A California federal court has dismissed a claim of negligent misrepresentation in a lawsuit alleging that Safeway Inc. underfilled its tuna cans by 10 to 20 percent, according to testing conducted by the U.S. National Oceanic and Atmospheric Administration. In re Safeway Tuna Cases, No. 15-5078 (N.D. Cal., order entered July 13, 2016). Details about the complaint appear in Issue 584 of this Update. In a motion to dismiss, Safeway challenged the plaintiffs’ claims of unjust enrichment and negligent misrepresentation. The court dismissed arguments that unjust enrichment is not a cause of action in California, finding that the claim could be construed as a quasi-contract claim. Safeway also argued that the negligent misrepresentation claim was barred by the economic loss rule, which “requires a purchaser to recover in contract for purely economic loss due to disappointed expectations, unless he can demonstrate harm above and beyond a broken contractual promise.” Because…
Category Archives Litigation
One day after U.K. citizens voted to leave the European Union, Samuel Adams® brewer Boston Beer Co. filed an application with the U.S. Patent and Trademark Office to register “Brexit” for use on hard cider products. U.S. Trademark Application Serial No. 87083390 (filed June 24, 2016). Two other applications for Brexit marks were filed the same day in the categories of dietary supplements and clothing. A Boston Beer Co. spokesperson reportedly declined to detail the company’s plans for its Brexit mark. See The Wall Street Journal, June 29, 2016. Issue 610
The Animal Legal Defense Fund (ALDF) has reportedly filed a lawsuit against Hormel Foods challenging the company’s Natural Choice® brand of lunch meats and bacon, which it advertises as “100% Natural” and “All-Natural.” In a June 30, 2016, press release, an ALDF attorney argued that the Natural Choice® meats “come from the same pigs and the same giant, factory slaughterhouses that are used for the company’s canned Spam® products” and that the products are treated with “acid starter culture” to produce artificial preservatives. “Meat companies like Hormel have been quick to pounce on misconceptions about what ‘natural’ means,” Animal Legal Defense Fund Executive Director Stephen Wells was quoted as saying in the press release. “As an organization dedicated to transparency in animal agriculture and truth in meat advertising, the Animal Legal Defense Fund is standing up to vindicate the rights of deceived consumers and to prevent Hormel from wrongfully gaining…
A California federal court has granted summary judgment to Pom Wonderful LLC in its trademark lawsuit against Pur Beverages Inc., which sells a pomegranate-flavored beverage under the name “Pur Pom.” Pom Wonderful LLC v. Hubbard, No. 13-6917 (C.D. Cal., order entered June 29, 2016). Pom filed a lawsuit alleging infringement of the “pom” mark, and Pur defended its use by arguing that Pom’s stylized use of the mark—a heart-shaped “O”—prevented Pom from claiming ownership of the non-stylized mark. The court disagreed, finding that the “stylized lettering does not alter the pronunciation or perception of the word; the standard character mark is both aurally and visually indistinguishable from the mark bearing a heart-shaped ‘O.’” Information about the Ninth Circuit decision reversing a lower court’s decision in favor of Pur Beverages appears in Issue 550 of this Update. Issue 610
A California federal court has granted preliminary approval for a settlement agreement in a lawsuit alleging PepsiCo products contain levels of 4-Methylimidazole (4-MEI) exceeding the legally permissible amount under the state’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Sciortino v. PepsiCo Inc., No. 14-0478 (N.D. Cal., order entered June 28, 2016). Under the settlement, PepsiCo has agreed “to require its caramel coloring suppliers to meet certain 4-MeI levels in products shipped for sale in the United States, ensuring the 4-MeI concentration levels will not exceed the level of 100 parts per billion, and to test the covered products pursuant to an agreed protocol.” The court noted that the injunctive relief is the same as the agreement in an action brought by the Center for Environmental Health (CEH) alleging similar facts. “However, the Settlement Agreement will ‘enhance the CEH settlement by: (1) expanding the geographic scope of…
