A woman featured in a 2009 New York Times article that was part of a Pulitzer Prize-winning series on food safety has reportedly settled her claims against Cargill, Inc., which allegedly produced the E. coli-contaminated hamburger that left her paralyzed with neurological problems and kidney damage. Represented by plaintiffs’ attorney William Marler, Stephanie Smith is a former dance instructor now confined to a wheelchair. Marler claimed that her medical bills have already totaled more than $2 million and that she will require additional rehabilitation and multiple transplants. The terms of the settlement, which must be approved by a court, are apparently confidential. Marler was quoted as saying, “Stephanie’s tragedy has taken on a life of its own, and hopefully it will continue to focus people on why food safety is important.” Cargill reportedly said in a joint statement that it “deeply regrets” her injuries and has invested in excess of…
Category Archives Litigation
A federal district court in California has dismissed claims against the company that makes the product “I Can’t Believe It’s Not Butter,” finding that, while not preempted under federal labeling law, the complaint failed to allege facts “plausibly suggestive” of a claim entitling the plaintiff to relief under the U.S. Supreme Court’s recently adopted Twombly/Iqbal pleading standard. Rosen v. Unilever U.S., Inc., No. 09-02563 (N.D. Cal., decided May 3, 2010). The plaintiff alleged that the company violated state consumer protection laws by advertising its product as nutritious when, in fact, it contains partially hydrogenated oil, “an artificial, man-made substance that has no nutritional value and is known to cause a number of health problems.” The defendant sought to dismiss the claims as expressly preempted under the Nutritional Labeling and Education Act, contending that use of the phrase “0g Trans Fat” on product labels complies with Food and Drug Administration regulations where a…
The Second Circuit Court of Appeals has returned to a federal district court litigation alleging that a karate instructor was fired because he was obese in violation of a New York City law that forbids disability-based workplace discrimination. Spiegel v. Schulmann, No. 06-5914 (2d Cir., decided May 6, 2010). According to the appeals court, no cases have yet addressed whether the city law applies to the obese, and the lower court was directed to consider whether the plaintiff had made a prima facie case of discrimination under that law. The plaintiff, who claimed his roommate was fired from a similar position after the plaintiff notified the defendant that he intended to file an employment discrimination charge, also alleged unlawful retaliation under the Americans with Disabilities Act (ADA). Affirming the lower court’s dismissal of this claim, the appeals court found that the ADA does not permit an individual to be held liable…
Some two years after a raid on a Postville, Iowa, kosher slaughterhouse for the employment of hundreds of illegal immigrants, charges of child-labor law violations are apparently about to be tried in state court against former executive Sholom Rubashkin. Prosecutors reportedly dropped many related charges against other individuals on the eve of trial. Rubashkin, who was also charged with bank, mail and wire fraud and violations of the Packers & Stockyards Act, appeared at a federal court sentencing hearing in late April 2010, facing a potential life sentence in prison. According to news sources, the court will hand down a sentencing order sometime in May; a number of former U.S. attorneys general and U.S. attorneys submitted a letter to the court to express concern about the imposition of a life sentence on a first-time, non-violent offender. See National Law Journal and The Blog of Legal Times, April 26, 2010; Feedstuffs.com,…
Alleging that her habit of consuming two to three bags of microwave popcorn daily between 1991 and 2007 caused her severe lung disease, a New York resident has sued a host of defendants, including 100 “John Does,” in state court. Mercado v. ConAgra Foods, Inc., No. __ (N.Y. Sup. Ct., Queens Cty., filed May 3, 2010). Agnes Mercado, who claims that her lung disease requires the regular use of an oxygen tank and will likely require a lung transplant, contends that the diactyl in Act II buttered popcorn caused her injury. She sued the product’s manufacturer, flavoring companies and unknown companies that “manufactured, designed, packaged, marketed, labeled and sold added diacetyl to Givaudan for use in its butter flavorings that were sold and distributed to ConAgra for use in ConAgra’s Act II Lite microwave popcorn.” The plaintiff claims that any statutes of limitations have been tolled by defendants’ concealment of information…
The Center for Science in the Public Interest (CSPI) has issued an offer of settlement to Safeway Inc., claiming that it intends to sue the company if it fails to adequately notify its customers about the recall of contaminated foods. According to CSPI’s May 5, 2010, letter, Safeway has a club card membership program through which the retailer “can easily identify which Customers purchased products subject to Class 1 recalls, and then advise those Customers that they have purchased a product that puts them at risk of a serious health problem or death.” CSPI contends that Safeway’s competitors do this and that Safeway is engaging in “unfair and deceptive acts and practices by selling dangerous products and then failing to inform its Customers that they are at risk.” If the company does not agree to inform customers about food recalls by posting online warnings and in-store signs, as well as…
A putative class action has reportedly been filed against California’s largest herb grower, shipper and marketer, alleging that the defendant “played California consumers for fools,” by selling as organic, and at higher prices, conventionally grown herbs. Quesada v. HerbThyme Farms, No. __ (Cal. Super. Ct., filed April 2010). According to the complaint, the company owns a large number of conventional farms and just one smaller organic farm, and, when its “profits grew at a slower rate than the company wanted, it turned to fraud.” Seeking restitution, damages and injunctive relief, the plaintiff alleges that the company labeled conventionally grown herbs as “Fresh Organic” in violation of California business and consumer fraud laws. See Courthouse News Service, April 28, 2010.
A federal court in Colorado has dismissed as premature a medical provider’s challenge to Food and Drug Administration (FDA) regulations potentially applicable to its medical procedures because the agency had issued only a warning letter against it, and warning letters are not final. Regenerative Sciences, Inc. v. FDA, No. 09-411 (D. Colo., decided March 26, 2010). The court’s analysis of the non-final nature of FDA warning letters may have some relevance in those consumer fraud actions against food makers citing such letters to establish a fact or using them as definitive evidence of wrongdoing or a violation of the law. The agency itself acknowledged that its warning letters do not constitute a determination that a particular statute or regulation applies to the specific circumstances that led FDA to issue the letters, noting “this is a factual issue that cannot be resolved until FDA brings an action against” the letter recipient.
A federal court in Illinois has dismissed claims that Coca-Cola labeling for its “classic” and “original formula” soda products violated consumer fraud laws because the products contain high fructose corn syrup (HFCS), which did not exist when the beverage was first sold in the 1880s. Kremers v. Coca-Cola Company, No. 09-333 (S.D. Ill., decided April 27, 2010). One named plaintiff in this putative class action apparently testified during her deposition that she knew the products contained HFCS as early as the 1990s. The court found the litigation time-barred as to her claims. Another named plaintiff testified that he did not realize the product’s label included the phrase “original formula” until counsel brought it to his attention. The court found that he failed to establish an essential element of his deception claim. Because both testified that they continued to buy the product despite knowing that its sweetener differed from the formulation sold…
The Fourth Circuit Court of Appeals has turned aside a First Amendment challenge to a state law restricting advertisements for alcoholic beverages in college student publications. Educ. Media Co. v. Swecker, No. 08-1798 (4th Cir., corrected decision filed April 19, 2010). The restrictions at issue did not allow advertisements for alcohol in any college publication distributed primarily to students younger than 21, but did allow dining establishment advertisements in those publications to refer to alcohol. The student-run newspapers challenging the restrictions claimed that they were losing tens of thousands of dollars in ad revenues annually because of the restrictions, which they contend do not advance the government’s interest in combating underage drinking. The court found sufficient evidence in the record to link decreasing demand for alcohol by college students with the advertising restrictions, citing in particular the inimitable role that student publications play on campus and “the fact that alcohol…
