Soft drink manufacturers and restaurateurs have reportedly requested that the court reschedule oral arguments in their challenge to a New York City prohibition on the sale of sweetened beverages in sizes that exceed 16 ounces. N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. NYC Dept. of Health & Mental Hygiene, No. 653584/2012 (N.Y. Sup. Ct., filed October 12, 2012). Additional details about the case appear in Issue 458 of this Update. According to a news source, the industry interests seek oral argument before January 2013, claiming it will take up to three months to “retool” their operations to comply with the new requirements, which will take effect in March 2013, if upheld by the court. City attorneys have apparently decided not to oppose the request, noting that everyone’s interest will be served if the matter is “resolved sooner rather than later.” See Reuters, December 5. 2012.
Category Archives Litigation
In an unpublished decision, a California appeals court has determined thatInnovation Ventures, LLC, the parent company which makes 5-Hour Energy®, may proceed with a malicious prosecution action against Howard Rubinstein and other consumer-fraud attorneys in connection with a putative class action filed against the company in 2010 on behalf of a woman, Vi Nguyen, whose claims about the product apparently changed during her deposition, leading to the suit’s voluntary dismissal with prejudice. Innovation Ventures, LLC v. Rubinstein, No. G046242 (Cal. Ct. App., 4th Dist., decided November 29, 2012) (unpublished). The court noted that the underlying consumer-fraud complaint referred in a number of places to the named plaintiff as “he” and that the named plaintiff did not believe she had ever seen the complaint or she would have corrected these references. She also apparently had never seen the attorneys of record “and had just met Rubinstein the day before her deposition.”…
A federal court in California has granted in part the summary judgment motion filed by a coconut water company facing allegations that it overstates the magnesium and sodium content of its “O.N.E.” product and falsely claims that it is a good source of electrolytes. Vital v. One World Co., LLC, No. 12-00314 (C.D. Cal., order entered November 30, 2012). The court dismissed all claims based on a study that allegedly found lower levels of magnesium and sodium than allowed by Food and Drug Administration (FDA) regulations when a product is claimed to be a “good source” of such nutrients. According to the court, the plaintiffs failed to show that the study was conducted under FDA’s § 101.9(g) methodology and would thus impose more stringent requirements on the defendant than federal law. The court allowed the plaintiffs to pursue claims that the product is falsely marketed as a “good source of…
A federal court in California has determined that Diamond Foods’ investors adequately pleaded knowledge, or scienter, on the part of the company and individual senior officers to allow putative class claims against them for false and misleading statements in violation of federal securities laws to proceed. In re Diamond Foods, Inc., Securities Litig., No. 11-05386 (N.D. Cal., order entered November 30, 2012). The court also dismissed claims filed against the company’s auditor, finding insufficient allegations to raise a strong inference of scienter, but allowed the plaintiffs to amend their complaint to cure its deficiencies. The litigation arises from events occurring in 2010-2012, when Diamond was attempting to purchase the Pringles brand of snack chips from P&G. The company allegedly manipulated prices paid to walnut growers during those years and failed to properly account for the payments, resulting in what appeared to be an inflated value for its shares. When the irregularities…
The Government Accountability Project (GAP) has filed a lawsuit under the Freedom of Information Act (FOIA) against the Food and Drug Administration (FDA), alleging that the agency has wrongfully withheld information requested about the use of anti-microbial drugs in food-producing animals. GAP v. FDA, No. 12-1954 (D.D.C., filed December 5, 2012). GAP requests an order requiring FDA to make the requested information available within 10 working days and further seeks costs and attorney’s fees. According to the complaint, GAP sought information in February 2011 about anti-microbial drugs collected from animal-drug sponsors under 21 U.S.C. § 360b. While FDA produced, as requested, educational and outreach materials that assist drug sponsors in fulfilling their reported duties, it withheld (i) “FDA’s data for use of anti-microbial drugs in food-producing animals in 2009 as broken down by container size, strength, and dosage form”; and (ii) “FDA’s data for use of anti-microbial drugs in food-producing…
