A consumer has filed a proposed class action against Trader Joe’s Co. alleging the company sells 5-ounce cans of store-brand tuna filled with only 3 ounces of product. Magier v. Trader Joe’s Co., No. 16-0043 (S.D.N.Y., filed January 5, 2016). According to the complaint, “Independent testing by the U.S. National Oceanic and Atmospheric Administration (NOAA) determined that, over a sample of 24 cans, 5-ounce cans of Trader Joe’s Albacore Tuna in Water Salt Added contain an average of only 2.61 ounces of pressed cake tuna when measured precisely according to the methods specified by [the federal statute].” The complaint further alleges similar NOAA test results for six other Trader Joe’s tuna products, amounting to breach of warranties, unjust enrichment, negligent misrepresentation, fraud and violations of New York’s consumer-protection statute. The plaintiff seeks class certification, declaratory judgment, compensatory and punitive damages, an injunction, attorney’s fees and a jury trial. Issue…
Category Archives Litigation
Chipotle Mexican Grill has reportedly been served with a grand jury subpoena as part of a U.S. Attorney’s Office and Food and Drug Administration criminal investigation into a California norovirus outbreak in August 2015 that sickened more than 200 people. The company’s fare was also linked to a norovirus outbreak in Massachusetts in December 2015. Chipotle’s food safety practices face additional scrutiny over an ongoing E. coli outbreak that has resulted in the closure of 43 Chipotle locations in Washington and Oregon and reports of related illnesses in several other states. See The New York Times, January 6, 2016. In a January 6 Form 8-K filing with the U.S. Securities and Exchange Commission, Chipotle reported a 14.6 percent drop in fourth quarter 2015 sales and non-recurring expenses related to its foodborne illness incidents of $14 to $16 million. Meanwhile, Pomerantz LLP announced on January 8 that it has filed a…
The nonprofit advocacy group Physicians Committee for Responsible Medicine (PCRM) has brought suit in the U.S. District Court for the Northern District of California seeking to prevent the U.S. Departments of Agriculture (USDA) and Health and Human Services (HHS) from adopting a recommendation of the 2015 Dietary Guidelines Advisory Committee (DGAC). The DGAC is a joint committee formed by USDA and HHS that recommended the agencies drop from the newly issued 2015-2020 Dietary Guidelines for Americans the advice that healthy individuals limit their daily dietary cholesterol consumption to 300 milligrams per day. PCRM seeks to permanently enjoin the agencies from incorporating the recommendation into the guidelines and to instead maintain current recommended daily limits. The complaint alleges the data underlying the DGAC’s recommendation is not “fairly balanced” within the meaning of the Federal Advisory Committee Act because it omits evidence unfavorable to the egg industry. Rather, PCRM contends that the DGAC…
The U.S. Court of Appeals for the Second Circuit has ruled that a Russian state-owned company can sue U.S. distributors of Stolichnaya vodka in a dispute over which entity inherited the brand after the Soviet Union collapsed—the Russian Federation or private companies successive to the company that sold the product before the dissolution. Fed. Treasury Enter. Sojuzplodoimport v. Spirits Intl. BV, No. 14-4721 (2nd Cir., order entered January 5, 2016). A lower court previously held that the Russian Federation’s Federal Treasury Enterprise Sojuzplodoimport (FTE) did not have standing to sue, but the appeals court disagreed. “The declaration of a United States court that the executive branch of the Russian government violated its own law by transferring its own rights to its own quasi-governmental entity (FTE) would be an affront to the government of a foreign sovereign,” the appeals court held. “Even an inquiry into whether Russian law permitted the Assignment…
A California federal court has refused to certify the proposed class in a case alleging Yakult U.S.A., Inc. mislabels its probiotic yogurt drinks as providing nonexistent health benefits. Torrent v. Yakult U.S.A., Inc., No. 15-0124 (C.D. Cal., order entered January 5, 2016). The plaintiff argued that “Yakult fails to actually confer any health benefit and that there is no credible scientific evidence that the probiotics in the beverage do what Yakult claims,” and he sought to enjoin Yakult from continuing to sell the product with its allegedly false labeling. The court found that the plaintiff lacked standing to seek injunctive relief because he did not intend to buy Yakult’s product again. “Owing to his lack of standing to pursue injunctive relief,” the court said, “he has failed to provide a sound rationale for class certification under either [certification standard].” Further, “even if it were possible for [the plaintiff] to obtain…
