A federal court in New Jersey has denied without prejudice the motion to certify three classes of multi-state claimants alleging that Beam Global Spirits & Wine falsely markets and sells its “Skinnygirl Margarita” product as “all natural” and a “healthy alternative to other commercial Margarita products.” Stewart v. Beam Global Spirits & Wine, Inc., No. 11-5149 (U.S. Dist. Ct., D.N.J., order entered June 26, 2014). Under Third Circuit Court of Appeals precedent, the court determined that class membership, essentially via affidavit relying on potentially faulty memory, was not sufficiently ascertainable. The plaintiffs will have the opportunity to renew their motion at any appropriate time “specifically taking into account the rulings in Marcus, Hayes, and Carrera.” Among other matters, the court rejected the plaintiffs’ claim that the affidavits could be cross-checked using social media—for example, the “likes” or comments on the defendants’ Skinnygirl Facebook pages, or the companies’ consumer email records—or…
Category Archives Litigation
A California federal court has dismissed with prejudice a putative class action alleging that Hain Celestial Group Inc. mislabels its vegetable juice products as “organic” and “raw” one day before a proposed class action was filed against the company in New York federal court alleging similar claims about its baby foods and home care products. Alamilla, et al. v. Hain Celestial Group, Inc., No. 13–5595 (N.D. Cal., order entered July 2, 2014); Segedie v. The Hain Celestial Group, Inc., No. 14–5029 (S.D.N.Y., filed July 3, 2014). The California court dismissed the case based on two articles cited and incorporated into the complaint concluding that “pressurization has ‘little or no effects’ on nutritional and sensory quality aspects of foods,” which contradicted the plaintiffs’ argument that the treatment deprives the juice of nutritional value and that the company’s representations that it does not cook the juice are thus misleading. As a result of…
A California federal court has granted motions to amend the judgment in two cases previously dismissed to accord primary jurisdiction to the U.S. Food and Drug Administration (FDA), each alleging that the defendants mislabeled their food products as including “evaporated cane juice” (ECJ) rather than the more common term, sugar. Swearingen v. Santa Cruz Natural Inc., No. 13–4291 (U.S. Dist. Ct., N.D. Cal., order entered July 1, 2014); Figy v. Amy’s Kitchen Inc., No. 13–3816 (U.S. Dist. Ct., N.D. Cal., order entered July 7, 2014). The court cited “the unique circumstances,” “the potential prejudice to plaintiff,” and “the apparent lack of prejudice to the defendant” in amending its previous decisions to dismiss the cases without prejudice rather than stay them. The plaintiffs had argued that allowing the dismissal to remain rather than issuing a stay through the end of 2014 would likely result in the loss of a year of…
Environmental groups have brought actions in state court and before the U.S. Environmental Protection Agency (EPA) seeking action to halt the use of certain insecticides that they claim are linked to the collapse of bee colonies. In California, Pesticide Action Network North America and other groups call on the state Department of Pesticide Registration to “stop approving neonicotinoid pesticides pending its completion of a comprehensive scientific review of impact to honeybees.” Pesticide Action Network N. Am. v. Cal. Dep’t of Pesticide Regulation, No. RG14731906 (Cal. Super. Ct., Alameda Cty., filed July 8, 2014). They specifically challenge the department’s June 13, 2014, decision to expand the use of two neonicotinoid insecticides while its scientific review, begun in 2009, remains pending. Claiming violations of the California Environmental Quality Act and Food and Agricultural Code, the organizations seek a stay of the decision or a writ of mandate directing the department to vacate the decision,…
Following a year-long investigation of Whole Foods Markets in California, state and county weights and measures inspectors found that it was charging more than advertised for a wide variety of food items; the company has reportedly agreed to pay nearly $800,000 in penalties and to conduct its business for the next five years under strict oversight. According to the Santa Monica City Attorney’s Office, Whole Foods (i) failed to account for the weight of containers when charging for self-serve foods at the salad and hot bars, (ii) labeled foods sold by pound with higher weights than actually contained in the package, and (iii) sold items by the piece that should have been sold by the pound. Retailers bound by the judgment include those operated by Whole Foods Market California, Inc. and Mrs. Gooch’s Natural Foods Markets, Inc. The company has also agreed to appoint two “state coordinators” who will oversee…
