A California federal court has granted plaintiffs’ motion for summary judgment in a case alleging that Safeway charged a class of consumers more than the prices permitted under the terms of its online service contract when the consumers purchased groceries from the grocer’s website. Rodman v. Safeway, No. 11-3003 (order entered December 10, 2014). Safeway sells groceries via its Safeway.com site, where it requires users to accept its Terms and Conditions upon registration. That agreement includes a provision about prices varying from order to order: “The prices quoted on our web site at the time of your order are estimated prices only. You will be charged the prices quoted for Products you have selected for purchase at the time your order is processed at checkout. The actual order value cannot be determined until the day of delivery because the prices quoted on the Web site are likely to vary either…
Category Archives Litigation
A Florida federal court has dismissed a case alleging that Campbell Soup Co. misleadingly labeled its V8 V-Fusion® Pomegranate Blueberry and Acai Mixed Berry products as “100% juice” in a way that implied they contained only the flavoring juices rather than a base mix of fruit and vegetable juices. Bell v. Campbell Soup Co., No. 14-291 (N.D. Fla., order entered December 11, 2014). The plaintiff argued that the label was misleading because the “100% juice” statement appeared so close to the flavor name on the label, but after examining each labeling statement, the court disagreed. “[W]hen a product’s flavor comes from a juice that is not the primary ingredient, the name may include the flavoring juice, without including other juices, so long as the label includes the statement ‘that the named juice is present as a flavoring.’ [T]he flavor—in this instance pomegranate and blueberry—must be ‘followed by the word ‘flavored’ in…
Oregon farmers who grow genetically engineered (GE) alfalfa have filed a complaint seeking a declaration that a May 20, 2014, Jackson County ordinance banning GE crops in the county conflicts with state law, or, in the alternative, damages “as just compensation for the forced destruction of their property.” Schulz Family Farms LLC v. Jackson Cty., No. 14CV17636 (Jackson Cty. Cir. Ct., Ore., filed November 18, 2014). Claiming that (i) neighbors had never complained about its GE crops, which are allegedly “more convenient and profitable to grow than conventional alfalfa,” and (ii) the farm will have to tear out GE crops already planted and refrain from replanting conventional alfalfa for four years, the Schulz Family Farms alleges damages in excess of $2.2 million. Similarly, plaintiff James Frink alleges that he will have to tear out already-planted GE alfalfa and “lose the benefit of the ten-year crop life if forced to tear out…
Months after a Florida federal court rejected a motion to dismiss a putative class action alleging that Bodacious Foods falsely labeled its cookies as “all natural,” The Cincinnati Insurance Co. has filed a lawsuit seeking a declaration that the policy the food manufacturer holds with it does not cover costs stemming from the alleged false labeling. The Cincinnati Ins. Co. v. Bodacious Food Co., No. 14-81515 (S.D. Fla., filed December 4, 2014). The insurance company asserts that Bodacious’s policy excludes coverage for the allegations of the putative class action, including (i) “’bodily injury’ or ‘property damage’ which may reasonably be expected to result from the intentional acts of the insured”; (ii) “’personal or advertising injury’ caused by or at the direction of the insured with the knowledge that the act would violate the rights of another”; and (iii) “’personal and advertising injury’ arising out of oral or written publication of material,…
Two consumers have filed a putative class action in California federal court alleging that Maker’s Mark® bourbon whisky is not “handmade,” as the alcohol brand advertises, but is instead manufactured using “mechanized and/or automated processes” with “little to no human supervision, assistance or involvement.” Nowrouzi v. Maker’s Mark Distillery, Inc., No. 14-2885 (S.D. Cal., filed December 5, 2014). Citing photos and a video tour of the distillery as evidence, the plaintiffs argue that because Maker’s Mark® uses machines to make its product, its “handmade” claim and premium pricing amount to misrepresentation and violations of California’s false advertising statute. They allege that they “purchased Maker’s Mark whisky under the false impression that the whisky was of superior quality by virtue of being ‘Handmade’ and thus worth an exponentially higher price as compared to other similar whiskies.” They seek class certification, an injunction requiring discontinuation of the “handmade” description, a corrective advertising…
