A proposed slack-fill class action against Harry & David LLC was dismissed after the parties voluntarily dismissed the action. Brown v. Harry & David LLC, No. 17-0999 (S.D.N.Y., stipulation filed May 22, 2017). The stipulation did not explain the reason for dismissal but stipulated that it was dismissed “with prejudice against the Defendant.” The plaintiff had alleged that 10-ounce containers of Moose Munch Milk Chocolate, Dark Chocolate, Classic Caramel and Cinnamon Maple Pecan popcorn mix were underfilled by as much as 43 percent. Issue 636
Category Archives U.S. Circuit Courts
A consumer has filed a proposed class action alleging Sargento Foods misleadingly advertises its cheese products as “natural” despite containing genetically modified organisms (GMOs) or animal growth hormones. Stanton v. Sargento Foods, Inc., No. 17-2881 (N.D. Cal., filed May 19, 2017). The plaintiff asserts that the cows providing milk for the production of Sargento cheeses are fed GMO corn and soybeans as well as a growth hormone. Alleging violations of state consumer protection acts and breach of warranty laws, the plaintiff seeks class certification, damages, an injunction and attorney’s fees. Issue 636
A California jury found that retired University of California, Davis, professors willfully infringed the university’s patents on strawberries they developed in the school’s program. Regents of Univ. of Cal. v. Cal. Berry Cultivars, No. 16-2477 (N.D. Cal., verdict filed May 24, 2017). The professors formed a private strawberry-breeding company, California Berry Cultivars, after retiring from UC Davis. The jury found they had engaged in conversion, willful infringement, breach of duty of loyalty and breach of fiduciary duty, but released them from allegations that they interfered with the university’s business contracts or prospective economic relationships. Additional details appear in Issues 604 and 633 of this Update. Issue 636
Five public advocacy groups have filed suit against the U.S. Department of Health and Human Services and the U.S. Food and Drug Administration (FDA) seeking to vacate FDA’s “Substances Generally Recognized as Safe” (GRAS) rule, which allegedly allows “potentially unsafe food additives to be used in the food supply (human and animal) without FDA review, approval, oversight, or knowledge, in violation of the Federal Food, Drug and Cosmetic Act (FDCA).” Ctr. for Food Safety v. Price, No. 173833 (S.D.N.Y., filed May 22, 2017). The plaintiffs argue that the GRAS rule allows manufacturers to certify that a substance is GRAS without notice to FDA or the public, although the rule gives them the option to notify the agency about certification. However, they allege, the Food Additives Amendment to the FDCA requires food additives to go through an FDA approval process. FDA allowed manufacturers to begin using the proposed rule’s optional notification…
A federal court has given preliminary approval to a class action settlement in which Cracker Barrel restaurants will develop a disability-access compliance policy for parking facilities at its locations. Heinzl v. Cracker Barrel Old Country Store, No. 14-1455 (W.D. Pa., order entered May 15, 2017). The settlement agreement requires Cracker Barrel to develop a survey form to assess whether the parking facilities at all of its locations comply with the 2010 Americans with Disabilities Act Standards For Accessible Design. The company will then assess and ensure that parking at the 107 locations identified by the plaintiff are brought into compliance. The agreement also includes annual reporting and monitoring provisions. The court will accept objections to the settlement from members of the class until July 13, 2017, and hold a fairness hearing in August. Issue 635
Five Guys has moved to dismiss an Americans with Disabilities Act (ADA) complaint from a blind plaintiff allegedly unable to use the burger chain’s website, arguing that the plaintiff cannot prove she was denied access to a “place of public accommodation” because the statute is limited to physical facilities. Marett v. Five Guys Enters, No. 17-0788 (S.D.N.Y., memorandum filed May 15, 2017). The plaintiff points to a federal circuit split on the issue and has asked a New York federal court to follow the Second Circuit, which has held that the ADA guarantees “more than mere physical access” and that the “website is a service of the physical location.” The plaintiff claims that Five Guys’ website, which allows online ordering in addition to general restaurant and menu information, is inaccessible to blind patrons despite the existence of “readily available technological solutions.” Issue 635
A group of California citrus growers has sued the U.S. Department of Agriculture seeking to stop implementation of a new rule that would lift the ban on importation of lemons from Argentina, claiming the rule violates both “sound science and good public policy.” U.S. Citrus Sci. Council v. USDA, No. 17-0680 (E.D. Cal., filed May 17, 2017). The plaintiffs assert that the United States has banned Argentine lemon imports since 1947 because “highly destructive plant pests and diseases plague Argentine citrus” and the Argentine government agency charged with plant protection “has a long and problematic history of failing to report pest and disease outbreaks promptly and of failing to ensure compliance” with basic plant protection measures. The plaintiffs argue that the Animal and Plant Health Inspection Service violated both the Plant Protection Act and the Administrative Procedure Act when it promulgated the new rule relying on conclusions reached during a…
Red Bull North America lost its motion to dismiss a $60-million wrongful death lawsuit involving a man who drank four cans of the energy drink every day for five years. Lemley v. Red Bull N. Am., No. 17-33 (S.D. Ga., order entered May 16, 2017). The suit alleges that reports dating back to 2000 show energy drinks cause fatal cardiovascular injuries to consumers. The court found the plaintiff had adequately pleaded the elements of fraud and the complaint stated a valid claim for relief. The U.S. Food and Drug Administration released adverse reports involving energy drinks in 2012—including reports of cardiovascular symptoms—but its investigation found no causal link between the drinks and the alleged injuries and deaths. In addition to damages for tort claims, the plaintiff is seeking $30 million in punitive damages. Issue 635
Syfrett Feed Co., a Florida manufacturer of medicated animal feeds, has entered into a consent decree to control its production process and comply with federal laws before resuming medicated feed operations. U.S. v. Syfrett Feed Co., Inc., No. 17-14038 (S.D. Fla., order entered May 4, 2017). The court entered the decree after the U.S. Food and Drug Administration (FDA) filed a complaint alleging the company failed to adequately identify and store the drugs it used or prevent contamination of drugs and feeds as well as mislabeled and misbranded feeds. According to the complaint, 17 horses had to be euthanized after eating the company’s horse-pellet food. Syfrett manufactures feeds for cattle, poultry, pigs, sheep, goats and exotic animals, but has agreed to discontinue production of the horse feed connected to the animal deaths. “Animal feed manufacturers that fail to comply with labeling and good manufacturing requirements for medicated animal feeds jeopardize…
Two proposed class actions have been filed in California claiming false labeling of truffle-flavored olive oil. Schiffman v. Urbani Truffles, No. 17-935 (E.D. Cal., filed May 3, 2017); Quiroz v. Sabatino Truffles, No. 17-783 (C.D. Cal., filed May 3, 2017). The plaintiffs argue that the olive oil producers add 2,4 dithiapentane to flavor their products instead of truffles and sell the “truffle infusions” at markups as high as 1,400 percent over the price of plain olive oils. The actions claim violations of the Magnuson-Moss Warranty Act and state consumer protection laws. Details on similar lawsuits in New York appear in Issue 633 of this Update. Issue 634
