The Department of Justice (DOJ) has filed a civil antitrust lawsuit against Dean Foods Co., claiming that the company’s 2009 acquisition of Foremost Farms USA’s Consumer Products Division “eliminates substantial competition between the two companies in the sale of milk to schools, grocery stores, convenience stores and other retailers in Illinois, Michigan and Wisconsin.” The attorneys general of these states joined the complaint. According to a Wall Street Journal report, this is the first such action DOJ has filed under the Obama administration. The complaint apparently seeks to undo the deal and require Dean Foods to notify the department at least 30 days before any future purchase of a milk processing operation. According to DOJ, the companies were the first and fourth largest in the region and their merger gave Dean Foods some 57 percent of the market for processed milk there. Local school districts evidently have fewer choices now…
Category Archives Litigation
A federal multidistrict litigation (MDL) court in Missouri has issued an order and opinion disposing of defendants’ motion that it reconsider its prior rulings refusing to dismiss some of the bisphenol A-related claims in the case on the basis of federal preemption and primary jurisdiction. In re: Bisphenol-A (BPA) Polycarbonate Plastic Prods. Liab. Litig., MDL No. 1967 (W.D. Mo., decided January 19, 2010). Details about the court’s prior ruling appear in issue 327 of this Update. The court also denied defendants’ motion to certify the issues for immediate interlocutory appeal. In its opinion, the court clarifies its holding allowing plaintiffs to proceed with their unjust enrichment claims, acknowledging that its prior holding may not have been clear. “The Court did not intend to suggest that all Plaintiffs automatically and necessarily have a valid claim for unjust enrichment. . . . [T]he Court cannot conclude that no purchaser can assert a claim…
A federal court in the District of Columbia has remanded to the D.C. Superior Court a lawsuit brought by the National Consumers League (NCL) against General Mills alleging that the company falsely misrepresents that Cheerios® “has drug-quality properties that would reduce total and ‘bad’ cholesterol levels when eaten.” Nat’l Consumers League v. General Mills, Inc., No. 09-01881 (D.D.C., decided January 15, 2010). The cereal maker removed the case to federal court claiming that it was removable either as a class action under the Class Action Fairness Act (CAFA) or under the court’s diversity jurisdiction. The NCL disclaimed Article III standing because it did not sustain any injury in fact, but was instead bringing the suit under the “private attorney general” provision of the D.C. Consumer Protection Procedures Act. This provision allows a person to bring an action on behalf of the general public to seek relief “from the use by…
The U.S. Supreme Court has agreed to hear an appeal from a Ninth Circuit Court of Appeals decision enjoining the sale and planting of genetically modified (GM) alfalfa seed until the government completes an environmental impact statement (EIS) for the crop’s proposed delisting. Monsanto Co. v. Geertson Seed Farms, No. 09-475 (U.S., certiorari granted January 15, 2010) (Breyer, J., not participating). The parties’ briefs must be filed in February and March 2010. The questions before the Court are (i) “Did the Ninth Circuit err in holding that NEPA [National Environmental Policy Act] plaintiffs are specially exempt from the requirement of showing a likelihood of irreparable harm to obtain an injunction?”; (ii) “Did the Ninth Circuit err in holding that a district court may enter an injunction sought to remedy a NEPA violation without conducting an evidentiary hearing sought by a party to resolve genuinely disputed facts directly relevant to the…
A California court of appeal recently determined that the Federal Meat Inspection Act (FMIA) preempts point-of-sale or other warning labels on meat products under Proposition 65 (Prop. 65). Am. Meat Inst. v. Leeman, No. D053325 (Cal. Ct. App., decided December 22, 2009). In 2004, Whitney Leeman notified a number of meat processors and retailers in California that she intended to file a citizen suit against them alleging violations of Prop. 65 for their failure to provide warnings that their beef products contained dioxins and PCBs, chemicals known to the state to cause cancer or reproductive toxicity. The companies’ trade association filed a complaint seeking declaratory relief, and the trial court, finding implied, but not express, federal preemption, granted the association’s motion for summary judgment. The court of appeal focused for the most part on defining “labeling,” because Leeman argued that point-of-sale warnings do not constitute labeling under the FMIA, which contains…