Indiana farmer Vernon Bowman claims in his U.S. Supreme Court merits brief that the Federal Circuit Court of Appeals, which ruled that he infringed patents by planting second-generation genetically modified (GM) seeds, has “significantly curtailed the patent-exhaustion defense” by refusing to “hold Monsanto’s patent rights exhausted with respect to the seeds Bowman purchased from [a] grain elevator.” Bowman v. Monsanto Co., No. 11-796 (U.S., petitioner’s brief filed December 3, 2012). The U.S. Supreme Court agreed to review whether “the Federal Circuit erred by (1) refusing to find patent exhaustion in patented seeds even after an authorized sale, and by (2) creating an exception to the doctrine of patent exhaustion for self-replicating technologies.” Additional information about the dispute appears in Issue 434 of this Update. The allegedly infringing seeds that Bowman planted as a second crop were purchased in a commodity grain mix from a grain elevator. Such mixes can, according to…
A putative class action alleging that Dole Food Co. misleads consumers by claiming it is an environmentally friendly and socially responsible company despite purportedly purchasing bananas from growers using pesticides in Guatemala has reportedly been filed in a California federal court. According to a Hagens Berman news release, the suit, filed on November 13, 2012, alleges that Dole’s supplier destroyed wetlands and poisoned water sources. Steve Berman said, “Dole promised its customers it had an ‘unwavering commitment’ to environmental responsibility. Yet, it gave its business to a plantation that showed a complete disregard for the local environment.” See Hagens Berman Press Release, November 13, 2012.
The owners of the California-based Hallmark Meat Packing Co. have reportedly settled claims that they committed fraud under the False Claims Act (FCA) by supplying ground beef to school lunch programs without meeting contractual commitments to treat their animals humanely. The Humane Soc’y of the U.S. v. Hallmark Meat Packing Co., No. 08-00221 (C.D. Cal., partial settlement announced November 16, 2012). The Humane Society of the United States (HSUS) brought the suit after it discovered and videotaped animal abuse at the meatpacking facility. Videotape of employees abusing non-ambulatory animals at the slaughterhouse resulted in the recall of 143 million pounds of beef in February 2008. The U.S. Department of Justice (DOJ) intervened in the litigation, which also involves the Westland Meat Company and other individual defendants. According to HSUS, Donald Hallmark Sr. and Donald Hallmark Jr. have agreed to pay $304,000 from their personal assets and will make structured payments…
A federal court in California has certified a nationwide class and Washington subclass of individuals who received purportedly unsolicited text messages sent by OnTime4U to advertise Papa John’s pizza products. Agne v. Papa John’s Int’l, Inc., No. 10-1139 (W.D. Wash., decided November 9, 2012). An appeal was filed before the Ninth Circuit on November 26. According to the court, “OnTime4U apparently told Papa John’s franchisees that it was legal to send texts without express customer consent because there was an existing business relationship between the customers and the Papa John’s restaurants. Certain Papa John’s franchisees, including at least some of the Rain City Defendants, provided OnTime4U with lists of telephone numbers of individuals who had purchased pizza from them. Those lists were generated out of the PROFIT system, a proprietary database that Papa John’s describes as a ‘point of sale data entry system.’ . . . OnTime4U removed landline numbers from…
A federal court has agreed to certify a class of California consumers allegedly misled by representations that AriZona Iced Tea® is “Natural” because it contains the processed, man-made ingredients high-fructose corn syrup (HFCS) and citric acid. Ries v. Arizona Beverages USA LLC, No. 10-01139 (N.D. Cal., order entered November 27, 2012). But the court granted the certification motion “for the purpose of injunctive and declaratory relief only” thus foreclosing the recovery of “monetary damages, including restitution, refund, reimbursement and disgorgement.” The named plaintiffs had sought certification under Federal Rule of Civil Procedure 23(b)(2), which “does not authorize class certification when each class member would be entitled to an individualized award of monetary damages.” According to the court, the claim for monetary relief predominates the complaint, and the plaintiffs “seek individualized awards of monetary restitution which would require individualized assessments of damages based on how many products the class member had…