The Eighth Circuit Court of Appeals has upheld the legality of three-month prison sentences handed down to former Quality Egg, LLC executives Austin “Jack” DeCoster and his son Peter, former officials of the company deemed responsible for a 2010 Salmonella outbreak traced to its Iowa egg farms. United States v. Quality Egg, LLC, No. 15-1890 (8th Cir., order entered July 6, 2016). Convicted of misdemeanor violations of the federal Food, Drug, and Cosmetic Act (FDCA), the DeCosters argued their sentences were unconstitutional under the Due Process Clause and the Eighth Amendment because incarceration for their offenses is either altogether inappropriate or disproportionate to the crimes. Upon a de novo review of the case, the appeals court confirmed that “the DeCosters are liable for negligently failing to prevent the salmonella outbreak.” Further, the men’s sentences did not violate the Due Process Clause because the sentences were “relatively short” and the “convictions…
A consumer has filed a putative class action against Mondelez International Inc., maker of Sour Patch Kids, alleging the company sells 28 pieces of candy in a non-transparent cardboard package capable of holding 50 pieces. Izquierdo v. Mondelez Int’l Inc., No. 16-4697 (S.D.N.Y., filed June 20, 2016). The complaint asserts that Mondelez intentionally sells Sour Patch Watermelon in oversized packages in violation of state and federal law. For allegations of misrepresentation, fraud and unjust enrichment as well as violations of New York consumer-protection statutes, the plaintiff seeks class certification, damages, restitution, an injunction requiring more accurate packaging and attorney’s fees. Issue 609
A consumer has filed a putative class action against Herr Foods Inc., maker of potato chips, popcorn and cheese curls products, alleging the company mislabels its foods as preservative-free despite containing citric acid. Hu v. Herr Foods Inc., No. 16-3313 (E.D.N.Y., filed June 20, 2016). The complaint alleges Herr seeks “to capitalize on consumers’ preference for natural products and the association between such products and a wholesome way of life” by labeling the products as free of preservatives, but the products contain citric acid, “a non-natural, chemically processed ingredient and preservative.” For allegations of misrepresentation, breach of warranties and unjust enrichment as well as violations of New York consumer-protection statutes, the plaintiff seeks class certification, restitution, damages, an injunction and attorney’s fees. Issue 609
The Julia Child Foundation for Gastronomy and the Culinary Arts has filed a lawsuit against Airbnb Inc. alleging the home-sharing company used Child’s name and likeness without permission in an advertised promotion. Julia Child Found. For Gastronomy & Culinary Arts v. Airbnb Inc., No. 16-2626 (Cal. Super. Ct., Santa Barbara Cty., filed June 22, 2016). According to the complaint, Airbnb contacted the foundation in April 2016 requesting permission to use the famed American chef and author’s name and likeness in an ad promoting a free night’s stay at a French property Child and her husband had used as a summer home. “Consistent with Mrs. Child’s longstanding and widely-known policy of politely refusing all requests to associate her name or image with commercial products and brands,” the foundation denied the request, then discovered that Airbnb used her image in its marketing campaign anyway. The foundation seeks a preliminary and permanent injunction,…
Siding with the owners of the Empire State Building, the Trademark Trial and Appeal Board has refused to register a logo for “NYC Beer” featuring a drawing of the building. ESRT Empire State Bldg. v. Liang, No. 91204122 (T.T.A.B., order entered June 17, 2016). Claiming ownership of a trademark in a line drawing featuring the building, ESRT Empire State Building filed an opposition to Michael Liang’s application to register a black-and-white image resembling the Empire State Building circled by a black ring and the words “NYC Beer.” TTAB found that the image was likely to dilute ESRT’s mark, finding that Liang’s description in his application of “a building resembling the Empire State Building” belied his argument that the design could be a different building. Accordingly, the board refused to grant the trademark. Issue 609
