According to a news source, a Los Angeles Superior Court has dismissed a putative class action seeking damages against One World Enterprises LLC for allegedly misleading consumers about the nutritional value and hydrating properties of its coconut water product. Shenkman v. One World Enters. LLC, No. BC467165 (Cal. Super. Ct., Los Angeles Cty., dismissed on July 18, 2012). The court apparently agreed with the defendant that part of the plaintiff’s case involved a product representation that was simply “puffery” and stated that marketing a product’s “superior” hydrating power “is not actionable because consumers are used to hearing advertisers make general boasts and were not born yesterday.” The court dismissed the case without prejudice to give the plaintiff an opportunity to replead state-based fraud and false advertising claims about the product’s allegedly false nutritional label. According to the court, the plaintiff “correctly notes federal law will not preempt his claim if the label…
Category Archives Litigation
Organizations representing the interests of Asian Americans have filed suit in a federal court in California against the governor and agency officials seeking a declaration that legislation enacted in October 2011 banning the “possession, sale, offer for sale, distribution, or trade of shark fins” violates their members’ equal protection rights, unlawfully interferes with interstate commerce and preempts federal law, and deprives them of rights, privileges and immunities under the U.S. Constitution. Chinatown Neighborhood Assn. v. Brown, No. 12-3759 (N.D. Cal., filed July 18, 2012). According to the complaint, “Shark fins are used within the Chinese American community to make the traditional dish, shark fin soup. Shark fin soup is a cultural delicacy with origins dating back to the Ming Dynasty (1368-1644 A.D.). It is a ceremonial centerpiece of traditional Chinese banquets as well as celebrations of weddings and birthdays of one’s elders. Shark fin soup serves as a traditional symbol…
Restaurant trade organizations, an Oregon restaurant and one of its employees, a server, have filed a complaint for declaratory and injunctive relief against the U.S. Department of Labor (DOL), alleging that its interpretation of the Fair Labor Standards Act, forbidding restaurants from distributing a share of tips to non-tipped employees, regardless of whether the restaurants use the tips as a credit toward paying their employees minimum wage, conflicts with a Ninth Circuit decision and will force the restaurants to incur significant costs or subject them to litigation. Or. Restaurant & Lodging Ass’n v. Solis, No. 12-01261 (D. Or., filed July 12, 2012). According to the Ninth Circuit ruling, restaurants can require that tips be shared with back-of-house and other non-tipped restaurant employees where the wait staff are paid at least full minimum wage and the restaurants do not take a tip credit. Cumby v. Woody Woo, Inc., No. 08-35718 (9th Cir.…
A federal court in California has denied the ex parte request of foie gras producers to temporarily halt California’s enforcement of a ban on the sale of any product that is the result of force-feeding a bird for the purpose of enlarging its liver beyond normal size. Association des Éleveurs de Canards et d’Oies du Québec v. Harris, No. 12-5735 (C.D. Cal., order entered July 18, 2012). Additional information about the challenge to California’s foie gras ban appears in Issue 446 of this Update. The court also established a briefing schedule on the plaintiffs’ motion for preliminary injunction that will culminate in an August 29, 2012, hearing. Meanwhile, California restaurateurs have reportedly found ways around the state’s ban. A restaurant on a former military base in San Francisco, now owned by the National Park Service, apparently began offering the dish on its menu, claiming that its location on federal land makes it…
The Ninth Circuit Court of Appeals has found the proposed cy pres distribution inappropriate and unacceptably vague and the attorney’s fees unreasonable in a settlement of class claims that the Kellogg Co. violated consumer protection laws by advertising its Frosted Mini-Wheats® cereal as a product that was clinically shown to improve children’s attentiveness by nearly 20 percent. Dennis v. Kellogg Co., Nos. 11-55674, -55706 (9th Cir., decided July 13, 2012). Additional information about the case appears in Issues 368 and 392 of this Update. The company’s settlement of related false-advertising charges filed by the Federal Trade Commission is discussed in Issue 301 of this Update. Under the agreement, class members could recover up to a maximum of $15, and any remaining funds would be donated to “charities chosen by the parties and approved by the Court pursuant to the cy pres doctrine.” According to the court, about $800,000 had been…
