Seeking additional input before ruling on a certiorari petition, the U.S. Supreme Court has asked the acting solicitor general to provide the U.S. government’s view of a challenge to a California law that prohibits slaughterhouses from receiving, processing or selling nonambulatory animals and prohibits dragging or pushing downer animals. Nat’l Meat Ass’n v. Harris, No. 10-224 (U.S., request filed January 18, 2011). The Ninth Circuit Court of Appeals allowed the state to enforce the law, finding that it is not preempted by the Federal Meat Inspection Act. Additional details about the Ninth Circuit’s ruling appear in Issue 344 of this Update. California adopted the law after The Humane Society’s video of the mistreatment of downer cattle at a slaughterhouse became public and led to a massive beef recall in 2008.
Category Archives Litigation
A federal court in Florida has dismissed without prejudice a putative class action alleging that the Wm. Wrigley Jr. Co. misled consumers by claiming that its Eclipse® Breeze chewing gum contains “Cardamom to Neutralize the Toughest Breath Odors.” Nichols v. Wm. Wrigley Jr. Co., No. 10-80759 (S.D. Fla., decided January 19, 2011). A similar lawsuit, filed in August 2010 in California, is discussed in Issue 360 of this Update. According to the court, the plaintiff pleaded sufficient facts “to establish the falsity of the representation,” but he did not plead sufficient facts as to each of his claims of fraudulent concealment, negligent misrepresentation, intentional misrepresentation, and breach of express warranty. The court dismissed the plaintiff’s claim for unjust enrichment because “he does not lack an adequate legal remedy.” The plaintiff was given five days to file an amended complaint.
A coalition of pesticide watchdogs and farm workers has filed a petition in a California state court seeking review of a Department of Pesticide Registration (DPR) decision to allow the use of pesticides containing methyl iodide despite evidence that the chemical is highly toxic. Pesticide Action Network N. Am. v. Cal. Dep’t of Pesticide Regulation, No. RG10553804 (Cal. Super. Ct., Alameda Cty., filed December 30, 2010). The chemical is allegedly used in fumigants intended to sterilize soil before planting crops such as strawberries, tomatoes, peppers, fruit and nut trees, grape vines, and ornamentals. The petitioners claim that breathing the chemical causes nausea, slurred speech and vomiting, permanent damage to the lungs, liver, kidneys and central nervous system, as well as fetal miscarriage. They also claim that direct contact with skin causes burns and that the chemical is listed as a known carcinogen under Proposition 65. The petition contends that exposure…
A coalition of food wholesalers and retailers has filed an antitrust lawsuit in a Kansas state court against egg producers and industry trade groups alleging that, by reducing the number of hens, increasing egg exports and decreasing hen lifecycles, the defendants conspired to manipulate egg prices, which have more than doubled in recent years. Associated Wholesale Grocers, Inc. v. United Egg Producers, No. 10 2181 (Kan. Dist. Ct., Wyandotte Cty., filed December 23, 2010). Similar class-action lawsuits nationwide were consolidated in multidistrict litigation (MDL) proceedings in a Pennsylvania federal court; the Kansas plaintiffs apparently opted out of class to file their own claims. The petition, alleging violations of the Kansas Restraint of Trade Act, discusses the U.S. Department of Justice investigation into industry practices and relies on some documents produced during the MDL proceedings. Several settlements have apparently been reached in the MDL, and one of the defendants apparently agreed to…
According to a press report, an amended putative class complaint has been filed in a Florida federal court against two companies that make and sell apple juice for children’s consumption, alleging that by failing to warn about the presence of lead in the juice the companies have violated state deceptive and unfair trade practices law. Poulis v. Gerber Prods. Co., No. 10-81475 (S.D. Fla., amended complaint filed January 11, 2011). The complaint was originally filed in state court soon after a California nonprofit organization notified the companies in June 2010 that their products contained lead in excess of levels established as safe under that state’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65). It was removed to federal court in November. The plaintiffs have not apparently alleged personal injury from the exposure, but claim they would not have purchased the companies’ products if they had known about…
Setton International Foods, which recalled more than 15 million pounds of pistachios in 2009 when Salmonella was detected in a delivery to one of its customers, has reportedly entered a settlement agreement with its insurers in a dispute over coverage for third-party claims. While the terms of the settlement have not been disclosed, a federal court in California has apparently dismissed the claims Setton filed against five insurance companies. According to a news source, Setton claimed that its insurers failed to provide assistance in defending or negotiating the third-party claims, and this purportedly led to the company’s exposure to increased liability. See Product Liability Law 360, January 7, 2011.
