A father has filed a lawsuit alleging that eating Dole Food Co.'s ready-to-eat salad greens caused his son to develop Listeria meningitis, leaving the son with long-term impairment of motor, cognitive and communication skills. Robinson v. Dole Food Co., No. 17-13644 (E.D. Mich., filed November 8, 2017). The complaint alleges that the son was served packaged salads at his group-care facility and developed meningitis, which the Centers for Disease Control and the Michigan Department of Community Health apparently concluded was caused by the same strain of Listeria that infected 30 people in a 2015-2016 outbreak linked to Dole salad greens. The complaint further alleges that the U.S. Food and Drug Administration (FDA) conducted an inspection of Dole’s Springfield, Illinois, facility where the bagged salads were produced and concluded that the facility violated a number of food-safety rules, including failing to test for Listeria on food contact surfaces and failing to notify FDA…
Category Archives U.S. Circuit Courts
The Eleventh Circuit has denied a petition for rehearing in a putative class action against Chipotle Mexican Grill alleging false advertising related to genetically modified organisms (GMOs). Reilly v. Chipotle Mexican Grill, Inc., No, 16-17461 (11th Cir., entered November 14, 2017). The appeals court previously denied the plaintiff’s appeal from the trial court’s entry of summary judgment. The plaintiff alleged that she stopped eating Chipotle's chicken burritos after learning from the company website that although the meat and dairy products it uses are not genetically modified, “most animal feed in the U.S. is genetically modified, which means that the meat and dairy served at Chipotle are likely to come from animals given at least some GMO feed.” She began eating at a different Mexican restaurant, where she paid more for a similar chicken burrito despite the restaurant not claiming its food was non-GMO. The district court ruled that the plaintiff…
Two consumers have filed a putative class action alleging Mondelez International's Belvita breakfast foods are marketed to consumers interested in “health and wellness” but contain between 8 and 14 grams of added sugar per serving. McMorrow v. Mondelez Int’l, No. 17-2327 (S.D. Cal., filed November 16, 2017). The complaint asserts that the packaging and labeling claims are deceptively marketed to consumers as "healthy" but contribute to excess sugar consumption. Alleging violations of California’s consumer-protection laws and breach of warranties, the plaintiffs seek class certification, injunctive relief, corrective advertising, damages, restitution and attorney’s fees.
A putative class action filed in New York has alleged that although the marketing for Simply Potatoes Mashed Potatoes features claims such as “Made with REAL Butter,” the product contains margarine made from genetically modified organisms (GMOs). Berger v. MFI Holdings Corp., 17-6728 (E.D.N.Y., filed November 17, 2017). “Despite the centrality of butter to [the product's] marketing and labeling,” the complaint asserts, “it also contains margarine as indicated on the ingredient list.” The plaintiff also alleges the product is sold at a premium price compared to similar refrigerated potato products. Claiming violations of New York consumer-protection laws and breach of implied warranty of merchantability, the plaintiff seeks class certification, damages, injunctive relief and attorney’s fees.
Sazerac Brands has filed a notice of opposition to ROSC Global's application to trademark “St. Paddy’s Brigade” for agave liquor, arguing that consumers are likely to confuse the mark with Sazerac’s “Paddy” line of Irish whiskies. Sazerac Brands LLC v. ROSC Global, LLC, No. 91237863 (T.T.A.B., filed November 16, 2017). ROSC Global applied for the mark in May 2017, while Sazerac asserts the company and its predecessors-in-interest have used the “Paddy” marks for alcoholic beverages since 1927.
A federal court in New York has given final approval to the settlement of multidistrict litigation that alleged Frito-Lay North America, Inc. deceptively labeled and marketed its chip and dip products as “Made with All Natural Ingredients” when the products contained genetically modified ingredients. Frito-Lay N. Am., Inc., “All Natural” Litig., No. 12-MD-2413 (E.D.N.Y., entered November 14, 2017). Frito-Lay has agreed to modify its product labeling. While the class will not receive damages apart from $17,500 to class representatives, plaintiff's counsel will receive $1.9 million plus reimbursement of expenses up to $200,000.
A consumer has filed a lawsuit alleging that she became ill after eating a chicken salad containing “hard, gray-colored granules” with a “foul odor and taste” at a location of Bojangles Famous Chicken 'n Biscuits. Green v. Bojangles Restaurants, Inc., No. 17-2936 (D.S.C., removed to federal court October 30, 2017). The plaintiff asserts that she ordered a Roasted Chicken Bites salad that contained the granules, which she ate because she purportedly thought they were pieces of feta cheese. The plaintiff contends that she immediately became ill and vomited at the restaurant, while her husband took the granules to the restaurant owner, who apparently indicated he would have them tested at a laboratory. The plaintiff also argues that after the incident, she developed “nodules or growths” in her throat that remained for about 18 months. Claiming strict liability, breach of implied warranty, negligence, negligence per se and loss of consortium, the plaintiff…
A consumer has filed a putative class action alleging Pure Brazilian's "cold-pressed" coconut water undergoes high-pressure processing that “reduces the biological, enzymatic and bacterial activity” of the water, allegedly amounting to false advertising and fraud. Khallili v. Pure Brazilian LLC, No. 17-6425 (E.D.N.Y., filed November 5, 2017). The complaint asserts that high-pressure processing not only changes the nature of the product but increases its shelf life; “highly perishable” warnings on the bottle mislead consumers into believing the coconut water is unprocessed by making it appear similar to competing products that have a shorter shelf life, the plaintiff argues. The complaint also alleges that the product is sold at a premium price compared to coconut waters made with similar high-pressure processing. Claiming violations of New York consumer-protection laws, false advertising, fraud, implied warranty of merchantability and unjust enrichment, the plaintiff seeks class certification, damages, injunctive relief and attorney’s fees.
Snyder’s-Lance, Inc. has filed a lawsuit in North Carolina federal court appealing a Trademark Trial and Appeal Board (TTAB) ruling that found the term “Pretzel Crisps” to be generic, arguing that TTAB “failed to consider all the evidence of the public’s perception of the Pretzel Crisps brand, despite clear direction from the Federal Circuit to do so.” Snyder’s-Lance, Inc. v. Frito-Lay N. Am., Inc., No. 17-0652 (W.D.N.C., filed November 6, 2017). TTAB initially deemed “pretzel crisps” generic after Frito-Lay opposed Snyder's-Lance’s application for a trademark; that decision was vacated by the Federal Circuit and remanded for reconsideration. Snyder's-Lance argues that during seven years of litigation, its Pretzel Crisps brand has become a market leader and is now the “number one product in the entire ‘deli cracker’ section in which it principally competes." The complaint also asserts that “both Frito-Lay and the TTAB panel agreed that ‘pretzel crackers’ generically and appropriately…
A California federal court has affirmed the dismissal of copyright infringement claims for lack of personal jurisdiction, holding that “a theory of individualized targeting" will not support specific jurisdiction. Axiom Foods, Inc., v. Acerchem Int’l, Inc., No. 15-56450 (9th Cir., entered November 1, 2017). Axiom Foods, Inc., which supplies organic and “chemical-free” products to food and beverage companies, filed a lawsuit in California after Acerchem International’s United Kingdom subsidiary distributed a newsletter to clients that included Axiom’s “As Good As Whey” and “Non-GMO” logos. The lower court dismissed the case, finding that Acerchem UK maintains its principal place of business in the United Kingdom and “does not conduct business in the United States," adding that no more than 10 recipients of the newsletter were located in California. Considering the jurisdictional issue, the Ninth Circuit focused on whether Acerchem UK aimed its business activities at California. In addition to the 10 identified…
