A federal court in Washington has dismissed franchisor Domino’s Pizza from litigation alleging that a franchisee’s use of automatic calls with a prerecorded message to numbers stored from previous orders violated state and federal laws prohibiting “robo-calls.” Anderson v. Domino’s Pizza, Inc., No. 11-902 (W.D. Wash., decided May 15, 2012). While the claims against the franchisee and the telemarketing company that placed the calls remains intact, the court refused to certify a class because the plaintiff’s motion was untimely, the statutory damages alone would be significant, and the “burden of any award [which would be grossly disproportionate given the actual damages] would fall on a small business.” According to the court, Domino’s requires franchisees to use a phone system that can store customer numbers and introduced its franchisees to the telemarketer during a national convention in 2009. Domino’s also requires its franchisees to participate in advertising and promotions campaigns. Still, the…
Category Archives Litigation
A federal court in California has dismissed several of the claims brought in a putative class action against General Mills, alleging that the company misleads consumers with the package labeling for its Fruit Roll-Ups® and Fruit by the Foot® products. Lam v. General Mills, Inc., No. 11-5056 (N.D. Cal., order entered May 10, 2012). Additional details about the litigation, in which the Center for Science in the Public Interest is representing the plaintiffs, appear in Issue 414 of this Update. The court agreed with General Mills that label statements about the products’ flavorings, i.e., “naturally flavored” and “fruit flavored,” conform to federal law, and thus state-law claims alleging that these statements are misleading or deceptive are preempted. In this regard, the court noted, “the regulation allows a producer to label a product as ‘natural strawberry flavored,’ even if that product contains no strawberries. While the regulation’s logic is troubling, the Court…
The Center for Environmental Health has reportedly sued several grocery chains in California alleging that independent testing has shown that the honey they were selling contains high levels of lead in violation of Proposition 65 (Prop. 65). Some of the honey purchased and tested allegedly contained lead levels more than double the legal limit. According to the center, honey suppliers sometimes use metal barrels with lead solder that can leach into the honey. It is seeking agreements that would bind the companies to use non-leaded containers for their honey and to test their supplies for lead content. See Center for Environmental Health News Release, May 2, 2012.
The Court of Justice of the European Union (EU) has agreed, in part, with the European Commission’s challenge to requirements imposed by the Dutch government on contractors providing organic and fair trade products in its automatic coffee machines. EC v. Kingdom of the Netherlands, No. C-368/10 (E.C.J., decided May 10, 2012). According to the Court, government requirements for the award of contracts may be based on environmental or social criteria, but the criteria must be clear and the government must allow proof “that a product satisfies those criteria by all appropriate means.” The Court also held that “all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the notice or contract documents.” To the extent that the Dutch requirements fell short of these standards, the Court found that the government failed to fulfill its obligations under the award of…
A Texas-based tomato producer has sued a Canadian company in federal court alleging that its packaging and label for grape tomatoes infringes the Nature Sweet Cherubs™ patents, issued in 2010 and 2011, and trademarks, in use since 2007. NatureSweet, Ltd. v. Mastonardi Produce Ltd., No. 12-1424 (N.D. Tex., filed May 8, 2012). According to the complaint, the defendant’s “Angel Sweet” label copies the Sweet Cherubs™ label by using similar colors and a “winged tomato design mark.” Claiming that its mark, in which the company has made a considerable investment, is famous and distinctive, the plaintiff alleges a likelihood of confusion among consumers by defendant’s use of similar marks and packaging. The plaintiff also claims that the defendant’s grape tomatoes, in contrast to its own, “do not have the same consistent great taste throughout the year.” Alleging federal trademark infringement, dilution and unfair competition; unjust enrichment; and design patent infringement, the…
