailers and flavoring companies in a Missouri state court, alleging product liability and negligence. Khoury v. ConAgra Foods Inc., No. 0816-CV31620 (Jackson County Circuit Court, Missouri, filed October 10, 2008). Represented by plaintiffs’ lawyer Kenneth McClain, who brought diacetyl-related litigation against employers on behalf of exposed workers with bronchiolitis obliterans and has also sued cigarette manufacturers on behalf of sick smokers, the plaintiff alleges that defendants failed to warn consumers that inhaling the “buttery aroma of Act II” microwave popcorn could cause respiratory damage.
A federal court in Ohio has dismissed the putative class action claims filed by a woman who alleged that Kroger Co. deceived the public by selling its beef as aged, when it was actually selling beef packaged and shipped almost immediately after slaughter. St. Clair v. Kroger Co., No. 7-03798 (N.D. Ohio, decided October 14, 2008). The case was originally filed in state court and removed on defendant’s motion under the Class Action Fairness Act of 2005 (CAFA). Because the plaintiff failed to allege that Kroger had prior notice that its conduct was “deceptive or unconscionable,” the court was compelled under Ohio’s Consumer Sales Practices Act (CSPA) to dismiss the class claims. Prior notice, under the law, must be “in the form of a rule adopted by the state Attorney General or a judicial decision made publicly available,” neither of which was referred to in the complaint So ruling, the…
A federal court in New Jersey has reportedly approved a $24 million settlement that resolves claims for contaminated pet food filed in 80 putative class actions against more than 60 companies. In re Pet Food Prods. Liab. Litig., MDL No. 1850 (D.N.J., settlement approved October 14, 2008). The claims, which had been consolidated for pretrial proceedings before a multidistrict litigation (MDL) court, arose out of the deaths and illnesses of cats and dogs that consumed pet food with wheat gluten which had been adulterated with melamine in China to boost its protein content. The contamination led to a massive recall in March 2007. Apparently, more than 10,000 pet owners have filed claims; they will reportedly have until November 24, 2008, under the settlement’s terms to obtain up to $900 per animal, even without receipts for pet food or the costs of their pets’ illness and death. No sums will be paid…
A California resident has filed suit against ConAgra Foods, Inc., alleging that it falsely advertises and labels its Healthy Choice® pasta sauce products as “100% Natural,” “Natural” or “All Natural” despite using high-fructose corn syrup (HFCS) to make them. Lockwood v. ConAgra Foods, Inc., No. 08-4151 (N.D. Cal., filed September 2, 2008). Claiming that “[t]he complicated process used to create HFCS does not occur in nature” and that “it is misleading to consumers to label products that contain HFCS as ‘Natural,’” the plaintiff seeks to certify a class of “All persons in California who purchased any of Defendant’s pasta sauce products containing High Fructose Corn Syrup, yet marketed, advertised or labeled as being ‘All Natural’, ‘Natural’ or ‘100% Natural’ during the ‘Class Period.’” According to the plaintiff, a number of common questions predominate over individual issues, including whether defendant misrepresented its ingredients, mislabeled its products or engaged in unfair and…
