A consumer has filed a putative class action in California state court alleging that Anheuser-Busch’s “Lime-A-Rita” malt beverages have too many calories and carbohydrates to be sold under the Bud Light Lime® label. Cruz v. Anheuser-Busch, LLC, No. BC563150 (Cal. Super. Ct., Los Angeles Cty., filed November 12, 2014). The plaintiff alleges that she purchased Bud Light Lime Lime-A-Rita® believing it to be low in calories and carbohydrates, but later learned that a serving of 8 fluid ounces contains between 192 and 220 calories and 22.8 to 23.6 g of carbohydrates compared to Bud Light’s 110 calories and 6.6 g of carbohydrates. “In general, ‘light’ may generally describe a zero calorie or a reduced calorie food, and consumers such as Plaintiff and the Class understand the ‘light’ label on a product that has a reduced or low number of calories,” the complaint asserts. The plaintiff attributes the level of calories…
Category Archives State Courts
A Kentucky Court of Appeals panel has reversed a trial court determinationthat trespass and nuisance claims filed by residents alleging damage from the ethanol emissions of nearby distilleries are preempted under the Clean Air Act (CAA). Merrick v. Brown-Forman Corp., No. 2013-CA-002048-MR (Ky. Ct. App., decided November 14, 2014). A federal court considering similar issues has also found that state law-based claims are not preempted. That ruling is summarized in Issue 519 of this Update. In the Kentucky state court proceeding, the circuit court dismissed the action, ruling that the “federal Clean Air Act preempts source state air quality tort claims of the type asserted by” the plaintiffs. They allege that the atmospheric ethanol the distilleries emit promotes the growth of “whiskey fungus” that causes a “pervasive black film covering virtually every outdoor surface,” which requires cleaning and power washing to remove. Plaintiff Bruce Merrick owns a company that makes…
According to a news source, New Jersey residents have filed a putative class action in state court against the Texas-based company that makes Tito’s Handmade Vodka®, the fourth such action filed within the past two months, alleging that promoting and labeling the product as “handmade” deceives consumers because the vodka is made in an industrial facility and the company sells more than 15 million bottles a year. McBrearty v. Fifth Generation, Inc. The first complaint was filed in California in September 2014 and subsequently removed to federal court, Hofmann v. Fifth Generation, Inc.; the second followed in early October in an Illinois state court, Aliano v. Fifth Dimension, Inc.; the third was filed in a Florida federal court, Pye v. Fifth Generation, Inc. The complaints variously refer to the company’s website and a Forbes article purportedly featuring images of old-time pot-still production (“i.e., in a shack containing a pot still…
Whole Foods Market Inc. is the target of two new putative nationwide class actions, one filed in a Texas federal court regarding the amount of sugar in the company’s plain Greek yogurt and the other filed in a California state court over alleged false advertising and sales of Blue Diamond almond milk products with a “Non-GMO Project Verified” label. Kubick v. Whole Foods Mkt., Inc., No. 14-1013 (W.D. Tex., filed November 10, 2014); Richard v. Whole Foods Mkt. Cal., Inc., No. BC563304 (Cal. Super. Ct., Los Angeles Cty., filed November 7, 2014). The Texas complaint alleges that Whole Foods 365 Everyday Plain Greek Yogurt represents that it contains 2 grams of sugar per serving, when testing shows that it actually contains more than 11 grams of sugar per serving, or “more than five and a half times the labeled amount.” According to the plaintiff, a California resident, this is particularly significant because…
Reversing a lower-court decision, a California appeals court has ruled that state dram shop statutes—meant to protect some sellers of alcohol beverages from liability for injuries related to the beverages’ consumption—do not provide immunity for City Brewing Co. in a lawsuit alleging that the company was negligent in producing Four Loko. Fiorini v. City Brewing Co., No. F067046 (Cal. Ct. App., 5th Dist., order entered November 6, 2014). After drinking two 23.5-ounce cans of Four Loko, the plaintiff’s son was shot to death by police in October 2010. The plaintiff alleged that City Brewing, which brewed, bottled and labeled Four Loko, was liable for negligence for producing an alcohol beverage in a nonresealable can apparently containing alcohol “equivalent to five or six 12-ounce cans of beer” and “as much caffeine as two cups of coffee” because “combining alcohol, a depressant, with caffeine and other stimulants created a product that had unreasonably…
