A California federal court has denied a proposed settlement in a consumer class action alleging Annie Chun's® soup products, made by CJ America Inc., either contain monosodium glutamate or ingredients that produce the substance during the cooking process despite being labeled as "No MSG Added." Petersen v. CJ America Inc., No. 14-2570 (S.D. Cal., order entered December 16, 2015). The court rejected the bid to certify the class for purposes of the settlement, finding the plaintiff had shown that the South Korean company was subject to jurisdiction in California but not necessarily other states, thus precluding the approval of a nationwide class. The parties reached the proposed settlement in November 2015. Additional details appear in Issue 584 of this Update. Issue 588
Category Archives Litigation
The Seventh Circuit Court of Appeals has upheld an Indiana law restricting the sale of cold packaged beer in convenience stores, pharmacies and groceries in incorporated towns, finding that the statute survives a rational-basis analysis. Petroleum Mktrs. & Convenience Stores Assoc v. Cook, No. 14-2559 (7th Cir., order entered December 14, 2014). The court found that although Indiana does not have "nearly absolute" power to regulate alcohol sales as the state had argued, it may prohibit stores from selling cold beer, even if it also allows the same stores to sell chilled beverages with higher alcohol content such as wine coolers. The court distinguishes between the licenses required by liquor stores, which can sell cold beer, and the licenses available to convenience stores and similar retailers; liquor stores "are subject to stricter regulations designed to enhance the State's ability to limit and control the distribution of alcohol," including minimum ages…
Nine putative class actions and 44 related cases alleging that StarKist Co., Bumble Bee Foods LLC and Tri-Union Seafoods LLC conspired to fix prices of canned tuna have been consolidated by the U.S. Judicial Panel on Multidistrict Litigation. In re Packaged Seafood Prods. Antitrust Litig., No. 15-2670 (S.D. Cal., order entered December 9, 2015). The court found that the actions "share factual questions arising out of an alleged conspiracy by defendants—the three largest producers of packaged seafood products in the U.S. with an alleged collective market share of more than 70%—to fix prices of packaged seafood products." The court also noted that the issue is "the subject of an ongoing criminal investigation by the U.S Department of Justice." Additional details about one of the proposed class actions appears in Issue 574 of this Update. Issue 588
A South Carolina federal court has ruled that the U.S. Food and Drug Administration (FDA) was not negligent in issuing a tomato recall during a 2008 outbreak of Salmonella, dismissing a tomato farm's claim of $15 million in damages. Seaside Farm Inc. v. U.S., No. 11-1199 (D.S.C., order entered December 16, 2015). The farm had argued that FDA should have been more specific in its recall, while FDA argued it never issued an official recall, only warnings about tomatoes. The court had previously dismissed allegations of defamation and takings against the government. Issue 588
The Philippine Supreme Court has reportedly invalidated a 2002 governmental regulation allowing the import of genetically modified organisms (GMOs) after Greenpeace and a farmer's group challenged the field testing of a GMO eggplant (talong). The ruling affirms a lower court's 2013 decision finding "no full scientific certainty yet as to the effects of Bt talong field trials to the environment and to the health of the people" and noting that existing regulations did not do enough to protect Philippine environment and health. "This decision builds on a wave of countries in Europe rejecting [genetically engineered (GE)] crops, and is a major setback for the GE industry,” said a Greenpeace Philippines spokesperson in a December 11, 2015, press release. "The Philippines has been used as a model for GE regulatory policy around the world, but now we are finally making progress to give people a right to choose the food they…
The Sixth Circuit Court of Appeals has denied a request for an en banc rehearing in a lawsuit alleging that the distilleries of two Diageo Americas Supply Inc. brands, J&B® and Johnnie Walker®, caused the growth of a black fungus on outdoor surfaces near the plants. Merrick v. Diageo Ams. Supply Inc., No. 14-6198 (6th Cir., order entered December 7, 2015). Diageo had sought to dismiss the suit by arguing the claims conflicted with emissions regulations under the Clean Air Act, but a lower court and the Sixth Circuit disagreed upon hearing the arguments. Diageo then requested en banc reconsideration, but the one-page denial noted that “the issues raised in the petition were fully considered upon the original submission and decision of the case.” Details about the case appear in Issues 519 and 546 of this Update. Issue 587
A California federal court has dismissed a lawsuit against Trader Joe’s Co. alleging the retailer’s soy milk is mislabeled because it does not contain cow’s milk, which the plaintiffs argued amounts to a violation of the federal Food, Drug, and Cosmetic Act and California’s consumer protection statute. Gitson v. Trader Joe’s Co., No. 13-1333 (N.D. Cal., order entered December 1, 2015). “Often in food labeling cases,” the court noted, “courts jump straight to the question of whether a plaintiff may state a claim under California’s Unfair Competition Law. But there is a threshold question.” The court explained that questions related to food labeling must be considered in the context of the federal Food, Drug, and Cosmetic Act because “if the alleged conduct would not violate the federal statute, it doesn’t matter whether the plaintiff could pursue a state law claim based on that conduct. If a food label does not…
Safeway Inc. will pay $41.9 million to customers who ordered groceries online and were charged a 10 percent markup on the items they ordered compared to the prices charged in-store, a court has confirmed. Rodman v. Safeway Inc., No. 11-3003 (N.D. Cal., order entered November 30, 2015). A California federal court approved the settlement amount of $31 million in damages and $10.9 million in prejudgment interest. Additional details about the case appear in Issues 549 and 577 of this Update. Issue 587
The Judicial Panel on Multidistrict Litigation has consolidated three putative consumer class actions and a competitor lawsuit challenging McCormick’s alleged under-filling of its non-transparent black pepper containers. In re McCormick & Co. Inc. Pepper Prods. Mktg. & Sales Practices Litig., MDL No. 2665 (D.D.C., transfer order filed December 8, 2015). The court found that the actions involved common factual questions “about the propriety of McCormick’s pricing and packaging of its pepper products under various federal and state laws.” The transfer order notes that the plaintiffs of one consumer suit argued the competitor action be excluded, but the court found the action had a “clear factual overlap with the other cases.” The cases will continue in the District of District of Columbia and may involve additional tag-along actions as well. Additional information about the competitor action, brought by Minnesota-based Watkins Inc., appears in Issue 568 of this Update; details about a putative…
A California federal court has dismissed a putative class action alleging Nestlé USA Inc. violates state laws about notifying consumers of products sourced from forced labor because of Nestlé’s partnership with a company accused of using slave labor to catch and supply its fish. Barber v. Nestlé USA Inc., No. 15-1364 (C.D. Cal., order entered December 9, 2015). The plaintiffs asserted that some of Nestlé’s Fancy Feast® cat food products include fish supplied by Thai Union Frozen Products, which acknowledges that some of its smaller fishing boats use forced labor, but “it is virtually impossible to say how pervasive the problem is,” according to the court. Nestlé argued the plaintiffs’ claims were barred by the safe harbor doctrine created by the California Transparency in Supply Chains Act of 2010, which “requires any retailer who does business in California and has annual worldwide gross receipts exceeding $100 million to make specific disclosures…
