An intermediate appellate court in Washington has affirmed the dismissal of a lawsuit challenging part of a state law requiring the humane slaughter of livestock. Pasado’s Safe Haven v. Washington, No. 64452-1-I (Wash. Ct. App., decided July 25, 2011). The plaintiff, an animal rights advocacy organization, challenged that part of the statute which included within the “humane method” definition “a method in accordance with the ritual requirements of any religious faith whereby the animal suffers loss of consciousness by anemia of the brain…” Also challenged was a provision stating that “Nothing in this chapter shall be construed to prohibit, abridge, or in any way hinder the religious freedom of any person or group.” The court ruled that the plaintiff had not presented a justiciable claim because the court could not strike just part of the statute without bringing “about a result that our legislature ‘never contemplated nor intended to accomplish.’”…
Category Archives Litigation
A Minnesota appellate court has ruled, as a matter of first impression, that “a trespass action can arise from a chemical pesticide being deposited in discernable and consequential amounts onto one agricultural property as the result of errant overspray during application directed at another.” Johnson v. Paynesville Farmers Union Coop. Oil Co., Nos. A10-1596 and -2135 (Minn. Ct. App., decided July 25, 2011). The plaintiffs were organic farmers who alleged that the defendant, a commercial pesticide applicator, repeatedly sprayed adjacent farms on windy days, in violation of the law, resulting in contamination of their crops from drifting chemicals. Despite the plaintiffs’ specific requests that the defendant avoid overspraying pesticide onto their fields when treating adjacent fields, the defendant contaminated their crops in 1998, 2002, 2005, 2007, and 2008, causing them to sell their products at lower prices or destroy some crops, and forcing them to take acreage out of production…
A number of fruit juice manufacturers have filed a motion to dismiss the multidistrict litigation (MDL) consumer fraud lawsuits pending in a Massachusetts federal court. In re: Fruit Juice Prods. Mktg. & Sales Practices Litig., MDL No. 2231 (D. Mass, motion filed July 29, 2011). The lawsuits, involving plaintiffs from California, Colorado, Florida, and Massachusetts, allege violations of state consumer protection laws, breach of warranty and unjust enrichment in the sale and promotion of fruit juices purportedly containing lead. The motion asserts that the plaintiffs lack standing because they “have suffered no economic injury,” their pleadings do not allege facts showing a plausible injury, the Nutrition Labeling and Education Act preempts the claims, the suits were brought “under the laws of states in which Plaintiffs do not live and did not purchase any of Defendants’ products,” and the plaintiffs have failed to state any claim under the laws of their home…
A federal court in New Jersey has determined that Pennsylvania and California residents may pursue claims against New Jersey-based Nestlé Healthcare Nutrition, Inc. in consolidated putative class actions alleging that the company’s BOOST Kid Essentials® beverage did not provide its advertised health benefits for children. Scheuerman v. Nestlé Healthcare Nutrition, Inc., No. 10-3684; Johnson v. Nestlé Healthcare Nutrition, Inc., No. 10-5628 (D.N.J., decided August 1, 2011) (unpublished). So ruling, the court granted in part and denied in part Nestlé’s motion to dismiss. While the court ruled that the California plaintiff may not bring a cause of action under the New Jersey Consumer Fraud Act (NJCFA), because the defendant’s presence in the jurisdiction alone is insufficient under conflict-of-law rules to apply the state’s law, the court did give the California plaintiff the opportunity to amend her complaint to allege consumer fraud under California law. Because the Pennsylvania plaintiff alleged that he…
If a D.C. federal court agrees to the unopposed litigation schedule filed in late July by the Styrene Information and Research Center, a decision about whether the Department of Health and Human Services (HHS) properly added styrene to its list of possible carcinogens could be reached early in 2012. Styrene Info. & Research Ctr., Inc. v. Sebelius, No. __ (D.D.C., filed June 10, 2011). The industry trade group contends that the HHS National Toxicology Program (NTP) process that concluded with a determination to add the substance, which is used in plastic and foam food service packaging, to the 12th Annual Report on Carcinogens (RoC) was flawed, arbitrary and capricious, an abuse of discretion, and not in accordance with the law. The center seeks the removal of styrene from the RoC. In its complaint for declaratory and injunctive relief, the center alleges that NTP’s scientific advisory panel members ignored studies showing…
A 33-year-old man has filed a personal injury lawsuit in a Texas federal court against companies that made and sold the Four Loko® that allegedly caused the stroke he had in October 2010 immediately after consuming two cans of the caffeinated alcohol beverage. Villa v. Phusion Projects, LLC, No. __ (S.D. Texas, filed mid-July 2010). According to the complaint, the plaintiff continues to experience health problems, including slurred speech and lack of balance. Alleging negligence and products liability, the plaintiff seeks damages in excess of $75,000, punitive damages, attorney’s fees, and costs.
