The plaintiff in a purported class action asserting that Herr Foods Inc. mislabels its packaged snacks as “natural” has filed a motion to disqualify defense counsel, alleging the attorney repeatedly made “extortionate threats” and committed professional misconduct. Whitaker v. Herr Foods, Inc., No. 16-2017 (E.D. Penn., motion filed December 14, 2016). The plaintiff’s motion follows Herr Foods’ motion for summary judgment, which asserted that the plaintiff could not possibly have purchased the products he claimed and that he is “a wholly inadequate lead plaintiff” because of “his faulty memory,” “his lengthy history of felony convictions involving theft and dishonesty and his potential mental health problems.” The plaintiff’s motion for disqualification alleges the defense attorney told the plaintiff that Herr Foods directed him to file for sanctions and refer the plaintiff to the district attorney’s office for an attempted criminal extortion investigation. “If you would like to talk about an agreement…
Category Archives Litigation
A consumer has filed a projected class action against Tradewinds Beverage Co. alleging the company’s iced tea products are misleadingly labeled as natural despite containing caramel color. Martin v. Tradewinds Beverage Co., No. 16-9249 (C.D. Cal., filed December 14, 2016). The plaintiff argues that she regularly paid a premium for Tradewinds Iced Tea products believing them to be made of all-natural ingredients. For alleged violations of California’s consumer-protection statutes, she seeks a corrective advertising campaign, destruction of all misleading advertising materials, restitution, damages and attorney’s fees. Issue 626
A California federal court has dismissed a lawsuit alleging Kellogg Co. misrepresents its Mother’s® Cookies products as free of trans fats despite containing partially hydrogenated oil (PHO). Hawkins v. Kellogg Co., No. 16-147 (S.D. Cal., order entered December 13, 2016). Details about the dismissal of a similar case involving the same plaintiff appear in Issue 592 of this Update. The court held that the plaintiff had standing to sue based on the health effects of inflammation and organ damage associated with the consumption of PHO, noting that Kellogg’s response to the arguments focused on the insufficiency of speculative future risks for standing rather than the current effects. The court then turned to federal law governing the plaintiff’s claims and found that because PHO is currently permitted in food until June 2018, the plaintiff could not plausibly allege that Kellogg violated federal law. Further, her state law claims were preempted by…
A California federal court has granted the U.S. Department of Agriculture’s (USDA’s) motion for summary judgment in a case alleging the agency acted arbitrarily in denying a petition to prohibit foie gras produced from force-fed poultry. Animal Legal Def. Fund v. USDA, No. 12-4028 (C.D. Cal., order entered December 14, 2016). In the petition for rulemaking, several animal rights organizations and individuals argued force-feeding poultry caused hepatic lipidosis in the animals, rendering them unhealthy and unsafe for consumption; USDA’s Food Safety Inspection Service (FSIS) disagreed, finding that the buildup of fat from force-feeding did not make the liver unsafe to consume, unlike buildup related to disease. The court first determined that the Animal Legal Defense Fund and other plaintiff organizations had standing to sue, but the plaintiff individuals did not. Turning to the merits of the case, the court considered the plaintiffs’ three challenges to FSIS’s decision: (i) “its explanation for…
A consumer has filed a projected class action alleging Newman’s Own, Inc. misleadingly markets its pasta sauce products as natural despite containing citric acid. Wong v. Newman’s Own, Inc., No. 16-6690 (E.D.N.Y., filed November 30, 2016). The complaint asserts the company “deceptively used the term ‘natural’ to describe a product containing ingredients that have been either extensively chemically processed or fundamentally altered from their natural state and thus cannot be considered ‘minimally processed.’” The plaintiff admits “there is not an exacting definition of ‘natural’ in reference to food,” but cites the Merriam-Webster Dictionary, a decision from the National Advertising Division of the Better Business Bureau and the U.S. Department of Agriculture’s 2005 Food Standards and Labeling Policy Book to support his definition. For alleged violations of New York’s consumer-protection statutes, the plaintiff seeks class certification, restitution, damages, an injunction and attorney’s fees. Issue 625
