A California state court has certified a class challenging the source and grade of Safeway Inc.’s olive-oil products, which are labeled as “extra virgin” and “Imported from Italy” despite being manufactured from olives grown and pressed outside that country. Kumar v. Safeway Inc., No. RG14726707 (Cal. Super. Ct., Alameda Cty., order entered May 24, 2016). The plaintiff proposed two classes: one composed of consumers who purchased the products relying on the “extra virgin” label and another with consumers who relied on the “Imported from Italy” claims. The court assessed the classes in accordance with each requirement—ascertainability, commonality, typicality, adequacy and superiority—and found the plaintiff’s class definitions demonstrably met each standard. “Defendant’s argument that Plaintiff is required to demonstrate that class members have a common understanding of what ‘extra virgin’ means is unsupported by the authorities cited, and is not well taken,” the court noted. The plaintiff also leads a challenge…
Category Archives Litigation
A New York appeals court has reportedly vacated a February 2016 order that stayed enforcement of New York City’s regulation requiring chain restaurants with more than 15 locations to post warning icons on menus next to items with more than 2,300 milligrams of sodium. The ruling allows enforcement to begin on June 6, 2016, with violators subject to $200 fines. The National Restaurant Association (NRA) won an emergency stay on February 29, one day before the regulation’s scheduled March 1 enforcement date. Details about the NRA’s lawsuit challenging the regulation appear in Issues 586, 595 and 596 of this Update. See Reuters, May 26, 2016. Issue 606
The U.S. Judicial Panel on Multidistrict Litigation has consolidated several putative class actions against a number of companies alleging they labeled their grated-parmesan products as “100% Parmesan” despite containing cellulose. In re 100% Grated Parmesan Cheese Mktg. & Sales Practices Litig., MDL No. 2705 (J.P.M.L., transfer order entered June 2, 2016). The consolidated cases include 16 lawsuits and 33 potential tag-along actions filed against Kraft, Target, Albertsons and others in jurisdictions across the country. The parties petitioned for centralization in the federal courts of Missouri, Minnesota, Pennsylvania and other states, but the court chose the Northern District of Illinois as “a convenient and accessible forum for actions filed throughout the country regarding products sold nationwide.” The parties also disputed whether the cases should be consolidated into a single multi-product MDL or separate MDLs grouped by the product or primary corporate defendant; the court held that “a single, multi-product MDL is…
A consumer has filed a putative class action against Mondelez International Inc. alleging the company’s “Go-Paks,” packages of “mini” or “bite” versions of Nabisco cookie and cracker products, contain more than 25 percent slack-fill in violation of California law. Bush v. Mondelez Int’l Inc., No. 16-2460 (N.D. Cal., filed May 5, 2016). The “Go-Paks,” including Mini Chips Ahoy!, Mini Oreo and Ritz Bits varieties, are sold in opaque cups that do not indicate the quantities inside, the complaint asserts. The plaintiff argues that he relied on the cup’s size as a representation of the product he would be receiving and he would not have purchased the product had he known about the amount of slack-fill. For alleged violations of California consumer-protection statutes as well as breach of warranties, negligent misrepresentation, fraud and unjust enrichment, the plaintiff seeks class certification, an injunction, actual and punitive damages, attorney’s fees and costs. Issue…
A class of consumers in New York and California, represented by the Center for Science in the Public Interest (CSPI), has brought suit in the Eastern District of New York seeking restitution, actual and punitive damages, and injunctive relief against the Kellogg Co. for allegedly misbranding its Cheez-It® “Whole Grain” snack crackers. The complaint alleges that Cheez-It® “Whole Grain” crackers contain only a small amount of whole grain, but that the product packaging is designed in such a way as to mislead consumers to believe that the product is produced primarily with whole grains. The class contends that the primary ingredient is enriched flour, however, the product package states conspicuously the words “Whole Grain” on five of the six packaging panels. And when purchasing the crackers, lead plaintiffs sought a product that was predominantly whole grain. The complaint further alleges that the class members would not have purchased the Cheez-It®…
