Two proposed class actions have been filed in California claiming false labeling of truffle-flavored olive oil. Schiffman v. Urbani Truffles, No. 17-935 (E.D. Cal., filed May 3, 2017); Quiroz v. Sabatino Truffles, No. 17-783 (C.D. Cal., filed May 3, 2017). The plaintiffs argue that the olive oil producers add 2,4 dithiapentane to flavor their products instead of truffles and sell the “truffle infusions” at markups as high as 1,400 percent over the price of plain olive oils. The actions claim violations of the Magnuson-Moss Warranty Act and state consumer protection laws. Details on similar lawsuits in New York appear in Issue 633 of this Update. Issue 634
Category Archives Litigation
A California federal court has approved a plan to publicize the settlement of a proposed class action filed against Safeway alleging the supermarket chain underfilled its canned tuna. In re Safeway Tuna Cases, No. 15-5078 (N.D. Cal., order entered May 4, 2017). The judge approved the settlement in March 2017 but was concerned that potential class members would be unaware of the dismissal of the case. The publicity plan requires the parties to issue press releases to major news outlets and legal publications in California and nationwide and post notice on a publicly searchable website. When that plan is complete, the court said, the action will be dismissed. Additional details on the settlement appear in Issue 628 of this Update. Issue 634
A consumer has filed a lawsuit alleging Mondelez International misleadingly markets Ginger Snaps cookies as healthy. Winn v. Mondelez Int’l, No. 17-2524 (N.D. Cal, removed to federal court May 3, 2017). The proposed class action claims that Ginger Snaps packages were marketed with the phrases “Made With Real Ginger and Molasses” and “Sensible Solutions,” leading consumers to believe the cookies were healthy despite allegedly containing “dangerous levels” of partially hydrogenated oils and high-fructose corn syrup. For alleged violations of California’s consumer protection laws, the plaintiff seeks class certification, damages, restitution, injunctive relief and attorney’s fees. Issue 634
Bumble Bee Foods, LLC has agreed to plead guilty to one felony count for its role in a conspiracy to fix prices of shelf-stable tuna and will pay a minimum $25 million fine. U.S. v. Bumble Bee Foods LLC, No. 17-CR-249 (N.D. Cal. May 8, 2017). According to the U.S. Department of Justice, Bumble Bee conspired with other seafood companies and their executives to inflate prices for canned and pouch tuna. Two Bumble Bee executives have already pleaded guilty to criminal charges; details appear in Issue 625 of this Update. “Today’s charge is the third to be filed—and the first to be filed against a corporate defendant—in the Antitrust Division’s ongoing investigation into price fixing among some of the largest suppliers of packaged seafood,” Acting Assistant Attorney General Andrew Finch said in a May 8, 2017, press release. “The division, along with our law enforcement colleagues, will continue to hold…
Candy maker Fannie May faces a proposed class action alleging the confectioner underfilled some of its 7-ounce chocolate boxes by as much as 50 percent. Benson v. Fannie May, No. 17-3519 (N.D. Ill., filed May 10, 2017). The allegations involve boxes of Hot Fudge Truffles, Mint Meltaways , Peanut Butter Buckeyes, milk and dark Sea Salt Caramels, regular and bite-sized Pixies , milk and dark Carmarsh and Trinidads sold at the company’s retail stores and on its website as well as other retail and online outlets nationwide. The plaintiffs allege that nonfunctional slack-fill in the company’s nontransparent boxes violates the federal Food, Drug and Cosmetic Act as well as Illinois consumer protection statutes and seek class certification, equitable relief, monetary damages and attorney's fees. Issue 634
Consumer advocacy group Beyond Pesticides has filed suit against the maker of Mott’s applesauce products, alleging the term “natural” on its labels misleads consumers because the products contain the pesticide acetamiprid. Beyond Pesticides v. Dr Pepper Snapple Grp., No. 2017 CA 003156 B (D.C. Super. Ct., filed May 5, 2017). The plaintiff asserts that the “natural” and “All Natural Ingredients” labeling on several varieties of Mott’s applesauce mislead consumers who would not expect the products to contain a “synthetic, unnatural chemical.” Claiming violations of the District of Columbia’s Consumer Protection Procedures Act, the plaintiff seeks injunctive and equitable relief—including the establishment of a “community fund” to raise consumer awareness of acetamiprid—and attorney’s fees. Issue 634
A California federal court has ruled that plaintiffs who admitted to reading Healthy Beverage’s website cannot sue the company for listing evaporated cane juice (ECJ) on the ingredient list rather than sugar. Swearingen v. Healthy Beverage, No. 13-4385 (N.D. Cal., order entered May 5, 2017). The plaintiffs initially filed a putative class action claiming Healthy Beverage misled consumers by listing evaporated cane juice on their product labels, but they later alleged in an amended complaint that the company’s website “is incorporated into the label for each of Defendants’ products” and that the website states “cane juice is natural sugar.” Given those allegations, the court dismissed the suit with prejudice, holding, “An allegation of reliance, which is necessary for all of plaintiffs’ claims” under California consumer protection laws and unjust enrichment, was “impossible . . . [t]he Court will not allow them a third bite at the apple to amend a…
A federal court has ruled that Sazerac Co. may take Fetzer Vineyards, Inc. to trial for its trade-dress claims but cannot seek damages because it failed to disclose damage calculations in a timely manner. Sazerac Co. v. Fetzer Vineyards, Inc., No. 15-4618 (N.D. Cal, order entered April 27, 2017). Sazerac, maker of Buffalo Trace bourbon, alleged Fetzer’s use of a buffalo and the words “bourbon barrel aged” on the label of its 1000 Stories zinfandel infringed its federal trademark and trade-dress rights. Sazerac “demonstrated a triable issue whether consumers are likely to be confused by Fetzer’s buffalo and trade dress,” the court found. However, Sazerac indicated it would provide damage calculations based on expert testimony, but it failed to propose a valid methodology until shortly before the settlement conference, when it instead presented calculations based on third-party licensing agreements. Because of the irremediable prejudice to Fetzer, the court ruled that…
A Maryland consumer alleges that when she used coupons offering a free sandwich with the purchase of an initial sandwich, Burger King locations in Maryland, Virginia, the District of Columbia and Florida charged her more than they would have if she had purchased sandwiches without the coupons. Anderson v. Burger King, No. 17-1204 (D. Md., filed May 2, 2017). The complaint asserts that Burger King’s coupon promotion offers a “free” sausage, egg and cheese breakfast “Croissan’wich” to customers who buy one Croissan’wich at the regular price. The plaintiff claims she went to a Maryland location, presented a coupon and was charged $3.19 for the two sandwiches she received. She later purchased a single sandwich and was charged only $2.16, the complaint alleges. She found similar results at locations in (i) the District of Columbia, where the two coupon sandwiches cost $4.61 and the single sandwich cost $1; (ii) Virginia, where…
Two putative class actions allege that Trader Joe’s “Black Truffle Flavored” olive oil and Monini’s “White Truffle Flavored” olive oil are flavored with synthetic chemicals rather than truffles. Brumfield v. Trader Joe’s, No. 17-3239 (S.D.N.Y, filed May 2, 2017); Jessani v. Monini N. Am., No. 17-3257 (S.D.N.Y., filed May 2, 2017). The plaintiffs argue that the products are sold for significantly more—34 percent more for Trader Joe’s and 459 percent more for Monini—than olive oil without additional flavoring. Claiming violations of the Magnuson-Moss Warranty Act and state consumer protection statutes, the plaintiffs seek class certification, an injunction, damages, restitution and attorney’s fees. Issue 633
