Two consumers have filed lawsuits against Genki Sushi, Koha Foods and Sea Port Products Corp. alleging they distributed contaminated scallops linked to as many as 206 infections of Hepatitis A. Mauk v. Genki Sushi USA Inc., No. 16-1-1573-08 (Haw. Cir. Ct., filed August 16, 2016); Cuelho v. Genki Sushi USA Inc., No. 16-1-1612-08 (Haw. Cir. Ct., filed August 23, 2016). The plaintiff in one case alleges he was infected with Hepatitis A after eating contaminated scallops, began feeling symptoms that day and ultimately required a seven-day stay in the hospital to recover. The second plaintiff, represented by Bill Marler of Marler Clark, consumed allegedly contaminated food at Genki Sushi and received a Hepatitis A vaccine after learning of the potential exposure. Both lawsuits pursue strict product liability and negligence claims against the defendants and seek to represent a class of affected plaintiffs. Issue 615
Category Archives Litigation
A consumer has filed a putative class action alleging that EN-R-G Foods’ Honey Stinger Gluten Free Organic Maple Waffles do not contain maple syrup as implied by the product’s name and packaging. Johnson v. EN-R-G Foods, No. 6258 (C.D. Cal., filed August 19, 2016). The waffle package features “a prominent image of a maple leaf and maple syrup splashed on the waffle,” leading consumers to believe that the product ingredients include maple syrup, the plaintiff asserts. For allegations of fraudulent inducement, unjust enrichment and violations of California law, he seeks class certification, damages, an injunction and attorney’s fees. Issue 615
A consumer has filed a purported class action against PepsiCo and subsidiary Izze Beverage Co. alleging Izze carbonated juice drinks are misleadingly marketed as containing “no preservatives” despite the presence of citric or ascorbic acid. Lindberg v. PepsiCo Inc., No. 16-6569 (S.D.N.Y., filed August 19, 2016). The complaint also challenges Izze’s claim that each bottle “delivers two servings of fruit based on [U.S. Department of Agriculture’s (USDA’s)] 2010 Dietary Guidelines,” which is misleading because “the USDA did away with this measure of servings in its 2010 Guidelines precisely because it misleads consumers about how much of various food groups they should eat or drink.” The plaintiff asserts the dietary guidelines claim is also misleading because it “falsely suggests that Izze Sodas contain the nutritional value and health benefits that can be obtained by eating fruit. Whole fruit contains fiber, vitamins, and minerals. Even if Izze Sodas were originally manufactured with…
A consumer has filed a putative class action against Eight O’Clock Coffee, a subsidiary of Tata Global Beverages, alleging the company sells varieties of coffee in identical bags but fills them to different levels, amounting to impermissible slack-fill. Sorgenti v. Eight O’Clock Coffee Co., No. 16-6295 (S.D.N.Y., filed August 9, 2016). The complaint compares Eight O’Clock’s “iconic red flexible metallic bag” filled with 12 ounces of its basic coffee product to the “same sized bags” of its Explorations line—including 100% Colombian Peaks, Central Highlands and African Plains varieties—which contain 11 ounces of product. In addition, other product lines contain 11.5 ounces of product but are sold in the same red packaging, the plaintiff alleges. “As a consequence, consumers are being misled into believing that they are buying a larger volume of Eight O’Clock Coffee’s specialty coffee products than is actually contained in the bag,” the complaint asserts. “And more significantly,…
A California federal court has dismissed a lawsuit against Yakult USA at the request of the plaintiff following two denials of class certification and standing for an injunction. Torrent v. Yakult USA Inc., No. 15-0124 (C.D. Cal., S. Div., order entered August 23, 2016). Yakult argued that the court should refuse to grant the dismissal because the plaintiff was seeking to ensure appellate jurisdiction, but the court rejected that logic. “It would be inappropriate for this Court to refuse Plaintiff’s voluntary dismissal with prejudice to attempt to force Plaintiff’s continued litigation of these claims and preclude [appellate] review,” the court found. The plaintiff previously attempted to obtain standing for an injunction by purchasing Yakult again after the court told him he would be unlikely to purchase the product in the future because he believed the healthful claims of the product to be untrue. Details about the denials of certification and…
