As consumers around the world have begun posting images online of their Subway “footlong” sandwiches with rulers showing that the restaurant’s offerings are actually 11 or 11.5 inches in length, several have taken their claims to court. Buren v. Doctor’s Assocs., Inc., No. 13 498 (N.D. Ill., filed January 22, 2013); Pendrak v. Subway Sandwich Shops, Inc., No. ___ (N.J. Super. Ct., filed January 22, 2013). Plaintiff Nguyen Buren filed his lawsuit in a federal court in Chicago, claiming that his sandwich was less than 11 inches long and alleging a “pattern of fraudulent, deceptive and otherwise improper advertising, sales and marketing practices.” New Jersey residents John Farley and Charles Pendrak allege in state court, “Despite the repeated use of uniform language by Subway stating that this sandwich is a ‘footlong,’ the product in question is not, in fact, a foot long. Rather this product consistently measures significantly less than…
Category Archives State Courts
One of the 750 beef processing plant employees who lost his job in the wake of recent negative publicity involving “lean finely textured beef,” otherwise referred to in the media as “pink slime,” has reportedly filed a lawsuit in a Nebraska state court naming as defendants celebrity chef Jamie Oliver, ABC’s Diane Sawyer, a blogger, and 10 unnamed individuals. Bruce Smith, who worked as senior counsel and director of environmental, health and safety at Beef Products, Inc., is apparently seeking $70,000 in damages on the ground that the company “and its employees were unfairly and unnecessarily maligned and accused of producing a food product that did not exist, a product that critics unfairly labeled ‘pink slime.’” The publicity apparently led to the loss of numerous contracts for the product’s purchase. See The Daily Mail, December 12, 2012.
Soft drink manufacturers and restaurateurs have reportedly requested that the court reschedule oral arguments in their challenge to a New York City prohibition on the sale of sweetened beverages in sizes that exceed 16 ounces. N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. NYC Dept. of Health & Mental Hygiene, No. 653584/2012 (N.Y. Sup. Ct., filed October 12, 2012). Additional details about the case appear in Issue 458 of this Update. According to a news source, the industry interests seek oral argument before January 2013, claiming it will take up to three months to “retool” their operations to comply with the new requirements, which will take effect in March 2013, if upheld by the court. City attorneys have apparently decided not to oppose the request, noting that everyone’s interest will be served if the matter is “resolved sooner rather than later.” See Reuters, December 5. 2012.
In an unpublished decision, a California appeals court has determined thatInnovation Ventures, LLC, the parent company which makes 5-Hour Energy®, may proceed with a malicious prosecution action against Howard Rubinstein and other consumer-fraud attorneys in connection with a putative class action filed against the company in 2010 on behalf of a woman, Vi Nguyen, whose claims about the product apparently changed during her deposition, leading to the suit’s voluntary dismissal with prejudice. Innovation Ventures, LLC v. Rubinstein, No. G046242 (Cal. Ct. App., 4th Dist., decided November 29, 2012) (unpublished). The court noted that the underlying consumer-fraud complaint referred in a number of places to the named plaintiff as “he” and that the named plaintiff did not believe she had ever seen the complaint or she would have corrected these references. She also apparently had never seen the attorneys of record “and had just met Rubinstein the day before her deposition.”…
A putative class action filed in a California state court claims that Monster Rehab®, a green tea and energy drink, contains unknown amounts of epigallocatechin-3-gallate (ECGC), “an extremely dangerous and potentially lethal ingredient,” and that the company fails to warn consumers of its potential hepatotoxic side effects. Wooding v. Monster Energy Co., No. 30-2012-00609716 (Cal. Super. Ct., Orange Cty., filed November 5, 2012). While the named plaintiff, a Huntington Beach, California, resident, has not apparently experienced any side effects, she claims to have “suffered injury in fact and has lost money and property as a result of the unfair, deceptive, untrue and misleading advertising described herein, including the purchase price for products that are of little or no value and are dangerous.” Among other matters, the plaintiff claims that those with compromised livers should not drink the product, nor should it be consumed with alcohol. Yet, she points to ads…
