Seeking a declaration about respective indemnity obligations, National Union Fire Insurance Co. of Pittsburgh, Pa. has filed a complaint in a California federal court against several other insurance companies in a dispute stemming from a neurological injury allegedly caused by the mahi-mahi fish served in a fish burrito at a Rubio’s Restaurant. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Nationwide Mut. Fire Ins. Co., No. 11-00755 (S.D. Cal., filed April 11, 2011). The injured consumer apparently seeks damages in excess of $7 million. The insurance defendants are allegedly defending the fish supplier and restaurant in the personal-injury action, and National Union claims that its policy provides excess insurance only and that the other carriers have a duty to indemnify the insureds first.
Category Archives Litigation
According to the Department of Justice, a Massachusetts-based fish packer has been convicted of several criminal charges for falsely labeling packages of frozen fish fillets. A federal jury in Boston found Stephen Delaney guilty of a felony violation of the Lacey Act for falsely labeling $8,000 worth of frozen pollock, a product of China, as more expensive cod loins, a product of Canada. The jury also convicted Delaney of one misdemeanor violation for misbranding food under the Food, Drug, and Cosmetic Act; he allegedly placed into interstate commerce $203,000 worth of Chinese frozen fish fillets falsely labeled as products of Canada, Holland, Namibia, and the United States. Evidence at trial apparently indicated that he also changed 4 oz. labels on some packages to 5 oz. labels. Delaney will be sentenced on June 8, 2011; he faces up to six years in jail and up to $350,000 in fines. See Department of…
The Judicial Panel on Multidistrict Litigation (JPML) has denied a request that five false advertising lawsuits pending in two federal district courts against The Quaker Oats Co. be consolidated for pretrial proceedings in Illinois. In re: Quaker Oats Trans-Fat Mktg. & Sales Practices Litig., MDL No. 2230 (J.P.M.L., decided April 8, 2011). The putative class actions involve claims that the company advertises its Chewy Bars® as containing “0 grams trans fat” when they purportedly contain “dangerous amounts of artificial trans fat, a toxic product that causes cancer, diabetes, and heart disease, and is banned in an increasing number of United States and foreign jurisdictions.” The JPML apparently determined that centralization would not “serve the convenience of the parties and witnesses or further the just and efficient conduct of this litigation.” The panel noted that four of the pending actions were filed in one district court in California and were already underway.…
The Ninth Circuit Court of Appeals has determined that the owner of peach and pear orchards in Oregon violated the law by crediting its seasonal workers’ housing costs toward their minimum wage and by paying them the day after their last workday. Bobadilla-German v. Bear Creek Orchards, Inc., Nos. 10-35205, 10-35268 (9th Cir., decided April 12, 2011). The owner recruited several hundred seasonal farm workers in Arizona for the month-long harvest in 2004-2006 and offered them optional on-site housing and meals. The company charged $5-$7 a day for housing and deducted that amount from workers’ paychecks, crediting it toward their minimum wage. “In many instances, if housing costs were not credited toward the workers’ minimum wage, their wage would have been below the lawful minimum wage.” The workers generally received their final paychecks on the day following their last day of work. A class of workers sued the company, alleging…
A federal court in California has determined that some putative class claims can proceed against a company that allegedly makes false and misleading statements about its guacamole and spicy bean dip products. Henderson v. Gruma Corp., No. 10-04173 (C.D. Cal., decided April 11, 2011). The plaintiffs’ first amended complaint alleged five causes of action for violations of the state’s unfair competition and false advertising laws and the Consumer Legal Remedies Act. They claimed that the statements “0 g trans fat,” “with garden vegetables,” made in “the authentic tradition,” “0 g cholesterol,” and “all natural,” as to either or both products were false and misleading. The court first determined that the named plaintiffs, including a woman who recently brought and voluntarily dismissed similar claims against Hostess Brands, Inc., adequately alleged injury-in-fact to establish standing under Proposition 64. They alleged that they (i) “paid more for Mission Guacamole and Mission Bean Dip,…
A federal court in the District of Columbia has reportedly scheduled an April 26, 2011, hearing to determine whether attorneys representing Native American farmers and ranchers in the settlement of claims alleging discrimination against the U.S. Department of Agriculture (USDA) should receive $60.8 million in fees. Keepseagle v. Vilsack, No. 99-03119 (D.D.C., preliminary settlement approval filed November 1, 2010). The sum represents 8 percent of the $760 million settlement; Department of Justice attorneys oppose the request and will file supporting papers in the next week. See The Blog of LegalTimes, April 5, 2011.