An Oregon state court has invalidated a local ban on cultivating genetically modified organisms (GMOs), holding that the ordinance contradicts state law preventing local anti-GMO rules. White v. Josephine Cty., No. 15-23592 (Ore. Cir. Ct., Josephine Cty., order entered May 16, 2016). The plaintiff challenged the law after he rented land within Josephine County then learned he could not grow his crops there under a May 2014 ordinance prohibiting GMO-crop cultivation. Intervenors in the case challenged the standing of the plaintiff, who described himself as a GMO sugar-beet farmer. According to the court, the intervenors argued that “the plaintiffs are posing as GMO farmers so that large chemical companies through them can attack the local ordinance.” The court disagreed, finding ample evidence to grant the plaintiff standing. Turning to the content of the ordinance, the court held that the state statute preempted the local law. “[T]he conflict could not be…
A California federal court has denied the American Beverage Association’s (ABA’s) attempt to preliminarily enjoin the enforcement of a law requiring manufacturers of sugar-sweetened beverages (SSBs) to provide a warning about the alleged health risks associated with SSB consumption. Am. Beverage Ass’n v. City of San Francisco, No. 15-3415 (N.D. Cal., order entered May 17, 2016). Further details about the lawsuit appear in Issues 573, 586 and 592 of this Update. The court first assessed the ABA’s argument that the law would burden noncommercial speech in addition to regulating commercial speech, which would trigger the highest level of scrutiny. ABA members’ communications to consumers are not limited to commercial speech, the organization argued, because they also publicize other messages, such as promotion for the Pride Parade and the Chinese New Year’s Festival. The court disagreed, finding the amount of noncommercial speech affected was not substantial. The court then reviewed whether…
Two strawberry breeders formerly of the University of California, Davis have filed a lawsuit against the university targeting its strawberry-breeding program, which they argue is denying them the opportunity to license the breeds they helped cultivate. Cal. Berry Cultivars LLC v. Regents of U. of Cal., No. 16-2477 (N. Cal., removed to federal court May 6, 2016). The scientists left the program in 2014 to start their own cultivation company with a former California secretary of food and agriculture. Their departure triggered a lawsuit from the California Strawberry Commission, which asserted the university was neglecting the program. The scientists now reportedly argue the university refuses to license—“on a non-exclusive basis at a reasonable royalty”—the plants to California Berry Cultivars to suppress competition, amounting to allegations of conversion, breach of contract, breach of faith, breach of fiduciary duty and unfair competition. Details about the settlement of the previous lawsuit appear in…
A consumer has filed a proposed class action against Caribou Coffee Co. Inc. arguing the company violated the Telephone Consumer Protection Act (TCPA) by sending her “numerous unsolicited SMS text messages.” Farnham v. Caribou Coffee Co. Inc., No. 16-0295 (W.D. Wis., filed May 5, 2016). The plaintiff asserts that Caribou sent her 50 text-message advertisements from March to May 2016 without her consent. For allegations of negligent and willful violations of TCPA, the plaintiff seeks statutory damages of $500 per negligent violation and $1,500 per willful violation as well as an injunction and class certification. Issue 604
Consumers have filed a putative class action against Albertson’s Inc. and Safeway Inc. alleging the companies raise prices on meat during “buy one get one free” (BOGO) deals, resulting in consumers “actually paying for the meat that is sold as ‘free’ in these special sales.” Stewart v. Albertson’s Inc., No. 16-15125 (Ore. Cir. Ct., Multnomah Cty., filed May 4, 2016). The complaint asserts the stores rotate BOGO offers on a number of meat products, including pork chops, chicken breast and beef sirloin, but offer the products at lower prices when they are not on special. Further, the stores “sell the same meat products at regular [loyalty card] prices that are lower than the BOGO prices. When they do this, Defendants sometimes sell the same product under different names.” The plaintiffs offer an example: “Safeway sold boneless, skinless chicken breasts to [loyalty card] members for $1.99 per pound. At the same…
