A federal court in California has granted in part the motion to dismiss filed by Arizona Beverages USA LLC, in a putative class action alleging the violation of consumer fraud and false advertising laws due to company representations that its products are “Natural,” “All Natural” and “100% Natural.” Ries v. Arizona Beverages USA LLC, No. 10-01139 (N.D. Cal., decided August 25, 2011). The plaintiffs contend that the products are not natural in that they contain high-fructose corn syrup and an artificially produced citric acid. At issue in the defendants’ motion was whether the plaintiffs had adequately pleaded the claims in their first amended complaint under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). According to the court, the complaint adequately pleaded fraud in connection with the plaintiffs’ allegations arising out of the product labels. The court concluded, “These allegations are not inherently implausible and are sufficient for purposes of Rule 9(b).” The…
Category Archives Litigation
A Jewish California resident who claims to be a vegetarian has filed a putative class action against Chipotle Mexican Grill, Inc., alleging that the company failed to adequately warn consumers that its pinto beans are prepared with or contain bacon or pork. Shenkman v. Chipotle Mex. Grill, Inc., No. BC467980 (Cal. Super. Ct., Los Angeles Cty., filed August 19, 2011). According to the complaint, the company does not disclose in its in-store menus that pinto beans contain pork, and, when specifically asked, employees informed the plaintiff that the pinto beans did not contain bacon or pork. Relying on these representations, the plaintiff purportedly purchased and ate the beans to his detriment, financial and otherwise. The plaintiff seeks to certify a class of California residents who “abstain from consuming bacon or pork” for “ethical, religious, moral, cultural philosophical, or health-related reasons” and purchased the pinto beans from any Chipotle restaurant in California…
POM Wonderful LLC, which has created a market for pomegranate juice beverages and other products, has sued Backside Beverages, LLC, alleging that the company has infringed POM’s trademark with its Pompis energy drink. POM Wonderful LLC v. Backside Beverages, LLC, No. 11-760 (D. Utah, filed August 22, 2011). POM’s complaint includes a comprehensive description of the actions it has taken and the $300 million it has spent to promote and protect its brand and trademarks since first introducing fruit-based beverages in 2002. According to the complaint, the defendant has tarnished POM’s registered trademarks “because ‘pompis’ is a slang Spanish term for ‘backside,’ that is, ‘backside’ of a person. In English, ‘pompis’ is equally derogatory,— combining the term POM and the term ‘pis’ which phonetically sounds like ‘piss’.” POM contends that such derogatory use of its marks intentionally trades on its goodwill “while at the same time tarnishing the POM brand.”…
The Natural Resources Defense Council, Inc. (NRDC), a non-profit advocacy organization, has filed a complaint for declaratory and injunctive relief against the U.S. Department of Health and Human Services (HHS) and the Food and Drug Administration (FDA), seeking an order compelling FDA to issue a final response to NRDC’s October 2008 petition calling on the agency to prohibit the use of bisphenol A (BPA) in food packaging and other food-contact materials. NRDC, Inc. v. HHS, No. 11-5801 (S.D.N.Y., filed August 19, 2011). In June 2011, the D.C. Circuit Court of Appeals apparently dismissed a similar complaint, agreeing with FDA that it had been filed in the wrong court. Additional information about that complaint appears in Issue 356 of this Update. According to the new complaint, the Food, Drug, and Cosmetic Act requires FDA to respond to petitions like the one NRDC filed “within 90 days.” Yet, “ [m]ore than one thousand…
Del Monte Fresh Produce N.A., Inc. has filed a complaint for declaratory and injunctive relief against the Food and Drug Administration (FDA) in a federal court in Maryland alleging that the agency lacked an adequate factual basis after a Salmonella outbreak in early 2011 to conclude that the company’s Guatemalan cantaloupe supplier was the source of the contamination. Del Monte Fresh Produce N.A., Inc. v. United States, No. __ (D. Md., filed August 23, 2011). On the basis of that conclusion, FDA allegedly demanded that the company issue a recall or “suffer the consequences of an FDA consumer advisory questioning the wholesomeness of Del Monte cantaloupes.” The agency also imposed an import alert under which Del Monte is prohibited from importing cantaloupes from its Guatemalan source without proving the fruit is “negative” for Salmonella and other pathogens. According to Del Monte, “this prohibition will continue indefinitely into the future unless…