Czech and U.S. brewers seeking to market their beers under the name “Bud,” have apparently been at odds since the early 1900s. In the latest installment of the dispute, the Court of Justice of the European Communities has set aside a decision of the Court of First Instance which allowed the Czech brewer to oppose Anheuser-Busch’s registration of “Bud” in Europe. Anheuser-Busch Inc. v. Budějovický Budvar, No. C 96-09 (E.C.J., decided March 29, 2011). While the Court of Justice upheld some of the lower court’s rulings, it determined that the lower court erred (i) in the factors it relied on to decide if a “sign,” or trademark, in opposition to a new registration was used in a sufficiently significant manner, and (ii) in holding that the use of the sign in opposition does not necessarily have to occur before the date of the application for new registration. According to the Court…
A company that sells a variety of seafood spreads has sued one of its packers, which allegedly added undeclared eggs to the company’s smoked salmon spread. Sau-Sea Foods, Inc. v. Lukas Foods, Inc., No. 11-00104 (D. Me., filed March 23, 2011). The plaintiff apparently learned about the problem after the Food and Drug Administration (FDA) inspected the defendant’s facility and discovered that eggs had been used in the spread, thus “posing a potential health hazard.” A recall was immediately undertaken and widely reported in the media. Thereafter, FDA allegedly informed the plaintiff that its salmon spread “posed an acute, life-threatening hazard to health” and designated the recall as Class I. Alleging breach of contract, breach of express and implied warranties, negligence, unjust enrichment, breach of implied contract, and negligent misrepresentation, Sau-Sea Foods seeks damages, interest, costs, and attorney’s fees. While the company alleges damages exceeding the $75,000 jurisdictional minimum, it…
Flying Dog Brewery has filed a lawsuit under the First Amendment, alleging that the Michigan Liquor Control Commission and its individual members violated its free speech rights by prohibiting the company from selling Raging Bitch Twentieth Anniversary Belgian-Style India Pale Ale. Flying Dog Brewery, LLP v. Mich. Liquor Control Comm’n, No. __ (W.D. Mich., filed March 25, 2011). According to the complaint, a British artist, who once worked with journalist Hunter S. Thompson, designed Flying Dog’s beer labels, including the one at issue. The defendants rejected Flying Dog’s application for a license to sell the pale ale in the state, allegedly finding “that the proposed label which includes the brand name ‘Raging Bitch’ contains such language deemed detrimental to the health, safety, or welfare of the general public.” Claiming loss of sales and goodwill, the plaintiff alleges that its label constitutes expression protected by the First Amendment and seeks preliminary and…
Hormel Foods, LLC has filed a complaint in a Minnesota federal court against a company that also makes a canned meat product, alleging that the company is infringing Hormel’s SPAM® trademark, which consists of yellow lettering on a blue background. Hormel Foods, LLC v. Zwanenberg Food Group (USA), Inc., No. __ (D. Minn., filed March 30, 2011). The defendant allegedly began selling its product in October 2010 in a can with yellow labeling on a blue background. When Hormel sent a cease and desist letter, the company allegedly switched to a new design, white on a red background. Thereafter, the defendant resumed using the yellow on blue background label for products shipped to the Philippines and Japan. According to the complaint, Hormel has produced 7 billion cans of SPAM® products, making the brand “a famous American icon. Its timelessness has earned it roles in films, a fan club and a…
