The U.S. Department of Health and Human Services (HHS) and the National Institute of Environmental Health Sciences (NIEHS) have been sued in federal court under the Freedom of Information Act (FOIA) for their alleged failure to produce data and research relating to the herbicide atrazine. Beveridge & Diamond, P.C. v. HHS, No. 10-1713 (D.D.C., filed October 7, 2010). According to the complaint, the Environmental Protection Agency (EPA) is conducting a comprehensive atrazine review that includes the research of a NIEHS research scientist who worked for EPA in the past. The plaintiff allegedly sought the researcher’s data from EPA, but was told she had taken all of her material to NIEHS. NIEHS has allegedly failed to respond to the plaintiff’s request for data, information and reports related to Dr. Suzanne Fenton’s research on atrazine. The plaintiff alleges, “It is critical that NIEHS promptly provide the requested information to allow for meaningful…
Category Archives Litigation
A putative class action has been filed in a federal court in Florida against POM Wonderful, LLC and its holding company, alleging that the defendants deceived consumers in the state by making health-benefit claims for POM’s pomegranate juices, pills, extracts, and concentrated liquids. Cortez v. POM Wonderful, LLC, No. 10-23680 (S.D. Fla., filed October 13, 2010). Alleging damages in excess of $5 million, the named plaintiff cites the Food and Drug Administration’s warning letter to the company and the Federal Trade Commission’s recently filed administrative complaint to support claims that the company’s representation about its products are “false and misleading.” Among the product claims alleged to be false are that it will prevent, mitigate and/or treat atherosclerosis, blood flow/pressure, prostate cancer, erectile dysfunction, cardiovascular disease, LDL cholesterol, and other age-related medical conditions. Seeking to certify a statewide class of consumers who bought the products from September 29, 2006, to the…
A company that makes name- and store-brand food products, including cereals, granola products, pastas, and bakery goods, has sued the supplier of soybean food ingredients allegedly contaminated with Salmonella, seeking in excess of $7 million in damages. Ralcorp Holdings, Inc. v. Thumb Oilseed Producers’ Coop., No. 10-1898 (E.D. Mo., filed October 8, 2010). According to the complaint, the companies contracted for the purchase of the defendant’s soy grits under an agreement that guaranteed they would be suitable for human consumption and that the defendant would indemnify and pay damages to the plaintiff for any warranty breaches. Plaintiff Ralcorp Holdings alleges that it incorporated most of the soy grits into its products, specifically granola bars and trail mixes, for sale to a number of retail companies with which Ralcorp had also contracted. Before delivering the final products, Ralcorp claims that it discovered the soy grit ingredient “was, and had been at…
Darden Concepts, Inc. has filed a trademark infringement action against a TGI Friday’s franchisee located in San Diego, California, alleging that its use of “Never Ending Shrimp” to promote one of its menu offerings infringes the “Never Ending Pasta Bowl” mark that Darden has registered and used in its Olive Garden restaurants for 15 years. Darden Concepts, Inc. v. Briad Restaurant Group, L.L.C., No. 10-2077 (S.D. Cal., filed October 6, 2010). Darden alleges that use of the “Never Ending Shrimp” mark has the potential to confuse the public and will mislead consumers to believe that TGI Friday’s restaurants are affiliated with Darden’s Olive Garden and Red Lobster restaurants. Darden alleges violations of federal and state law and seeks injunctive relief, all profits and damages resulting from defendant’s infringing activities, treble damages, attorney’s fees, and costs.
A Kansas resident has filed a putative class action in state court against POM Wonderful, LLC, alleging that the company’s claims that its pomegranate products have special health benefits are false, deceptive and misleading. Haynes v. POM Wonderful, LLC, No. CV08720 (Kan. Dist. Ct., Johnson Cty., filed September 29, 2010). Seeking to certify a statewide class of consumers, the plaintiff refers to actions that advertising watchdogs and government agencies have taken against the company, including the recent Federal Trade Commission administrative complaint, after purportedly determining that the company does not have a sufficient scientific basis to make health-related representations about its products. The plaintiff alleges violations of the Kansas Consumer Protection Act and unjust enrichment and seeks damages in excess of $25,000, attorney’s fees and costs.
