A California federal court has dismissed with prejudice claims filed against a yogurt maker and its parent company alleging that its Greek style yogurt product was misbranded under federal food regulations. Smith v. Cabot Creamery Coop., Inc., No. 12-4591 (N.D. Cal., decided February 25, 2013). The putative class plaintiffs alleged that the defendants used whey protein concentrate (WPC) and milk protein concentrate (MPC) as “filler material” to “thicken Cabot Greek and increase its protein content, instead of making Greek yogurt the ‘authentic’ way which involves filtering the liquid whey byproduct during the manufacturing process and keeping only the protein-rich solid portion.” They also alleged that the Food and Drug Administration (FDA) forbids the use of WPC and MPC. The defendants moved to dismiss the claims because they were premised on the alleged unlawful use of these ingredients, arguing that FDA allows WPC and MPC to be used lawfully “as optional ingredients…
Category Archives Litigation
A federal court in California has denied in part and granted in part the defendants’ motion to dismiss putative class claims that many of their food products are sold with labels that are unlawful and/or mislead consumers. Ivie v. Kraft Foods Global, Inc., No. 12-2554 (N.D. Cal., order entered February 25, 2013). Among the products are chewing gum, crackers, granola, fruit punch, cheese, nut mix, lemonade, stuffing mix, Jell-O®, and Easy Mac®. The labels at issue include the following statements: “natural,” “all natural,” “no artificial” colors/sweeteners/flavors/preservatives/ingredients, nutrient content, health claims, “sugar free,” “sugarless,” certain serving sizes, and “evaporated cane juice.” The allegations are also apparently based on products the named plaintiff did not purchase. The court determined that (i) the plaintiff sufficiently alleged an injury in fact by claiming she would not have purchased the products but for the alleged unlawful or misleading labels; (ii) the plaintiff cannot bring claims relating…
A federal court in California has dismissed some of the putative class claims filed against Twining North America, Inc., alleging that the company misled consumers by labeling its green tea products as a “natural source of antioxidants.” Lanovaz v. Twinings N. Am., Inc., No. 12-2646 (N.D. Cal., order entered February 25, 2013). Stricken with leave to amend are claims based on labels or products other than green tea because the named plaintiff alleged that she purchased green tea only. The court disagreed with the defendant that the state law-based claims were preempted, finding that by stating its tea is a “natural source of antioxidants,” the defendant made a nutrient content claim regulated by the Food and Drug Administration (FDA) and that the plaintiff was seeking to enforce state law identical to federal requirements. So ruling, the court cited an FDA warning letter sent to the company over its alleged “nutrient content…
In a 76-count indictment, four individuals formerly associated with the Peanut Corp. of America (PCA), which was the source of a nationwide Salmonella outbreak in 2009, have been charged with conspiracy, mail and wire fraud, obstruction of justice and other counts involving the distribution of adulterated or misbranded food. United States v. Parnell, No. 13-12 (M.D. Ga., filed February 15, 2013). A fifth individual employed by PCA has entered a guilty plea to charges filed against him. United States v. Kilgore, No. 13-7 (M.D. Ga., filed February 11, 2013). The outbreak was traced to the Blakely, Georgia, plant owned by defendant Stewart Parnell. The other defendants are Michael Parnell, who was employed as a food broker on behalf of PCA, Samuel Lightsey, the Blakely plant’s operations manager from July 2008 through February 2009, and Mary Wilkerson, who worked in a number of positions from April 2002 through February 2009, including as…
The First Circuit Court of Appeals has upheld the dismissal of an attempted appeal from an administrative ruling under the Perishable Agricultural Commodities Act (PACA), agreeing with the district court that the company which allegedly failed to pay all of the required purchase price on four truckloads of produce failed to file an appropriate appeal bond within the prescribed period. The Alphas Co. v. Kopke, No. 12-1581 (1st Cir., decided February 13, 2013). So ruling, the court affirmed the order of an administrative law judge, acting on behalf of the Secretary of Agriculture, awarding the produce supplier $50,025 plus interest. The bond that Alphas filed had “three material defects: it was not filed within the prescribed thirty-day appeal period; it was in an amount less than the amount stipulated; and it did not contain appropriate indemnification covenants.” Looking to the statute, legislative history and other courts for guidance, the First…
