California residents have filed a putative class action in federal court against a company that promotes its granola, cookie and trail mix products as “100% Pure and Natural,” despite making them with some purportedly synthetic ingredients. Thurston v. Bear Naked, Inc., No. 11-4678 (N.D. Cal., filed September 21, 2011). Seeking to represent a nationwide class of consumers, the plaintiffs allege that they would not have purchased the defendant’s products at a premium price if they had known that “synthetic ingredients were used in the product.” According to the complaint, the company’s products contain cocoa processed with alkali, glycerin and lecithin. The plaintiffs allege unlawful, unfair and fraudulent business practices and false advertising under California law; violation of the Consumers Legal Remedies Act; and restitution based on quasi-contract/unjust enrichment. They seek restitution, compensatory and punitive damages, injunctive relief, attorney’s fees, costs, interest, and “[a]n order requiring an accounting for, and imposition of,…
Category Archives Litigation
The Equal Opportunity Employment Commission (EEOC) has filed a claim under the amendments to the Americans with Disabilities Act against a company that allegedly discharged a morbidly obese man. EEOC v. BAE Sys., Inc., No. 11-03497 (S.D. Tex., filed September 27, 2011). According to the EEOC, “at the time of his discharge, [Ronald] Kratz was qualified to perform the essential function of his job as a material handler II. BAE refused to engage in any discussion with him to determine whether reasonable accommodations were possible that would have allowed him to continue to perform the essential function of his job … The suit asserts that BAE replaced Kratz with someone who was not morbidly obese.” News sources have reported that Kratz, who weighed 450 pounds when the military vehicle manufacturer hired him, gained 200 pounds over the 16 years he was employed. He claims that his weight never interfered with his job…
While settlement terms are apparently confidential, a high-end bottled water company has reportedly settled its claims against a company that supplied bottles which reacted to the water by causing foaming and a poor taste. Penta Water Co. v. Zuckerman-Honickman, Inc., No. 09-2633 (E.D. Pa., dismissed with prejudice September 21, 2011). The water company evidently switched to the defendant’s bottles in conjunction with the launch of a campaign intended to broaden its customer base beyond athletes, celebrities and health food consumers. The alleged bottle defect forced the plaintiff to halt the campaign, close its manufacturing plant and undertake “crisis management.” The packaging company and the water bottler have both reportedly undergone bankruptcy proceedings. See Law360, September 22, 2011.
A California resident has filed a putative class action against Brinker International, Inc., alleging that when she worked for one of its Chili’s Grill & Bar Restaurants she was not paid minimum wage, because the company “fraudulently and maliciously caused Plaintiff and Class members to make up the restaurants’ cash shortages.” Eldred v. Brinker Int’l, Inc., No. 56-2011-00403808 (Cal. Super. Ct., Ventura Cty., filed September 15, 2011). According to the complaint, if a customer leaves the restaurant without paying or does not leave enough money to pay the entire tab, “it is defendant’s corporate policy to either inform the server that he or she has to pay for the walkout or that server will be written up and if it happens again that server may be terminated. Defendant uses the threat of termination to induce class members to pay for walkouts out of their own money.” Alleging failure to pay minimum…
Seeking to represent a nationwide class of consumers, a California resident has filed a consumer fraud class action against the Balance Bar Co., challenging its “All Natural” claims in light of product ingredients such as ascorbic acid, cocoa (processed with alkali), glycerine, sodium citrate, and xanthan gum. Sethavanish v. Balance Bar Co., No. 11-4547 (N.D. Cal., filed September 13, 2011). She claims that she purchased different Balance Bar products since 2007 relying on the “All Natural” representations and paying more for the products “than she would have had to pay for other products that were not all natural.” In her complaint, she notes that the Food and Drug Administration does not regulate the term “natural,” but contends that the agency “has established a policy defining the outer boundaries of the use of that term by clarifying that a product is not natural if it contains color, artificial flavors, or synthetic…
