A federal court in California recently granted in part and denied in part the Hershey Co.’s motion to dismiss putative class claims alleging that the chocolate maker violates consumer fraud laws by making unlawful nutrient content, “healthy” and antioxidant claims on product labels; failing to comply with chocolate product standards of identity or to use common names for ingredients; making unlawful sugar-free claims; and using improper serving sizes. Khasin v. The Hershey Co., No. 12-01862 (N.D. Cal., order entered November 9, 2012). Because the plaintiff’s claims were based on parallel state laws that “mirror” relevant sections of the Food, Drug, and Cosmetic Act (FDCA) and the Nutrition Labeling and Education Act, the court determined that they were not preempted. In this regard, the court noted, “complying with the demand requested by Plaintiff in this cause of action would not require that Defendant undertake food labeling or representation different from the…
Category Archives Litigation
The First Circuit Court of Appeals has upheld a jury verdict tracing the source of E. coli-contaminated beef to Greater Omaha Packing Co. thus sustaining a third-party indemnification claim against it. Long v. Fairbank Reconstruction Corp. v. Greater Omaha Packing Co., No. 12-1412 (1st Cir., decided November 21, 2012). Two Maine residents sickened in the outbreak settled for $500,000 with Fairbank Reconstruction, which had purchased the meat from Greater Omaha and further processed it for sale in retail-sized packages by grocery stores. Fairbank sought indemnification from Greater Omaha, and the trial focused for the most part “on the ‘traceback’ analyses that led Fairbank’s experts to conclude that the contaminated meat could only have come from the [Greater Omaha] combos and not from another supplier’s product.” The court found that “ample evidence” supported the jury’s conclusion that Greater Omaha was the source of the E. coli contamination that sickened the two…
A federal court in Hawaii has dismissed in part a complaint filed by the Equal Employment Opportunity Commission (EEOC) against farmers and a recruiting company that allegedly mistreated Thai workers. EEOC v. Global Horizons, Inc., No. 11-00257 (D. Hawaii, decided November 8, 2012). The court granted the motion to dismiss “insofar as the Court holds that a 300-day limitations period applies to claims brought by Plaintiff under 42 U.S.C. § 2000e-6” relating to allegations of pattern or practice of discriminatory treatment because of national origin, race, retaliation, and/or constructive discharge. The remainder of the claims, to the extent they did not involve unlawful employment practices allegedly occurring more than 300 days before a charge was filed with EEOC, are not time-barred and will proceed. EEOC alleges that defendant Global Horizon promised Thai men temporary visas to work high-paying agricultural jobs in the United States, but took their passports, provided substandard housing…
A federal court in California has dismissed putative class claims filed against H.J. Heinz Co. LP by a factory worker alleging that the company denied employees full wages by improperly rounding their time records while also purportedly penalizing and disciplining workers for “clocking in past scheduled start times or clocking out before scheduled end times.” Mendez v. H.J. Heinz Co., L.P., No. 12-5652 (C.D. Cal., decided November 13, 2012). The plaintiff sought to represent putative statewide and nationwide Fair Labor Standards Act (FLSA) classes and alleged violations of the California Labor Code—failure to pay all wages, failure to pay minimum wages owed, failure to timely pay wages at separation, failure to provide accurate wage statements—and violation of the California Business and Professions Code. He also asserted a claim for violation of the FLSA on behalf of the nationwide class. The court agreed with the defendants that the plaintiff failed to…
The First Circuit Court of Appeals has determined, as a matter of first impression, that Starbucks Corp. violated a Massachusetts law prohibiting restaurant tips to be shared with employees who have managerial responsibilities, because the “upscale coffee house” chain allowed tips collected in tip jars by the cash registers of its Massachusetts shops to be shared by shift supervisors and baristas. Matamoros v. Starbucks Corp., Nos. 12-1189, -1277 (1st Cir., decided November 9, 2012). Massachusetts apparently amended a tip-sharing law in 2004. Under the earlier version, the courts applied a “primary duty” test to decide whether an employee could participate in a tips pool—if the primary duty was to serve customers, he could participate; if the primary duty was to manage, she was ineligible. After amendment, the legislature clearly defined a “wait staff employee” as someone, among other matters, “who has no managerial responsibility.” The court agreed with the plaintiffs…
