A Florida federal court has granted preliminary approval of the settlement reached in a class action alleging that Kashi falsely advertised its products as “All Natural” despite containing genetically modified organisms (GMOs). Eggnatz v. The Kellogg Co., No. 12-21678 (S.D. Fla., order entered September 4, 2015). The court certified the class for settlement purposes and approved the $3.99 million settlement fund and terms of the agreement, which includes the removal of “All Natural” from Kashi products that contain the contested ingredients. The final approval hearing is set for January 2016. Additional details on the settlement appear in Issue 568 of this Update. Issue 578
Category Archives Litigation
A federal court in Puerto Rico has certified a question to the territory’s supreme court to determine whether a company can be held liable for injuries stemming from the consumption of a species of shrimp that can contain a naturally occurring toxin. Cabán v. JR Seafood Inc., No. 14-1507 (D.P.R., order entered September 11, 2015). The plaintiff became quadriplegic after eating shrimp tainted with saxitoxin at a restaurant supplied by JR Seafood. He sued JR Seafood for strict liability, arguing that the product was defective. The district court abstained from ruling, holding, “After careful review of the parties’ allegations and applicable law, the court finds that this case relies solely on an unsettled issue of Puerto Rico law, as to which this court cannot reasonably predict how the Puerto Rico Supreme Court would rule.” It then certified two questions: “Under the principles of product liability, is a supplier/seller strictly liable…
A California federal court has dismissed a putative class action alleging that Jim Beam Brands and Beam Suntory Import mislabel Jim Beam® bourbon bottles because the label calls the product “handcrafted” despite its machine-based manufacturing process. Welk v. Beam Suntory Imp. Co., No. 15-0328 (S.D. Cal., order entered August 21, 2015). The plaintiff had alleged that a reasonable consumer would be fooled by the bourbon label because the production process for the “handmade” product requires “little to no human supervision, assistance or involvement.” Details about the complaint appear in Issue 556 of this Update. The court first denied the distillery’s motion to dismiss under California’s safe harbor doctrine, finding that although Jim Beam could prove the Alcohol and Tobacco Tax and Trade Bureau had approved the label, the evidence did not indicate whether the agency investigated and approved including decisions finding for Jim Beam and its sibling brand Maker’s Mark®,…
A New Jersey federal court has dismissed putative class actions against Whole Foods Market Group Inc., Wegmans Food Markets Inc. and Acme Markets Inc. alleging that they misrepresented their bread products as “freshly baked” or “baked in-store” despite actually being frozen, processed or baked elsewhere. Mladenov v. Wegmans Food Mkts. Inc., No. 15-0373 (D.N.J., order entered August 26, 2015); Mladenov v. Whole Foods Mkt. Grp. Inc., No. 15-0382 (D.N.J., order entered August 26, 2015); Mao v. Acme Markets Inc., No. 15-0618 (D.N.J., order entered August 26, 2015). Additional information about the three complaints appears in Issue 549 of this Update. The court found holes in each of the plaintiffs’ amended complaints, noting that they lacked “any detail as to what Plaintiffs purchased, the cost of these items, and the supposed value of what they received,” which are necessary to a price-premium claim. “Nowhere in their complaints or opposition do Plaintiffs…
Sazerac Co., maker of Fireball® cinnamon whiskey, has filed a trademark infringement action against Stout Brewing Co. alleging that the brewer’s Fire Flask displays trademarks and trade dress designed to look like Fireball®. Sazerac Co., Inc. v. Stout Brewing Co., No. 15-0107 (W.D. Ky., filed August 14, 2015). Fire Flask is a malt beer product sold in clear bottles with a red cap and a front label featuring an illustration of a “demon-man with flames emanating from his head” in an “orange-yellow, red, and black” color scheme. The Fire Flask mark “is likely to give rise to confusion among consumers as to the source or sponsorship of Defendant’s products,” the complaint asserts. Sazerac seeks an injunction, corrective advertising, product recalls, an accounting, treble damages, and mark invalidation by the U.S. Patent and Trademark Office. Issue 576
