A former employee of an Olathe, Kansas, waffle venue has brought a collective action against his employer alleging that it reported inaccurate tip earnings so that it would appear that his total earnings were compliant with the federal minimum wage. Spears v. Mid America Waffle House, Inc., No. 11-2273 (D. Kan., filed May 2010). Jared Spears, who was paid an hourly wage of $2.13 plus tips, contends that when he complained about the issue, he was given fewer hours to work and his wage “was further reduced by a mandatory meal credit that was deducted from his compensation whether he ate a meal or not.” He claims damages in excess of $75,000 and seeks injunctive and declaratory relief.
Category Archives Litigation
A South Carolina-based family farming operation has filed a complaint seeking damages that it alleges were sustained in 2008 when the Food and Drug Administration (FDA) issued a nationwide recall of round tomatoes due to a purported Salmonella outbreak. Seaside Farm, Inc. v. United States, No. 11-1199 (D.S.C., filed May 18, 2011). The plaintiff claims that independent audits before the recall was announced verified that its produce and practices were safe. Still, according to the complaint, “At the time of the recall, the FDA had not positively identified a single tomato as a current source of the salmonella outbreak in the United States” and “The FDA never identified any contaminated tomatoes and ultimately conceded that tomatoes were not the source of the salmonella contamination.” Claiming that the recall “decimated the market price for fresh tomatoes,” the plaintiff seeks unspecified general and special compensatory damages and interest under the Federal Tort Claims Act.…
Rare Breed Distilling has filed a trademark infringement action in a Kentucky federal court alleging that Jim Beam Brands’ use of “Give ‘Em the Bird” in connection with its Old Crow bourbon whiskey “is likely to confuse and deceive consumers and purchasers of bourbon whiskey products.” Rare Breed Distilling LLC v. Jim Beam Brands Co., No. 11-292 (W.D. Ky., filed May 13, 2011). Rare Breed has apparently used “Give Them the Bird,” which evolved into “Give ‘Em the Bird,” since 2006, in connection with its Wild Turkey® bourbon whiskey products. The plaintiff alleges that Jim Beam adopted identical marks for use and filed a still pending application to register the mark in March 2010. According to the complaint, Jim Beam has refused to acknowledge Rare Breed’s prior rights to the mark and continues to use it. Alleging federal trademark infringement and unfair competition, and common law unfair competition, the plaintiff seeks…
A federal court in the District of Columbia has issued an order granting preliminary approval of a settlement agreement involving a class of African-American farmers who “submitted late-filing requests under Section 5(g) of the Pigford v. Glickman Consent Decree on or after October 13, 1999, and on or before June 18, 2008,” but had not yet obtained a determination on the merits of their discrimination complaints. In re: Black Farmers Discrimination Litig., No. 08-0511 (D.D.C., filed May 13, 2011). The order certifies the class and sets a “cost cap” of $35 million with payment of up to $3.5 million for class counsel fees and costs. Class members are enjoined from bringing any other claims arising out of section 14012 of the Food, Conservation, and Energy Act of 2008. These lawsuits alleged that the U.S. Department of Agriculture systematically discriminated against African-American farmers on the basis of race. The court has scheduled…
A federal court in California has reportedly dismissed without prejudice putative class claims filed against General Mills Inc. alleging that the company falsely conveyed to consumers that its Total Blueberry Pomegranate® cereal product contained real fruit. Dvora v. Gen. Mills Inc., No. 11-1074 (C.D. Cal., dismissed May 16, 2011). According to a news source, the court determined that the plaintiff’s state-law claims were preempted by federal product-labeling laws that allow a manufacturer to use a fruit’s name and image to describe a flavor even if the product contains no fruit. The claims were apparently based on allegations that the product was falsely labeled “naturally and artificially flavored” and the packaging was misleading. The court disagreed, saying, “If you look at the ingredients table, blueberry and pomegranate aren’t there. So I don’t understand how a reasonable consumer is somehow tricked into thinking it contains blueberry and pomegranate.” The court also said…