In a 4-2 ruling with one judge not participating, New York’s highest court has affirmed lower court rulings invalidating a New York City Board of Health rule that would have limited the size of the containers in which sugary drinks are sold in certain venues. In re N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. NYC Dept. of Health & Mental Hygiene, No. 134 (N.Y. June 26, 2014). Details about the intermediate appellate court ruling appear in Issue 492 of this Update. Finding that the board lacks legislative authority, the majority weighed the separation-of-powers factors that are analyzed to determine whether a particular action is legislative or regulatory and determined that the board had overstepped its authority by engaging in political compromise, choosing between ends and making difficult and complex policy choices. It contrasted agency action regulating the purity of drinking water, the use of interior lead paint or the use…
A pair of plaintiffs has filed putative class actions against Chobani LLC and Fage Dairy Processing SA in New York federal court claiming that the yogurt producers deceptively marketed yogurt as healthy despite its high sugar content. Stoltz v. Chobani LLC, No. 1:14-cv-3827 (E.D.N.Y., filed June 19, 2014); Stoltz v. Fage Dairy Processing SA, No. 1:14-cv-3826 (E.D.N.Y., filed June 19, 2014). The nearly identical suits allege that Chobani and Fage used a label intended “to create consumer confusion by causing purchasers to impute any meaning to the 0 percent that consumers wish, such as that the products lack sugar, carbohydrates, calories or any other content which a consumer may believe is unhealthy,” according to the complaint against Fage. The complaints include pictures of the defendants’ products and pictures of competitors’ products to illustrate the industry standard of including what nutrition levels the “0 percent” refers to, such as fat or…
Following a hearing on the admissibility of expert testimony proffered as to Stewart Parnell’s ability to form the intent to commit alleged crimes arising from a national Salmonella outbreak linked to the Peanut Corp. of America, the company he formerly owned, a federal court in Georgia has excluded the expert, finding his testimony unhelpful and lacking a link to the criminal allegations. United States v. Parnell, No. 13-12 (U.S. Dist. Ct., M.D. Ga., Albany Div., order entered June 24, 2014). Details about the criminal charges appear in Issue 472 of this Update. Clinical psychologist Joseph Conley would have testified that Parnell has an Attention Deficit Hyperactivity Disorder condition that was so severe he likely never read, nor understood the significance of, many of the emails on which the government’s case relies. According to the court, “Dr. Conley’s testimony is a ‘diminished capacity defense’ designed to show that Parnell did not…
In light of the large number of baby food products at issue and differing product labels used during the six-year class period in litigation alleging misbranding and deceptive labeling against Gerber Products Co., a federal court in California has determined that the class is not ascertainable, a flaw “fatal” to the plaintiff’s motion for class certification. Bruton v. Gerber Prods. Co., No. 12-2412 (N.D. Cal., decided June 23, 2014). Information about an earlier court ruling narrowing the claims in the case appears in Issue 511 of this Update. While the court rejected the company’s reliance on Third Circuit precedent that ruled a class is not ascertainable when purchaser records are unavailable, it did agree with uncontested evidence that consumers would be unable to reliably determine whether they are eligible to join the class. Sixty-nine products were at issue, and 66 of them were “labeled both with and without the challenged labels…
An Indiana federal court has upheld a state statute that limits the sale of cold beer to package liquor stores, barring other beer sellers like convenience stores from selling beer cooler than room temperature. Ind. Petroleum Marketers & Convenience Store Ass'n v. Huskey, No. 13-784 (S.D. Ind., order entered June 16, 2014). Indiana law divides beer sales permits into three categories: (i) a beer retailer permit for restaurants and bars; (ii) a dealer permit for package liquor stores; and (iii) a beer dealer permit for convenience stores, grocery stores and drug stores. The beer dealer permit places limits on retailers, prohibiting them from selling alcohol on Sunday, establishing a minimum age of clerks who can sell the beer, and barring them from selling beer cooled, chilled or iced. An association representing convenience stores challenged the constitutionality of the permit limitations in May 2013, arguing that the statute violated the association’s…
