A California federal court has dismissed fraud claims against R.C. Bigelow in a putative class action accusing the company of advertising that its tea “delivers healthful antioxidants” when the levels of antioxidants are too low to benefit the consumer. Victor v. R.C. Bigelow, No. 13-2976 (N.D. Cal., order entered July 18, 2014). The court allowed to proceed the plaintiff’s claim that Bigelow’s antioxidants assertion on its packaging violated California’s Unfair Competition Law (UCL) based on the “unlawful” prong, but it dismissed with prejudice his claims that Bigelow had violated the “fraud” prong of the UCL. Despite arguing the importance of the word “deliver,” the plaintiff failed to prove that the phrase “delivers healthy antioxidants” represented that the product contained a high enough level of antioxidants to provide health benefits to the tea drinker; as the court had previously allowed the plaintiff to amend his complaint, the claims relating to fraudulent…
Category Archives Litigation
Finding no U.S. jurisdiction, the Eleventh Circuit has dismissed multidistrict litigation against Chiquita alleging the company was liable for aiding and abetting torture and war crimes by paying a paramilitary group for security. Cardona v. Chiquita Brands Int’l, No. 12-14898 (11th Cir., order entered July 24, 2014). Relatives of alleged victims of the paramilitary group filed actions against Chiquita in 2010 and 2011. Additional information on the litigation appears in Issues 342, 345 and 387 of this Update. A district court denied Chiquita’s motion to dismiss but the Eleventh Circuit has reversed this decision, relying on the U.S. Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum, 133 S. Ct. 1659 (2013). As in Kiobel, “[t]here is no allegation that any torture occurred on U.S. territory, or that any other act constituting a tort in terms of the [Alien Tort Statute (ATS)] touched or concerned the territory of the United States with…
The Third Circuit has reversed a Michigan district court’s dismissal in a case alleging that H.J. Heinz Co. stole the idea for the “Dip & Squeeze” ketchup packet from plaintiff David Wawrzynski, an inventor who had proposed the idea to the company in 2008. Wawrzynski v. H.J. Heinz Co., No. 13-4100 (3d Cir., order entered July 21, 2014). Wawrzynski owned a 1997 patent for a condiment packet that allowed users to dip food into it. From that idea, he developed a “separate and distinct” condiment packet that he called the Little Dipper, which allowed users to either dip food into it or squeeze out the contents. He met with Heinz in 2008 and discussed the possibility of selling the idea to the company, but they never reached a deal. Later, Heinz released its Dip & Squeeze ketchup packet, which allows users the option of dipping food directly into it or…
The Second Circuit has reversed a district court’s decision that ordered the U.S. Food and Drug Administration (FDA) to initiate hearings responding to a livestock antibiotics challenge from the Natural Resources Defense Council (NRDC) based on a 1977 agency finding that the use of growth antibiotics for healthy animals was unsafe. NRDC v. FDA, No. 12-2106 (2d Cir., order entered July 24, 2014). Two judges were “firmly persuaded that Congress has not required the FDA to hold hearings whenever FDA officials have scientific concerns about the safety of animal drug usage,” that FDA has discretion on proceedings to withdraw approval of animal drugs, and that the law requires “withdrawal of approval of animal drugs or particular uses of such drugs only when the FDA has made a final determination, after notice and hearing, that the drug could pose a threat to human health and safety.” In 1977, FDA planned to…
Advocate General Niilo Jääskinen of the EU Court of Justice has issued an opinion in the case of a morbidly obese child-minder in Denmark who lost his job, allegedly due to unlawful discrimination, finding that “if obesity has reached such a degree that it plainly hinders participation in professional life, then this can be a disability” under the Equal Treatment in Employment Directive. Karsten Kaltoft, who never weighed less than 352 pounds (with a BMI of 54) during his 15-year tenure with the Municipality of Billund taking care of other people’s children in his home until he was terminated, claimed that his dismissal was based on his weight and sought damages for discrimination. The Court of Kolding in Denmark referred the case to the EU Court of Justice, seeking an opinion on whether the EU Treaty and Charter included a “self-standing prohibition on discrimination on the grounds of obesity,” or…
