A putative class action plaintiff has filed a lawsuit alleging that Ghirardelli Chocolate Co. puts fewer chocolates in packages of individually wrapped, single-serving chocolate squares than the number advertised on labels. Brungard v. Ghirardelli Chocolate Co., No. 17-5873 (N.D. Cal., filed October 12, 2017). The plaintiff asserts that he bought chocolates in 10-, 17- and 40-count bags in various flavors “many times over several years” and allegedly found "one less individually-wrapped square in the packages he purchased.” According to the complaint, Ghirardelli told the plaintiff that the contents were based on weight rather than the printed servings on the label. Claiming violations of the California Consumer Legal Remedies Act, unfair business practices, unjust enrichment, consumer fraud, negligent misrepresentation, intentional misrepresentation and false advertising, the plaintiff seeks class certification, damages, injunctive relief, restitution and attorney’s fees.
Category Archives Litigation
Burger King has agreed to settle a putative class action alleging some of the chain’s locations overcharged consumers who presented buy-one-get-one-free coupons for breakfast sandwiches, charging them more than they would have paid without the coupons. Anderson v. Burger King, No. 17-1204 (D. Md., motion filed October 11, 2017). According to the plaintiff’s unopposed motion for settlement, Burger King began an internal investigation of the complaint’s allegations and promptly sent a software update to franchises and written instructions to restaurant cashiers to ensure the problem stopped. If the class is certified for the purposes of the settlement, class members who have receipts will receive $5 payments and those without will receive $2 gift cards.
Danny Meyer, David Chang, Jonah Miller, Tom Colicchio and other restaurateurs have been named as defendants in a putative class action that alleges a business strategy to eliminate tipping and replace it with a service charge of at least 20 percent is price-fixing and a conspiratorial restraint of trade that violates the federal Racketeer Influenced and Corrupt Organizations Act and Sherman Act. Brown v. 140 NM LLC, No. 17-5782 (N.D. Cal., filed October 5, 2017). The complaint alleges that the restaurateurs' agreement constitutes price-fixing because the restaurants involved conspired to raise their prices simultaneously. Meyer, CEO of Union Square Hospitality Group, is alleged to have spearheaded the “conspiracy.” The complaint cites dozens of newspaper articles, television and radio interview transcripts, trade group meetings and tweets in which Meyer and other defendants discussed the reasons for implementing the change and explaining the competitive advantages of acting as a group. According to…
A California federal court has dismissed a consolidated putative class action alleging that Quaker Oats falsely advertised breakfast cereals as containing maple syrup or sugar, holding that the claims were preempted by the Food, Drug and Cosmetic Act (FDCA) and the Nutritional Labeling and Education Act amendment (NLEA), despite a “maple syrup” exception that allows states to regulate maple syrup. In re Quaker Oats Maple & Brown Sugar Instant Oatmeal Litig., No. 16-1442 (C.D. Cal., entered October 10, 2017). The plaintiffs asserted that the NLEA’s preemption provision contains an exception for state laws applicable to maple syrup. The court disagreed, holding that each of the subsections of the exception permit states to regulate what kinds of products may be sold as maple syrup and that the plain language of the subsections did not permit a broader reading to cover “any claim relating to maple syrup.” If Quaker uses the word…
The European Court of Justice (ECJ) has ruled that all online and mail-order sellers of organic products—including small producers and sellers that would otherwise be exempt from the requirements—must obtain sales permits to avoid fraud and mislabeling and maintain “consumer confidence” in products labeled as organic. Kamin und Grill Shop GmbH v. Zentrale zur Bekampfung unlauteren Wettbewerbs eV, No. C-289/16 (ECJ, entered October 12, 2017). Kamin, a mail-order and internet business, began marketing spice mixes in 2012 that it labeled as organic. A German consumer advocacy group challenged the sales, and the German Bundesgerichtshof (Federal Court of Justice) referred the case to ECJ. The court found that in the case of online or mail-order retail sales, product storage and delivery by intermediaries created a risk of re-labeling, exchange or contamination so the “direct” sales exemption for small, face-to-face sellers should not be construed broadly.
The U.S. Supreme Court has denied a petition for a writ of certiorari asking the court to resolve a split among circuit courts on the question of whether putative class action plaintiffs must propose an administratively feasible method to identify potential class members. Conagra Brands, Inc. v. Briseno, No. 16-1221 (U.S., denial entered October 10, 2017). The case centers on a consumer's allegation that Conagra Brands, Inc.'s Wesson cooking oil is mislabeled as "100% Natural" because it contains genetically modified ingredients. Conagra appealed a Ninth Circuit decision that joined the Sixth and Seventh Circuits in holding that independent administrative feasibility is not needed for a class action to succeed. The Second, Third, Fourth and Eleventh Circuits have allowed the additional requirement, which companies have used to argue that their putative class actions should be dismissed.
In a settlement with California, The Gatorade Co. has agreed to stop suggesting that drinking water harms athletes. California v. Gatorade Co., No. BC676734 (Cal. Super. Ct., Los Angeles Cty., entered September 21, 2017). Gatorade launched a mobile game featuring Usain Bolt that featured the runner speeding up when he ran over the Gatorade logo and slowing down when he touched water droplets. The complaint alleged that players were instructed to “Keep Your Performance Level High By Avoiding Water” and claimed Gatorade violated state unfair competition and false advertising laws. Under the settlement agreement, Gatorade will no longer make the “Bolt!” app available in any form that “creates the misleading impression” that water will hinder athletic performance or that water should be avoided. Gatorade also agreed not to make “statements that disparage water or the consumption of water” and will include a provision in contracts with endorsers that “clearly and…
Penguin Trading, Inc., the maker of Fruit Bliss organic dried fruits, faces a putative class action alleging the company’s products contain as much as 80 percent slack-fill. Buso v. Penguin Trading, Inc., No. 17-7025 (C.D. Cal., filed September 22, 2017). The plaintiff argues that he would not have bought Fruit Bliss’ Organic Deglet Nour Dates, sold in opaque containers, if he knew the container was “substantially empty.” Asserting violations of California consumer-protection laws, the plaintiff seeks class certification, compensatory and punitive damages, injunctive relief and attorney’s fees.
Jimmy Buffett’s Margaritaville Enterprises, which owns trademarks on the phrase “It’s Five O’Clock Somewhere" and several variations, has challenged The Veteran Beverage Company's application to register "It’s 1700 Hours Somewhere.” Margaritaville Enters. v. Veteran Beverage Co., No. 91236809 (T.T.A.B., filed September 22, 2017). The notice alleges that the trademark application is for beer, which is closely related to Margaritaville’s beverage and bar services marks, and that the only difference is that it shows 5:00 p.m. in military time.
Cookie Do Inc., which sells raw cookie dough desserts, allegedly caused consumers to feel gastrointestinal pain after they ate the products, which are advertised as “ready to eat,” with “NO chance of salmonella” and “NO chance of food-borne illness.” Canigiani v. Cookie Do, Inc., No. 17-7182 (S.D.N.Y., filed September 21, 2017). The complaint cites Yelp posts to argue that other consumers experienced similar symptoms and illnesses. Claiming violations of New York consumer-protection laws, fraudulent concealment, fraudulent inducement, negligent misrepresentation and unjust enrichment, the plaintiffs seek class certification, damages, injunctive relief and attorney’s fees.