Walter Scott Cameron, a former senior vice president of sales at Bumble Bee Foods, LLC has pleaded guilty to combination and conspiracy to fix, raise and maintain the prices of packaged seafood, including canned tuna. U. S. v. Cameron, No. 16-CR-0501 (N.D. Cal., information filed December 7, 2016). The criminal information accuses Cameron of conspiring with other seafood companies to fix prices of seafood sold in the United States. "Today’s charge is the first to be filed in the Antitrust Division’s ongoing investigation into price fixing among some of the largest suppliers of canned tuna and other packaged seafood,” said an attorney with the U.S. Department of Justice’s Antitrust Division in a December 7, 2016, press release. “All consumers deserve competitive prices for these important kitchen staples, and companies and executives who cheat those consumers will be held criminally accountable.” Issue 625
A California federal court has denied Kraft Food Group Inc.’s request to stay class action litigation alleging the company’s fat-free cheese product is misleadingly labeled “natural” because it contains artificial coloring, finding that the U.S. Food and Drug Administration’s (FDA’s) expected guidance on the term “natural” does not affect the issues of the case. Morales v. Kraft Foods Grp. Inc., No. 14-4387 (C.D. Cal., order entered December 6, 2016). A week earlier, the same court denied Kraft’s motion for summary judgment on the grounds that triable issues existed in the case, including (i) “whether consumers are likely to believe that ‘artificial color’ is not an artificial ingredient if it is produced by a natural product”; (ii) “whether such belief is material to customers’ purchasing decisions”; and (iii) “whether all artificial colors, regardless of source, are artificial ingredients.” Details about the certification of the class appear in Issue 570 of this…
A Brazilian appeals court has reportedly affirmed a lower court’s order to AmBev S/A to pay a former employee about $14,800 for moral damages related to his job as a beer taster, which he alleged led to his alcoholism. AmBev argued that it was not liable because the employee’s beer-tasting activities were voluntary. The court disagreed, finding that employers have a duty to avoid exposing their employees to the “inherent risks of the job activities,” even if voluntary. AmBev failed to demonstrate the proper care toward the plaintiff’s health, the court held, because it did not monitor his health throughout his employment as a beer taster, it did not train him on the symptoms of alcoholism or other related conditions, and it told him that if he was declared addicted he would need to seek treatment himself. See Superior Council of Labor Justice (Conselho Superior da Justiça do Trabalho), November 28,…
The Fourth Circuit Court of Appeals has upheld a lower court’s determination that the U.S. Food and Drug Administration (FDA) had the discretion to issue an incorrect contamination warning about Salmonella-tainted tomatoes, which devalued a tomato farmer’s crop by $15 million. Seaside Farm v. United States, No. 15-2562 (4th Cir., order entered December 2, 2016). Details about the lower court’s decision appear in Issue 588 of this Update. The lawsuit stemmed from FDA’s warning against eating raw tomatoes in 2008 following an outbreak of Salmonella that was later traced to jalapeno and Serrano peppers. Seaside Farm filed suit alleging FDA negligently issued the warning, impairing the value of its crop. The trial court found that FDA was acting within its discretion to issue the warning. Seaside argued that FDA’s warning was overly broad and based on insufficient evidence, noting that the agency failed to test any tomatoes before issuing its…
A consumer has filed a putative class action alleging Kellogg Co.’s Special K® Fruit & Yogurt cereal is misleadingly labeled with pictures of strawberries and blackberries despite that dried apples are listed as the only fruit contained in the product. George v. Kellogg Co., No. 16-1887 (E.D. Mo., removed to federal court December 1, 2016). Asserting that she paid a premium price for the product believing it to contain strawberries and blackberries, the plaintiff argues that the labeling violates the Federal Food, Drug, and Cosmetic Act and its labeling regulations. For an alleged violation of the Missouri Merchandising Practices Act and unjust enrichment, she seeks class certification, damages and attorney’s fees. Issue 625
