Judge Richard Posner, writing for a Seventh Circuit Court of Appeals panel, has determined that the government failed to prove that the defendant misbranded food by changing the “best when purchased by” date on bottled salad dressing that he then resold. U.S. v. Farinella, Nos. 08-1839, 08-1860 (7th Cir., decided March 12, 2009). A jury convicted the defendant of wire fraud and of introducing into interstate commerce a misbranded food with intent to defraud or mislead, and he was sentenced to five years of probation, including six months of home confinement, and to pay a $75,000 fine and forfeit his gains in excess of $400,000. According to the court, the defendant bought 1.6 million bottles of Henri’s Salad Dressing in May 2003, and they were labeled with “best when purchased by” dates ranging from January to June 2003. The defendant resold the dressing in discount stores, but pasted over the…
Category Archives Litigation
The Federal Circuit Court of Appeals has determined that a U.S. Department of Agriculture (USDA) Salmonella rule, which interfered with an egg producer’s sales for about two years, was not a compensable taking under the Fifth Amendment. Rose Acre Farms, Inc. v. U.S., No. 07-5169 (Fed. Cir., decided March 12, 2009). The case involved emergency regulations adopted in 1990 that restricted the sale of eggs from farms identified as infected with a type of Salmonella bacteria. The regulations diverted the eggs from three of Rose Acre’s farms from the table to other uses, such as in cake mixes, for 25 months and thus purportedly reduced the company’s profits. The company brought several lawsuits against the government, and the various issues raised were appealed several times. This appeal involved the “takings” issue only and was before the Federal Circuit for the second time. Under the Fifth Amendment, the government must compensate private…
A Florida resident has filed a putative class action lawsuit against General Mills, Inc., in federal court, alleging that its claims about Yo-Plus® yogurt violate the state’s deceptive and unfair trade practices law and constitute a breach of express warranty. Fitzpatrick v. General Mills, Inc., No. 09-60412 (S.D. Fla., filed March 17, 2009). Seeking to certify a class of Florida Yo-Plus® purchasers, the plaintiff alleges that the company cannot substantiate its claims that the yogurt’s trademarked “unique blend of live probiotic cultures and natural fiber,” referred to in marketing and on product labels as Optibalance™, “helps keep your digestive system right on track.” According to the complaint, the unaware consumer “is led to believe that General Mills’ blend of ‘probiotic’ bacterial strains and small amounts of fiber will, in fact, improve the digestive systems of healthy people. In fact, people’s bodies already maintain the proper balance of intestinal bacteria.” The…
The day after Ronald Kuiper died, a jury reportedly awarded the former popcorn factory worker and his wife $7.55 million in litigation against one of the companies that supplied the flavorings with diacetyl used by his employer. Kuiper v. Givaudan Flavors Corp., No. 06-4009 (N.D. Iowa, verdict rendered March 12, 2009). Kuiper apparently alleged that he contracted broncholitis obliterans from his workplace exposure to the butter-flavoring chemical, and he reportedly died from complications of the disease. According to a news source, the jury deliberated for six days following the month-long trial and declined to award punitive damages. The Kuipers, who previously settled claims against other flavorings manufacturers for undisclosed amounts, alleged design defect, failure to warn and failure to test. Givaudan reportedly argued, among other matters, that Kuiper’s claims were barred by a two-year statute of limitations. See Product Liability Law 360 and Mealey’s Emerging Toxic Torts, March 13, 2009.
According to a news source, the executive vice president of China’s highest court has indicated that the courts will begin accepting the paperwork filed by parents who decided not to participate in the government’s compensation plan for injuries allegedly suffered by children who consumed melamine-tainted milk products. Court official Shen Deyong reportedly said in an online interview, “The courts have done the preparation work and will accept the compensation cases at any time.” He also reportedly indicated that more than 95 percent of the 300,000 victims’ families had accepted compensation. An organizer for those who held out said that hundreds are prepared to file individual claims, many of which the courts previously refused. Under China’s legal system, the courts must first accept the paperwork and then decide whether to act on the claims by opening an investigation or rejecting them. See Associated Press, March 3, 2009.