A number of Burger King Corp. franchisees in California have filed a complaint for declaratory relief in federal court, claiming that the company has no basis for demanding that they pay the cost of settlement or its attorney’s fees and costs in a recently settled disability discrimination lawsuit. Newport v. Burger King Corp., No. 10-4511 (N.D. Cal., filed October 5, 2010). They seek an order declaring that Burger King is not entitled to indemnification as well as attorney’s fees and costs. According to the complaint, Burger King has demanded indemnification for a settlement it reached over complaints that its restaurants were not accessible to the disabled. “If the Plaintiff franchisees do not pay BKC’s unfounded demand, BKC threatens to ‘terminate’ their franchise agreements, engage in self-help by withholding money owed to the franchisees, and/or otherwise retaliate against franchisees by preventing them from obtaining new restaurant opportunities or limiting to whom they…
A multidistrict litigation (MDL) court in Missouri has issued a number of rulings on motions for summary judgment and to exclude or limit expert testimony in the bellwether cases involving Texas rice farmers who allege that contamination of the U.S. rice supply with genetically modified (GM) rice caused a precipitous decline in prices for their crops on world markets. In re Genetically Modified Rice Litig., MDL No. 1811 (E.D. Mo., decided October 4, 2010). The court’s pre-trial rulings are similar to its rulings in previous bellwether trials involving farmers in Arkansas, Louisiana, Mississippi, and Missouri. The court determined, among other matters, that (i) the Texas farmers could not sue for violation of a North Carolina statute; (ii) the economic loss doctrine did not bar the plaintiffs’ claims; (iii) the plaintiffs could pursue claims for private nuisance but not for public nuisance; (iv) the defendants cannot assert as a defense that…
A multidistrict litigation (MDL) court has dismissed the claims of 16 plaintiffs who alleged that they or their minor children became ill as a result of eating peanut butter contaminated with Salmonella. In re ConAgra Peanut Butter Prods. Liab. Litig., MDL No. 1845 (N.D. Ga., decided September 29, 2010). According to the court, “The best way to show that peanut butter is contaminated with Salmonella is to test the peanut butter itself. The fact that the peanut butter was recalled does not mean that it was contaminated. In fact, most of the recalled peanut butter was free of Salmonella contamination.” Noting that the plaintiffs could also use circumstantial evidence to show that they ate contaminated peanut butter, the court determined that these plaintiffs could not show that the peanut butter they ate was made at the affected plant during the outbreak period (by means of a product code stamped on…
A federal court in New Jersey has issued a preliminary order granting certification of a nationwide class for settlement purposes in litigation against Unilever U.S., Inc., alleging that reduced-calorie labels for its Breyers Smooth & Dreamy Ice Cream® violated consumer fraud law. Ercoline v. Unilever U.S., Inc., No. 10-01747 (D.N.J., order filed October 4, 2010). The class consists of all U.S. purchasers of Breyers and Unilever branded ice cream products represented as reduced-calorie since April 2004. The court also approved the form and content of the class notice and will allow settlement class members to opt out if they make the request at least 20 days before the final approval hearing, scheduled for March 21, 2011. Objections to the proposed settlement must be filed within 45 days of the class notice publication. According to a news source, Unilever continues to deny that it misrepresented the calorie content of its ice cream…
The U.S. Supreme Court has decided to hear the appeal of case that involves the application of a personal privacy exemption under the Freedom of Information Act (FOIA) to federal agency law enforcement records involving corporations. FCC v. AT&T Inc., No. 09-1279 (U.S., certiorari granted September 28, 2010). The Third Circuit Court of Appeals barred the Federal Communications Commission (FCC) from releasing information about an investigation of AT&T, finding that the company has a right to personal privacy under FOIA’s exemption 7(c). This exemption allows agencies to withhold law enforcement records where their disclosure would result in an invasion of personal privacy. Those opposing the Third Circuit’s interpretation have suggested that if it is upheld, records such as meat inspection reports could be withheld “on the theory that the meat processor’s privacy rights would be invaded because of the public ‘embarrassment’ the corporation might feel if its filthy processing plant conditions were…