The General Court of the European Union (EU) has dismissed an annulment action brought by Hungary, seeking to overturn a protected Slovakian designation of origin for wine produced in the Tokaj region which both countries share. Hungary v. Commission, Case T-194/10 (Gen. Ct., decided November 8, 2012). Hungary will have two months to bring an appeal to the Court of Justice, as to points of law only. The European Commission registered the protected designation of origin ‘Vinohradnicka oblast’ Tokaj’ on Slovakia’s behalf in the 2006 and 2007 lists of quality wines produced in specified regions (QWPSR). On July 31, 2009, the day before the EU established the E-Bacchus database to publish the QWPSR lists, Slovakia requested a modified designation— ‘Tokajská/Tokajské/Tokajsky vinohradnicka oblast’—which became the new protected designation on the electronic database. Several months later, Slovakia requested that the Commission revert to the original designation of origin, and the Commission amended the…
A putative class action filed in a California state court claims that Monster Rehab®, a green tea and energy drink, contains unknown amounts of epigallocatechin-3-gallate (ECGC), “an extremely dangerous and potentially lethal ingredient,” and that the company fails to warn consumers of its potential hepatotoxic side effects. Wooding v. Monster Energy Co., No. 30-2012-00609716 (Cal. Super. Ct., Orange Cty., filed November 5, 2012). While the named plaintiff, a Huntington Beach, California, resident, has not apparently experienced any side effects, she claims to have “suffered injury in fact and has lost money and property as a result of the unfair, deceptive, untrue and misleading advertising described herein, including the purchase price for products that are of little or no value and are dangerous.” Among other matters, the plaintiff claims that those with compromised livers should not drink the product, nor should it be consumed with alcohol. Yet, she points to ads…
A Colorado resident has filed a lawsuit on behalf of a putative nationwide class against Pepperidge Farm, Inc., alleging that the company misleads consumers by labeling its Cheddar Goldfish crackers “natural,” because they contain genetically modified organisms (GMOs) “in the form of soy and/or soy derivatives.” Bolerjack v. Pepperidge Farm, Inc., No. 12-2918 (D. Colo., filed November 6, 2012). Claiming damages in excess of $5 million, the plaintiff claims that she “purchased the Product believing it to be ‘Natural’ because he [sic] read and relied on Pepperidge Farm’s material statement that the Product is ‘Natural,’ prominently displayed on the Product’s front labeling/packaging. Plaintiff has been damaged by her purchase of the Product because the labeling and advertising for the Product was and is false and/or misleading under Colorado law; therefore, the Product is worth less than what Plaintiff paid for it and/ or Plaintiff did not receive what he [sic]…
Green Mountain Coffee Roasters Inc. investors have reportedly filed a consolidated securities action against the company, claiming that they were misled about demand for Keurig and K-Cup products. La. Mun. Police Emp. Ret. Sys. v. Green Mountain Coffee Roasters, Inc., No. 11-00289 (D. Vt., filed October 29, 2012). The Louisiana Municipal Police Employees’ Retirement System sued the company for U.S. securities law violations in November 2011 when Green Mountain’s shares fell 34 percent in a single day, losing $3.1 billion in market value, after quarterly sales fell short of analysts’ expectations. A group of pension funds, seeking to represent all company investors, allege that “[u]nbeknownst to investors, and contrary to defendants’ statements that they were barely able to ship orders as they came in, Green Mountain Coffee Roaster’s warehouses were overflowing with unused and expiring coffee products that were not being sold to consumers.” The company is facing increasing competition as…
The Center for Science in the Public Interest (CSPI) has filed a putative nationwide class action in a federal court in California against Dr. Pepper Snapple Group, Inc., alleging that the company misleads consumers, through marketing and product labeling, to believe that the antioxidants contained in its beverages are derived from fruits and that the company’s use of antioxidants in soft drinks violates contrary Food and Drug Administration (FDA) regulations. Green v. Dr. Pepper Snapple Group, Inc., No. ___ (C.D. Cal., filed November 8, 2012). By using the term “antioxidant” in the names of some of its beverages, the company allegedly distinguishes its products “from similar soft drinks and, thereby, command[s] a premium price for the Products.” According to the complaint, “Contrary to Defendant’s claims and representations, the Products do not contain any real cherries, real berries, or even extracts from those fruits. Nor do the Products derive their antioxidant…