A New Jersey appellate court has dismissed the second amended complaint in a putative class action filed by a man who claims that Denny’s meals contain excessive undisclosed levels of sodium in violation of the state’s Consumer Fraud Act. DeBenedetto v. Denny’s, Inc., No. A-4135-09T1 (N.J. Super. Ct. App. Div., decided January 11, 2011). The plaintiff was represented by the Center for Science in the Public Interest. Additional information about the litigation appears in Issue 312 of this Update. The court agreed with the trial judge that the plaintiff’s complaint was, in essence, a product liability claim for failure to warn for which the state’s product liability law provided “a sole and exclusive remedy.” In the absence of proof of injury, the courts determined that the plaintiff failed to state a claim on which relief can be granted. The appellate court disagreed with the plaintiff that recent state supreme court…
The U.S. Supreme Court has denied the certiorari petition filed by Kraft Foods, seeking review of a Seventh Circuit ruling that requires the company to pay for the time it takes workers to change into and out of safety gear and work clothes, despite a collective bargaining agreement to the contrary. Kraft Foods Global, Inc. v. Spoerle, No. 10-580 (U.S., cert. denied January 10, 2011). According to the Seventh Circuit, “Management and labor acting jointly have no more power to override state substantive law than they have when acting individually.” The U.S. Supreme Court’s denial carries no precedential weight; thus, the ruling, based on Wisconsin law, is limited to the Seventh Circuit. Kraft will apparently begin paying 1,300 current and former employees about $4 million in back pay. A company spokesperson reportedly said, “With this decision [the doffing-and-donning] benefit is restored to employees. We are happy to put this behind…
Northeast dairy farmers have reportedly settled their price-fixing claims against Dean Foods Co. for $30 million and injunctive relief requiring the company to buy a portion of its raw milk from multiple sources. Allen v. Dairy Farmers of America, No. __ (D. Vt., settlement reached December 24, 2010). While the agreement requires court approval, it would reportedly allow some 5,000 to 10,000 farmers to file claims for monetary damages over allegations that Dean Foods would buy milk only through Dairy Farmers of America (DFA) and its affiliates in the region. According to counsel for the plaintiffs, the case will continue against DFA, to resolve claims that “the nation’s largest cooperative monopolized a level of distribution of fluid milk in the Northeast and forced dairy farmers to join DFA or its marketing affiliate [Dairy Marketing Services] to survive.” See DairyLine.com, December 24, 2010; Worcester Business Journal, December 27, 2010; and Burlington…
Having considered the matter for some six years, the General Court of the European Union (EU) has determined that chocolate makers Lindt & Sprüngli AG and August Storck AG cannot register certain three-dimensional shapes, their colored wrappings and ribbons as European Community trademarks. According to the court, chocolate rabbits, reindeer, bells, and mice “cannot be considered to be capable of identifying the commercial origin of the goods they designate.” The court opined that the Lindt & Sprüngli application involved shapes typical of those “presented at certain times of the year, in particular at Easter and Christmas.” The August Storck application was “made up of a combination of standard presentation elements, typical of the goods concerned,” said the court. See General Court of the European Union Press Release No. 124/10, December 17, 2010.