Plaintiffs in a class action certified by a California federal court in April 2011, have filed an opposition to the defendants’ motion to decertify the class in light of a case the U.S. Supreme Court decided in June. Johnson v. General Mills, Inc., No. 10-61 (C.D. Cal., pleading filed August 22, 2011). The plaintiffs allege that class members were misled by the defendants’ representations that YoPlus® products had digestive health benefits. Details about the court’s certification ruling appear in Issue 385 of this Update. According to the plaintiffs, the defendants did not seek review of the court’s certification ruling and, in fact, agreed to the plaintiffs’ class notification program, which the court approved. The defendants purportedly assert that a U.S. Supreme Court ruling rendered 10 days later compels the court to decertify the class. Claiming that the defendants’ argument is untenable as an unwarranted expansion of the U.S. Supreme Court’s holding,…
According to a press report, the U.S. Department of Justice (DOJ) plans to oppose the request for $90.8 million in attorney’s fees filed by counsel for African-American farmers who sued the U.S. Department of Agriculture for discrimination in the administration of farm loan programs. Additional information about the fee petition appears in Issue 405 of this Update. While DOJ lawyers have not yet filed a formal opposition to the fee petition, in other court papers they have apparently indicated that “the government does not agree with every point made by plaintiffs in support of final approval of this settlement agreement.” The fee request represents 7.4 percent of the proposed $1.25 billion settlement. Ten individuals reportedly filed an objection to the settlement earlier in August, contending that settling the matter before discovery would be detrimental to plaintiffs who would lose their bargaining leverage with the federal government. See The BLT: The…
A federal court in Illinois has reportedly dismissed on standing grounds the pro se claims of an individual plaintiff who alleged that the food packaging materials used by McDonald’s Corp., when discarded by consumers, pose a threat to the environment. Gencarelli v. McDonald’s Corp., No. 11-5573 (N.D. Ill., decided August 19, 2011). The plaintiff filed his complaint under the Safe Drinking Water Act, Toxic Substances Control Act and National Environmental Policy Act. According to the court, he lacked standing to sue because he alleged “a generalized grievance” only. To establish standing, the plaintiff was required to show a “concrete injury in fact, causation, and redressability,” which the court apparently found he failed to do. See BNA Daily Environment Report, August 24, 2011.
A federal court in Maryland has permitted groups representing environmental and fishing interests to intervene in litigation filed by Dow AgroSciences LLC and two other pesticide manufacturers against the U.S. National Marine Fisheries Service (NMFS), seeking to overturn the agency’s opinion that three insecticides threaten the Pacific salmon. Dow AgroSciences LLC v. Nat’l Marine Fisheries Serv., No. 09-00824 (D. Md., order entered August 23, 2011). In March 2011, the Fourth Circuit Court of Appeals determined that NMFS’s biological opinion on the effects of chlorpyrifos, diazinon and malathion was judicially reviewable action under the Administrative Procedure Act, thus allowing the companies, which hold registrations for the insecticides from the Environmental Protection Agency (EPA), to challenge the action before the district court. NMFS apparently provided the biological opinion to EPA in 2008 as part of EPA’s process of reregistering the insecticides for sale and use; they were first registered in the 1950s and…
Sara Lee Corp., which makes Ball Park® franks, and Kraft Foods, Inc., which makes Oscar Mayer® hot dogs, have reportedly brought their marketing dispute to a Chicago courtroom where trial recently began on claims each company brought against the other over ad campaigns that sought to distinguish their brands. Stating “let the wiener wars begin,” U.S. District Judge Morton Denlow apparently opened the bench trial on August 15, 2011. Sara Lee takes issue with Kraft claims that its hot dogs beat Sara Lee’s in a national taste test and that its hot dogs are “100 percent pure beef.” According to Sara Lee, the taste test was flawed because the products were not served with condiments or buns, and hot dogs containing filler and chemicals cannot be called 100 percent pure. Kraft defends its testing and asserts that consumers understand that “pure beef” means that the products do not contain other…
