The parties to litigation alleging that Ghirardelli Chocolate Co. white chocolate products do not contain the requisite white chocolate ingredients to be labeled and promoted as such have agreed to settle the putative nationwide class action for $5.25 million and labeling changes. Miller v. Ghirardelli Chocolate Co., No. 12-4936 (N.D. Cal., motion filed August 20, 2014). Additional information about the case appears in Issues 465 and 479 of this Update. The settlement would also resolve claims to be alleged in a second lawsuit by an intervening named plaintiff regarding the use of “all natural” on product labels. Under the agreement, class members who purchased the company’s Classic White Chips would be able to receive $1.50 per purchase, while those purchasing 72 other “all natural” products would receive $0.75 per purchase. The claims of those with proofs of purchase would not be capped, while claimants without proof of purchase would receive a maximum…
Category Archives Litigation
Prichard’s Distillery Inc., maker of Benjamin Prichard’s Double Barreled Bourbon, has filed a lawsuit against Sazerac Co. alleging that the liquor manufacturer has violated its trademark in “double barreled” by selling A. Smith Bowman Limited Edition Double Barrel Bourbon Whiskey and Buffalo Trace Experimental Collection Double Barreled, a bourbon. Prichard’s Distillery Inc. v. Sazerac Co., No. 14-1646 (U.S. Dist. Ct., M.D. Tenn., filed August 11, 2014). Prichard’s claims that it has owned a trademark on the use of “double barreled” in liquor sales since 2002, and the term comes from Prichard’s distilling process, which involves aging the bourbon in one barrel, diluting it to a lower proof, then aging it in a second barrel to reinforce the flavor. The company seeks an injunction preventing Sazerac from using “double barreled” on its products as well as damages multiplied due to Sazerac’s “willful and wrongful conduct.” Issue 535
The Equal Employment Opportunity Commission (EEOC) has filed a lawsuit in North Carolina federal court against Food Lion alleging that the grocery retailer fired an employee because he was unavailable to work on Thursday evenings and Sundays, when he attended Jehovah’s Witness services as a minister and elder. EEOC v. Food Lion LLC, No. 14-708 (U.S. Dist. Ct., M.D.N.C., filed August 20, 2014). According to the complaint, a Food Lion manager hired the employee with knowledge and acceptance of his scheduling restrictions, but after the employee was assigned to a different store location, a second manager insisted on scheduling him on days that he attended religious services. When the employee chose to attend services over working his scheduled shift, he was fired. EEOC alleged that Food Lion’s employment practices violate Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991, and…
Federal charges have been brought against two owners and two employees of Rancho Feeding Operations, a Petaluma, California-based livestock slaughterhouse, for distributing condemned and diseased cattle in violation of the Federal Meat Inspection Act. United States v. Amaral, No. 14-cr-437 (N.D. Cal., filed August 14, 2014); United States v. Singleton, No. 14-cr-441 (N.D. Cal., filed August 18, 2014). As a result of the investigation giving rise to the charges, Rancho voluntarily recalled some 8.7 million pounds of beef products in February 2014. According to the criminal indictment and information, Jesse Amaral and Robert Singleton, who owned the operation, allegedly directed Eugene Corda, Rancho’s primary yardperson, and Felix Cabrera, the facility’s foreperson, to either (i) remove “USDA Condemned” stamps from cattle carcasses and to process them for transport and distribution, or (ii) place the heads of healthy cows, swapped for diseased heads—from “cancer eye cows”—next to the carcasses of diseased animals while…
A jury in an Iowa federal court has reportedly determined that International Flavors and Fragrances Inc. (IFF) was not liable for the lung condition a man allegedly developed from microwaving popcorn containing diacetyl, a butter flavoring ingredient used in the product. Stults v. Int’l Flavors & Fragrances Inc., No. 11-4077 (U.S. Dist. Ct., N.D. Iowa, verdict entered August 19, 2014). The plaintiff claimed that the company had breached the implied warranty of fitness for its butter flavoring, which had a foreseeable use in microwave popcorn packages. IFF was the only remaining defendant during the seven-day trial out of some half-dozen companies originally sued for $27 million in compensatory damages. See Law360, August 20, 2014. Issue 535