A California woman has filed a putative nationwide class action against the company that makes Muscle Milk® beverages and protein bars, alleging that promotions touting the products as “high performance” and “nutritious snacks” are false and misleading because they contain as much fat and calories as Krispy Kreme® doughnuts. Delacruz v. Cytosport, Inc., No. 11-3532 (N.D. Cal., filed July 18, 2011). The company apparently markets the products as “a ‘meal replacement’ to provide ‘healthy sustained energy’” and allegedly “suggests that these fat-filled Products will help people lose weight, telling consumers, among other things, that the Products will help people ‘Go from cover it up to take it off.’” According to the complaint, the named plaintiff purchased the products for six months and consumed them “before workouts, after workouts, in between meals as a snack, and sometimes as a meal replacement.” She contends that she did so in reliance on the…
A New Jersey appellate court has partially reinstated a lawsuit against an Indian restaurant that mistakenly served meat samosas to a group of Hindu vegetarians, who are now seeking compensation for emotional distress and to recover the cost of traveling to India for a purification rite. Gupta v. Asha Enterprises, L.L.C., A-3059-09T2 (N.J. Sup. Ct., decided July 18, 2011). According to the court opinion, plaintiffs notified Moghul Express & Catering Co. of their “strict vegetarian” status and were twice “assured of the vegetarian nature of the food,” which actually contained meat. The complaint alleges that this oversight caused the diners spiritual injury and involved them “in the sinful cycle of inflicting pain, injury and death on God’s [creations], and it affects the karma and the dharma, or purity of the soul.” Although the New Jersey Superior Court initially dismissed the claims of negligence, negligent infliction of emotional distress, consumer fraud, products…
The Ninth Circuit Court of Appeals, in a divided en banc ruling, has determined that while an agreement between competitors to share revenues during a labor dispute is not immune from antitrust laws, the district court properly denied a challenge to an agreement between California supermarkets as a per se violation of the Sherman Act or on the basis of a “quick look” antitrust analysis; the Ninth Circuit found that a truncated or abbreviated review process is insufficient to determine whether this type of agreement has affected competition in the relevant market. California v. Safeway, Inc., No. 08-55671 (9th Cir., decided July 12, 2011) (en banc). Details about the court’s previous ruling that the agreement was anticompetitive appear in Issue 361 of this Update. The court’s majority “expressed no opinion on the legality of the arrangement under the rule of reason” (the traditional test for violations of federal antitrust laws) because…
The parents of a 29-year-old who died after he fell into a vat of chocolate have filed a wrongful death action in a Pennsylvania state court against the company that owned the plant where he worked and a number of other defendants involved in manufacturing the allegedly faulty equipment that purportedly led to the accident. Smith v. Lyons & Sons, Inc., No. __ (Pa. Ct. Com. Pleas, Philadelphia Cty., filed July 1, 2011). The decedent allegedly slipped on a cardboard-covered platform made slippery with chocolate and other materials and fell into the vat through unguarded holes. The vat was “processing, mixing and melting chocolate at extremely high temperatures at the time.” Co-workers were allegedly unable to stop the vat from operating because the switch was not located on the platform. Alleging negligence, strict liability and breach of express and implied warranties, the plaintiffs seek damages in excess of $50,000. The…
