A multidistrict litigation court in Missouri has denied motions for class certification in 24 transferred cases against companies that make baby bottles and sippy cups allegedly containing bisphenol A (BPA). In re: Bisphenol-A (BPA) Polycarbonate Plastic Prods. Liab. Litig., MDL No. 1967 (W.D. Mo., decided July 5, 2011). The plaintiffs sought to certify various classes, including individual state classes and multi state classes as to certain claims and defendants. The court focused on the commonality, predominance and superiority prongs of class certification to conclude that differences in state laws and facts unique to each putative class member rendered the claims unsuitable for class treatment. Still, the court dismissed the requests to certify individual statewide classes without prejudice, finding it appropriate to allow the transferor courts to determine whether these classes met the certification requirements when the cases are returned to their jurisdictions. The court also indicated that it would delay remand…
Category Archives Litigation
Insurance companies with policies covering Phusion Projects, Inc., which makes the caffeinated alcohol beverage Four Loko®, have filed a summary judgment motion in their declaratory judgment action against the company, claiming that a policy exclusion unambiguously frees them from defending or indemnifying the beverage maker. The Netherlands Ins. Co. v. Phusion Projects, Inc., No. 11-1253 (N.D. Ill., filed June 22, 2011). The companies contend that their commercial general liability and commercial umbrella policies have liquor liability exclusions that apply to actions pending in Florida, Illinois and New Jersey alleging that “Four Loko caused a particularly dangerous kind of intoxication” and seeking monetary damages for deaths and injuries. Details about a similar insurance coverage lawsuit involving other insurers appear in Issue 396 of this Update.
A federal court in California has approved a non-monetary settlement of a class action alleging that Unilever U.S., Inc.’s health-related claims for margarine products containing trans fats were false and misleading. Rosen/ Red v. Unilever U.S., Inc., Nos. 09-02563, 10-00387 (N.D. Cal, decided June 21, 2011). Additional information about the settlement appears in Issue 398 of this Update. Unilever denied any wrongdoing but agreed to reformulate its stick and spread products to remove partially hydrogenated vegetable oils. A number of excluded, individual claims against the company will not be affected by the settlement.
A federal court in Florida has dismissed without prejudice two putative class actions against Kraft Foods alleging that the packaging for its Oscar Mayer® deli meat products misleads consumers about their actual fat content. McDougal v. Kraft Foods, Inc., No. 11-61202; Rogel v. Kraft Foods, Inc., No. 11-61281 (S.D. Fla., decided June 23, 2011). The plaintiffs filed voluntary dismissal notices in the cases, one of which is discussed in Issue 396 of this Update. A company spokesperson reportedly indicated when the McDougal complaint was filed that the allegations were unfounded. See Law360, June 23, 2011.
Plaintiffs alleging that they were misled by the purportedly unsubstantiated claims Nestlé USA Inc. made about its Juicy Juice® Brain Development and Immunity products have filed an appeal to the Ninth Circuit Court of Appeals from a district court order dismissing their consolidated class action. Chavez/ Bonsignore v. Nestlé USA, Inc., No. 09-9192 (C.D. Cal., notice of appeal filed June 22, 2011). The lower court apparently gave the plaintiffs two opportunities to state a cognizable claim under California’s unfair competition and false advertising laws before dismissing the action in May 2011. According to the court, the plaintiffs’ second amended complaint “as with previous versions of the plaintiffs’ pleading in this action, is that it lumps together distinct products and multiple factual allegations without giving the reader a clear sense of which allegations support which specific claims.” See Law360, June 23, 2011.
African-Americans who briefly worked at a North Carolina farm in 2010 allege that they were subjected to a hostile work environment and discriminatory job conditions so the employer could obtain certification under a Department of Labor (DOL) program that allows farmers to hire seasonal foreign workers when U.S. workers are not available and hiring foreign workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. Fulford v. Alligator River Farms, LLC, No. 11-00103 (E.D.N.C., filed June 20, 2011). The Equal Employment Opportunity Commission allegedly issued the plaintiffs a letter of determination relating to their claims. According to the complaint, DOL certification requires that employers undertake specified efforts to recruit U.S. workers after the need for the services of foreign workers (referred to as H-2A workers) arises. Among other matters, the employer must submit a job, or clearance, order to the local state employment agency. The…
A woman who claims she consumed Ramona’s burritos believing they were low in calories and sodium, has filed a putative class action alleging that the company mislabeled its products and that the burritos were much higher in calories and sodium than individual labels in and before 2006 and bulk labels indicated. Solomon v. Ramona’s Mex. Food Prods., Inc., No. BC463914 (Cal. Super. Ct., Los Angeles Cty., filed June 17, 2011). Concerns about obesity and an inner ear disorder exacerbated by high sodium intake allegedly led the plaintiff to purchase and consume one to two burritos daily beginning in 2006. At that time, single and multiple packages purportedly indicated that each burrito contained 170 calories and 270 mg sodium. Individual burritos were allegedly re-labeled in 2010 to 340 calories and 580 mg sodium, while the bulk packaging continued to carry the lower values. According to the complaint, “Plaintiff is informed and believes…
A Pennsylvania resident has sued Safeway, Inc. on behalf of a putative nationwide class of consumers who placed online orders for the home delivery of groceries and were allegedly charged about 10 percent more for each item in addition to a delivery fee. Rodman v. Safeway, Inc., No. 11-03003 (N.D. Cal., filed June 17, 2011). According to the complaint, Safeway assures consumers that they will pay the same prices for home-delivered goods that they would pay in the store. An “FAQ” section of Safeway’s website allegedly states “You will be charged the prices charged in the store on the day your order is picked and delivered.” Believing that the prices charged for his initial online order were high, the plaintiff apparently compared the prices for his second order with in-store prices and found that prices for 10 of 14 items included the “secret” add-on cost. Alleging breach of contract, violations…
Alleging that tissue samples from Virtue Calves veal sold for slaughter since 1995 have contained illegal drug residues, the U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) has sued the producer and its owners in a California federal court seeking an order to stop the defendants from selling food containing an unsafe new animal drug, deemed adulterated under federal law. United States v. Virtue, No. 11-902 (E.D. Cal., filed June 22, 2011). According to the complaint, FSIS identified in defendants’ veal calves desfuroylceftiofur, gentamicin, neomycin, penicillin, tetracycline, sulfadiazine, and sulfamethoxazole. While the latter two drugs have never been approved for use on any animals, the remaining drugs have no legal tolerances approved for use in calves, according to FSIS. The agency contends, “Defendants have a long history of illegal drug residues in the edible tissues of the veal calves they sell for use as human food.” The defendants were…
Alleging trademark infringement and unfair competition, Vienna Beef Ltd. has sued a descendant of one of its founders and the competing hot dog company he established in 1986. Vienna Beef Ltd. v. Red Hot Chicago, Inc., No. 11-03825 (N.D. Ill., filed June 6, 2011). When Scott Ladany, whose grandfather started Vienna Beef, left that company in 1983, he purportedly signed a severance agreement promising not to share Vienna’s recipes and acknowledging their status as trade secrets. According to the complaint, Ladany made “few inroads into Vienna’s dominance in the marketplace” for the next 25 years and then launched a marketing campaign on behalf of Red Hot, referring to the family history of making “Chicago’s finest hot dogs for 118 years.” He also allegedly referred to “a tradition that’s been handed down through four generations of our family.” The plaintiff contends, “The only way that he can claim that he has…