The Eighth Circuit Court of Appeals has reversed the grant of class certification for some 1,600 Domino’s Pizza delivery drivers in Minnesota, finding that their claims lacked commonality. Luiken v. Domino’s Pizza, LLC, No. 12-1216 (8th Cir., decided February 4, 2013). The drivers claimed that Domino’s improperly withheld from them a fixed delivery charge imposed on customer orders. They contended that the charge was in the nature of a surcharge or gratuity under Minnesota law and, as such, must be paid to them. According to the court, liability was based on the objective, reasonable person standard, and what is objectively reasonable from the perspective of the customer “depends on the nature and context of the parties’ bargain.” Because some customers were told by drivers that Domino’s retained the charge and was not part of their tip and because the fixed charge was sometimes within the normal range for a tip,…
According to a press report, the U.K. High Court has ordered Danone to remove any reference to “Greek yogurt” on the packaging for its newly launched product Danio®. The matter is currently before the court in litigation involving Greece-based yogurt maker Fage, which sued U.S.-based Chobani Inc. in November 2012 after that company launched its “Greek yogurt” product line in the United Kingdom. While Danone is not apparently required to remove offending products already on store shelves under the injunction, it began complying with the January 30, 2013, court order on products made after that date. In a statement Danone said, “This ruling is in place until the High Court has determined, as part of a separate case with another manufacturer, whether the use of ‘Greek yogurt’ is only possible for yogurt produced in Greece or if it refers to a particular type of yogurt made using a specific process.…
A divided Colorado Supreme Court has determined that a trial court did not abuse its discretion when it refused to grant the motion for pro hac vice admission filed by Seattle-based law firm Marler Clark to represent a plaintiff in a foodborne illness lawsuit. In re Liebnow v. Boston Enters. Inc., No. 12SA83 (Colo., decided February 4, 2013). Counsel for the defendant had apparently consulted with Drew Falkenstein, a member of the Marler Clark firm, before plaintiff’s counsel asked another member of the firm to step in and represent the plaintiff. Defense counsel and Falkenstein “talked about defense counsel’s planned theory of the case,” advice on a trial expert and Falkenstein’s recommendation that a lettuce distributor be added as a nonparty defendant after he had researched E. coli outbreaks using Marler Clark’s publicly accessible database and finding such an outbreak at another local restaurant chain. “[T]he trial court concluded that…
A federal court in California has deferred ruling on the motion to dismiss filed in a consumer protection lawsuit against R.C. Bigelow, Inc. to give the plaintiff an opportunity to amend her complaint. Khasin v. R.C. Bigelow, Inc., No. 12-2204 (N.D. Cal., order entered February 6, 2013). Indicating that it was inclined to allow most of her state-law claims to proceed and to dismiss her federal claims, the court counseled the defendant “that the Court did not find its arguments regarding preemption and abstention under the doctrine of primary jurisdiction persuasive.” According to the court, the plaintiff has filed claims on behalf of a putative class alleging that the company misrepresents the health benefits of drinking tea and promotes and labels its green tea products with antioxidant assertions “expressly condemned by the Food and Drug Administration [FDA].” The court found the substance of many of the plaintiff’s allegations unclear or…
A Michigan court has reportedly entered an order specifying what will appear on the Facebook® page of the attorney who filed a complaint seeking to set aside a settlement resolving claims that a McDonald’s Corp. franchisee purported to sell halal chicken when some of the products were not prepared according to Islamic law. Additional details about the settlement appear in Issue 468 of this Update. The court ordered Dearborn-based attorney Majed Moughi to remove any criticism of the proposed settlement from the site, which is apparently popular as a source of news in the Muslim community—drawing 20,000 views each month, prominently post the settlement agreement itself, provide the names of anyone who “liked” or supported the original post, and refrain from discussing the settlement with anyone who might be affected or the media. According to a news source, the Facebook® page has effectively become static because any new posts or…
