The Second Circuit Court of Appeals has determined that Starbucks Corp. did not violate federal labor law by adopting a dress code which limits the number of pro-union buttons its employees can wear on their uniforms. NLRB v. Starbucks Corp., Nos. 10-3511, 10-3783 (2d Cir., decided May 10, 2012). The National Labor Relations Board (NLRB) had ruled that multiple pro-union buttons, at one-inch in diameter, “did not seriously harm Starbucks’s legitimate interest in employee image because ‘the Company not only countenanced but encouraged employees to wear multiple buttons as part of that image.’ These other buttons, the Board found, were not immediately recognizable by customers as company-sponsored, and the pro-union pins at issue were ‘no more conspicuous than the panoply of other buttons employees displayed.’” Reversing this part of NLRB’s determination, the appeals court said that it had gone too far. “Starbucks is clearly entitled to oblige its employees to wear…
Category Archives Litigation
An Australian court has reportedly awarded $8 million to the family of a girl who allegedly ate a Salmonella-contaminated chicken product from a KFC restaurant and became critically ill with organ system failures, septic shock, severe brain injury, and spastic quadriplegia. Samaan v. Kentucky Fried Chicken Pty Ltd., No. 2006/20457 (NSW Sup. Ct., decided April 4, 2012). The court exhaustively explores inconsistencies in the testimony and evidence concerning the source of the chicken that allegedly caused the injury, but concludes that the KFC “Twister” product “was the only common meal to the affected family members (and no others) and it was consumed within the incubation period for Salmonella poisoning.” According to the court, many of the inconsistencies could be attributed to language and translation issues given that the parents and one child were born in Sudan and were native Arabic speakers. Other inconsistencies could be attributed to concerns over the…
Seeking to certify a class of all consumers who purchased Lucerne® brand Greek yogurt from any of its parent Safeway grocery stores, a California resident has filed a complaint in state court alleging that the product is mislabeled because it is not thickened through straining but rather by the addition of milk protein concentrate (MPC). Tamas v. Safeway, Inc., No. RIC 1206341 (Cal. Super. Ct., Riverside Cty., filed April 27, 2012). According to the complaint, MPC “is essentially a blend of dry dairy ingredients,” often imported and used to increase protein ratios in dairy products; it is allegedly not among “generally recognized as safe” food additives listed by the Food and Drug Administration (FDA). “Thus,” the plaintiff claims, “using MPC in any human food constitutes adulteration.” The plaintiff also alleges that the product does not meet FDA’s standard of identity for yogurt products. The plaintiff contends that she would not…
A New Jersey resident from Scotland, who began working in 2000 for seafood company North Landing Ltd. at the invitation of its former owner, has filed a wrongful discharge suit against the company, its new owners and a supervisor claiming that her concerns over the company’s purportedly illegal practices, when brought to the attention of her supervisor, resulted in him verbally berating and slapping her, thus creating a hostile work environment that she could no longer tolerate. Chadwick v. North Landing Ltd., No. L1776-12 (N.J. Super. Ct., Passaic Cty., filed April 26, 2012). Among other matters, the plaintiff alleges that the company processed and sold farm-raised salmon treated for sea lice with Salmosan, a chemical that she claims the Food and Drug Administration (FDA) has not approved. She contends that when she brought this to her supervisor’s attention, he told her to “delete computer records showing the fish having been…
Determining that it lacks jurisdiction under the Class Action Fairness Act (CAFA) to hear state-law claims alleging consumer fraud in the sale of honey, a federal court in California has remanded to state court a putative class action filed against CVS Caremark Corp. Overton v. CVS Caremark Corp., No. 12-0121 (C.D. Cal., decided April 24, 2012). While the case is one of several that may be transferred to a multidistrict litigation panel (MDL No. 2374) under a motion pending before the Judicial Panel on Multidistrict Litigation, the court retained the authority to decide the jurisdiction issue. To meet its burden of showing that the lawsuit satisfied CAFA’s amount-in-controversy requirement, that is, “the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs,” the defendant apparently relied on the declaration of a vice president who calculated that the company sold $508,995 worth of the product every…