A New York federal court has dismissed a lawsuit against Abbott Laboratories Inc. alleging the company’s Similac® Advance® infant formula is sold as organic but contains ingredients impermissible in organic foods under U.S. Department of Agriculture (USDA) regulations, finding the claims preempted by the Organic Foods Production Act of 1990 (OPFA). Marentette v. Abbott Labs., No. 15-2837 (E.D.N.Y., order entered August 23, 2016). Both parties acknowledged that the infant formula was certified organic by Quality Assurance International, an organization accredited by USDA to certify organics. The court considered and found persuasive an Eighth Circuit Court of Appeals decision holding that challenges to an accredited certifying agent’s decision were preempted by the OFPA while challenges to the underlying facts were not. Agreeing with the circuit court’s reasoning, the court “finds that such a challenge is preempted because ‘[t]o the extent state law permits outside parties, including consumers, to interfere with or second…
A California federal court has refused to dismiss a consumer’s putative class action alleging Nature’s Way misrepresents its coconut oil as a healthy alternative to butter, margarine and other cooking oils despite containing higher levels of saturated fat. Hunter v. Nature’s Way Products, No. 16-0532 (S.D. Cal., order entered August 12, 2016). The court dismissed Nature’s Way’s argument that it was not making a nutrient content claim, finding that a “Variety of Healthy Uses” phrase on the label was near enough to “representations about ‘Non-hydrogenated; No trans fat’ and claims regarding medium chain triglyceride content” to plausibly suggest a nutrient content claim. The claim of misrepresentation was plausibly pleaded as well, the court held, but granted Nature’s Way’s motion to dismiss claims under California’s Unfair Competition Law for lack of specificity. The court also refused to find standing to pursue injunctive relief because the plaintiff was unlikely to purchase the…
Two lawsuits challenging the inclusion of “evaporated cane juice” (ECJ) on ingredient lists will continue in light of the U.S. Food and Drug Administration’s (FDA) July 2016 nonbinding guidance recommending that “sugar” be listed instead. A California federal court refused to dismiss a lawsuit against Lifeway Foods alleging its kefir product packaging misled consumers into believing it contained no added sugar by including ECJ in the ingredients list. Figy v. Lifeway Foods Inc., No. 13-4828 (N.D. Cal., order entered August 16, 2016). The court found the plaintiff’s claims to be properly pleaded and was not persuaded by Lifeway’s argument that the expiration dates on the labels attached to the complaint suggested that the products were purchased after the plaintiff knew what ECJ is because the labels were merely examples of the product packaging rather than the specific products the plaintiff purchased. Details about Lifeway’s motion to the court arguing the…
Restaurant chain Tasty Burger has reportedly threatened to file an infringement action against Chipotle Mexican Grill Inc. following the announcement of Chipotle’s new burger restaurant concept, Tasty Made. Tasty Burger argues that Tasty Made’s name and logo infringe upon Tasty Burger’s established marks, which have been used in commerce since 2010; in addition to the similar name, both logos feature white writing on a red background, albeit in different typefaces. Tasty Burger sent a cease-and-desist letter to Chipotle on July 19, 2016, but CEO David DuBois told the Chicago Tribune that the company ignored it. DuBois also told the paper he contacted the media about the dispute because he is “sick of getting calls from people asking me if we got absorbed.” In response, Chipotle told the Tribune that “there is sufficient difference between the names and logo marks so as not to cause consumer confusion, and we believe both…
A New Jersey federal court has transferred to California a lawsuit alleging that The Quaker Oats Co. misleads consumers with the packaging of its Maple & Brown Sugar oatmeal product because it does not contain maple syrup or maple sugar. Gates v. Quaker Oats Co., No. 16-1944 (D.N.J., order entered August 3, 2016). The complaint “makes essentially identical allegations against Quaker” as three other putative class actions pending in other federal courts, the court notes, including the first-filed case in California. The Judicial Panel on Multidistrict Litigation denied an Illinois plaintiff’s request to consolidate the cases into multidistrict litigation, but the panel suggested that the other parties transfer their lawsuits to California to streamline the process. Quaker moved to transfer the case from New Jersey to California, and the plaintiff did not oppose; accordingly, the court granted the motion to transfer. Issue 614
