After deciding that the plaintiff lacked standing to bring a consumer-fraud class action under the Class Action Fairness Act, a federal court in New Jersey has granted his motion to dismiss without prejudice, while denying the defendants’ cross-motion for partial summary judgment because it lacked subject matter jurisdiction. Robinson v. Hornell Brewing Co., No. 11-2183 (D.N.J., decided December 13, 2012). The plaintiff had sought declaratory and injunctive relief on behalf of a class of purchasers of Arizona beverages that contain high-fructose corn syrup and were labeled as “all natural.” He sought to certify the class under Rule 23(b)(2). According to the court, the evidence showed that the plaintiff had no intention of purchasing these products in the future and therefore could not show a reasonable likelihood of future injury from the defendants’ conduct. Thus, the court denied his motion to certify the class for lack of standing to seek injunctive…
Category Archives Litigation
The Eighth Circuit Court of Appeals has affirmed a $1.6 million award of damages and attorney’s fees in a contract dispute between General Mills and the company that sold it beef obtained from the Westland Meat Co. and recalled in 2008 after “[v]ideo footage from the Humane Society allegedly showed Westland employees improperly handling cattle designated for slaughter.” General Mills Operations, LLC v. Five Star Custom Foods, Ltd., Nos. 12-1731 and 12-1826 (8th Cir., decided January 7, 2013). General Mills destroyed the Progresso soups in which the recalled beef had been used. The Eighth Circuit affirmed the district court’s grant of summary judgment to General Mills on its breach-of-contract claim and dismissed as moot the company’s cross-appeal of the lower court’s grant of summary judgment to Five Star on the breach-of-warranty claims. At issue was whether Five Star had materially breached its contract with General Mills. The contract required the…
One of the 750 beef processing plant employees who lost his job in the wake of recent negative publicity involving “lean finely textured beef,” otherwise referred to in the media as “pink slime,” has reportedly filed a lawsuit in a Nebraska state court naming as defendants celebrity chef Jamie Oliver, ABC’s Diane Sawyer, a blogger, and 10 unnamed individuals. Bruce Smith, who worked as senior counsel and director of environmental, health and safety at Beef Products, Inc., is apparently seeking $70,000 in damages on the ground that the company “and its employees were unfairly and unnecessarily maligned and accused of producing a food product that did not exist, a product that critics unfairly labeled ‘pink slime.’” The publicity apparently led to the loss of numerous contracts for the product’s purchase. See The Daily Mail, December 12, 2012.
According to a news source, the first “popcorn-lung” occupational exposure case tried in California has resulted in a defense verdict. Velasquez v. Flavor & Extract Mfrs. Ass’n, No. BC370319 (Cal. Super. Ct., Los Angeles Cty., verdict reached December 12, 2012). The plaintiff was a former flavoring factory employee who claimed that his exposure to the butter-flavoring chemical diacetyl caused his debilitating lung disease, bronchiolitis obliterans. His attorney was quoted as saying, “The defense was very effective in confusing the jury,” observing that the defense suggested that the plaintiff’s health problems could have been attributed to acetaldehyde, another chemical flavoring. The lawsuit originally involved 10 defendants, a number of whom settled with the plaintiff before trial. Plaintiff’s counsel has reportedly indicated that the verdict will be appealed, citing, among other matters, the trial corut’s decision to allow the jury to hear that the plaintiff is an illegal immigrant. See Law360, December 13, 2012.
A plaintiff who claims he began consuming Monster Beverage energy drinks as a teenager, because he was offered free beverages from a truck parked outside his high school, has filed a putative nationwide consumer-fraud class action against the company in a California federal court. Fisher v. Monster Beverage Corp., No. 12-02188 (C.D. Cal., filed December 12, 2012). Among other matters, he claims that the company aggressively markets the products to youth and falsely labels them as dietary supplements to avoid regulation under Food and Drug Administration beverage rules. He further contends that the products are addictive. Alleging violations of California’s Unfair Competition Law, False Advertising Law and Consumers Legal Remedies Act, breach of express and implied warranties, violation of the Magnuson-Moss Warranty Act, and unjust enrichment, the plaintiff seeks actual, statutory and punitive damages; corrective labeling, advertising and marketing; full restitution and disgorgement; and interest.