The Metzger Law Group has filed a lawsuit under the Safe Drinking Water and Toxic Enforcement Act (Prop. 65) on behalf of the Council for Education and Research on Toxics (CERT), seeking an order to require coffee makers and retailers to warn consumers that coffee contains acrylamide, a chemical known to the state to cause cancer. CERT v. Brad Berry Co., Ltd., No. BC461182 (Cal. Super. Ct., Los Angeles Cty., filed May 9, 2011). The defendants include manufacturing companies, coffee shops and major food retailers. Raphael Metzger and CERT have filed a number of Prop. 65 lawsuits, including claims against fast-food restaurants, for failing to warn consumers about the acrylamide in fried and baked potatoes. Acrylamide, formed when certain foods are roasted, baked or exposed to high-temperature cooking processes other than boiling or steaming, has been listed as a carcinogenic chemical in California since 1990, but was not discovered in…
A New York City deli has filed a lawsuit in federal court seeking a declaration that it has not infringed the trademark of an Arizona-based restaurant by selling an “Instant Heart Attack Sandwich” and planning to sell a “Triple Bypass Sandwich.” Lebewohl v. Heart Attack Grill LLC, No. 11-3153 (S.D.N.Y., filed May 10, 2011). According to the plaintiff, who owns the 2nd Avenue Deli, the Arizona eatery threatened to sue the deli in a March 29, 2011, letter, claiming that the deli’s use of these terms for its menu items violated the defendant’s Lanham Act rights. The Heart Attack Grill has purportedly registered the trademarks “Heart Attack Grill,” “Triple Bypass Burger” and other “Bypass” marks. The New York deli claims that it has been selling its “Instant Heart Attack Sandwich,” which consists of two large potato pancakes with a choice of deli meats, and accompanied by matzo ball soup, since…
The Food and Drug Administration (FDA) has filed a complaint for permanent injunction against Tennessee-based companies that process food products and ingredients, such as spices, spice blends, herbs, and sauces, claiming they have repeatedly violated the law by selling adulterated foods. United States v. Am. Mercantile Corp., No. 11-02371 (W.D. Tenn., filed May 11, 2011). According to the complaint, the foods are adulterated because “they have been prepared, packed, and held under insanitary conditions whereby they may have become contaminated with filth.” An array of insects and insect and rodent excreta were allegedly observed on a number of occasions at defendants’ facilities, and repeat visits by inspectors showed that the cited violations had not been corrected. Other problems included spilled food, unsatisfactory cleaning, gaps in the building exterior, and expired products. FDA seeks to permanently enjoin the defendants from “introducing or delivering for introduction into interstate commerce any article of food…
A federal court in California has denied without prejudice the motion of Ferrero U.S.A., Inc. to transfer a consolidated consumer-fraud class action involving its Nutella® spread to a New Jersey district court. In re: Ferrero Litig., No. 11-205 (S.D. Cal., decided May 11, 2011). According to the court, the convenience of the parties and witnesses and the interests of justice would best be served by allowing the plaintiffs to remain in their chosen jurisdiction. The court noted that similar litigation is pending in New Jersey, but that case was filed after the California lawsuits, “likely giv[ing] the cases in this district priority.” Additional details about the case can be found in Issue 380 of this Update.
A federal court in Vermont has certified a class of 9,000 to 10,000 dairy farmers who allege that Dean Foods Co. and others engaged in anticompetitive conduct and given preliminary approval to a settlement reached in December 2010. Allen v. Dairy Farmers of Am., Inc., No. 09-00230 (D. Vt., order entered May 4, 2011). Under the settlement, Dean Foods does not admit any wrongdoing, but will create a $30 million settlement fund. Its co-defendants have objected to the settlement, but the court determined that they lack standing to oppose preliminary approval of the Dean settlement. The court also noted that they opposed a settlement provision that has been removed. The court denied several motions to intervene and scheduled a final hearing date for July 18, 2011. The plaintiffs alleged conspiracies to monopolize, fix prices and restrain trade. Common questions of law and fact included whether the defendants “conspired to fix,…