A federal court in Georgia has delayed until July 28, 2014, the criminal proceedings against Stewart Parnell, former owner of the Peanut Corp. of America, which was implicated in a 2008-2009 nationwide Salmonella outbreak that sickened hundreds and led to at least nine deaths. United States v. Parnell, No. 13-cr-12 (M.D. Ga., order entered July 11, 2014). The defendants, including former vice president of sales Michael Parnell and former quality assurance manager Mary Wilkerson, had argued that they did not have time to review some 100,000 documents produced by the prosecution just days before the original July 14 trial date. The court refused to dismiss the 76-count felony indictment as an alternative remedy. Meanwhile, the court is also considering whether a Centers for Disease Control and Prevention (CDC) official should be allowed to testify during the trial, indicating that it would conduct a Daubert hearing to determine whether the testimony of CDC…
A California federal court has approved a settlement in a class action alleging that Trader Joe’s labels items with synthetic ingredients as “All Natural.” Larsen v. Trader Joe’s Co., No. 11-5188 (N.D. Cal., order entered July 11, 2014). Trader Joe’s will pay $3.375 million to a settlement fund to compensate class members with a proof of purchase for all products and members without a proof of purchase for up to 10 items, with leftover funds to be distributed as products to class members at retail locations throughout the United States. Plaintiffs’ counsel will receive $950,000 of the fund. In 2011, plaintiffs accused Trader Joe’s of labeling several of its food products as “All Natural” or “100% Natural” despite containing one or more synthetic ingredients, which they alleged constituted fraud and unlawful business practices under federal and California law. The parties attended three mediation sessions supervised by a retired judge, but they…
While the Dairy Farmers of America (DFA) and affiliated Dairy Marketing Services have agreed to pay $50 million to settle class claims that they conspired to monopolize the market for raw milk in the Northeast, a federal court in Vermont has denied preliminary approval of the proposed settlement without prejudice. Allen v. DFA, Inc., No. 09-0230 (U.S. Dist. Ct., D. Vt., order entered July 9, 2014). Details about the litigation appear in Issue 323 of this Update. The court pointed to a number of flaws in the draft class notice, including that it released the defendants and a number of related entities and extended beyond the legal claims in the lawsuit without making this clear to class members. The basis for its ruling, however, was that some class members apparently plan to object to the settlement, but no information about their objections was provided in the expedited motion for preliminary approval…
Tufts University Senior Research Scientist Guangwen Tang has reportedly accused the American Society for Nutrition (ASN) of defaming her with its plan to retract her 2012 article—“β-carotene in Golden Rice is as good as p-carotene in oil at providing vitamin A to children”—for allegedly prob- lematic research protocols. Filing in Middlesex County Court, Tang has also accused Tufts of interference in business relations because, she argues, the university barred her from doing human research for two years and told her she would be subject to disciplinary actions regarding future research and would be required to undergo human subject training—actions that Tufts disclosed to ASN and led to the organization’s decision to retract her article, she claims. Tang’s studies examined the effects of golden rice, genetically engineered rice enriched with β-carotene, in China through a 2008 field trial that involved feeding the rice to Chinese children. Chinese media reports and Greenpeace…
John Wayne Enterprises (JWE) has filed a complaint in California federal court seeking declaratory judgments determining that its usage of the “Duke” trademark is not likely to cause confusion with the trademarks owned by Duke University, which has challenged several JWE trademark applications over the last decade. John Wayne Enterprises, LLC v. Duke Univ., No. 14-1020 (C.D. Cal., filed July 3, 2014). JWE intends to sell bourbon under the name Duke, a nickname John Wayne used since his childhood and which fans still use to affectionately refer to him. Duke University has repeatedly challenged JWE’s past trademark applications by filing notices of opposition and a petition for cancellation of JWE’s owned “Duke” trademarks, alleging that the marks suggest a false connection to the university, would likely confuse consumers and dilute the university’s trademarks. JWE seeks two declaratory judgments to determine that its “Duke” mark does not create any likelihood of…