A California appeals court has determined that the Office of Environmental Health Hazard Assessment (OEHHA) may not add styrene or vinyl acetate to the Proposition 65 (Prop. 65) list of chemicals known to the state to cause cancer because they have been identified as “possible” but not known carcinogens. Styrene Info. & Research Ctr. v. OEHHA, No. C064301 (Cal. Ct. App., 3d Dist., decided October 31, 2012). Styrene is used in food packaging. The International Agency for Research on Cancer (IARC) had categorized the substances as Group 2b chemicals, which are “possibly” carcinogenic to humans, based on less than sufficient evidence of carcinogenicity in experimental animals. The court acknowledged that the California Health and Safety Code requires that the Prop. 65 list contain “at a minimum, the substances identified by reference in Labor Code section 6382, subdivision (d),” which addresses “hazardous substances” that extend “beyond those that cause cancer or…
The parents of a 14-year-old girl who allegedly died after consuming two 24-ounce Monster Energy® drinks in a 24-hour period have filed a wrongful death and strict product liability lawsuit against Monster Beverage Corp. in a California state court. Crossland v. Monster Beverage Corp., No. RIC 1215551 (Cal. Super. Ct., Riverside Cty., filed October 17, 2012). They claim that the teen went into cardiac arrest and was placed in an induced coma at Johns Hopkins Hospital to reduce brain swelling. After six days, life support was terminated, and the girl died. The plaintiffs allege that the autopsy report attributed her death to “cardiac arrhythmia due to caffeine toxicity complicating mitral valve regurgitation in the setting of Ehlers-Danlos syndrome.” The complaint contends that two of the company’s energy drinks contain 480 milligrams of caffeine, the equivalent of 14 12-ounce cans of caffeinated soda. Among other matters, the plaintiffs allege that the…
The United Farm Workers has reportedly filed a lawsuit against the California Division of Occupational Safety and Health (Cal/OSHA) over its alleged “systemic failure” to enforce a 7-year-old regulation requiring farmers to provide water, shade and rest to employees to prevent heat illness or death. Bautista v. Cal/OSHA, No. ___ (Cal. Super. Ct., Los Angeles Cty., filed October 18, 2012). The union contends that “[a]t least 28 farm workers have died of potentially heat-related causes since the regulation was first approved in 2005. This year alone, Cal/OSHA is investigating heat as a factor in the deaths of four people.” The complaint, filed on behalf of individual farm workers, the United Farm Workers (UFW) and UFW Foundation, alleges, among other matters, that Cal/OSHA has failed to (i) “conduct on-site inspections for complaints”; (ii) “evaluate the conditions alleged in a complaint when it does conduct inspections”; (iii) “issue citations for serious, repeat,…
A coalition of industry and union interests has filed a petition seeking to enjoin or invalidate the New York City (NYC) Department of Health prohibition on the sale of certain sugar-sweetened beverages in servings exceeding 16 ounces from certain types of business establishments. N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. NYC Dept. of Health & Mental Hygiene, No. 653584/2012 (N.Y. Sup. Ct., N.Y. Cty., filed October 12, 2012). The coalition contends that the Board of Health acted beyond its powers in adopting the prohibition and that it is arbitrary and capricious in its design and application. Members of the coalition include trade associations for Korean-American grocers, restaurants, beverage makers, and theater owners, as well as the Hispanic Chamber of Commerce and a soft drink and brewery workers union local. According to the petition, the rule does not apply to beverages higher in calories than soft drinks, including alcohol-based drinks, wines,…
A coalition of industry and union interests has filed a petition seeking to enjoin or invalidate the New York City (NYC) Department of Health prohibition on the sale of certain sugar-sweetened beverages in servings exceeding 16 ounces from certain types of business establishments. N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. NYC Dept. of Health & Mental Hygiene, No. 653584/2012 (N.Y. Sup. Ct., N.Y. Cty., filed October 12, 2012). The coalition contends that the Board of Health acted beyond its powers in adopting the prohibition and that it is arbitrary and capricious in its design and application. Members of the coalition include trade associations for Korean-American grocers, restaurants, beverage makers, and theater owners, as well as the Hispanic Chamber of Commerce and a soft drink and brewery workers union local. According to the petition, the rule does not apply to beverages higher in calories than soft drinks, including alcohol-based…