An Italian magistrate has reportedly determined that Nestlé Italia and Tetra Pak International are liable for the “psychological prejudice” of parents who gave their daughters milk purportedly contaminated with chemicals from the carton. The milk was apparently withdrawn from sale in France, Spain, Portugal, and Italy in late 2005, over concerns about the leaching of IsopropilThioXantone, a chemical used in printing on the cartons, into the dairy product. Millions of liters of liquid baby milk were reportedly recalled, and a consumers’ organization indicates that the latest ruling is the first in Italy since the product was withdrawn from the market. See Agence France Presse, March 2, 2009.
Since it was filed in 2002, the lawsuit filed by a putative class of teenagers alleging obesity-related injury purportedly caused by reliance on deceptive advertising for fast food has been appealed twice to the Second Circuit Court of Appeals and is now before its third trial court judge. Pelman v. McDonald’s Corp., No. 02-7821 (S.D.N.Y., filed Sept. 30, 2002). The case was reassigned to Judge Kimba Wood on February 27, 2009. Judge Wood was one of former President Bill Clinton’s picks for attorney general, but withdrew from consideration after questions were raised about the immigrants she had hired as household help. Nominated to the federal court bench in 1988 by President Ronald Reagan, the Harvard-educated jurist has served as chief judge of her district since 2006.
A federal court has granted the meat industry’s motion for a preliminary injunction and ordered California not to enforce a law, adopted on January 1, 2009, that would have required the immediate euthanization of nonambulatory animals in slaughterhouses regulated by the Federal Meat Inspection Act. Nat’l Meat Ass’n v. Brown, No. 08-1963 (E.D. Cal., decided February 19, 2009). The court found that the plaintiffs had a strong likelihood of success on the merits of their claim that the state law is expressly and impliedly preempted by the federal statute and that they were likely to suffer irreparable harm because some proscribed conduct is punishable by criminal fines and the state is immune from paying for other potential monetary losses. Balancing the public interests involved, the court found that the safety of the public food supply and the humane treatment of animals are adequately protected by the federal law. According to a…
A federal court in Washington recently approved a class action settlement in a case filed against egg farmers who allegedly engaged in unfair, deceptive and improper conduct in the marketing and sale of omega-3 fortified eggs. Schneider v. Wilcox Farms, Inc., No. 07-01160 (W.D. Wash., filed January 12, 2009). As we reported in issue 226 of this Update, the complaint alleged that the eggs the defendant marketed and sold contained omega-3 fatty acids “without proven cardiovascular benefits” and charged a premium for them, while taking advantage of consumers’ limited knowledge about different kinds of omega-3 and “artificially inflating the perceived amount of beneficial omega-3 fatty acids” in their product. Without conceding liability, the defendants agreed to pay $2,500 to each of the two named plaintiffs and attorney’s fees of $160,000. The order dismisses the plaintiffs’ claims with prejudice and bars members of the settlement class, defined as “[a]ll persons who…
Seeking “substantial damages,” a company that makes wild bird food has filed a lawsuit against a supplier that allegedly sold it peanut by-products originating from the Georgia facility linked to the Salmonella contamination outbreak. The Scotts Co., LLC v. Cereal Byproducts Co., No. 09-108 (S.D. Ohio, filed February 17, 2009). According to the complaint, the defendant sold and shipped peanut by-products to the plaintiff in December 2008 and January 2009, after it was known that the outbreak originated in the Blakely, Georgia, facility owned and operated by the Peanut Corp. of America (PCA), and repeatedly “made false representations” that the by-products did not come from a potentially contaminated PCA facility. The plaintiff was allegedly forced to recall its suet wild bird food products and incurred unspecified costs and injury to goodwill. The complaint alleges breach of contract, negligent misrepresentation and violations of Ohio’s deceptive trade practices law.