A California federal court has denied certification to a putative class action alleging that Mott’s misleadingly labeled its apple juice as having “No Sugar Added” because the plaintiff failed to provide a feasible model for calculating damages. Rahman v. Mott’s LLP, No. 13-3482 (N.D. Cal., order entered December 3, 2014). The court further refused to certify a liability class, finding it would not materially advance resolution of the case. The court first assessed the proposed class definition. It found that the plaintiff and the proposed class met the requirements of numerosity, ascertainability, commonality, and adequacy; in addition, the court rejected the juice company’s argument that the plaintiff was atypical because he is a Type 2 diabetic who closely reads nutrition labels. The court then discussed whether the plaintiff established that “the questions of law or fact common to class members predominate over any questions affecting only individual members, and that…
A putative class action alleging that Conopco Inc., a subsidiary of Unilever United States, mislabeled Breyers ice cream as “all natural” has been voluntarily dismissed with prejudice. Jefferson v. Conopco, No. L-7025-14 (Super. Ct. N.J., Bergen Cty., stipulation of voluntary dismissal filed December 1, 2014). The plaintiff alleged that Breyers’ use of cocoa processed with alkali (Dutch process cocoa) contains the artificial ingredient potassium carbonate, which he argued should preclude the company from labeling its products as natural. The brief stipulation indicates that each party will pay its own attorney’s fees and costs. Additional information about the lawsuit appears in Issue 531 of this Update. Issue 547
After a California federal court certified the class for liability but not for damages, the parties to a class action alleging that Jamba Juice mislabeled its smoothie kits as “all natural” despite containing synthetic ingredients like gelatin and xanthan gum have reached a settlement. Lilly v. Jamba Juice Co., No. 13-2998 (U.S. Dist. Ct., N.D. Cal., plaintiffs’ motion for settlement approval filed December 1, 2014). Under the proposed settlement agreement, Jamba Juice will remove “all natural” from its smoothie kit labeling and advertising by March 2015. The agreement will remain in force until the smoothie kits no longer contain the allegedly unnatural ingredients or the U.S. Food and Drug Administration classifies the ingredients as natural. The plaintiffs’ attorneys will also receive $425,000 in costs and fees. Additional information about the class certification appears in Issue 539 of this Update. Issue 547
After granting a motion for summary judgment in favor of Kangadis Food Inc.’s (KFI’s) owners, a New York federal court has issued an order further explaining its decision to dismiss the owners from a false-labeling class action. Ebin v. Kangadis Family Mgmt. LLC, No. 14-1324 (S.D.N.Y., order entered December 1, 2014). Additional information about the initial dismissal appears in Issue 543 of this Update. The court held that the plaintiffs “totally failed” to properly argue that the court should pierce the corporate veil and hold the owners liable for KFI’s actions. To satisfy the second prong of the piercing-the-veil test, the plaintiffs had to show that the owners, “through their domination, abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice” against the plaintiffs. The court found that rather than providing an argument satisfying the second prong, the plaintiffs merely provided a “wholly conclusory statement”…
A federal court has granted summary judgment for the U.S. Food and Drug Administration (FDA) in a lawsuit brought by the Center for Science in the Public Interest (CSPI) and Mercury Policy Project (MPP) alleging that the agency has egregiously delayed a response to the organizations’ 2011 petition urging FDA to require the labeling of mercury levels in seafood. CSPI v. FDA, No. 14-0375 (D.D.C., order entered November 21, 2014). Additional information about the complaint appears in Issue 517 of this Update. Assessing precedent, the court noted six considerations relevant in evaluating agency delay and found that three were in question here. CSPI and MPP argued that FDA’s delay was unreasonable because statutorily, the agency has six months to approve, deny or tentatively respond to citizen petitions; while FDA technically complied with this regulation, they argued, the deadline “provides a framework within which to gauge FDA’s delay in issuing a…