A consumer has filed a putative class action against Costco Wholesale Corp. alleging that the company sells shrimp obtained with slave labor in Thailand. Sud v. Costco Wholesale Corp., No. 15-3783 (N.D. Cal., filed August 19, 2015). Citing documentaries and media reports, the complaint asserts that through its store brand, Kirkland, Costco has been selling seafood from Thailand “derived from a supply chain that depends upon documented slavery, human trafficking and other illegal labor abuses.” Further, Costco “does not advise U.S. consumers, in its packaging or otherwise, that the supply line for farmed prawns has been tainted by the use of slave labor in Thailand, and other nearby locations in international waters, including Indonesia, on Thai-flagged ships, and that there has been no eradication of this plague.” Knowingly selling such products and failing to warn the public of the farming conditions allegedly amount to unlawful business practices, misleading and deceptive…
A lawsuit dismissed in 2013 alleging that the National Pork Board purchased the tagline “The Other White Meat” from the National Pork Producers Council for fraudulent reasons has been revived by the Court of Appeals for the D.C. Circuit. Humane Soc’y of the U.S. v. Vilsack, No. 13-5293 (D.C. Cir., order entered August 14, 2015). The lawsuit was initially dismissed because the plaintiffs, including the Humane Society of the United States (HSUS), failed to prove that they had standing to sue. Details of the dismissal appear in Issue 499 of this Update. HSUS alleged that the board, a quasi-governmental entity, pays $3 million annually to license the trademarked phrase from the council, an industry trade group, not because the board intended to market pork with the slogan—which has not been in use since 2011—but rather because it sought to support the council’s lobbying efforts. Upon a de novo review, the appeals…
A California federal court has granted a stay awaiting guidance from the U.S. Food and Drug Administration (FDA) in a putative class action alleging that General Mills uses partially hydrogenated vegetable oils, which contain trans fat, in its baking mixes. Backus v. Gen. Mills, Inc., No. 15-1964 (N.D. Cal., order entered August 18, 2015). After finding that the plaintiff had standing because he alleged economic and immediate physical injury, the court turned to his claims of unlawful and unfair business practices under California law and held that they were plausibly alleged. The public nuisance and implied warranty of merchantability claims were insufficient, the court found, because the plaintiff failed to show a public harm distinct from his own injury and he failed to allege “that the baking mixes were unfit for even the most basic degree of ordinary use.” The court then granted General Mills’ motion to stay the continuing…
After dismissing a portion of the claims in July 2015, a California federal court has dismissed the remaining claims in a lawsuit against Nissin Foods Co. Inc. alleging that the use of partially hydrogenated oil (PHO) violates California law. Guttmann v. Nissin Foods (U.S.A.) Co., Inc., No. 15-0567 (N.D. Cal., order entered August 14, 2015). The plaintiff alleged that Nissin sold unsafe food to the public because of the trans fat content of its Cup Noodles®. Details of the previous ruling appear in Issue 573 of this Update. The plaintiff’s claims of unfair business practices and breach of the implied warranty of merchantability rested on his lack of knowledge about the harms of PHO and trans fat when he purchased Cup Noodles®. He claimed to believe that the products he purchased were safe to consume when they allegedly were not; however, according to three previous lawsuits against other companies on the…
A consumer has filed a lawsuit against Fifth Generation, Inc. alleging that its Tito’s Handmade Vodka® is not “handmade” as claimed on the label because it is produced through a mechanized process. Wilson v. Fifth Generation, Inc., No. 15-561 (M.D. Ala., filed August 5, 2015). The complaint joins a number of other lawsuits alleging similar facts and claims against Tito’s Handmade Vodka®. Fifth Generation has filed a motion to dismiss a similar lawsuit in Massachusetts federal court, arguing that the claims have “no basis in law or common sense” and no reasonable person could believe that a product sold nationally “was made exclusively in human hands in some backwoods, ad hoc operation, without any mechanical equipment.” Emanuello v. Fifth Generation, Inc., No. 15-11513 (D. Mass., motion filed August 5, 2015). In May and July 2015, courts dismissed lawsuits targeting “handmade” claims made on Maker’s Mark® labels, finding that the “handmade” claim “obviously cannot…
