According to a news source, trial begins April 8, 2013, in the Environmental Law Foundation’s Proposition 65 (Prop. 65) lawsuit against 28 food manufacturers and retailers in a California state court, alleging failure to warn the public that their baby and toddler foods and fruit juices contain lead, a chemical known to the state to cause reproductive toxicity or cancer. Envtl. Law Found. v. Beech-Nut Nutrition Corp., No. 11-597384 (Cal. Super. Ct., Alameda Cty., filed Sept. 28, 2011). Details about the case appear in Issue 412 of this Update. The trial will involve the manufacturing defendants and will resolve their affirmative defenses only. Trials over damages issues and claims against the retailers have not apparently been scheduled. Among the defenses that the court will consider are whether (i) Prop. 65, as applied, is preempted under the Food, Drug, and Cosmetic Act and federal nutrition programs; (ii) exposure to the products’ lead levels…
Category Archives State Courts
New York City Mayor Michael Bloomberg has announced that the city’s request for an expedited hearing on its appeal of a court ruling striking down a limitation on the size of sugar-sweetened beverages sold in certain retail venues has been granted and that friend-of-the court briefs have been filed in support of the city’s appeal. The lead signatories to the amicus briefs are the National Alliance for Hispanic Health and National Association of Local Boards of Health. They were joined by 30 other organizations and health advocates, including the Harlem Health Promotion Center, Rudd Center, Public Health Law Center, and Northeastern University School of Law Professor Wendy Parmet. According to Bloomberg, “The organizations and individuals who have joined these amicus briefs understand the toll that obesity is taking on communities here in New York City and across the nation. Sugary drinks are a leading contributor to the obesity epidemic that…
A scientist who was accused of falsifying data in research on the purported health benefits of red wine has reportedly sued the University of Connecticut, claiming that it wrongfully dismissed him and violated his civil rights in doing so. Das v. Univ. of Conn. Bd. of Trustees, No. 13-6039748 (Conn. Super. Ct., Hartford, filed March 5, 2013). Dipak Das alleges that he was not allowed to introduce exhibits and testimony or to cross-examine witnesses during his five-day dismissal hearing, the culmination of an investigation that apparently found that he had fabricated and falsified data. He also alleges that the university notified 11 scientific journals before the investigative report on which the termination was based had been completed to advise them that he had “committed research misconduct,” and that the university did this “as a means of coercing the plaintiff into settling by harming his reputation and standing in the scientific community.”…
A company that makes and sells a proprietary blend of purported “wellness” herbs as part of its line of gourmet coffee, teas and hot chocolates has sued one of its former independent business owners/operators (IBOs) alleging, among other matters, disparagement, breach of a confidential performance agreement and non-competition clause, and the misappropriation of trade secrets. SereniGy Global, Inc. v. Mendoza, No. 13-08243CA04 (Fla. Cir. Ct., 11th Cir., Dade Cty., filed March 6, 2013). According to the complaint, the company relies on a network of IBOs to market and advertise its products and signed a performance agreement with the defendant to do so in March 2012. By October, the company allegedly “received information that Defendant had been making slanderous, derogatory and disparaging remarks about Plaintiff and its CEO in violation” of the agreement, was “divulging confidential information to a third-party,” and “had been disloyal and involved in moral turpitude by advising…
The American Chemistry Council (ACC) has filed a complaint for declaratory and injunctive relief in a California state court against California EPA’s Office of Environmental Health Hazard Assessment (OEHHA), which in January 2013 proposed listing the chemical bisphenol A (BPA) as a reproductive toxicant under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). ACC v. OEHHA, No. ___ (Cal. Super. Ct., Sacramento Cty., filed March 1, 2013). Further details about OEHHA’s proposed BPA listing appear in Issue 468 of this Update. According to ACC, the agency’s scientific advisory panel, relying on the same document that OEHHA claims supports the listing—the National Toxicology Program’s Center for the Evaluation of Risks to Human Reproduction (NTP-CERHR) Monograph on the Potential Human Reproductive and Developmental Effects of Bisphenol A—unanimously concluded in July 2009 that BPA does not satisfy the criteria for listing developmental toxicants under Prop. 65. NTP-CERHR apparently concluded that “the…