The Mexican owner of U.S. and Mexican trademarks for an “automatic pistol-shaped bottle design . . . used in connection with alcoholic beverages, with the exception of beers” and its exclusive U.S. distributor have filed trademark infringement claims against the company that sells, markets and imports into the United States Eagle Shot Tequila® in a pistol-shaped bottle. Mexcor Distribs. Inc., v. Purveyors LLC, No. 12-1240 (S.D. Tex., filed April 19, 2012). The plaintiffs allegedly demanded that the defendant cease and desist from doing so, and the defendant failed to respond. Seeking preliminary and permanent injunctive relief, the plaintiffs also seek an accounting and payment of profits earned from the date of first use of the mark, treble damages, attorney’s fees, and costs. They allege trademark infringement and unfair competition under the federal Lanham Act, as well as Texas common law on trademarks and unfair competition. According to the complaint, the defendant’s…
A Venice, Italy-based wine producer has sued a German wine distributor for unfair competition and trademark and copyright infringement in a federal court in California, alleging that the defendant ships to the United States for sale by a U.S. distributor a “gray market” product purporting to be the plaintiff’s pinot grigio wine. Santa Margherita, S.p.A v. Unger Weine KG, 12-3499 (C.D. Cal., filed April 23, 2012). According to the complaint, the U.S. distributor entered a consent order with the plaintiff in 2011 prohibiting it from importing, selling, marketing, and distributing Santa Margherita Pinot Grigio in the United States. The plaintiff contends that it sells its wine in the United States exclusively through an Illinois distributor and closely monitors the distribution network to ensure product quality. The complaint alleges, “Gray Market Santa Margherita Wine is sold and distributed outside this authorized distribution channel and is not subject to the same quality…
The claims process under two settlements reached with the company that makes the hazelnut spread Nutella® is underway, and consumers can recover up to $20, or $4 each for up to five jars purchased during the relevant periods. In re: Ferrero Litig., No. 11-205 (S.D. Cal.) (California class, Aug. 1, 2009 – Jan. 23, 2012); In re: Nutella Mktg. & Sales Practices Litig., No. 11-1086 (D.N.J.) (Nationwide class, except California, Jan. 1, 2008 – Feb. 3, 2012). The settlement funds available to both classes total $3.05 million, but if the claims exceed this amount, individual payments “will be reduced proportionately.” Under the settlement agreement, the company, which continues to deny any wrongdoing, will modify its product label and certain marketing statements, create new TV ads, and change the Nutella® website. The company also agreed not to object to a California fee award of $900,000 and New Jersey fee award of $3…
A federal grand jury in Illinois has brought criminal indictments against four individuals who allegedly distributed more than 110,000 pounds of Mexican cheese in the United States in 2007 despite Food and Drug Administration (FDA) “hold” orders and also allegedly “washed” cheese returned by dissatisfied customers by scraping off mold and fungus so it could be resold. United States v. Zurita, No. __ (N.D. Ill., indictment returned April 18, 2012). No illnesses or other public health issues were attributed to the adulterated cheese distribution in the six-count indictment. The charges involve three separate shipments of cheese from Mexico that FDA ordered to be held and then later ordered either “detained” or “refused” after testing revealed the presence of Salmonella, E. coli, alkaline phosphate (found in unpasteurized products), and Staphylococcus. The defendants allegedly conspired to distribute the shipments despite FDA orders not to do so. They also allegedly distributed cheese before inspection, failed…
A National Labor Relations Board (NLRB) administrative law judge has determined that the owner of 10 Jimmy John’s fast-food restaurants in the Minneapolis-St. Paul area violated federal law during a labor dispute by, among other matters, posting a pro-union employee’s phone number on its Facebook® page and suggesting that members text the employee to “let him know how they feel.” Miklin Enters., Inc. d/b/a Jimmy John’s and IWW, Nos. 18-CA-19707, -19727, -19760 (N.L.R.B., Div. of Judges, decided April 20, 2012). According to the judge, the assistant manager’s posts encouraged other employees and managers to “harass” the employee “for activities that were protected, as well as some that were arguably unprotected.” A co-owner’s subsequent Facebook® posts disparaging the employee further “condoned such harassment.” The employer terminated the pro-union employee and several others for posting flyers on restaurant bulletin boards and in areas near the restaurants suggesting that public health could be…