The Second Circuit Court of Appeals has granted, in part, the petition for review filed against the Environmental Protection Agency (EPA), challenging its risk assessments for the pesticide dichlorvos. NRDC v. EPA, No. 08-3771 (2d Cir., decided September 16, 2011). The court agreed with the Natural Resources Defense Council, (NRDC) that EPA’s failure to explain why a children’s safety factor less than 10X was applied to pesticide risk assessments derived from the “Gledhill study,” which involved six adults who consumed dichlorvos daily for three weeks, was arbitrary and capricious. When EPA sets tolerances for the maximum level of dichlorvos residue on food products, it is required, under the Food Quality Protection Act, to apply a tenfold children’s safety factor. Vacating the portions of EPA’s order assessing the risk of dichlorvos based on the Gledhill study, the court remanded the matter to the agency for further proceedings. EPA has registered a…
Sholom Rubashkin, who managed a kosher meatpacking facility in Postville, Iowa, and was convicted on 86 counts related to financial fraud, lost the appeal of his conviction and the 324-month prison sentence imposed by a federal district court. United States v. Rubashkin, Nos. 10-2487/3580 (8th Cir., decided September 16, 2011). Additional details about the case appear in Issue 378 of this Update. Among other matters, the Eighth Circuit Court of Appeals determined that evidence indicating that the trial court judge met with prosecutors before the facility was raided by immigration officials was insufficient to show bias against Rubashkin or that “the district court’s decision to remain on the case prejudiced Rubashkin’s verdict.” The court also found no fault in the trial court severing the bank fraud charges from the immigration law violations, which the government later dismissed, and trying the bank fraud charges first. According to the appeals court, “Given…
A number of former employees of an animal-food flavoring maker have sued companies that make or sell the butter-flavoring chemical diacetyl, alleging that occupational exposure caused them to contract a debilitating lung disease known as bronchiolitis obliterans (or popcorn lung). Huerta v. Aldrich Chem. Co., Inc., No. 11-9461 (Ill. Cir. Ct., Cook Cty., filed September 9, 2011). The 112-count complaint alleges negligence, strict liability design defect and failure to warn, conspiracy, and loss of consortium. The plaintiffs seek unspecified compensatory damages. According to the complaint, “Defendants knew or should have known of the hazardous nature of their diacetyl and diacetyl-containing flavors both at the time of sale and when plaintiffs were exposed to such products while working at the Feed Flavors facility. [Yet], defendants failed to warn of the defective nature of their flavoring chemicals and failed to give instructions on safe use of the flavoring chemicals.”
A California court of appeal has determined that a trial court erred in allowing a spinach seller to recover $12 million under the accidental contamination portion of its insurance policy. Fresh Express Inc. v. Beazley Syndicate 2623/623 at Lloyd’s, No. H035246 (Cal. Ct. App., decided September 8, 2011) (unpublished). According to the court, the produce company’s product was not the source of the E. coli outbreak linked to spinach in 2006 and led to a nationwide recall, although when it filed its insurance claim, the company had made several sourcing errors that led it to believe it could have been implicated in the outbreak. Those errors would have brought it under the terms of the insurance agreement, if the company had been the source of the E. coli contamination. Because it was not, the appeals court concluded that “the policy’s plain language refutes the trial court’s finding that ‘the E.…
According to news sources, a man who weighs nearly 300 pounds has filed an Americans with Disabilities Act lawsuit against White Castle in a federal court in New York, claiming that the stationary booth seating in a Nanuet restaurant is made for smaller people and that he hurt a knee trying to wedge into one in 2009. When he complained in writing, he purportedly received three “very condescending letters,” with offers for free hamburgers, although added cheese would have cost extra. He has since used take-out to purchase his food from White Castle or asked his wife to go into the facility to pick up his meals, while waiting almost three years for promised renovations that would have enlarged the seating spaces. Stockbroker and plaintiff Martin Kessman reportedly said, “I just want to sit down like a normal person.” See New York Post, September 11, 2011; The Wall Street Journal,…