Responding to a question certified by a federal district court, a divided Montana Supreme Court has said that obesity which is not the symptom of a physiological condition may be a “physical or mental impairment” as the terms are used in the Montana Human Rights Act. BNSF Ry. Co. v. Feit, No. OP 11-0463 (Mont., decided July 6, 2012). The issue arose after an extremely obese applicant for a conductor-trainee position was told he would not be considered for the position unless he lost 10 percent of his body weight or completed certain medical examinations, including a $1,800 sleep study, at his own expense. The applicant successfully pursued an administrative remedy through the state department of labor and industry alleging that the railway defendant had illegally discriminated against him because of perceived disability. He was awarded damages for lost wages and benefits, prejudgment interest and emotional distress. On appeal, the…
The Maine Supreme Judicial Court has adopted the “reasonable consumer expectation” test to determine whether a boneless turkey product allegedly containing a bone was defective. Pinkham v. Cargill, Inc., No. 11-340 (Me., decided July 3, 2012). So ruling, the court vacated the lower court’s grant of summary judgment and remanded for further proceedings. Plaintiff Stanley Pinkham allegedly consumed a hot turkey sandwich during his break. The defendant allegedly manufactured the boneless turkey product in the sandwich. In the middle of or immediately after eating the sandwich, Pinkham allegedly experienced severe and sudden pain in his upper abdominal area and thought that he might be having a heart attack. His physicians later determined that in their opinion he most likely had an “esophageal tear or perforation.” Pinkham sued, alleging that this was a result of bone in the boneless turkey. The defendant moved for summary judgment, which the trial court granted while noting that Maine had…
The World Trade Organization Appellate Body has partially rejected the U.S. Office of the Trade Representative’s (USTR’s) appeal in a dispute with Canada and Mexico over “country of origin” labeling (COOL) for beef and pork products. After WTO’s Dispute Settlement Panel ruled in November 2011 that specific provisions of the U.S. COOL program provided less favorable treatment to Canadian and Mexican livestock, USTR appealed the ruling on the ground that COOL does not impose unfavorable treatment of imported products because it “requires meat derived from both imported and domestic livestock to be labeled under the exact same set of circumstances.” Additional details about the appeal appear in Issue 433 of this Update. In upholding the Dispute Panel’s assessment, the WTO Appellate Body agreed that “the COOL measure treats imported livestock differently than domestic livestock,” in part because it creates “an incentive in favor of processing exclusively domestic livestock and a…
The European Union (EU) General Court has affirmed a ruling of the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and dismissed the application of a beverage company to register “Royal Shakespeare” as a word mark for its scotch whiskey. Jackson Int’l Trading Co. Kurt D. Brühl GmbH & Co. KG v. OHIM, Case T-60/10 (Gen. Ct., decided July 6, 2012). According to the court, the Royal Shakespeare Co. had registered “Royal Shakespeare Company” three years before Jackson International sought to register its mark, the theater company’s mark has a reputation before the public at large and not among an elite as argued by Jackson International, and the beverage maker’s use of the mark would take “unfair advantage of the distinctive character or the repute of the earlier trade mark.”
A federal court in Wisconsin has reportedly approved a consent decree between the U.S. government a Wisconsin livestock operation that allegedly violated federal drug laws by failing to maintain adequate animal treatment records, using new animal drugs illegally and failing to adequately distinguish between medicated and non-medicated animals for sale for use as human food. The Food and Drug Administration (FDA) initially warned the owner of Nolan Livestock in 2004 that a U.S. Department of Agriculture inspection revealed the presence of an illegal antibiotic in the edible tissues of its dairy cows. Under the consent decree, the owner must cease operations and then resume only when it has documented to FDA’s satisfaction that it has corrected the problems observed and has instituted appropriate procedures to prevent a recurrence. See U.S. Department of Justice News Release, June 26, 2012; FDA News Release, July 10, 2012.