The U.S. Court of Appeals for the Second Circuit had upheld the conviction of a man who sold $20 million worth of counterfeit wine by mixing lower-priced wines and pouring them into the bottles of more expensive wines. USA v. Kurniawan, No. 14-2928 (2nd Cir., order entered December 22, 2015). The man challenged the search of his home on Fourth Amendment grounds, arguing that the evidence police found should have been inadmissible. The appeals court disagreed, finding that although the warrantless protective sweep had been illegal, the police affidavit provided enough additional evidence beyond what was found during the protective sweep to support issuing the warrant. Accordingly, the court affirmed a lower court’s judgment that the man must serve 10 years in prison and pay $28 million in restitution along with $20 million in forfeiture. Issue 589
The U.S. Court of Appeals for the D.C. Circuit has affirmed a lower court’s dismissal of Food & Water Watch’s challenge to the New Poultry Inspection System (NPIS). Food & Water Watch, Inc. v. Vilsack, No. 15-5037 (D.C., order entered December 22, 2015). The organization argued that the NPIS did not comply with the Poultry Products Inspection Act and would increase the risk of foodborne illnesses resulting from contaminated poultry. The lower court found that Food & Water Watch leaders did not have standing to sue because they could not show that the increased risk and probability of harm was substantial. The appeals court agreed, noting that the organization’s arguments ignored some provisions of the NPIS requiring more “offline” inspections, which could lower the risk of foodborne illness. Additional information about the lower court’s ruling appears in Issue 555 of this Update. Issue 589
Photographer Mitchel Gray has reportedly filed a lawsuit against Jeff Koons alleging that one of the artist's works infringes on Gray's copyright to a photo used in a Gordon's® gin advertisement in 1986. The ad portrays a photo of a woman painting on the beach and a man seated next to her, a photo of a bottle of Gordon's® and the tagline "I could go for something cool, crisp and Gordon's." Koons' version, which uses the photo with slightly adjusted colors, a bottle of Gordon's® in a different spot and the tagline "I could go for something Gordon's," sold for $2.04 million at auction in 2008. The complaint reportedly asserts that Koons never contacted Gray for permission to use the photo and never provided him any compensation from the proceeds of the auction, citing for added support Koons' testimony from a similar infringement case filed in 1989 involving a different…
Grumpy Cat Ltd., owner of the Grumpy Cat trademark, has filed a copyright infringement suit against Grenade Beverage LLC alleging the company failed to pay for the sales of authorized merchandise and sold additional unauthorized branded products. Grumpy Cat Ltd. v. Grenade Beverage LLC, No. 15-2063 (C.D. Cal., filed December 11, 2015). "Ironically," the complaint states, "while the world-famous feline Grumpy Cat and her valuable brand are most often invoked in a tongue-and-cheek fashion, Defendants' despicable misconduct here has actually given Grumpy Cat and her owners something to be grumpy about." Grumpy Cat agreed to license its trademark to Grenade for use in relation to "a line of Grumpy Cat-branded coffee products," which the complaint asserts was mutually understood to mean a line of iced-coffee beverages called the "Grumpy Cat Grumppuccino." Grumpy Cat alleges that it later learned Grenade also planned to produce a line of roasted coffee grounds products associated…
A Pennsylvania jury has found that Starr Surplus Lines Insurance must uphold H.J. Heinz Co.'s $25 million policy covering damages related to baby cereal tainted with lead. H.J. Heinz Co. v. Starr Surplus Lines Ins. Co., No. 15-0631 (W.D. Penn., jury verdict entered December 16, 2015). Heinz sought a declaratory judgment that the insurance provider must cover business-interruption costs after China's food-control agency found lead in the company's high-protein dry baby cereal. Starr argued that Heinz had misrepresented the situation when the company applied for the policy because it failed to disclose previous contamination incidents. The jury concluded that although Starr did prove "that Heinz made a misrepresentation of fact(s) in its insurance application which was material," Starr "waived the right to assert a rescission claim" either because it sold the policy with knowledge of the misrepresentation or because it failed to rescind the policy after learning of the misrepresentation.…