The Sixth Circuit Court of Appeals has determined that the red dripping wax seal that Maker’s Mark Distillery has registered as a trade dress element used on its Kentucky bourbon bottles is protected under trademark law due to its strength and distinctiveness in the marketplace, thus upholding a lower court ruling that Jose Cuervo infringed the mark by using a similar element on its tequila bottles. Maker’s Mark Distillery, Inc. v. Diageo N. Am., Inc., Nos. 10-5508/5586/5819 (6th Cir., decided May 9, 2012). With the apparent care of a connoisseur, the opinion’s author opens with a detailed history, part legend, of the birth of bourbon and explains how Maker’s Mark came to use the red dripping wax seal on its bottles. According to the court, the evidence fully supported the district court’s evaluation of the strength of the mark and its balancing of the factors regarding consumer confusion over Jose Cuervo’s…
New York and New Jersey residents have filed a putative class action in an Illinois federal court against the company that makes a line of kefir dairy products, alleging that they are falsely promoted as providing “clinically proven therapeutic benefits for various health conditions.” Keatley v. Lifeway Foods, Inc., No. 12-3521 (N.D. Ill., filed May 8, 2012). According to the complaint, Lifeway claims, without adequate proof, that its kefir products containing ProBoost, “an exclusive blend of live and active probiotic cultures,” can support immunity, enhance digestion, boost well-being, alleviate diarrhea, and otherwise address autoimmune disorders, bad breath, celiac disease, Crohn’s and colitis, high cholesterol, immune deficiency, infantile colic, irritable bowel syndrome, lactose intolerance, seasonal allergies, and yeast infections. The plaintiffs contend that they would not have purchased the products if they had known that ProBoost products “did not have the quality, health benefits or value as promised.” Seeking to certify a…
A coalition of animal rights organizations has reportedly filed a lawsuit against the U.S. Department of Agriculture (USDA) in federal court, alleging that the agency has violated the Poultry Products Inspection Act by allowing foie gras to be sold to consumers. Animal Legal Defense Fund v. USDA, No. __ (C.D. Cal., filed May 9, 2012). According to the plaintiffs, “the USDA is responsible for condemning all poultry products that come from diseased birds. Foie gras consists of the pathologically diseased livers of ducks who are force-fed massive amounts of grain, inducing the disease of hepatic lipidosis, which causes their livers to swell to ten times their normal size.” The organizations have petitioned the agency in the past to require warning labels that would state “NOTICE: Foie gras products are derived from diseased birds.” And they now cite a recent study that purportedly linked the consumption of foie gras to secondary…
A federal court in Maryland has dismissed, under the first-to-file rule, a lawsuit brought by a plaintiff characterized as a “frequent flyer in the United State judicial system,” finding that five similar putative class action lawsuits against the defendants, three of which were filed before the plaintiff filed his complaint, are currently pending in a federal court in California. Hinton v. Naked Juice Co., No. 11-3740 (D. Md., decided April 30, 2012). The plaintiff, who has apparently filed at least 43 other federal civil lawsuits, all dismissed as frivolous, sought $100,000 in damages from the defendants, claiming that they label their beverages as “Non-GMO” and “natural” while using genetically modified and synthetic ingredients. He filed the complaint in state court, and it was removed to federal court. After the defendants sought to dismiss the case or transfer it to California on convenience grounds, the plaintiff filed a motion for remand.…
The Second Circuit Court of Appeals has determined that a New York law enacted in 2004, following the invalidation of a prior version, does not violate the Establishment or Free Exercise Clauses of the U.S. Constitution and is not unconstitutionally vague. Commack Self-Service Kosher Meats, Inc. v. Hooker, No. 11-3517 (2d Cir., decided May 10, 2012). The previous law, which defined “kosher” in terms of orthodox Hebrew religious requirements and required adherence to them, was found to (i) advance religion, i.e., the dietary restrictions of Orthodox Judaism, and (ii) inhibit religion “by preventing labeling of food products as kosher that did not meet the Orthodox Jewish religious requirements.” The newer version simply required those marketing their food products as “kosher” to label them as kosher and to “identify the individuals certifying their kosher nature.” The new law did not “define kosher or authorize state inspectors to determine the kosher nature…