A divided Colorado Supreme Court has determined that a trial court did not abuse its discretion when it refused to grant the motion for pro hac vice admission filed by Seattle-based law firm Marler Clark to represent a plaintiff in a foodborne illness lawsuit. In re Liebnow v. Boston Enters. Inc., No. 12SA83 (Colo., decided February 4, 2013). Counsel for the defendant had apparently consulted with Drew Falkenstein, a member of the Marler Clark firm, before plaintiff’s counsel asked another member of the firm to step in and represent the plaintiff. Defense counsel and Falkenstein “talked about defense counsel’s planned theory of the case,” advice on a trial expert and Falkenstein’s recommendation that a lettuce distributor be added as a nonparty defendant after he had researched E. coli outbreaks using Marler Clark’s publicly accessible database and finding such an outbreak at another local restaurant chain. “[T]he trial court concluded that…
In addition to a lawsuit filed in Illinois and two filed in New Jersey, a fourth has been filed against Subway Sandwich Shops Inc. in Pennsylvania, alleging that the company’s “Footlong” sandwich “consistently measures significantly less than twelve inches in length.” Roseman v. Subway Sandwich Shops, Inc., No. 130102647 (Philadelphia Cty. Pa. Ct. Com. Pl., filed January 24, 2013). Information about two of the other lawsuits appears in Issue 468 of this Update. The Pennsylvania complaint alleges that this size discrepancy “is not an accident” and that the company knew about the discrepancy “since Subway named its large sandwich the ‘Footlong’ sometime prior to January 24, 2007.” Seeking to certify a class of all persons who purchased a “Footlong” sandwich from a Pennsylvania Subway restaurant since that date, the plaintiff, a New Jersey resident who purports to work in Pennsylvania and regularly purchased the disputed sandwiches in Philadelphia, alleges violations of…
McDonald’s Corp. and a franchisee that owns a Dearborn, Michigan, restaurant which purported to sell halal chicken products have agreed to settle complaints that some of the products sold to consumers were not prepared according to Islamic law. Ahmed v. Finley’s Mgmt. Co., No. 11-014559-CZ (Wayne Cty. Cir. Ct., Mich., hearing held January 18, 2013). While denying any liability, the defendants will post notices about the settlement in two area restaurants, at area mosques and in several other locations. The settlement amount is $700,000, including attorney’s fees and an incentive award for the plaintiff. The net proceeds will be distributed to a health clinic and to the Arab American National Museum in Dearborn. According to plaintiff’s counsel, “McDonald’s from the very beginning stepped up and took this case very seriously. They made it clear they wanted to resolve this. They got ahead of the problem.” See The Washington Post, January…
A company that issued Citrus and Allied Essences Ltd. a commercial umbrella insurance policy in 2006 and 2007 has filed suit in a New York state court seeking a declaration that it is not obligated to defend the food-flavoring company in suits by those alleging respiratory injury from diacetyl exposure or to pay damages. Cont’l Cas. Co. v. Citrus & Allied Essences Ltd., No. 650158/2013 (N.Y. Sup. Ct., N.Y. Cty., filed January 17, 2013). According to the complaint, Citrus and its other insurers have claimed that the primary insurance policies for those years have been exhausted by settlements with plaintiffs in the underlying lawsuits. According to the umbrella insurer, however, because the bodily injury did not take place during the policy period, those other policies have not been exhausted. The insurance plaintiff also seeks to recover the amount it paid under a reservation of rights to cover a “shortfall” to…
The NAACP’s New York state branch and the Hispanic Federation have joined those arguing in court that New York City’s restrictions on the size of sugary beverages sold by certain vendors, such as corner stores and delis, should not take effect on March 12, 2013. During the January 23 hearing, opponents, including several City Council members, apparently argued that the rule should have been adopted by the elected City Council rather than the mayor’s appointed health board and that it was too narrow, exempting certain other types of beverages and excluding convenience stores and supermarkets, to be fair. The American Beverage Association and groups including movie theater owners and Korean grocers were expected to oppose the rule, but the issue is reportedly complex for minority advocates in light of high obesity rates in the African-American and Hispanic communities. Still, these groups claimed in an amicus brief that the rule will…
