The U.S. Court of Appeals for the D.C. Circuit has affirmed a lower court’s dismissal of Food & Water Watch’s challenge to the New Poultry Inspection System (NPIS). Food & Water Watch, Inc. v. Vilsack, No. 15-5037 (D.C., order entered December 22, 2015). The organization argued that the NPIS did not comply with the Poultry Products Inspection Act and would increase the risk of foodborne illnesses resulting from contaminated poultry. The lower court found that Food & Water Watch leaders did not have standing to sue because they could not show that the increased risk and probability of harm was substantial. The appeals court agreed, noting that the organization’s arguments ignored some provisions of the NPIS requiring more “offline” inspections, which could lower the risk of foodborne illness. Additional information about the lower court’s ruling appears in Issue 555 of this Update. Issue 589
Category Archives U.S. Circuit Courts
Grumpy Cat Ltd., owner of the Grumpy Cat trademark, has filed a copyright infringement suit against Grenade Beverage LLC alleging the company failed to pay for the sales of authorized merchandise and sold additional unauthorized branded products. Grumpy Cat Ltd. v. Grenade Beverage LLC, No. 15-2063 (C.D. Cal., filed December 11, 2015). "Ironically," the complaint states, "while the world-famous feline Grumpy Cat and her valuable brand are most often invoked in a tongue-and-cheek fashion, Defendants' despicable misconduct here has actually given Grumpy Cat and her owners something to be grumpy about." Grumpy Cat agreed to license its trademark to Grenade for use in relation to "a line of Grumpy Cat-branded coffee products," which the complaint asserts was mutually understood to mean a line of iced-coffee beverages called the "Grumpy Cat Grumppuccino." Grumpy Cat alleges that it later learned Grenade also planned to produce a line of roasted coffee grounds products associated…
A Pennsylvania jury has found that Starr Surplus Lines Insurance must uphold H.J. Heinz Co.'s $25 million policy covering damages related to baby cereal tainted with lead. H.J. Heinz Co. v. Starr Surplus Lines Ins. Co., No. 15-0631 (W.D. Penn., jury verdict entered December 16, 2015). Heinz sought a declaratory judgment that the insurance provider must cover business-interruption costs after China's food-control agency found lead in the company's high-protein dry baby cereal. Starr argued that Heinz had misrepresented the situation when the company applied for the policy because it failed to disclose previous contamination incidents. The jury concluded that although Starr did prove "that Heinz made a misrepresentation of fact(s) in its insurance application which was material," Starr "waived the right to assert a rescission claim" either because it sold the policy with knowledge of the misrepresentation or because it failed to rescind the policy after learning of the misrepresentation.…
A California federal court has denied a proposed settlement in a consumer class action alleging Annie Chun's® soup products, made by CJ America Inc., either contain monosodium glutamate or ingredients that produce the substance during the cooking process despite being labeled as "No MSG Added." Petersen v. CJ America Inc., No. 14-2570 (S.D. Cal., order entered December 16, 2015). The court rejected the bid to certify the class for purposes of the settlement, finding the plaintiff had shown that the South Korean company was subject to jurisdiction in California but not necessarily other states, thus precluding the approval of a nationwide class. The parties reached the proposed settlement in November 2015. Additional details appear in Issue 584 of this Update. Issue 588
The Seventh Circuit Court of Appeals has upheld an Indiana law restricting the sale of cold packaged beer in convenience stores, pharmacies and groceries in incorporated towns, finding that the statute survives a rational-basis analysis. Petroleum Mktrs. & Convenience Stores Assoc v. Cook, No. 14-2559 (7th Cir., order entered December 14, 2014). The court found that although Indiana does not have "nearly absolute" power to regulate alcohol sales as the state had argued, it may prohibit stores from selling cold beer, even if it also allows the same stores to sell chilled beverages with higher alcohol content such as wine coolers. The court distinguishes between the licenses required by liquor stores, which can sell cold beer, and the licenses available to convenience stores and similar retailers; liquor stores "are subject to stricter regulations designed to enhance the State's ability to limit and control the distribution of alcohol," including minimum ages…
Nine putative class actions and 44 related cases alleging that StarKist Co., Bumble Bee Foods LLC and Tri-Union Seafoods LLC conspired to fix prices of canned tuna have been consolidated by the U.S. Judicial Panel on Multidistrict Litigation. In re Packaged Seafood Prods. Antitrust Litig., No. 15-2670 (S.D. Cal., order entered December 9, 2015). The court found that the actions "share factual questions arising out of an alleged conspiracy by defendants—the three largest producers of packaged seafood products in the U.S. with an alleged collective market share of more than 70%—to fix prices of packaged seafood products." The court also noted that the issue is "the subject of an ongoing criminal investigation by the U.S Department of Justice." Additional details about one of the proposed class actions appears in Issue 574 of this Update. Issue 588
A South Carolina federal court has ruled that the U.S. Food and Drug Administration (FDA) was not negligent in issuing a tomato recall during a 2008 outbreak of Salmonella, dismissing a tomato farm's claim of $15 million in damages. Seaside Farm Inc. v. U.S., No. 11-1199 (D.S.C., order entered December 16, 2015). The farm had argued that FDA should have been more specific in its recall, while FDA argued it never issued an official recall, only warnings about tomatoes. The court had previously dismissed allegations of defamation and takings against the government. Issue 588
The Sixth Circuit Court of Appeals has denied a request for an en banc rehearing in a lawsuit alleging that the distilleries of two Diageo Americas Supply Inc. brands, J&B® and Johnnie Walker®, caused the growth of a black fungus on outdoor surfaces near the plants. Merrick v. Diageo Ams. Supply Inc., No. 14-6198 (6th Cir., order entered December 7, 2015). Diageo had sought to dismiss the suit by arguing the claims conflicted with emissions regulations under the Clean Air Act, but a lower court and the Sixth Circuit disagreed upon hearing the arguments. Diageo then requested en banc reconsideration, but the one-page denial noted that “the issues raised in the petition were fully considered upon the original submission and decision of the case.” Details about the case appear in Issues 519 and 546 of this Update. Issue 587
A California federal court has dismissed a lawsuit against Trader Joe’s Co. alleging the retailer’s soy milk is mislabeled because it does not contain cow’s milk, which the plaintiffs argued amounts to a violation of the federal Food, Drug, and Cosmetic Act and California’s consumer protection statute. Gitson v. Trader Joe’s Co., No. 13-1333 (N.D. Cal., order entered December 1, 2015). “Often in food labeling cases,” the court noted, “courts jump straight to the question of whether a plaintiff may state a claim under California’s Unfair Competition Law. But there is a threshold question.” The court explained that questions related to food labeling must be considered in the context of the federal Food, Drug, and Cosmetic Act because “if the alleged conduct would not violate the federal statute, it doesn’t matter whether the plaintiff could pursue a state law claim based on that conduct. If a food label does not…
Safeway Inc. will pay $41.9 million to customers who ordered groceries online and were charged a 10 percent markup on the items they ordered compared to the prices charged in-store, a court has confirmed. Rodman v. Safeway Inc., No. 11-3003 (N.D. Cal., order entered November 30, 2015). A California federal court approved the settlement amount of $31 million in damages and $10.9 million in prejudgment interest. Additional details about the case appear in Issues 549 and 577 of this Update. Issue 587