A federal court in California has dismissed in part putative class claims filed by a man who alleges that Ghirardelli Chocolate Co. white chocolate products do not contain the requisite white chocolate ingredients to be labeled and promoted as such. Miller v. Ghirardelli Chocolate Co., No. 12-04936 (N.D. Cal, decided December 6, 2012). The court agreed with Ghirardelli that the plaintiff lacked standing to pursue claims relating to four products that he did not purchase. According to the complaint, the plaintiff bought a package of “Ghirardelli Chocolate Premium Baking Chips Classic White” and sought recovery on behalf of a class of purchasers of that product as well as white chocolate wafers, ground white chocolate flavor, a mocha mix, and a frappé product. Noting that controlling authority is lacking on whether plaintiffs have standing for products they did not purchase, the court discussed two lines of cases: one in which federal courts have…
A federal court in Minnesota has dismissed without prejudice state law-based consumer-fraud claims filed against a company that makes Greek yogurt not by straining it, a process essential to the traditional production of this thickened dairy product, but by adding milk protein concentrate (MPC). Taradejna v. General Mills, Inc., No. 12-993 (D. Minn., decided December 10, 2012). So ruling, the court directed the parties to initiate proper proceedings before the Food and Drug Administration (FDA). The court recites FDA yogurt-related standard-of-identity initiatives since 1981, culminating in a pending 2009 proposal that would permit the use of “any safe and suitable milk-derived ingredient as an optional dairy ingredient in the manufacture of yogurt.” Finding that application of the primary jurisdiction doctrine was appropriate in the matter, the court states, “The underlying issue here is whether MPC is a proper, permitted ingredient in yogurt. The resolution of this question falls squarely within the…
A multidistrict litigation (MDL) court that is considering pretrial matters in 91 consolidated antitrust lawsuits alleging that major chocolate manufacturers conspired to implement price increases from 2002 through 2007, has granted the direct-purchaser plaintiffs’ motion for class certification. In re Chocolate Confectionery Antitrust Litig., MDL No. 1935 (M.D. Pa., order entered December 7, 2012). The court did so after first determining whether the plaintiffs’ expert testimony in support of class certification is reliable under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The U.S. Supreme Court is currently facing a similar issue, that is, “Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.” The MDL court, noting that the issue has not yet been decided in…
David Egilman, whose expert testimony was deemed inadmissible in proceedings involving a consumer’s exposure to the butter-flavoring chemical diacetyl in microwave popcorn, has filed a petition for writ of certiorari (No. 12-697) in the U.S. Supreme Court. He asks, “Whether a nonparty to a district court proceeding has a right to appeal a decision that adversely affects his interest, as the Second, Sixth, and D.C. Circuits hold, or whether, as six other circuit courts hold, the nonparty must intervene or otherwise participate in the district court proceedings to have a right to appeal.” He was apparently retained by a couple seeking to recover for the lung injury sustained by the husband, but the district court found his testimony inadmissible and granted summary judgment for the manufacturers. According to Egilman’s petition, the district court did not confine itself to a traditional reliability inquiry, but “attacked the character and professionalism of the expert…
A World Trade Organization (WTO) arbitrator has determined that the United States must conform its country-of-origin-labeling (COOL) rules in accordance with an earlier ruling by May 23, 2013, finding that 10 months was a reasonable time for implementation. Additional details about the dispute, which involved a challenge brought by Canada and Mexico over 2008 COOL provisions for beef and pork products, appear in Issue 446 of this Update. According to a news source, the labeling program has sharply reduced U.S. imports of Canadian pigs and cattle, because it purportedly raised U.S. packers’ costs by requiring them to segregate imported animals from U.S. livestock. COOL supporters contend that such labeling provides consumers with important information about food origins. Canada’s International Trade Minister Ed Fast and Agriculture Minister Gerry Ritz reportedly said, “We are particularly pleased that the arbitrator determined a reasonable period of time close to that proposed by Canada and…