A federal court in New Jersey has denied the motion to dismiss filed by MonaVie, Inc. in consumer-fraud litigation involving its juice products, finding that the first amended putative class-action complaint was sufficiently pleaded. Pontrelli v. MonaVie, Inc., No. 13-4649 (D.N.J., decided August 19, 2014). Attached to the complaint was a MonaVie brochure that included a number of claims about the curative health benefits of the açai berry, as well as purported customer testimonials. The plaintiff claimed that she relied on such representations, did not receive the advertised benefits and would not have purchased the products if she had known that the representations were false. The complaint also alleged that consumers are willing to pay an inflated price for the products—$40 for a 25-ounce bottle—based on the advertised health benefits. The plaintiff also alleged that the company knows its claims are false and that the juice products will not cure any…
Ruling against Val-de-Travers absinthe producers, the Swiss Federal Administrative Tribunal has reversed a 2010 Federal Office of Agriculture decision confirming the “protected geographical indications” registration of the terms “absinthe,” “fée verte”—the green fairy and “la bleue.” Guignon v. Ass’n interprofessionnelle de l’Absinthe, No. B-4820/2012 (Tribunal administratif fédéral, decided August 13, 2014). The court said in a press release that it believed “that this denomination refers to a type of good, regardless of its origin, and not to a product originating specifically from Val-de-Travers.” According to the court, just a small percentage of people in Switzerland associate the terms with this region, a district in the Neuchâtel canton. The president of the absinthe association, which registered the terms on behalf of the producers and defended the appeals filed by distillers in France, Germany and Switzerland, reportedly characterized the decision as “incomprehensible” because most of Switzerland’s absinthe is produced in Val-de-Travers and the ruling…
A California appeals court has determined that the state Labor Code requires employers to reimburse employees who “must use their personal cell phones for work-related calls”; so ruling, the court reversed a class-certification denial and ordered the lower court to reconsider the motion in light of this interpretation of the law. Cochran v. Schwan’s Home Serv., Inc., No. B247160 (Cal. Ct. App., decided August 12, 2014). The trial court denied certification due to lack of commonality and because a class action was not a superior method to litigate the claims. In its view, if an employee did not pay the cell phone charges because someone else did or the employee purchased a different cell phone plan that accommodated the calls, individual inquiries into the plans and payments would be necessary to determine liability. According to the appeals court, the issue in the case is whether an employer must always “reimburse…
Echoing a putative class action filed in Massachusetts federal court on August 1, 2014, a plaintiff has filed a lawsuit against Whole Foods Market in Pennsylvania state court accusing the retailer of mislabeling its 365 Everyday Value yogurt’s sugar content as 2 grams despite containing 11.4 grams, according to test results published in the July issue of Consumer Reports. Clemente v. Whole Foods Market Inc., No. 140801271 (Ct. of C.P. of Pa., Philadelphia Cty., filed August 11, 2014). The plaintiffs accuse Whole Foods of knowingly mislabeling its yogurt, citing a statement on the Whole Foods website that allegedly reads, “Our Private Label registered dietician reviews each nutrition label for accuracy and completeness before the label is printed. All attempts are made to review nutrition labels on a regular basis to ensure accuracy.” In the complaint, the plaintiffs argue, “Unless this statement on Defendant’s website is false, then Whole Foods Market was…
As the criminal prosecution of Peanut Corp. of America executives continues into its second week, the former south Georgia peanut-processing plant manager reportedly admitted lying to federal investigators about positive tests for Salmonella in company products and the frequency of testing “to play damage control, [and in an effort] to protect the company.” According to news sources, Samuel Lightsey, who agreed to plead guilty to seven criminal counts to reduce his potential prison sentence in exchange for his testimony against his former colleagues, also testified that the company cheated on safety testing by switching samples and shipping thousands of pounds of peanut products after learning they were contaminated or before testing could be completed. The contaminated peanut paste, traced to the Peanut Corp. facility, allegedly sickened more than 700 people and killed nine in a 2008-2009 Salmonella outbreak that led to one of the largest food recalls in U.S. history.…