A California state court has approved the settlement of a putative class action alleging that Barney’s Worldwide Inc., owner of the Barney’s Beanery restaurant chain, falsely advertised its beef as Kobe beef when a U.S. Department of Agriculture (USDA) ban on the import of beef from Kobe, Japan, was in effect. Nalbantian v. Barney’s Worldwide Inc., No. BC493145 (Cal. Super. Ct., Cty. of Los Angeles, approval entered October 23, 2014). The plaintiff had alleged that Barney’s advertised its menu as containing Kobe beef—which the plaintiff said indicates that the beef comes from Wagyu-breed cattle raised and slaughtered in Kobe, Japan—despite a USDA ban imposed due to fears of disease in May 2010. Under the settlement, the restaurant chain will use “Kobe beef” on its menu only if it is listed as “American Kobe beef” and will pay up to $220,000 in $10 gift certificates to any class member who submits a claim…
According to a news source, a Smith & Wollensky waiter has filed a putative class action lawsuit in a Nevada state court alleging that he was forced to share tips with assistant and general managers and even had to pay them hundreds of dollars for preferential customers, tables, shifts, or time off. Waiter Mario Viggiani has reportedly estimated that on an average night, he paid managers $65, but on busy nights he paid them “upwards of $200.” The complaint cites a Nevada law that makes it unlawful for employers “to require an employee to rebate, refund or return any part of the wage, salary or compensation earned and paid,” as well as a law making it unlawful “for any person to take all or part of any tips or gratuities bestowed upon the employees of that person.” The upscale steakhouse chain apparently has eight other facilities in the United States,…
A California state court has adjusted the language in the soft drink tax on the November 2014 ballot by replacing “high-calorie, sugary drink” with “sugar-sweetened beverages” to clarify the proposed tax and to conform with election codes. Johnson v. Numainville, No. RG14786763 (Cal. Super. Ct., Alameda Cty., order entered September 2, 2014). Agreeing with the two Berkeley residents who filed the lawsuit, the court found that “the ballot question here asking whether a tax should be imposed on ‘high-calorie, sugary drinks’ is likewise a form of advocacy and therefore not impartial. This phrase suggests that the tax will be limited to certain beverages that contain more than the average calories and too much sugar; in other words, beverages that most people would find to be unhealthy.” The court also found issue with the City Attorney’s Impartial Analysis of the measure, which described it as a tax on “high-calorie, low nutrition”…
According to a news source, the Center for Environmental Health has filed a lawsuit under California’s Safe Drinking Water and Toxic Enforcement Act (Prop. 65), alleging that Reed’s Ginger Products fails to warn consumers about the caramel-coloring chemical 4-methylimidazole (4-MEI) purportedly present in its soft drinks. Ctr. for Envtl. Health v. Reed’s, Inc., (Cal. Super. Ct., Alameda Cty., filing date unknown). In a June 26, 2014, 60-day notice, the center claimed that the company had violated the law since January 2012, stating, “No clear and reasonable warning is provided with these products regarding the carcinogenic hazards associated with 4-MEI exposure.” Prop. 65, a voter-approved law, requires warnings to consumers about exposures to substances known to the state to cause cancer or reproductive hazards and allows private individuals or organizations to enforce it. See Courthouse News Service, September 11, 2014. Issue 537
A fast-food worker in Oregon has reportedly sued her former employer, seeking $242,000 in damages on the ground that she was discharged because she became pregnant, after being told by general managers during a staff meeting that workers such as the plaintiff were not allowed to become pregnant because “they needed to be present and available at any time in order to perform their duties.” Melesio-Rojas v. Si-Pac Foods d/b/a Del Taco Gresham, No. n/a (Multnomah Cty. Cir. Ct., unknown filing date). According to a news source, the plaintiff claims that she was fired when she became noticeably pregnant after a customer complained that he did not receive all of his food, a reason she claims was “an excuse to terminate her because of her pregnancy.” The restaurant’s attorney has apparently indicated that the worker’s pregnancy-discrimination complaint with the Oregon Bureau of Labor and Industries lacked sufficient evidence to support…