Multidistrict litigation (MDL) plaintiffs who challenged claims that Tyson products were made from “chickens raised without antibiotics” have sought approval of a settlement reached with the company. In re: Tyson Foods Inc., Chicken Raised Without Antibiotics Consumer Litigation, MDL No. 1982 (D. Md., motion filed January 12, 2010). Under the terms of the settlement, Tyson will pay up to $5 million to three tiers of plaintiffs: those who can provide receipts (they can recover up to $50); those who can estimate how much they spent on the products, how often they purchased them and where the purchases were made (they can recover up to $10) and those who simply claim they purchased the product at least once and submit a claim for a $5 coupon instead of cash. Four named plaintiffs in the suits consolidated before the MDL court for pre-trial proceedings and four class members who were deposed will receive…
A federal court has certified class claims against General Mills alleging that the company’s advertising for its premium-priced Yo-Plus® yogurt violates the Florida Deceptive and Unfair Trade Practices Act because the product does not provide any digestive health benefits that cannot be obtained from eating normal yogurt. Fitzpatrick v. General Mills, Inc., No. 09-60412 (S.D. Fla., decided January 11, 2010). The named plaintiff claimed that the company’s ads and promotional materials convinced her to try the product and that she consumed it on a regular basis for about a year. She claimed that her digestive health was the same before, during and after eating Yo-Plus® and thus, the company’s claims for digestive health benefits beyond those provided by normal yogurt are false, misleading and likely to deceive the public. She also alleged breach of express warranty and sought to certify a class of “[a]ll persons who purchased YoPlus in the State…
The First Circuit Court of Appeals has upheld an injunction against the enforcement of a Massachusetts law that regulated wine shipments in a manner that changed “the competitive balance between in-state and out-of-state wineries in a way that benefits Massachusetts wineries and significantly burdens out-of-state wineries.” Family Winemakers of Cal. v. Jenkins, No. 09-1169 (1st Cir., decided January 14, 2010). The statute at issue gave small wineries (those producing 30,000 gallons or less of grape wine annually) the most options for selling to consumers, either by direct shipment or through wholesalers and retailers. According to the court, most Massachusetts wineries are small wineries. Large wineries could sell either through wholesalers or by applying for a special license to ship directly to consumers; they could not do both. Apparently, Massachusetts has no large wineries. A group of California wineries and Massachusetts residents challenged the law, claiming it violated the Commerce Clause by effectively…
The American Meat Institute (AMI) has apparently submitted comments to the Office of U.S. Trade Representative contending that country of-origin labeling (COOL) requirements violate U.S. international trade obligations. According to AMI, the nation’s “credibility is undermined when U.S. legislation violates America’s commitments” under international agreements. AMI claims that the COOL requirements “are not consistent with U.S. obligations” under World Trade Organization (WTO) and North American Free Trade Agreement obligations or the General Agreement on Tariffs and Trade. The organization apparently characterizes COOL as “de facto discrimination against foreign products, a result even contemplated by sponsors of the legislation who declared that it would be ‘helpful to a lot of American agricultural producers’ and force companies to rely ‘on our independent producers here in this country.’” Canada and Mexico have asked the WTO to rule on the legality of the COOL law. See AMI Press Release, January 8, 2010; meatingplace.com, January 11,…
The Ninth Circuit Court of Appeals has determined that pet food mislabeling claims should not be certified as a class action because the named plaintiff failed to satisfy the predominance requirement of Federal Rule of Civil Procedure 23(b)(3). Kennedy v. Natural Balance Pet Foods, Inc., No. 08-56378 (9th Cir., decided January 6, 2010) (not for publication). The plaintiff alleged that dog and cat food products labeled with “Made in the USA” were mislabeled because they contained ingredients from China and sought to certify a class of individuals from a number of states. While the court upheld the district court’s class certification ruling because the plaintiff failed to show which consumer protection law would apply to the class claims, it reversed the court’s order dismissing the action for lack of subject-matter jurisdiction. According to the court, the case, which had been removed from state to federal court, should have been returned…
